Constituent Power and Constitution-Making in Latin America

Abstract

This chapter, for a forthcoming edited handbook on comparative constitution-making (co-edited with Hanna Lerner), surveys constitution-making in Latin America since 1990. It classifies the nine constitution-making episodes in the region along two dimensions: (1) whether they were constrained or unconstrained by the existing constitutional order, and (2) whether they were drafted unilaterally or by a more consensual coalition of actors. An examination of recent regional constitution-making reveals that original constituent power theory, or the theory that the “people” retain the power to remake the constituted powers in the existing constitutional order, has played a major role in most recent exercises of constitution-making. The main practical function of the doctrine has been to allow powerful political forces to remake their constitutional orders unilaterally, evading a need to negotiate with the opposition. Clarifying this function is useful for developing a practical rather than theoretical critique of the harm often done by constituent power theory, and for highlighting the desirability of alternative conceptions of constitution-making. In many cases, reliance on replacement clauses found in existing constitutions themselves is likely to be a superior alternative.

Keywords: constitution-making, constituent power theory, constituent assembly, Latin America, Venezuelan Constitution, Bolivian Constitution, Colombian Constitution

JEL Classification: K00