Constitutional transformation and the rule of law
In line with the reasoning exposed above, the concept of constitutional transformation (or constitutional dismemberment) is hardly compatible with that of the “rule of law” (see Sanchez Agesta, 1959, p.
382).If a constitutional transformation seeks a thoughtful reconfiguration of power, such a move is difficult to be developed within a frame of previously existing rules which had served the previous decision on the allocation of power.
Constituent power and the constitution 85 Putting it differently, the new decision on power requires a breakup with the existing rules. As Ackerman also remarked (1998, p. 14): “by breaking the law we will find a higher law,” a statement which also entails changes apparently respectful with the previous constitutional framework or even with the procedures established to pass constitutional amendments (as the example of the American Civil War amendments again confirms). The latter observations clash with some theoretical proposals such as the ones developed by Andrew Arato (2016, p. 11), Christopher Mollers (2007), Ulrich Preuss (1995), and William Partlett (2012) in arguing for the necessity to tame the disruption inherent to a constitutional creation boosted by popular participation in a revolutionary mode through some legal brakes provided by the previous constitutional framework or by interim constitutional rules. The idea of these authors, if I understand them correctly, would be, putting it simply, to submit a constitutional transformation also to the principle of the rule of law, but such a manner of self-restraint would represent the cancellation of the idea of a constitutional transformation as I have defined here and its replacement by a mere constitutional amendment. The figure would characterize episodes of transition in which, even in the instance of a formal change of regime, no significant reallocation of powers might be detected.
It is important to be aware of the circumstance that a constitution-making process, as I have already underscored, requires a moment of demolishing the principles of the previous regime, and it is in such a “destructive moment” (in such “destituent power” as Oklopcic calls it, 2018, p. 30 and Atria, 2020, p. 53) inherent to the fact of exercising the constituent power, whereby violence is likely both to spread and to mark the core conditions of the following “constructive moment” expressed by the drafting and the passing of a new constitutional structure.