The American Tradition of Constituent Power

Abstract

How do “the people” exercise their revolutionary right to replace the existing constitutional order? The conventional answer is that the people act through specially elected constitution-making bodies like constitutional conventions. But what powers must these specially elected institutions—as the representatives of the people—wield? Must they possess the inherent power to, for instance, unilaterally change the ratification requirements? Or, even if they must submit their drafts to a popular referendum, must they have inherent power to pass laws or displace existing government prior to a referendum? These questions have recently re-emerged in constitutional transformations around the world. ..