TFL Vsebine / Revija Revus

In this paper, I will argue that the paradigm of sovereign constitution-making, as described by Professor Arato, is inconsistent with the very notion of the constituent power of the people. What the distinction between the sovereign and the post-sovereign constitution-making models do is to bring to the surface an unfortunate misunderstanding long present in our constitutional traditions. The exercise of constituent power, as I will show in Part 1 below, should have always been non-sovereign if understood as a power that can only belong to the populace. In Part 2, that argument is developed further but, rather than challenging the result of Professor Arato’s fine theoretical and comparative analysis, I propose an alternative route towards the same conclusion. The advantage of this approach, it will be seen in Part 3 and 4, is that it avoids the democratic trade-offs that usually accompany the post-sovereign model, such as the creation of interim constitutions by non-elected entities. This alternative route, however, is inconsistent with the way in which the power of constituent assemblies has been understood in many 20th and 21st century constitution-making episodes.