The power of people

Professor Joel Colón-Ríos has marked the end of four years of research into constituent power with the publication of his book Constituent Power and the Law, published by Oxford University Press.

The book marks the completion of his 2016 Marsden Grant worth $420,000, which allowed him to engage in four years of intensive research and writing on the relationship between constituent power and constitutional law, and saw him publish over 20 journal articles, chapters, and presentations. The work of research assistants Jhonny Antonio Pabón Cadavid, Alec Duncan and Luna Arango were also fundamental to the success of the project.

“Constitutional law is an area of law, just like contracts or torts, but it also provides the basis for the organisation of the state and the exercise of political power. I have always been fascinated by that latter aspect of constitutional law, because what lies behind it are fundamental choices that determine the type of political and economic structures within which we live. Constituent power, the power to create new constitutions, is what makes those fundamental choices possible,” says Professor Colón-Ríos.

A commissioned review of the book in Political Studies Review by Dr Daniel Rosenberg notes, “Joel Colón-Ríos laid out what could be described as an intellectual biography of the concept of constituent power across 10 information-packed chapters. The strengths of the study are in the historical and conceptual arguments it lays out.”

Professor Colón-Ríos notes that up until now, legal literature has associated constituent power with extra-legal acts like those that take place during political revolutions. “What my book does is to show that, contrary to this view, constituent power has historically been treated as a juridical concept, a concept that can aid us in the making of determinations of legal validity.”

“For example, the idea that ‘constituent power belongs to the people’ has allowed courts in different jurisdictions to declare the invalidity of constitutional amendments. Those courts have determined that if an amendment adopted by the legislature entails a change so fundamental that it amounts to the creation of a new constitution it would be invalid, as it would invade the exclusive constitution-making jurisdiction of the people.”

While completing his study, he found himself surprised by the frequency with which political actors, lawyers, and commentators, particularly within the 19th century, deployed the concept of constituent power to advance different legal arguments.

“Constituent power is often seen as an obscure or even mythical concept used by constitutional and political theorists, so the extent to which it has been present in the constitutional practice of different jurisdictions, as I show in the book, will surprise some scholars,” says Professor Colón-Ríos.

He has been happy with the academic response to the book thus far, which has seen strong interest from journals and colleagues in Europe, Latin America, and Australia in organising symposiums and events to launch the book.