Revolutionary constitutions: Schmitt, Kelsen and Arendt

If we distinguish between ‘revolution’ and ‘evolution’, the critical aspect of her theory of revolutionary constitutions becomes clearer. Against this background, I turn to the development of her concept of power and her critique of power-limiting constitutionalism as well as, finally, to her idea of a ‘power-founding constitution’, which is based on the living power of the people. Power-founding constitutions are designed to maintain revolutionary power in times of evolutionary constitutional incrementalism. But no jurisgenetic progress without the threat of jurispathetic regression. The internal and external limits to democratic constitutionalism came to the fore since the effective political establishment of a global neoliberal regime since mid of the 1970th. Europe is no exception but still in a process constitutional evolution that is open to alternative pathways enabled by the egalitarian normative constraints of global, regional and national constitutional and public law.