Political constitutionalism versus political constitutional theory: Law, power, and politics

Abstract

This essay juxtaposes political constitutionalism with a political constitutional theory that is mainly based on the work of Carl Schmitt. It claims that the former understands politics as consensual government and correspondingly the constitution as a set of principles and institutions that allows for the management of arising conflicts. Political constitutional theory, on the other hand, acknowledges the ever-present potentiality of conflicts as essential to the political nature of the constitution. The potential conflicts occasionally actualize as exceptional constitutional violations that, at the same time, reaffirm the sovereign constituent power that accounts for the radical democratic foundation of all constituted political and legal institutions. The position of occasional constitutional violations as expressions of constituent power is further illustrated in relation to the separation of powers as actualized conflicts between the judiciary and the elected branches. Exceptional constitutional violations that transgress the constituted limits of the respective branches of government are an indication of the political nature of the constitution, including the separation of powers, and not as an anomaly that constitutional theory cannot explain. © The Author 2013. Oxford University Press and New York University School of Law. All rights reserved.