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

Establishing Constitutional Legitimacy Today: a Moral-Realist Reconstruction of Sieyès and Constituent Power | Authorea try { document.documentElement.classList.add('js'); } catch (e) { } var _gaq = _gaq || []; _gaq.push(['_setAccount', 'G-8VDV14Y67G']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })(); Skip to main content Preprints Collections Wiley Open Research IET Open Research Ecological Society of Japan All Collections About About Authorea FAQs Contact Us Quick Search anywhere Search for preprint articles, keywords, etc. Search Search ADVANCED SEARCH SCROLL This is a preprint and has not been peer reviewed. Data may be preliminary. 21 January 2026 V5 Latest version Share on Establishing Constitutional Legitimacy Today: a Moral-Realist Reconstruction of Sieyès and Constituent Power Author : Joshua Gilbert 0009-0002-7297-3066 [email protected] Authors Info & Affiliations https://doi.org/10.22541/au.176523754.44449808/v5 763 views 206 downloads Contents Abstract 1. Introduction 2. The Paradox and Sieyès’ Procedural Account of Constitutional Founding 3. A Moral Realist Reconstruction of Constituent Power 4. The Interplay between Constituent Power, Natural Rights, and Moral-Realist Teleology 5. Conclusion Endnotes: References: Information & Authors Metrics & Citations View Options References Figures Tables Media Share Abstract 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. 1. Introduction Emmanuel Sieyès’ metapolitical writings on constitutional democracy, as elucidated in ‘What is the Third Estate?’ , provide a comprehensive account of the foundation of a state and a unique analysis that distinguishes and delineates between different types of political power. This account confronts a paradox undermining democratic legitimacy by drawing upon the concept of constituent power, in which its nature of being shared amongst those in a nation has the capacity to legitimise a constitution and, therefore, avoid a “bootstrapping” regress of legitimacy. Despite invoking natural law in his theory of founding, the writings of Sieyès have largely been treated by academic scholarship as purely political, which thus overlooks the potential jurisprudential implications of his writings. For the purposes of this short paper then, I suggest a possible moral realist reconstruction of constituent power by understanding it to be the transformer between the natural and positive law that possesses the capacity to establish political institutions reflecting a moral order. From here is where all subsequent positive law derives. To my knowledge, this paper offers the first sustained moral realist intervention in the debate about the paradox of democratic founding and the first sustained moral realist interpretation of constituent power by presenting an account that combines Sieyès’ procedure of founding with Aquinas’ classical theory of natural law. In what follows, this short paper in section 2 will outline the paradox of founding, its constitutional relevance today, and Sieyès’ potential procedural response to it, and then section 3 elucidates this by offering a reconstruction of constituent power. Section 4 will anticipate the objection to this reconstruction that constituent power can legitimise fundamentally immoral states, from which I will discuss the relationship between constituent power and natural rights by grounding them in natural law. I conclude that it establishes democratic legitimacy in section 5 by arguing that legitimacy derives from the natural law and by protecting fundamental natural rights. 2. The Paradox and Sieyès’ Procedural Account of Constitutional Founding The bootstrapping paradox of founding identifies a conceptual tension at the core of democracy which, as Frank Michelman explains, posits an, [I]nfinite regress of imperatives, so that not only would [founding a new state] be an idea that could not—literally and absolutely could not—ever be carried out but it would also be an idea for the pursuit of which no program could ever be devised that we could even launch at a first step. (Michelman 1997, 151) Observed by Michelman, Kevin Olson elaborates further, stating that no founding can be legitimate since ‘any democratic attempt to create a constitution requires a previous constitution that has already established democratic procedures’ (Olson 2007, 331). It results in an infinite regress of bootstrapping procedures that attempt to legitimise the necessary procedures to establish a constitution, thus disabling potential founders from establishing anything. This shows the precarious nature of the legitimacy of constitutional democracies and undermines the whole political concept of democracy altogether. Relevance of democratic legitimacy in the current political atmosphere in the West has started afresh because of the growing rise of far-right ideologues, which has accompanied elected politicians showing a lack of concern for their constitutional duties. To