The relationship between constituent power and national sovereignty some theoretical considerations

Author:Andreea Ana-Maria Alexe
Position:PhD Candidate, Craiova University
Pages:4-12
SUMMARY

Constituent power is the base of modern democracy, for two main reasons, a historical and analytical one. First, the birth of the modern doctrine of popular sovereignty coincides with the conceptual advent of constituent power. From a historical point of view then, constituent power and modern democracy are intrinsically associated from their beginnings in the idiom of popular sovereignty. Secondly, there is a profound systematic and conceptual analogy between constituent power and democracy, insofar as they both describe collective acts of self-legislation and public events of self-alteration. From this elective affinity, democratic constituent politics evokes the principle of liberty as political autonomy, whereby the members of a collectivity deliberately constitute the political forms of authority in order to organize and institutionalize their common life. The addressees of the law become its authors. Hence, formulating popular sovereignty as constituent power is to affirm the basic democratic value of self-government.

 
CONTENT
4 ANDREEA ANA-MARIA ALEXE
ARTICLES (STUDIES, DISCUSSIONS, COMMENTS)
THE RELATIONSHIP BETWEEN CONSTITUENT POWER
AND NATIONAL SOVEREIGNTY
SOME THEORETICAL CONSIDERATIONS
Andreea Ana-Maria ALEXE
PhD Candidate, Craiova University 
Abstract:
Constituent power is the base of modern democracy, for two main reasons, a historical and
analytical one. First, the birth of the modern doctrine of popular sovereignty coincides with the
conceptual advent of constituent power. From a historical point of view then, constituent power and
modern democracy are intrinsically associated from their beginnings in the idiom of popular
sovereignty. Secondly, there is a profound systematic and conceptual analogy between constituent
power and democracy, insofar as they both describe collective acts of self-legislation and public events
of self-alteration. From this elective affinity, democratic constituent politics evokes the principle of
liberty as political autonomy, whereby the members of a collectivity deliberately constitute the
political forms of authority in order to organize and institutionalize their common life. The
addressees of the law become its authors. Hence, formulating popular sovereignty as constituent
power is to affirm the basic democratic value of self-government1.
Keywords: constituent power, popular sovereignty, modern democracy, self-legislation, basic
democratic value of self-government, the people.
1. Outlining the notions
Constituent power is generally defined as the power that has the right to adopt
or amend a constitution. Both recipient and direct beneficiary of the provisions
enshrined in the constitution is the people. Given that the people is the sole
This work was supported by the strategic grant POSDRU/159/1.5/S/141699, Project ID
141699, co-financed by the European Social Fund within the Sectorial Operational Program Human
Resources Development 2007-2013.
 E-mail: andreea_alexe@yahoo.com.
1 (http://www.politicalconcepts.org/constituentpower/13/)
Law Review vol. I, issue 1, Januar
y
-June 2015, p. 4-12
The relationship between constituent power and national sovereignty … 5
beneficiary of the fundamental law, and that this law defends and lay down the
fundamental rights and freedoms, it is natural for the entire content of the
constitutional text to match its sovereign will, because only in this way we can talk
about the "strengthen" of the social contract between the governed and the
governors, therefore the rules are established with the consent of those who are
led, excluding the distrust of the individual that alienates its share of sovereignty.
Thus, we can say that the constituent power belongs to the sovereign people,
the only one who has the legitimate ability to grant a constitution. Therefore, state
power is legitimate if the sovereign power resides in the people. Due to its
sovereignty, the people are entitled to take any decision, to determine the nature of
the political system and the form of the government or state structure2. Similarly,
the Constitution - established by the will of the people who invested a Constituent
Assembly with the power to create a constitution that would represent their
interests -, also contains the provisions and the limits to exercise the derived
constituent power. Derived constituent power, as prof. Ion Deleanu says is derived
because "its structure and limits are set by a previous constitution. (...) It [the
constituent power] is therefore a constitutional power predetermined by
constitutional rules in terms of its structure and powers: the power to review.
Overcoming these powers is a fraud on the Constitution, because, in reality, under
the pretext of the reviewing, the original constituent power substitutes itself to the
derived constituent power"3. The derived constituent power is legitimate because
is expressly stated in the constitutional provisions.
