Ernst-Wolfgang Böckenförde and the politics of constituent power

Abstract

It is often held that the legitimacy of a democratic constitution depends on its production by constituent power. This paper argues that the notion of legitimation by constituent power faces a dilemma: if the authenticity of an exercise of constituent power depends on conformity to existing constitutional law or on requirements of justice that are antecedent to the actual process of constitution-making, the appeal to constituent power must lack the paramount normative significance that theorists of constituent power attribute to it. Defenders of constituent power typically respond to this problem by radicalising the notion of constituent power. But if exercises of constituent power are to be unbound from all antecedent normativity, it is argued here, they cannot legitimate the constitutional product. This case against excessively strong conceptions of popular sovereignty is developed through a critical discussion of Ernst-Wolfgang Böckenförde’s and Carl Schmitt’s theories of constituent power.