The Aporias of constitutionalism: the question of constituent power and democracy

Abstract

This article discusses the paradox between democracy and constitution. It emphasizes to think constitutional amendment as a political problem not only a juridical issue. It first highlights some approaches to the problem of constitutional amendment such as proceduralism and substantialism and then criticizes them ignoring the fundamental political or participatory dimension of a constitution. Both of them ignore especially the problem of founding political subject that is important for the legitimacy of the constitutional amendment. In this regard, it suggests that it is essential to bridge the gap between democracy, political subject and constitution. One of the main claims of this paper is that only the constitution which is the work of a constituent power may have the potential to prevent the constitutional and political crises. Only the constitution as the work of a popular will or constituent power can be named “democratic”. Democratic constitutionalism can be seen as the embodiment or figuration of constituent power not as its limitation. It is the institutionalization and normalization rather than the negation of the popular constituent will.