we the limited people

Draft for discussion at NYU Global Fellows Forum, March 10, 2015. Please do not cite or circulate.

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We the Limited People

Yaniv Roznai*

“I want to plead here against any weakening of our constitutional limitations of power, even the power of the people themselves; in the interest of individuals or minorities among the people. For the people have

now succeeded to the power of the benevolent despots of the eighteenth century, and in the exercise of it they are often swayed by special interests or crafty demagogues as their predecessors were by favourites. I

frankly want to rely on the earlier, the sounder, yes the medieval principle, that there are some individual rights that even a people’s government can never touch”

C. H. Mcllwain, CONSTITUTIONALISM AND THE CHANGING WORLD 263 (1939)

INTRODUCTION

Constituent Power, as a branch of constitutional law, involves legal theory at its highest

level. Claude Klein proposes that this is why “jurists throughout history have always been

fascinated by the constituent power and its theory”.1 However, whereas constituent power

remained a subject frequently dealt with within European continental and Latin

American scholarship, in Anglo-American legal debates it somehow sank into slumber; in

the UK obviously due to the absence of a written constitution and in the U.S. debates

probably owing to the stability of the 1787 Constitution and the prevailing approach of

American constitutionalism, which assumes that after the establishment of the

Constitution, Art. V, through which “the people” may amend the Constitution, contains

the constituent power, and therefore the latter “plays no direct role in American

constitutionalism.”2

Nevertheless, constituent power has (and should have) an immense prominence to

modern constitutionalism.3 We live in an age of constitution-making. The Arab spring

with its significant social and political changes across North-Africa and the Middle East,

is just one example. One recent study estimated that in any given year, about 4 or 5

constitutions are replaced.4 Consequently, there is a renewed interest in the issue of

constitution-making,5 and a revival of attention to the concept of constituent power.6

Constitution-making is a process driven by a constitution-making power – a

constituent power. 7 In the modern era, a nation’s constitution is regarded as receiving its

normative status from the political will of “the people” to act as a constitutional

authority.8 The locus of ultimate source of legitimacy is thus bottom-up, originating in

“the people”.9 Nonetheless, such vague phrase conceals many complexities, such as who


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are the people? How do we recognise them? Through which mechanisms can the people

speak in one voice?10 There are of course different modalities for the exercise of

constituent power, and experience in different countries indicates a wide variety of options

as to the arenas for constitution-making, such as expert commissions, parliamentary

enactment, executive diplomacy, constituent assemblies, popular initiatives and

referenda.11 This article does not focus on constitution-making process, important as this

issue may be;12 rather it focuses on a theoretical question with practical implications: are

“the people”, in their constituent capacity, substantively limited in any way? This

question has concrete consequences since if constituent power is conceived as limited then

certain actions may be considered as ultra vires and hence, a constitution might (at least as

a matter of theory) be deemed as “unconstitutional”.13

The article’s theoretical approach would be a methodological dualism. It would

be both explanatory, aimed at describing the legal behavior of the constitution-making

power and normative, aiming to propose a prospective theory.14 This research attempts

to construct a general theory of the scope of constituent power which would bond together

different concepts such as sovereignty, constitutionalism, rights, and democracy in a

coherent form.15 True, one may be inclined to share Joseph Raz’s skepticism about the

potential of grand constitutional theories. Perhaps, as he says, there really is “no room

for a truly universal theory of the subject”.16 However, this article confronts the research

question from a more general perspective. Due to the foremost theoretical nature of this

article, its enquiries transcend any specific boundaries insofar as it presents phenomena

common to all contemporary constitutional transformations.

A. CONSTITUTION-MAKING MOMENTS – A “WILD-WEST”?

In order to properly address the scope of constitution-making power one ought to return

to the theoretical roots of constituent power. The concept of constituent power is relatively

modern; emerging in the French and North-America’s revolutionary thinking.17 In his

famous political pamphlet Qu’est-ce que le Tiers état?, Abbé Emmanuel Joseph Sieyès writes

that “in each of its parts a constitution is not the work of a constituted power but a

constituent power”.18 Sieyès thus distinguished between constituted power and constituent

power. The latter is the extraordinary power to form a constitution, the immediate

expression of the nation. It is independent of any constitutional forms and restrictions.

In contrast, the former is the power created by the constitution, an ordinary, limited


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power, that functions according to the forms and mode the nation grants it in positive

law.19 Thus, according to this traditional approach, constituent power and constituted powers

exist on different planes: constituent power is external to the existing constitutional order

while constituted power is inseparable from a pre-established constitutional order.20 Hence,

contrary to constituted powers, constituent power is free and independent from any formal

bonds of positive law: “The nation”, Sieyès wrote, “exists prior to everything; It is the

origin of everything. Its will is always legal. It is the law itself”.21 The constitution, as a

positive law, emanates “solely from the nation’s will”.22 For Sieyès, the constituent power

was unlimited for “it would be ridiculous to suppose that the nation itself could be

constricted by the procedures or the constitution to which it had subjected its

mandatories”.23 The nation is free from constitutional limits. “Not only is the nation not

subject to a constitution”, Sieyès insists, “it cannot be and should not be…”24 The

sovereign people, according to his idea of constituent power, are exterior to their

institutions.25 Thus, the nation remains above its constitution, and the constitution does

not limit the nation, rather only constituted powers, created by the constitution.26

What is “the nation”? For Sieyès, it is “a body of associates living under a common

law, represented by the same legislature, etc.”27 This could mean that the political will of the

people to be linked to each other (politically and legally) is what creates a national bond.28

It is “the people”, rather than a divine Monarch, who is the subject and the holder of the

constituent power.29 How may the nation exercise its constituent power? According to Joseph

de Maistre, “the people are the sovereign which cannot exercise their sovereignty…”.

However, if the people are said to “exercise their sovereignty by means of their

representatives”, this, de Maistre believed, “begins to make sense”.30 Indeed, according to

Sieyès, since “members of the association will have become too numerous and occupy

too widely dispersed to be easily able to exercise their common will themselves” there is

a need for representation.31 Sieyès’ conception of constituent power is thus attached to

representation.32 This representation is extraordinary since it is free from any prior

constitutional restrictions or procedures, and should not be confused with the “ordinary

representatives of a people”, who possess only limited powers, confined to those granted

to them by the positive constitution. These representatives serve as “a surrogate for the

Nation in its independence from all constitutional forms”.33 As Egon Zwein attempted

to demonstrate, by his theory of constituent power, which could be filtered through complex

representation, Sieyès applied Montesquieu’s concept of separation of powers to

Rousseau’s notion of sovereignty.34


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Carl Schmitt developed the doctrine of constituent power in his 1928 book

Verfassungslehre. Like Sieyès, Schmitt declared that “the constitution does not establish

itself”.35 It “is valid because it derives from a constitution-making capacity... and is

established by the will of this constitution-making power”.36 This constitution-making

power (verfassungsgebende Gewalt) “is the political will, whose power or authority is capable

of making the concrete, comprehensive decision over the type and form of its own

political existence”.37 For Schmitt, the constitution is created through the act of political

will and is composed of fundamental political decisions regarding the form of

government, the state’s structure, and society’s highest principles and symbolic values.38

Schmitt accepted Sieyès’ distinction between constituent and constituted power, and conceived

constituent power to be unlimited and unrestricted by positive constitutional forms or

rules.39 By conceiving constituent power as external to (and above) the constitution, and as

never exhausted within the positive juridical constitution,40 Schmitt’s rejects “juridicial

normativism”.41 Constituent power was understood by Schmitt as an “unmediated will”,

which cannot be regulated or restricted by legal procedures or process.42 Any attempt to

formalize it would be “akin to transforming fire into water”.43

Antonio Negri explained that any legal approach to constituent power fails since

constituent power “comes from a void and constitutes everything”,44 thus capable of

disrupting constituted boundaries.45 For Negri, this disregard for pre-existing legality is

not necessarily problematic; it instead can be regarded as establishing the “political

bottom” for a new democratic constitution.46

The conception of constituent power as unlimited by nature, was acknowledged by

legal and political theorists from different jurisdictions and diverse intellectual traditions.

Substantivists like Olivier Beaud regard constituent power as sovereign.47 And for the French

positivists, such as Raymond Carré de Malberg, Georges Burdeau, Roger Bonnard Guy

Héraud, and Georges Vedel, constituent power, which exists outside of any constitutional

authority, is exercised in revolutionary circumstances, outside the laws (forms,

procedures, and limits) established by the constitution. It is not a legal power, but a pure

fact.48 For Paolo Carrozza, constituent power is exercised in a legal vacuum, whether in the

establishment of the first constitution of a new state or in the repeal of the existing

constitutional order, for instance in circumstances of regime change.49 Likewise, for the

political scientist Carl Friedrich, constituent power is not a de jure power but a de facto

power.50 It is not based on a prior legal norm; hence, it is unlimited, independent, and

unconditional. Hans Kelsen does not even tackle the question of the constituent power, but


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rather claims that the question of the basic norm or obedience to the historically first

constitution is assumed or presupposed as a hypothesis in juristic thinking.51

As Markku Suksi summarizes, the constituent power is “extra-constitutional, pre-

constitutional, latent and inalienable authority of the people to adopt a constitution for

itself in a situation where the people’s power of enacting constitutional provisions or

revising the current constitution completely or drafting a constitution in a constitutional

vacuum is not subjected to any restrictions of a previous or a current constitution.”52 To

conclude this prevailing approach, constituent power is the absolute power to establish a

new legal order (ordre juridique nouveau).53

Some thinkers regard the conception of a formless and limitless power of “the

people” to break any constitutional bounds at any time as a dangerous idea, open to

abuse.54 Hannah Arendt wrote about:

[T]he extraordinary ease with which the national will could be manipulated and imposed upon whenever someone was willing to take the burden or the glory of dictatorship upon himself. Napoleon Bonaparte was only the first in a long series of national statesmen who, to the applause of a whole nation, could declare: “I am the pouvoir constituant”.55

