Commissioned Book Review: Joel Colón-Ríos, Constituent Power and the Law
| Published date | 01 November 2020 |
| DOI | 10.1177/1478929920925663 |
| Date | 01 November 2020 |
| Author | Daniel Rosenberg |
| Subject Matter | Commissioned Book Reviews |
Political Studies Review
2020, Vol. 18(4) NP9 –NP10
journals.sagepub.com/home/psrev
Commissioned Book Review
925663PSW0010.1177/1478929920925663Political Studies ReviewCommissioned Book Review
book-review2020
Commissioned Book Review
Constituent Power and the Law by
Joel Colón-Ríos. Oxford: Oxford University Press,
2020. £80.00, 352 pages, ISBN: 9780198785989
The subject of constituent power has attracted
significant interest in recent years, in academic
as in wider political discourse. Much of the
resurgence in the interest in the subject can be
credited to political developments which called
into question the traditional nation-state config-
uration. Developments such as the process of
European integration and the advent of interna-
tional courts have brought attention to the idea
of constituent power as the underlying power of
legal and political legitimacy. More recent
events, such as the Brexit referendum, have
highlighted the importance of a direct appeal to
the people as means of constitutional reform.
In his work Constituent Power and the Law,
Joel Colón-Ríos laid out what could be described
as an intellectual biography of the concept of
constituent power across 10 information-packed
chapters. Colón-Ríos’s intention is to draw
attention to the different ways in which constitu-
ent power has been embedded in constitutional
systems. Much of the discussion in the book is
historical and comparative, as it delves into the
different ways in which constituent power has
been formulated across national and historical
contexts, thereby “illustrating the different func-
tions the concept has played in constitutional
practice” (p. 17).
As a historical-intellectual study, the book
follows a chronological structure, beginning in
the French Revolution and closing with contem-
porary Latin America. The structure is less of an
evolutionary narrative and more of a series of
case studies, passing through some prominent
constitutional events in which the notion of con-
stituent power was evoked. Concentrating pri-
marily on Romance Europe and South America,
the author concentrates on events of constitu-
tional codification and amendment as showcas-
ing the action of constituent power.
Analytically, the work moves between three
conceptual categories which the author formu-
lates as dichotomic axes. The first distinction
Colón-Ríos draws is between legal and extra-
legal constituent power, the second distinction
is between constituent power of the nation and
constituent power of the people, and the third
distinction is between sovereignty and constit-
uent power. While those distinctions may seem
technical, each of them indicates a set of legal
and normative assumptions concerning the
nature of constituent power and its role. Taken
together, they allow the author to navigate the
highly diverse corpus of legal thought consist-
ently and systematically.
The main normative thrust of the work lies
in its conceptualization of constituent power as
a democratic power. Colón-Ríos explores the
way in which constituent power can serve as a
means for constitutional reform. As Colón-Ríos
shows, alongside the classical concepts of con-
stituent power, which focus on the role of courts
or parliaments in the process of amendment,
there exists a direct-democratic notion of con-
stituent power which involves mass popular
participation. These mechanisms may take dif-
ferent forms, including referendums, popular
initiatives, and extra-parliamentary constitu-
tion-making bodies (p. 104).
This idea is developed in the final chapter of
the work, “The Juridical People,” where the
author exposes some of the ways in which this
type of participatory power is expressed in mod-
ern constitutions. Focusing on the examples of
constitutional reforms in a number of Latin
American countries, Colón-Ríos analyzes the
integration of referendums and imperative man-
dates in the process of constitutional amendment
and revision. The chapter focuses primarily on
the example of the constitutional referendum,
which took place in Venezuela in 1999, and on
the ensuing confrontation between institutional-
ized and popular powers. In such a way, the
author brings the concept of constituent power
into the fold of political theory and practice and
endows it with practical substance.
The strengths of the study are in the histori-
cal and conceptual arguments it lays out. As a
historical analysis, the book succeeds in illumi-
nating some of the less discussed moments in
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