carl schmitt and constituent power in latin america courts, the cases of venezuela and colombia_joel...

Carl Schmitt and Constituent Power in Latin AmericanCourts: The Cases of Venezuela and Colombia

Joel I. Colon-Rıos

If there is a concept in modern constitutional theory that is unlikely to be found in ajudicial opinion it is that of constituent power. And if there is a jurist not likely to betreated favorably by a court in a constitutional democracy, it is Carl Schmitt. Courts, andparticularly courts in constitutional democracies, are close to being the exact opposite of theconstituent subject: they are called to limit political power, to put into practice the constraintsplaced by constitutionalism on both governments and their peoples.1 And Schmitt, one ofthe most famous 20th century theorists of constituent power, was not only directly associatedwith National Socialism during the 1930s, but his theory pointed toward an unlimited anduncontrollable sovereign, a political will whose decisions could not be limited by any formof positive law. Perhaps more importantly, he maintained that constituent power could beexercised 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 notonly 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 “alongsideand above”3 the constitution. For instance, in a case related to the validity of a constitutionalamendment altering the government’s “pensionary” regime, the Peruvian ConstitutionalCourt discussed at length the distinction between constituent power and the power of con-stitutional reform. Openly relying on Schmitt, the court defined the former as the sovereignpower to create or radically transform a constitution and to establish the fundamental valuesthat will guide government, and the latter as the power to modify the constitution accordingto the prescriptions contained in the constitutional text.4 Schmitt’s constitutional theory,and particularly his conception of constituent power, has long been influential in LatinAmerican constitutional theory, where his Verfassungslehre has been available in Spanishsince the 1930s.5 Not surprisingly, his work played an important role in the juridical con-solidation of dictatorships during the 20th century, as Renato Cristi has shown with regardsto Augusto Pinochet’s regime in Chile and the attribution of constituent power to a militaryjunta.6

By examining two key judicial opinions from Venezuela and Colombia, this paper willshow that the theory of the constituent power, in its Schmittian formulation, can be usedboth to defend the idea of an unlimited popular will, but also to limit political power inprofound ways. The first of these decisions, Opinion No. 17 of the Supreme Court of Justiceof Venezuela (1999), provides an example of the former in the context of the exceptionalmoment of constitution-making. There, a court declared that “the people” was not bound bythe amendment procedure contained in the constitution (which was determined to only applyto Congress and the other constituted powers), and could therefore alter the constitutionthrough other extraordinary and non-specified procedures. The second decision, SentenciaC-551/03 of the Colombian Constitutional Court (2003), put into practice Schmitt’s theoryof 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, OxfordOX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

366 Constellations Volume 18, Number 3, 2011

executive and legislative powers) could not engage in an act of constitution-making, an actthat could only be performed by the constituent subject.

The paper begins with a review of Schmitt’s theory of constituent power, as developed inthe first part of the Verfassungslehre. This first section will stress those aspects of Schmitt’stheory that have been particularly influential in Latin America, such as the distinctionbetween constituent power and the power of constitutional reform, and the relation betweenconstituent power and positive law. The second and third sections will be devoted to examinethe previously mentioned decisions of the Venezuelan and Colombian courts, which provideimportant insights into some of the practical implications of Schmitt’s theory, as well as ofits dangers and (democratic) potential. By briefly examining whether these two approachespresent a truly different account of the theory of constituent power, the fourth and finalsection will defend the view that constituent power should not be summarily rejected bycontemporary constitutional theorists as an invitation to absolute and arbitrary rule.

I. Constituent Power in Schmitt’s Constitutional Theory

The concept of constituent power has recently become one of the most powerful juridical toolsof 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 latelybegun to be considered by Anglo-American constitutional theory too, and this new interestis generally related to the interest in the work of Carl Schmitt.9 However, Anglo-Americanconstitutional theorists seem to have been captivated by the more mysterious aspects ofSchmitt’s conception of constituent power, such as its pre-legal, absolute, and formlesscharacter, and have not yet given full consideration to its practical juridical implications inthe context of constitutional reform and constitution-making.10 It is precisely these aspectsof Schmitt’s theory that have long been part of Latin American constitutionalism, and whichI will summarize in this section.

As is well known, the distinction between constituent and constituted powers was devel-oped by Emmanuel Sieyes at the time of the French Revolution.11 Constituent power meansconstitution-making power, the source of production of fundamental juridical norms. Theconstituent subject, according to Sieyes, remains in the state of nature and is always capableof renovating established juridical orders. For this author, the rightful possessor of constituentpower is the nation,12 which is all-powerful and cannot be limited by any form of positivelaw; 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 theconstituent subject. These bodies (e.g. the executive, legislative and judicial powers in themodern republican form of government) are always limited by the constitutional forms thatgrant their existence. For example, an ordinary legislature must adopt statutes in the mannerprescribed in the constitution and cannot exercise its legislative power in ways that violatethe established constitutional forms.14

Sieyes’ theory was further developed (and in a way radicalized) by Schmitt.15 Schmittdefined constituent power as “the political will, whose power or authority is capable of makingthe concrete, comprehensive decision over the type and form of political existence.”16 Inthat respect, he rejected the Kelsenian doctrine according to which a constitution rests on anabstract norm and instead contended that it could only rest on a sovereign decision: “Theconstitution is valid by virtue of the existing political will of that which establishes it.”17 For

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Carl Schmitt and Constituent Power in Latin American Courts: Joel I. Colon-Rios 367

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 constitutioncan 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 itdecides such an action necessary.20

Notwithstanding the above, Schmitt maintained that although constituent power could notbe limited by any rules or institutions, the “execution and formulation” of the decisions ofthe constituent subject normally required certain organization and procedures.21 Otherwise,the constituent subject would remain in a state of powerlessness and disorganization, unableto transform its will into law. In the context of modern democracy, these procedures takedifferent forms, but their paradigm is the National Constituent Assembly who drafts aconstitution (and whose work is sometimes subject to popular ratification before it comesinto effect).22 Although such an assembly acts as a sovereign dictator (because it does nothave any competencies, in the sense of spheres of power delimited in advance, an ideathat will become central in the decision of the Colombian Constitutional Court discussedbelow) it is not itself the sovereign. As such, it must always act in “the name of and undercommission from the people, which can at any time decommission its agents through apolitical act.”23

Now, for Schmitt, the exercise of constituent power should not be made equivalent to theexercise of universal suffrage in ordinary elections or referendums: these are means for theexercise of competencies given by the constitution and, while important, are not to be usedto 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 ofthe state (in Schmitt’s terminology, “the people’s mode of political existence”).25 Generally,they refer to the state’s 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 ofthe Weimar Constitution, Schmitt’s main frame of reference, the following were identifiedas the fundamental political decisions of the German people:

[T]he decision for democracy, which the German people reached by virtue of its consciouspolitical existence as a people. This decision finds expression in the preamble (“the Germanpeople provided itself this constitution”) and in Art. 1 sec. 2: “State authority derives fromthe people.” Additionally, there is the decision for the Republic and against monarchy inArt 1 sec. 1: “The German Reich is a republic.” There is also the decision for the retentionof 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 parliamentary-representative form of legislative authority and government. Finally, there is the decisionfor the bourgeois Rechtsstaat26 with its principles, fundamental rights, and separation ofpowers.27

These decisions constituted the “substance” of the Weimar Constitution. They representthe “concrete political decisions providing the German people’s 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 theordinary amendment procedure.29 Decisions like these, Schmitt maintained, should not betreated as mere constitutional laws, that is, they are not provisions that have been included inthe document called “the constitution” simply to insulate them from day-to-day legislativemajorities; rather, they are “the Constitution in the positive sense,” which in this respectis equivalent to the set of fundamental political decisions that can only be altered by the



bearer of the constituent power.30 This is why the controversial German jurist rejected theidentification of constituent power with the power to reform the constitution: the officeswith jurisdiction to amend the constitutional laws are “not commissioned with the ongoingexercise of [constituent power].”31 The power of constitutional reform only extends toconstitutional laws: the institutions that have been granted this power may only amendindividual constitutional provisions, “under the presupposition that the identity and continuityof the constitution as an entirety is preserved.”32

