Blog of the International Journal of Constitutional Law and

Save the Date–Conference on “Rewriting the Canadian Constitution”–Boston College Law School–October 19-20, 2017

Richard Albert, Boston College Law School

All are welcome to Boston College Law School for a major conference on October 19-20, 2017 to mark the 150th anniversary of Confederation in Canada. The program, entitled “Rewriting the Canadian Constitution,” will feature four panels and a moderated luncheon discussion with the Hon. Russell Brown of the Supreme Court of Canada.

The conference is organized by a team of four: Kate Glover and Wade Wright, both representing the Public Law Group at Western University; Michael Pal, representing the Public Law Group at the University of Ottawa; and me here at Boston College Law School.

We thank the Clough Center for the Study of Constitutional Democracy, directed by my faculty colleague Vlad Perju, for so generously sponsoring this program.

The panelists and discussants below are all confirmed. We welcome all to attend. Details on free registration will be available later this month.

Panel 1: Proposals (and Prospects) for a New Division of Powers

Erin Delaney [Northwestern]
John Ferejohn [NYU] [Discussant]
Noura Karazivan [Montreal]
Maxime St-Hilaire [Sherbrooke] [Chair]
Wade Wright [Western]

Panel 2: The Unfinished Democratic Constitution

Matthew Harrington [Montreal] [Chair]
Sonia Lawrence [Osgoode] [Discussant]
Manoj Mate [Whittier]
Michael Pal [Ottawa]
Signa Daum Shanks [Osgoode]

Panel 3: Writing the Unwritten Constitution?

Elena Drouin [McGill] [Chair]
Kate Glover [Western]
Jeff Hewitt [Windsor]
Patrick Macklem [Toronto] [Discussant]
Daniel Weinstock [McGill]

Panel 4: The (Im)Possibility of Constitutional Amendment?

Richard Albert [BC]
Jamie Cameron [Osgoode] [Discussant]
Erin Crandall [Acadia]
Emmett Macfarlane [Waterloo]
Warren Newman [Department of Justice, Canada] [Chair]

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Published on September 9, 2017
Author:          Filed under: Developments

A Constitutional Crisis in Guatemala?

–Carlos Arturo Villagrán Sandoval, Melbourne Law School

On August 29th 2017, the Guatemalan Constitutional Court declared without effect a Presidential declaration that expelled the Commissioner of the International Commission Against Impunity in Guatemala (CICIG in the Spanish acronym). The events leading to this judgment consisted of a series of twists and turns, like those you may find in a Latin American “telenovela”. In this post, I explain how the Constitutional Court arrived at this point.

First, some brief background.

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Published on September 8, 2017
Author:          Filed under: Developments

Five Questions with Gábor Halmai

Richard Albert, Boston College Law School

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions” features Gábor Halmai, Professor of Comparative Constitutional Law at the European University Institute. His full bio follows below:

Gábor Halmai, professor and chair of Comparative Constitutional Law at the European Univetsity Institute in Florence. His primary research interests are comparative constitutional law, and international human rights. He has published several books and articles, as well as edited volumes on these topics in English, German and Hungarian. His most recent book, ’Perspectives on Global Constitutionalism’ (Eleven International Publishing, 2014) deals with the use of foreign and international law by domestic courts (published by Eleven International Publishing in 2014). He joined the EUI in 2016 after a teaching and research career (at the Eötvös Loránd University in Hungary, at the Princeton University in the US, at the European Masters Program in Human Rights and Democratization in Italy) as well as years of professional career as chief advisor to the President of the Hungarian Constitutional Court, member of the EU Fundamental Rights Agency’s Management Board and numerous other civic activities.