Art. 2 paragraph (1) of the Romanian Constitution states: “(1) The national
sovereignty shall reside within the Romanian people, that shall exercise it by
means of their representative bodies, resulting from free, periodical and fair
elections, as well as by referendum”. As we can observe the constitutional
provisions establish an inextricable link between sovereign and people. Notions as
popular sovereignty, national sovereignty and state sovereignty define the very
existence of the State, only he has the freedom to decide its internal and external4
rights, obviously in the limits imposed by the constitutional text.
Furthermore, we need to establish a conceptual clarification between the
notions of popular sovereignty, national sovereignty and state sovereignty, as it was
done in doctrine5:
A. popular sovereignty means the people's right to decide its fate, to establish
the political line of the state and the structure of the authorities that control their
activities;
2 C. Ionescu, Tratat de drept constituional contemporan, 2
nd ed., C.H. Beck Publishing House,
Bucharest, p. 326.
3 I. Deleanu, Instituii şi proceduri constituionale, C.H. Beck Publishing House, Bucharest, p. 223.
4 E.S. Tnsescu, în I. Muraru, E.S. Tnsescu, Constituia României. Comentariu pe articole, C.H.
Beck Publishing House, Bucharest, p. 21.
5 I. Muraru, E.S. Tnsescu, Drept constituional şi instituii politice, 14 ed., vol. II, C.H. Beck
Publishing House, Bucharest, p. 45.
6 ANDREEA ANA-MARIA ALEXE
B. national sovereignty is based on the sociological idea of nation6 considered
to be a moral person who has a will of its own, distinct from the individuals who
compose it at a precise moment, this will is expressed by nation representatives
designated in accordance with the procedures upon they had agreed.
C. State sovereignty is a general feature of state power, therefore supremacy
and independence of government is the will of the whole society.
However, we find extremely interesting the role that is assigned to the people
within this paragraph (art. 2 paragraph 2), sovereignty is exercised through "free,
periodical and fair elections", thus is postulated the people's right to decide its fate,
to establish the political line of the state and structure of authority and to control its
activity, even if it means to sanction it at new elections. Another form of
manifestation of the people’s will is the referendum, and it is clearly the most
effective and direct feedback of the popular will. Retaining referendum as a means
of direct participation of the people in exercising state power, the Constituent
legislator reaffirms the people the statue of constituent power holder. The
constitutional amendment should take into account the existing procedural rules
defined in the text of the Constitution7, even if we are referring to referendum as a
way of approving the revision of constitutional texts by the people.
Popular sovereignty resides from "the equal shares of sovereignty which
belong to each citizen, from every molecule that enters into the notion of the
people, as a whole. In other words, every citizen is a registered keeper of a share of
sovereignty and the sovereignty of the people is the sum of all individual wills.
Government is entrusted, by suffrage, not sovereignty – because it is inalienable,
but its exercise"8. Thus, given the close link between the concept of people
sovereignty and constituent power, it is important to determine the content of
sovereignty and its limitations, in this regard, prof. Ion Deleanu’s definition seems
comprehensive "sovereignty is a feature of state power that allows it to decide in
all internal and external state affairs, without any interference, respecting the
sovereignty of other states and all the generally-accepted international law
principles. Therefore sovereignty involves the conjugation of two components: the
supremacy of state power and the independence of that power.9"
However, according to prof. Maurice Hauriou 10 , among other types of
sovereignty, we can talk about institutional sovereignty and the sovereignty of the
political will of the people. These two are not incompatible, they find themselves a
6 The nation, as prof. I. Deleanu states, quoting J. Giquel, incorporates the past, the present and
the future, not only the sum of all those who live on a territory. Deleanu, I. (2006). Instituii şi proc edure
constituionale, C.H. Beck Publishing House, Bucharest, p. 373.
7 E.S. Tnsescu, în I. Muraru, E.S. Tnsescu, Constituia României. Comentariu pe articole, C.H.
Beck Publishing House, Bucharest, p. 1452.
8 I. Deleanu, Instituii şi proceduri constituionale, C.H. Beck Publishing House, Bucharest, p. 372.
9 I. Deleanu, Instituii şi proceduri constituionale, C.H. Beck Publishing House, Bucharest, p. 376.
10 M. Hauriou, Precis de droit constitutionnel, Recueil Sirey, Paris, pp. 285-297.
The relationship between constituent power and national sovereignty … 7
complementary relationship. Institutional sovereignty implies the political will of
each political institution, which in principle must not be in conflict with the
sovereign will of the people. The institutional sovereignty means achieving the
objectives determined by the formation of the political will of the people, to be the
expression of the sovereign will of the people, laws and, in general, all the
decisions that the direct and indirect representatives of the people (government
and public administration) take due to their mandate, the people can express itself
through formal, legal procedures upon the legitimacy and appropriateness.