Under this view, when there is a change on these fundamental decisions, it is not correctto speak about constitutional reform but about constitution-making, about the creation of anew and different constitution.33 And only the constituent subject can legitimately engagein 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 organsauthorized 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 andthat constituent power vanishes together with any other extra-constitutional power (or thatis channeled through the ordinary rules for constitutional amendments, as in the traditionalliberal conception).35 On the contrary, Schmitt maintained that it was a mistake to thinkthat 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 areciprocal effect on its subject and eliminate its political existence. This political existenceremains alongside and above the constitution.”37

Naturally, the actions of the bearer of constituent power cannot be defined in terms ofconstitutionality or unconstitutionality (much less in terms of legality or illegality). Accord-ingly the legitimacy of a constitution does not rest on whether it was created according to theprocedure in place at the moment of its adoption: “[I]t is completely impossible to measure anew constitution by whether it came about by way of the preservation of prior constitutionalrules and formalities. . .A new constitution cannot subordinate in this way to previous normsthat are no longer valid.”38 The activity of constituent power always supposes an instanceof juridical violence, an act that ends in the creation of a constitution but that takes place inan extra-constitutional terrain. In this sense, the actions (and the identity) of the constituentsubject 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 theexpression of a sovereign decision of the people, because a democracy only recognizes theentire 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 Schmittianformulation) played a major role in two important decisions by the Colombian Constitu-tional Court and the Supreme Court of Justice of Venezuela. Nevertheless, it will be shownthat it performed very different functions in the reasoning of each court (which confrontedvery different factual situations). In the Venezuelan case, constituent power pointed to anunlimited popular power, an unbound people who could re-write the established constitu-tional forms without being subject to the constitution’s amendment rule. In the Colombiancase, the theory was deployed in order to limit governmental power, as a means for de-lineating the competencies of the Executive and the Legislature in the context of consti-tutional change. In both cases, however, constituent power was directly connected to theidea that, if using the proper democratic methods, the people can act in ways that go be-yond the established juridical order. In this respect, and as will be suggested in the finalpart of this paper, these cases point both to constituent power’s dangers and democraticpotential.



II. Legal Continuity, Revolutions, and Constituent Power in Venezuela

When Hugo Chavez won the 1998 presidential elections in Venezuela, it was clear thatpart of his political program included the adoption of a new National Constitution. Until1999, Venezuela’s constitutional regime operated under a fundamental law that resembledthat 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 wasthe direct result of Punto Fijo, an agreement brought to life by the country’s major politicalparties and whose main stated objective was to create a stable democracy and to prevent areturn to military rule. By the 1980s, however, many critics claimed that instead of beinga democracy, Venezuela had transformed into a “partyarchy” (partidocracia), in which thetwo leading political parties, Accion Democratica (AD) and the Comite de OrganizacionPolıtica Electoral Independiente (COPEI), alternated political power.41

The perception of unfairness in the political system, combined with the economic declineof the 80s and 90s that impoverished great masses of Venezuelans (which contrasted withthe oil bonanza of the 1970s) and the widespread belief that political elites were illegallyenriching themselves with oil revenues, were some of the factors that precipitated the electoralvictory of Hugo Chavez in 1998.42 For some, the problems of the country were connectedto the Constitution of 1961, which was seen as fixing in place the terms of Punto Fijo andtherefore guaranteeing the permanence in power of the traditional political elites. Althoughthis belief was arguably mistaken (after all, the 1961 constitution was a standard liberal LatinAmerican constitution), the fact is that calls for its revision were not uncommon and thatChavez and his followers were determined to replace it and create a new juridical order. Morecontroversially, they aimed to do so through the convocation of a Constituent Assembly, notthrough the ordinary amendment process.43

The immediate problem was how to justify in legal terms the creation of such an extraor-dinary body. Like most liberal constitutions, the Constitution of 1961 contained no provisionfor convening a Constituent Assembly, and its amendment rule placed the power of con-stitutional reform in the hands of the legislature.44 Thus, critics of the new government’splan maintained that to validly convene a Constituent Assembly, the amendment rule of theConstitution of 1961 needed to be modified in order to include such method of constitutionalchange. This, however, was not an option for the new government: Chavez’s supporters onlycontrolled a third of the two chambers of Congress (the congressional elections were heldone month before the presidential elections).45 Thus, instead of following their critic’s pre-scriptions, Chavez and his political allies argued that the assembly could be called througha special referendum. In fact, one of the first actions of the new government was the issuingof a decree for the holding of a referendum asking the population whether they wanted toconvene a Constituent Assembly vested with the power to “transform the state and to createa new juridical order that would allow for the effective functioning of a social and participa-tory form of democracy” (“transformar el Estado y crear un nuevo ordenamiento jurıdicoque permita el funcionamiento efectivo de una democracia social y participative”).46 Notsurprisingly, the constitutionality of the government’s plan was quickly put to the test in theVenezuelan 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 Chavez’s governmentrose to power, and were very aware of the profound political implications that any decisionon this case would have. On the one hand, a ruling in favor of the constitutionality of



the government’s action would facilitate an important transformation of the basic structureof government, which could include the replacement of the SCJ with a new court (andnew judges). On the other hand, and taking into account the degree of popularity thatChavez’s government enjoyed in 1999, declaring unconstitutional the government’s attemptto convene the assembly could have become the fatal blow to the precarious legitimacy ofthe existing political institutions. But the reasoning of the SCJ should not be explained asa clever judicial maneuver to guarantee its own survival after what seemed to be imminentconstitutional changes. The court followed a theory of constitutional change already presentin Latin American constitutionalism: the doctrine of the constituent power. In fact, in oneof the early paragraphs of the substantive part of the decision the court assumed this theoryas a given: “The question that has been formulated is whether the Constitution should bereformed [through the ordinary amendment process], or if the convening of constituentpower, a sovereign power, is warranted.”47

The decision of the SCJ, written by Humberto J. La Roche, was a response to an actionpresented by the Foundation of Human Rights, asking for an interpretation of Article 4 of theConstitution 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 Article181 referendum, thus bypassing the ordinary amendment process (and the legislature) alto-gether. As suggested above, Venezuelan jurists were divided into two main groups on thisissue. The first group maintained that the Constituent Assembly was a “valid option,” but onethat required a change to the amendment procedure of the Constitution of 1961.50 In theirfavor, they cited Article 250, which provided that the validity of the Constitution of 1961would not be affected if it was altered by any other mechanisms than those established inthe constitutional text. In such a case, Article 250 continued, “every citizen, with or withoutauthority, 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 couldhave the effect of putting an end to popular sovereignty and could not prevent the exercise ofconstituent power of the people.52 Accordingly, and regardless of the content of the currentfundamental law, citizens could commission a Constituent Assembly to draft a new constitu-tion. Such an assembly could be activated through a popular referendum and, as a means forthe exercise of constituent power, it would be above and outside the existing constitutionalregime.

The court’s legal analysis began by considering Article 4 of the Constitution of 1961, whichestablished that “Sovereignty rests with the people, who exercises it by voting, through theorgans of public power.” For the court, it was necessary to determine whether this delegationof powers meant that popular sovereignty could not be exercised directly by the people,whether citizens had permanently surrendered their sovereign power through the adoptionof the constitution. In other words, whether the established amendment rule (in which “theorgans of public power” were the major players) was exclusive, or whether the people coulddecide 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 secondone, we would be dealing with “the constituent power, which would have an absolute andunlimited character.”53

By embracing the theory of the constituent power, the court was able to depart from thetraditional interpretation of Article 4. This traditional interpretation held that the objectiveof Article 4 was to protect the principle of representation and the idea that while sovereigntyrested with the people, it had been delegated to government and could only be exercised byit. The court rejected this interpretation by reasoning that whoever has power and is able to



delegate it can also exercise it herself. It is true that, as a matter of day to day politics, in thoseaspects that have to do with specific functions enumerated in the constitution, sovereigntyhas been delegated to certain public organs and is normally exercised by them. That is tosay, once a constitution is established, the people is not allowed (and would not be able forpractical reasons) to directly perform functions that have been delegated to certain organs (likeroutinely adopting ordinary laws, creating administrative rules, or adjudicating controversiesbetween 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 theact 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 bodyconvened specifically for that task, the next step was to determine if Law 181 could be usedto call a referendum and ask the electorate whether such a body (in this case a ConstituentAssembly) should be convened. Law 181 gave the President of the Republic (as well as theCongress and the Council of Ministers) the faculty to call a referendum to consult electorson matters of national importance. The court stated that the main legal limit applicable to aLaw 181 referendum is that the electoral event must be about “decisions of special nationalimportance” (decisiones de especial transcendencia nacional). That is, the referendum couldnot be used to consult citizens on regional and municipal matters. Moreover, the law excludedcertain subjects from popular consultation, such as budget or other fiscal or tributary issuesand restrictions of constitutional guarantees or human rights. The court declared that theseexclusions had an absolute character, but they did not include a prohibition for using a Law181 referendum for convening a Constituent Assembly. Although this line of reasoning seemssufficient to reach the conclusion that Venezuelans, by delegating certain competencies to theordinary institutions of government, did not renounce their faculty of convening a ConstituentAssembly to draft a new constitution, and that a Law 181 referendum was an appropriatemechanism to ascertain the people’s will to convene such an assembly, the court did not stopthere.

