‘Revolutionary Reform’ and the Seduction of Constitutionalism
JOSHUA BRAVER’S INTRIGUING and fascinating paper ‘Revolutionary Reform in Venezuela: Electoral Rules and Historical Narratives in the Creation of the 1999 Constitution’ provides a thorough analysis of the recent constitutional reality in Venezuela. It shows how, had the Venezuelan Supreme Court and Congress directly participated in the definition of the electoral rules for the creation of the 1999 Constitution, a ‘revolutionary reform’ would have been possible. By recalling the non-foundational feature of constitutional democracy, this paper comments on Braver’s article to argue that, whereas constitutionalism has an inherent seduction, it is also limited by the very historically contingent process of social life. As such, the ‘make-beliefs’ constitutionalism holds have to face the reality, and, in this case, a reality of a country historically marked by semi-authoritarian practices. In this complex scenario, the dilemmas and paradoxes of constitutionalism are pushed to their very extremes. This chapter, while agreeing with Braver’s understanding of how Venezuela has lost sight of constitutionalism, sees that any conclusion in this matter must be intertwined with perspectives of economic development. It concludes that Braver’s article, even though seduced by constitutionalism, is an excellent wake-up call for understanding that constitutional democracy is only possible in its very impossibility.
I.A REVOLUTION IN CRISIS: BRAVER’S NARRATIVE OF THE CREATION OF THE 1999 CONSTITUTION IN VENEZUELA
A fascinating debate over the very limits of constitutional democracy in the context of a revolution in crisis—this might properly depict Joshua Braver’s main arguments about Venezuela and its creation of the 1999 Constitution. Hannah Arendt and Bruce Ackerman, through the concepts of ‘revolutionary reform’ and ‘unconventional adaptation’, on the one hand, and Carl Schmitt, as the primary source for what Braver calls ‘radicals’,1 on the other hand, are his main theoretical perspectives to investigate the turbulent transition to a new constitutional moment—if we can call it as such2—in Venezuela. At the core of his argument lies the purpose of introducing a new approach to regime transitions which is neither a ‘radical constitutional revolution’3 nor a simple reform of the past constitutional reality. A ‘revolutionary reform’, as he calls it, structured around the idea of ‘unconstitutional adaptation’, is a better response to these transitional moments. Rather than a total break with the past, Braver argues that, in this case, ‘the constitution-making process violates specific rules, but does not degenerate into a contest of strength or force. It is an extra-legal process justified and constrained by the renewal of principles of the old regime’.4 Moreover, it is a process marked by pluralism and collaboration: ‘Old institutions are unconventionally adapted to frame a collaborative process to create a new constitution’.5 Had the Venezuelan institutions, especially the Supreme Court and Congress, furthered mechanisms for such a ‘revolutionary reform’, they would have better protected Venezuela from already foreseeable tendencies towards semi-authoritarian practices. Braver’s argument is that they failed to do so, particularly with respect to the electoral rules, and this ‘empowered Chávez to pursue true revolution by purging the opposition from all levels of government’.6
Beneath this argument, which Braver stresses by placing side by side Carl Schmitt and Hannah Arendt, lies the central debate over the seat of sovereignty. In a certain way, the question ‘who are the people?’ appears in the midst of a controversy over the role of a ‘people’ in the transition to a new constitution in that country, and particularly how institutions used these ‘people’ to strengthen their own positions of power. Structurally speaking, while introducing his concept of ‘revolutionary reform’ as a possible way out to this revolution in crisis, Braver’s paper revolves around the debate over the seat of sovereignty and how institutions—in the case, the Presidency by Hugo Chávez, the Venezuelan Supreme Court and Congress—behaved in such a moment of constitutional transition. In his view, in the end, the ‘radical constitutional revolution’ Venezuela has undergone has unfortunately placed Carl Schmitt as victorious over Hannah Arendt.7 Instead of a ‘revolutionary reform’, Schmitt’s radical definition of the people prevailed, leading thereby to the premise that they are not only ‘outside the pre-existing political order, but superior as well’.8
