A year defined by the judicial reform-overhaul in Israel reached its legal climax when the Government amended a constitutional law to abolish the courts’ ability to make use of the reasonableness doctrine, a common-law doctrine which allows courts to review administrative actions based on their “reasonableness”. Petitions to the Israeli Supreme Court were immediately filed, leading to a revolutionary ruling. For the first time in its history, all fifteen justices of the Supreme Court convened and struck down a constitutional amendment in an eight to seven decision.

While a majority was reached, a deeper inspection of the different opinions uncovers substantial differences in the justices’ theoretical approaches. This Article provides an analysis of the five major theoretical approaches utilized in the reasonableness ruling to justify or reject the existence of a limitation on constituent power in Israel: constitutional data, constitutional self-entrenchment, declarations of independence, natural law, and limitless constituent power.

The Article presents the unique insight that despite the unprecedented outcome of the ruling, none of the justices relied on the ubiquitous distinction between the primary and secondary constituent powers. As such, contradictory to common perception, the Supreme Court of Israel didn’t adopt the unconstitutional constitutional amendment doctrine in the reasonableness ruling. Instead, it adopted a much more radical doctrine according to which the Court may strike down any constitutional law–whether the product of the primary or secondary constituent power–so long as it is convinced that the constituent power’s authority was exceeded.

There is something utopian about constituent power, whether this is the unrealisable idea of “the people” or the world-building nature of constitutional change. However, in contemporary constitutional scholarship “utopia” is more often used as a pejorative critique of reform projects that are seen as idealistic ambitious calls for constitutional change, which might fail for being “too utopian”, “too idealistic”, “too unrealistic”. In an attempt to move beyond this critique, this article draws on alternative approaches to utopianism to uncover the temporal assumptions underpinning contemporary approaches to constituent power and highlights the different approaches that can be exposed if theories of utopian-thinking are foregrounded. Both utopia and constituent power are closely aligned with visions of alternative futures, and constitutional scholars agree that there is an intersection between utopian thinking and the subjectivities, temporalities and operationalisation of constituent power. Moving away from utilising utopia as a pejorative label and engaging instead with what it can expose about temporalities, offers alternative approaches to the study of constituent power.

This article contrasts the liberal idea of a “sleeping sovereign” with the democratic one of a “sovereign awakened.” The right to protest is defended as an expression of popular sovereignty, envisaged as a right to popular “self-awakening” instigated by an imperative call of duty not reducible to a set of liberal individual rights. In contrast to some approaches of agonistic democracy, it is argued that democratically breaking the rules of the game of liberal democracy is an indispensable dimension of democratic protest. Taking into account Étienne Balibar's thoughts about a rule-breaking right to have rights, it is suggested we revisit the French Constitution of 1793, in which a popular duty to insurrection is enshrined. The article ends with the proposal to supplement insurrectionary accounts of sovereignty with a Gramscian view that would insist on the necessity of hegemonically constructing a democratic “collective will.”

This paper examines the relationship between feminist manifestos and constituent power, focusing on the Chilean feminist movement. Manifestos have long been an influential political tool in shaping political identities and claiming power. However, they are often overlooked in constitutional law. This paper addresses this gap by exploring feminist manifestos, which have been pivotal in denouncing historical exclusion, forming political groups and asserting constituent power. Drawing on the work of Ruth Houghton and Aoife O’Donoghue, the paper investigates how feminist manifestos challenge traditional notions of constituent power. However, it argues that their performative conception of power overlooks the vital role of political representation. The paper argues that political representation is crucial for a fully realised theory of feminist constituent power, as it enables collective action and democratic participation. By looking at the Chilean feminist movement’s involvement in the 2019–2022 constitution-making process, the paper demonstrates how feminist movements, through strategies such as manifestos and strikes, can influence constitutional change, while also highlighting the limitations of excluding political representation from the conversation. Ultimately, the paper asserts that feminist manifestos can reimagine constituent power, but their full potential is limited without a comprehensive understanding of political representation.