In fact, one of the most interesting parts of the decision came after the court’s analysis ofLaw 181. The court considered it necessary to clarify that the specific requirements of theordinary amendment process only applied to the constituted powers (the ordinary branchesof government) and not to constituent power. For the court, the requirements and limitsestablished in the constitution regarding the amending power seek to regulate the proceduresthrough 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 nationallife as a unity of existence and decision” and that contrary to the constituted powers, itis “prior and superior to the established juridical order.”56 If the absolute and unlimitedfaculties of constituent power were understood as susceptible to being exercised by theordinary institutions of government, the court suggested, then sovereignty would have beentaken away from the people and given to their representatives.57

According to the court, an implicit recognition of this unlimited power could be found inthe preamble of the constitution, which established democracy as the political system of thecountry. Moreover, the court maintained that the faculty of the people to be consulted forthe 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



power (and indirectly through the Schmittian conception of constituent power), the SCJwas able to provide a justification for an exercise of political power not sanctioned (at leastexpressly) by the constitutional text.59 However – and I will come back to this point in thefinal section of the paper – this was not a “naked” exercise of power, but one invested of animportant 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 exerciseits constituent power even if such mechanism was not contemplated in the establishedconstitution, the Venezuelan SCJ was not doing anything out of the ordinary, at least notfor Latin American courts. In fact, in 1990 the Colombian Supreme Court Justice alsosanctioned the convening of a Constituent Assembly in a similar context (an event that infact 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 forthe convocation of a Constituent Assembly attempted to limit the assembly’s discussionsto certain topics, the Colombian court expressed that the constituent power could only besubject to self-imposed limits and that its actions could not be revised by the constitutedpowers.62

The Colombian Constituent Assembly was convened in the climate of violence andpolitical crisis present in that country for an important part of the 20th century (and still presentin the 21st). By the 1990s, an armed conflict that involved the military, guerrillas, paramilitarygroups and drug cartels had become one of the principal components of Colombia’s politicallandscape. Moreover, as in Venezuela, the country’s political system was perceived as hostileto the incorporation of new political movements that represented interests different from thosetraditionally advanced by the Liberal and Conservative parties (which, as Venezuelan majorpolitical parties, in 1958 began to alternate power after an agreement called the FrenteNacional).63 Not surprisingly, since the late 1970s, there had been several failed attemptsto modify the country’s constitutional framework. For example, in 1987, President VirgilioBarco failed in his effort to call for a referendum to reform the constitution’s amendmentprocess.64 Like the Venezuelan Constitution of 1961, the Colombian Constitution of 1886placed the power of constitutional reform in Congress, and excluded the possibility ofconvening 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 constitutionalchange.65

Interestingly, when in 1990 the Colombian electorate voted in favor of convening aConstituent Assembly to adopt a new constitution, it did it through a much more informalprocess than the one present in Venezuela. A student movement led the campaign in favor ofconvening an assembly and was responsible for the introduction of a “seventh ballot” (septimapapeleta) in the March 1990 congressional elections that asked the electors whether theyfavored 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 choicebut to formally ask electors, in May 1990, whether they wished to convene the extraorginarybody. More than 88% of those participating in the election voted “yes” (there was anabstention rate of 74%),66 and the Constituent Assembly (whose elected delegates were notlimited to members of the traditional parties but also included representatives from socialmovements and ex-guerrilla groups members) was convened in 1991 after being sanctionedby the Supreme Court of Justice in a decision that followed a line of argumentation similar



to that of Opinion No. 17.67 (Ironically, it was the almost “permanent” state of exceptionpresent 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 TheConstitution of 1991 has been widely celebrated since its adoption, and it included many ofthe proposals rejected by previous governments (such as the establishment of a ConstitutionalCourt), a generous catalogue of civil, social, and economic rights, as well as mechanismsfor their protection.69 In 2003, however, President Alvaro Uribe attempted to introduce a setof constitutional reforms that were not well received by several groups and that ended in theColombian Constitutional Court.

a. Sentencia 551/03 of the Colombian Constitutional Court

Although the content of these reforms was mostly upheld, the case gave the ColombianConstitutional Court the opportunity to adopt the doctrine of implicit limits to constitutionalreform (also defended by Schmitt and briefly discussed above).70 What makes Sentencia551/03 extraordinary is that Article 241 of the Constitution of 1991 clearly established thatthe Constitutional Court may revise proposed amendments only for procedural or formaldefects in their adoption (‘solo por vicios de forma o procedimiento’).71 Moreover, itsArticle 379 (which is part of its amendment rule) states that proposed constitutional changescould only be declared “unconstitutional” if they violated the requirements of the establishedamendment process.72 Even so, the Colombian Constitutional Court was able to develop acogent argument in favour of the doctrine of implicit (substantive) limits to constitutionalreform. And it did so openly relying on Schmitt’s conception of the constituent power.

The reforms at issue were supposed to come into existence after their approval in areferendum, which was originally presented as an opportunity to vote against “petty politicsand corruption” (contra la corrupcion y la politiquerıa), 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 ondrug 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 referendumargued that in assessing the constitutionality of the proposed amendments, the court hadto limit itself to examine whether the formal requirements established in the amendmentrule has been met. Those on the other side of the controversy asked the court to examinethe substance of the amendments and, among other things, argued that a constitutionalamendment could be declared unconstitutional if it contradicted the fundamental principlesin which the constitution rested (or if it was inconsistent with Colombia’s internationalobligations). 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 tothe power of constitutional reform. The court’s decision, written by Eduardo MontealegreLynett, 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, becausea constitutional change is, by definition, always inconsistent with the constitutional text thatit seeks to transform (and contradict).74

Accordingly, the court’s only role with regards to a proposed constitutional reform was,just as Article 241 states, ensuring that the requirements of the amendment procedure werestrictly followed. However (and here is where the court’s reasoning takes an interestingand decisive twist), in the context of constitutional reform (as in many other contexts),



procedure and substance overlap with each other. The court began its discussion of therelationship between substance and procedure with the following line of argumentation.According to the court, competence (competencia, understood as the legal power of producinga determinate legal consequence) is a fundamental part of any procedure: it would be legallymeaningless to follow each of the requirements of a determinate procedure if one lacksthe competence to produce the desired outcome.75 Thus, the court expressed, when Article241 of the Constitution of 1991 restricts the review power of the court with regards toconstitutional amendments to that of identifying procedural or formal defects, that it wasnecessarily conferring to that body the power to examine whether the institution promotingthe constitutional changes is acting ultra vires.76 The contrary would mean that the courtwould be unable to do anything if confronted with a constitutional change adopted througha strict adherence to the amendment rule, but by an organ without the competence to bringthat kind of change into existence. In this way, the court was able to avoid what looked likean insuperable constraint on its faculty of reviewing the content of proposed constitutionalamendments.

