Carl Schmitt and Constituent Power in Latin America Courts, The Cases of Venezuela and Colombia - Joel Colón-Ríos

Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Venezuela and Colombia
Joel I. Col on-R os
If there is a concept in modern constitutional theory that is unlikely to be found in a judicial opinion it is that of constituent power. And if there is a jurist not likely to be treated favorably by a court in a constitutional democracy, it is Carl Schmitt. Courts, and particularly courts in constitutional democracies, are close to being the exact opposite of the constituent subject: they are called to limit political power, to put into practice the constraints placed by constitutionalism on both governments and their peoples.1 And Schmitt, one of the most famous 20th century theorists of constituent power, was not only directly associated with National Socialism during the 1930s, but his theory pointed toward an unlimited and uncontrollable sovereign, a political will whose decisions could not be limited by any form of positive law. Perhaps more importantly, he maintained that constituent power could be exercised at any moment after a constitution is in place, an idea that, at least at first sight, appears to be alien to the activity of deciding cases according to established law. Latin American courts, however, represent an important exception to this rule.2 It is not only common for courts in this region to discuss in detail the theory of constituent power, but also to adopt the Schmittian conception of constituent power as surviving alongside and above3 the constitution. For instance, in a case related to the validity of a constitutional amendment altering the governments pensionary regime, the Peruvian Constitutional Court discussed at length the distinction between constituent power and the power of constitutional reform. Openly relying on Schmitt, the court defined the former as the sovereign power to create or radically transform a constitution and to establish the fundamental values that will guide government, and the latter as the power to modify the constitution according to the prescriptions contained in the constitutional text.4 Schmitts constitutional theory, and particularly his conception of constituent power, has long been influential in Latin American constitutional theory, where his Verfassungslehre has been available in Spanish since the 1930s.5 Not surprisingly, his work played an important role in the juridical consolidation of dictatorships during the 20th century, as Renato Cristi has shown with regards to Augusto Pinochets regime in Chile and the attribution of constituent power to a military junta.6 By examining two key judicial opinions from Venezuela and Colombia, this paper will show that the theory of the constituent power, in its Schmittian formulation, can be used both to defend the idea of an unlimited popular will, but also to limit political power in profound ways. The first of these decisions, Opinion No. 17 of the Supreme Court of Justice of Venezuela (1999), provides an example of the former in the context of the exceptional moment of constitution-making. There, a court declared that the people was not bound by the amendment procedure contained in the constitution (which was determined to only apply to Congress and the other constituted powers), and could therefore alter the constitution through other extraordinary and non-specified procedures. The second decision, Sentencia C-551/03 of the Colombian Constitutional Court (2003), put into practice Schmitts theory of implicit limits to constitutional reform, ruling that the constituted powers (in this case, the
Constellations Volume 18, No 3, 2011. C 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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executive and legislative powers) could not engage in an act of constitution-making, an act that could only be performed by the constituent subject. The paper begins with a review of Schmitts theory of constituent power, as developed in the first part of the Verfassungslehre. This first section will stress those aspects of Schmitts theory that have been particularly influential in Latin America, such as the distinction between constituent power and the power of constitutional reform, and the relation between constituent power and positive law. The second and third sections will be devoted to examine the previously mentioned decisions of the Venezuelan and Colombian courts, which provide important insights into some of the practical implications of Schmitts theory, as well as of its dangers and (democratic) potential. By briefly examining whether these two approaches present a truly different account of the theory of constituent power, the fourth and final section will defend the view that constituent power should not be summarily rejected by contemporary constitutional theorists as an invitation to absolute and arbitrary rule.
I. Constituent Power in Schmitts Constitutional Theory

