Constituent power of the people is fundamental to modern constitutionalism. Yet in the constitution making process in Iraq in 2004 and 2005, constituent power was appropriated away from the people and placed, by the American-led occupation of the country, in the hands of the political elites. The antagonistic political maneuvering that ensued between elites, often times along ethno-sectarian lines, led to a constitution making process defined by an absence of popular engagement. The result has been a constitution devoid of democratic value for the people, and a Schmittian political dynamic between elites in which the Iraqi Constitution is essentialised for political gain at the expense of the Iraqi people, their rights, and stability in the country. After exploring the concept of constituent power – or popular sovereignty – I discuss the practical challenges constituent power faces within a modern constitutional democracy. While the people are the ultimate sovereign, constitutional democracy constrains that sovereignty through constitutional and legal practices. This constraint is one element of ‘the paradox of constitutionalism.’ Political and legal theorists including Carl Schmitt have attempted to reconcile the paradox by locating an ongoing role for ‘the people’ within constitutionalism. In Iraq, key constitution making moments in 2004 and 2005 highlight the absence of constituent power of the people, and the appropriation of constituent power by elites. These moments described are supplemented with first-hand interviews I conducted with Iraqi political figures in Baghdad in June and July of 2012. These elites were involved at various points in the most recent constitution making process in Iraq, and will contextualise my critical analysis of current constitutional politics. Juxtaposed against the earlier theoretical discussion and Schmitt’s description of the people’s integral, ongoing role and relationship in and with the constitution, this paper argues that the political will expressed by the elites during the constitution making process has been followed by a constant Schmittian political state, which has prevented serious constitutional legality and order to be established, and has denied a true relationship between the people and the constitution to develop.