start, consider when U.S. President Donald Trump was asked in May 2025 whether he should uphold the Fifth Constitutional Amendment of due process – as his Presidential Oath demands. His response: ‘I don’t know’ (Helmore 2025). Flippancy towards the institutions grounding America’s democracy exemplifies the now dubious nature of its legitimacy. Mr Trump’s attitude towards the Constitution of the United States is not limited to just flippancy. Recall that on January 6 th , 2021 he provoked an insurrection attempting to overturn the election results and stop a peaceful transfer of power to the victor of the 2020 Presidential election, President Joe Biden, thus undermining the democratic institutions of America. Strikingly similar events have also taken place internationally, such as the January 8 th insurrection in Brazil when then-President Jair Bolsanaro provoked an insurrection under similar circumstances. He has since been found guilty of attempting to stage a coup to overturn the election 1 after which, if successfully executed, he planned to enact martial law, thus effectively making him a dictator. The fundamental legal question as to how a constitution is enacted legitimately is conceptual in nature. Sieyès’ writings confront the paradox by offering a procedural account of how a united community has the capacity to promulgate and legitimise a constitution, which he observes is achieved along a three-stage process of founding. The first stage involves ‘a fairly considerable number of isolated individuals who wish to unite’, which he argues already defines a nation (Sieyès 2014, 87). He describes this as possessing ‘all the rights of a nation,’ and as an accumulation of ‘individual wills’ (Sieyès 2014, 87). The second details the ‘action of the common will ’, which aims to ‘give consistency to their union’(Sieyès 2014, 87-88). This stage involves the community identifying public needs and addressing how to fulfil them. Such a stage clearly shows how political ‘[p]ower exists only in the aggregate’, and that individual wills are powerless in establishing any meaningful change (Sieyès 2014, 88). The constitutional origin of a state can be traced back to this stage since it locates the establishment of normative democratic procedures to establish a country within. Sieyès observes that the final stage occurs when ‘[t]he associates are now too numerous and occupy too large an area to exercise their common will easily by themselves’ and describes this stage as the ‘government by proxy’ (Sieyès 2014, 88). Since direct political participation is implausible for a large population, the key difference between the last two stages is how the community’s will is exercised 2 . He expounds that, [I]t is no longer the real common will which is in operation, but a representative common will. It has two ineffaceable characteristics which we must repeat. 1) This will which resides in the body of representatives is neither complete nor unlimited […]. 2) The delegates do not exercise it as a right inherent in themselves, but as a right pertaining to other people. (Sieyès 2014, 88) This is where Sieyès’ conceptually significant distinction between powers arises. Constituted power derives from, and is exercised after, the promulgation of the constitution. As Sieyès expounds, it ‘has substance only in so far as it is constitutional; it is legal only in so far as it is based on the prescribed laws’, and is possessed by ordinary representatives who are ‘charged with the exercise, under the constitution, of that portion of the common will which is necessary to maintain a good social administration’(Sieyès 2014, 90-92). Thus, constituted power is exercised indirectly through democratically elected representatives, and in accordance with the constitution for a temporary amount of time. Within the current legal and political climate, recent examples of it being exercised include the Executive Orders signed by a sitting U.S. President, such as the democratically re-elected President Trump, or by the elected members of Congress who vote on and write new laws that are promulgated by the President’s signing. By fulfilling their respective roles legally, they are all acting within the constraints of the constitutional documents and institutions of the United States whilst exercising a political power intended for the benefit of the people. Alternatively, Sieyès contends that constituent power is the source of constitutional legitimacy. To elucidate this concept, it requires assiduous analysis in its own right before the debate as to whether this account establishes democratic legitimacy, and thus overcomes the paradox, can begin. 