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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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Popular Sovereignty and Revolutionary Constitution-Making

Popular Sovereignty and Revolutionary Constitution-Making

(p.161) 8 Popular Sovereignty and Revolutionary Constitution-Making
Philosophical Foundations of Constitutional Law

Richard Stacey

Oxford University Press

The moment between the abrogation of an old constitution and the adoption of a new one can be thought of as a ‘constitutional interregnum’. In this moment, there is no constitutional foundation for the exercise of power, including the power to make a new constitution. In the vacuum of fundamental law that characterizes the constitutional interregnum, a constitution-maker may claim the authority of popular sovereignty as the source of its constitution-making power. This chapter rejects the view that popular sovereignty is unfettered or unlimited when it is exercised to craft a new constitutional order, and that a constitution-maker backed by the authority of popular sovereignty is bound by neither procedural nor substantive constraints. This chapter argues on the contrary that the claim to popular sovereignty brings with it a commitment to the inherent principles of popular sovereignty, and to the constitutional protection of civil and political rights and equality.

Keywords:   popular sovereignty, revolution, constituent power, constitutional interregnum, civil and political rights, equality

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