1. Tell us about something you are working on right now.

Currently I am working on a theme related to the constitutional backsliding in East Central Europe from three different angles. The first is about the ways in which these countries managed to unmake liberal constitutionalism with a new constitution, like in Hungary, or without it, like in Poland. The second is the use and misuse of national constitutional identity in this process, and the third is the more theoretical question, whether there is such a thing as popular or illiberal constitutionalism.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

My first rector in the mid 1970s back in Hungary, Ivan Berend, who is now professor emeritus at UCLA used to say to young researchers that the routine doesn’t really matter as long as you work 18 hours a day. Since I have always had joy in my family, that is time well consumed, I have never managed to achieve 18 hours a day, so I steal time from my sleeping hours. Putting the half-joke aside, I find it a challenge to write during the teaching burden of the academic year as the topics of my students are taking me to all directions, so I have always tried to find structures research (like fellowships, holidays, sabbatical years) where I can truly focus on my research, and as a result, all my monographs are products of such times.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

First and foremost the works of my current colleagues at EUI as well as my former colleagues from Princeton, Kim Scheppele and Jan-Werner Müller with whom we continue to debate new ideas and comment on drafts. Naturally, I read everything from András Sajó, my former colleague from Budapest, and from Armin von Bogdandy from Heidelberg. Publications dealing with topics similar to mine, like Andrew Arato, Wojciech Sadurski, Jiri Priban, Bojan Bugaric, and Paul Blokker are always on the top of my list. And honestly, I enjoy reading PhD works in progress, which is my main duty at EUI.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

Since I went to the law school in the first half of the 1970s, the most important book for me at that time was René David’s The Major Legal Systems in the World. Obviously, it became outdated by now, but its comparative approach was certainly influential for becoming a comparativist. During Communism in Hungary almost none of the Communist works on the field of public law was worth to read, but I still remember the excellent monograph of Gyula Eörsi on Comparative Private Law.

5. What are some of the big questions ripe for inquiry in your area of research interest?

For someone, like me, who is personally motivated to understand the reasons of the rise and fall of liberal constitutionalism in East Central Europe, as well as the rise of ‘populist constitutionalism’ in some parts of Western Europe, Latin America, and recently in the US, one of the biggest questions is the, ideally. dialectic relationship between constitutional law and constitutional culture. Constitutional law is an inevitable instrument for the political and the legal elite to build up a new state based on the rule of law, but it must be based on a constitutional culture of the non-political and non-judicial actors, most of all the people. My experience in East Central Europe is that if there is no tradition of such a culture, and also the democratic transition has to first solve more important existential questions, and the populist leaders keep the people busy with such issues, constitutional law can not help to form a constitutional culture.

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Published on September 7, 2017
Author:          Filed under: Reviews

Triple Talaq: Still Not Unconstitutional in India

–Sachin Dhawan, Assistant Professor, Jindal Global Law School, India

The famous American lawyer and judge Thurgood Marshall used to tell his judicial clerks that the most important principle in law is the rule of five. In its absence, all else was irrelevant. He was referring to the number of judges required to constitute a majority of the U.S. Supreme Court, without whose backing no verdict could be rendered in a case. In the wake of the recently issued decision on triple talaq [instantaneous divorce] in Shayara Bano v. Union of India, it is apt to recall this simple but important lesson. Lost amidst the euphoria over the decision is an inconvenient fact: despite proclamations to the contrary, talaq-e-biddat or triple talaq has not been declared unconstitutional by the Supreme Court of India. This is because there is no majority among the judges on the question of its unconstitutionality.

Triple talaq enables a Muslim man to divorce his wife by uttering the word talaq three times. The practice has generated considerable controversy for allowing Muslim men to easily discard their wives, even in their absence. Recently men have been resorting to social media platforms such as Skype and Whatsapp to effect divorce via triple talaq. Consequently, the Supreme Court decided to examine the legal status of the practice, whereupon several writ petitions were filed last year seeking a declaration of unconstitutionality.

However, those celebrating the unconstitutionality of triple talaq are overlooking some basic facts about the holding.

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Published on September 6, 2017
Author:          Filed under: Developments

What’s New in Public Law

–Nausica Palazzo, Ph.D. researcher in Comparative Constitutional Law (University of Trento)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email

Developments in Constitutional Courts

  1. The Constitutional Court of South Africa ruled that new homeowners are not liable for historical debt incurred by previous owners.
  2. The Constitutional Court of Indonesia declined to review the Citizenship Law’s Article 41, requiring children of mixed marriages to register to attain Indonesian citizenship.
  3. The US Supreme Court stays a lower court order redrawing Texas congressional districts deemed discriminatory.
  4. The Supreme Court of Kenya nullified the results of presidential elections.
  5. The Supreme Court of Kyrgyzstan confirmed that recently convicted opposition leader Tekebaev cannot run for presidential elections.

