On the limits of elitist theories of constituent power

In times of crisis it is necessary to revisit the theorization of radical change and the mechanisms through which it can be realized in a peaceful and orderly manner. Joel Colón-Ríos’s Constituent Power and the Law is a timely book that promotes our understanding of the concept of constituent power as well as of its juridical application. Despite its contributions, in this critical review I claim that, because the book is thought through an elitist democratic theory framework that presupposes the unitary nation-state, it excludes the republican theory tradition that is premised on the socio-ontological division between the powerful few and the many, and that conceives the periodic exercise of constituent power by the people as necessary to keep a republic uncorrupted. In addition, I take issue with Colón-Ríos’s interpretation of Rousseau as a supporter of the direct exercise of foundational constituent power by the people in (silent) primary assemblies, and the resulting reduction of the people’s exercise of constituent power to mere authorization and ratification—to the detriment of processes involving popular deliberative decisionmaking that lead to a mandate. Finally, I critically engage with his conceptualization of the ‘material constitution,’ arguing that the definition he applies is too broad to be useful. Including formal and substantive ordering rules and principles as part of the strictly material interpretation of the constitution, which emerges from power relations, conceals the specific contributions that the material framework brings to the study of constitutions and the law.