The concept of constituent power has recently become one of the most powerful juridical tools of the Latin American left (as recently exemplified in Venezuela, Bolivia, and Ecuador).7 Feared by traditional elites for its transformative potential, it is also combated by all means, as the recent events in Honduras have shown us.8 The concept of constituent power has lately begun to be considered by Anglo-American constitutional theory too, and this new interest is generally related to the interest in the work of Carl Schmitt.9 However, Anglo-American constitutional theorists seem to have been captivated by the more mysterious aspects of Schmitts conception of constituent power, such as its pre-legal, absolute, and formless character, and have not yet given full consideration to its practical juridical implications in the context of constitutional reform and constitution-making.10 It is precisely these aspects of Schmitts theory that have long been part of Latin American constitutionalism, and which I will summarize in this section. As is well known, the distinction between constituent and constituted powers was developed by Emmanuel Siey` es at the time of the French Revolution.11 Constituent power means constitution-making power, the source of production of fundamental juridical norms. The constituent subject, according to Siey` es, remains in the state of nature and is always capable of renovating established juridical orders. For this author, the rightful possessor of constituent power is the nation,12 which is all-powerful and cannot be limited by any form of positive law; it is the ultimate cause of the polity. The nation, as the bearer of constituent power, never needs anything but its own existence to be legal. It is the source of all legality.13 The constituted powers, in contrast, are the legal and political institutions created by the constituent subject. These bodies (e.g. the executive, legislative and judicial powers in the modern republican form of government) are always limited by the constitutional forms that grant their existence. For example, an ordinary legislature must adopt statutes in the manner prescribed in the constitution and cannot exercise its legislative power in ways that violate the established constitutional forms.14 Siey` es theory was further developed (and in a way radicalized) by Schmitt.15 Schmitt defined constituent power as the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of political existence.16 In that respect, he rejected the Kelsenian doctrine according to which a constitution rests on an abstract norm and instead contended that it could only rest on a sovereign decision: The constitution is valid by virtue of the existing political will of that which establishes it.17 For
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Schmitt, constituent power could not be limited by law or regulated by any legal procedures; the will of the constituent subject is an unmediated will.18 In other words, no constitution can confer constituent power or prescribe the ways it is initiated: the constituent subject (in a democracy, the people)19 can (re)determine its form of political existence whenever it decides such an action necessary.20 Notwithstanding the above, Schmitt maintained that although constituent power could not be limited by any rules or institutions, the execution and formulation of the decisions of the constituent subject normally required certain organization and procedures.21 Otherwise, the constituent subject would remain in a state of powerlessness and disorganization, unable to transform its will into law. In the context of modern democracy, these procedures take different forms, but their paradigm is the National Constituent Assembly who drafts a constitution (and whose work is sometimes subject to popular ratification before it comes into effect).22 Although such an assembly acts as a sovereign dictator (because it does not have any competencies, in the sense of spheres of power delimited in advance, an idea that will become central in the decision of the Colombian Constitutional Court discussed below) it is not itself the sovereign. As such, it must always act in the name of and under commission from the people, which can at any time decommission its agents through a political act.23 Now, for Schmitt, the exercise of constituent power should not be made equivalent to the exercise of universal suffrage in ordinary elections or referendums: these are means for the exercise of competencies given by the constitution and, while important, are not to be used to alter the fundamental political decisions adopted by the constituent subject.24 What, then, are these fundamental political decisions? They are decisions about the type and form of the state (in Schmitts terminology, the peoples mode of political existence).25 Generally, they refer to the states basic structure: whether it takes the form of a republic or a monarchy, of a unitary or a federal system, of a liberal democracy or a socialist order. In the context of the Weimar Constitution, Schmitts main frame of reference, the following were identified as the fundamental political decisions of the German people:
[T]he decision for democracy, which the German people reached by virtue of its conscious political existence as a people. This decision finds expression in the preamble (the German people provided itself this constitution) and in Art. 1 sec. 2: State authority derives from the people. Additionally, there is the decision for the Republic and against monarchy in Art 1 sec. 1: The German Reich is a republic. There is also the decision for the retention of the Lands, therefore a federal-state (even if not a strictly federal) structure for the Reich (Art. 2). The Constitution also contains the decision for a fundamental parliamentaryrepresentative form of legislative authority and government. Finally, there is the decision for the bourgeois Rechtsstaat26 with its principles, fundamental rights, and separation of powers.27
These decisions constituted the substance of the Weimar Constitution. They represent the concrete political decisions providing the German peoples form of political existence.28 If accepted, this conception has important implications for actual constitutional practice: these decisions (as well as the provisions that contain them) cannot be touched by the ordinary amendment procedure.29 Decisions like these, Schmitt maintained, should not be treated as mere constitutional laws, that is, they are not provisions that have been included in the document called the constitution simply to insulate them from day-to-day legislative majorities; rather, they are the Constitution in the positive sense, which in this respect is equivalent to the set of fundamental political decisions that can only be altered by the
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bearer of the constituent power.30 This is why the controversial German jurist rejected the identification of constituent power with the power to reform the constitution: the offices with jurisdiction to amend the constitutional laws are not commissioned with the ongoing exercise of [constituent power].31 The power of constitutional reform only extends to constitutional laws: the institutions that have been granted this power may only amend individual constitutional provisions, under the presupposition that the identity and continuity of the constitution as an entirety is preserved.32 Under this view, when there is a change on these fundamental decisions, it is not correct to speak about constitutional reform but about constitution-making, about the creation of a new and different constitution.33 And only the constituent subject can legitimately engage in an act of constitution-making: the fundamental political decisions are a matter for the [constituent power] of the German people and are not part of the jurisdiction of the organs authorized to make constitutional changes and revisions.34 This does not mean, however, that after these decisions are in place all that remains is the power of constitutional reform and that constituent power vanishes together with any other extra-constitutional power (or that is channeled through the ordinary rules for constitutional amendments, as in the traditional liberal conception).35 On the contrary, Schmitt maintained that it was a mistake to think that constituent power is thereby expended and eliminated, because it is exercised once.36 The political decision, which essentially means the constitution, he wrote, cannot have a reciprocal effect on its subject and eliminate its political existence. This political existence remains alongside and above the constitution.37 Naturally, the actions of the bearer of constituent power cannot be defined in terms of constitutionality or unconstitutionality (much less in terms of legality or illegality). Accordingly the legitimacy of a constitution does not rest on whether it was created according to the procedure in place at the moment of its adoption: [I]t is completely impossible to measure a new constitution by whether it came about by way of the preservation of prior constitutional rules and formalities. . .A new constitution cannot subordinate in this way to previous norms that are no longer valid.38 The activity of constituent power always supposes an instance of juridical violence, an act that ends in the creation of a constitution but that takes place in an extra-constitutional terrain. In this sense, the actions (and the identity) of the constituent subject can only be judged politically, that is to say, they are either legitimate or illegitimate. In a democracy, this means that the legitimacy of the constitution depends on it being the expression of a sovereign decision of the people, because a democracy only recognizes the entire citizenry as the proper bearer of constituent power.39 As we will see in the next two sections, the theory of constituent power (in its Schmittian formulation) played a major role in two important decisions by the Colombian Constitutional Court and the Supreme Court of Justice of Venezuela. Nevertheless, it will be shown that it performed very different functions in the reasoning of each court (which confronted very different factual situations). In the Venezuelan case, constituent power pointed to an unlimited popular power, an unbound people who could re-write the established constitutional forms without being subject to the constitutions amendment rule. In the Colombian case, the theory was deployed in order to limit governmental power, as a means for delineating the competencies of the Executive and the Legislature in the context of constitutional change. In both cases, however, constituent power was directly connected to the idea that, if using the proper democratic methods, the people can act in ways that go beyond the established juridical order. In this respect, and as will be suggested in the final part of this paper, these cases point both to constituent powers dangers and democratic potential.
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Carl Schmitt and Constituent Power in Latin American Courts: Joel I. Colon-Rios 369 II. Legal Continuity, Revolutions, and Constituent Power in Venezuela