The concepts of sovereignty and constituent power are closely linked to the
idea of democratic regime, they are the structural pillars of democracy, the State
organization is design by those who hold power management and it is conceived
by the people through a sincere choice made on the basis of universal suffrage. In
this regard, identifying the holder of sovereignty, prof. Paul Negulescu states: "The
nation that underpins democratic edifice is, as texts say, the one who exercise
sovereignty; all powers emanate from her. But the organized nation expresses its
will? The Nation is represented by electorate. But who is the electorate? They are
representatives, deputies and senators. In other words, the governed create the
govern; they give the electorate a lower or higher content, they extend or restrict
the right to vote in various categories of citizens by their good will. (...) The
Constitution is the organizing state law, but the State is a form of artificial legal
enveloping of the concrete reality that is human society, it needs altogether: family
relationships, economic, religious, social dimensions to give it unity and
consistency. The State is not how the legal framework in which develops the
society, but also its individuals and institutions. (...) In other words, to legitimize
the power of the governors the law established that the manifestations of their will
is the expressions of the will of the State. This will supposedly is called the State
Sovereignty. This will shall be supreme, there is no another will to command the
State. So sovereignty appears as a quality that gives the holder the right to control
and not be controlled 11". In this regard, the State, the holder of sovereignty has a
character of perpetuity, and it’s acts have a permanent character, even if there is
succession of generations, even if the nation, a body was in perpetual
development, changes its configuration and its chooses other governments over
time. Analyzing this situation, prof. Paul Negulescu trying to answer one of the
most important issues of public law, the legitimation of power, states: "when, in a
country, a group of people, social class try by force to seize power, it must keep all
this dominion by force. The governors seek to transform this government, a
government gain only by force, into a government of entitlements willingly
accepted by the government. Because for legitimizing the power the people must
believe in the legality, the legitimacy of government."
11 P. Negulescu, Principiile fundamentale ale Constituiunei din 27 februarie 1938, Atelierele Zanet
Corleanu, Bucureşti, 1939, p. 22, 48, 49.
8 ANDREEA ANA-MARIA ALEXE
The dynamics of European integration has generated a new situation on the
reception by European law by states, especially regarding its priority application,
so for this study we will consider as a representative example the situation of the
Romanian state, where the European legal order has a "supra-constitutional" value
as the treaties are superior to domestic law12, considering whether we can speak of
interference of European law over domestic law and about injuring the national
sovereignty.
2. Different forms of derived constituent power
The Constitution amendment in 2003 aimed, among others, at the creation of a
constitutional framework on the implementation process of EU integration and
accession to NATO, and also the adequacy of some regulatory principles of NATO.
According to the Explanatory Memorandum of Law no. 429 from 23 October 2003
amending the Constitution of Romania: Romania's integration in the contemporary
structures of Euro-Atlantic democracies will provide a new perspective on the
country's economic, social and cultural future. The revision of the Constitution is
an expression of historical necessity, a characteristic evolution in contemporary
democracies, as important as the great moments that have marked the society and
the modern state: Romania's independence, the reunification, and the integration
of our state in the security of large modern democracies13. Accordingly, the main
objective of the constitutional revision is to ensure the constitutional basis for
achieving EU integration. It is an endpoint for both the procedure and the
competence of the legislative power and it implies important constitutional
consequences, for this purpose, relevant to this study are the newly introduced
constitutional provisions, already EU law principles recognized such as
preemption of the European law on internal legislation and the priority of the
international human rights regulations.
The obvious question arising is whether this way is impaired in any way the
national sovereignty, and if the Constitution - the expression of the sovereign will
of the people – still represents the ideals and the values of the people, and if, after
this amendment, the derived constituent power respected the legal limits imposed
by the constitution?
Art. 20 paragraph (2) of the Constitution states that if there is a conflict
between the covenants and international treaties on fundamental human rights
Romania is a party to, and the national laws, the international regulations shall
take precedence unless the Constitution or laws comprise more favorable
constitutional provisions. Art. 11 of the Constitution contains several provisions
important to the Romanian state, the state pledges to fulfill as such and in good
faith "the obligations deriving from the treaties it is a party", thus "Constituent
12 R. Schutze, Dreptul constituional al Uniunii Europene, Ed. Universitar, p. 176-220.
13 (http://www.cdep.ro/proiecte/2003/200/20/7/em227.pdf) – last accessed 28.09.2014
The relationship between constituent power and national sovereignty … 9
Assembly expressed itself through the latin principle pacta sunt servanda"14
therefore, we must take into consideration that the treaties that were signed or
ratified by the state, are by law, part of the domestic law.
