SNSF research project

Summary

Popular sovereignty—the idea that states’ authority is built on the will of the people—has become the foundation of modern constitutional orders. It is believed to underlie not only the day-to-day processes of democratic government, but also those of creating and changing  constitutions themselves. According to a widespread view, the power to make constitutions, called the constituent power, lies solely with the people. On this view, there are no other sources for constituent power than the people’s will, and no legal limits that can be imposed on how a people exercises that power. I refer to this as the Popular Constituent Power Account (or Popular Account for short).

The Popular Account has caused numerous concrete problems. For instance, it has fuelled despotic exercises of constitution-making by constitutional assemblies and autocratic leaders that claimed to exercise the people’s unfettered powers to avoid limits that had been imposed on them (Despotism Problem). The Popular Account has also been difficult to reconcile with the growing conviction that particularly problematic constitutional revisions ought to be regarded as “unconstitutional” and therefore illegal, as illustrated by recent popular initiatives in Switzerland such as the “Durchsetzungsinitiative”, which threatened to undermine fundamental constitutional principles such as the separation of powers and the rights of minorities (Unconstitutionality Problem). Moreover, the Popular Account has led many academics, courts, and public officials to believe that there is no hierarchy between constitutional norms, putting for example fundamental rights provisions, such as the right to life, on the same level as comparatively trivial provisions on, for instance, hiking trails (Hierarchy Problem).

The overall objective of my proposed project is to debunk the Popular Account and develop in its stead an original account, the Natural Constituent Power Account (Natural Account). On this Account, the people’s power to create and change constitutions is not unfettered, but limited by the requirements of natural law—which I define as the rational (rather than God-given) requirements of a morally just order that promotes the common good. My project pursues four specific aims: first, to show that the Natural Account is rooted in the work of the leading thinker of constituent power, Emmanuel Joseph Sieyès, and other contemporaries; second, to demonstrate that the Natural Account is normatively superior to the Popular Account because it resolves the Despotism, Unconstitutionality, and Hierarchy Problems; third, to illustrate the practical use of the Natural Account by exploring how it applies in the context of the US Constitution, where people have little direct constitutional influence on the federal level; and, fourth, to compare this application in the US context with how the Natural Account fares in a constitutional system like Switzerland, where popular sovereignty plays a dominant role.