El poder constituyente, entre el mito liberal y el cuestionamiento contrarrevolucionario

Abstract

Part I of this article starts by approaching the idea of the constituent power of the people, typical of liberal constitutionalism, as posited by Sieyès and received by the political and legal system currently in force in the West. Then comes a demonstration of the unviability of the concept that proposes that someone could be entitled to social or political command without exercising it (as postulated by the so-called ?sovereignty of the people?): as a matter of fact, social and political command is a form of legal power essentially linked to the performance of a duty, and therefore the holder of that power will be the person who (legitimately) exercises command; some remarks on the so called sovereignty ?in the State? and on the real sovereignty of the State; and finally a suggestion in favor of a realistic view of the causal role of consensus at the constitutional level. Part II aims to give a systematic answer to the question of the constituent power. Firstly, the two terms that make up the locution are analyzed (i. e., ?political power? and ?constitution?). Then it is made clear that the constituent power is one of the functions of political power. Consequently, it is concluded that the principle of the constituent power of the people (or the nation) has no foundations in objective reality. Part III focuses on the modern counterrevolutionary assumptions concerning the constitution (as posited by Joseph de Maistre) and demonstrates how questionable are the grounds ?particularly for a thomist philosophy- from which a critical thesis against the reality and legitimacy of constituent power can be made by such position.