Originary constituent power and principle of the dignity of the human person

a necessary relationship in the Democratic Rule of Law

Abstract

The boundlessness traditionally attributed to the originary constituent power within the constitutional literature proves to be incompatible with the paradigm of the Democratic Rule of Law. That said, based upon the contextual understanding of the classical theory, articulated during the French Revolution, at the end of the 18th century, this research develops a reassessment of the constituent power. For this, it explores the doctrinal debates surrounding the defining characteristics and nature of the authority responsible for producing the Major Law, that is, the Constitution, giving rise to the State. In addition, it investigates the interface established between the titularity of the originary power and the legitimacy of its work, culminating in a critical – and necessarily pluralistic – evaluation of the conceptual scope and centrality assumed by the people element in regard to the constituent process. Finally, the research focuses on the systematization of theoretical contributions that sustain the incidence of limits on the activity of the originary constituent power. In the wake of identifying this as a limited manifestation from a juridical standpoint, it is concluded that the imperative of protecting the dignity of the human person establishes a material limit to the exercise of the power to create the Constitution, in such a way as to foreshadow the illegitimacy of the constitutional discipline in the event of a violation to the principle in question.