The twenty-first century has witnessed the global resurgence of constituent power—the power to make a constitution—in both academic debate and the practice of constitutional adjudication and design. Comparative constitutional law scholarship on this power has largely focused on democratic settings. Little academic attention has been paid to the constiuent power in socialist regimes. To fill in this gap, this Article explores the design and practice of the constituent power in both former and current socialist regimes. It identifies three paradigms of the socialist constituent power. In the revolutionary paradigm, the power is used at the founding moment after a communist revolution to establish the legal foundation for a socialist state. In the Soviet, post-revolutionary paradigm, constitutent power is a power of the ordinary legislature used for the replacement of an existing by another socialist constitution. In the contemporary reformist paradigm, the socialist constituent power is still vested in an ordinary legislature but its design and practice integrate ideals and practices of democratic constituent power, including public engagement in constitutional reforms, as the consequence of the people’s struggle for their constituent power and the global diffusion of the idea of the popular constituent power. The reformist paradigm is illustrated by a case-study of Vietnam, using original resources. This study has implications for understanding the Soviet legacies and contemporary dynamics of constituent power in the socialist regimes, and for the comparative study of constituent power.

Even after seven decades since it came into force, examinations of the Indian Constitution remain partial and incomplete. It is not widely known that the original ratified copy of the Constitution also makes a visual argument through the opening pages of every part. These elaborately crafted artworks, which are entirely negated in Indian scholarship, are structured in the form of a teleological and linear narrative, encompassing a claim of an unbroken link to an immemorial civilisation. Based on archival research and a hermeneutic that combines imaginal analysis, literary theory, historical scholarship and constitutional jurisprudence, this article will demonstrate that these constitutive images are the aesthetic foundation that imaginally binds the constitutional subject and the collective citizenry, and this article will show how its negation is closely tied to a foundational ambivalence that endures in constitutional law.

As modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

This article reconstructs and analyses the conceptual history of “the people” [Folket] in modern Danish history. It applies qualitative and quantitative methods to analyze new data and archival materials and provides a detailed study of the construction, development and central role of populist conceptions of “the people” in the constitutional struggles between 1830 and 1920 that transformed Denmark from an absolute monarchy into a parliamentary democracy. I argue that these populist conceptualizations of “the people” shaped and fostered the emergence of the ideas and practices of parliamentary democracy as “the people’s rule” [Folkestyre]. This case study thereby challenges contemporary assumptions about an inherently adversarial relationship between populism and democracy. Moreover, it makes a number of empirical and analytical contributions to the existing historiography, as well as the literature on the construction of “the people,” democracy and populism.

In this article, I ask about the extent to which the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union. I critically engage with the claim that the CoFoE’s success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens’ assemblies to EU politics, it has laid the foundation for participatory democracy in the European Union. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman’s concept of a democratic minimum. The best democratic defence of permanent EU citizens’ assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns – and thus function as a nucleus for constituent power in the European Union. Nevertheless, the idea should be viewed with caution, as permanent citizens’ assemblies could just as well become a democratic fig-leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.

The Article offers a summary of some of the major themes of Emilios Christodoulidis’s The Redress of Law. In addition, it engages critically with social systems theory by calling into question whether it provides us with an adequate perspective on constitutional law. The concluding observations address the deplorable state of the left-wing project at the beginning of the twenty-first century.

This article examines the development of the doctrine of the ‘permanent constituent power’ in Mexico. This doctrine reflects a long tradition in constitutional theory according to which the exercise of constituent power is a one-time event: once a constitution is adopted, there will be no legal mechanism in place for the exercise of the people’s original constitution-making authority. This view is nonetheless in tension with a notion that has also been historically embraced by liberal constitutionalism: that the people has an inalienable right to alter the form of government. The constitutional provisions that reflect that idea, we will see, can have important implications in terms of the nature and scope of the amending authority and, at the same time, point toward alternative mechanisms for the exercise of constituent authority. By closely examining the operation of those kinds of provisions in the Mexican constitution, we seek to illustrate a tension central to the liberal constitutional tradition and to suggest a way out of it. In so doing, we aim to draw some lessons from the Mexican case that can contribute to current discussions about constituent power and fundamental constitutional change in liberal constitutional orders.