How Can Constitution Making Disrupt Separation of Powers Structures?

Abstract Constitution making can be weaponised to disrupt separation of powers (SoP) structures, but the connection between the ideas of SoP and constitution making remains under-theorised in the literature. The dominant normative theory of constitution making, the constituent power theory, has neglected this relationship partly by justifying how constitution makers do not need to respect, strengthen or establish a SoP institutional framework due to their ability to channel the unconstrained power of the people. This article argues that exploring the connection between the ideas of SoP and constitution making is a possible and desirable project. It identifies the conditions that can make such a relationship work and shows how constituent assemblies—a type of constitution-making organ—can disrupt SoP. The article proposes an analytical framework to examine those disruptions, focusing on the timing of their operation and identifying their normative implications.