—David Landau, Florida State University College of Law
I would like to thank Joshua Braver for his post yesterday here at I-CONnect engaging my 2012 piece on constitution-making, and am gratified that the work is still relevant and useful for ongoing debates in Latin America and globally. Braver’s own project – to reconceptualize constituent power theory so that it achieves necessary breaks with the past while also constraining “abusive” exercises of power by would-be authoritarian actors – is an important one. In this he advances a line of work engaged in by prominent scholars like Andrew Arato and Kim Lane Scheppele.
In a chapter for a forthcoming handbook on constitution-making that I am coediting with Hanna Lerner for Edward Elgar Press, I have asked two questions that are related, but distinct, from the one asked by Braver in this post: (1) what has the function of “constituent power theory” been in Latin America? (2) And is that function necessary and on balance, positive?
I think that the answer to the first question is that in Latin America, constituent power has mainly been used by politicians and courts in order to allow constitution-making to occur outside rather than inside the rules of the existing constitutional order, and in order to allow a constituent assembly to dominate all other institutions of state once it has been constituted. This of course does not even come close to plumbing the richness of constituent power theory; but I think it largely explains the practical function the theory has recently played in Latin America. The Venezuelan process of 1999, overseen by Hugo Chavez, offers a paradigmatic example. Chavez invoked constituent power in order to evade any constraint that the opposition-controlled legislature might have put on the constitution-making process. The Court reluctantly allowed this maneuver. And once called, the Assembly used its “original constituent power” to shut down, limit, and reconstitute other organs of state, including the Congress, Supreme Court, and local governments, as well as to legislate broadly and freely across a wide range of topics. The result was to allow Chavez to evade the checks that the opposition otherwise would have been able to place on his power, thus paving the way for the construction of a competitive authoritarian regime.
Braver is sensitive to this problem, and his response is to develop a more sophisticated and nuanced version of constituent power theory. I am sympathetic to the aim and find his list of criteria to be normatively appealing. My main concern is that any reconstituted theory will have to contend with practical realities of situations where these doctrines are being wielded by over-reaching political actors and applied by pressured or packed courts. As Rosalind Dixon and I are developing in current work, these are situations where doctrines of liberal democracy and even judicial review itself can be wielded in an “abusive” manner. Distinguishing the successful Colombian processes from the abusive Venezuelan ones must not only be conceptually possible, but also practically or empirically likely to work.
Is the workaround provided by constituent power theory necessary? I think only under fairly unusual conditions. In Colombia in 1991, constituent power theory was probably the only way out of a deep crisis. But the reason why was not mere political impasse – broad political consensus had developed that constitution-making was needed. In significant part, the problem instead was doctrine of the old Colombian Supreme Court that had the effect of freezing the old regime in place in an unusually complete manner. The Court had ruled in several cases that not only could the Colombian constitution only be amended in one manner (basically approval by Congress in several rounds), but the constitution could not be amended to add additional mechanisms of change such as Constituent Assemblies. Even though judicial restraint on constitution-making might itself be feasible and useful in some situations, this was bad doctrine that made the existing constitutional order too rigid. Even a consensus-based replacement process taking place inside the existing constitutional order, based on constitutional changes allowing an Assembly, would probably have been held unconstitutional. The doctrine of the Court itself necessitated constituent power theory as the only feasible exit.
In other countries in Latin America where constituent power theory has been recently used, the situation was different. In Venezuela, for example, the old constitution in fact had a mechanism for “general reform,” but Chavez did not seek to use it, since it required the consent of the Congress. He instead initiated a referendum unilaterally as to whether a Constituent Assembly should be called based on electoral rules that he drafted. In Ecuador with respect to the 2008 constitution, the legislature was negotiating on rules for constitution-making at the time President Correa pulled a similar maneuver. Chavez and Correa did not act in order to find an exit from a blockage; they acted in order to gain more control over constitution-making processes that potentially would have happened anyway, but under more consensual rules.
The value of pushing actors towards “legalistic” processes that take place inside rather than outside an existing constitutional order is instrumental rather than talismanic, and thus certainly not absolute: such rules may encourage more consensual processes. Thus, if actors can be incentivized to use an existing replacement clause or to write a new one into the constitutional order, this may help produce a process that is less likely to be abused for the benefit of a temporary majority. Replacement clauses can be constructed as the top of a “tiered” system of constitutional change.
Bolivia in fact offers a rich although problematic example: the basis of the process that produced the 2009 constitution was a replacement clause that had been inserted several years earlier, and which itself served as the precursor for rules allowing constitution-making to go forward but giving the opposition voice. Those rules were bruised and even broken at key points, and their legal effect has been disputed. But the restraining effect they exercised plausibly prevented Morales from writing a constitution unilaterally.
At the same time, we should recognize that there can be “bad” replacement clauses. Often in Latin America, those are ones inserted under the influence of constituent power theory. Take the ongoing Venezuelan “Constituent Assembly” called by Maduro in 2017. The basis for this call was a provision of the 1999 constitution that allowed the president to “convoke” such an Assembly unilaterally, and made explicit reference to the “original constituent power” of the “people.” Maduro like Chavez used this provision to call elections for an Assembly without any input from the opposition-controlled legislature, and unlike Chavez without even a prior referendum on whether such an Assembly should be called. Venezuelan legal scholars have raised significant problems with Maduro’s actions. These include the meaning of the presidential power to “convoke” and its interaction with the constituent power of the people, and the bizarre electoral rules used, which included variants of functional representation. Yet the clause itself was part of the problem, since it discouraged rather than encouraging negotiation with the resurgent opposition. Once called, the Assembly has shown virtually no interest in rewriting the constitution—but has used its power to attack opposition-held institutions, to legislate widely and controversially around the opposition-held legislature, and to change electoral rules and calendars so as to extend the rule of an unpopular and despotic regime.
A better crafted clause, in contrast, might have helped to ameliorate the Venezuelan crisis by forcing Maduro to negotiate with the opposition before initiating any new constitution-making process. And the Venezuelan clause is a fresh reminder of the damage that has recently been done in the name of the constituent power of the people in Latin America.
Suggested Citation: David Landau, The Trouble with Constituent Power in Latin America: A Reply to Joshua Braver, Int’l J. Const. L. Blog, July 28, 2018, at: http://www.iconnectblog.com/2018/07/the-trouble-with-constituent-power-in-latin-america-a-reply-to-joshua-braver
 Braver argues that the replacement clause was itself illegal, and thus an example of “extraordinary adaptation,” because the process through which it was added itself violated the constitution. The constitution required two rounds of approval by a two-thirds supermajority: first a law that is a “declaration of the necessity of reform,” then in the next “constitutional period,” the reform itself. Formally, the reform was based on an earlier “necessity” law from 2002. But among other problems, the new law was drastically different from the old: it included a process for selecting a Constituent Assembly, which had been wholly absent from the initial proposal. A challenge brought to the Constitutional Tribunal (310/2004) was rejected on competence grounds, without reaching the merits of the issue, and once it failed the major political actors seemed to treat the provision as part of the constitution. There is a difference between an arguably defective attempt to add a replacement clause that nonetheless rooted constitution-making in the existing text, and an invocation of original constituent power. Regardless, Braver is correct that a rigid temporal limitation could create a case for the exit provided by constituent power theory in rare cases.