Indeed, history teaches us that dictators seized governmental power, through

revolutionary acts or coups, claiming to be the bearers of the constituent power.56 William

Parlett recently demonstrated how charismatic leaders have relied upon appeals to the

constituent power in order to exploit popular sentiment and to reshape the state’s

institutional framework to constitutional dictatorship.57 Parlett contends that such an

abuse of the constituent power should remind us of the necessary fundamental requirement

for constitution-making: ensuring the deep democratic deliberation and compromise

needed for a successful constitutional order.58

The classical view as expressed thus far, is that constituent power cannot,

conceptually and logically, be constrained by existing rules, institutions and procedures. It

cannot be brought “within the four corners of the constitution.”59 We therefore face with

a dilemma. One the one hand, in a democracy, a new constitution is seen as the product

of the people’s constituent power, a force which has always been closely linked to Locke’s

“right to revolution,”60 and which does not find limits in the existing constitution.61 On

the other hand, not only is constituent power open to abuse but also that it allegedly gives a

carte blanche for the establishment of non-democratic and authoritarian regimes. As

Claude Klein explains, while the transition from fascist regimes to democracy is always

welcome, by accepting said transition we must acknowledge the power of a transition in


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the other direction. The recognition of the ability of constituent power to overthrow regimes

must work in both directions.62 As Ben Nwabueze puts it, “it would be expected that a

democratic constitution would establish a constitutional government, indeed a

constitutional democracy, and ideally, that should be the case, but this cannot be insisted

upon as a condition of a democratic constitution. A people should be at liberty to

choose…any form of government … it considers suitable for itself. … there is no

inherent limitation on their power of choice.”63 So, until recently, constitution-making

moments were considered in constitutional theory as a kind of “wild-west”, in the words

of David Landau, free from any substantive limitations.64 In the next section I argue that

this understanding of constituent power is a misconception of the traditional constitution-

making power as understood even by early writers.

B. REVISITING CONSTITUENT POWER

Constituent power as the power of the people to establish their constitutional order is

considered as some kind of a natural right. As The 1776 American Declaration of

Independence states “Whenever any Form of Government becomes destructive of [its]

ends, it is the right of the People to alter or abolish it, and to institute new

Government.”65 As was elaborated in Marbury v. Madison, the people have an “original

right” to establish their government and fundamental principles according to which they

wish to be governed. It is the people’s “original and supreme will” that organises the

government.66 Nevertheless, isn’t people’s constituent power simply the total of natural

sovereignty inherent in each individual with respect to himself?67 This begs the question

why to prioritize this natural right over other natural rights supposedly belonging to

individuals? In this section, I claim that the traditional conception according to which

constituent power is unlimited is simply a misunderstanding of its nature, and that even the

early revolutionary approach to constituent power regarded it as a limited power.

We return again to Abbe Sieyès, and to his often-cited phrase which is used to

describe the unlimited nature of the constituent power: ‘The nation exists prior to

everything; it is the origin of everything. It’s will is always legal. It is the law itself. 68

However, more important are the final words of this sentence which are often omitted:

“Prior to the nation and above the nation, there is only natural law.”69 This implies that

Sieyès viewed constituent power as limited by certain principles derived from his natural law

conceptions.70 If one takes Sieyès’ understanding of the nation as “the mass of associated


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men…all equal in rights”,71 it may well be that constituent power is bound to respect certain

rights that belong to all peoples. In other words, constituent power was preceded by and

subordinated to natural rights of man – which the political association serves to protect.72

It is not difficult to understand this conception which finds its roots in the

medieval understanding of natural law as a certain “divine will of god” with immutable

characteristics.73 Natural law is based on the premise that there is a perpetual higher law

which is superior even to the sovereign. This is compatible with how early political

writers conceived natural law. Indeed, many great eighteenth and nineteenth century

European thinkers such as Pufendorf, Vattel, Burlamaqui, and Rutherforth believed that

governmental power was limited by natural law.74 Even in Jean Bodin’s theory of

sovereignty, the power of the “sovereign prince” was not unlimited, but was restricted by

natural law: “for if we say that to have absolute power is not to be subject to any law at

all, no prince of this world will be sovereign, since every earthly prince is subject to the

laws of God and of nature and to various human laws that are common to all peoples.”75

If natural law is supreme, then it cannot be violated, not even by the constitution.

Then again, even within modern ideas of natural law, which rests upon the

relationship between law and morals, law is a means to achieve certain absolute moral

values, which can be discovered by reason.76 From natural law derives the theory of

natural rights.77 Invoking “natural law” or “natural rights”, some scholars hold the view

that certain rights have a supra-constitutional status in that they cannot be altered even by

constitutional means, such as constitution-making.78 The constitution must be subject to

the higher standard of natural law.79 As Roscoe Pound explained, “there are rights in

every free government beyond the reach of the state, apparently beyond the reach even

of a constitution.”80 In France, the question of the existence of any supra-constitutional

limits on the constituent power has received rather wide attention.81 Authors such as

Maurice Hauriou and Léon Duguit defend the view that the Declaration of the Rights of

Man and the Citizen of 1789 has a supra-constitutional status, as it simply recognizes and

proclaims pre-existing rights. They argue that the Declaration of Rights imposes limits on

the state that rank higher than constitutional legislation and a fortiori ordinary legislation.82

Drawing on the writings of Hauriou,83 even Schmitt had argued, during the Weimar

period, that certain basic freedoms “have, as an outstanding French theorist of public

law, Maurice Hauriou has explained, a ‘superlegalite constitutionelle’, which is raised not

only above the usual simple laws, but also over the written constitutional laws…”84

Paradoxically, this notion was revived after the Second World War as German


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jurisprudence in the post-Nazi regime era was characterised by the rejection of pure

positivism and the endorsement of natural law ideas and supra-constitutional principles

which are superior to positive law.85 This notion was accepted in German Courts at that

time. In 1950, the Bavarian Constitutional Court famously declared: “There are

fundamental constitutional principles, which are of so elementary a nature and so much

the expression of a law that precedes the constitution, that the maker of the constitution

himself is bound by them. Other constitutional norms … can be void because they

conflict with them.”86 The Federal Constitutional Court later cited and re-affirmed this

paragraph in the 1951 Southwest case.87 In his book Unconstitutional Constitutional Norms?,

published in 1951, Otto Bachof summerized the idea of supra-constitutional limits on the

constituent power.88 According to Bachof, the constitution-maker has leeway to establish an

autonomous system of values but only within the borderline of a higher natural law

which exists “above” positive law. Therefore, a constitution is valid only with regard to

those sections within the positivist legal order that do not exceed the predetermined

borders of higher law.89

Since by definition, natural law is considered as external and superior to all positive

law, a theory that recognizes natural law as a form of a superior higher law must lead to

the conclusion that the constituent power is limited.90 I merely want to claim here that the

reading of the traditional conception of constituent power as extra-legal, does not have to

draw the conclusion that it was conceived as an unlimited power.

Nevertheless, natural law theories seem inappropriate to serve as limitations on

constitution-making powers. Even if one accepts the presupposition that binding,

objective moral principles exist in every society, the yardstick for determining the legal

validity of constitutional norms appears problematic as the definition of “moral” is

extremely vague.91 Subjecting the legal validity of constitutional norms to moral

thresholds would not only undermine certainty in law but would necessitate an a priori

resolution of contentious moral questions.92 Indeed, even in Germany, where the

superiority of “natural law” over constitutional norms was seriously debated in courts, it

was, to use the words of Ivo Duchacek, the “supraconstitutional invocations”93 – i.e. the

constitutional referral to certain “eternal” principles in the Basic Law as basis for

recognizing such higher norms. I have elaborated on the circularity of such arguments

elsewhere.94 Moreover, in later years the Federal Constitutional Court declined to refer to

supra-positive principles, concentrating on the constitution’s eternity clause as stipulated in


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Article 79(3).95 This raises the question of whether constitutional principles such as

eternity clauses pose limitations on constitution-making powers.

C. CONSTITUTIONAL PRINCIPLES AND CONSTITUENT POWER

1. Eternity Clauses

Written against the background of the Weimar Constitution’s experience, Art. 79(3) of

the German Basic Law (1949) prohibits constitutional amendments affecting the division

of the Federation into Länder, human dignity, the constitutional order, or basic

institutional principles describing Germany as a democratic and social federal state.96 This

provision is often described as eternal (ewigkeitsgarantie) meaning that its values should be

perpetual and everlasting. The German Basic Law has also attempted to constitutionalize

the constituent power. The final article of the Basic Law reads: “This Basic Law will lose its

validity on the effective date of a constitution that has been chosen by the German

people in a free decision” (Art.146). This provision not only anticipated the Basic Law’s

own destruction, but also reflects the legal positivization of the constituent power.97

Although it is possible to claim that the lack of stipulation as for the conditions or

procedures for the exercise of constituent power seems as a confirmation of its extra-legal

character.98 Now, is the emergence of a new primary constituent power, as acknowledged by

Art. 146, restricted by the principles enshrined by Art. 79(3)?99

Some authors have opined that the unamendable principles also apply in such

circumstances and thus would guide any future constitution-making.100 Others remark in

contrast that Art. 146 is a legal manner with which to overcome the eternity clause,101

while another group claims that this question ought to be resolved by the Constitutional

Court.102 Indeed, in the Lisbon Case, the Constitutional Court expressly left open the

question of whether the German people’s constituent power might be restricted by the Art.

