Carl Schmitt and the revival of the trine of the constituent power in the Unit卡尔施密特以及该股权力三分之一的复兴.pdfVIP

ARATO WEBGALLEYS1.DOC 08/04/00 12:46 PM CARL SCHMITT AND THE REVIVAL OF THE DOCTRINE OF THE CONSTITUENT POWER IN THE UNITED STATES Andrew Arato ** Reflecting on Article V, an amendment of the United States Constitution, the distinguished English legal scholar, A.V. Dicey, had no doubt that it pointed to the locus of American sovereignty. Since, in his view, British parliamentary sovereignty was based on the capacity of Parliament to act as a constituent assembly, the metaphorical “assembly” of three-quarters of the states was in principle endowed, according to him, with the identical sovereign prerogatives. What probably lies behind this seemingly tortured interpretation of Article V (derived from John C. Calhoun) is the correct notion that the consent of three-quarters of the states is both necessary (both paths of Article V) and sufficient (the convention path) to amend the Constitution. Of course, unlike Parliament, three-quarters of the states do not have legislative power in the United States. Moreover, it is evidently far more difficult to gain the consent of three-quarters of the states than of the fifty-percent-plus-one of the House of Commons which can do anything in Britain except, according to earlier views, change men into women and vice versa. For these reasons, Dicey depicted the American sovereign as “a monarch who slumbers and sleeps.” Given the congressional and military constraints used against the Southern states (without whom there would not be three-quarters consent!) to ratify the Civil War amendments ending the slave regime, it