Abstract:
Constitutional supremacy – the contemporary refined form of the supremacy of the law –
is the foundation upon which present supreme constitutions such as that of the United
States of America and South Africa are based. Nevertheless, we find the opposite
principle, namely that of popular sovereignty also featuring prominently in these
constitutions. According to the doctrine underpinning the supreme constitution, the
tension between the two is decisively resolved in favour of the supremacy of the law (and
the constitution). However, there is a growing critical literature which questions whether
the supremacy principle is actually predominant. It is argued, for example, that the most
important changes to supreme constitutions result from dominant forces within the
populus, beyond the amendment provisions of these constitutions. This literature underscores
the need to revisit the relationship between legal supremacy and popular
sovereignty. This article enquires into this question, more specifically with reference to
the possible insights that might be gained from certain trends in the pre-modern and early
modern thinking regarding the relationship between these two principles. The inquiry
shows that the conceptions of legal supremacy and popular sovereignty were unified into
one single harmonious constitutional theory. This article describes and explains this
erstwhile union. It is concluded that popular sovereignty in the form of communal custom,
or more correctly, the customs and practices of the dominant forces within the populus,
were the active driving force of pre-modern constitutionalism. This is informative for
present constitutional theory as it explains why the dominant forces within the populus so
decisively determine the fate of the supreme constitution.