When Hugo Ch avez won the 1998 presidential elections in Venezuela, it was clear that part of his political program included the adoption of a new National Constitution. Until 1999, Venezuelas constitutional regime operated under a fundamental law that resembled that of a typical constitutional democracy.40 Adopted by the then newly elected Congress (which transformed itself into a constitution-making body), the Constitution of 1961 was the direct result of Punto Fijo, an agreement brought to life by the countrys major political parties and whose main stated objective was to create a stable democracy and to prevent a return to military rule. By the 1980s, however, many critics claimed that instead of being a democracy, Venezuela had transformed into a partyarchy (partidocracia), in which the two leading political parties, Acci on Democr atica (AD) and the Comit e de Organizaci on Pol tica Electoral Independiente (COPEI), alternated political power.41 The perception of unfairness in the political system, combined with the economic decline of the 80s and 90s that impoverished great masses of Venezuelans (which contrasted with the oil bonanza of the 1970s) and the widespread belief that political elites were illegally enriching themselves with oil revenues, were some of the factors that precipitated the electoral victory of Hugo Ch avez in 1998.42 For some, the problems of the country were connected to the Constitution of 1961, which was seen as fixing in place the terms of Punto Fijo and therefore guaranteeing the permanence in power of the traditional political elites. Although this belief was arguably mistaken (after all, the 1961 constitution was a standard liberal Latin American constitution), the fact is that calls for its revision were not uncommon and that Ch avez and his followers were determined to replace it and create a new juridical order. More controversially, they aimed to do so through the convocation of a Constituent Assembly, not through the ordinary amendment process.43 The immediate problem was how to justify in legal terms the creation of such an extraordinary body. Like most liberal constitutions, the Constitution of 1961 contained no provision for convening a Constituent Assembly, and its amendment rule placed the power of constitutional reform in the hands of the legislature.44 Thus, critics of the new governments plan maintained that to validly convene a Constituent Assembly, the amendment rule of the Constitution of 1961 needed to be modified in order to include such method of constitutional change. This, however, was not an option for the new government: Ch avezs supporters only controlled a third of the two chambers of Congress (the congressional elections were held one month before the presidential elections).45 Thus, instead of following their critics prescriptions, Ch avez and his political allies argued that the assembly could be called through a special referendum. In fact, one of the first actions of the new government was the issuing of a decree for the holding of a referendum asking the population whether they wanted to convene a Constituent Assembly vested with the power to transform the state and to create a new juridical order that would allow for the effective functioning of a social and participatory form of democracy (transformar el Estado y crear un nuevo ordenamiento jur dico que permita el funcionamiento efectivo de una democracia social y participative).46 Not surprisingly, the constitutionality of the governments plan was quickly put to the test in the Venezuelan Supreme Court of Justice (SCJ).
a. Opinion No. 17 of the Supreme Court of Justice
The judges that rendered Opinion No. 17 had been appointed before Ch avezs government rose to power, and were very aware of the profound political implications that any decision on this case would have. On the one hand, a ruling in favor of the constitutionality of
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the governments action would facilitate an important transformation of the basic structure of government, which could include the replacement of the SCJ with a new court (and new judges). On the other hand, and taking into account the degree of popularity that Ch avezs government enjoyed in 1999, declaring unconstitutional the governments attempt to convene the assembly could have become the fatal blow to the precarious legitimacy of the existing political institutions. But the reasoning of the SCJ should not be explained as a clever judicial maneuver to guarantee its own survival after what seemed to be imminent constitutional changes. The court followed a theory of constitutional change already present in Latin American constitutionalism: the doctrine of the constituent power. In fact, in one of the early paragraphs of the substantive part of the decision the court assumed this theory as a given: The question that has been formulated is whether the Constitution should be reformed [through the ordinary amendment process], or if the convening of constituent power, a sovereign power, is warranted.47 The decision of the SCJ, written by Humberto J. La Roche, was a response to an action presented by the Foundation of Human Rights, asking for an interpretation of Article 4 of the Constitution of 196148 and Article 181 of the Organic Law of Suffrage and Participation.49 The SCJ was asked whether a Constituent Assembly could be convened through an Article 181 referendum, thus bypassing the ordinary amendment process (and the legislature) altogether. As suggested above, Venezuelan jurists were divided into two main groups on this issue. The first group maintained that the Constituent Assembly was a valid option, but one that required a change to the amendment procedure of the Constitution of 1961.50 In their favor, they cited Article 250, which provided that the validity of the Constitution of 1961 would not be affected if it was altered by any other mechanisms than those established in the constitutional text. In such a case, Article 250 continued, every citizen, with or without authority, will have the duty of collaborating in the re-establishment of its effectivity.51 The second camp, in a Schmittian fashion, maintained that no constitutional provision could have the effect of putting an end to popular sovereignty and could not prevent the exercise of constituent power of the people.52 Accordingly, and regardless of the content of the current fundamental law, citizens could commission a Constituent Assembly to draft a new constitution. Such an assembly could be activated through a popular referendum and, as a means for the exercise of constituent power, it would be above and outside the existing constitutional regime. The courts legal analysis began by considering Article 4 of the Constitution of 1961, which established that Sovereignty rests with the people, who exercises it by voting, through the organs of public power. For the court, it was necessary to determine whether this delegation of powers meant that popular sovereignty could not be exercised directly by the people, whether citizens had permanently surrendered their sovereign power through the adoption of the constitution. In other words, whether the established amendment rule (in which the organs of public power were the major players) was exclusive, or whether the people could decide to depart from the ordinary amendment procedure. Under the first interpretation, reasoned the court, we would be in the presence of a constituted power; under the second one, we would be dealing with the constituent power, which would have an absolute and unlimited character.53 By embracing the theory of the constituent power, the court was able to depart from the traditional interpretation of Article 4. This traditional interpretation held that the objective of Article 4 was to protect the principle of representation and the idea that while sovereignty rested with the people, it had been delegated to government and could only be exercised by it. The court rejected this interpretation by reasoning that whoever has power and is able to
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delegate it can also exercise it herself. It is true that, as a matter of day to day politics, in those aspects that have to do with specific functions enumerated in the constitution, sovereignty has been delegated to certain public organs and is normally exercised by them. That is to say, once a constitution is established, the people is not allowed (and would not be able for practical reasons) to directly perform functions that have been delegated to certain organs (like routinely adopting ordinary laws, creating administrative rules, or adjudicating controversies between parties to a contract). But if citizens are the true sovereign, the constituent subject, their power cannot be exhausted by delegating certain competencies to government. Surely, the court argued, in those cases in which the constitution is silent (like with regards to the act of convening a Constituent Assembly), the people can exercise its sovereignty directly.54 Having established that the people retain the power to adopt a constitution through a body convened specifically for that task, the next step was to determine if Law 181 could be used to call a referendum and ask the electorate whether such a body (in this case a Constituent Assembly) should be convened. Law 181 gave the President of the Republic (as well as the Congress and the Council of Ministers) the faculty to call a referendum to consult electors on matters of national importance. The court stated that the main legal limit applicable to a Law 181 referendum is that the electoral event must be about decisions of special national importance (decisiones de especial transcendencia nacional). That is, the referendum could not be used to consult citizens on regional and municipal matters. Moreover, the law excluded certain subjects from popular consultation, such as budget or other fiscal or tributary issues and restrictions of constitutional guarantees or human rights. The court declared that these exclusions had an absolute character, but they did not include a prohibition for using a Law 181 referendum for convening a Constituent Assembly. Although this line of reasoning seems sufficient to reach the conclusion that Venezuelans, by delegating certain competencies to the ordinary institutions of government, did not renounce their faculty of convening a Constituent Assembly to draft a new constitution, and that a Law 181 referendum was an appropriate mechanism to ascertain the peoples will to convene such an assembly, the court did not stop there. In fact, one of the most interesting parts of the decision came after the courts analysis of Law 181. The court considered it necessary to clarify that the specific requirements of the ordinary amendment process only applied to the constituted powers (the ordinary branches of government) and not to constituent power. For the court, the requirements and limits established in the constitution regarding the amending power seek to regulate the procedures through which the legislature can change the constitution, and are not (and cannot be) directed to the people as constituent subject.55 In what I consider a clear (and non-attributed) reference to Schmitt, the court expressed that constituent power presupposes the national life as a unity of existence and decision and that contrary to the constituted powers, it is prior and superior to the established juridical order.56 If the absolute and unlimited faculties of constituent power were understood as susceptible to being exercised by the ordinary institutions of government, the court suggested, then sovereignty would have been taken away from the people and given to their representatives.57 According to the court, an implicit recognition of this unlimited power could be found in the preamble of the constitution, which established democracy as the political system of the country. Moreover, the court maintained that the faculty of the people to be consulted for the convocation of a Constituent Assembly should be understood as a non-enumerated right. The fact that that right was not enumerated in the constitutional text was a juridical lacuna, since it would be nonsensical to think that a sovereign power would renounce, ab initio, to the faculty of making fundamental political decisions.58 Through the theory of constituent
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power (and indirectly through the Schmittian conception of constituent power), the SCJ was able to provide a justification for an exercise of political power not sanctioned (at least expressly) by the constitutional text.59 However and I will come back to this point in the final section of the paper this was not a naked exercise of power, but one invested of an important democratic component that must always accompany constituent activity.
III. The Limits to Constitutional Reform in Colombia

