Marco Goldoni (University of Glasgow) has posted Constituent Power from a Regime-Based Perspective on SSRN. Here is the abstract:
This chapter reconstructs constituent power from a regime-based perspective in order to challenge what recent scholarship has identified as the “conventional theory” of constituent power. According to the conventional account, constituent power appears as an extra-legal and unconstrained force capable of founding a constitutional order ex nihilo. The chapter argues that this conception relies on political-theological assumptions concerning both the external relation between constituent power and constitutional order and the idea of an unconstrained collective will. Against this view, the chapter develops an alternative account centred on the concept of constitutional regime. Constituent power is understood not as an absolute founding act, but as an organised and internally constrained process through which fundamental political commitments and institutional arrangements are transformed.
The chapter reconstructs this alternative conception through the works of Costantino Mortati and Bruce Ackerman. Despite their differences, both authors conceive constitutional transformation as emerging from organised political and social forces operating within historically specific regimes. Mortati’s theory of the material constitution highlights the organisational dimensions of constituent power, while Ackerman’s theory of constitutional moments demonstrates how fundamental constitutional change may occur outside formal amendment procedures through sustained political mobilisation and regime transformation. In both cases, constituent power is linked to the restructuring of fundamental political objectives rather than to the exercise of an unlimited sovereign will.
The chapter concludes that constituent power should be understood as an explanatory concept for major regime transformations rather than as a metaphysical principle of absolute political creation. By emphasising internal constraints, organisational forms, and the substantive commitments underpinning constitutional orders, the regime-based perspective offers a historically grounded account of constitutional change that avoids the pitfalls of the conventional theory.
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