El poder de una Asamblea Constituyente: reflexiones acerca de la Constitución de 1991 y su artículo 376 [The Power of a Constituent Assembly: Reflections on the Constitution of 1991 and its Article 376]

From the perspective of constitutional theory, there are two key questions that emerge in discussions about constitution-making. First, what mechanism should be used for the exercise of constituent power? The answer that the practice of contemporary constitutionalism has given to that question is clear: a Constituent Assembly. The second question, the question in which this article is focused, is what is (or should be) the nature of the power of a Constituent Assembly? The answer that the practice of contemporary constitutionalism has given to that question is that such a power has a sovereign nature. My purpose is to show that that answer should be rejected. In advancing that argument, I will use as my main example the Colombian case and Article 376 of the Constitution of 1991.