Constituent Power with Checks and Balances

Abstract The people will have constituent, political power insofar as they sustain the state as it is and have the option of changing how it operates, if enough of them share in that wish. On the traditional assumption that ‘the people’ refers either to the unincorporated populace or to the citizenry incorporated as a polity, the people cannot have such power or control: the very idea raises a constitutional paradox. But take ‘the people’ to refer to those ordinary decision-taking subjects—the incorporating people—who must jointly obey the law and accept the authorities if the state is to survive, and all that changes. It becomes logically possible, indeed institutionally feasible, for the people, in that sense, to enjoy constituent power: and this, even if the state is organized around mutually checking and balancing powers.