Natural Rights, Constituent Power, and the Stain of Constitutionalism.
The power to make constitutions (the so‐called constituent power) is predominantly understood today as a legally unlimited power belonging to the people. This understanding sits uncomfortably with constitutionalism: the idea that public powers are legally limited. Would such a power not leave an ind...
| Publicado en: | Modern Law Review Vol. 87; no. 4; pp. 864 - 894 |
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| Formato: | Artículo |
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Wiley-Blackwell
Jul2024
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| Acceso en línea: | Ver este registro en EBSCOhost |
| fields | @attributes: recordID: 1 pdfLink: plink: https://search.ebscohost.com/login.aspx?direct=true&db=hlh&AN=177903644&site=ehost-live header: @attributes: shortDbName: hlh uiTerm: 177903644 longDbName: Humanities International Complete uiTag: AN controlInfo: bkinfo: jinfo: jid: 00267961 D8H jtl: Modern Law Review issn: 00267961 maglogo: Y pubinfo: dt: Jul2024 vid: 87 iid: 4 pid: 480 pub: Wiley-Blackwell artinfo: ui: 177903644 10.1111/1468-2230.12859 ppf: 864 ppct: 30 formats: fmt: – @attributes: type: T – @attributes: type: P size: 330KB tig: atl: Natural Rights, Constituent Power, and the Stain of Constitutionalism. aug: au: Fasel, Raffael N. su: Natural law Constituent power Constitutionalism Paine, Thomas, 1737-1809 Liberty sug: subj: Natural law Constituent power Constitutionalism Paine, Thomas, 1737-1809 Liberty ab: The power to make constitutions (the so‐called constituent power) is predominantly understood today as a legally unlimited power belonging to the people. This understanding sits uncomfortably with constitutionalism: the idea that public powers are legally limited. Would such a power not leave an indelible blemish on constitutions that are otherwise committed to constitutionalism? This article shows that this problem, which I call the Stain of Constitutionalism, stems from a misapprehension of what constituent power was originally understood to be. Focusing closely on the writings of Emmanuel Joseph Sieyès, Thomas Paine, and the Marquis de Condorcet, I demonstrate that, far from adopting it, these founding fathers of constituent power theory rejected the notion of unlimited constituent power. Instead, they defended a natural rights approach according to which constituent power is legally limited by considerations such as freedom and equality. pubtype: Academic Journal doctype: Article src: R language: English refInfo: copyright: @attributes: flag: Y custom: Copyright of Modern Law Review is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. item: Modern Law Review holder: Wiley-Blackwell dt: @attributes: year: 2024 holdings: @attributes: islocal: N |
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