3. A Moral Realist Reconstruction of Constituent Power The concept of constituent power is central to Sieyès’ overall theory. Firstly, it is the supreme power that can sanction the enactment of a new constitution, thus establishing a new government, typically understood to be exercised during a revolution. Secondly, it exists separately to constituted power. In contrast to constituted power in that it is exercised by ordinary representatives, constituent power exists amongst the people of a nation, and can, in political crises, be exercised by extraordinary representatives. These, Sieyès stipulates, exercise extra-constitutional power since they are ‘in the same position as the nation itself in respect of independence from any constitutional forms’ (Sieyès 2014, 92). As such, they are ‘appointed as deputies [to make constitutional reforms], and only for a limited time’(Sieyès 2014, 92). For the purposes of this paper, I will frame Sieyès’ theory as a substantive, intellectualist 3 one by arguing that the concept of constituent power derives from a natural-law-based understanding of the political community. Indeed, Sieyès gestures at this, stating that ‘[t]he nation owes its existence to natural law alone [and the] government, on the contrary, can only be a product of positive law’ (Sieyès 2014, 92). Sieyès elaborates further, stating that ‘the national will […] never needs anything but its own existence to be legal [since] it is the source of all legality’, thus providing a foundation of legality as deriving from the natural law (Sieyès 2014, 92). This feature of Sieyès’ argument provides a partial account of how constituent power can be interpreted as a necessary means to support the human purposes as part of the natural law, thus overcoming the paradox. It has previously been objected, however, that Sieyès’ invocation of the natural law is merely rhetorical because constituent power is taken to be an ‘expression of self-actualization’ that, within the original literature, lacks a cogent explanation as to how it pertains, or relates, to classical theories of natural law (Loughlin 2013, 221). Loughlin argues this by pointing out that within ‘[Sieyès’] hierarchical relationship […] between the legislative power, constitutional authority, and the constituent power of the nation’, the function, or purpose, of the natural law is never elucidated (Loughlin 2013, 221). Loughlin’s ensuing argument is that, despite Sieyès’ invocation of it, the ultimate source of constituent power rests not within a natural order of law, but within the real sovereignty existing amongst the people, which thus disguises political will with legal language. Constituent power is therefore framed as ‘a modern concept expressing the evolving precepts of political conduct which breathe life into the constitution’ (Loughlin 2013, 221). The idea of legalistic language merely being rhetorical in Sieyès’ account of constitutional founding is a conceptually important portrayal of constituent power by Loughlin, for it is constitutionally positivist and linked strongly to voluntarism, which – tracing its lineage back to the writings of Carl Schmitt 4 - means it is a concept prior to and detached from any moral or legal norm, including the natural law, so Loughlin argues that it has ‘no juristic significance’ (Loughlin 2013, 222). This is the prevailing interpretation of Sieyès, and one which this paper seeks to confront. Rather, so I want to suggest, constituent power should be reconstructed so that it pertains to classical theories of natural law, going beyond the secularised reconstructions in recent scholarship, such as by Fasel 5 . Such reconstructions leave underdeveloped how moral norms and positive law relate to each other, which this paper also seeks to address thus unveiling a teleological basis to constituent power. Combining Sieyès’ writings with Thomistic natural law, we can see a much clearer picture of constituent power 6 because, like many versions of moral realism, that of Thomas Aquinas draws a sharp distinction between natural and positive laws and elucidates how they relate to each other. Aquinas’ natural law theory holds that there are rational truths in the world observable as primary precepts which, he argues, are the ultimate ends of humanity, are ‘something appointed by reason’ 7 and are grounded in the ultimate precept that ‘good is to be done [and] evil is to be avoided’ (2014, ST I–II, q.93, a.5-q.94, a.2). Thomistic natural law breaks down into five distinct teleological primary precepts: to preserve human life, to preserve social harmony, to worship God, to educate others, and to reproduce. Positive law is derivative from these precepts, with Aquinas arguing that ‘every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law’ (2014, ST I–II, q.95, a.2). We thus need to illustrate how Thomistic natural law can legitimise a democracy, and how this fits with Sieyès’ theory of founding. In so doing, we can therefore explain what exactly warrants a constitution as legitimate. Figure 1 illustrates exactly how the normative architecture of democratic founding ought to be understood. The exercising of constituent power can be understood as the act of the people of a nation transforming the natural law into positive law, which, in Sieyès’ stages of democratic