There was, however, an additional hurdle: does the power of constitutional reform createdby the Constitution of 1991 have any competencies, that is, is it susceptible of being exercisedultra vires in the sense of adopting (or attempting to adopt) changes that are outside the scopeof its authority? This was not an insignificant hurdle because if the power of constitutionalreform is not subject to any limits with regards to the type of changes it is allowed toproduce, then the previous argument (even if accepted) would lack any practical effectsin the context of the Colombian constitutional regime. The fact that the Constitution of1991, 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 ofthese facts, the court proceeded to develop the doctrine of implicit limits to the amendingpower. According to the court, legal scholars and courts around the world have recognizedthat under any democratic constitution (even under one that does not contain un-amendable oreternity 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 constitutionalreform as a constituted, rather than a constituent, power.78 The authorities the court citedto sustain this proposition included Schmitt’s Constitutional Theory, whose ideas are alsoreflected in the discussion that followed.79

The next step was to elaborate on the distinction between constituent and constitutedpower. The court defined the former “as a power which belongs to the people, who alwayshas the faculty of giving itself a Constitution.”80 It maintained that constituent power (poderconstituyente originario) “was not subject to juridical limits, and constitutes, above all, anexercise of the political power of those associated”81 in a political community. Quoting froman earlier decision, it characterized it as “absolute, unlimited, permanent, without limits orjurisdictional controls, because its acts are political and foundational (polıtico-fundacionales)and not juridical, which validity derives from the political will of the society.”82 To this alreadySchmittian approach, the court added that a political community states always remained freeto exercise, in an episodical and transitional manner, its constituent power “in order to reviseor modify its fundamental political decisions and to give its juridical institutions, new formsand content. . .”83

The court then moved to explain that the power of constitutional reform (as a constitutedpower 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 thatneed to be met for an amendment to be valid, is an example of one of those limits. The



question, according to the court, is not whether the power of constitutional reform, as aconstituted power, is subject to legal limits (as it clearly is), but whether its competencies arelimited as well.84 That is, whether there are some topics, some contents, that are outside thescope of the reforming powers. The fact that the Constitution of 1991 did not contain anyun-amendable clauses might suggest that the power of constitutional reform is not subject toany substantive limits. For the court, this was only partially true. That is to say, it is correctthat any provision of the Constitution of 1991 can be reformed and modified. However, thisdoes 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 “constitutionalsubstitution,” now famous among Latin American jurists.86

The court then proceeded to connect the doctrine of “constitutional substitution” with thetext 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 theConstitution of 1991. Under that reading, the constitutional text only authorizes changes tothe existing constitution, rather than also giving government the power to replace it with a newone. This means that the constitution must “preserve its identity as a unity,” independently ofthe modifications that it might suffer over time: “In other words, the power of constitutionalreform may modify any part of the constitutional text, but those modifications cannot involvethe suppression of the constitution or its substitution with a new one.”88 Nowhere in theamendment rule is there an authorization “to eliminate or substitute the existing Constitutionwith 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]orinstance, the power of constitutional reform cannot be used in order to substitute the Socialand Democratic State and the Republican form of government (Article 1) with a totalitarianstate, a dictatorship or a monarchy, because that would mean that the Constitution of 1991 hasbeen replaced with a new one.”90An objection to this argument, the court expressed, is that thisdoctrine could have the effect of making the constitutional regime permanent, and causing aconstitutional rupture, a break in legal continuity, if the Colombian society determines that thesubstitution of the Constitution of 1991 is necessary.91 This led the Colombian ConstitutionalCourt to briefly consider, in obiter, the question that the Venezuelan Supreme Court of Justiceconfronted a few years earlier and that has haunted constitutional theorists for decades: whatis the role of “the people,” as the bearer of constituent power, after a constitution has beenadopted? 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 ofconstitutional supremacy.

When a constitution is reformed, the court argued (agreeing again with Schmitt), even if thechanges are adopted through a referendum, it is not the constituent subject who acts.92 Whattakes place in those instances is an exercise of constituted power, authorized and limited bythe constitutional text. But, what if the entire citizenry, or a great majority of them, supportsthe adoption of a new and different constitution? If the constitution does not provide anymeans for the exercise of constituent power, one arrives to the following dilemma: eitherconstituent power is asphyxiated by the limits to the power of constitutional reform, or aconstitutional rupture is necessary in order to allow for an exercise of constituent power totake 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 theinstitution of the Constituent Assembly convened by the legislature (Article 376), which canbe used as a means for the exercise of constituent power. It is true, expressed the court, that



any attempt to channel constituent power is always imperfect, because constituent power, byits 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 1991sought to facilitate, rather than to negate, the expression of constituent power without causingunnecessary ruptures.

After establishing the doctrine of “constitutional substitution” and asserting its jurisdic-tion to examine whether the amendment power had been exercised ultra vires (whether itscompetencies had been exceeded), the court did not find that the proposed reforms involvedthe creation of a new constitution. Even while some aspects of the referendum were declaredinvalid,95 the Constitutional Court concluded that the proposed changes were under thesphere of authority of the power of constitutional reform, and thus “constitutional.” Never-theless, the Colombian Constitutional Court used the theory of constituent power to assert itsjurisdiction to limit government power, to announce its faculty (and obligation) of preventingany attempt by public officials of engaging in a profound modification of the constitutionalregime. A theory that was used by the Venezuelan Supreme Court of Justice to sanction adeparture from established law and to justify the exercise of an absolute power was usedhere to constrain public power. Should there be a space in contemporary constitutionalismfor a theory that can produce such dissimilar consequences? The next and final section ofthis 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 con-stituent power consistent. Even though constituent power performed very different functionsin each decision, both courts seemed to accept the proposition (also defended by Sieyesand Schmitt) that constituent power cannot be limited by any form of positive law. The factthat in the Colombian case constituent power was used to limit political power, while in theVenezuelan case it was used to justify the exercise of an unlimited political power, simplyserves to confirm this: in the former case the court determined that the actions of governmentdid not amount to an exercise of constituent power, in the latter case that the convocation ofa Constituent Assembly activated by a referendum did. The question that I wish to addressin 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, whatthese decisions show is that the theory of constituent power comes accompanied by a tensionthat gives way to two major dangers: (1) the possibility of limiting the power of governmentto 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 people’s 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 bycontemporary constitutional theory and practice. Constituent power, I think, should be un-derstood as the “missing link” in the debate about the relationship between constitutionalismand democracy.96 The constitutionalism-democracy debate, which investigates the apparentconflict between these two ideals is, in the last instance, a debate about the ways in whichconstitutionalism appears to negate a basic democratic principle: the sovereignty of the peo-ple, understood as including the faculty of making and re-making constitutions. It is true thatconstitutionalism can be made consistent with the idea that the authority of a constitution isderived from the sovereign people, and from that idea one can conclude that constitutionallaw is higher law and cannot be contradicted by ordinary laws.97 The problem, however,



is that after a constitution is in place, constitutionalism’s main function (that of limitingpolitical power), runs counter to the idea of creating opportunities for the sovereign peo-ple to make episodical appearances and engage in important constitutional transformations.In other words, as a matter of actual political practice, the people’s ultimate political poweris also seen as an object of constitutionalism’s limiting role.98 What constituent power doesis point to some instances in which a departure from constitutionalism is warranted, episodesin which the citizenry exercises its democratic right to (re)create their constitutional regime.

In the context of constitutional reform, the traditional constitutionalist view is reflectedin the amendment rules of most modern constitutions. These procedures not only seek tomake change difficult and unlikely, but routinely place constitutional reform exclusively inthe hands of government. That is to say, most amendment rules (even those that require thecelebration of a government initiated referendum before the proposed changes come intoeffect) fail to provide ordinary citizens with the means to initiate, deliberate, and decide onimportant constitutional transformations. Or, put differently, they do not provide the peoplewith the means of exercising their constituent power. But what could it mean for the peopleto exercise constituent power? The Supreme Court of Justice of Venezuela concluded thatadopting a constitution through a Constituent Assembly not only amounted to an exercise ofconstituent 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 constituentpower, always retains the faculty of replacing the constitution with a new one, and that theConstitution of 1991 provided a means of doing that: the Constituent Assembly. What werethese judges thinking? It is clear that a Constituent Assembly, just as an ordinary legislature,is a “representative”99 body, composed of delegates elected by the people, but it is not thepeople. In fact, the very idea of the people “giving itself a constitution through the exerciseof constituent power” has been challenged by many constitutional and political theorists. It isargued, for example, that this position is based “on an unacceptable political mythology,” andthat 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” bysomeone else.100

I think that what the Venezuelan and Colombian judges had in mind when they treatedthe Constituent Assembly as equivalent to an act of constituent power by the people wassomething like this. In contemporary societies all citizens cannot come together and givethemselves a new constitution. Not only is some form of representation needed, but thevery rules and procedures that allow a constitution-making act to take place, as suggestedabove, have to be established by political elites. In that respect, there is no such thing asan 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 ofthe people giving themselves a constitution. And because of that, they might also be morelegitimate. 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 becloser (although perhaps not as close as possible)101 to an exercise of the people’s constituentpower than an ordinary legislature engaging in profound constitutional changes. After all,legislators are elected for the purpose of making ordinary laws, for solving people’s day today problems, not to engage in the transformation of the juridical order under which theywere elected. When a Constituent Assembly is convened in a moment where a strong popularmajority appears to be in favour of major constitutional change, something distinct to anexercise of ordinary political power takes place. That is what makes such an act an exercise ofconstituent power, and the fact that citizens are allowed to participate directly in the process



(through the initial referendum for convening the assembly, the election of delegates, andthe referendum for the ratification of the new constitution), makes it “akin” to an exercise of“the people’s constituent power.”