In the News

  1. The Chilean President signed a bill legalizing same-sex marriage and adoption for same-sex couples and sent it to Congress for debate.
  2. Poland snubs EU Commission’s concerns over the politicization of the judiciary.
  3. South Africa’s High Court is set to is hear a case on the legalization of polygamous Muslim marriages.
  4. India’s government rejected calls to outlaw marital rape, as the Delhi High Court conducts hearings on the issue.
  5. The US President’s recent Memorandum barring enlistment of transgender individuals in the military was challenged in court.
  6. The Togolese opposition has called for a revision of the 1992 Constitution and to end the 50-year ruling dynasty.
  7. A Brazilian court enjoined a decree by President Temer allowing mining in an Amazon reserve.
  8. A Pakistani anti-terrorism court declared ex-military leader Musharraf a fugitive from the law in the Benazir Bhutto murder case.

New Scholarship

  1. Jane C. Ginsburg, The Court of Justice of the European Union Creates an EU Law of Liability for Facilitation of Copyright Infringement: Observations on Brein v. Filmspeler [C-527/15] (2017) and Brein v. Ziggo [C-610/15] (2017) (forthcoming 2017) (describing the European harmonization of the law on derivative liability for violation of the right of communication to the public)
  2. Anthony F. Lang and Antje Wiener (eds.), Handbook on Global Constitutionalism (2017) (introducing to the history, philosophy, and evidence of global constitutionalism)
  3. Pamela S. Karlan, Undue Burdens and Potential Opportunities in Voting Rights and Abortion Law, Indiana Law Journal (forthcoming 2017) (analyzing the similar doctrinal evolution of voting rights and abortion rights, and building on the undue burden standard to discuss the impact of poverty on liberty and equality)
  4. Justine Guichard, Regime Transition and the Judicial Politics of Enmity: Democratic Inclusion and Exclusion in South Korean Constitutional Justice (2016) (examining the role the Constitutional Court of Korea has performed in the context of the transition from an authoritarian to a democratic regime)
  5. Uladzislau Belavusau, Hate Speech, in Max Planck Encyclopedia of Comparative Constitutional Law (forthcoming 2017) (analyzing in comparative perspective the regulation of hate speech)
  6. Theodore Eisenberg and Giovanni B. Ramello (eds.), Comparative Law and Economics (2016) (offering a glimpse of the new perspectives that enrich the law and economics methodology, among which is the comparative approach)

Special Announcement: Conference on “A Tale of Two Constitutions”

On 18 September, academics from both sides of the Atlantic will convene at the Palace of Versailles for “A Tale of Two Constitutions.” The conference will draw academics from law and political philosophy, as well as a former Le Monde foreign correspondent with expertise in the constitutional and revolutionary history of France and American, and their impact and influence upon one another.  Conference participants will meet in Versailles’ new auditorium and will be welcomed by the President of Versailles and the US Embassy.

The conference will include three panels, discussing the French influence on American constitutional thought, the American influences on the French revolution and first constitutions, and the divergent histories of religious freedom and its impact on comparative constitutional law.  Plenary sessions will be on the American Founding in Paris and the French civil law tradition in American constitutional thought. A special presentation by the Quill Project at Pembroke College, Oxford will introduce the concept of adding French Revolutionary and constitutional negotiations to its corpus of American constitutional negotiations, making it possible to critically and scientifically compare and analyze the seminal work of the various bodies involved in those discussions, the entire body of work of which forms the basis for modern jurisprudence in much of the world.

