Fundamentals

What Is Constituent Power, Who Exercises It, and What Are Its Limits?

By Daniel Sardá · Published on August 31, 2026

9 min read1,771 words

Constituent power creates or replaces a political community’s constitutional framework. Understanding it requires distinguishing its holder, the body that exercises it, and the limits on its use.

Constituent power is the authority to create a constitution or replace a political community’s constitutional order. Under a widely used doctrinal classification, it also includes the authority to amend a constitution through the procedures that constitution establishes. Its purpose is to define the fundamental rules: which institutions exist, what powers they hold, how they relate to one another, and which rights they must respect.

It is not synonymous with a constituent assembly. Nor is it equivalent to Congress, the government, or the courts. An assembly may be one of the bodies entrusted with exercising a constituent function, while ordinary public authorities act under powers already granted to them by a constitution.

The distinction may sound technical, but it answers a fundamental question: where does the authority that establishes and limits public power come from? It also helps explain why invoking “the people” is not enough to justify every procedure or outcome.

Key idea: Constituent power is the authority to establish the fundamental rules; a convention, parliament, or referendum is one possible means of exercising it, not the authority itself.

The authority that establishes the constitutional framework

A constitution is more than a set of higher-order legal rules. It organizes political power, assigns responsibilities, and recognizes rights. The authority that establishes this framework therefore occupies a different position from the institutions that begin operating within it.

The most influential modern formulation of this distinction is associated with Emmanuel-Joseph Sieyès. In What Is the Third Estate?, published in the context of the French Revolution, he argued that a constitution could not be the work of the powers it had itself constituted. A delegated power could not, on its own, alter the terms of its delegation. Sieyès does not provide a universal definition for the present day, but he systematizes a distinction that remains central to constitutional law: on one side is the authority that establishes the order; on the other are the authorities created by that order.

This idea points to two basic functions:

• Creating or replacing the constitutional order when a community adopts a new fundamental framework.
• Amending an existing constitution when change takes place through an authority and procedure established by that constitution.

Legal scholars commonly call the first original constituent power and the second derived constituent power. The latter term is not universally accepted, however. Some scholars prefer to treat the amending power as a constituted power precisely because its authority comes from the constitution and remains subject to it.

Holder, exercise, and institutional body are not the same

In the democratic tradition, constituent power is said to be held by the people or the nation. These terms are not perfectly interchangeable: their meaning depends on the relevant political theory and constitutional text. The essential point is to separate the source of legitimacy from the specific mechanisms through which decisions are made.

The holder may act through elections, specially mandated representatives, a convention, parliament, a referendum, or some combination of these instruments. This variety shows that holding constituent power and exercising it are distinct matters.

A constituent assembly, for example, may be tasked with deliberating and drafting a text. That mandate does not automatically make it the owner of popular sovereignty as a whole, nor does it entitle the assembly to presume that it is free from rules, responsibilities, or the terms of its mandate. Extraordinary representatives perform a special function, but the body itself is not identical to the community from which its authority derives.

The distinction helps organize three questions:

1. Who legitimizes the authority? Democratic theory, with varying nuances, answers: the people or the nation. 2. Who makes the specific decisions? That depends on the chosen mechanism: voters, representatives, parliament, or a convention. 3. Under what mandate and procedure do they act? The answer depends on the constitutional order, the process by which the body was convened, and the accepted rules for change.

Conflating these questions enables a dangerous leap: assuming that a body, simply because it calls itself constituent, may claim the full authority of the holder without further justification.

Original constituent power and amendment power

The difference between creating and amending a constitution does not depend solely on the scale of the change. It concerns, above all, the source of the authority and the framework within which it is exercised.

Original constituent power

Power is described as original when it creates or replaces the constitutional foundation of a community. It may emerge with the formation of a new state, a break with a previous regime, or a process intended to replace the existing framework in its entirety.

“Original” does not necessarily mean spontaneous, direct, or free from organization. A founding process also needs rules for convocation, representation, deliberation, and ratification if it is to claim democratic legitimacy. Its defining feature is that its claim to authority does not arise from an ordinary power granted by the constitution it seeks to replace.

Derived constituent power, or amendment power

Amendment power changes the existing text through authority granted by that same text. It is therefore usually subject to more demanding requirements than ordinary legislation: supermajorities, approval by successive legislatures, a referendum, or special waiting periods, among other possibilities.