What the theory of constituent power does, as showed by these two decisions, is allowus to think about certain moments, certain episodes of heightened popular support forconstitutional change that warrant and require the use of extraordinary and participatoryprocedures. In other words, that there are times in the life of a constitutional regime inwhich democracy should trump constitutionalism. That is, episodes in which citizens actoutside the ordinary institutions of government and put the most fundamental principles oftheir constitution into question and, if necessary, participate in the creation of an entirelynew juridical order. Now, for the Colombian Constitutional Court, a corollary of this ideais that these fundamental decisions102 cannot be taken by ordinary political institutions;according to this court’s reasoning, the theory of constituent power should be understoodas placing limits on the types of changes susceptible of being adopted through the ordinaryamendment 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 endup petrifying the existing constitutional arrangement. There is, of course, something to thisfear: constitutions sometimes need to be changed in important ways and it is certainly a goodidea to have a procedure in place that allows those changes to be adopted when needed. Butthis means that this fear is only justified in situations in which certain changes are put outof the scope of the ordinary power of constitutional reform and, at the same time, there areno means whatsoever for citizens to exercise their constituent power in order to make thosechanges. Because most constitutional regimes suffer from the latter problem, this danger isa real and actual one.

The United States’ constitutional regime is perhaps the perfect example.104 Americanconstitutional discourse is nearly unanimous in maintaining that the constitution is legitimatebecause it was adopted by “the people” and that in the exercise of their sovereignty, thepeople can alter it in important ways or replace it altogether. In fact, it would be hard tofind a constitutional lawyer in the U.S. that would disagree with the idea that the peopleshould be able to have any constitution they want. After all, they are “We, the People,” thesovereign 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 difficultto amend. Moreover, the amendment rule of that constitution (Article V) places the power ofconstitutional reform in the exclusive hands of government, and it is not even clear whetheran 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 madesubject to a binding national referendum.106 Under a constitutional arrangement like this, inwhich amending the constitution is not only difficult and unlikely, but in which the power ofconstitutional reform seems to lie in the exclusive hands of government, the prettification ofthe constitutional text is the normal state of things.107 In that sense, adopting the doctrineof unconstitutional constitutional amendments in such a regime, as has been proposed bysome U.S. constitutional theorists, is not a particularly attractive idea, at least not from ademocratic 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 democracyconstituent power rests with the people and not with ordinary political institutions, butthat assumes that that power can be exercised in actual political practice. Since the rea-son for placing limits on the government’s power to amend the constitution is that, in the



context of important constitutional transformations, ordinary governmental institutions lacka sufficiently democratic pedigree (they cannot legitimately claim to be engaged in an ex-ercise of constituent power by “the people”), such a conception promotes that fundamentalconstitutional changes are adopted through highly participatory methods. In this respect,and this brings me to the second of the possible dangers mentioned above, the connectionsbetween constituent power and democracy should not be underestimated. Contemporary con-ceptions of constituent power, in addition to recognizing the constituent subject’s unlimitedfaculty to create and re-create constitutions, emphasize its fundamental collective charac-ter.109 Constituent power is thus seen as the power to create a constitution together, withthe participation of those subject to it.110 For an act of constitution-making to be consideredan 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 theVenezuelan case (and in Colombia in 1990), for example, the determination that the ordinaryamendment process could be superseded was the result of the fact that a more democraticand participatory process was about to take place, as opposed to a naked exercise of power. Inthat sense, it is very telling that in both Colombia and Venezuela, one of the main mandatesof the Constituent Assembly was the creation of a new constitution that would strengthenparticipatory democracy.111

Understanding constituent power as the power of creating a constitution together and de-fending the idea that a constitutional regime should have in place an opening for constituentpower to manifest when important constitutional transformations are needed, has thus im-portant democratic implications. It is a conception that requires that episodes of profoundconstitutional change should only take place through highly participatory procedures, andmandates constitutional regimes that give citizens the means to activate those procedures.Even if such a conception falls short of exhausting constituent power’s democratic potential,it presents a clear improvement (from the point of view of democracy) over the processes ofconstitutional reform that characterize most constitutional states. In that respect, a democraticconstitutional theory, one in which citizens are seen as the (potential) authors of a new orimportantly transformed constitutional regime, would be based on the idea that a constitutionshould provide an outlet for constituent power to manifest from time to time. But it wouldnot stop there. Quite the contrary, an important part of its energies would be devoted todeveloping mechanisms that would make the exercise of constituent power possible, andarguments in favor of the adoption of those mechanisms. Such a theory would involve aradical transformation of the ideal of constitutionalism, and an important re-examination ofthe 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 ConstitutionalismPanel” (2010 Law and Society Annual Meeting), where a previous draft of this paper was presented. I amalso grateful to the participants at the Law Faculty Seminar at Victoria University of Wellington, who alsoprovided helpful comments and critiques. The usual disclaimer applies.

1. See Giovanni Sartori, “Constitutionalism: A Preliminary Discussion,” American Political ScienceReview 56, no. 4 (1962): 862.

2. They are, of course, not the only exception. One of the most recent examples is the judgment ofthe German Federal Constitutional Court of June 30, 2009 (Lisbon Case, BverfG, 2 BvE 2/08), where theconcept of constituent power played an important part in the decision.

3. Carl Schmitt, Constitutional Theory (Durham: Duke University Press, 2008), 126.



4. See Sentencia 050–2004-AI/TC. The doctrine of unconstitutional constitutional amendments hasalso been adopted by other Latin American courts in decisions which have also relied on the theory ofconstituent power. See for example Res. 2004–13353 of the Supreme Court of Justice of Costa Rica(Constitutional Chamber).

5. Carl Schmitt, Teorıa de la Constitucion (Madrid: Editorial Revista de Derecho Privado, 1934).6. Renato Cristi, “The Metaphysics of Constituent Power: Schmitt and the Genesis of Chile’s 1980

Constitution,” Cardozo Law Review 21 (2000): 1748. A similar course of action was followed in Brazil in1964, 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 ofCalifornia Press, 1975), 206.

7. Interestingly, one of the first acts of the Revolutionary Government in Cuba was the issuing ofa decree (January 3, 1959) in order to provide the Council of Ministers with the faculty to engage in theexercise of constituent power (see Articles 285 and 286). Leonel A de la Cuesta, “Cuatro Decadas deHistoria Constitucional Cubana: 1959–1999,” Cuban Studies, ed. Lisandro Perez (Pittsburgh: University ofPittsburgh Press, 2001), 100. In the exercise of this power, the constitutional protection of private propertywas altered in an important way (facilitating the expropriations that followed the 1959 revolution) throughan 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, attemptsto perpetuate the exercise of constituent power, giving the National Assembly of Popular Power the facultyof exercising both legislative and constituent power (Article 70). See also Jose Bell Lara, Delia Luisa LopezGarcıa and Tania Caram Leon, eds., Documentos de la Revolucion Cubana (La Habana: Editorial CienciasSociales, 2006). Although the idea of a legislative assembly possessing both legislative and constituentpower is alien to the tradition of written and supreme constitutions, it is in fact an essential componentof the doctrine of parliamentary sovereignty as it operates in countries as the United Kingdom and NewZealand. See A V Dicey, Introduction to the Study of the Law and the Constitution (Macmillan, London,1959), 36–37.

