“Constituent Power” or Degrees of Legitimacy?

Abstract

Professor Roznai’s book is a terrifically executed account of a constitutional theory justifying the concept of unconstitutional constitutional amendments and the practice of judicial review thereof. The theory rests on the premise that constitutions are made by a ‘constituent power’, which establishes ‘constituted powers’ of the government and which expressly or implicitly defines the scope and nature of an amendment of the constitution. The powers of amendment are sui generis, situated between ‘original (or as he calls it “primary”) constituent power’ to make a constitution in the first place and the constituted powers of government under that constitution. The amendment power, he argues, should be understood as a delegated power, subject to the limitations, express or implicit, of the original constitution. Given his conceptual premise – that constitutions should be understood as created by a ‘constituent power’, a premise widely accepted in constitutional theory – his argument that the amending power lies between pure constituent power and purely constituted powers has great persuasive value. He rejects the claim that the amending power is a ‘constituent power’, arguing instead that the amending power possesses ‘characteristics of both constituent and constituted power’, and should be treated as sui generis. (Id at 112–13) He argues that the amending power should be understood both as bounded by the procedures set forth in the constitution for amendment and by a substantive constraint not to annihilate the fundamental political decisions of the constitution. In this respect, it should be understood as a ‘delegated’ power, neither an original constituent power nor simply a regular constituted power, but a power exercisable by or on