In deciding that the people could convene a Constituent Assembly in order to exercise its constituent power even if such mechanism was not contemplated in the established constitution, the Venezuelan SCJ was not doing anything out of the ordinary, at least not for Latin American courts. In fact, in 1990 the Colombian Supreme Court Justice also sanctioned the convening of a Constituent Assembly in a similar context (an event that in fact triggered an important debate in Venezuela).60 The Colombian Supreme Court, in a way, went further than its Venezuelan counterpart. While the Presidential Decree61 that called for the convocation of a Constituent Assembly attempted to limit the assemblys discussions to certain topics, the Colombian court expressed that the constituent power could only be subject to self-imposed limits and that its actions could not be revised by the constituted powers.62 The Colombian Constituent Assembly was convened in the climate of violence and political crisis present in that country for an important part of the 20th century (and still present in the 21st ). By the 1990s, an armed conflict that involved the military, guerrillas, paramilitary groups and drug cartels had become one of the principal components of Colombias political landscape. Moreover, as in Venezuela, the countrys political system was perceived as hostile to the incorporation of new political movements that represented interests different from those traditionally advanced by the Liberal and Conservative parties (which, as Venezuelan major political parties, in 1958 began to alternate power after an agreement called the Frente Nacional).63 Not surprisingly, since the late 1970s, there had been several failed attempts to modify the countrys constitutional framework. For example, in 1987, President Virgilio Barco failed in his effort to call for a referendum to reform the constitutions amendment process.64 Like the Venezuelan Constitution of 1961, the Colombian Constitution of 1886 placed the power of constitutional reform in Congress, and excluded the possibility of convening an extraordinary assembly for the creation of a new fundamental law. Moreover, it did not provide for any form of direct popular consultation with regards to constitutional change.65 Interestingly, when in 1990 the Colombian electorate voted in favor of convening a Constituent Assembly to adopt a new constitution, it did it through a much more informal process than the one present in Venezuela. A student movement led the campaign in favor of convening an assembly and was responsible for the introduction of a seventh ballot (s eptima papeleta) in the March 1990 congressional elections that asked the electors whether they favored the convocation of an assembly for the modification of the Constitution of 1886. Given the popular support shown in favor of the assembly, the government had not choice but to formally ask electors, in May 1990, whether they wished to convene the extraorginary body. More than 88% of those participating in the election voted yes (there was an abstention rate of 74%),66 and the Constituent Assembly (whose elected delegates were not limited to members of the traditional parties but also included representatives from social movements and ex-guerrilla groups members) was convened in 1991 after being sanctioned by the Supreme Court of Justice in a decision that followed a line of argumentation similar
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to that of Opinion No. 17.67 (Ironically, it was the almost permanent state of exception present in Colombia for most of the 20th century that allowed government to legally establish the procedures that facilitated the convocation of the Constituent Assembly).68 The Constitution of 1991 has been widely celebrated since its adoption, and it included many of the proposals rejected by previous governments (such as the establishment of a Constitutional Court), a generous catalogue of civil, social, and economic rights, as well as mechanisms for their protection.69 In 2003, however, President Alvaro Uribe attempted to introduce a set of constitutional reforms that were not well received by several groups and that ended in the Colombian Constitutional Court.
a. Sentencia 551/03 of the Colombian Constitutional Court
Although the content of these reforms was mostly upheld, the case gave the Colombian Constitutional Court the opportunity to adopt the doctrine of implicit limits to constitutional reform (also defended by Schmitt and briefly discussed above).70 What makes Sentencia 551/03 extraordinary is that Article 241 of the Constitution of 1991 clearly established that the Constitutional Court may revise proposed amendments only for procedural or formal defects in their adoption (s olo por vicios de forma o procedimiento).71 Moreover, its Article 379 (which is part of its amendment rule) states that proposed constitutional changes could only be declared unconstitutional if they violated the requirements of the established amendment process.72 Even so, the Colombian Constitutional Court was able to develop a cogent argument in favour of the doctrine of implicit (substantive) limits to constitutional reform. And it did so openly relying on Schmitts conception of the constituent power. The reforms at issue were supposed to come into existence after their approval in a referendum, which was originally presented as an opportunity to vote against petty politics and corruption (contra la corrupci on y la politiquer a), and included nineteen questions. These questions were about disparate issues, such as the modification of the electoral system, the alteration of the budget process, the regulation of political parties, the public policy on drug related offences, and the prolongation of the period in office of the governors and mayors (including those already in office).73 Not surprisingly, the supporters of the referendum argued that in assessing the constitutionality of the proposed amendments, the court had to limit itself to examine whether the formal requirements established in the amendment rule has been met. Those on the other side of the controversy asked the court to examine the substance of the amendments and, among other things, argued that a constitutional amendment could be declared unconstitutional if it contradicted the fundamental principles in which the constitution rested (or if it was inconsistent with Colombias international obligations). Thus, an important part of the decision focused on the meaning of the phrase only for procedural or formal defects and on whether there existed substantive limits to the power of constitutional reform. The courts decision, written by Eduardo Montealegre Lynett, began by agreeing with the idea that the content of a proposed constitutional change, unlike the content of an ordinary law, could not be the object of constitutional review. Otherwise, the court stated, the power of constitutional reform would be abolished, because a constitutional change is, by definition, always inconsistent with the constitutional text that it seeks to transform (and contradict).74 Accordingly, the courts only role with regards to a proposed constitutional reform was, just as Article 241 states, ensuring that the requirements of the amendment procedure were strictly followed. However (and here is where the courts reasoning takes an interesting and decisive twist), in the context of constitutional reform (as in many other contexts),
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procedure and substance overlap with each other. The court began its discussion of the relationship between substance and procedure with the following line of argumentation. According to the court, competence (competencia, understood as the legal power of producing a determinate legal consequence) is a fundamental part of any procedure: it would be legally meaningless to follow each of the requirements of a determinate procedure if one lacks the competence to produce the desired outcome.75 Thus, the court expressed, when Article 241 of the Constitution of 1991 restricts the review power of the court with regards to constitutional amendments to that of identifying procedural or formal defects, that it was necessarily conferring to that body the power to examine whether the institution promoting the constitutional changes is acting ultra vires.76 The contrary would mean that the court would be unable to do anything if confronted with a constitutional change adopted through a strict adherence to the amendment rule, but by an organ without the competence to bring that kind of change into existence. In this way, the court was able to avoid what looked like an insuperable constraint on its faculty of reviewing the content of proposed constitutional amendments. There was, however, an additional hurdle: does the power of constitutional reform created by the Constitution of 1991 have any competencies, that is, is it susceptible of being exercised ultra vires in the sense of adopting (or attempting to adopt) changes that are outside the scope of its authority? This was not an insignificant hurdle because if the power of constitutional reform is not subject to any limits with regards to the type of changes it is allowed to produce, then the previous argument (even if accepted) would lack any practical effects in the context of the Colombian constitutional regime. The fact that the Constitution of 1991, unlike other constitutions, did not include any explicit limits to constitutional change (e.g. un-amendable or eternity clauses) added an additional layer of complexity. In light of these facts, the court proceeded to develop the doctrine of implicit limits to the amending power. According to the court, legal scholars and courts around the world have recognized that under any democratic constitution (even under one that does not contain un-amendable or eternity clauses) the power of constitutional reform is subject to certain substantive limits.77 These limits, the court continued, emerge from the nature of the power of constitutional reform as a constituted, rather than a constituent, power.78 The authorities the court cited to sustain this proposition included Schmitts Constitutional Theory, whose ideas are also reflected in the discussion that followed.79 The next step was to elaborate on the distinction between constituent and constituted power. The court defined the former as a power which belongs to the people, who always has the faculty of giving itself a Constitution.80 It maintained that constituent power (poder constituyente originario) was not subject to juridical limits, and constitutes, above all, an exercise of the political power of those associated81 in a political community. Quoting from an earlier decision, it characterized it as absolute, unlimited, permanent, without limits or jurisdictional controls, because its acts are political and foundational (pol tico-fundacionales) and not juridical, which validity derives from the political will of the society.82 To this already Schmittian approach, the court added that a political community states always remained free to exercise, in an episodical and transitional manner, its constituent power in order to revise or modify its fundamental political decisions and to give its juridical institutions, new forms and content. . .83 The court then moved to explain that the power of constitutional reform (as a constituted power or as a poder constituyente derivado) was subject to several types of limits and controls. The very process of constitutional reform, which includes a set of formal requirements that need to be met for an amendment to be valid, is an example of one of those limits. The
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question, according to the court, is not whether the power of constitutional reform, as a constituted power, is subject to legal limits (as it clearly is), but whether its competencies are limited as well.84 That is, whether there are some topics, some contents, that are outside the scope of the reforming powers. The fact that the Constitution of 1991 did not contain any un-amendable clauses might suggest that the power of constitutional reform is not subject to any substantive limits. For the court, this was only partially true. That is to say, it is correct that any provision of the Constitution of 1991 can be reformed and modified. However, this does not mean that one can use the amendment rule too, instead of reforming the constitution, replacing it with a new and different one.85 This is the Colombian doctrine of constitutional substitution, now famous among Latin American jurists.86 The court then proceeded to connect the doctrine of constitutional substitution with the text of the Constitution of 1991.87 According to the court, when Article 374 establishes that the Constitution can be reformed, it is not making reference to any constitution, but to the Constitution of 1991. Under that reading, the constitutional text only authorizes changes to the existing constitution, rather than also giving government the power to replace it with a new one. This means that the constitution must preserve its identity as a unity, independently of the modifications that it might suffer over time: In other words, the power of constitutional reform may modify any part of the constitutional text, but those modifications cannot involve the suppression of the constitution or its substitution with a new one.88 Nowhere in the amendment rule is there an authorization to eliminate or substitute the existing Constitution with a different one, something that can only be done by the constituent power.89 The court limited itself to give one example of a constitutional substitution: [f]or instance, the power of constitutional reform cannot be used in order to substitute the Social and Democratic State and the Republican form of government (Article 1) with a totalitarian state, a dictatorship or a monarchy, because that would mean that the Constitution of 1991 has been replaced with a new one.90 An objection to this argument, the court expressed, is that this doctrine could have the effect of making the constitutional regime permanent, and causing a constitutional rupture, a break in legal continuity, if the Colombian society determines that the substitution of the Constitution of 1991 is necessary.91 This led the Colombian Constitutional Court to briefly consider, in obiter, the question that the Venezuelan Supreme Court of Justice confronted a few years earlier and that has haunted constitutional theorists for decades: what is the role of the people, as the bearer of constituent power, after a constitution has been adopted? In answering that question, the court recognized (as its Venezuelan counterpart) the existence of a tension between the principle of popular sovereignty and the principle of constitutional supremacy. When a constitution is reformed, the court argued (agreeing again with Schmitt), even if the changes are adopted through a referendum, it is not the constituent subject who acts.92 What takes place in those instances is an exercise of constituted power, authorized and limited by the constitutional text. But, what if the entire citizenry, or a great majority of them, supports the adoption of a new and different constitution? If the constitution does not provide any means for the exercise of constituent power, one arrives to the following dilemma: either constituent power is asphyxiated by the limits to the power of constitutional reform, or a constitutional rupture is necessary in order to allow for an exercise of constituent power to take place (as happened in Venezuela in 1999 and in Colombia in 1990).93 Nevertheless, in the opinion of the court, the Constitution of 1991 attempted to solve that problem, to ease the tension between popular sovereignty and constitutional supremacy through the institution of the Constituent Assembly convened by the legislature (Article 376), which can be used as a means for the exercise of constituent power. It is true, expressed the court, that
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any attempt to channel constituent power is always imperfect, because constituent power, by its very nature, does not admit a total institutionalisation.94 However, the court continued, by providing the possibility to convene a Constituent Assembly, the Constitution of 1991 sought to facilitate, rather than to negate, the expression of constituent power without causing unnecessary ruptures. After establishing the doctrine of constitutional substitution and asserting its jurisdiction to examine whether the amendment power had been exercised ultra vires (whether its competencies had been exceeded), the court did not find that the proposed reforms involved the creation of a new constitution. Even while some aspects of the referendum were declared invalid,95 the Constitutional Court concluded that the proposed changes were under the sphere of authority of the power of constitutional reform, and thus constitutional. Nevertheless, the Colombian Constitutional Court used the theory of constituent power to assert its jurisdiction to limit government power, to announce its faculty (and obligation) of preventing any attempt by public officials of engaging in a profound modification of the constitutional regime. A theory that was used by the Venezuelan Supreme Court of Justice to sanction a departure from established law and to justify the exercise of an absolute power was used here to constrain public power. Should there be a space in contemporary constitutionalism for a theory that can produce such dissimilar consequences? The next and final section of this paper will suggest that it should.
IV. The Juridical Relevance of the Theory of Constituent Power