Braver’s description of the events in Venezuela is very careful and gives relevant insights about the turbulent constitutional reality of that country. It begins with Chávez’s landslide victory in the presidential elections of December 1998 and his already announced purpose of convening a constituent assembly to write a new constitution. Braver provides a careful discussion of the main episodes of the referendum that followed Chávez’s election, especially by focusing on the turbulent relationship between Chávez’s intents and the Venezuelan Supreme Court. Particularly with respect to the definition of the electoral rules in this referendum, the Supreme Court—and also Congress—could have had a more direct participation, creating thereby mechanisms that could have engendered a ‘new beginning’ without, however, a total rupture with Venezuela’s past constitutional reality. His main thesis is that, had the Supreme Court and Congress been successful in instituting an ex ante method of selection of the members of the constituent assembly, Venezuela could have undergone a ‘constituent power as an act of revolutionary reform’.9
However, reality proved differently. Based on the premise that the sovereignty resides in the people, as stated in Article 4 of the 1961 Constitution, the idea of a total revolution that could nonetheless circumvent the institutional constraints and constitutional thresholds of the past triumphed. As Braver says, in this struggle between Chávez and the Supreme Court, ‘Chávez ultimately prevailed’10 by ‘adopting a first past the post method of aggregating votes for future elections to the constituent assembly’.11 From that point onwards, Chávez had the vast majority of the seats in Congress (93.1 per cent) and could thereby strengthen his authority while presumably acting in the name of the people.
The associations with Carl Schmitt, whose unfortunate victory over Hannah Arendt and also the idea of a ‘revolutionary reform’ seems evident in this case, are straightforward. In fact, as Braver describes it, one of the first things this constituent assembly did was to declare a state of emergency.12 As a condition for building up the new constitutional and political reality, to declare the exception seems to be a no-brainer. It is as if that exception were ‘the condition of possibility of extraordinary sovereign popular intervention, that is, of democratic constitutional founding’.13 As in Schmitt, no one better to embody this ‘democratic constitutional founding’, this ‘sovereign popular intervention’ than Chávez, in a clear identification between the ruler and the ruled. As Braver mentions, ‘the opposition had not only been excluded from the process of drafting the constitution, but also from all other possible positions of power at every level of government’.14 Braver’s words are strong to describe this Constituent Assembly—he says that it ‘stacked with Chávez allies, became a despotic and all-powerful actor that illegitimately usurped the constituted powers’15—and the immediate connection, as did Arendt,16 was with the Jacobin Convention of 1793.17 The people, now personified by this Constituent Assembly, could act in fully unbound ways, in a clear contradiction with the premise that ‘the sovereignty lies with the people, and not with the assembly’.18 The question ‘who are the people?’ remains thus central in Braver’s analysis of those events.19
Braver puts forward a different approach to the reasons why the Supreme Court and Congress could have acted differently in this case in order to constrain Chávez to follow some rules of the game. This is where his thesis of ‘revolutionary reform’ directly applies to that reality. Unlike many who place greater responsibility on the Supreme Court’s approval of the referendum as the reason why Chávez could act in a quite unbound way, Braver contends that ‘the turning point was not the Court’s decision to have a referendum, but it and Congress’ insufficiently firm intervention concerning the construction of the electoral rules for the constituent assembly’.20 In fact, he highlights the very impossibility of the Court to block that referendum as it took place, because of:
(a)Chávez’s great popularity;21
(b)Chávez’s possibility of purging the Court with little political cost;22
(c)the demand for change, especially after years of an ineffective Congress;23
(d)‘constitutional boot-strapping’, that is, ‘once the constituent assembly is convoked, it becomes very difficult for the old regime to control or limit it’;24 and
(e)the lack of ‘theoretical tools to draw upon’.25