8. The recent military coup in Honduras was triggered by President Manuel Zelaya’s proposal to calla non-binding referendum (scheduled to take place the day of the coup) in which the electorate would beasked if they wished to convene a Constituent Assembly. The Constitution of Honduras does not providefor the convocation of a constituent assembly in its amendment rule (see Arts. 373 and 374). Although hispolitical opponents insisted that Zelaya’s real intention was to amend the constitution in order to eliminatethe prohibition of presidential re-election (an objective repeatedly denied by President Zelaya, who had inhis favour the argument that in any case, the new constitution would have been adopted after his term asPresident had ended and only if a binding referendum was called by Congress) the official discourse aboutthe convocation of the assembly was characterized (as in Venezuela, Bolivia, Ecuador, and Colombia duringtheir constitution-making processes) by frequent appeals to the notion of the people’s constituent power tofound a new constitutional regime in order to democratize social and political life. See Juan Carlos GomezLeyton, “Honduras: El Peligroso Poder Constituyente” [Honduras: The Dangerous Constituent Power],El Cların 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 Schmitt’s Verfas-sungslehere in 2007. See Schmitt, Constitutional Theory.

10. See for example the essays in Martin Laughlin & Neil Walker eds., The Paradox of Constitution-alism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2008).

11. Emmanuel Joseph Sieyes, What is the Third Estate? (New York: Praeger, 1963).12. Sieyes’ conception of the “nation” seemed to be free from ethnicist qualities. Sieyes defined

the nation as “a body of associates living under common laws and represented by the same legislativeassembly, etc.” Sieyes, What is the Third Estate, 58. See also See William E. Scheuerman, “Revolutionsand Constitutions,” Law as Politics: Carl Schmitt’s 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)? Todeal with this question, French jurists (as well as their Latin American counterparts) recur to the distinctionbetween “constituent power proper” (pouvoir constituant institue or poder constituyente originario) and“constituted constituent power” (pouvoir constituant derive or poder constituyente derivado). The formerrefers to the sovereign power of the people to create a new constitutional regime, and the latter to the powerto reform the constitution according to the procedures created by the constituent subject. This distinctionis 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 Schmitthimself as a conceptual confusion. For a discussion, see Pedro de Vega, La Reforma Constitucional y laProblematica del Poder Constituyente (Madrid: Tecnos, 1985). For defense of the distinction, see LuisSanchez Agesta, Principios de Teorıa Polıtica (Madrid: Editora Nacional, 1983); Rodrigo Borja, DerechoPolıtico y Constitucional (Mexico: Fondo de Cultura Economica, 1991); Carlos Fayt, Derecho Polıtico(Buenos Aires: Ediciones Ghersi, 1982); German Jose Bidart Campos, Derecho Polıtico (Buenos Aires:Aguilar, 1967).

15. Schmitt, Constitutional Theory. While defending Sieyes’ conception in several ways, Schmittcombated this author’s strategy of combining the democratic theory of the people’s constituent powerwith the “anti-democratic doctrine of representation,” which did not involve the direct expression of thepeople’s will. Schmitt, Constitutional Theory, 128. Schmitt’s idea of what could count as an expression ofthe people’s constituent power, however, was highly problematic itself and did not necessarily involve thelevel of deliberation and discussion necessary in most contemporary conceptions of democracy. For him:“The natural form of the direct expression of a people’s will if the assembled multitude’s declaration oftheir consent or their disapproval, the acclamation.” Ibid., 131. Moreover, he thought that the people couldconsent to a constitution tacitly, for example, by participating in regular elections, and that such politicalpractices could be sufficient to conclude that the constitution was based on the people’s 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 constituentpower. 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 monarchicalor the democratic principle.” Schmitt, Constitutional Theory, 126–128, 255–279.

20. Ibid. This does not mean that Schmitt welcomed frequent exercises of constituent power. LikeSieyes, he considered stability and order of fundamental importance. And, in fact, part of his critique ofliberalism was based on its alleged failure to guarantee stability by failing to make the “crucial” distinc-tion between friend and enemy. See Carl Schmitt, The Concept of the Political (Chicago: University ofChicago Press, 1996). For an illuminating discussion, see David Dyzenhaus, Legality and Legitimacy: CarlSchmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press, 2003), 97. OnSieyes’ 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 RamırezCleves, Lımites a la Reforma Constitucional en Colombia: El Concepto de Constitucion como Fundamentode la Restriccion (Bogota: Universidad Externado de Colombia, 2005), 454–455. For Ramırez Cleves, whena constituent assembly is given the power to transform the constitution in any way (a general delegation ofpowers), 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 canbe said to be exercising constituent power and not the mere power of constitutional reform regulated in theconstitutional text.

23. Schmitt, Constitutional Theory, 110.24. Ibid., 145–146. 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 Colombianand Venezuelan courts seem to suggest). As suggested earlier, for Schmitt the “natural form” in whicha people “decides” and expresses its will is through an act of acclamation, an assembled multitude thatconsents or disapproves by saying “yes” or “no.” Schmitt, Constitutional Theory, 131. Ibid., 138–139.

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 astate form in itself but a series of limitations and controls that presuppose the state. Ibid., 235. This is why hefocused on the democratic nature of the decision, and not on its liberal component. See Dyzenhaus, Legalityand Legitimacy: 79. Moreover, Schmitt also suggested that the Weimar constitution did not contain all thefundamental political decisions that needed to be made in 1919, particularly the decision between “bourgeois



or socialist order, [which] was seemingly settled only through a compromise.” Schmitt, ConstitutionalTheory, 83.

27. Ibid., 77–78.28. 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, Schmittianthought finds an unlikely ally in John Rawls. John Rawls, Political Liberalism (New York: ColumbiaUniversity Press, 2005), 238–239. For a discussion, see Joel I. Colon-Rıos, “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 powerof constitutional reform (as those contained in the Italian constitution, whose Article 139 establish that “Therepublican form of the state may not be changed by way of constitutional amendment”) actually confirmedthe 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 sufficeto make England into a Soviet state. . .Only the direct, conscious will of the entire English people, not someparliamentary majority, would be able to institute such fundamental changes.” Ibid., 79–80.

33. According to Schmitt, when the fundamental political decisions are altered, one must speak aboutthe abolition of the constitution rather than of constitutional reform. To the abolition of the constitutionthat comes accompanied by a change in the subject of constituent power (e.g. a revolution that takesconstituent power away from the king and gives it to the people), Schmitt called “complete annihilation ofthe 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 JohnRawls, who following Locke, argues that constituent power only appears after a government dissolves itselfas a result of violating the people’s trust. John Rawls, Political Liberalism, 231.

36. Ibid., 125–126.37. 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 throughan ordinary amendment formula. As Ulrich Preuss has noted, in the traditional liberal conception, “theconstitution is the final act of the revolution. . .by making a constitution, the revolutionary forces are diggingtheir 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 theperiod that followed the adoption of the Constitution of 1961 was characterized by episodes of politicalrepression, particularly against the left. See Edgardo Lander, “Izquierda y Populismo: Alternativas alNeoliberalismo in Venezuela” in Cesar Rodrıguez Garavito, Patrick S. Barret and Daniel Chavez eds.,La Nueva Izquierda en America Latina: Sus Orıgenes y Trayectoria Futura (Bogota: Grupo EditorialNorma, 2005), 99. Some authors maintain that the Constitution of 1961 was an adequate constitutionthat was at least partly responsible for the stability of Venezuelan democracy, and therefore, it was notin need of replacement. Michael Coppedge, “Venezuela: Popular Sovereignty versus Liberal Democracy,”Constructing Democratic Governance, 2d ed., eds. Jorge I. Domınguez and Michael Shifter (Baltimore:The Johns Hopkins University Press, 2001), 177 and Miriam Kornblith, “The Politics of Constitution-Making: Constitutions and Democracy in Venezuela,” Journal of Latin American Studies 23, no.1 (1991),87–88.

