Establishing Constitutional Legitimacy Today: a Moral-Realist Reconstruction of Sieyès and Constituent Power

This short paper addresses a well-known problem in constitutional theory: the “bootstrapping” paradox of founding. With reference to Emmanuel Sieyès’ ‘ What is the Third Estate? ’ I reconstruct his theory of constituent power using moral realism to argue that legitimacy can derive from the natural law, which unveils a jurisprudential element to the concept. Taken together, I argue that constituent power can be understood as the transformer between the natural and positive law, thus elucidating the normative procedure and substantive grounding underpinning constitutional founding and legitimacy. In so doing, I anticipate a potential problem: that certain conceptions of constituent power have the potential to legitimise fundamentally immoral political states. For this criticism, I argue that the teleological moral realist reading of Sieyès laid out in this paper limits constituent power so as to protect fundamental natural rights. This argument thus has implications for constitutional governance and public decision-making.