The American tradition of constituent power

How do "the people" exercise their revolutionary right to replace the existing constitutional order? The conventional answer is that the people act through specially elected constitution-making bodies like constitutional conventions. But what powers must these specially elected institutions-as the representatives of the people-wield? Must they possess the inherent power to, for instance, unilaterally change the ratification requirements? Or, even if they must submit their drafts to a popular referendum, must they have inherent power to pass laws or displace existing government prior to a referendum? These questions have recently re-emerged in constitutional transformations around the world. Constitution-making bodies with broad inherent legal powers-justified as necessary for revolutionary expressions of the popular voice-have allowed strong partisan factions to use constitution-making to consolidate power. Some scholars-citing recent practice-have argued that we should abandon the revolutionary tradition altogether. A recovery of American debates about the powers of constitution-making bodies, however, shows that these runaway bodies are not necessary to a revolutionary expression of constituent power. On the contrary, the American approach to constituent power presents strong reasons why a revolutionary exercise of constituent power requires an elected constitution-making body to be a proposing body with limited legal powers.