79(3).103 I agree with Jo Murkens that Art. 79(3) addresses only the amendment power

and dealing with Parliament’s changes to the Basic Law, whereas Art. 146 foresees a new

constitution adopted by the constituent power, which by its nature cannot be bound by the

rules of the prior constitution. The new constitution-drafters may take Art. 79(3) into

account, but that would depend on their own “goodwill”, rather than on the nature of

the eternity clause as a legal obligation.104 ‏Consequently, even though the constituent power

is constitutionalized within the German Basic Law, Art. 79(3) is unable to bind later

generations when exercising their constituent power.105 That is because, as I have argued


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elsewhere, unamendability is not an absolute entrenchment. Unamendability limits the

amendment power, but it cannot block the constituent power from its ability to change even

the basic principles of the constitutional order.106 This approach was advanced, for

instance, by the Brazilian Federal Supreme Court, which held that in order to preserve

the identity and continuity of the constitutional text as a whole, the framers created

“immutable provisions” that impose limits on the derived constituent power, but these

provisions do not subordinate the original constituent power itself.107

Constitutions, as Richard Parker writes, are embedded within the idea of

populism – the liberty of people to shape and reshape their society.108 Constituent power is

not exhausted after the constitution’s establishment and the people always possess the

power to establish and change their constitutional order. As Carl Friedrich notes, “no

matter how elaborate the provisions for an amending power may be, they must never …

be assumed to have superseded the constituent power”.109 Take the extreme example of a

constitution that does not prescribe an amendment process or even explicitly states that

it is completely unamendable. Would that mean that future generations are bound to live

by an unamendable constitution? Surely the people possess the power (a right, as noted

earlier) to constitute a new constitution?110 As James Wilson declares, “as our

constitutions are superior to our legislatures; so the people are superior to our

constitutions. … the people may change the constitutions, whenever, and however they

please. This right, of which no positive institution can ever deprive them…”.111 In other

words, the constitution establishes democracy and not necrocracy.112

To conclude, the constituent power is neither exhausted nor bound by the existing

constitutional limitations – including eternity clauses. Constituent power remains in the

constitutional background and can re-emerge to take its role. It is the “sovereignty at the

back of the Constitution”, which can change even the constitution’s basic structure and

eternity clauses.113 Recall, the U.S. Constitution itself was adopted in violation of the

Articles of the Confederation, which were virtually unamendable since they required

agreement in Congress and confirmation by the legislatures of every state in the Union.114

Thus, the constitution cannot restrict the constituent power, which resides outside of it and

can “exercise its authority de novo”.115


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2. Pre-agreed upon Constitutional Principles

At times, constitution-making process is guided by a pre-determined, pre-agreed upon, or

pre-imposed principles. An example of the latter might be the terse instructions of the

military governors in Germany to the Parlamentarischer Rat in 1948, which provided

parameters that facilitated the prompt creation of a clear Basic Law.116

The use of prescribing binding principles to constitution-makers took place in

the international involvement in Namibia. In 1977, the “Western Contact Group” (U.S.,

Canada, France, UK and Germany) initiated diplomatic effort to solve the problem of

South West Africa. In 1982, in consultation with all interested parties, they have

produced a set of “principles for a constitution for an independent Namibia” to guide

the constitution-making process. The principles included: supremacy of a rigid and

justiciable constitution; separation of powers; regular multi-party democratic elections;

bill of rights; prohibition on retroactive legislation; balanced public and security services,

fair personnel policies and elected councils for regional or local administrations. The

principles obtained international legitimacy through their acceptance by the UN Security

Council. The established constituent assembly abided by these principles in its work.117

The idea of fundamental principles as limiting constitution-making received an

interesting treatment during the establishment of the new post-apartheid South-African

constitution. The interim Constitution of 1994 stipulated that the constitution-making

process would take place within a framework of thirty-four agreed-upon principles.118

These principles ensured that political parties publicly pledge themselves to a definite

vision, clarifying the direction of the constitution-making process.119 The Constitutional

Court of South Africa was empowered to review the compliance of the draft

Constitution with those principles. In its review (the famous Certification case), the Court

declared that the Constitution, although establishing democratic institutions and

protecting human rights, failed to comply with certain agreed-upon principles, and was

therefore unconstitutional.120 Only after a revision the draft Constitution did the

Constitutional Court declare that it complied with the principles.121

Therefore, it appears that there is a possibility of imposing limitations on

constitution-making powers through pre-determined principles. Yet, it is fair to say that

constituent power voluntarily accepted upon itself these limitations rather than being obliged

by them. In the next section, I argue the modern developments in international law,


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modern understanding of constitutionalism and the nature of constituent power itself,

impose limitations on the scope of exercise of constitution-making powers.

D. THE LIMITED SCOPE OF CONSTITUENT POWER

In this section I would like to argue that constituent power must be regarded as limited

by evolving norms of international law, constitutionalism, and the nature of constituent

power itself.

1. International and other Supra-national Law

Serge Arne defines supra-constitutionality as the superiority of certain rules or principles to

the content of the constitution.122 In this sub-section, I argue that contemporary

international and supra-national norms, what Louis Favoreu terms “external supra-

constitutionality” 123 influence our understanding of constituent power as a limited power.124

It has been argued of late that constitutional powers are substantially limited by

international law. Scholars as Jorge Tapia Valdés, Vincent Samar and Matthias Herdegen,

suggest that international human rights law and jus cogens norms may set new limits to

constitutional powers.125 Stephen J. Schnably points out that certain emerging

international and supranational legal rules address matters such as constitutional

transformations.126 And Didier Maus mentioned the international development of

principles of “good constitutional governance.”127 Larry Backer summarizes this idea:

“Supra-national constitutionalism posited limits on national constitution making

grounded in an evolving set of foundational universal norms derived from the

understandings of basic right and wrong developed by consensus among the community

of nations … it was clear that no state could unilaterally opt out of the system, whatever

its own views of the relationship between its internal constitutional system and that of

the global legal order.”128

In an earlier work, I have examined possible supra-constitutional limitations on the

constitutional amendment power.129 I have argued that from the perspective of

international law, it is clear that a state has to comply with its international obligations

regardless of any conflicting domestic laws - be it ordinary legislation or a constitutional

norm. Take, for example, international treaty law. At the heart of international law lies

the Vienna Convention on the Law of Treaties 1969, which regulates inter-states treaties.


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According to Article 27 of the VCLT: “a party may not invoke the provisions of its

internal law as justification for its failure to perform a treaty.” Taking into account the

principle of pacta sunt servanda, the reference to “internal law” must include the

constitution. This interpretation is supported by the VCLT’s travaux préparatoires.

Moreover, international judicial practice may support this claim. In 1875, in the case of

the Montijo, an international arbitrator stated that “a treaty is superior to the Constitution,

which latter must give way.”130 In its 1932 Advisory Opinion regarding Treatment of Polish

Nationals in the Danzig Territory, the Permanent Court of International Justice stated that

according to generally accepted principles: “… a State cannot adduce as against another

State its own Constitution with a view to evading obligations incumbent upon it under

international law or treaties in force.” 131

Similarly, in the supranational level, the European Court of Human Rights (ECtHR)

established in several cases its authority to review even constitutional provisions – not

merely ordinary legislation – and to assess their compatibility with the European

Convention on Human Rights (ECHR).132 In a recent case, the ECtHR criticized Article

70(5) of the Hungarian Constitution for indiscriminately depriving the right to vote from

persons placed under total or partial guardianship.133 In Sejdie and Finci v. Bosnia and

Herzegovina, the ECtHR held that a constitutional provision limiting the right to be

elected in parliamentary and presidential elections to people belonging to Bosniaks,

Croats, and Serbs (the “constituent peoples” of Bosnia and Herzegovina) is

discriminatory, and the disqualification of Jewish and Roma origin candidates constitutes

a breach of the ECHR.134 Therefore, as Dieter Grimm notes, the EU law may even

“include an obligation to change the national constitution of member states.”135

Another example is Security Council (SC) Resolution 554 of 1984, regarding the

Constitution of South Africa of 1983 that entrenched apartheid.136 In that resolution, the

SC declared that it “strongly rejects and declares as null and void the so-called ‘new

constitution,’” due to its contradiction of the principles of the UN Charter, mainly racial

equality.137 Ulrich Preuss considers this resolution an example of the changing roles of

national constitutions: “No longer can we regard them as purely domestic instruments of

government of a nation-bound population which exercises its right to national self-

determination without concern of its regional or global surroundings.”138 Therefore, it is

plausible to derive certain limitations on constituent power from international and supra-

national norms. And these limitations might increase the more constitution-making

processes become an international process involving international and supranational


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actors. Indeed, today, supranational law seems to serve as an autonomous limitation to

constitutional powers. Nevertheless, as I remarked elsewhere, the main problem with

such limitations is their enforceability. Recall, although the South African Constitution of

1983 was declared “null and void,” it remained in force for ten years, until it was replaced

by the Interim Constitution in 1994.139

2. Basic principles of constitutionalism

In the Eighteenth century, a significant political objective behind constitution-making

was freedom. Constitutionalism as a movement was directed against monarchical

absolutism, and its consequent oppressive restrictions upon individual freedoms.140

Likewise, as lessons of totalitarian dictatorships, post-WWII constitution-making put,

once again freedom as its prime objective.141 Clearly, nowadays it is a common

understanding that “principles of freedom should guide the liberated nations and

republics in framing their constitutions”.142

In the past, the idea of constitutionalism seemed to introduce a supra positivist element

of evaluation to constitutional theory by insisting that a law must not conflicts with

historically received, imperative constitutional norms – a “spirit of the laws” to use

Montesquieu, or Volksgeist, as juridically formulated by von Savigny as the accumulated

weight of the national legal tradition.143 Nowadays, constitutionalism is anchored on

certain principles such as the recognition of the people as the source of all governmental

authority; the supremacy of the constitution; the constitution regulates and limits the

power of government; adherence for the rule of law and respect for fundamental

rights.144 And it appears, as François Venter claimed, that the growing universality of

standards of constitutionalism represents a significant form of integration whereby a

common language of constitutionalism is being developed. These principles of the

modern constitutional states which are becoming globally standardized may have a

powerful influence on the legitimacy of the constitution.145

Vicki C. Jackson asserts that the goal of constitution-making is not to produce a

written constitution, but to promote constitutionalism.146 Constitutions are a means, not

goals themselves. Therefore, an emerging approach may well be that constitutionalism

and constitutions are inseparably linked so that an exercise of constituent power which

would undermine principles of constitutionalism would not automatically bind society.147

Remember Article 16 of the French Declaration of the Rights of Man of 1789 which


15

puts it bluntly: “A society in which the guarantee of rights is not assured nor the

separation of powers provided for, has no constitution.” In other words, in order to be

legitimately exercised, constituent power must ensure certain basic principles.148 This might

seems as a limitation which is imposed upon constituent power from its very purpose.

