–Joshua Braver, Tufts University
The fear of “abusive constitutionalism” has set the agenda for scholarship on popular constitution-making. It warns of the danger that “constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease.” The term’s author, David Landau, and fellow traveler William Partlett, are particularly wary of the invocations of the people to call illegal constituent assemblies to create new constitutions that centralize power. Calling attention to this pernicious phenomenon has provided a valuable service to comparative constitutional law. Yet, although they have the right diagnosis, Landau and Partlett are prescribing the wrong medicine, namely the near or complete discarding of constituent assemblies, of popular authorship, and of the pursuit of just change.
In this blog post, I put “abusive constitutionalism” in perspective. Its solutions are unviable and needlessly conservative. Its cure is almost as problematic as the disease. Like Landau, I focus on post-Cold War South America and will also take note of post-communist constitutional transitions spurred by the fall of the Soviet Union as discussed by Partlett. For reasons of convenience and because of their efforts to limit constitutional change to primarily legal avenues, I shall refer to Landau, Partlett, and like-minded authors as “legalists.”
I have two main arguments. First, illegal constituent assemblies were the only feasible means to resolve crises of representation and break through legislative gridlock over sorely needed and long pending constitutional change in the Andes. Second, the movements for new constitutions were part of a broader movement to mobilize the disadvantaged in order to achieve more just societies. Landau devalues the goal of social change because of his aversion to conflict and his status- quo bias. Rather than discarding or restraining the people, the goal should be to articulate a new vision that harnesses and channels them through liminal legal space to avoid the dangers of despotism or breakdown. I attempt to do just this in an article that is available here.
The People and Constituent Assemblies for Resolving Gridlock over Constitutional Reform
In South America, constituent assemblies were necessary to break long-standing grid lock over constitutional reform. Colombia, Venezuela, and Bolivia all suffered from deep crises of governability and representation that created a consensus for the need for constitutional change. In all three countries, Congress had repeatedly tried and failed to radically change the constitution through the amendment method; once in Bolivia; twice in Venezuela; and five times in Colombia. Citizens believed that the congresses were corrupt tools of entrenched interests whether it be the drug cartels in Colombia, oil barons in Venezuela, or the lords of the large landed estates in Bolivia. The Congresses were discredited actors; their popularity was at its nadir; Congress was the very problem that constitution-making would seek to fix. The only actor with the legitimacy necessary to write new constitutions were elected constituent assemblies. Since the constitutions lacked provisions for a constitutional assembly, they could only be convoked illegally.
What would Landau or Partlett replace the constituent assemblies with? In his article, “Abusive Constitutionalism,” Landau slashes and burns through almost every possible solution to the very problem he raises. He ends on a near note of despair entitling his conclusion and almost accepting that the problems of popular constitution-making as having set “An Impossible Agenda for Constitutional Theory”
Landau is on much stronger ground when he argues for achieving internal diversity within the constitution-making body, a solution I wholeheartedly endorse. But Landau’s suggestion is only a first step. Populist presidents justify the selection of exclusive electoral rules on the basis of a revolutionary vision of the people that will overthrow the old and “corrupt” regime. Inclusion obstructs this change. From the point of view of insurgent majorities, these minorities are oligarchs and counter-revolutionaries. Any attempt to diversify the constituent assembly must take on these arguments head on and re-define the people’s relationship to law.
Drawing on examples from post-communist transitions in Europe, the Caucasus, and Central Asia, William Partlett argues that parliaments are more deliberative than the elected and irregular constitutional assemblies favored by constitutional theory. Yet, there is a mismatch between Partlett’s examples and the theory they are meant to disprove. Partlett draws upon five examples to show how popular constitution-making undermined deliberation and facilitated acts of abusive constitutionalism. But four of the examples have no constitutional assemblies at all. In the fifth example of Russia, the constituent assembly was not elected, but appointed and was carefully controlled by the President. These are examples of presidential and plebiscitarian constitution-making, not of the elected assemblies that theorists of popular constitution-making support.
By contrast, freely elected constituent assemblies were the means to create five of the six new constitutions made after the end of the Cold War in South America. In these cases, the record is mixed, with Venezuela and Ecuador excessively concentrating power in the executive while Bolivia and Colombia produced constitutions that, by the region’s standards, reasonably de-centralize, check and balance power. My work bolsters the conception of the people that justified the inclusive constitution-making process of the latter two countries.
Partlett laments the “transplanting” of “a revolutionary tradition of constitution-making into [the] post-authoritarian setting” of Eastern Europe. But we must be careful to avoid committing the reverse error of exporting Europe’s “velvet” turn into the South American democratic and revolutionary setting. The circumstances in the latter region were more propitious for popular constitutional change as the democratic and pre-existing institutions may be able to set boundaries for the popular constitution-making process, and the desire for change would have rendered problematic the empowering of a discredited legislature as the sole constitutional drafter.