There is a way, and it may be obvious by now, of making these courts approaches to constituent power consistent. Even though constituent power performed very different functions in each decision, both courts seemed to accept the proposition (also defended by Siey` es and Schmitt) that constituent power cannot be limited by any form of positive law. The fact that in the Colombian case constituent power was used to limit political power, while in the Venezuelan case it was used to justify the exercise of an unlimited political power, simply serves to confirm this: in the former case the court determined that the actions of government did not amount to an exercise of constituent power, in the latter case that the convocation of a Constituent Assembly activated by a referendum did. The question that I wish to address in this final section of the paper is whether constituent power, as understood by these courts, should be taken seriously by constitutional theory and practice. Or if, on the contrary, what these decisions show is that the theory of constituent power comes accompanied by a tension that gives way to two major dangers: (1) the possibility of limiting the power of government to a point at which important constitutional transformations are impossible to achieve; and (2) keeping alive the possibility of naked exercises of power (justified under the rhetoric of the peoples constituent power), pure political acts that escape all forms of legal regulation. My short answer to this question is yes, constituent power should be taken seriously by contemporary constitutional theory and practice. Constituent power, I think, should be understood as the missing link in the debate about the relationship between constitutionalism and democracy.96 The constitutionalism-democracy debate, which investigates the apparent conflict between these two ideals is, in the last instance, a debate about the ways in which constitutionalism appears to negate a basic democratic principle: the sovereignty of the people, understood as including the faculty of making and re-making constitutions. It is true that constitutionalism can be made consistent with the idea that the authority of a constitution is derived from the sovereign people, and from that idea one can conclude that constitutional law is higher law and cannot be contradicted by ordinary laws.97 The problem, however,
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is that after a constitution is in place, constitutionalisms main function (that of limiting political power), runs counter to the idea of creating opportunities for the sovereign people to make episodical appearances and engage in important constitutional transformations. In other words, as a matter of actual political practice, the peoples ultimate political power is also seen as an object of constitutionalisms limiting role.98 What constituent power does is point to some instances in which a departure from constitutionalism is warranted, episodes in which the citizenry exercises its democratic right to (re)create their constitutional regime. In the context of constitutional reform, the traditional constitutionalist view is reflected in the amendment rules of most modern constitutions. These procedures not only seek to make change difficult and unlikely, but routinely place constitutional reform exclusively in the hands of government. That is to say, most amendment rules (even those that require the celebration of a government initiated referendum before the proposed changes come into effect) fail to provide ordinary citizens with the means to initiate, deliberate, and decide on important constitutional transformations. Or, put differently, they do not provide the people with the means of exercising their constituent power. But what could it mean for the people to exercise constituent power? The Supreme Court of Justice of Venezuela concluded that adopting a constitution through a Constituent Assembly not only amounted to an exercise of constituent power, but to an exercise of constituent power by the people. In a similar manner, the Colombian Constitutional Court expressed that the people, as the bearer of constituent power, always retains the faculty of replacing the constitution with a new one, and that the Constitution of 1991 provided a means of doing that: the Constituent Assembly. What were these judges thinking? It is clear that a Constituent Assembly, just as an ordinary legislature, is a representative99 body, composed of delegates elected by the people, but it is not the people. In fact, the very idea of the people giving itself a constitution through the exercise of constituent power has been challenged by many constitutional and political theorists. It is argued, for example, that this position is based on an unacceptable political mythology, and that any act of the people (a people that is only capable of action through representation), is determined by prior electoral and procedural rules that must be given to the people by someone else.100 I think that what the Venezuelan and Colombian judges had in mind when they treated the Constituent Assembly as equivalent to an act of constituent power by the people was something like this. In contemporary societies all citizens cannot come together and give themselves a new constitution. Not only is some form of representation needed, but the very rules and procedures that allow a constitution-making act to take place, as suggested above, have to be established by political elites. In that respect, there is no such thing as an exercise of constituent power by the people, at least not in the modern world. However, there are some rules and procedures that might come closer, even a bit closer, to the ideal of the people giving themselves a constitution. And because of that, they might also be more legitimate. For example, an elected Constituent Assembly activated by a popular referendum, for the specific and sole purpose of deliberating on the creation of a new constitution, might be closer (although perhaps not as close as possible)101 to an exercise of the peoples constituent power than an ordinary legislature engaging in profound constitutional changes. After all, legislators are elected for the purpose of making ordinary laws, for solving peoples day to day problems, not to engage in the transformation of the juridical order under which they were elected. When a Constituent Assembly is convened in a moment where a strong popular majority appears to be in favour of major constitutional change, something distinct to an exercise of ordinary political power takes place. That is what makes such an act an exercise of constituent power, and the fact that citizens are allowed to participate directly in the process
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(through the initial referendum for convening the assembly, the election of delegates, and the referendum for the ratification of the new constitution), makes it akin to an exercise of the peoples constituent power. What the theory of constituent power does, as showed by these two decisions, is allow us to think about certain moments, certain episodes of heightened popular support for constitutional change that warrant and require the use of extraordinary and participatory procedures. In other words, that there are times in the life of a constitutional regime in which democracy should trump constitutionalism. That is, episodes in which citizens act outside the ordinary institutions of government and put the most fundamental principles of their constitution into question and, if necessary, participate in the creation of an entirely new juridical order. Now, for the Colombian Constitutional Court, a corollary of this idea is that these fundamental decisions102 cannot be taken by ordinary political institutions; according to this courts reasoning, the theory of constituent power should be understood as placing limits on the types of changes susceptible of being adopted through the ordinary amendment process.103 This brings me to the first of the possible dangers mentioned above: if used to limit the scope of the power of constitutional reform, constituent power may end up petrifying the existing constitutional arrangement. There is, of course, something to this fear: constitutions sometimes need to be changed in important ways and it is certainly a good idea to have a procedure in place that allows those changes to be adopted when needed. But this means that this fear is only justified in situations in which certain changes are put out of the scope of the ordinary power of constitutional reform and, at the same time, there are no means whatsoever for citizens to exercise their constituent power in order to make those changes. Because most constitutional regimes suffer from the latter problem, this danger is a real and actual one. The United States constitutional regime is perhaps the perfect example.104 American constitutional discourse is nearly unanimous in maintaining that the constitution is legitimate because it was adopted by the people and that in the exercise of their sovereignty, the people can alter it in important ways or replace it altogether. In fact, it would be hard to find a constitutional lawyer in the U.S. that would disagree with the idea that the people should be able to have any constitution they want. After all, they are We, the People, the sovereign people and the only legitimate fountain of power,105 as Madison once put it. Yet, at the same time, it is widely accepted that the U.S. Constitution is extremely difficult to amend. Moreover, the amendment rule of that constitution (Article V) places the power of constitutional reform in the exclusive hands of government, and it is not even clear whether an Article V Constitutional Convention which by itself is extremely difficult to activate could (or would) be composed of ordinary legislators or whether its proposals could be made subject to a binding national referendum.106 Under a constitutional arrangement like this, in which amending the constitution is not only difficult and unlikely, but in which the power of constitutional reform seems to lie in the exclusive hands of government, the prettification of the constitutional text is the normal state of things.107 In that sense, adopting the doctrine of unconstitutional constitutional amendments in such a regime, as has been proposed by some U.S. constitutional theorists, is not a particularly attractive idea, at least not from a democratic perspective.108 But the theory of constituent power, as understood and defended by these two courts, seeks to avoid that situation. It is a theory that not only suggests that in a democracy constituent power rests with the people and not with ordinary political institutions, but that assumes that that power can be exercised in actual political practice. Since the reason for placing limits on the governments power to amend the constitution is that, in the
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context of important constitutional transformations, ordinary governmental institutions lack a sufficiently democratic pedigree (they cannot legitimately claim to be engaged in an exercise of constituent power by the people), such a conception promotes that fundamental constitutional changes are adopted through highly participatory methods. In this respect, and this brings me to the second of the possible dangers mentioned above, the connections between constituent power and democracy should not be underestimated. Contemporary conceptions of constituent power, in addition to recognizing the constituent subjects unlimited faculty to create and re-create constitutions, emphasize its fundamental collective character.109 Constituent power is thus seen as the power to create a constitution together, with the participation of those subject to it.110 For an act of constitution-making to be considered an act of constituent power, it must be invested of a fundamental democratic component, and must take place through the most participatory and inclusive procedures possible. In the Venezuelan case (and in Colombia in 1990), for example, the determination that the ordinary amendment process could be superseded was the result of the fact that a more democratic and participatory process was about to take place, as opposed to a naked exercise of power. In that sense, it is very telling that in both Colombia and Venezuela, one of the main mandates of the Constituent Assembly was the creation of a new constitution that would strengthen participatory democracy.111 Understanding constituent power as the power of creating a constitution together and defending the idea that a constitutional regime should have in place an opening for constituent power to manifest when important constitutional transformations are needed, has thus important democratic implications. It is a conception that requires that episodes of profound constitutional change should only take place through highly participatory procedures, and mandates constitutional regimes that give citizens the means to activate those procedures. Even if such a conception falls short of exhausting constituent powers democratic potential, it presents a clear improvement (from the point of view of democracy) over the processes of constitutional reform that characterize most constitutional states. In that respect, a democratic constitutional theory, one in which citizens are seen as the (potential) authors of a new or importantly transformed constitutional regime, would be based on the idea that a constitution should provide an outlet for constituent power to manifest from time to time. But it would not stop there. Quite the contrary, an important part of its energies would be devoted to developing mechanisms that would make the exercise of constituent power possible, and arguments in favor of the adoption of those mechanisms. Such a theory would involve a radical transformation of the ideal of constitutionalism, and an important re-examination of the current balance between constitutionalism and democracy.
NOTES Thanks to Mark Bennett, Carlos Bernal Pulido, and Allan Hutchinson for their comments and critiques, and to Mark Tushnet, who served as a discussant at the New Perspectives in Comparative Constitutionalism Panel (2010 Law and Society Annual Meeting), where a previous draft of this paper was presented. I am also grateful to the participants at the Law Faculty Seminar at Victoria University of Wellington, who also provided helpful comments and critiques. The usual disclaimer applies. 1. See Giovanni Sartori, Constitutionalism: A Preliminary Discussion, American Political Science Review 56, no. 4 (1962): 862. 2. They are, of course, not the only exception. One of the most recent examples is the judgment of the German Federal Constitutional Court of June 30, 2009 (Lisbon Case, BverfG, 2 BvE 2/08), where the concept of constituent power played an important part in the decision. 3. Carl Schmitt, Constitutional Theory (Durham: Duke University Press, 2008), 126.
