试论制宪权理论的起源及历史发展

A Preliminary Study of the Origin and Development of the Constitution-making Theory

制宪权理论的产生源于根本法思想、人民主权思想和立宪主义思想 ;制宪权理论自西耶斯提出后经过了肯定、国家法人主义和法实证主义的否定、施米特的新发展和日本当代争议不休等几个时期。制宪权应当高于其他国家权利 。

The constitution-making theory originated from the ideas of the basic law, the people’s right and constitutionalism. It has experienced ups and downs revealed in the praise by its initiator Sieyes and developed by Schmidt, and in the negative criticism by the theory of the state legalis homo and the French positivism, and has caused disputes in contemporary Japan. Though the constitution-making right should have supremacy over other constitutional rights, some restrictions should be imposed on it.