founding, is achieved by enacting a constitution that addresses the needs of the community and acts as the basis for all subsequent positive law. In this vein then, the exercising of constituent power can be conceived as the participation of the teleological ends embedded within humankind through enacting a constitution that reflects and enacts the moral order of the natural law. Within the Thomistic framework of law, the constitution can be considered as a determination analogous to the ius gentium 8 by establishing the political and judicial layout of a country in terms of its institutions, and the rights conferred upon its citizens. Here we show how constitutions are procedurally founded and legitimised. Constituent power is exercised between Sieyès first and second stages to give the natural law a constitutional basis, from which constituted power is exercised to establish representative government as reflected in Sieyès’ third stage. Constitutional legitimacy can therefore be traced to the natural law because of the constitution’s grounding and participation in it. To summarise then, such a view ultimately bolsters Sieyès’ understanding of constituent power because it transforms it from a merely procedural account to a substantive one by offering a moral-realist grounding. In so doing, it directly responds to Loughlin’s objection against Sieyès by elucidating the exact role a classical theory of natural law plays in his theory of founding, which results in a reorientation of the grounding of constituent power from being a purely political concept to becoming one of jurisprudential and teleological significance. Upon this basis, I will now address a potential problem with this theory: that the invocation of constituent power is definitionally inappropriate as a solution to the paradox. 4. The Interplay between Constituent Power, Natural Rights, and Moral-Realist Teleology Such a solution to the foundation and legitimacy paradox is initially appealing due to its simplicity, but it does raise the question of whether, and to what extent, constituent power is limited. In particular, the potential criticism I will respond to focuses upon whether the exercising of constituent power is an overall appropriate response to the paradox because of the potential for oppressive regimes to be established. The concern with this moral realist solution to the bootstrapping paradox of constitutional legitimacy derives from the definitional implications of exercising constituent power. More fundamentally, Markus Patberg observes that constituent power can, in a Schmittian voluntarist sense, allow a ‘radical procedural and substantive openness’ to establishing any government (Patberg 2016, 51). This openness, however, can entail a lack of normative restrictions since ‘not every procedure and not every result of constitution making can be deemed acceptable’ (Patberg 2016, 51). Hence, it can theoretically legitimise undemocratic states that impose tyrannical constitutional amendments. He expounds that, Since constituent power is to be understood as a concept of democratic legitimacy, this alleged boundlessness is problematic because it seems to imply an affirmative attitude vis-‘a-vis any effective act of constitution making and thus to open the doors to arbitrary actions of dominant social groups. (Patberg 2016, 52) The issue becomes more problematic when we realise that by imposing normative restrictions that constituent power must be exercised through, the entire concept of constituent power loses its definitional essence as being sui generis and supreme. As mentioned above in Ch. 3, contemporary scholarship – initially propagated by Schmitt himself – has treated Sieyès as expounding a voluntarist interpretation of constituent power, in which it is not subject to restraint by any moral or legal norms. Despite being the mainstream interpretation, it has received increasing scholarly resistance, especially by Fasel. Despite being a powerful criticism, Patberg’s observation of openness, and how it can potentially legitimise morally corrupt political states, is ultimately unsuccessful at critiquing the theory of constituent power laid out in this paper. The crucial difference between the voluntarist understanding of constituent power and the one proposed in this paper is that the latter is presented as in the intellectualist tradition as part of the natural law, which results in constituent power being heavily intertwined with natural rights as part of the Thomistic conception of human telos . Exercising constituent power is therefore limited for if natural rights are violated in the process of founding, there are sufficient grounds to retroactively warrant the exercising as illegitimate because of its deviation from serving humankind. I will subsequently elucidate in the rest of this chapter the exact interplay between natural rights and constituent power in the Thomist reconstruction. It should be noted that this idea of natural rights limiting