There is no universal formula for constitutional rigidity. As International IDEA and the Venice Commission explain, institutional design must strike a balance: it should permit change when necessary while preventing a temporary majority from hastily altering the shared rules for its own advantage.

Key idea: Original constituent power seeks to establish the framework; amendment power operates under authority granted by the existing framework. Their sources of authority and their limits are therefore not identical.

Why it should not be confused with constituted powers

The executive, legislative, and judicial branches are constituted powers. They exist because the constitution creates them, assigns their functions, and establishes checks on their authority. Even an ordinary legislature cannot be equated with constituent power: passing laws within a constitution is not the same as establishing the system’s fundamental rules.

This has a practical consequence. A parliamentary majority may enjoy electoral support yet still lack the authority to amend the constitution through ordinary legislation. Electoral legitimacy does not erase the distinction between legislative authority and amendment authority.

Separation of powers operates within the constitutional framework. It distributes responsibilities so that no single institution concentrates public authority. Constituent power defines that architecture; constituted powers must respect it until it is changed through a constitutionally authorized process or replaced through a genuine founding process.

Does constituent power have limits?

The answer depends on whether the question concerns amendment power or original constituent power. Treating both as unlimited conceals important differences; claiming that all limits operate in the same way also oversimplifies a genuine controversy.

Identifiable limits on amendment power

The limits on amendment power can be identified in each constitution. Common examples include:

• Procedural limits: supermajorities, multiple votes, intervening elections, or popular ratification.
• Temporal limits: prohibitions on beginning or completing amendments during certain states of emergency or before a specified period has elapsed.
• Substantive limits: clauses that exclude certain principles, institutions, or rights from amendment.

Germany’s Basic Law offers a familiar example: it requires two-thirds majorities and places certain basic elements of the constitutional order beyond the reach of amendment. The Spanish Constitution, in turn, distinguishes between an ordinary procedure and a more demanding one for certain matters, with special approval and referendum requirements. These are examples of constitutional design, not universal models.

The role of courts also varies. Some systems permit forms of judicial review of constitutional amendments; others restrict them. Even where entrenchment clauses exist, comparative constitutional law offers no single answer as to who should enforce them or how broadly.

The controversy over limits on original constituent power

One influential view holds that original constituent power is legally unlimited because it does not receive its authority from the constitutional order it intends to replace. If it were entirely subordinate to that order, the argument goes, it could not establish a new one.

Yet independence from the existing order does not necessarily mean that any body invoking the people may act however it wishes. The claim that original constituent power is unlimited remains contested, not universally accepted. Raffael Fasel, for example, reconstructs Sieyès’s theory in a way that recognizes limits arising from mandate, liberty, rights, and the common interest. This is a significant scholarly interpretation, not settled doctrine.

It is also useful to separate several forms of evaluation:

• Legal validity: whether the conduct satisfies the rules that purport to govern it.
• Democratic legitimacy: whether there is genuine popular authorization, adequate representation, and an opportunity for deliberation.
• Political and moral justification: whether the process protects rights, prevents domination, and produces acceptable institutions.

A process may win many votes and still violate rights; it may also satisfy formal requirements while lacking free participation. Neither problem disappears through the use of the word “constituent.” From the standpoint of liberal constitutionalism, popular sovereignty is a source of legitimacy, but it does not replace the need to limit power and protect individual liberty.

Warning: A majority may authorize constitutional change, but majority support does not automatically make every procedure valid or every outcome compatible with individual rights.

Constitutional change, rights, and limited government

Limits also raise a serious objection: an unjust constitution should not bind future generations forever. Entrenchment clauses, in turn, may seem like an attempt by one generation to govern those that follow. An excessively rigid design can therefore block necessary reform and erode the legitimacy of the system itself.

The institutional answer is neither to prevent all change nor to declare anyone who promises it unlimited. It is to combine workable paths to reform with public deliberation, known rules, meaningful participation, and safeguards for those outside the majority. A constitution must be able to adapt without becoming subject to every passing decision.

Understanding constituent power ultimately requires holding two ideas together. A political community needs the authority to establish or revise its fundamental rules. But that authority must not be confused with the body that temporarily exercises it or turned into a rhetorical license to concentrate power.

The decisive constitutional question is not only who may change the rules. It is also under what mandate, through which procedure, and with what safeguards for liberty. That is the difference between invoking the language of sovereignty and building an order of limited government.