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 apart of the political discourse of some groups. For instance, after Colombians adopted their constitution in1991 through this extraordinary method, groups such as Frente Patriotico and the Movimiento BolivarianoRevolucionario (the latter lead by Hugo Chavez) began pushing for this option. Ricardo Combellas, “ElProceso Constituyente y la Constitucion 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 theelectorate in a government initiated referendum.

45. Coppedge, Venezuela: Popular Sovereignty versus Liberal Democracy, 178. Moreover, it isinteresting to note that in his seminal paper on constitutional amendments, Donald Lutz identified theVenezuelan Constitution of 1961 as the third most difficult to amend constitution in the world (onlysurpassed 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 ofConstitutional Amendment, ed. Sanford Levinson (Princeton University Press, 1995), 260.

46. See referendum questions, quoted in Roberto Viciano Pastor and Ruben Martınez Dalmau,Cambio Polıtico y Proceso Constituyente en Venezuela: 1998–2000 (Vadell Hermanos, 2001), 130.

47. Opinion No. 17 of the Supreme Court of Justice of Venezuela on the Referendum for Conveninga Constituent Assembly,” 9. The original in Spanish reads: “La pregunta que se formula es si procedeconvocar a una revision de la Constitucion o si procede la convocatoria a un Poder Constituyente, a unpoder soberano.” The sentence is awkwardly construed in Spanish, which makes its translation particularlydifficult.

48. Article 4 read as follows: “Sovereignty rests with the people, who exercises it by voting, throughthe organs of public power” [“La soberanıa reside en el pueblo, quien la ejerce, mediante el sufragio, porlos organos del poder publico”].

49. Article 181 of the said law gave the President of the Republic, the Congress, and citizens throughthe collection of signatures (equivalent to 10% of the electorate) the power to call a referendum to consultelectors on matters of national importance.

50. For a defense of this view, see Allan R. Brewer-Carıas, Golpe de Estado y Proceso Constituyenteen Venezuela (UNAM, Mexico, 2002). For a general discussion, see Pastor and Martınez, Cambio Polıticoy Proceso Constituyente en Venezuela, 127.

51. Article 250: “Esta Constitucion no perdera su vigencia si dejare de observarse por acto de fuerzao fuere derogada por cualquier otro medio distinto del que ella misma dispone. En tal eventualidad, todociudadano, investido o no de autoridad, tendra el deber de colaborar en el restablecimiento de su efectivavigencia”.

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 delegatedto government (if they had the means for doing so), or that the people can exercise directly only thosepowers that have not been expressly delegated to the government. It is worth noting that, as a matter offact, once convened, the Constituent Assembly engaged in various ways in the exercise of the ordinarypowers of government (e.g. removing judges from office and interfering with the work of the NationalCongress). See Combellas, “El Proceso Constituyente y la Constitucion de 1999,” 9. See also Laura Lousa,“La Independencia del Poder Judicial a Partir de la Constitucion de 1999,” Politeia 30, no. 38 (2007).

55. Ibid., 12. This reasoning is strikingly similar to Akhil Amar’s theory of constitutional change.Although Amar does not make reference to the idea of constituent power, he maintains that Article V isnot the exclusive mode of altering the constitution, but merely establishes the procedures government (asopposed to the people) must follow if it wishes to introduce changes into the constitutional text. See AkhilReed Amar, “Popular Sovereignty and Constitutional Amendment,” Responding to Imperfection.

56. Ibid., 11. Unlike in the decision of the Colombian Constitutional Court that will be discussedbelow, the Supreme Court of Venezuela does not make any direct reference to the work of Carl Schmitt. Inmy view, however, there is little doubt that the court is relying on Schmitt here. Compare these quotationswith the following passages from Schmitt’s Constitutional Theory: “The theory of the people’s [constituentpower] 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 itspolitical existence. This political will remains alongside and above the constitution.” Schmitt, ConstitutionalTheory, 127, 125–126.

57. The court was here quoting a passage from de Vega, La Reforma Constitucional, 231. Pedrode Vega’s book contains one of the most influential formulations of constituent power by a contemporarySpanish 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 ofconstituent power in its unlimited form (poder constituyente originario), but a means for the exercise of



constituent power in its derivative form (poder constituyente derivado)). This means that the powers of theConstituent Assembly were limited by the Constitution of 1961, and that the assembly could not assume thecompetencies delegated by that constitution to the constituted powers. See, Pastor and Martınez, CambioPolıtico y Proceso Constituyente en Venezuela, 132–137. Nevertheless, once in place, the assembly ratifiedits poder constituyente originario, and intervened in important ways in the exercise of ordinary legislativepowers, and even engaged in destitutions and appointments of ordinary government officials (includingjudges). In the end, the Supreme Court of Justice had no choice but to accept the sovereign nature of theassembly. For a discussion, see Ricardo Combellas, “El Proceso Constituyente y la Constitucion 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, maynot modify the period in office of those elected this year, and those areas that affect the obligations ofthe Colombian state acquired in virtue of international treaties and the republican system of government”[“La Asamblea no podra estudiar asuntos diferentes a los mencionados en el temario aprobado por elpueblo, y particularmente no podra modificar el perıodo de los elegidos este ano, las materias que afectenlos compromisos adquiridos por el Estado colombiano en virtud de tratados internacionales y el sistemarepublicano de gobierno”].

62. Sentencia 138, November 9th, 1990. (“Being the Nation the bearer of the original constituentpower (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 theconstituted powers” [“Siendo la nacion el constituyente primario y teniendo ella un caracter soberano, delcual emanan los demas poderes, no puede tener otros lımites que los que el mismo se imponga, ni lospoderes constituidos pueden reviser sus actos”]). The Court recognized, however, that because the questionposed to citizens in an election that preceded the convocation of the Constituent Assembly maintained thatthe purpose of the assembly would be to “strengthen participatory democracy” (fortalecer la democraciaparticipativa), it could not legitimately depart from that objective. See Ramırez Cleves, Lımites de laReforma Constitucional en Colombia, 440.

63. Renata Segura and Ana Marıa Bejarano, “!Ni una Asamblea Mas Sin Nosotros! Exclusion,Inclusion, and the Politics of Constitution-Making in the Andes,” Constellations 11, no. 11 (2004), 220.

64. Ramırez Cleves, Lımites de la Reforma Constitucional en Colombia, 437.65. Constitucion Polıtica de Colombia de 1886, Article 209.66. See Segura & Bejarano, “!Ni una Asamblea Mas 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 determinateresult 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 Munoz, “LosEstados de Excepcion Constitucional en Colombia,” Ius et Praxis 8, no.1 (2002). For an excellent discussionabout the relationship between the exception and constituent power, see Andreas Kalyvas, Democracy andthe Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge: CambridgeUniversity Press, 2008), 119.

69. Ramırez Cleves, Lımites de la Reforma Constitucional en Colombia, 442. In fact, the ColombianConstitution of 1991 has become a fundamental tool for the left, giving place to the curious situationthat the left tends to defend the established constitutional regime from the opposition, and the right tochallenge it from government. See Cesar Rodrıguez Garavito, “La Nueva Izquierda Colombiana: Orıgenes,Caracterısticas y Perspectivas” in Garavito, Barret and Chavez eds., La Nueva Izquierda en America 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 convocacion de la Asamblea Constituyente, solo podran ser declarados inconstitucionalescuando se violen los requisitos establecidos en este tıtulo [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 ofKerala, 1973 (SUP) SCR 0001 SC and Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

78. Sentencia 551/03, para. 2879. 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 German 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 Ideologıa de la Constitucion 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. 31–32.85. 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 GermanBasic Law contains an eternity clause in Article 79. The court expressed: “The principle of democracy is notamenable to weighing with other legal interests; it is inviolable. The constituent power of the Germans whichgave 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 Lawshall be inadmissible (Article 79.3 of the Basic Law). The so-called eternity guarantee takes the disposal ofthe 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 inArticle 79.3 of the Basic Law is at the same time an infringement of the constituent power of the people. Inthis respect, the constituent power has not granted the representatives and bodies of the people a mandateto dispose of the identity of the constitution. No constitutional body has been accorded the competenceto amend the constitutional principles which are essential pursuant to Article 79.3 of the Basic Law. TheFederal Constitutional Court watches over this. With what is known as the eternity guarantee, the BasicLaw reacts on the one hand to the historical experience of the free substance of a democratic fundamentalorder being slowly or abruptly undermined.” However, consistent with one of its first decisions (see TheSouthwest Case, 1 BverfGE 14 (1951), Comparative Constitutional Law, eds. Walter F. Murphy and JosephTanenhaus (New York: St. Martin’s 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 theconstituent power, i.e. for the case that the German people, in free self-determination, but in a continuityof legality to the Basic Law’s system of rule, gives itself a new constitution. Within the order of theBasic 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 thesubstance of elementary fundamental rights that is indispensable to the respect of human dignity are, intheir fundamental quality, not amenable to any amendment.” Lisbon Case, paras. 216–218 (internal notesomitted).

