Introduction- We, the Mediated People: Popular Constitution-Making in Contemporary South America

Univ. of Wisconsin Legal Studies Research Paper No. 1730

in We, the Mediated People: Popular Constitution-Making in Contemporary South America (Oxford University Press, Forthcoming)

31 Pages Posted: 26 Oct 2021

See all articles by Joshua Braver

Joshua Braver

University of Wisconsin Law School

Date Written: October 25, 2021

Abstract

The "people" are the ultimate source of authority for a constitution. But who are the people? The danger is that populist leaders will define the people as one segment of the population that is unbound by law to create a new constitution that centralizes power in the leader's own hands. This book examines how and how not to violate law to construct an inclusive people so that they may realize their freedom to break with the past but still stave off the establishment of semi-authoritarian constitutions.

I argue that through the "extraordinary adaptation" of old institutions, the people and its constitutional convention may include all parties. Rather than overthrowing old institutions and opening a legal void, in extraordinary adaptation, the revolutionary party gains offices through democratic elections and then repurposes the old regime's institutions by bending, reinterpreting and even breaking their rules. However, it never creates a legal vacuum and this partial legal continuity facilitates the participation of old parties that continue to hold some power in the previous constitution's institutions. The adaptation must be principled: the revolutionary must first exhaust all other legal channels, openly acknowledges the violation to seeks popular vindication, and concede enough to the opposition so that it may begrudgingly acquiesce to the new constitution.

I develop my theory by examining all four instances of popular constitution-making in contemporary South America as it is the region with the most holdings of freely and fairly elected constitutional assemblies within liberal democracies after the end of the Cold War. I show how populist leaders in Venezuela and Ecuador established semi-authoritarian constitutions through lawless and exclusive constitution-making while Colombia and Bolivia managed to avoid the same fate by engaging in extraordinary adaptation.

Keywords: constituent power, constitution-making, south america

JEL Classification: K10

Suggested Citation

Braver, Joshua, Introduction- We, the Mediated People: Popular Constitution-Making in Contemporary South America (October 25, 2021). Univ. of Wisconsin Legal Studies Research Paper No. 1730, in We, the Mediated People: Popular Constitution-Making in Contemporary South America (Oxford University Press, Forthcoming) , Available at SSRN: https://ssrn.com/abstract=3949633

Joshua Braver (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

HOME PAGE: http://https://law.wisc.edu/profiles/joshua.braver@wisc.edu

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