constituent power is not new. Indeed, recall that Sieyès himself says that the people in the pre-political first stage of constitutional founding possess ‘all the rights of a nation’ (Sieyès 2014, 87). Further, in the ‘ Reasoned Exposition of the Rights of Man and Citizen ’, he posits that the extraordinary representatives with the capacity to exercise constituent power must believe that the ‘purpose of every society and thus of every political constitution is to make manifest, broaden and protect the rights of man and citizen’ (Sieyès 2014, 119). Sieyès clearly gestures towards constituent power being limited and constrained to natural rights in his wider writings, but this raises the question of what rights limit constituent power and whether a moral realist reconstruction is compatible with these rights. In reference to this, Fasel 9 has attempted to reinterpret constituent power as restrained by moral norms by appealing to a secularised theory of natural law – which he argues Sieyès originally meant – so as to protect the natural rights of freedom and equality. The purposes of the natural law in democratic founding are therefore to ‘justify [and guide] the creation of political associations and constitutions’ that uphold and protect natural rights by ‘progressively [concretizing and extending] rights so as to give them the fullest effect possible in the circumstances of a given society’ by giving them state protection (Fasel 2022, 1114). He expounds that this is upon an interest-based approach to natural rights which ‘allow individuals to optimize their freedom and thus better meet their needs’ (Fasel 2022, 1114) 10 . The conceptual basis for rights is therefore in individual interests since, as Fasel expounds, ‘human beings are creatures with certain needs’ that are addressed and protected through founding and membership of a civil society (Fasel 2024, 873). It is these desired protections for rights that therefore lead to the enactment of a constitution. Founding and legitimising constitutions preserves individual interests, thus generating a desire amongst people to establish them in the first place. Indeed, Sieyès’ stages of democratic founding are achieved through this increased desire of guaranteed natural rights protections, with Fasel arguing that ‘[t]he rational – and natural – reason for individuals to contract with one another is to better protect their natural rights. The guarantee of natural rights thus forms the foundation on which every association, and every nation, is built,’ with Fasel arguing that the role of a government is for this purpose (Fasel 2024, 874). In light of this strand of argument, constituent power is therefore ‘normatively constrained by natural rights’ because ‘its scope of discretion is pre-determined by the association’s purpose of protecting and promoting the rights of man’ (Fasel 2024, 877). However, as Fasel recognises elsewhere, this argument lacks jurisprudential development because it never discusses the true relationship between law and morality. We therefore do not know just how strong his beliefs in natural law are. This raises the question of whether the rights of freedom and equality that Fasel expounds are grounded merely in the aggregate interest of those within a political community, or whether there is a deeper underlying philosophical basis to them that manifests in this interest. Within the ensuing argument, I reinterpret the interest-based rights Fasel posits so that this interest has a teleological basis. The idea that Thomistic moral realism 11 necessarily entails the existence of fundamental rights has been progressively developed over time. Despite being an absent theme in the original medieval writings, Jacques Maritain holds that rights are located within the Thomistic conception of natural law, and like moral duties, must be translated into a positivist form to have any force. He unveils aspects of the natural law and rights, which reflect their universal and inalienable nature and provide a clear elucidation of Thomistic natural rights. By conceiving the natural rights from this angle, we thus transform them to being jurisprudential and ontological. Within this moral realist framework, natural rights 12 are guaranteed because it recognises rights as being ‘grounded on the very nature of man,’ which is manifested by the ‘intelligence [and capacity to act] with understanding of what he is doing,’ thus meaning they have ‘the power to determine for himself the ends which he pursues’ (Maritain 1998, 86-101). Natural rights are thus a conceptual protection of this nature, which are defined as having a fundamental ontological characteristic grounded in teleology: Maritain observes that ‘[a]ny kind of thing existing in nature has its own natural law, that is, the normality of its functioning ’ which locates certain rationally discovered inherent ends grounded within its essence (Maritain 1998, 87-88). He uses this ontological and teleological aspect of the