To say that some constituent assemblies have acted as omnipotent lawmakers, as not subject to the separation of powers, and as able to exercise the ordinary powers of government, is an understatement. It is, in fact, the way in which many, if not most, constitution-making bodies have operated since the late 18th century. A famous historical example is the French National Convention of 1793, which despite having been called under an already constituted legal order and after having drafted a (later popularly ratified) constitution, declared a state of emergency, abolished the separation of powers, and proceeded to govern the country. In early U.S. constitutional history, some state constitutional conventions also assumed an unlimited law-making jurisdiction, and contemporary concerns about runaway conventions seem to be largely based on that possibility. Much more recently, in the late 20th and early 21st centuries, such type of power has been exercised by constituent assemblies in Latin America. All these entities went, in some way, beyond the adoption of novel constitutions and played legislative, executive, and sometimes even judicial functions. As a result, I will argue in this paper, they should not be understood as having engaged in the exercise of constituent authority, but of sovereignty plain and simple.
The distinction between constituent authority and sovereignty is not merely terminological; it points toward things that an entity tasked to exercise constituent authority cannot do. In addition to drafting a document that counts as a ‘constitution’ in the society at issue, constituent authority, the paper argues, would normally be subject to at least one implicit limit: it must not engage in ordinary governmental activity. An entity called to exercise constituent authority could, moreover, be subject to explicit limits as to the type of constitutional content it must or must not adopt. The traditional definition of sovereignty points precisely in the opposite direction: a sovereign is an individual or entity not subject to the separation of powers, capable of transforming any will into law. Part I of the paper develops the distinction between constituent authority and sovereignty through a critical analysis of Carl Schmitt’s conception of dictatorship. Part II examines the way in which different constitution-making bodies, in Latin America and the United States, have been conceived by theorists, politicians, and judges. These entities have been frequently understood as sovereign even though they were only commissioned to create a constitution. In Part III, I consider the ways in which the limits on constitution-making bodies that arise from the argument presented in this paper may be put into practice.
Colon-Rios, Joel I., "Of Omnipotent Things" (2021). Connecticut Law Review. 480.