Hannah Arendt in Venezuela: The Supreme Court Battles Hugo Chávez Over the Creation of the 1999 Constitution

International Journal of Constitutional Law, Volume 14, Issue 3, 2016

37 Pages Posted: 23 Aug 2017

See all articles by Joshua Braver

Joshua Braver

Tufts University; Harvard Law School

Date Written: September 13, 2016

Abstract

Both “radical” proponents and “legalist” critics of popular constitution-making share Carl Schmitt’s definition of the people as outside of, unconstrained by, and superior to all law. Critics cite Venezuela as evidence that unleashing the people facilitates authoritarianism. I turn away from Carl Schmitt and towards Hannah Arendt to retell the Venezuelan story and recover an alternative vision of the people called “revolutionary reform.” Contrary to Schmitt, Arendt and revolutionary reformists recognize that the people are politically constructed through the “unconventional adaptation” of pre-existing institutions, such as the legislature and courts. In Venezuela, the key moment of that construction was the establishment of the first-past-the-post rule for the Constituent Assembly. The electoral rule, rather than the invocation of the people, was the turning point that allowed Chavez to eliminate the opposition. On this issue and throughout its case law, the Supreme Court developed a promising, Arendtian concept of the people. However, since the Court failed to fully develop the implications of its theory of the people, it did not make the crucial decisions about the content of the electoral rule necessary to restrain Chávez.

Keywords: constitution-making, constituent power, Venezuela, Hannah Arendt, Carl Schmitt, Constitution-Making, regime change, comparative constitutional law, democratic theory, constitutional theory

Suggested Citation

Braver, Joshua, Hannah Arendt in Venezuela: The Supreme Court Battles Hugo Chávez Over the Creation of the 1999 Constitution (September 13, 2016). International Journal of Constitutional Law, Volume 14, Issue 3, 2016. Available at SSRN: https://ssrn.com/abstract=2998103

Joshua Braver (Contact Author)

Tufts University ( email )

Medford, MA 02155
United States

Harvard Law School ( email )

5103813409 (Phone)

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