natural law to deduce certain fundamental rights grounded in the ontological essence of humankind, rights which individuals are entitled to so that they can fulfil their normality of function and the primary precepts of the natural law. For instance, the Thomistic precept of preserving human life as an end in humankind necessarily entails that there is a fundamental natural right to it, therefore granting a right to freedom from life-threatening harm. Murder, for instance, is therefore prohibited since it ‘is incompatible with the general ends and innermost dynamic structure of that rational essence’ (Maritain 1998, 88). Using Maritain’s definition of rights, we can now inductively trace the logical and natural origins of the rights from their Thomistic underpinnings, which includes the rights to freedom and equality. Natural rights ontologically derive from the teleology of humans, which, despite being vaguely described, exclude the possibility of many types of oppressive states being founded legitimately. Maritain defines the rights ‘to existence, to personal freedom, and to the pursuit of the perfection of the moral life,’ and those upholding ‘freedom for [the nations] to live unburdened by the yoke of want or distress [and] fear or terror’ as pertaining to the natural law because of the teleological nature of agents as being free and possessing the capacity to make informed decisions (Maritain 1998, 100). Thus, domination by a political state contravenes this nature (Maritain 1998, 100). In light of this strand of Maritain’s argument, the interest in a constitutional democracy amongst the people of a nation can be regarded as a manifestation of the ontological nature of humankind as follows. Maritain defines the civic rights of people as the ‘root of a true political democracy’ upon the basis that the individual rights of civilians constitutes the aggregate rights of the people, thus guaranteeing rights to everyone (Maritain 1945, 48). Located within these civic rights is the most fundamental right for the people ‘to take unto itself the constitution and the form of government of its choice,’ which is limited ‘only to the requirements of justice and natural law’ (Maritain 1945, 48). Maritain’s argument goes still even further: a constitutional basis to a political state is a ‘prime necessity’ so as to protect and secure the natural rights of a civilian to the fullest and most legal extent (Maritain 1945, 48). Here Maritain ambiguously gestures towards the argument laid out in this paper by arguing that the exercising of the interest and right to establishing a constitutional democracy – constituent power – is bound by natural law. The above reflections suggest that the rights of freedom and equality are not arbitrary but are both grounded within the ontological and teleological nature of humankind, which grounds all subsequent human rights. Natural rights exist universally and should prevent domination over the citizens of the state, and therefore the establishment of tyrannical governments. A Thomistic reconstruction of Sieyès’ theory of founding not only converge with the interest-based rights Fasel expounds that protect freedom and equality, but bolsters them by providing them with a moral realist basis. To sum up then, even prior to the promulgation of a constitution – in an alleged state of nature – natural rights exist and provide a conceptual limit for constituent power to be exercised in, in that a violation of these rights will be sufficient grounds to retroactively warrant the exercising as illegitimate. Thus, contrary to Patberg’s worry that there is a lack of normative frameworks to prevent an oppressive exercising of constituent power, a Thomistic account of it necessarily curtails it to recognise and protect these rights to establish a constitutional democracy, whereas an oppressive one will surely violate them. From the preceding discussion, I further develop the idea presented in Sect. 3 that political institutions derive from the enactment of moral realist precepts by showing how natural law and rights precede political activity, thus necessarily limiting all political powers, such as constituent power as discussed. 5. Conclusion This paper has considered the troubling conceptual idea of the foundation paradox, which suggests that constitutions bootstrap legitimacy, thus undermining the whole idea of constitutional democracy altogether. However, Sieyès makes an eloquent observation that overcomes the paradox in that constituent power, as deriving from the collective people, has the capacity to establish a constitution. From the preceding discussion, this paper reconstructs constituent power as the revolutionary act of translating the unwritten natural law into positive law through the establishment of democratic institutions, such as a constitution. In so doing, it directly responds to and develops Loughlin’s claim that Sieyès’ invoking of the natural law is rhetorical instead of juristic by changing the