Nevertheless, since under the banner of constitutionalism there are innumerable

nuances of ideas – and each carries a myriad of different formal and substantive aspects

and varied meaning, it is very difficult to develop a comprehensive treatise on precise

meaning of constitutionalism: “the greatest crisis of constitutionalism is the absence of

universal consensus on its nature and purpose.”149 This is a great challenge for any theory

of limitations upon constitution-making powers.

3. Limitations inherent to the concept of Constituent Power

Finally, I argue that the very concept of constituent power may carry certain inherent

limitations, by the fact that at the basis of the theory of constituent power is the collective

voice of the people. Constituent power is the power of the people to create and recreate

their constitutional world. The conception of a democratic constituent power means that it

must be committed to popular sovereignty. It may exercise itself in forms such as special

constitutional assemblies and constitutional referenda.150 In order for the constituent power

to be direct, these forms must have a special character, i.e. separate from other public

functions, thereby replacing revolution with peaceful means incorporating actual,

deliberate, free choice by society’s members.151 Constituent power should be grasped as a

means for realising a well-deliberated and thoughtful change.152 While it is true that “in

the end, there can be no precise algorithm specifying the conditions for defining a people

capable of exercising constituent authority”,153 an exercise of constituent power should be

inclusive, participatory, and deliberative. After all, the word constituere, Andreas Kalyvas

reminds us, marks the act of founding together, jointly.154

An important aspect is the maintenance of freedoms such as freedom of speech,

free and fair election, freedom from arbitrary arrest, and freedom of assembly and

association, the absence of which “spell[s] the death for the legal concept that is

constituent power”.155 As Kostas Chryssogonos explains:

A Constitution may be characterized as democratic, from the point of view of the holder of constituent power, when it has been elaborated and voted by a collective representative body (constituent assembly, national assembly, etc.), elected through universal, equal and secret suffrage by the people, occasionally with some form of direct participation of the latter…It should be emphasized


16

that a Constitution, which has been elaborated by the organs of an authoritarian regime and submitted directly to a referendum, is not a “democratic” one, in that sense, since in this way the people are deprived of the possibility to have an influential impact on its content.156

This understanding refuses to reduce constituent power to a mere acclamation – a

“soccer-stadium democracy”, in the words of Holmes.157 It is “We the People”, not

merely “Oui, the People”! Process matters. But what if through a deliberative, inclusive

and direct exercise of constituent power the people want to destroy the democratic order or

its basic principles? Aren’t they free to do so?

Walter Murphy contends that there are certain limitations even “on the

constitutive power of the people as whole”.158 Basing his argument on John Stuart Mill’s

rejection of a person’s right to sell him to slavery, Murphy claims that even if the whole

population agreed to destroy the democratic order and replace it with a new order that

would deny them democracy’s basic values, this might be prohibited in order to protect

themselves and future generations.159 Likewise, Sharon Weintal claims that democracy

reflects a universal “definite virtue”, which deserves to be a truly eternal principle.160

I argue that in order to be legitimately exercised, those rights which form the basis of

constituent power must be protected.161 The exercise of constituent power cannot result in the

abolition of rights such as freedom of expression and assembly, and political rights,

which are necessary in order for constituent power to reappear in the future.162 The exercise

of constituent power must maintain its “capacity to rethink and constitutional order as a

whole”.163 A constitution-making process which results with the alienation of certain

sections of the population cannot be a legitimate exercise of constituent power since it

undermines the entire raison d'être. The exercise of constituent power must be consistent with

the idea of “the people giving itself a constitution”.164

E. CONCLUSION

The conception underlying sovereign power is that it is unlimited and subject to no

law.165 As Mcllwain writes, “speaking generally, the power of the people can have no

limits. It is idle to speak of it as either de facto or de jure if this implies a difference.”166

Indeed, according to the traditional conception of constituent power, it is “original, inherent

and unlimited” power.167

Long ago Benjamin Constant, who feared the danger posed to liberty by

revolutionaries like Robespierre and his fellow Jacobins, cautioned us against the danger


17

of unlimited popular sovereignty. While embracing the principle of popular sovereignty,

Constant claimed that neither the people as a whole nor their representatives possess

total authority over the lives of individuals: “sovereignty of the people is not

unlimited.”168

Recently, David Dyzenhaus has argued that the question of constituent power exists

outside of normative constitutional theory.169 He urges constitutional theorists to avoid

the idea of constituent power, which has its basis outside of the legal order, and instead to

focus on the question of the constitution’s authority as completely internal to the legal

order, as founded on the intrinsic morality of law.170 However, as Martin Loughlin

argues, “constitutional legality is not self-generating: the practice of legality rests on

political conditions it cannot itself guarantee. … Consideration of the origins of

constitutional ordering invariably brings the concept of constituent power into play”.171

Therefore, constituent power remains a central theme in constitutional theory.172 János Kis’s

approach to this matter seems lucid. On the one hand, Kis acknowledges the risks

carried with the concept of constituent power.173 However, at the same time, Kis rejects calls

to abandon the doctrine of constituent power as based on “the people”, since there is no

other satisfactory answer but “the power of the people” as the ultimate source of state

power. Instead of being abandoned, constituent power should be reconceived: “it should be

given an interpretation that, on the one hand, arrests the regress, and on the other, may

not be mobilizes for the purpose of totalitarian politics.”174

It is my aim in this research to maintain within the theoretical framework of constituent

power but to re-work its nature and scope. I’ve made three main claims: first, traditionally,

constituent power was conceived as unlimited; second, this conception is erroneous and

although constituent power is above the constitution it was never considered absolute; third,

nowadays, constituent power is inherently and substantively limited by norms of

international law, principles of constitutionalism, and our understanding of the very

nature of constituent power. Of course a related but different question to any internal or

external constrains on constitution-making power is their enforcement. Even if such

limitations exist, it is questionable how likely they are to work in practice.175

End of Body of the Text


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‏1 Claude Klein, A propos Constituent Power: Some General Views in a Modern Context, NATIONAL

CONSTITUTIONS IN THE ERA OF INTEGRATION 31 (A Jyränki ed., Kluwer Law International, 1999). 2 Stephen M. Griffin, Constituent Power and Constitutional Change in American Constitutionalism, in THE

PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 49, 50, 66 (Martin Loughlin and Neil Walker eds., Oxford University Press, 2007). See also Edward Samuel Corwin and M.L. Ramsey, The Constitutional Law of Constitutional Amendment, 26 NOTRE DAME LAW 185, 188 (1951). ‏3 See Marco Goldoni and Christopher McCorkindale, Why we (still) need a revolution, 14 GERMAN L. J. (November, 2013). See also: JOEL COLÓN-RIOS, WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY

AND THE QUESTION OF CONSTITUENT POWER 111, 188 (2012) (“constituent power has been ignored by constitutional theory for too long and at a very high price”). .Tom Ginsburg, Zachary Elkins and Justin Blount, Does the Process of Constitution-Making Matter?, 5 ANNU‏4REV. LAW SOC. SCI. 5.1–5.23 (2009). See e.g. David Landau, The Importance of Constitution-Making, 89 DENV. U. L. REV. 611 (2011-2012); David‏5Landau, Constitution-Making Gone Wrong, 64(5) Alabama L. Rev. (2013), 923; Parlett, William, ‘The Dangers of Popular Constitution-Making’, 38 Brook. J. Int’l L. (2012), 1; Tribe, Laurence H., and Landry, Thomas K.,’ Reflection on Constitution-Making’, 8 Am. U.J. Int’L L. & Pol’y (1993), 627; Mark Tushnet, ‘Constitution-Making: An Introduction’, 91 Tex. L. Rev. (2012-2013), 1983; Cheryl Saunders, Constitution-making in the 21st century, 4 INT’L REV. L (2012); Widner, Jennifer and Contiades, Xenophon, ‘Constitution-writing Process’, Routledge Handbook of Constitutional Law (Mark Tushnet, Thomas Fleiner and Cheryl Saunders eds., Routledge, 2013), 57; Klein, Claude and Sajó, András, ‘Constitution-Making: Process and Substance’, The Oxford Handbook of Comparative Constitutional Law (Michel Rosenfeld and András Sajó eds., Oxford University Press, 2012), 419. ;See e.g. Joel I. Colón-Ríos, “Five Conceptions of Constituent Power”, 130 Law Quarterly Review 306-336 (2014)‏6Martin Loughlin, ‘The Concept of Constituent Power’, Eur. J. Pol. Theory (2013), 1; Alexander Somek, ‘Constituent Power in National and Transnational Contexts’, 3(1) Transnational Legal Theory (2012), 31; Thornhill, Chris, ‘Contemporary Constitutionalism and the Dialectic of Constituent Power’, 1 Global Constitutionalism (2012), 369; Wall, Illan rua, Human Rights and Constituent Power – Without Model or Warranty (Routledge, 2012); Richard S. Key, ‘Constituent Authority’, 59 Am. J. Comp. L. (2011), 715; Partlett, William, The American Tradition of Constituent Power (December 16, 2014). Available at SSRN: http://ssrn.com/abstract=2538970; Mikael Spang, Constituent Power and Constitutional Order – Above, Within and Beside the Constitution (Palgrave Macmillan, 2014). 7 MARTIN LOUGHLIN, THE IDEA OF PUBLIC LAW 100 (2004). 8 On ‘the people’ as the subject of constituent power see Ulrich K.Preuss, The Exercise of Constituent Power in Central and Eastern Europe, in THE PARADOX OF CONSTITUTIONALISM, , at 211, 211-22; Damian Chalmers, Constituent Power and the Pluralist Ethic, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT

