Constituent Power in (Con-)Federal Settings: A Puzzle Without a Solution?

Constituent power poses a well-known puzzle. In principle, constituent power should precede all institutionalized forms of power and all forms of representation. Yet it is clear that the effective expression and usage of constituent power requires procedures, institutions, and representation. This "paradox", as it is usually called, becomes even more complex in (con)federal settings, where there are multiple and often overlapping groups with a potential claim to constituent power. Moreover, this division or distribution of constituent power is typically a product of the existent institutions. This puzzle has rarely been addressed head-on, and the solutions that have been proposed ("the splitting of the constituent subject" or a "pouvoir constituant mixte") are not entirely satisfying. This paper lays out the pieces of the puzzle and investigates potential solutions, at a conceptual level but also at a practical level, as this puzzle is of great political importance for (con)federations where the basic institutional architecture is actively contested, such as Belgium or the European Union.