Against democratic intergovernmentalism: The case for a theory of constituent power in the global realm

The normative school of global constitutionalism lacks a convincing model of constitutional politics. As far as the democratic legitimacy of constitution making at the supra-state level is addressed at all, scholars usually resort to democratic intergovernmentalism. According to this normative model, processes in which constitutional norms in the global realm are made or amended are democratically legitimate if they are organized as treaty making among the executives of democratic states, followed by parliamentary ratification. In this article, I argue that this model should be rejected because it puts the democratic legal domestication of public authority at risk. Specifically, democratic intergovernmentalism is characterized by five shortcomings: (a) it does not distinguish between norms of contractual and constitutional quality; (b) it undermines the separation of powers; (c) it breaches the division and hierarchization of constituent and constituted powers; (d) it disregards the deliberative dimension of democratic control; and (e) it does neither provide the citizens nor their representatives with a capacity to begin. Ultimately, I suggest that a superior approach should build on the notion of constituent power.