For a full conference program, visit Versailles’ website here. To register for the conference, click here. For questions, please contact Lorianne Updike Toler at

Calls for Papers and Announcements

  1. The University of Toronto holds a conference on “The Canadian Constitution in Global Context: An Italian-Canadian Dialogue,” on Sept. 16-17, 2017, examining in comparative perspective the relevant features of Canadian Constitutional Law.
  2. Scholars with ten years or fewer years of teaching experience are invited to participate in the first-ever Younger Scholars Forum in Comparative Law, to be held in Fukuoka, Japan on Wednesday, July 25, 2018, from 9:00am to 12:00pm as part of the larger quadrennial Congress of Comparative Law organized by the International Academy of Comparative Law (IACL).
  3. Jindal Global Law School, Melbourne Law School, NUS Faculty of Law, and Bonavero Institute of Human Rights at the University of Oxford invite submissions from early career researchers to a workshop on on “Comparative Perspectives on Administrative Law in India.” The workshop will be held in Delhi, India, on April 7-8, 2017. The deadline for submissions is September 5, 2017.
  4. The Association of American Law Schools (AALS) Administrative Law Section invites submissions for the 2018 AALS Annual Meeting in San Diego, to be held on January 3-6, 2018. Only junior scholars are eligible to participate. Abstracts should be sent to by November 10, 2017.
  5. Revista Teoria Jurídica Contemporânea invites submission for its Special Section of vol. 2, no. 2 (July-December, 2017) on “Contemporary Comparative Law: Studies in Theory and Practice.” It accepts submissions in French, Portuguese, Spanish, and English. All submissions should be sent through the journal’s system.
  6. The Penn State University Center for the Study of Higher Education is hiring a scholar of higher education law and legal issues. The search committee will begin reviewing applications on September 15, 2017, and continue until the position has been filled. Applications shall be submitted electronically.
  7. The ASCL Younger Comparativists Committee invites comparative law professors to share their class syllabi to expand its database. To include your syllabus in the database, please email to and include “YCC Teaching Database” in the message’s subject heading, by September 20, 2017.
  8. The Swiss Institute of Comparative Law hosts a conference on “24 Years of Texaco/Chevron and Ecuador: What Happened in Lago Agrio and What Legal Action Has Accomplished,” to be held on September 14, 2017, in Lausanne.

Elsewhere Online

  1. Elisa Arcioni and Helen Irving, Dual citizenship and eligibility to serve as a member of Parliament – the evolving story in Australia, EUI Citizenship blog
  2. Asanga Welikala, More than meets the eye? The Sri Lankan Supreme Court’s decision on the proscription of the Federal Party, ConstitutionNet
  3. Dan Svantesson, Supreme Court of Canada challenges the idea of state sovereignty, OUPblog
  4. Carlos Ayala Corao, Venezuela: Lessons of a Crisis Written on the Wall, Verfassungsblog
  5. Adeel Hussain, Privacy and the Indian Supreme Court, Verfassungsblog
  6. Lillian Cunningham, Episode 5 of the Constitutional podcast: ‘Gender’, The Washington Post
  7. Jack M. Balkin, Scenes from a Disjunctive Presidency, Balkinization
  8. Monica Cappelletti, Puzzling over Big Data and Data Protection Rights in a European Perspective, Comparative Law Prof Blog
  9. Paul Webb, Susan E Scarrow and Thomas Poguntke, New parties, new movements: but how much say do party members get?, EUROPP
  10. Duncan Okubasu, (Ethno-political) Strategic Components of the Supreme Court of Kenya’s Presidential Election Decision: Settling for the lesser evil?,
  11. Sarah Murray, Knight’s Watch: Ad Hominem Parole Legislation Hits the High Court, AUSPUBLAW
  12. Max Regus, Islam and Human Rights: A Critical Intersection, OxHRH Blog
  13. Kamilia Khairul, Children’s Rights, Illegitimacy and the Rule of Law in Malaysia, OxHRH
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Published on September 4, 2017
Author:          Filed under: Developments

Assessing the Risks of Constitutional Revisions (I-CONnect Column)

Aslı Bâli, UCLA School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

At the beginning of August, following months of crisis and weeks of protests and violent demonstrations, Venezuela’s controversial new constituent assembly took office. The challenge in Venezuela runs deeper than contestation over drafting or revising a constitution. The new constituent assembly was also given the power to bypass or dissolve the opposition-led National Assembly, further consolidating President Nicolas Maduro’s stranglehold on the country’s politics. In line with a global trend of authoritarian regimes manipulating the ballot box to entrench power, Maduro convened elections for the assembly that were marked by violence and fraud. The result is the seating of an assembly that has eliminated opposition voices and empowered Maduro and his allies to rewrite the constitution to their liking, as a recent ICON symposium makes clear.