POWER AND CONSTITUTIONAL FORM 291, 293 (Martin Loughlin, Neil Walker, eds., Oxford University Press, 2007). .Luc J. Wintgens, Sovereingty and Representation 14(3) RATIO JURIS 272, 274 (2001)‏9‏10 See Tushnet, … at 1988-1989.See, for example, Hans Agné, Democratic Founding: We the People and the Others, 10(3) INT’L J. CONST. L. 836 (2012). See e.g. Edward McWhinney, Contitution-making: Principles, Process, Practice (University of Toronto ‏11Press, 1981), 27-38; Andrew Arato, ‘Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-Making’, 1(1) Global Constitutionalism (2012), 173; Jon Elster, 7 Ways of Constitution-Making, in Democracy’s Victory and Crisis (Axel Hadenius ed., Cambridge University Press, 1997), 123; Fernando Mendez and Jonathan Wheatley, Patterns of Constitution-Making Over Time and Space, in Jonathan Wheatley and Fernando Mendez (eds.), Patterns of Constitutional Design – The Role of Citizens and Elites in Constitution-Making 21 (Ashgate, 2013). ‏12 Blount, Justin, ‘Participation in Constitutional Design,’ Comparative Constitutional Law (Tom Ginsburg and Rosalind Dixon eds., Edward Elgar, 2011), 49; Blount, Justin, Elkins, Zachary and Ginsburg, Tom, ‘Does the Process of Constitution-Making Matter?’, Comparative Constitutional Design (Tom Ginsburg ed., Cambridge University Press, 2012), 31; Chryssogonos, Kostas, ‘Popular Involvement in Constitution-Making’, 20(4) Revue Européenne de Droit Public (2008), 1299; Lenowitz, Jeffrey A., ‘Why Ratification? Constituent Power & the Unexamined Procedure’, Le Pouvoir Constitutant de L’Europe (Olivier Cayla and Pasquale Pasquino eds., Dalloz Press, 2011), 9; Miller, Laurel E., ‘Designing Constitution-Making Processes: Lessons from the Past, Questions for the Future’, Framing The State in Times of Transition: Case Studies in Constitution Making (Laurel E. Miller ed., US Institute of Peace Press, 2010), 601; Jonathan Wheatley and Fernando Mendez (eds.), Patterns of Constitutional Design – The Role of Citizens and Elites in Constitution-Making (Ashgate, 2013). .See e.g. CARL A. PALEVEDA, IS THE U.S. CONSTITUTION UNCONSTITUTIONAL? (1990)‏13

http://ssrn.com/abstract=2538970


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Hans Kelsen, On The Borders Between Legal and Sociological Method, in WEIMAR – A JURISPRUDENCE OF‏14

CRISIS 57, 58 (Arthur J. Jacobson , Bernhard Schlink eds., 2002). .Cf., Martin Loughlin, Theory and Values in Public Law: An Interpretation, PL 46, 62-64 (2005)‏15 :Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in CONSTITUTIONALISM‏16PHILOSOPHICAL FOUNDATIONS (L. Alexander ed., 1998), 152. See also Thomas Poole, The Return of Grand Theory in the Juridical Sciences?, 70 MOD. L. REV. 484, 504 (2007). Horst Dippel, The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking Away from‏17European Patterns’ 16(1) JOURNAL OF THE EARLY REPUBLIC 21, 26 (1996); CLAUDE KLEIN, THÉORIE ET

PRATIQUE DU POUVOIR CONSTITUENT 31 (1996). 18 Emmanuel Joseph Sieyes, What is the Third Estate? [1789], POLITICAL WRITINGS (Hackett Publishing Company, Inc, 2003), 136. 19 Id., at 134-37. 20 See Georges Burdeau, Traite de science politique (3rd éd., Paris, LGDJ, 1983), 173, cited in Giorgio Agamben, Homo Sacer – Sovereign Power and Bare Life (Stanford University Press, 1998), 39. See also Luigi Corrias, The Legal Theory of the Juridical Coup: Constituent Power Now, 12(8) GERMAN L. J. 1558, 1559 (2011); Luigi Corrias, THE PASSIVITY OF LAW: COMPETENCE AND CONSTITUTION IN THE EUROPEAN COURT OF

JUSTICE 35 (2011). 21 Emmanuel Joseph Sieyes, ‘What is the Third Estate?’ [1789], Political Writings 136-137 (Hackett Publishing Company, Inc, 2003), 22 Emmanuel Joseph Sieyes, ‘What is the Third Estate?’ [1789] Political Writings (Hackett Publishing Company, Inc, 2003), 136. 23 Emmanuel Joseph Sieyes, ‘What is the Third Estate?’ [1789], Political Writings (Hackett Publishing Company, Inc, 2003), 136. 24 Emmanuel Joseph Sieyes, ‘What is the Third Estate?’ [1789], Political Writings (Hackett Publishing Company, Inc, 2003), 137. 25 Lucien Jaume, ‘Constituent Power in France: The Revolution and its Consequences’, in The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Martin Loughlin, Neil Walker, eds., Oxford University Press, 2007), 67-8. See also: Matt Whitt, The Paradox of Sovereignty: Authority, Constitutoin, and Political Boundaries (Dissertation submitted to the faculty of the graduate school of Vanderbilt University in partial fulfilment of the requirements for the degree of Doctor of Philosophy, 2010), 159-160 ,Olivier Jouanjan, What is a Constitution? What is Constitutional History? Constitutionalism, Legitimacy‏26and Power: Nineteenth-Century Experiences 323, 330 (Kelly L. Grotke and Markus J. Prutsch eds., Oxford University Press, 2014). 27 Emmanuel Joseph Sieyes, ‘What is the Third Estate?’ [1789], Political Writings (Hackett Publishing Company, Inc, 2003), 97. 28 Andre Van De Putte, ‘The Nation-State and Multicultural Society’, in Whither Multiculturalism?: A Politics of Dissensus (Barbara Saunders, David Haljan, eds., Leuven University Press, 2003), 61; Rogers Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press, 1992), 7. 29 Luigi Corrias, The Passivity of Law: Competence and Constitution in the European Court of Justice (Springer, 2011), 31. 30 Joseph de Maistre, ‘Study on Sovereignty’, in The Generative Principle of Political Constitutions: Studies on Sovereignty, Religion, and Enlightenment (Macmillan Company, 1965), 93 31 Emmanuel Joseph Sieyes, ‘What is the Third Estate?’ [1789], Political Writings (Hackett Publishing Company, Inc, 2003), 134. 32 See Martin Loughlin, ‘Representation and Constitutional Theory’, in Law and administration in Europe: Essays in Honour of Carol Harlow (Carol Harlow, Paul P. Craig, Richard Rawlings eds., Oxford University Press, 2003), 47, 58; Raymond Kubber, L’Abbe de Sieyes – Champion of National Representation, Father of Constitutions, 290, 300-301 Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham (Denis Galligan eds., Oxford University Press, 2015). 33 Emmanuel Joseph Sieyès, ‘What is the Third Estate?’ [1789], Political Writings (Hackett Publishing Company, Inc, 2003), 139. ‏34 EGON ZWEIG, DIE LEHRE VOM POUVOIR CONSTITUANT 116-117, 135-137 (1909), cited in Mark Vishniak, Justification of Power in Democracy, 60(3) POL. SCI. Q. 351, 361 (1945). On the relation between Sieyes’ constituent power and Rousseau’s social contract see Bronislaw Baczko, The Social Contract of the French: Sieyes and Rousseau, 60 THE JOURNAL OF MODERN HISTORY S98-S125 (1988). On Zweig’s contribution to the literature see Duncan Kelly, Egon Zweig and the Intellectual History of Constituent Power, Constitutionalism, Legitimacy, and Power: Nineteenth-Century Experiences 332 (Kelly L. Grotke and Markus J. Prutsch eds., Oxford University Press, 2014). 35 Carl Schmitt, Constitutional Theory (Duke University, 2008), 76. 36 Carl Schmitt, Constitutional Theory (Duke University Press, 2008), 64.


