The book sets out to examine some of the key features of what we describe as the paradox of constitutionalism: whether those who have the authority to make a constitution - the 'constituent power' - can do so without effectively surrendering that authority to the institutional sites of power
'constituted' by the constitutional form they enact. In particular, is the constituent power exhausted in the single constitutive act or does it retain a presence, acting as critical check on the constitutional operating system and/or an alternative source of authority to be invoked in moments of
crisis? These questions have been debated both in different national contexts and at the level of constitutional theory, and these debates are acknowledged and developed in the first two sections of the book.
Part I includes chapters on how the question of constituent power has been
treated in the constitutional histories of USA, France, UK and Germany, while Part II examines at the question of constituent power from the perspective of both liberal and non-liberal theories of the state and legal order. The essays in Part III consider the operation of constitutionalism with
respect to a series of contemporary challenges to the state, including those from popular movements below the level of the state and challenges from the supranational and international levels, and they analyse how the puzzles associated with the question of constituent power are played out in these
increasingly important settings.
Introduction
1. Hans Lindahl: Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood
A Conceptual History of Constituent Power
2. Martin Loughlin: Constituent Power Subverted: From English Constitutional Argument to British Constitutional
Practice
3. Stephen M. Griffin: Constituent Power and Constitutional Change in American Constitutionalism
4. Lucien Jaume: Constituent Power in France: The Revolution and its Consequences
5. Christoph Möllers: 'We are (afraid of) the people': Constituent Power in German
Constitutionalism
6. John P. McCormick: People and Elites in Republican Constitutions, Traditional and Modern
The Articulation of Constituent Power: Rival Conceptions
7. David Dyzenhaus: The Politics of the Question of Constituent Power
8. Rainer Nickel: Private and Public
Autonomy Revisited: Co-originality in Times of Globalization and the Militant Security State
9. Paolo Carrozza: Constitutionalism's Post-Modern Opening
10. Emilios Christodoulidis: Against Substitution: The Constitutional Thinking of Dissensus
Extension and Diversification of
Constituent Power
11. Ulrich Preuss: The Exercise of Constituent Power in Central and Eastern Europe
12. Stephen Tierney: 'We the Peoples': Constituent Power and Constitutionalism in Plurinational States
13. Neil Walker: Post-Constituent Constitutionalism? The Case of the European
Union
14. Bardo Fassbender: 'We the Peoples of the United Nations': Constituent Power and Constitutional Form in International law
15. Damien Chalmers: Constituent Power and the Pluralist Ethic
16. James Tully: The Imperialism of Modern Constitutional Democracy
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Martin Loughlin is Professor of Public Law, London School of Economics and Political Science
Neil Walker is Professor of European Law, European University Institute