One question to consider is why constitutional revision has become such a consistent part of the global authoritarian repertoire? On the one hand, the answer seems obvious. The goal is to harness the power of populism to alter the basic institutional architecture of the state: maximize executive control, permanently bias the rules of electoral competition and alter or eliminate devices like term limits. On the other hand, there is a broad toolkit of other strategies to accomplish these goals without engendering the conflict and criticism associated with constitutional changes. Aziz Huq and Tom Ginsburg have cataloged a wide array of such mechanisms short of formal constitutional change. These range from using appointments powers to pack existing regulatory and judicial institutions with loyalists to using statutory powers intended to address corruption, tax evasion or defamation as instruments to disproportionately harass, threaten or imprison opponents and repress civil society. Executive power can be used to alter sub-constitutional statutory and regulatory regimes to shift electoral rules, curb civil society organizing and much more. Because changes of this kind often remain under the radar, some have referred to such techniques as a way of achieving stealth authoritarianism.

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Published on September 3, 2017
Author:          Filed under: Analysis

Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–Like Quicksand: Opposing Venezuela’s Constitutional Assembly

[Editor’s Note: This is the last of six parts in our symposium on the subject of “Venezuela’s 2017 (Authoritarian) National Constituent Assembly.” The introduction to the symposium is available here.]

–Laura Gamboa, Utah State University

On December 2015, the Venezuelan opposition won a qualified majority in the National Assembly. Their victory made evident that the Chavista coalition—which up until then had remained in power with a combination of popular support and electoral manipulation—was no longer able to win mildly competitive elections.  This realization changed the nature of the regime. Between October of 2016 and April 2017, the government canceled and stalled elections, usurped the power of the National Assembly, and increased the use of violence and repression against opposition members. Since then, Venezuela has resembled more a dictatorship, than a competitive authoritarian regime.

In response to the government’s increased authoritarianism the opposition augmented its presence in the streets. During April the Venezuelan Observatory for Social Conflict (OVCS) recorded at least 134 anti-government protests across the country. The executive’s reaction to the domestic and international pressure that these protests ensued was twofold. On the one hand President Nicolás Maduro increased repression; on the other hand, he called elections for a National Constituent Assembly (Asamblea Nacional Constituyente, NCA). The later was an authoritarian reaction to the opposition’s pressure for regime change.

Contrary to what the president claimed at the time, the purpose of the NCA was not to bring peace by way of consensus or political inclusion. Rather, the new constitution is an exercise of authoritarian constitution making.[1]

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Published on September 2, 2017
Author:          Filed under: Developments

Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–Pursuing Constitutional Authoritarianism

[Editor’s Note: This is the fifth of six parts in our symposium on the subject of “Venezuela’s 2017 (Authoritarian) National Constituent Assembly.” The introduction to the symposium is available here.]

–José Ignacio Hernández G.*

In the middle of civil protests, on May 1, 2017 Venezuela’s President Nicolás Maduro announced his intention to convoke a “National Constituent Assembly” (NCA), to “promote peace in Venezuela”. Instead of peace, Maduro’s announcement increased the country’s political crisis and the international pressure against his regime, particularly after the “election” of NCA members on July 30, 2017.   To help understand Venezuela’s complex situation under the NCA, this post will briefly address four main topics: (1) the political context in which Maduro announced its intention to convoke the NCA; (2) the illegitimacy of the NCA; (3) the fraudulent purpose of the NCA; and finally (4) what can be expected from the NCA after its first decisions.