20

37 Carl Schmitt, Constitutional Theory (Duke University Press, 2008), 125. ,See Carl Schmitt, Constitutional Theory (Duke University Press, 2008), 76-77. See also Andreas Kalyvas‏38Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt and Hannah Arendt (Cambridge University Press, 2008), 139. 39 Carl Schmitt, Constitutional Theory (Duke University Press, 2008), 126-27. 40 Carl Schmitt, Constitutional Theory (Duke University Press, 2008), 125. 41 Renato Cristi, ‘Carl Schmitt on Sovereignty and Constituent Power’, 10 Can. J. L. & Jurisprudence (1997), 189, 198. 42 Carl Schmitt, Constitutional Theory (Duke University Press and London, 2008), 132. 43 William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield, 1999), 71. .Id., at 14, 16‏4445Id., at 333. On Negri’s thinking of the constituent power see Miguel Vatter, Legality and Resistance: Arendt and Negri on Constituent Power, in THE PHILOSOPHY OF ANTONIO NEGRI – REVOLUTION IN THEORY 52 (Vol.2, Thimothy S. Murphy and Abdul-Karim Mustapha eds., 2007). .Richard S. Kay, The Illegality of the Constitution, 4 CONST. COMMENT. 57, 58 (1987)‏4647 Olivier Beaud, La puissance de l'état (PUF, 1994), 315-9, 336-7, 439. On Beaud’s theory see Kemal Gözler, ‘La théorie d’Olivier Beaud’, 46(1-4) Ankara Üniversitesi Hukuk Fakültesi Dergisi (1997), 129. 48 See Raymond Carré de Malberg, Contribution à la théodrie générale de l'Etat (2 tomes, 1922, réimpression par CNRS, 1962), 489-500; Georges Burdeau, Essai d'une théorie de la révision des lois constitutionnelles en droit français (Thèse, Faculté de droit de Paris, 1930), 78-83; Roger Bonnard, ‘Les actes constitutionnels de 1940’, Revue du Droit Public (1942), 46, 48-59; Guy Héraud, L'ordre Juridique et Le Povoir Originaire (Recueil Sirey, 1946), 2-4; Georges Vedel, Droit Constitutionnel (Sirey, 1949) (réimpression, 1989), 115-116. See Kemal Gözler, Le pouvoir de Révision Constitutionnelle (Villeneuve d'Ascq, Presses universitaires du Septentrion, 1997); Kemal Gözler, Pouvoir constituant (Ekin Press Bursa, 1999). 49 Paolo Carrozza, ‘Constitutionalism’s Post-Modern Opening’, in The Paradox of Constitutionalism (Martin Loughlin, Neil Walker, eds., Oxford University Press, 2007), 168, 174. 50 Carl J. Friedrich, Constitutional Government and Democracy (4th ed., Blaisdell Pub. Co., 1968). 51 Hans Kelsen, What is Justice (University of California Press, 1957), 261-63; Hans Kelsen, Pure Theory of Law (Trns. by Max Knight, University of California Press, 1967; Lawbook Exchange edition, 2009), 201-203; Hans Kelsen, ‘The Function of a Constitution’, in Essays on Kelsen (Richard Tur and William L. Twining eds., Clarendon Press, 1986), 110. See also Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’, in Normativity and Norms: Critical Perspectives on Kelsenian Themes (Stanley L. Paulson and Bonnie Litschewski Paulson eds., Oxford University Press, 1998), 47. 52 Markku Suksi, Bringing in the People: a Comparison of Constitutional Forms and Practices of the Referendum (Martinus Nijhoff Publishers, 1993), 25-26 (noting that constituent power “might be subject to natural law and human rights limitations”). 53 Claude Klein, ‘After the Mizrahi Bank Case – The Constituent Power as Seen by the Supreme Court’, 28 Mishpatim (1997), 341, 356 (Hebrew). See also Upendra Baxi, ‘Some Reflections on the Nature of Constituent Power’, Indian Constitution – Trends and Issues (Rajeev Dhavan, Alice Jacov eds., N.M. Tripathi Private Ltd., 1978), 122, 136. 54 See William Parlett, ‘The Dangers of Popular Constitution-Making’, 38 Brook. J. Int’l L. (2012), 1, 42; David Landau, ‘Constitution-Making Gone Wrong’, 64(5) Alabama L. Rev. (2013), 923. 55 Hannah Arendt, On revolution (Penguin, 1965), 163. See also William E. Scheuerman, ‘Constitutionalism in An Age of Speed’, 19 Constitutional Commentary (2002), 353, 383; William E. Scheuerman, ‘Revolutions and Constitutions: Hannah Arendt’s Challenge to Carl Schmitt’, 10 Can. J. L. & Jurisprudence (1997), 141, 151. 56 Renato Cristi, The Metaphysics of Constituent Power: Schmitt and the Genesis of Chile’s 1980 Constitution, 21 ‏CARDOZO L. REV. 1749, 1763-1775 (1999-2000). .William Parlett, The Dangers of Popular Constitution-Making, 38 BROOK. J. INT’L L. 1, 42 (2012)‏57 .Id., at 45-46. See also David Landau, Abusive Constitutionalism, UC DAVIS LAW REVIEW 49-56 (2013)‏58‏59 CARL JOACHIM FRIEDRICH, CONSTITUTIONAL GOVERNMENT AND POLITICS – NATURE AND

DEVELOPMENT 113-131 (1937). ‏60 Joel Colon-Rios & Andrew Hutchinson, Democracy and Revolution: An Enduring Relationship, 89 DENV. U. L. REV. 593, 599 (2012); Andreas Kalyvas, DEMOCRACY AND THE POLITICS OF THE EXTRAORDINARY: MAX WEBER, CARL SCHMITT, AND HANNA ARENDT (2009). Gabriel Negretto, Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin‏61America, 46 LAW & SOC’Y REV. 749, 751 (2012) 62 Klein, Claude, ‘A propos Constituent Power: Some General Views in a Modern Context’, in National Constitutions in the Era of Integration (Antero Jyränki, ed., Kluwer Law International, 1999), 31, 33. Ben O. Nwabueze, Ideas and Facts in Constitution Making 10 (Spectrum Books Limited., 1993)‏63 .David Landau, The Importance of Constitution-Making, 89 DENV. U. L. REV. 611, 616 (2011-2012)‏64


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‏65 The Declaration of Independence para. 2 (U.S. 1776). See also Akhil Amar, The Consent of the

Governed: Constitutional Amendment Outside of Article V, 94 COLUM. L. REV.457 (1994). 66 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Cv., Walter Berns, Do we have a Living Constitution? National Forum: Toward the Bicentennial of the‏67 Constitution, a publication of the Honor Society of Phi Kappa Phi, Fall 1984, p. 29 ,EJ Sieyes, ‘What is the Third Estate?’ [1789] in EJ Sieyes, Political Writings (Hackett Publishing Company‏68Inc. 2003) 136. .Ibid‏6970 William E. Scheuerman, ‘Revolutions and Constitutions: Hannah Arendt’s Challenge to Carl Schmitt’, 10 Can. J. L. & Jurisprudence (1997), 141, 149. 71 Emmanuel Joseph Sieyès, ‘A Preliminary to the Constitution’ [1789], in An Account of the Life of Sieyes (Konrad Engelbert Oelsner ed., J. Johnson, 1795), 77, 95. ,Raymond Kubber, L’Abbe de Sieyes – Champion of National Representation, Father of Constitutions‏72Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham 290, 299 (Denis Galligan eds., Oxford University Press, 2015). Saint T Aquinas, Treatise on Law (Hackett 2000) 63-64; See also Melilsa Schwartzberg, Democracy and Legal‏73Change (CUP 2009) 16-9. 74 JJ Burlamaqui, The Principles of Natural and Politic Law (2nd edn, J. Nourse 1763) 157; T Rutherforth, Institutes of Natural Law (2nd ed., W. & J. Neal 1832) 373; E de Vattel, The Law of Nations (7th edn, T. & J. W.

Johnson 1849) 20; S Pufendorf, On the Law of Nature and Nations (Clarendon Press 1934) 1133. ‏75 J Bodin and JH Franklin (ed), Bodin: On Sovereignty (CUP 2004) 10: [Six Livres de law Republique (1576), Book I, Ch. 8]. See S Beaulac, ‘The Social Power of Bodin’s ‘Sovereignty’ and International Law’ (2003) 4 Melbourne J Int’l L 1, 13-5. AP d’Entreves, Natural Law – An Introduction to Legal Philosophy (5th printing, Transaction Publishers 2004)‏7679. See d’Entreves (n 76) 51-64; J Finnis, Natural Law & Natural Rights (2nd edn, OUP 2011) 198-226; F‏77Oakley, Natural Law, Laws of Nature, Natural Rights (Continuum International Publishing Group 2005) 87-109. For historical accounts see R Tuck, Natural Rights Theories: Their Origin and Development (CUP 1981); B Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Wm. B. Eerdmans Publishing 1997). ,A Stone Sweet, ‘The Politics of Constitutional Review in France and Europe’ (2007) 5 Int’l J Const L 69‏7884, at n 40. See e.g. EV Abbot, ‘Inalienable Rights and the Eighteenth Amendment’ (1920) 20 Colum L Rev 183; J Rosen, ‘Was the Flag Burning Amendment Unconstitutional?’ (1990-1991) 100 Yale L J 1073. .CE Rice, Fifty Questions on the Natural Law: What it is and Why We Need It (Ignatius Press 1999) 115‏79 R Pound, Jurisprudence (6th printing, The Lawbook Exchange, Ltd 2008) 498-99, n 92‏80 ,See, for example, G Vedel, ‘Souveraineté et supra-constitutionnalité’ (1993) 67 Pouvoirs 76; K Gözler‏81Le pouvoir de révision constitutionnelle (Thèse pour le doctorat en droit, Université Montesquieu - Bordeaux IV, Faculté de droit, des sciences sociales et politiques 1995) 287-350; Favoreu (n123); Arné (n 122). ,.M Hauriou, Précis de Droit Constitutionnel (Sirey 1923) 245 ; L Duguit, Traité de droit constitutionnel (3e ed‏82Ancienne librairie fontemoing 1930) 603-7. Both cited in A Laquièze, ‘Etat de Droit and National Sovereignty in France’ in P Costa and D Zolo (eds), The Rule of Law History, Theory and Criticism (Springer 2007) 267. See also S Rials, ‘Supraconstitutionnalite et Sustematicite du Droit’ (1986) Archives de Philosophie de Droit 57, 64. 83 G Balakrishnan, The enemy: an Intellectual Portrait of Carl Schmitt (Verso 2000) 162. .C Schmitt, Legality and Legitimacy (Duke University Press 2004) 58-60 ‏84‏85 See generally E Bodenheimer, ‘Significant Developments in German Legal Philosophy since 1945’ (1954) 3 Am J Comp L 379; T Cole, ‘The West German Federal Constitutional Court: An Evaluation After Six Years’ (1958) 20(2) The J of Politics 278, 302-4; H Rommen, ‘Natural Law in Decisions of the Federal Supreme Court and of The Constitutional Courts in Germany’ (1959) 4 Nat L F 1; Rommen …; G Dietze, ‘Unconstitutional Constitutional Norms? Constitutional Development in Postwar Germany’ (1956) 42 Virginia L Rev 1; MJ Herdegen, ‘Unjust Laws, Human Rights, and the German Constitution: Germany’s Recent Confrontation with the Past’ (1994-1995) 32 Colum J Transnat’l L 591; Rommen ‘Natural Law’ ibid 17-19; G Radbruch, ‘Five Minutes of Legal Philosophy (1945)’ (2006) 26(1) OJLS 13, 14; G Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (2006) 26(1) OJLS 1, 7. 86 Decision from April 4, 1950, 2 Verwaltungs-Rechtsrechung No. 65, quoted in Dietze …15-16 and in O Bachof, Verfassungswidrige Verfassungsnormen? (J.C.B. Mohr 1951) 15. BverfGE 14, 32 (1951); see K Gözler, Judicial Review of Constitutional Amendments – A Comparative Study 1‏87(Ekin Press 2008) 84-6. 88 Bachof (n 86). I thank Marjorie Kaufman for translating Bachof’s book from German to Hebrew. .ibid 29-32‏89