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4. See Sentencia 0502004-AI/TC. The doctrine of unconstitutional constitutional amendments has also been adopted by other Latin American courts in decisions which have also relied on the theory of constituent power. See for example Res. 200413353 of the Supreme Court of Justice of Costa Rica (Constitutional Chamber). 5. Carl Schmitt, Teor a de la Constituci on (Madrid: Editorial Revista de Derecho Privado, 1934). 6. Renato Cristi, The Metaphysics of Constituent Power: Schmitt and the Genesis of Chiles 1980 Constitution, Cardozo Law Review 21 (2000): 1748. A similar course of action was followed in Brazil in 1964, were a military government made extensive use of the concept of constituent power. See Kenneth L. Karst and Keith S. Rosenn, Law and Development in Latin America: A Case Book (Berkeley: University of California Press, 1975), 206. 7. Interestingly, one of the first acts of the Revolutionary Government in Cuba was the issuing of a decree (January 3, 1959) in order to provide the Council of Ministers with the faculty to engage in the exercise of constituent power (see Articles 285 and 286). Leonel A de la Cuesta, Cuatro D ecadas de Historia Constitucional Cubana: 19591999, Cuban Studies, ed. Lisandro P erez (Pittsburgh: University of Pittsburgh Press, 2001), 100. In the exercise of this power, the constitutional protection of private property was altered in an important way (facilitating the expropriations that followed the 1959 revolution) through an amendment of Article 24 of the Constitution of 1940. Not surprisingly, the Cuban Constitution of 1976, adopted by a revolutionary government that operated on the premise of a permanent revolution, attempts to perpetuate the exercise of constituent power, giving the National Assembly of Popular Power the faculty of exercising both legislative and constituent power (Article 70). See also Jos e Bell Lara, Delia Luisa L opez Garc a and Tania Caram Le on, eds., Documentos de la Revoluci on Cubana (La Habana: Editorial Ciencias Sociales, 2006). Although the idea of a legislative assembly possessing both legislative and constituent power is alien to the tradition of written and supreme constitutions, it is in fact an essential component of the doctrine of parliamentary sovereignty as it operates in countries as the United Kingdom and New Zealand. See A V Dicey, Introduction to the Study of the Law and the Constitution (Macmillan, London, 1959), 3637. 8. The recent military coup in Honduras was triggered by President Manuel Zelayas proposal to call a non-binding referendum (scheduled to take place the day of the coup) in which the electorate would be asked if they wished to convene a Constituent Assembly. The Constitution of Honduras does not provide for the convocation of a constituent assembly in its amendment rule (see Arts. 373 and 374). Although his political opponents insisted that Zelayas real intention was to amend the constitution in order to eliminate the prohibition of presidential re-election (an objective repeatedly denied by President Zelaya, who had in his favour the argument that in any case, the new constitution would have been adopted after his term as President had ended and only if a binding referendum was called by Congress) the official discourse about the convocation of the assembly was characterized (as in Venezuela, Bolivia, Ecuador, and Colombia during their constitution-making processes) by frequent appeals to the notion of the peoples constituent power to found a new constitutional regime in order to democratize social and political life. See Juan Carlos G omez Leyton, Honduras: El Peligroso Poder Constituyente [Honduras: The Dangerous Constituent Power], El Clar n de Chile, June 30, 2009, <http://www.elclarin.cl/index.php?option=com_content&task=view& id = 17206#>. 9. This interest was renewed with the appearance of the first English translation of Schmitts Verfassungslehere in 2007. See Schmitt, Constitutional Theory. 10. See for example the essays in Martin Laughlin & Neil Walker eds., The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2008). 11. Emmanuel Joseph Siey` es, What is the Third Estate? (New York: Praeger, 1963). 12. Siey` es conception of the nation seemed to be free from ethnicist qualities. Siey` es defined the nation as a body of associates living under common laws and represented by the same legislative assembly, etc. Siey` es, What is the Third Estate, 58. See also See William E. Scheuerman, Revolutions and Constitutions, Law as Politics: Carl Schmitts Critique of Liberalism, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 259. 13. Ibid. 14. Ibid., 126, 134. The obvious question here is: what happens when a legislature is allowed to amend the constitution that grants its existence through a special procedure (e.g. supermajority requirements)? To deal with this question, French jurists (as well as their Latin American counterparts) recur to the distinction between constituent power proper (pouvoir constituant institu e or poder constituyente originario) and constituted constituent power (pouvoir constituant deriv e or poder constituyente derivado). The former refers to the sovereign power of the people to create a new constitutional regime, and the latter to the power to reform the constitution according to the procedures created by the constituent subject. This distinction is not accepted by some constitutional theorists, who insist that constituted constituent power is nothing
but a fancy term for the ordinary power of constitutional reform and would probably be rejected by Schmitt himself as a conceptual confusion. For a discussion, see Pedro de Vega, La Reforma Constitucional y la Problem atica del Poder Constituyente (Madrid: T ecnos, 1985). For defense of the distinction, see Luis S anchez Agesta, Principios de Teor a Pol tica (Madrid: Editora Nacional, 1983); Rodrigo Borja, Derecho Pol tico y Constitucional (M exico: Fondo de Cultura Econ omica, 1991); Carlos Fayt, Derecho Pol tico (Buenos Aires: Ediciones Ghersi, 1982); Germ an Jos e Bidart Campos, Derecho Pol tico (Buenos Aires: Aguilar, 1967). 15. Schmitt, Constitutional Theory. While defending Siey` es conception in several ways, Schmitt combated this authors strategy of combining the democratic theory of the peoples constituent power with the anti-democratic doctrine of representation, which did not involve the direct expression of the peoples will. Schmitt, Constitutional Theory, 128. Schmitts idea of what could count as an expression of the peoples constituent power, however, was highly problematic itself and did not necessarily involve the level of deliberation and discussion necessary in most contemporary conceptions of democracy. For him: The natural form of the direct expression of a peoples will if the assembled multitudes declaration of their consent or their disapproval, the acclamation. Ibid., 131. Moreover, he thought that the people could consent to a constitution tacitly, for example, by participating in regular elections, and that such political practices could be sufficient to conclude that the constitution was based on the peoples constituent power. Ibid., 139. 16. Schmitt, Constitutional Theory, 125. 17. Ibid., 76. Hans Kelsen, The Function of a Constitution Essays on Kelsen, eds. Richard Tur et. al. (Clarendon Press: Oxford, 1986); Hans Kelsen, General Theory of Law and State (Cambridge, MA: Harvard University Press, 1949). 18. Ibid., 132. 19. It is in his Verfassungslehre where Schmitt, shifting away from the monarchical view under which he seemed to operate in his Political Theology, designated the people as a legitimate subject of constituent power. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge: MIT Press, 1985). A constitution, wrote Schmitt in the Verfassungslehre, is based either on the monarchical or the democratic principle. Schmitt, Constitutional Theory, 126128, 255279. 20. Ibid. This does not mean that Schmitt welcomed frequent exercises of constituent power. Like Siey` es, he considered stability and order of fundamental importance. And, in fact, part of his critique of liberalism was based on its alleged failure to guarantee stability by failing to make the crucial distinction between friend and enemy. See Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996). For an illuminating discussion, see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press, 2003), 97. On Siey` es desire for stability, see Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 63. 21. Ibid., 132, 138. 22. For a brief but illuminating discussion on whether a constituent assembly convened according to the existing constitutional text can be considered a true act of constituent power, see Gonzalo Ram rez mites a la Reforma Constitucional en Colombia: El Concepto de Constituci on como Fundamento Cleves, L de la Restricci on (Bogot a: Universidad Externado de Colombia, 2005), 454455. For Ram rez Cleves, when a constituent assembly is given the power to transform the constitution in any way (a general delegation of powers), a great majority of the population expresses in favor of convening the assembly in a referendum, and there seems to be a general consensus about creating a new constitution, the constituent assembly can be said to be exercising constituent power and not the mere power of constitutional reform regulated in the constitutional text. 23. Schmitt, Constitutional Theory, 110. 24. Ibid., 145146. This does not mean, however, that Schmitt thought that constituent power could only be exercised through more deliberative or participatory methods (as the decisions from the Colombian and Venezuelan courts seem to suggest). As suggested earlier, for Schmitt the natural form in which a people decides and expresses its will is through an act of acclamation, an assembled multitude that consents or disapproves by saying yes or no. Schmitt, Constitutional Theory, 131. Ibid., 138139. 25. Ibid., 128. 26. According to Schmitt, the institutions and rights of the bourgeois Rechtsstaat are part of the fundamental political decisions of a constituent people, although the bourgeois Rechtsstaat is not strictly a state form in itself but a series of limitations and controls that presuppose the state. Ibid., 235. This is why he focused on the democratic nature of the decision, and not on its liberal component. See Dyzenhaus, Legality and Legitimacy: 79. Moreover, Schmitt also suggested that the Weimar constitution did not contain all the fundamental political decisions that needed to be made in 1919, particularly the decision between bourgeois
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or socialist order, [which] was seemingly settled only through a compromise. Schmitt, Constitutional Theory, 83. 27. Ibid., 7778. 28. Ibid., 78. 29. Schmitt also considered the amendment rule itself as outside the scope of the ordinary amendment procedure. Ibid., 150. In formulating a theory of unconstitutional constitutional amendments, Schmittian thought finds an unlikely ally in John Rawls. John Rawls, Political Liberalism (New York: Columbia University Press, 2005), 238239. For a discussion, see Joel I. Col on-R os, The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform, Osgoode Hall Law Journal 48, no.2, (2010): 199. 30. Schmitt, Constitutional Theory, 75, 152. For Schmitt, the existence of explicit limits to the power of constitutional reform (as those contained in the Italian constitution, whose Article 139 establish that The republican form of the state may not be changed by way of constitutional amendment) actually confirmed the distinction between constitutional reform and the exercise of constituent power. Ibid., 152. 31. Ibid., 151. 32. Ibid.,150. This is true even in countries with an unwritten constitution that, arguably, can be amended by a simple legislative majority: A majority decision of the English Parliament would not suffice to make England into a Soviet state. . .Only the direct, conscious will of the entire English people, not some parliamentary majority, would be able to institute such fundamental changes. Ibid., 7980. 33. According to Schmitt, when the fundamental political decisions are altered, one must speak about the abolition of the constitution rather than of constitutional reform. To the abolition of the constitution that comes accompanied by a change in the subject of constituent power (e.g. a revolution that takes constituent power away from the king and gives it to the people), Schmitt called complete annihilation of the constitution. Ibid., 142. 34. Ibid., 152. 35. See Ulrich Preuss, Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution, 14 Cardozo Law Review (1993): 635. See John Rawls, who following Locke, argues that constituent power only appears after a government dissolves itself as a result of violating the peoples trust. John Rawls, Political Liberalism, 231. 36. Ibid., 125126. 37. Ibid. This, of course, does not sit comfortably with the theory of liberal constitutionalism, which has at one of its principal aims the domestication of the constituent power and its channeling through an ordinary amendment formula. As Ulrich Preuss has noted, in the traditional liberal conception, the constitution is the final act of the revolution. . .by making a constitution, the revolutionary forces are digging their own graves. Preuss, Constitutional Powermaking for the New Polity, 641. 38. Ibid., 137. 39. Ibid., 138. 40. In fact, Venezuela was considered, for many years after 1961, as an exemplary democracy in a region characterized by authoritarianism and dictatorship. This, notwithstanding the fact that the period that followed the adoption of the Constitution of 1961 was characterized by episodes of political repression, particularly against the left. See Edgardo Lander, Izquierda y Populismo: Alternativas al Neoliberalismo in Venezuela in Cesar Rodr guez Garavito, Patrick S. Barret and Daniel Chavez eds., La Nueva Izquierda en Am erica Latina: Sus Or genes y Trayectoria Futura (Bogot a: Grupo Editorial Norma, 2005), 99. Some authors maintain that the Constitution of 1961 was an adequate constitution that was at least partly responsible for the stability of Venezuelan democracy, and therefore, it was not in need of replacement. Michael Coppedge, Venezuela: Popular Sovereignty versus Liberal Democracy, Constructing Democratic Governance, 2d ed., eds. Jorge I. Dom nguez and Michael Shifter (Baltimore: The Johns Hopkins University Press, 2001), 177 and Miriam Kornblith, The Politics of ConstitutionMaking: Constitutions and Democracy in Venezuela, Journal of Latin American Studies 23, no.1 (1991), 8788. 41. Coppedge, Venezuela: Popular Sovereignty versus Liberal Democracy, 171. 42. Ibid., 173. See also Lander, Izquierda y Populismo. 43. See Lander, Izquierda y Populismo, 118. This was not a novel idea, and proposals for the adoption of a new constitution for Venezuela through a Constituent Assembly had for some time been a part of the political discourse of some groups. For instance, after Colombians adopted their constitution in 1991 through this extraordinary method, groups such as Frente Patri otico and the Movimiento Bolivariano Revolucionario (the latter lead by Hugo Ch avez) began pushing for this option. Ricardo Combellas, El Proceso Constituyente y la Constituci on de 1999, Politeia 30, no. 30 (2003).