Art. 148 of the Constitution creates the necessary accession to the constituent
treaties of the Union, consecrating, on one hand, the transfer of competences to the
EU institutions and, on the other hand, the joint exercise of the competences laid
down in the Treaties with the other Member States. Paragraph (2) enforces the EU
provisions and overrides those contrary to the European law, according to the Act
of Accession. Paragraph (3) confreres the amending acts the European Union
constituent treaties the same characters, an important example is the situation of
the Lisbon Treaty. The Constitutional provisions through paragraphs (4) and (5)
state that the Government, the judicial authority and the President have the
obligation to enact all the duties undertaken by the Act of Accession and to ensure
the priority of EU law over national law.
A particularly important explanation is found in the content of paragraph (1)
of art. 148 which states: Romania's accession to the constituent treaties of the
European Union, in order to transfer some powers to community institutions, as
well as to exercising in common with the other member states the abilities
stipulated in such treaties, shall be carried out by means of a law adopted in the
joint sitting of the Chamber of Deputies and the Senate, with a majority of two
thirds of the number of deputies and senators - this provision outlines the special
situation that is required by an international act on the transfer of powers to the
European Union, thus the constituent legislature imposed this special condition in
order to avoid a transfer of powers to the detriment of national sovereignty. In this
respect, as stated by Prof. Ion Deleanu "transfer of power in favor of European
Union institutions does not mean the transfer of a share of sovereignty, on the
contrary, it represents a manifestation of sovereignty through self limitation in
matters of state power" 15 . Likewise, for utmost importance is the Decision
no. 148/2003 of the Romanian Constitutional Court ruling on issues relating to the
relativization of sovereignty, the Court states: "in the current era of globalization
the issues regarding: humanity, interstate developments, worldwide
inter-communication, the concept of national sovereignty can no longer be
conceived as absolute and indivisible without taking an unacceptable risk of
isolation. However, the Court notes that, because the desire for accession to the
Euro-Atlantic structures is legitimated by the national interests of the country,
sovereignty can not be opposed to the goal of accession". Furthermore, the Court
makes an analysis of the concept of sovereignty in relation to art. 148 (in revised
form): state sovereignty "as a feature of its peremptory, does not fall under Art. 148
14 C. Ionescu, Comentariul articolului 1 din Constituia României, Pandectele Române nr. 7/2014.
15 I. Deleanu, Instituii şi proceduri constituionale, C.H. Beck Publishing House, Bucharest, p. 378,
nota 4.
10 ANDREEA ANA-MARIA ALEXE
(art. 152 revised – n.a.) provisions of the Constitution, which sets limits to the
constitutional revision, but, instead, is regarding the independence of the
Romanian state. Independence is an intrinsic dimension of national sovereignty,
even if it is independently established in the Constitution. Essentially, the
independence is the outside dimension of national sovereignty, giving full freedom
of expression to the state in its international relations16. In this respect it is clear that
joining the Euro-Atlantic structures represent the independent expression of the
will of the Romanian state, and it is not a manifestation of will imposed by an
entity outside the state. From this point of view, the Court finds that the inclusion
of the two new articles in the Constitution - Art. 1451 (art. 148 revised - na) and 1452
(art. 148 revised - na) – are not a violation of constitutional provisions regarding
the limitations of the amending. On the other hand, the Court also finds that
joining the European Union, once performed, involves a series of consequences of
constitutional type which might occur without proper regulation. The first of these
consequences should be the integration of the acquis communautaire into national
law and to determine the relationship between community provisions and national
law. The solution proposed by the authors of the review initiative envisages the
implementation of Community law in the national legal system and setting
priority application of Community law over the provisions of the national laws in
accordance with the provisions established by the Act of Accession. The result of
accession is that the EU Member States agreed to situate the acquis
communautaire - EU constitutive treaties and regulations - in an intermediate
position between the Constitution and other laws when it comes to mandatory
European legislation. The Constitutional Court finds that the provision contained
in art. 1451 does not invalidate the constitutional provisions referring to the
revision limits or other provisions stated in the Basic Law, it is a particular
application of the provisions of the current art. 11 paragraph (2) of the
Constitution, which states that treaties ratified by Parliament, by law, are part of
national law. Considering all these aspects, it is clear that the accession to the EU
and Euro-Atlantic structures was achieved in accordance to the independent
expression of will of the Romanian people, without violating any provision
regarding amendment limits. Furthermore, we must take into consideration the
international political and economic situation and also the principles of
international law, therefore we outline the principle of sovereign equality of states;
however, we must keep in mind that the "national state is an element in the
international system and, as such, he must accept all the incumbent servitude
necessarily, as a part of a whole. So the only beneficial solution is independence in
independence, and national sovereignty in a sovereignty system"17. Sovereignty, as