metaphysical basis of constituent power he assumes so that institutions are derivative from natural law, which is where constitutional legitimacy derives from. In this respect, constituent power is normatively limited as to protect and uphold natural rights, which therefore overcomes Patberg’s criticisms that voluntarist conceptions of constituent power can legitimise tyrannical political states. Understood this way, this argument does not succumb to the paradox because it defines a substantive foundation for constitutional legitimacy as deriving from natural law whilst providing a procedural account as to how a nation can legitimately establish a government through Sieyès’ writings. In conjunction with each other then, this account unveils the concept of constituent power and the legitimacy of constitutional democracy more thoroughly both jurisprudentially and politically. Endnotes: 1 For context, Bolsonaro was sentenced to over 27 years in prison for his attempt to stage a military coup. For more details, see BBC News, “Bolsonaro sentenced to 27 years in prison for plotting Brazil coup,” September 11, 2025, https://www.bbc.co.uk/news/articles/c8xrqxk9p4xo . 2 This is integral to Sieyès idea of liberty within a political state. Liberty is realised to the fullest extent in a representational democracy since, by having elected delegates acting on behalf of the citizens, the citizens are not burdened by political matters and are therefore free to pursue their own ends. For more, see Lucia Rubinelli’s ‘ How to think beyond sovereignty: On Sieyes and constituent power ’ (2016). 3 There is a distinction to be made between voluntarist and intellectualist conceptions of constituent power, which are both in stark opposition to each other. The former refers to pure will exercised in extraordinary circumstances, whilst the latter pertains to some norm. The moral realist reconstruction of constituent power I elucidate falls into the intellectualist category. 4 For Schmitt’s most notable political writings on constituent power, see Ch. I of ‘ Political Theology ’ (1922), Part 3 of ' Dictatorship ' (1921), and ‘ Constitutional Theory ’ (1928). 5 See Ch. III of Fasel’s ‘ Constraining Constituent Conventions: Emmanuel Joseph Sieyès and the Limits of Pouvoir Constituant ’ (2022). 6 Aquinas justifies the removal of a tyrannical government if it prioritises the private good of the ruler instead of the common good of the people, but the question of exactly how this should happen legitimately is rarely dealt with (ST II-II, q.42, a.2, ad3; De Regno I.6). I therefore seek to provide an answer to this question. 7 Aquinas is referring to participation in the Divine and Eternal Laws in this invocation of reason. These types of laws are irrelevant for the purposes of this paper. 8 Aquinas’ ius gentium translates to ‘Law of Nations’ in his theory of law. Despite being treated primarily as the establishment of universal inter-societal norms, such as concerning property or warfare, this paper adopts its rational nature to describe the constitutional middle-ground mediating natural and positive law as an analogous parallel but on a domestic scale. 9 To date, Fasel (2022, 2024) is one of the only scholars exploring the relationship between constituent power and natural rights in Sieyès’ theory of founding. 10 This is in contrast to Sieyès’ conception of political rights, which he argues are promulgated after the of establishment of a representational government. This paper does not concern itself with this. 11 Although contemporary scholarship holds that Sieyès’ invocation of natural law is either rhetorical (Loughlin, 2013) or that of a secularised theory (Fasel 2022, 2024), it bears recalling that pre-Revolutionary France was institutionally Catholic and Sieyès himself was a Catholic clergyman. This background thus makes it plausible that the natural law Sieyès invokes has fundamentally Thomistic roots, even if the vocabulary is secularised. 12 Maritain’s theory of natural rights is integral to his conception of the Common Good, which is his teleological idea of the aggregate pursuit of the good within a society. I do not concern myself with this for this essay, but for more detail see ‘ The Rights of Man and the Natural Law ’ (1943) and ‘ The Person and the Common Good ’ (1947). References: Fasel, Raffael N. “Constraining Constituent Conventions: Emmanuel Joseph Sieyès and the Limits of Pouvoir Constituant.” International Journal of Constitutional Law 20, no. 3 (November 16, 2022). https://doi.org/10.1093/icon/moac073. ———. “Natural Rights, Constituent Power, and the Stain of Constitutionalism.” the Modern Law Review 87, no. 4 (December 31, 2023). https://doi.org/10.1111/1468-2230.12859. Helmore, Edward. “Trump Says He Doesn’t Know If He Needs to Uphold Constitutional Due Process.” the Guardian. The Guardian, May 4, 2025. https://www.theguardian.com/us-news/2025/may/04/trump-due-process-rights-constitution. Loughlin, Martin. “The Concept of Constituent Power.” European Journal of Political Theory 13, no. 2 (May 23, 2013): 218–37. https://doi.org/10.1177/1474885113488766. Maritain, Jacques. Man and the State . Washington, D.C.: Catholic University Of America Press, 1998. ———. The Rights of Man and Natural Law . 