Richard Kay of the University of Connecticut Law School has posted a new paper, Constituent Authority, on SSRN. Its an interesting analysis of constituent power and its effect on constitutional endurance.
The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory have long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison of various constitutional systems.
Since a constitution occupies the highest rank in a legal hierarchy, the constituent authority that creates it cannot derive from some prior legal authorization. It is true that the establishment of constitutions is commonly associated with the rhetorical invocation of some legal authority but a truly new constitution, the promulgation of a fundamentally different legal order, must be grounded in economic, social, religious or political values. Constituent authority cannot be legal authority.
The predominant constituent authority in the world today is that of the “people.” Its appeal is founded on the political value of self-government, the idea that every form of collective coercion must be justified by the consent of those subject to it. The translation of this general recognition in the actual creation and operation of constitutions, however, is freighted with difficulties. There is no algorithm for identifying the human beings who share sufficient connections to qualify as a people. Even if we are able to identify an appropriate population, the process of creating a constitution requires the specification of surrogates who may act on its behalf. The institutional substitutes for the people involve various combinations of legislatures, constituent assemblies and referenda, all of which are problematic in various ways. Many successful constitutions, moreover are the product of elite negotiations among representatives of various interests and the process of agreement can be said to represent the agreement of the undivided people only in the most attenuated sense.
The facts that, notwithstanding these difficulties, constitutions are written, implemented and remain largely effective and that they are unreflectively attributed to the will of the people, tells us something important about the nature of constituent authority. Constituent authority is a fact but it exists not only at the time of enactment but at every moment during which a given constitutional system is effective. The way the constituent events are perceived in a legal system can, and often does, change over time in response to changing views about the proper bases of political authority. Constituent authority, therefore, is the resultant of the interaction of current values and the perception of historical events.