44. Articles 245 and 246 of the Constitution of 1961. Article 246 provided for a process of general constitutional reform and mandated that the changes proposed by the legislature were ratified by the electorate in a government initiated referendum. 45. Coppedge, Venezuela: Popular Sovereignty versus Liberal Democracy, 178. Moreover, it is interesting to note that in his seminal paper on constitutional amendments, Donald Lutz identified the Venezuelan Constitution of 1961 as the third most difficult to amend constitution in the world (only surpassed by the Constitution of the United States and that of the former Yugoslavia). Donald S. Lutz, Toward a Theory of Constitutional Amendment, Responding to Imperfection: Theory and Practice of Constitutional Amendment, ed. Sanford Levinson (Princeton University Press, 1995), 260. 46. See referendum questions, quoted in Roberto Viciano Pastor and Rub en Mart nez Dalmau, Cambio Pol tico y Proceso Constituyente en Venezuela: 19982000 (Vadell Hermanos, 2001), 130. 47. Opinion No. 17 of the Supreme Court of Justice of Venezuela on the Referendum for Convening a Constituent Assembly, 9. The original in Spanish reads: La pregunta que se formula es si procede convocar a una revisi on de la Constituci on o si procede la convocatoria a un Poder Constituyente, a un poder soberano. The sentence is awkwardly construed in Spanish, which makes its translation particularly difficult. 48. Article 4 read as follows: Sovereignty rests with the people, who exercises it by voting, through the organs of public power [La soberan a reside en el pueblo, quien la ejerce, mediante el sufragio, por rganos del poder p los o ublico]. 49. Article 181 of the said law gave the President of the Republic, the Congress, and citizens through the collection of signatures (equivalent to 10% of the electorate) the power to call a referendum to consult electors on matters of national importance. 50. For a defense of this view, see Allan R. Brewer-Car as, Golpe de Estado y Proceso Constituyente en Venezuela (UNAM, M exico, 2002). For a general discussion, see Pastor and Mart nez, Cambio Pol tico y Proceso Constituyente en Venezuela, 127. 51. Article 250: Esta Constituci on no perder a su vigencia si dejare de observarse por acto de fuerza o fuere derogada por cualquier otro medio distinto del que ella misma dispone. En tal eventualidad, todo ciudadano, investido o no de autoridad, tendr a el deber de colaborar en el restablecimiento de su efectiva vigencia. 52. Ibid. 53. Ibid., 8. 54. Ibid., 9. There is a certain ambiguity in this aspect of the decision. That is, it is not clear if what the court is saying is that the people retains the right to exercise directly any of the powers delegated to government (if they had the means for doing so), or that the people can exercise directly only those powers that have not been expressly delegated to the government. It is worth noting that, as a matter of fact, once convened, the Constituent Assembly engaged in various ways in the exercise of the ordinary powers of government (e.g. removing judges from office and interfering with the work of the National Congress). See Combellas, El Proceso Constituyente y la Constituci on de 1999, 9. See also Laura Lousa, La Independencia del Poder Judicial a Partir de la Constituci on de 1999, Politeia 30, no. 38 (2007). 55. Ibid., 12. This reasoning is strikingly similar to Akhil Amars theory of constitutional change. Although Amar does not make reference to the idea of constituent power, he maintains that Article V is not the exclusive mode of altering the constitution, but merely establishes the procedures government (as opposed to the people) must follow if it wishes to introduce changes into the constitutional text. See Akhil Reed Amar, Popular Sovereignty and Constitutional Amendment, Responding to Imperfection. 56. Ibid., 11. Unlike in the decision of the Colombian Constitutional Court that will be discussed below, the Supreme Court of Venezuela does not make any direct reference to the work of Carl Schmitt. In my view, however, there is little doubt that the court is relying on Schmitt here. Compare these quotations with the following passages from Schmitts Constitutional Theory: The theory of the peoples [constituent power] presupposes the conscious willing of political existence, therefore, a nation, The political decision, which essentially means the constitution, cannot have a reciprocal effect on its subject and eliminate its political existence. This political will remains alongside and above the constitution. Schmitt, Constitutional Theory, 127, 125126. 57. The court was here quoting a passage from de Vega, La Reforma Constitucional, 231. Pedro de Vegas book contains one of the most influential formulations of constituent power by a contemporary Spanish author. I read him as advancing an Schmittian understanding of this concept. 58. Ibid, 14. 59. In a series of decisions that followed Opinion No. 17, the Supreme Court of Justice declared that the Constituent Assembly was not in fact sovereign (that it was not a mechanism for the exercise of constituent power in its unlimited form (poder constituyente originario), but a means for the exercise of
384
constituent power in its derivative form (poder constituyente derivado)). This means that the powers of the Constituent Assembly were limited by the Constitution of 1961, and that the assembly could not assume the competencies delegated by that constitution to the constituted powers. See, Pastor and Mart nez, Cambio Pol tico y Proceso Constituyente en Venezuela, 132137. Nevertheless, once in place, the assembly ratified its poder constituyente originario, and intervened in important ways in the exercise of ordinary legislative powers, and even engaged in destitutions and appointments of ordinary government officials (including judges). In the end, the Supreme Court of Justice had no choice but to accept the sovereign nature of the assembly. For a discussion, see Ricardo Combellas, El Proceso Constituyente y la Constituci on de 1999, Politeia 30, no. 30 (2003). 60. See note 44 of this paper. 61. The Presidential Decree, issued on August 24, 1990, stated in part: The Assembly may not consider themes different from the ones included in the list approved by the people and, especially, may not modify the period in office of those elected this year, and those areas that affect the obligations of the Colombian state acquired in virtue of international treaties and the republican system of government [La Asamblea no podr a estudiar asuntos diferentes a los mencionados en el temario aprobado por el pueblo, y particularmente no podr a modificar el per odo de los elegidos este a no, las materias que afecten los compromisos adquiridos por el Estado colombiano en virtud de tratados internacionales y el sistema republicano de gobierno]. 62. Sentencia 138, November 9th, 1990. (Being the Nation the bearer of the original constituent power (constituyente primario) and having a sovereign character, from which other public power emerges, neither it is subject to any limits other than those imposed by itself, nor its acts can be revised by the constituted powers [Siendo la naci on el constituyente primario y teniendo ella un car acter soberano, del l mismo se imponga, ni los cual emanan los dem as poderes, no puede tener otros l mites que los que e poderes constituidos pueden reviser sus actos]). The Court recognized, however, that because the question posed to citizens in an election that preceded the convocation of the Constituent Assembly maintained that the purpose of the assembly would be to strengthen participatory democracy (fortalecer la democracia participativa), it could not legitimately depart from that objective. See Ram rez Cleves, L mites de la Reforma Constitucional en Colombia, 440. 63. Renata Segura and Ana Mar a Bejarano, !Ni una Asamblea M as Sin Nosotros! Exclusion, Inclusion, and the Politics of Constitution-Making in the Andes, Constellations 11, no. 11 (2004), 220. 64. Ram rez Cleves, L mites de la Reforma Constitucional en Colombia, 437. 65. Constituci on Pol tica de Colombia de 1886, Article 209. 66. See Segura & Bejarano, !Ni una Asamblea M as Sin Nosotros! 233, n. 20. This however, is not out of the ordinary for this type of special election in Latin America, particularly when a determinate result is widely expected. For example, in the election to convene the Constituent Assembly in Venezuela, the abstention rate was 64%. Ibid., 235, n. 45. 67. Sentencia 138. 68. See Decreto de Estado de Sitio, N. 1926, August 24th, 1990. In fact, in 1990, the country had lived 37 of the previous 42 years under a declared state of exception. See, Eduardo Cifuentes Mu noz, Los Estados de Excepci on Constitucional en Colombia, Ius et Praxis 8, no.1 (2002). For an excellent discussion about the relationship between the exception and constituent power, see Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge: Cambridge University Press, 2008), 119. mites de la Reforma Constitucional en Colombia, 442. In fact, the Colombian 69. Ram rez Cleves, L Constitution of 1991 has become a fundamental tool for the left, giving place to the curious situation that the left tends to defend the established constitutional regime from the opposition, and the right to challenge it from government. See Cesar Rodr guez Garavito, La Nueva Izquierda Colombiana: Or genes, Caracter sticas y Perspectivas in Garavito, Barret and Chavez eds., La Nueva Izquierda en Am erica Latina, 196. 70. Sentencia 551/03, July 9th, 2003. 71. Constitution of Colombia (1991), Article 241. 72. The original reads as follows: Los Actos Legislativos, la convocatoria a referendo, la consulta popular o el acto de convocaci on de la Asamblea Constituyente, s olo podr an ser declarados inconstitucionales cuando se violen los requisitos establecidos en este t tulo [Title XIII On Constitutional Reform]. 73. The referendum was authorized by Law 796 of 2003. 74. Sentencia 551/03, para. 13. 75. Ibid., para. 22. 76. Ibid., para. 23.
77. See for example the famous Indian cases of Kesavananda Bharti Sripadagalvaru v. State of Kerala, 1973 (SUP) SCR 0001 SC and Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789. 78. Sentencia 551/03, para. 28 79. The court also referred to the works of Pedro de Vega, also quoted in Opinion No. 17 of the Supreme Court of Justice of Venezuela, Alf Ross, and Germ an Bidart Campos. 80. Sentencia 551/03, para. 29. De Vega, La Reforma Constitucional; Alf Ross, On Self-Reference and a Puzzle in Constitutional Law,Mind: A Quarterly Review of Psychology and Philosophy 77, no. 309 (1969); Bidart Campos, Historia e Ideolog a de la Constituci on Argentina (Buenos Aires: Ediar, 1969). 81. Ibid. 82. The court was citing approvingly its Sentencia C-544/92. Ibid., para. 29. 83. Ibid., emphasis added. 84. Ibid., para. 3132. 85. Ibid., para. 33. 86. In its decision regarding the constitutionality of the Treaty of Lisbon, the German Constitutional Court reached a similar conclusion (even though, unlike the Colombian Constitution of 1991, the German Basic Law contains an eternity clause in Article 79. The court expressed: The principle of democracy is not amenable to weighing with other legal interests; it is inviolable. The constituent power of the Germans which gave itself the Basic Law wanted to set an insurmountable boundary to any future political development. Amendments of the Basic Law affecting the principles laid down in Article 1 and Article 20 of the Basic Law shall be inadmissible (Article 79.3 of the Basic Law). The so-called eternity guarantee takes the disposal of the identity of the free constitutional order even out of the hands of the constitution-amending legislature. . . From the perspective of the principle of democracy, the violation of the constitutional identity codified in Article 79.3 of the Basic Law is at the same time an infringement of the constituent power of the people. In this respect, the constituent power has not granted the representatives and bodies of the people a mandate to dispose of the identity of the constitution. No constitutional body has been accorded the competence to amend the constitutional principles which are essential pursuant to Article 79.3 of the Basic Law. The Federal Constitutional Court watches over this. With what is known as the eternity guarantee, the Basic Law reacts on the one hand to the historical experience of the free substance of a democratic fundamental order being slowly or abruptly undermined. However, consistent with one of its first decisions (see The Southwest Case, 1 BverfGE 14 (1951), Comparative Constitutional Law, eds. Walter F. Murphy and Joseph Tanenhaus (New York: St. Martins Press, 1977), the court expressed that It may remain open whether, due to the universal nature of dignity, freedom and equality alone, this commitment even applies to the constituent power, i.e. for the case that the German people, in free self-determination, but in a continuity of legality to the Basic Laws system of rule, gives itself a new constitution. Within the order of the Basic Law, at any rate the structural principles of the state laid down in Article 20 of the Basic Law, i.e. democracy, the rule of law, the principle of the social state, the republic, the federal state, as well as the substance of elementary fundamental rights that is indispensable to the respect of human dignity are, in their fundamental quality, not amenable to any amendment. Lisbon Case, paras. 216218 (internal notes omitted). 87. This attempt to ground the doctrine of constitutional substitution in the literal words of the Constitution of 1991 (instead of grounding it solely on the theory of constituent power), has been criticized by some academics. See for example, Gonz alo Ram rez Cleves, Reformas a la Constituci on de 1991 y su Control de Constitucionalidad: Entre Democracia y Demagogia, Revista Derecho del Estado, no. 21 (2008), 169. 88. Sentencia 551/03. 89. Ibid. Moreover, the court stated, the drafters of the Constitution of 1991 had the option of allowing for the total revision of the constitution, like the Spanish or Swiss constitutions. This reference, however, is in tension with the Schmittian conception, which maintains that even in the cases of constitutions that contemplate their total revision, the power of constitutional reform is a constituted, and therefore limited, power. See Schmitt, Constitutional Theory, 152 (where he specifically considers the case of the Swiss constitution). 90. Ibid. Needless to say, this example echoes Schmitt. 91. Sentencia 551/03, para. 40. 92. On this point, see de Vega, La Reforma Constitucional, 302. This point was underscored in an important 2010 decision, where the Colombian Constitutional Court maintained that a referendum can never (even when used in the context of constitutional reform), be understood as an exercised of constituent power (poder constituyente originario). Sentencia C-141/10. 93. Sentencia 551/03, para. 40. 94. Ibid.
