On the legal implications of a ‘permanent’ constituent power

Mariana Velasco Rivera and Joel Colón-Ríos

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There is a long tradition in constitutional theory, according to which the exercise of original constituent power is seen as a one-time event. Once a constitution is adopted, the legally unlimited force that brought it into existence is exhausted. This not only means that there will be no legal mechanism in place for its future exercise, but that it must be treated as if it never existed. In Latin America, the idea that the exercise of the original constituent power is a one-time event is not that influential. The Colombian Constitutional Court, for example, has grounded the doctrine of unconstitutional amendments on the view that the people, as the original constituent subject, have the exclusive jurisdiction to replace the existing constitution if they determine such a course of action desirable. Accordingly, those changes that go beyond a formal modification of the constitutional text and alter the fundamental content of the material constitution are outside the scope of the ordinary amendment power and fall under the exclusive jurisdiction of the constituent people. Moreover, several Latin American constitutions explicitly distinguish between the original constituent power and the ordinary power of constitutional reform, and place material limits on the latter.

Mexican constitutional jurisprudence is somewhat of an outlier in this respect. Mexican constitutional scholars have long insisted in the ephemeral nature of the original constituent power. However, they also maintain that once the original constituent power is exhausted, a permanent constituent power emerges. According to them, in the Constitution of 1917, that permanent constituent power is located in a two-thirds majority of the Federal Congress and the majority of the State Legislatures (Article 135). This idea has had major legal implications. It has resulted, for example, in the judicial rejection of the doctrine of unconstitutional constitutional amendments, and in a lack of differentiation between ordinary amendments and changes that alter the content of the material constitution in important ways. In this paper, we examine the development of the notion of permanent constituent power in Mexican constitutional theory, as well as the impact that it has had in the country’s constitutional jurisprudence.