Carl Schmitt and Constituent Power in Latin American 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, Constellations, 2011
36 Pages Posted: 9 Jun 2010 Last revised: 8 Apr 2015
Date Written: June 7, 2010
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 favourably by a court in a constitutional democracy, it is Carl Schmitt. Courts, and particularly courts in constitutional democracies, are close to be the exact opposite of the constituent power: they are called to limit political power, to put into practice the constraints placed by constitutionalism both in governments and their peoples. Schmitt, one of the most famous 20th century theorists of constituent power, was not only directly associated with National Socialism during the 1930's, but his theory of the constituent subject pointed toward an unlimited and uncontrollable sovereign, a political will whose decisions cannot 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 glance, appears as radically alien to the activity of deciding cases according to the established law.
Latin American courts, however, represent an important exception to this rule. It is not only common for courts in this region to discuss in detail the theory of constituent power, but also to explicitly adopt the Schmittian conception of constituent power as surviving “alongside and above” the Constitution. This paper will examine two key judicial opinions from Venezuela and Colombia, which suggest that the theory of constituent power, as conceived by Schmitt, should not be summarily rejected as an invitation to absolute and arbitrary rule. 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, the court declared that 'the people' was not bound by the amendment procedure contained in the constitution (which only applied to Congress in the exercise of the ordinary power of constitutional reform), and could therefore alter the constitution through other, constitutionally unspecified procedures. The second decision, Opinion C-551/03 of the Colombian Constitutional Court (2003), put into practice Schmitt's theory of implicit limits to constitutional reform, ruling that the constituted powers (that is, the executive and legislative powers) could not engage use the constitution’s amendment procedure to introduces changes so fundamental that amount to the creation of a new constitution (something that can only be done by the bearer of the constituent power). These decisions show that the Schmittian conception of an unlimited and ever present constituent power can be deployed by courts both as an enabling and limiting force. That is, as a justification for the idea of a legally unbound popular will, but also as a way of limiting political power in profound ways.
Keywords: Constituent Power, Constitution-Making, Constitutional Change, Latin America, Constitutionalism, Colombia, Venezuela, Carl Schmitt
Suggested Citation: Suggested Citation