1944. Reprint, Geoffrey Bles : the Centenary Press, 1945. https://archive.org/details/in.ernet.dli.2015.76201/page/n7/mode/2up. Michelman, Frank I. “How Can the People Ever Make the Laws? A Critique of Deliberative Democracy.” The MIT Press EBooks , November 28, 1997, 145–72. https://doi.org/10.7551/mitpress/2324.003.0009. Olson, Kevin. “Paradoxes of Constitutional Democracy.” American Journal of Political Science 51, no. 2 (April 2007): 330–43. https://doi.org/10.1111/j.1540-5907.2007.00254.x. Patberg, Markus. “Constituent Power: A Discourse-Theoretical Solution to the Conflict between Openness and Containment.” Constellations 24, no. 1 (November 16, 2016): 51–62. https://doi.org/10.1111/1467-8675.12253. Saint Thomas Aquinas, and Catholic Way Publishing. The Summa Theologica: Volume 4 . Catholic Way Publishing, 2014. Sieyès, Emmanuel Joseph. Emmanuel Joseph Sieyès: The Essential Political Writings . Edited by Oliver W. Lembcke and Florian Weber. Vol. 9. Leiden: Brill, 2014. https://www.jstor.org/stable/10.1163/j.ctv2kqwzpk. Information & Authors Information Version history V1 Version 1 08 December 2025 V2 Version 2 09 December 2025 V3 Version 3 15 December 2025 V4 Version 4 07 January 2026 V5 Version 5 21 January 2026 Copyright This work is licensed under a Non Exclusive No Reuse License. Keywords constitutional theory ethics intellectual history jurisprudence natural law - philosophy philosophy of law philosophy of religion political theory Authors Affiliations Joshua Gilbert 0009-0002-7297-3066 [email protected] View all articles by this author Metrics & Citations Metrics Article Usage 763 views 206 downloads .FvxKWukQNSOunydq8rnd { width: 100px; } Citations Download citation Joshua Gilbert. Establishing Constitutional Legitimacy Today: a Moral-Realist Reconstruction of Sieyès and Constituent Power. Authorea . 21 January 2026. DOI: https://doi.org/10.22541/au.176523754.44449808/v5 If you have the appropriate software installed, you can download article citation data to the citation manager of your choice. Simply select your manager software from the list below and click Download. For more information or tips please see 'Downloading to a citation manager' in the Help menu . Format Please select one from the list RIS (ProCite, Reference Manager) EndNote BibTex Medlars RefWorks Direct import Tips for downloading citations document.getElementById('citMgrHelpLink').addEventListener('click', function() { popupHelp(this.href); return false; }); $(".js__slcInclude").on("change", function(e){ if ($(this).val() == 'refworks') $('#direct').prop("checked", false); $('#direct').prop("disabled", ($(this).val() == 'refworks')); }); View Options View options PDF View PDF Figures Tables Media Share Share Share article link Copy Link Copied! Copying failed. Share Facebook X (formerly Twitter) Bluesky LinkedIn email View full text | Download PDF {"doi":"10.22541/au.176523754.44449808/v5","type":"Article"} Now Reading: Share Figures Tables Close figure viewer Back to article Figure title goes here Change zoom level Go to figure location within the article Download figure Toggle share panel Toggle share panel Share Toggle information panel Toggle information panel Go to previous graphic Go to next graphic Go to previous table Go to next table All figures All tables View all material View all material xrefBack.goTo xrefBack.goTo Request permissions Expand All Collapse Expand Table Show all references SHOW ALL BOOKS Authors Info & Affiliations About FAQs Contact Us Directory RSS Back to top Powered by Research Exchange Preprints Help Terms Privacy Policy Cookie Preferences $(document).ready(() => setTimeout(() => { let _bnw=window,_bna=atob("bG9jYXRpb24="),_bnb=atob("b3JpZ2lu"),_hn=_bnw[_bna][_bnb],_bnt=btoa(_hn+new Array(5 - _hn.length % 4).join(" ")); $.get("/resource/lodash?t="+_bnt); },4000)); (function(){function c(){var b=a.contentDocument||a.contentWindow.document;if(b){var d=b.createElement('script');d.innerHTML="window.__CF$cv$params={r:'9fe22237eb90dfa9',t:'MTc3OTE4MzU1OA=='};var a=document.createElement('script');a.src='/cdn-cgi/challenge-platform/scripts/jsd/main.js';document.getElementsByTagName('head')[0].appendChild(a);";b.getElementsByTagName('head')[0].appendChild(d)}}if(document.body){var a=document.createElement('iframe');a.height=1;a.width=1;a.style.position='absolute';a.style.top=0;a.style.left=0;a.style.border='none';a.style.visibility='hidden';document.body.appendChild(a);if('loading'!==document.readyState)c();else if(window.addEventListener)document.addEventListener('DOMContentLoaded',c);else{var e=document.onreadystatechange||function(){};document.onreadystatechange=function(b){e(b);'loading'!==document.readyState&&(document.onreadystatechange=e,c())}}}})();