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Published on September 1, 2017
Author:          Filed under: Developments

Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–(Mis)representing the People: Notes about the Electoral Bases of the 2017 National Constituent Assembly in Venezuela

[Editor’s Note: This is the fourth of six parts in our symposium on the subject of “Venezuela’s 2017 (Authoritarian) National Constituent Assembly.” The introduction to the symposium is available here.]

–Juan Alberto Berríos Ortigoza*

In this short essay, I offer a few reflections about the rules (‘bases’) designed to organize the election of Venezuela’s National Constituent Assembly (NCA).  Specifically, I focus on the electoral bases proposed by President Nicolás Maduro in the Presidential Decrees numbers 2.878, of May 23, 2017, and 2.889, of June 4, 2017 – both endorsed by the National Electoral Council (CNE), with minor amendments via Resolution N° 170607-118 of June 7, 2017.

Decree N° 2.878 proposed eleven (11) electoral bases, referred to the election and the number of members of the NCA, the requirements for the nomination of candidates, the time of installation of the assembly, the declaration of its original status, and the limits of its performance.  Decree N° 2.889 supplemented the electoral bases by a single article, in which the Assembly is urged to submit the Constitution’s draft for referendum approval.  Finally, the proposal was adopted by the CNE in Resolution N° 170607-118, specifying the rules of the election and establishing twelve (12) bases.

In contrast to the constitutional process of 1999, these electoral bases do not contemplate a popular referendum for the call of the Assembly, or order the NCA to submit the final constitutional text draft to referendum.  They also fail to specify its duration (which back in 1999 was 180 days).  However, in its first session, held on August 5, the NCA decided unanimously and without any debate that the duration would be 2 years, without a firm commitment to ending at that point.

As other commentators have pointed out, the decrees in question show that the government intends to use the NCA as an instrument to exclude the opposition and impose its political project.  The decrees seek to manipulate the supposed democratic features of the constituent assembly, in clear violation of the principle of political pluralism referred to as a preeminent value in the 1999 Constitution (article 2).

More worryingly, the decrees suggest that the NCA will go beyond creating a new constitution, mentioning that its efforts will be directed toward “securing peace”.

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Published on August 31, 2017
Author:          Filed under: Developments

Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–The National Constituent Assembly in Venezuela (2017) in its Historical Context

[Editor’s Note: This is the third of six parts in our symposium on the subject of “Venezuela’s 2017 (Authoritarian) National Constituent Assembly.” The introduction to the symposium is available here.]

–Carlos García-Soto*

The institutional history of Venezuela has witnessed many “Constituent Processes” and constitutional reforms, resulting in several constitutional texts from 1811 until today.  It is important to briefly review these processes to place the current National Constituent Assembly in historical context.  Although the last two constitutions (1961 and, if replaced, 1999) lasted about four and two decades, respectively, the country’s history witnessed a remarkable pattern of constitutional instability.

The Constitutions of the 19th Century

During the 19th Century Venezuela emerged as one of the most unstable countries in the region.  Its constitutional history reflects its turbulent process to gain independence from Spain, the Venezuelan state’s lack of consolidation after independence, and the perpetual conflict amongst waring factions.

The Supreme Congress of Venezuela, also known as the Constitutional Congress of 1811, was installed on March 2nd of that year, and was the first Parliament in Venezuela’s history.  This Supreme Venezuelan Congress was the birth place of the Declaration of Independence of July 5, 1811. After the American Constitution (1787) and the French Constitution (1791), the Federal Constitution for the States of Venezuela, signed on December 21, 1811, was the first in Latin America.

The Constitution of 1811 was followed by the Constitution of 1819, known as “Constitution of Angostura” and influenced by Simón Bolívar’s ideas. This constitution was replaced by the Constitution of 1821, enacted by Bolívar after the Battle of Carabobo, which led to the establishment of the Gran Colombia.  Shortly before Bolívar died, the Congress of Valencia dictated the Constitution of 1830. This new Constitution, enacted by José Antonio Páez, sealed Venezuela’s separation from the Gran Colombia.  Thus, in less than two decades, the country had four constitutional texts.

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Published on August 30, 2017
Author:          Filed under: Developments