16 R. Carp, I. Statomir, Limitele Constituiei. Despre guvernare, politic şi cetenie în România, C.H.
Beck Publishing House, Bucharest, p. 32-38.
17 I. Deleanu, Instituii şi proceduri constituionale, C.H. Beck Publishing House, Bucharest, p. 376.
The relationship between constituent power and national sovereignty … 11
seen today, is quite different than it was in the past, therefore we can talk about a
diachronic development of this concept. Sovereignty finds itself an independent
relationship with other sovereignties, proving this way adaptability from the
European integration perspective.
3. Conclusions
Early modern political theory assumed the relevance of these questions for
legitimacy of law and politics. One set of classical guidelines came in the form of
the social contract theories. But contractarianism did not address the specific
sub-questions of the institutional origin and authorship of the first rule and first
author; neither did it ask about the relevance of the original authorship and choice
for the established legal and political regime. An important attempt to address
these sub-questions assumes the shape of the theory of the constituent power. In its
classical 18th century expositions (Abbe Sieyes, The Federalists, deep differences
between them notwithstanding), the constituent power is presented as the source
of the constitution (the constitution-making power). The constitution is the first
and highest juridical norm, the rule of recognition for the whole legal and political
system. It follows that the constituent power is not ‘merely’ about writing and
enacting a constitution. Rather, it is a power that establishes political community,
by creating and institutionalizing its members (citizenship), the relationships
among members (basic rights), and political authority bound by the requirements
of constitutionalism (the ‘constituted power’).
Theories of the constituent power rest on a difficult to comprehend dualism
between the original power and the constituted powers: they often assume that the
constituent power remains beyond the limits of the established constitutional
democracy. While they typically hold that the bearer of this original power is the
people (nation) as a pre-legal category, constitutionalism sees the people as the
legally established and constrained entity. This leads to the problem of the circular
reasoning (‘the paradox of the constituent power’): the ultimate author of the
constitution is the constitutional creation. The analysis of the concept of sovereignty
in relation to the constituent power brings a new perspective on the evolution of
these two concepts, which over time provide new ways to describe the
social-historical realities.
References
[1] R. Carp, I. Statomir, Limitele Constituiei. Despre guvernare, politic şi cetenie în
România, C.H. Beck Publishing House, Bucharest, 2012.
[2] I. Deleanu, Instituii şi proceduri constituionale, C.H. Beck Publishing House,
Bucharest, 2006.
[3] M. Hauriou, Précis de droit constitutionnel, Recueil Sirey, Paris, 1921.
12 ANDREEA ANA-MARIA ALEXE
[4] C. Ionescu, Tratat de drept constituional contemporan, 2nd ed., C.H. Beck Publishing
House, Bucharest, 2008.
[5] C. Ionescu, Comentariul articolului 1 din Constituia României, Pandectele Române
nr. 7/2014.
[6] I. Muraru, E.S. Tnsescu, Constituia României. Comentariu pe articole, C.H. Beck
Publishing House, Bucharest, 2008.
[7] I. Muraru, E.S. Tnsescu, Drept constituional şi instituii politice, 14 ed., vol. II, C.H.
Beck Publishing House, Bucharest, 2013.
[8] P. Negulescu, Principiile fundamentale ale Constituiunei din 27 februarie 1938,
Atelierele Zanet Corleanu, Bucureşti, 1939.
[9] R. Schutze, Dreptul constituional al Uniunii Europene, Ed. Universitar, 2011.
[10] (http://www.politicalconcepts.org/constituentpower/13/)
[11] (http://www.cdep.ro/proiecte/2003/200/20/7/em227.pdf)