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Cf., L Garlicki and ZA Garlicka, ‘External Review of Constitutional Amendments? International Law As‏90a Norm of Reference’ (2011) 44 Isr L Rev 343, 355. .E Van den Haag, ‘Not Above the Law’ (1991) 43(18) National Review 25, 27‏91 See A Parush, ‘Judicial Activism, Natural Law and Legal Positivism - Judge Barak and ‘The Omnipotent‏92Knesset” Doctrine’ (1992) 17 Iyuney Mishpat (Tel-Aviv Univ. L. Rev.) 717, 729-30 (Hebrew). .ID Duchacek, Power Maps: Comparative Politics of Constitutions (Clio Press 1973) 18‏93 Roznai, Yaniv, The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments‏94(July 10, 2013). International and Comparative Law Quarterly, Volume 62, Issue 03, July 2013, pp 557-597. .See M Troper, ‘The Logic of Justification of Judicial Review’, 1(1) Int’l J Const L (2003), 99, 102‏9596 On the German unamendable clause, see HELMUT GOERLICH, Concept of Special Protection For Certain Elements and Principles of the Constitution Against Amendments and Article 79(3), Basic Law of Germany, 1 NUJS L. Rev. 397 (2008). 97 Christoph Möllers, ‘”We are (afraid of) the people”: Constituent Power in German Constitutionalism’, in The Paradox of Constitutionalism - Constituent Power and Constitutional Form (Martin Loughlin and Neil Walker eds., Oxford University Press, 2007), 87, 97-98. 98 Ali Riza Coban, ‘The Continuity Problem of the Constituent Power’, in Verfassungstheorie und Verfassungsgebung: Überlegungen anlässlich der Diskussion um eine Verfassungsreform in der Türkei (Arno Scherzberg ed., LIT Verlag Münster, 2012), 49, 58 99 For a debate see Richard S. Kay, ‘Constituent Authority’, 59 Am. J. Comp. L. (2011), 715, 727; Christoph Möllers, ‘”We are (afraid of) the people”: Constituent Power in German Constitutionalism’, in The Paradox of Constitutionalism - Constituent Power and Constitutional Form (Martin Loughlin and Neil Walker eds., Oxford University Press, 2007), 87, 97. 100 Horst Dreier (ed.,) Grundgesetz, Vol. III (Mohr, 2000), art. 146, no.33, cited in Christoph Möllers, ‘”We are (afraid of) the people”: Constituent Power in German Constitutionalism’, in Martin Loughlin and Neil Walker, The Paradox of Constitutionalism Constituent Power and Constitutional Form (Oxford University Press, 2007), 87, 97. See debate in Jo Eric Khushal Murkens , From Empire to Union: Conceptions of German Constitutional Law since 1871 (Oxford University Press, 2013), 173-175. 101 Markus Böckenförde, ‘Constitutional Referendum in Germany – Country Repot’, in Recent Trends in German and European Constitutional Law: German Reports Presented to the XVIIth International Congress on Comparative Law, Utrecht, 16 to 22 July 2006 (Eibe H. Riedel, Rüdiger Wolfrum eds., Springer, 2010), 107, 120 102 Peter E. Quint, The Imperfect Union: Constitutional Structures of German Unificaion (Princeton University Press, 1997), 49. 103 The Lisbon Case, BVerfg, 2 be/08 of 30 June 2009, para. 217, http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html; See Daniel Halberstam, Christoph Mollers, ‘The German Constitutional Court says Ja Zu Deutschland’, 10 German L.J. (2009), 1241, 1256. 104 Jo Eric Khushal Murkens , From Empire to Union: Conceptions of German Constitutional Law since 1871 (Oxford University Press, 2013), 175. See also Ali Riza Coban, ‘The Continuity Problem of the Constituent Power’, in Verfassungstheorie und Verfassungsgebung: Überlegungen anlässlich der Diskussion um eine Verfassungsreform in der Türkei (Arno Scherzberg ed., LIT Verlag Münster, 2012), 49, 59 105 Helmut Goerlich, ‘Concept of Special Protection For Certain Elements and Principles of the Constitution Against Amendments and Article 79(3), Basic Law of Germany’, 1 N.U.J.S. L. Rev (2008), 397, 404; Ulrich K. Preuss, ‘The Implications of “Eternity Clauses”: The German Experience’, 44 Isr. L. Rev. (2011), 429, 440 (and also at 443). ‏106 Yaniv Roznai, Uconstitutional Constitutional Amendments: A Study of The Nature and Limits of Constitutional Amendment Powers’ (Thesis submitted to the Department of Law of the London School of Economics and Political Science for the degree of Doctor of Philosophy February 2014) 107 ADIN nº 815-3/DF, DJU de 10/05/96, p. 15131, cited in Adriana Zawada Melo, ‘A limitação material do poder constituinte derivado’, 8(1) Revista Mestrado em Direito (2008), 31, 48. 108 Richard D. Parker, ‘”Here, the People Rule”: A Constitutional Populist Manifesto’, 27 Val. U. L. Rev. (1993), 531, 583. 109 Carl J. Friedrich, Constitutional Government and Politics – Nature and Development (Harper & Brothers Publishers, 1937), 117. 110 William T. Han, ‘Chain Novels and Amendments Outside Article V: A Literally Solution To a Constitutional Conundrum’, 33 Hamline L. Rev. (2010), 71, 79; Westel Woodbury Willoughby, An Examination of the Nature of the State - a Study in Political Philosophy [1896] (BiblioBazaar, LLC, 2009), 215-218. 111 James Wilson, Commentaries on the Constitution of the United States of America (Debrett; J. Johnson; and J. S. Jordan, 1792), 38-39.


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Daniel S. Goodman, Essay, American Constitutionalism and the Myth of Creative Era Essay, 29 Santa‏112Clara L. Rev. 753 (1989). 113 C. V. Keshavamurthy, Amending Power Under The Indian Constitution – Basic Structure Limitations (Deep & Deep Publications, 1982), 80-81. 114 See generally Richard S. Kay, ‘The Illegality of the Constitution’, 4 Constitutional Commentary (1987), 57; Bruce Ackerman & Neal Katyal, ‘Our Unconventional Founding’, 62 U. Chi. L. Rev. 475 (1995); Jason Frank, ‘”Unauthorized Propositions” The Federalist Papers and Constituent Power’, 37(2-3) Diacritics (2007), 103. 115 Cheryl Saunders, ‘The Constitutional Credentials of State Constitutions’, 42 Rutgers L. J. (2011), 853, 870. See also William F. Harris II, The Interpretable Constitution (Johns Hopkins University Press, 1993), 193. François Venter, Constitution Making and the Legitimacy of the Constitution, National Constitutions ‏116in the era of Integration (Antero Jyranki ed., Kluer Law, 1999), 9, 16. François Venter, Constitution Making and the Legitimacy of the Constitution, National Constitutions in‏117the era of Integration (Antero Jyranki ed., Kluer Law, 1999), 9, 16. See also: Marinus Wiechers, Namibia: The 1982 Constitutional Principles and Their Legal Significance, in Van Wyk and Hill (eds), Namibia – Constitutional and International Law Issues (Pretoria, 1991); D. Van Wyk, The Making of Namibian Constitution: Lessons for Africa, 24 CILSA 341 (1991). ‏118 Arthur Chaskalson, ‘Constitutons Are Shaped By History: An Account of The Making Of South Africa’s New Constitution’, in Law and Justice: An Anthology (Soli J. Sorabjee ed., Universal Law Pub. Co., 2003), 153. 119 Sam Brooke, Constitution-Making and Immutable Principles (Thesis, M.A. in Law and Diplomacy, The Fletcher School, Tufts University, 2005), 3-10. 120 Re Certification of the Constitution of the Republic of South-Africa, 1996(4) SALR 744 (CC); Albie Sachs, ‘South Africa’s Unconstitutional Constitution: The Transition from Power to Lawful Power’, St. Louis U. L.J. 41 (1996-1997), 1249. 121 Re Certification of the Amended Text of the Constitution of the Republic of South-Africa 1997(2) SALR 97 (CC), in Sam Brooke, Constitution-Making and Immutable Principles (Thesis, M.A. in Law and Diplomacy, The Fletcher School, Tufts University, 2005), 23-24. .S Arné, ‘Existe-t-il des normes supra-constitutionnelles’ (1993) 2 Revue du droit public 460, 461‏122 .L Favoreu, ‘Souveraineté et supraconstitutionnalité’ (1993) 67 Pouvoirs 71, 74-6‏123 CF. See also Thomas Franck and Arun K. Thiruvengadam, Norms of International Law Relating to the‏124Constitution-Making Process’ and Vivien Hart, Constitution Making and the Right to Take Part in a Public Affair , both in FRAMING THE STATE IN TIMES OF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING 3, 20 (Laurel E. Miller ed., 2010); Thomas M. Franck and Arun K. Thiruvengadam, International law and Constitution-Making, 2(2) CHINESE J. INT’L L. 467 (2003); ‏125 JT Valdés, ‘Poder constituyente irregular: los límites metajurídicos del poder constituyente originario’ (2008) 6(2) Estudios Constitucionales 121; Herdegen…at 605; Samar …at 691-3. ‏126 SJ Schnably, ‘Emerging International Law Constraints on Constitutional Structure and Revision: A Preliminary Appraisal’ (2007-2008) 62 U Miami L Rev 417, 422. ’See D Maus, ‘The Influence of Contemporary International Law on the Exercise of Constituent Power‏127in Antero Jyrank (ed), National Constitutions in the Era of Integration (Kluer 1999) 50, 54-57. LC Backer, ‘God(s) Over Constitutions: International and Religious Transnational Constitutionalism in‏128the 21st Century’ (2007-2008) 27 Miss C L Rev 11, 16-17. On the emergence of ‘global constitutionalism’ see eg P Zumbansen, ‘Comparative, global and transnational constitutionalism: The emergence of a transnational legal-pluralist order’ (2012) 1(1) Global Constitutionalism 16. Yaniv Roznai, The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments, 62(3)‏129INT’L & COMP. L. Q. 557 (2013). Case of the “Montijo”: Agreement between the United States and Colombia of 17.08.1874, award of‏13026.7.1875., cited in A Peters, ‘Supremacy Lost: International Law Meets Domestic Constitutional Law’ (2009) 3 ICL 170, 183-84. Avis Consultatif du 4 février 1932, Série A/B n°44, 24. See MO Hudson, ‘International Engagements‏131and Their Interpretation by the Permanent Court of International Justice’, in AM Kidd and M Radin (eds), Legal Essays: In Tribute to Orrin Kip McMurray (University of California Press 1935) 190. ‏132 See Rekvenyi v. Hungary, App. No. 25390/94, Eur. Ct. H. R., judgment of May 20, 1999 and Victor-Emmanuel de Savoie v. Italy, App. No. 53360/99, Eur. Ct. H. R., Judgment of Apr. 24, 2003, in which the ECtHR examined the compatibility of constitutional provisions with the ECHR but did not establish a breach. Cited in Garlicki and Garlicka (n 90) 362-63, n 42 .Alajos Kiss v. Hungary, App. No. 38832/06, Eur. Ct. H. R., Judgment of May 20, 2010‏133 .Sejdić and Finci v. Bosnia and Herzegovina, App. No. 27996/06, Eur. Ct. H. R., Judgment of Dec. 22, 2009 ‏134


