Notes
1 Already in Sieyes’ time the authorship of the concept was discussed. While Sieyes himself claimed in 1795 to be the one who coined the term pouvoir constituant (in both his 1789 published pamphlets: Qu'est-ce que le Tiers fetat? and the Preliminaire de la Constitution: reconnaissance et exposition raisonnee des droits de I'homme et du citoyen), a famous passage of Lafayette’s Memoires (1838, volume IV, p.
36) pointed out that the American experience developed from 1776 (encompassing both the American States’ Constitution drafts and the United States Federal Constitution) was evidence revealing that the idea of dividing the constituent power from the institutional framework organized by the Constitution was previous to any French contribution, including that of Sieyes. On the origins of the term pouvoir constituant see Klein, 1996, pp. 8-9; Laboulaye, 1993, p. 397; and Zweig, 1909, p. 1. At any rate, the term “constituent power” was not used in the American political and legal thought and even today, as Tushnet remarks (2015b, p. 644, note 24), such a term is rarely used in U.S. constitutional theory.2 On Sieyes’ previous precedents of an idea referring to a power able to create a constitutional settlement appreciated in Althusius, Bodin, Defoe, Hobbes, Lawson, Locke, or Cromwell’s 1653 Instrument of government see Klein, 1996, p. 7; Loughlin, 2014, pp. 219-220; and Roznai, 2017, pp. 106-108. On the precedence provided by the secularization of the theological potestas constituens attributed to God see Schmitt, 1993, p. 77 alluding to the works of Althusius (1995, Chapter XVIII, pp. 88-102). On the analogies between the Sieyes’ pou- voir constituant to pouvoir constitues relationship and Spinoza’s metaphysical natura naturans towards natura naturata structure see also Schmitt, 1993, pp. 79-80. On the ideas of Lawson and Locke closer to the modern theory of constituent power see Colon-Rios, 2014, pp.
307-308, who remarks that Lawson’s and Locke’s notion gave account for the historical moments of genuine rupture and transformation related to the right of people to resist an oppressive regime. On Lawson’s contributions entailed in his 1657 Politica Sacra et Civilis see also Kalyvas, 2005, p. 223 and Roznai, 2017, p. 107. Pasquale Pasquino also remarks on the precedent of Fillipo Mazzei who spoke about the “pouvoir constitutionnel” commenting on the legal and political developments in the American States one year before Sieyes’ contribution, Mazzei, Recherques: Historiques et Politiques sur les Etats-Unis, 1788, pp. 43-44, quoted by Pasquino, 2013, p. 1004, note 25. Holding that Rousseau already advanced a distinction between the constituent and the constituted powers even though he did not use that terminology see Colon-Rios, 2016 and 2020, p. 56.3 On Sieyes’ pouvoir constituent not bound by any normative constraint see critically Arendt, 1963, p. 162; Arato, 1995-1996, p. 207; and Arato, 2000, pp. 250-252.
4 On such links between the theory of the constituent power and the theory of sovereignty in Carl Schmitt see Dyzenhaus, 2007, p. 130 and Kalyvas, 2005, p. 226.
5 “[W]ith the democratic doctrine of the constitutional power of the people (which was directed against the existing absolute monarchy), Sieyes connected the antidemocratic doctrine of the representation of the popular will through the constituent National Assembly” Schmitt, 1993, p. 80.
6 Constitutions promulgated with referendum are Burundi (2005 and 2018), Central African Republic (2004), Comoros (2001), Cuba (2019), Democratic Republic of Congo (2001), Cote d’Ivoire (2000), Bolivia (2009), Ecuador (2008), Egypt (2012 and 2014), Guinea (2010), Iraq (2005), Kenya (2010), Kyrgyzstan (2010), Madagascar (2010), Morocco (2011), Myanmar (2008), Niger (2010), Qatar (2003), Rwanda (2003), Senegal (2001), Serbia (2006), Syria (2012), Thailand (2007), and Zimbabwe (2013). The Constitutions promulgated without referendum are Afghanistan (2004), Angola (2010), Bahrain (2002), Bhutan (2008), Chad (2018), Dominican Republic (2015), East Timor (2002), Fiji (2013), Finland (2000), Kosovo (2008), Libya (2011), Maldives (2008), Montenegro (2007), Mozambique (2004), Nepal (2007 and 2015), Somalia (2012), Sudan (2005), South Sudan (2011), Swaziland (2005), Tunisia (2014), and Turkmenistan (2008).
7 Among the rich literature on the empirical sources of civil war provided from the fields of political and economic sciences may be highlighted the works of Boix, 2008; Fearon and Laitin 2003; Horowitz, 1985; and Kalyvas, 2006.
8 Azar Gat mentions other examples of wars among States that might be qualified as liberal democracies at least for the standards of the time in which the war was fought. So, the Boer republics fighting Britain in 1899-1902, the USA fighting Spain in 1898 and leading to Cuban and the Philippines independence, the conflict between “the arguably liberal Britain” and the “variably democratic and liberal” revolutionary France in 1793-1802. See Gat, 2008, p. 578
9 Political sciences have developed a rich literature, in contexts of transitions from authoritarian regimes to liberal democracies, which sees a constitution as, fundamentally, a decision on the allocation of power (see, for instance, Karl, 1990; Karl and Schmitter, 1991; or O’Donnell and Schmitter, 1986).
10 On predation as a source of political power and the consolidation of legal orders for the benefit of extractive elites see, generally, Scheidel, 2017, particularly pp. 48-53.
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