87. This attempt to ground the doctrine of constitutional substitution in the literal words of theConstitution of 1991 (instead of grounding it solely on the theory of constituent power), has been criticizedby some academics. See for example, Gonzalo Ramırez Cleves, “Reformas a la Constitucion de 1991 ysu 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 thatcontemplate 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 Swissconstitution).

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.



95. The court did struck down several aspects of the proposed referendum, including the requirementof answering “yes or “no” to a set of disparate issues in one of the referendum questions (as opposed to beable to vote separately on each issue), on the basis that it violated the “liberty of the elector,” the introductorynotes at the beginning of each question, on the basis that they tended to promote “yes” vote, and invalidatedone of the questions since it was “alien” to the referendum’s main topic. Since its 2003 decision, the court hashad the opportunity to develop the doctrine of “constitutional substitution” further. These decisions includeSentencia 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 discusion of these cases,see Gonzalo A. Ramırez Cleves, “El Control Material de las Reformas Constitucionales Mediante ActoLegislativo a Partir de la Jurisprudencia Establecida en la Sentencia C-551 de 2003,” Revista Derecho delEstado, no. 18 (2006). One of the most important of these decisions took place in 2005, in a case that dealtwith a reform that sought to allow the President to run for a second term. In that case, the court developed asophisticated “juridical methodology” (whose details are out of the scope of this paper) to be used by a judgethat 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 thatmodifying the Constitution of 1991 to allow for Presidential re-election involved a violation of the limits ofthe power of constitutional reform. It expressed that the constitution’s essential elements, including the Socialand Democratic State, as well as the republican form of government, the unitary and decentralized state, andthe participatory and pluralist character of a democratic regime, were preserved intact. Moreover, accordingto the court, allowing for Presidential re-election did not contravene the republican principle of alternancein power (although the court reached a different conclusion in 2010 about a proposed constitutional reformto allow the President to run for a third consecutive term, Sentencia C-141/10, briefly discussed in note102 of this paper). However, the Legislative Act that brought these constitutional changes into existencecontained a provision that granted the State Council (Consejo de Estado) the power to adopt the laws andregulations needed to implement the amendments (in the event that Congress failed to adopt them or ifthey were declared unconstitutional). The court considered this provision to confer the State Council anextraordinary legislative power, one which would not be subject to political or judicial control. That is, thatit would create a non-elected extraordinary (temporary) legislator that would adopt norms binding to allcitizens. This, according to the court, was inconsistent with the principle of constitutional supremacy andthe separation of powers, essential components of the identity of the Constitution of 1991. Accordingly, itssuppression would have the effect of substituting the Constitution with a new one, and therefore, it was anact 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, “Precom-mitment and the Paradox of Democracy,” Constitutionalism and Democracy, eds. Jon Elster and R. Slagstad(Cambridge: Cambridge University Press, 1988); Jurgen Habermas, “Constitutional Democracy: A Para-doxical 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 Democ-racy (Princeton, NJ: Princeton University Press, 1999); Jeremy Waldron, Law and Disagreement (Oxford:Clarendon Press, 1999); Cass Sunstein, “Constitutions and Democracies: An Epilogue,” Constitutional-ism and Democracy; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution(Cambridge, MA: Harvard, 1996); Bruce Ackerman, “Higher Lawmaking” Responding to ImperfectionResponding to Imperfection; Akhil Reed Amar, “The Consent of the Governed: Constitutional AmendmentOutside Article V,” Columbia L. Rev. 94, no.2 (1994): 457; Sanford Levinson, Our Undemocratic Consti-tution: 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 Pressof Harvard University Press, 1991).

98. As Sartori has put it, constitutionalism requires a constitution that not only limits governmentalpower, 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 cannoteffectively limit the will of the power holders if they can outflank constitutional impediments by makingdirect 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 proposalsneed 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 Schmitt’s theory ofconstituent power, see Kalyvas, The Politics of the Extraordinary, 155. In fact, it is interesting to notethat (in a manner consistent with the Sieyesean conception of the “represented” constituent power), theColombian 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, 437–438 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 assemblyis composed of elected delegates that do not come from the traditional political parties but represent differentsocial 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 constituentpower will vary from country to country, although they will usually be connected with the structure ofgovernment and fundamental human rights. In fact, the Venezuelan and the Colombian courts have recentlydisagreed about the kind of changes that are privative of the constituent subject, that is, changes that are sofundamental that they are outside the scope of the ordinary amendment power. Thus, in 2009, the Venezuelanhighest court confronted a similar set of facts than those faced by its Colombian counterpart in 2005: aproposed amendment that would have the effect of allowing the President (as well as all elected officials) torun for re-election. Constitutional Chamber of the Supreme Tribunal of Justice Decision No. 53, February3, 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 of1999 already did), but to run consecutively for office as many times they wished. Like in Colombia fouryears earlier, those who opposed the amendment argued that the ordinary process of constitutional reformcould not be used to alter the fundamental principles embedded in the constitutional text. The Venezuelancourt (asserting its jurisdiction to declare a constitutional amendment “unconstitutional”) maintained thatallowing continuous re-election did not alter in any way the Constitution’s fundamental structure and that, infact, a referendum asking the people whether they wanted to amend the constitutional text in order abolishthe limits on re-election, was an example of participatory democracy (one of the fundamental principles inwhich the Constitution rested) in action. Decision No. 53, ibid., Section V, no. 2–3. In Sentencia C-141 of2010, the Colombian Constitutional Court disagreed: it declared unconstitutional an amendment that soughtto allow the President to run for a third consecutive term. After pointing out a series of irregularities inthe amendment process, the court expressed that the proposed change amounted to the substitution of theConstitution of 1991, since it was in conflict with its fundamental structure, including the separation ofpowers, the system of checks and balances, the rule about alternation in power, the right to equality, and thegeneral and abstract character of the laws.

103. The question of whether courts should be the ones to enforce this limit to constitutional reformis a separate question.

104. On this point, see Amar, “The Consent of the Governed,” and Levinson, Our UndemocraticConstitution.

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 in2020, 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 unconstitutionalconstitutional amendments include: Walter Murphy, Constitutional Democracy: Creating and Maintaininga Just Political Order (Baltimore: The Johns Hopkins University Press, 2007); John Rawls, PoliticalLiberalism; 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 ofSchmitt’s theory of the state of emergency or that identify it with the power that individuals in the stateof nature exercise when they decide to enter civil society. Dyzenhaus, “The Politics of the Questionof Constituent Power, in The Paradox of Constitutionalism; Murray Forsyth, “Thomas Hobbes and theConstituent Power of the People,” Political Studies 29, no.4 (1981): 191. These approaches, in my view,tend to neglect constituent power’s 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 “theact of founding together, founding in concert, creating jointly, or co-establishing. . .The correct use of theterm ‘to constitute’ prescribes that if one wants to constitute a new constitution, for example, one oughtto coinstitute it, to institute it jointly with others.” Andreas Kalyvas, “The Basic Norm and Democracy in



Hans Kelsen’s Legal and Political Theory,” Philosophy and Social Criticism 32, no.5 (2006): 573, 588–589.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 actof constitution-giving, exercises its right to self-rule.” Preuss, “Constitutional Powermaking for the NewPolity”: 647.

111. In Colombia, a similar language was contained in the question posed to the citizens before theConstituent Assembly was convened (see note 62 of this paper); in Venezuela, this language was used inthe Presidential Decree that provided for the referendum asking citizens whether they wanted to convene aConstituent 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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