Notes
1 Such an idea is mentioned by Noah Feldman (Feldman, 2004-2005, p. 858) concerning his research on the Constitutions imposed from outside after a military conflict but he suggests that the statement can be extended even to constituent process grounded on a supposed collective self-determination.
On the role of force in the emergence of the State see generally Azar Gat, 2008, pp. 231-322. On the violent foundations during State-building in the case of liberal democracies see, among many others, Istvan Hont, 1994; Michael Mann, 1986 and 2005, and Charles Tilly, 1975 and 1990. For the connection between violence and the elaboration on the ideas of constitutionalism see Bates, 2007.2 On the conception of a constitution as a product of popular sovereignty able to justify constitutional supremacy see, for instance, Waldron, 2016, pp. 39-41; Klein and Sajo, 2012, p. 427; or Hahm and Kim, 2010, at 800.
3 Such a lack of interest in the relationship between violence and constitutionmaking processes is appreciated at least among constitutional law scholars. Another vision is available from political philosophers, sociologists, or historians. We shall mention the works of Giorgio Agamben, (Agamben, 2005) who, from philosophy, has built a general theory on violence and the origins of political power including constitution-making. Among the authors that have dealt with the question of violence and constitutional foundations within the framework of studies of constitutional law, see Bates, 2007; Elster, 2012a, and Samahon, 2011-2012.
4 On the normative value of the narratives concerning the constitutional founding see Kuo, 2019.
5 Marbury vMadison, 5 U.S. 137 (1803), at 176. On Chief Justice Marshall’s narrative of the founding, resting on the people’s participation see Gilhooley, 2019, pp. 100-104.
6 The idea that the people lies behind the generation of constitutional arrangements has ancestral roots in political thought but it is after the revolutionary experiences in France and North America by the end of the eighteenth century that the political will of the people as the only source of constitutional authority began to expand in justifying the foundation of a new political entity until becoming almost hegemonic (even regarding authoritarian regimes) in the contemporary era. Daniel Lee, for instance, showed how the conception of the people as constituent agent already has vestiges in medieval and early modern civilian thought (Lee, 2016, p.
318) and also Bodin, for instance, in the sixteenth century, distinguished between sovereignty, the locus of authority, and the government, which was described as the instituted form through which the sovereign rules. In this vein, whereas majestas personalis or “the personal sovereignty” was placed on the the ruler (usually the Monarch) the majestas realis or “the real sovereignty” was held by the people and was superior to the former (on Bodin’s characterization of popular sovereignty in creating constitutional rules see Loughlin, 2010, p. 58 and pp. 70-72 and Roznai, 2017, p. 107).7 Among the large work of Bruce Ackerman, a synthesis on his idea of constitutional dualism might be found in Ackerman, 1993, pp. 3-33 and Ackerman, 1998, pp. 3-31 On the idea of exceptional political moment at the level of creating fundamental laws see also the works of Sh. Wolin, for instance, Wolin, 2004, p. 602 and Wolin, 1996, p. 34.
8 See Michelman’s considerations on Ackerman’s account (Michelman, 1998, p. 76).
9 Yaniv Roznai (2016) relates the increasing interest in the question of the constituent power with the wave of constitutional drafting triggered by political changes across North-Africa and the Middle East See “We the Limited People,” conference paper presented at the 2016 Annual Meeting of ICON-S, The International Society of Public Law, Humboldt University Berlin, June 18, 2016. One should also mention experiences of constitution-making in Latin America and within stable European liberal democracies such as in Iceland or Ireland as inspiring processes for the deluge of theoretical approaches that have appeared in the last decade.
10 See for instance Maastricht Judgment BVerfG, 2 BvE 2134, 2159/92 of October 12, 1993.
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