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‏135 D Grimm, ‘The Achievement of Constitutionalism and its Prospects in a Changed World’, in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism (OUP 2010) 15. ,GT Butcher, ‘Legal Consequences for States of the Illegality of Apartheid’ (1986) 8 Hum Rts Q 404‏136433; X Jisheng, ‘Evolution of South Africa’s Racist Constitutions and the 1983 Constitution’ (1987) 16(1) A Journal of Opinion 18. ‏137 S. C. Res. 554, U.N. Doc S/RES/554 (Aug. 17, 1984) <http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/487/84/IMG/NR048784.pdf?OpenElement> UK Preuss, ‘Perspectives in Post-Conflict Constitutionalism: Reflections on Regime Change Through‏138External Constitutionalization’ (2006-2007) 51 NYL Sch L Rev 467, 492. Yaniv Roznai, The Theory and Practice of ‘Supra-Constitutional’ Limits on Constitutional Amendments, 62(3)‏139INT’L & COMP. L. Q. 557 (2013). Carl J. Friedrich, Some Reflections On The Meaning and Significance of Constitution-Making in Our‏140Time, in Festschrift für Karl Loewenstein: aus Anlass seines achtzigsten Geburtstages 119, 122 (Mohr Siebeck, 1971) Carl J. Friedrich, Some Reflections On The Meaning and Significance of Constitution-Making in Our‏141Time, in Festschrift für Karl Loewenstein: aus Anlass seines achtzigsten Geburtstages 119, 124 (Mohr Siebeck, 1971) ,.Bernard H. Siegan, Drafting a Constitution For a Nation or Republic Emerging into Freedom (2nd ed‏142George Mason University Press, 1994), 72. Frederick Charles von Savigny, Of The Vocation of Our Age for Legislation and Jurisprudence, 2nd‏143ed., translated from German by Abraham Hayward (London, Littlewood & Co. 2nd ed., 1831 [1814]) ‏144 See e.g. Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE AND LEGITIMACY: THEORETICAL PERSPECTIVES 39, 40-42 (Michel Rosenfeld ed., 1994); Dieter Grimm, The Achievement of Constitutionalism and its Prospects in a Changed World, in THE TWILIGHT OF CONSTITUTIONALISM 3, 9 (Petra Dobner and Martin Loughlin eds., 2010). François Venter, Constitution Making and the Legitimacy of the Constitution, National Constitutions in‏145the era of Integration (Antero Jyranki ed., Kluer Law, 1999), 9, 20-22. Vicki C. Jackson, What’s in a Name? Reflections on Timing, Naming, and Constitution-Making, 49 WM. & MARY‏146

L. REV. 1249, 1254 (2008). .Compare Dante B. Gatmaytan, Can Constitutionalism Constrain Constitutional Change?, 3 NW. INTERDISC. L‏147REV. 22 (2010). François Venter, Constitution Making and the Legitimacy of the Constitution, National Constitutions in‏148the era of Integration (Antero Jyranki ed., Kluer Law, 1999), 9, 28. François Venter, Constitution Making and the Legitimacy of the Constitution, National Constitutions in‏149the era of Integration (Antero Jyranki ed., Kluer Law, 1999), 9, 15 150 See Lior Barshack, ‘Constituent Power as Body: Outline of a Constitutional Theology’, 56 University of Toronto L. J. (2006), 185, 190; Bruce Ackerman, ‘The New Separation of Powers’, 113(3) Harv. L. Rev. (2000), 633, 665-667. 151 Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’, 15-16 Indian Y. B. Int'l. Aff. (1970), 347, 404-410. 152 Satya Prateek, Today’s Promise, Tomorrow’s Constitution: “Basic Structure”, Constitutional Transformations and The Future of Political Progress In India, 1 NUJS L. Rev. (2008), 417, 454. 153 Richard S. Kay, ‘Constituent Authority’, 59 Am. J. Comp. L. (2011), 715, 742. 154 Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, 12(2) Constellations (2005), 223, 235. See also at 238. 155 Shouvik Kumar Guha and Moiz Tundawala, ‘Constitution: Amended it Stands?’, 1 NUJS L. Rev. (2008), 533, 543. See also Dietrich Conrad, ‘Constituent Power, Amendment and Basic Structure of the Constitution: A Critical Reconsideration’, 6-7 Delhi L. Rev (1977-1978), 1, 12; Carl J. Friedrich, Constitutional Government and Politics – Nature and Development (Harper & Brothers Publishers, 1937), 116. 156 Kostas Chryssogonos, ‘Popular Involvement in Constitution-Making’, 20(4) Revue Européenne de Droit Public (2008), 1299-1316. 157 Stephen Holmes, The Anatomy of Antiliberalism (Harvard University Press, 1996), 49; Christoph Burchard, ‘Carl Schmitt on Democracy and International Relations’, 19 Leiden J. Int’l L. (2006), 9, 13. 158 Walter F. Murphy, Constitutional Democracy – Creating and Maintaining a Just Political Order (The John Hopkins University Press, 2007), 516. 159 Walter F. Murphy, Constitutional Democracy – Creating and Maintaining a Just Political Order (The John Hopkins University Press, 2007), 507, 514-517. See also Walter F. Murphy, ‘Staggering toward the New Jerusalem of Constitutional Theory: A Response to Ralph F. Gaebler’, 37 Am. J. Juris. (1992), 337, 352; Walter F. Murphy, ‘Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity’, in


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Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson, ed., Princeton University Press, 1995), 163, 178-179; 160 Sharon Weintal, Eternal Clauses in the Constitution (2005) (unpublished Ph.D. dissertation, Hebrew Univ. of Jerusalem, Faculty of Law) (on file with the author) [in Hebrew] 18, 20-21; Sharon Weintal, ‘Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-Track Democracy in Israel as a Universal Holistic Constitutional System and Theory’, 44 Isr. L. Rev. (2011), 449. 161Satya Prateek, ‘Today’s Promise, Tomorrow’s Constitution: “Basic Structure”, Constitutional Transformations and The Future of Political Progress in India’, 1 NUJS L. Rev. (2008), 417, 464. 162 Joel Colón-Ríos, Weak Constitutionalism – Democratic Legitimacy and the Question of Constituent Power (Routledge, 2012), 111, 117-118. 163 William F. Harris II, The Interpretable Constitution (Johns Hopkins University Press 1993), 203‏

164 See Joel I Colón-Ríos & Allan C. Hutchinson, ‘Democracy and Revolution: An Enduring Relationship?’, 89 Denv. U. L. Rev. (2012), 593, 608. C. H. Mcllwain, Constitutionalism and the Changing World 29 (1939) ‏165 C. H. Mcllwain, Constitutionalism and the Changing World 37 (1939)‏166167 C. V. Keshavamurthy, Amending Power Under The Indian Constitution – Basic Structure Limitations (Deep & Deep Publications, 1982), 12. See also Mark Tushnet, ‘Constitution-Making: An Introduction’, 91 Tex. L. Rev. (2012-2013), 1983, 1988-1989. ‏168 Benjamin Constant, ‘On The Sovereignty of the People’ (1815) Solonian Reprints, No. 2 (Charles Randolph Bowman trs., 1996), 1, 6. 169 David Dyzenhaus, ‘The Question of Constituent Power’, in The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Martin Loughlin, Neil Walker, eds., Oxford University Press, 2007), 129, 143–5. 170 David Dyzenhaus, ‘Constitutionalism in an Old Key: Legality and Constituent Power’, 1(2) Global Constitutionalism (2012), 229. See also Yasuo Hasebe, On The Dispensability of the Concept of Constituent Power’, 3 Indian J. Const. L. (2009) 39. 171 Martin Loughlin, ‘The Concept of Constituent Power’, Eur. J. Pol. Theory (2013), 6. 172 Tushnet, … at 1999. 173 János Kis, Constitutional Democracy (Central European University Press, 2003), 136-7. 174 János Kis, Constitutional Democracy (Central European University Press, 2003), 137. 175 See Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’, 45 Duke L. J. (1995), 364, 374-75. On the limitation of constitutional theory – or any political theory for that matter see Lester B. Orfield, Amending the Federal Constitution (The University of Michigan Press, 1942), 125; Henry. M Bates, ‘How Shall We Preserve the Constitution?’, 44 Kan. B. A. Proc. (1926), 128, 147.

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