Understanding Constituent Power in State Constitutions

Constituent power encompasses the authority to create, modify, or revoke a state's constitution, with original and derived types.

### Understanding Constituent Power: The Foundation of a State's Legal Order
* 💪 Constituent power refers to the **authority to create, modify, or revoke the constitution of a State**, typically held by the people.
* 🏛 The National Constituent Assembly, convened through Constitutional Amendment 26/1985, drafted the Federal Constitution of 1988 as an example of the exercise of **original constituent power**.
* 🌱 Original constituent power establishes a new legal order and is characterized as **initial, autonomous, unconditional, and unlimited**.
* 🛑 Despite its broad scope, original constituent power is not supreme and arbitrary, as political limitations must be observed to prevent its actions from becoming **illegitimate**.
* 🔒 Derived constituent power, on the other hand, has a legal nature and must **comply with the rules set by the original constituent power**.
* 🔄 Derived constituent power can be further divided into **reforming, derived, and revising powers**, each serving specific functions and following distinct procedures.
* 📚 The revising derived constituent power, outlined in Article 3 of the ADCT, was used to review the Constitution **five years after its promulgation** through **six constitutional revision amendments**.

Do you know what constituent power is? The AGU explains. Constituent power is the power, force, or authority to create, modify, alter, revise, revoke, or add something to the constitution of a State, the fundamental law of the country. For most doctrine, constituent power belongs to the people. On the other hand, the exercise of this constituent power is reserved for elected representatives. Constituent power is quite broad and can be basically divided into two types: original constituent power and derivative constituent power. Original constituent power, also called initial, inaugural, genuine, or 1st degree, establishes a new legal order, completely breaking with the previous order. Therefore, the fundamental objective of original constituent power is to create a new State, different from what already existed. The Federal Constitution of 1988, for example, was drafted through the National Constituent Assembly, convened through Constitutional Amendment 26/1985. Original constituent power is characterized as initial, autonomous, unconditional, and unlimited. It is initial because its work, the Constitution, is the basis of the legal order. It is also unconditional because it is not subject to any predefined form for the manifestation of will. It is unlimited and autonomous because it is not limited in any way to the previous law. But that does not mean that the original constituent power.

It holds a supreme and arbitrary power. This is because there are political limitations that must be observed, under penalty of making its actions illegitimate. The original constituent power belongs to the people, and those who propose to represent it must take into account the ethical, cultural, social, and religious values that truly represent the will of the populace. On the other hand, the derived constituent power, also known as instituted, constituted, 2nd degree, secondary, or residual, has an eminently legal nature. It must comply with the legal rules imposed by the original constituent power, which creates limitations and conditions for its exercise. It can be subdivided into the reforming derived constituent power, the derived, and the revising. The reforming power is a constitutional reform power through a specific procedure established by the original constituent power. This is the case of constitutional amendments. The derived power is granted to the member states to draft their own constitutions. It was through this power that the state constitutions and also the Organic Law of the Federal District were structured. Finally, we have the revising derived constituent power. It is provided for in Article 3 of the ADCT, to review the Constitution in a simpler way five years after its promulgation. It led to the drafting of six constitutional revision amendments.

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AGU Explica - Poder Constituinte

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The Power of Constituent Power: An Explanation

Constituent power is the authority to make changes to a country's constitution, typically belonging to the people and exercised by elected representatives.

It can be divided into original constituent power, which establishes a completely new legal order, and derivative constituent power.

The Federal Constitution of 1988 was drafted through original constituent power, characterized as initial, autonomous, unconditional, and unlimited.

Constituent power is the supreme authority with political limitations to ensure legitimacy.

It is derived from the people and must consider their values, while the derived constituent power is based on legal rules and conditions.

The derived power includes reforming, derived, and revising powers, which respectively allow for constitutional amendments, state constitution drafting, and constitution revision.

The AGU's effectiveness and applicability have been exhausted, leading to its obsolescence.

For more information about the AGU and the legal world, follow #AGUexplains for future updates.