Constituent power in global constitutionalism

The chapter argues that constituent power, as a fundamental category capable of authorising political orders, is not forever tied to the democratic nation state, but capable of being extended to political systems beyond the state. The main example drawn on is the European Union (EU), the development of which from an international treaty to a supranational order has shifted the allocation of its authorising powers from the member states to a ‘pouvoir constituant mixte’ (Habermas), a hybrid constituent subject consisting of individuals in their dual role as citizens of the member states and citizens of the EU. The point of this reconstruction is not to claim that the EU, or other supra-state constitutional orders discussed in the chapter, have been brought about through the identified constituent actors, but that their correct analysis can help criticise executive and judicial usurpation of constitution-making powers, and help reveal how legitimate constitutional change in supra-state orders can be envisaged.