386
95. The court did struck down several aspects of the proposed referendum, including the requirement of answering yes or no to a set of disparate issues in one of the referendum questions (as opposed to be able to vote separately on each issue), on the basis that it violated the liberty of the elector, the introductory notes at the beginning of each question, on the basis that they tended to promote yes vote, and invalidated one of the questions since it was alien to the referendums main topic. Since its 2003 decision, the court has had the opportunity to develop the doctrine of constitutional substitution further. These decisions include Sentencia C-1040/05, Sentencia C-970/04, Sentencia C-971/04, Sentencia C-1200/03, Sentencia C-757/08, Sentencia C-588/09 and, more recently, Sentencia C-141/10. For a more detailed discusi on of these cases, see Gonzalo A. Ram rez Cleves, El Control Material de las Reformas Constitucionales Mediante Acto Legislativo a Partir de la Jurisprudencia Establecida en la Sentencia C-551 de 2003, Revista Derecho del Estado, no. 18 (2006). One of the most important of these decisions took place in 2005, in a case that dealt with a reform that sought to allow the President to run for a second term. In that case, the court developed a sophisticated juridical methodology (whose details are out of the scope of this paper) to be used by a judge that is called to determine whether a constitutional substitution has taken place. See Sentencia 1040/05, para. 7.10.3. This methodology was originally established in Sentencia C-970/04. The court did not find that modifying the Constitution of 1991 to allow for Presidential re-election involved a violation of the limits of the power of constitutional reform. It expressed that the constitutions essential elements, including the Social and Democratic State, as well as the republican form of government, the unitary and decentralized state, and the participatory and pluralist character of a democratic regime, were preserved intact. Moreover, according to the court, allowing for Presidential re-election did not contravene the republican principle of alternance in power (although the court reached a different conclusion in 2010 about a proposed constitutional reform to allow the President to run for a third consecutive term, Sentencia C-141/10, briefly discussed in note 102 of this paper). However, the Legislative Act that brought these constitutional changes into existence contained a provision that granted the State Council (Consejo de Estado) the power to adopt the laws and regulations needed to implement the amendments (in the event that Congress failed to adopt them or if they were declared unconstitutional). The court considered this provision to confer the State Council an extraordinary legislative power, one which would not be subject to political or judicial control. That is, that it would create a non-elected extraordinary (temporary) legislator that would adopt norms binding to all citizens. This, according to the court, was inconsistent with the principle of constitutional supremacy and the separation of powers, essential components of the identity of the Constitution of 1991. Accordingly, its suppression would have the effect of substituting the Constitution with a new one, and therefore, it was an act that lied outside the scope of the amending power. Ibid., para. 7.10.4.3. 96. The literature on this debate is extensive. Here are some examples: Stephen Holmes, Precommitment and the Paradox of Democracy, Constitutionalism and Democracy, eds. Jon Elster and R. Slagstad (Cambridge: Cambridge University Press, 1988); J urgen Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory Principles? Political Theory 29, no. 6 (2001), 766; Lawrence G. Sager, The Incorrigible Constitution, NYU L. Rev. 65, no.4 (1990): 893; Frank Michelman, Brennan and Democracy (Princeton, NJ: Princeton University Press, 1999); Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999); Cass Sunstein, Constitutions and Democracies: An Epilogue, Constitutionalism and Democracy; Ronald Dworkin, Freedoms Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard, 1996); Bruce Ackerman, Higher Lawmaking Responding to Imperfection Responding to Imperfection; Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, Columbia L. Rev. 94, no.2 (1994): 457; Sanford Levinson, Our Undemocratic Constitution: Where the Constitution goes Wrong (And How the People Can Correct It) (Oxford University Press, 2006). 97. See for example, Bruce Ackerman, We the People: Foundations (Massachusetts, Belknap Press of Harvard University Press, 1991). 98. As Sartori has put it, constitutionalism requires a constitution that not only limits governmental power, but the will of the people as well. Sartori, Constitutionalism: A Preliminary Discussion, 862. Limiting the political power of the people is necessary, according to Sartori, because a constitution cannot effectively limit the will of the power holders if they can outflank constitutional impediments by making direct appeals to the will of the people. Ibid., n. 33. 99. A constituent assembly is representative in the sense that it is not composed of all citizens. However, when those sitting in an assembly lack decision-making power (in the sense that their proposals need to be directly ratified by the people before they acquire legal validity), they are not representatives, but delegates. For a discussion of representation and delegation in the context of Schmitts theory of constituent power, see Kalyvas, The Politics of the Extraordinary, 155. In fact, it is interesting to note that (in a manner consistent with the Sieyesean conception of the represented constituent power), the Colombian Constitution of 1991 was not subject to popular ratification.
100. See Andrew Arato, Redeeming the Still Redeemable: Post Sovereign Constitution Making, International Journal of Politics, Culture, and Society 22, no.4 (2009), 427, 437438 and Hans Lindahl, Sovereignty and Representation in the European Union, Neil Walker ed., Sovereignty in Transition (Oxford: Hart Publishing, 2003). 101. If the process of convening a Constituent Assembly, instead of being initiated by the legislature, is initiated by the collection of signatures (as the constitutions of Venezuela, Bolivia, and Ecuador allow for), the constitution-making act might arguably come closer to an act of the people. Moreover, if the assembly is composed of elected delegates that do not come from the traditional political parties but represent different social movements and sectors of the population, it might come even closer. 102. The specific content of the type of decisions that must be taken through the exercise of constituent power will vary from country to country, although they will usually be connected with the structure of government and fundamental human rights. In fact, the Venezuelan and the Colombian courts have recently disagreed about the kind of changes that are privative of the constituent subject, that is, changes that are so fundamental that they are outside the scope of the ordinary amendment power. Thus, in 2009, the Venezuelan highest court confronted a similar set of facts than those faced by its Colombian counterpart in 2005: a proposed amendment that would have the effect of allowing the President (as well as all elected officials) to run for re-election. Constitutional Chamber of the Supreme Tribunal of Justice Decision No. 53, February 3, 2009. However, unlike in Colombia in 2005, this amendment sought to remove all barriers to re-election; it not only allowed elected officials to run for a second time (something the Venezuelan Constitution of 1999 already did), but to run consecutively for office as many times they wished. Like in Colombia four years earlier, those who opposed the amendment argued that the ordinary process of constitutional reform could not be used to alter the fundamental principles embedded in the constitutional text. The Venezuelan court (asserting its jurisdiction to declare a constitutional amendment unconstitutional) maintained that allowing continuous re-election did not alter in any way the Constitutions fundamental structure and that, in fact, a referendum asking the people whether they wanted to amend the constitutional text in order abolish the limits on re-election, was an example of participatory democracy (one of the fundamental principles in which the Constitution rested) in action. Decision No. 53, ibid., Section V, no. 23. In Sentencia C-141 of 2010, the Colombian Constitutional Court disagreed: it declared unconstitutional an amendment that sought to allow the President to run for a third consecutive term. After pointing out a series of irregularities in the amendment process, the court expressed that the proposed change amounted to the substitution of the Constitution of 1991, since it was in conflict with its fundamental structure, including the separation of powers, the system of checks and balances, the rule about alternation in power, the right to equality, and the general and abstract character of the laws. 103. The question of whether courts should be the ones to enforce this limit to constitutional reform is a separate question. 104. On this point, see Amar, The Consent of the Governed, and Levinson, Our Undemocratic Constitution. 105. The Federalist Vol. 49. 106. See Michael Stokes Paulsen, How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention, Harvard Journal of Law and Public Policy 34 (2011): 837, 856. 107. This explains, at least in part, the emphasis on constitutional interpretation that currently seems to characterize (progressive) U.S. constitutional theory. In particular, see the essays on The Constitution in 2020, eds. Jack M. Balkin and Reva B. Siegel (New York, Oxford University Press, 2009). 108. Some examples of American authors that favour the adoption of the doctrine of unconstitutional constitutional amendments include: Walter Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: The Johns Hopkins University Press, 2007); John Rawls, Political Liberalism; William L. Marbury, The Limitations upon the Amending Power, Harvard L. Rev. 33 (1920): 223. 109. There are some authors, however, that consider constituent power mostly in the context of Schmitts theory of the state of emergency or that identify it with the power that individuals in the state of nature exercise when they decide to enter civil society. Dyzenhaus, The Politics of the Question of Constituent Power, in The Paradox of Constitutionalism; Murray Forsyth, Thomas Hobbes and the Constituent Power of the People, Political Studies 29, no.4 (1981): 191. These approaches, in my view, tend to neglect constituent powers democratic potential. 110. As Andreas Kalyvas has explained, the term constituere, which is formed by the prefix con (with, together) and the suffix statuere (to set up, to construct, to place), literally means the act of founding together, founding in concert, creating jointly, or co-establishing. . .The correct use of the term to constitute prescribes that if one wants to constitute a new constitution, for example, one ought to coinstitute it, to institute it jointly with others. Andreas Kalyvas, The Basic Norm and Democracy in
388
Hans Kelsens Legal and Political Theory, Philosophy and Social Criticism 32, no.5 (2006): 573, 588589. As Ulrich Preuss has noted: Conceptually [constituent power] cannot be attributed to any single person, even a monarch. The constituent power, he adds, is the power of a collective body, which by the very act of constitution-giving, exercises its right to self-rule. Preuss, Constitutional Powermaking for the New Polity: 647. 111. In Colombia, a similar language was contained in the question posed to the citizens before the Constituent Assembly was convened (see note 62 of this paper); in Venezuela, this language was used in the Presidential Decree that provided for the referendum asking citizens whether they wanted to convene a Constituent Assembly (see Decree N. 3 of February 2, 1999).
Joel I. Colon-Rios is Lecturer, Faculty of Law, Victoria University of Wellington.
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Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Venezuela and Colombia

Joel I. Col on-R os

Constellations Volume 18, Number 3, 2011

I. Constituent Power in Schmitts Constitutional Theory

2009 Blackwell Publishing Ltd.

2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

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2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

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Constellations Volume 18, Number 3, 2011

III. The Limits to Constitutional Reform in Colombia

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Constellations Volume 18, Number 3, 2011

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Constellations Volume 18, Number 3, 2011

IV. The Juridical Relevance of the Theory of Constituent Power

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2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

2009 Blackwell Publishing Ltd.

2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

2009 Blackwell Publishing Ltd.

2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

2009 Blackwell Publishing Ltd.

2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

2009 Blackwell Publishing Ltd.

2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

2009 Blackwell Publishing Ltd.

2009 Blackwell Publishing Ltd.

Constellations Volume 18, Number 3, 2011

Joel I. Colon-Rios is Lecturer, Faculty of Law, Victoria University of Wellington.

2009 Blackwell Publishing Ltd.

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