Furthermore, the need for a constituent assembly is a reflection of the long and robust tradition of constituent power in South America, especially in Venezuela, Bolivia, Colombia, and Ecuador. Constituent power is part of these countries’ DNA. Even in the unlikely event that the academic literature reached near-consensus that the constituent power was a pernicious idea, it would not end these countries’ almost 200-year old tradition embedded in countless treatises, speeches, and pamphlets. For the Andes, the best intervention is not over whether constituent power is a good idea, but over what constituent power consists in. The correct question is not whether to have a constitutional assembly but how it should be organized.
Popular Participation and Change
The constituent power is a tool of inclusion and mobilization for the excluded to achieve significant change. Landau fails to appreciate this because his argument suffers from a status quo bias. For Landau, if the status quo is stable, it should be preserved. As Landau states, his “conception of constitution-making views it as an essentially preservative rather than a transformative process.”
What would legalists’ argument preserve in the Andes? For hundreds of years, the underclass of the indigenous and workers have suffered immense stigma and discrimination amidst incredible inequalities of wealth. The status quo was unjust; it was rightly changed, not preserved.
To disrupt the status quo, disorder was necessary, even desirable. Let’s briefly focus on Bolivia. From 2000-2005, the country suffered five years of destabilizing protest. The blockades and marches drained the country’s GDP and created many martyrs for the cause. This disorder was perhaps just as destabilizing as the constitution-making process that Landau condemns. But the actors were fully aware of the cost and were willing to pay it to pursue change. These moments of protest, nationally remembered as the “Water and October Wars” and consecrated in the Preamble to the 2009 Constitution are now among the proudest in Bolivian history because individuals sacrificed and suffered to achieve a more just future. The constitutional process did not break a pre-existing harmonious peace, but was one more step in a long and agonizing process of the indigenous and peasant movements to re-take their country.
Once we understand that tumult and change go hand in hand, we can see that Landau’s excessive concern for order has blinded him to the success of the Bolivian constitution-making process. For Landau, the example is a case of “constitution-making gone wrong” and near “constitutional breakdown.” Yet, he concludes that the new constitution “helped to unify the country and reduce regional tensions” and that “the process appears to have taught Morales and his supporters a considerable amount about governing.” Indeed, by the standards of the region, Bolivia has a fairly de-centralized constitution with checks and balances.
Landau’s problem, then, is not with the substance of the Bolivian Constitution, but with the unsightly process it took to get there. No one would call it pretty. The process was dangerous, agonizing and even bloody. It demonstrates what activists all around the world already know: change requires sacrifice and is never achieved without conflict. In the Andes region, the idea of the people mobilized the excluded to retake their countries. It was a means of gaining dignity amidst poverty, of gaining agency amidst despair.
I agree with legalists that the idea of the people poses immense dangers and that addressing them should be a priority. We differ, however, on whether addressing these dangers entails abandoning the participatory ideals of constitution-making. I deny that this trade-off is necessary or even viable. Rather than give up on the idea of the people, in my new article on Venezuela and Bolivia, I re-conceive it so that it breaks the gridlock over constitutional reform, so that it addresses the pent-up demand for popular processes to create a new constitution without degenerating into chaos or authoritarianism.
Suggested Citation: Joshua Braver, Putting “Abusive Constitutionalism” and Populism in Perspective, Int’l J. Const. L. Blog, July 27, 2018, at: http://www.iconnectblog.com/2018/07/putting-abusive-constitutionalism-and-populism-in-perspective-2
 Landau, “Abusive Constitutionalism,” U.C. Davis L.R. 47(2013).
 See also the works of Allan Brewer-Carias, Jorge Lazarte, Humberto dela Calle, and Daniela Salazar..
Andrew Arato shares the legalists’ preference for legal continuity and their aversion to the idea of the people, but he nonetheless champions a constitutional assembly and an extraordinary moment as necessary for creating sociological legitimacy. Arato, Civil Society, Constitution, and Legitimacy(2000).
Of the “legalists”, Landau places the least emphasis on legal continuity, but still stands against the popular participation associated with constitutional assemblies.
 I lack the space to discuss Ecuador.
 Landau, “Abusive” 259.
 Landau., “Constitution-making Gone Wrong”973.
 William Partlett, “Elite Transitions in Constitution-Making,” 407, 412-14, 433, 447-457.
 Landau, “Wrong,” 926.
 Landau, “Wrong,” 958.