Constraining constituent conventions: Emmanuel Joseph Sieyès and the limits of "pouvoir constituant"

• Fasel, Raffael N ^[1]
  1. [1] University of Cambridge

     University of Cambridge

     Cambridge District, Reino Unido

     
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 20, Nº. 3, 2022, págs. 1103-1129
• Idioma: inglés
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• Resumen

  • Constituent power is widely viewed as the people’s legally unlimited power to make constitutions. This Popular Account of Constituent Power, as I call it, has been particularly influential in Latin American constitution-making processes, where it is often invoked as a justification for constituent conventions to ignore limits imposed on them. Although Carl Schmitt’s constitutional theory is a prominent source for the Popular Account, its proponents ultimately believe it to be based on Emmanuel Joseph Sieyès’s theory of pouvoir constituant. In this article, I show that this belief is unfounded. As I argue, Sieyès’s theory is best viewed as a secularized natural law theory that limits constituent power. Focusing on constituent conventions in particular, I demonstrate that Sieyès’s theory imposes two constraints on them: their mandate from the people and the common interest. I show the practical relevance of this finding by applying it to the current constitution-making process in Chile.