Therefore, a possible way to create the conditions for a ‘revolutionary reform’ would be—as Braver says—for the Court and Congress to ‘participate in the creation of the people themselves, especially through the construction of the electoral rule for the constituent assembly’.26 By making pluralism a reality instead of the exclusion of almost any opposition, as it happened after the referendum, the so-called revolution could, on the one hand, significantly break with the past, and, on the other hand, preserve mechanisms that would block semi-authoritarian practices.27 A structural but partial rupture with the past would provide an environment to strengthen democracy and not the other way around, providing the means to include diverse parties.28 This was the role the Court and Congress could have undertaken. They could and should not have opposed the referendum itself, but could and should have participated in this movement by ‘unconventionally adapting’ the old institutions to this new reality. As he says, ‘the Court and Congress best path forward was not to deny the people their rightful power, but to participate in the creation of the people themselves’.29
A ‘revolutionary reform’ through ‘unconventional adaptation’ would thereby preserve some constitutional features of the past. In this regard, Braver argues that albeit Venezuela’s historical troublesome reality, the 1961 Constitution should not be despised as the cornerstone of the previous oligarchical and corrupt regime. Rather, the ‘revolutionary reform’ ‘recognises and renews the promise of the 1961 Constitution, the longest lasting and first truly democratic constitution in Venezuelan history’.30 Especially because the regime transition did not emerge from a dictatorship, but from a ‘truly democratic constitution’, and also because the past ‘whole system was nudging toward revolutionary reform’,31 Braver understands that the conditions for an ‘unconventional adaptation’ were on the table.
Yet, although the ‘possibility for revolutionary reform was real’,32 the need to combat the enemy identified with that past, as did Chávez, made this move practically impossible. Braver brings forward a very interesting connection between this need and the Venezuelan history characterised by oligarchical and corrupt power. By drawing from the past narrative of Simon Bolivar as the hero against imperialism, Chávez’s Bolivarian Revolution had to battle against those groups that systematically promoted actions to exclude the majority of the people. Chávez would be the contemporary Simon Bolivar in this purpose of setting the people free from oppression.33 In a somewhat direct revival of Schmitt’s path towards democracy, that referendum that led to the almost complete annihilation of opposition in the Constituent Assembly would mean, as Braver says, that ‘the oligarchs would not hold back the tide of revolution’34 and the people, through mandate, could ‘create a new social and participatory democracy’.35 In some ways, ruler and ruled are identified—‘the Constituent Assembly would not represent the people, but embody them’36—as well as the opponent is the enemy to be ostracised.
The scenario could have been different, had the Supreme Court and Congress undertaken a more participatory role. As Braver says, a ‘narrative of “revolutionary reform” that both built upon the legitimacy of the past and radically broke with the present to fulfill a set of national ideals’37 could have been possible. Instead of attacking the 1961 Constitution as an oligarchical product, this ‘revolutionary reform’, according to Braver, would see it as the Constitution that ‘opened the pathway for the modernisation and democratisation’38 as well as provided ‘the longest period of Venezuelan stability and prosperity’.39 Although the late 80s and 90s were characterised by the increase of the oligarchical power and elites’ neoliberal reform, Braver’s ‘revolutionary reform’ narrative would lead the people to ‘renew and accelerate the constitutional reforms initiated in the late 90s so that [the 1961 Constitution] could be radically rewritten or amended to fulfill its own promise of representative and even participatory democracy’.40
Braver’s final argument aims to rebuild the past with the historical and new demands of a society in need of change. His narrative, he argues, is not very different from Chávez’s. He also sees in Simon Bolivar a hero to venerate. He also condemns most of the Venezuelan history of exclusion and oppression.41 Their differences are nonetheless in how they interpret those years of true democracy during the approximately 30 years after the promulgation of 1961 Constitution. The ‘revolution reform’ is thereby a radical but partial change. It preserves that moment when Venezuela paved the way for a new future as a means to avoid, as it happened with Chávez, that the new ‘constituent assembly merely transferred concentrated power from the old political parties into his own hands’.42
His conclusion clearly reminds us of the question ‘Who are the people?’. The message he leaves is that whenever we deify the people, whenever we see the people with no boundaries at all, whenever pluralism is replaced by a hegemonic discourse, whenever someone uses a substantive conception of democracy to strengthen his own power, the path to authoritarianism is looming. His argument is straightforward, as well announced in many parts of his text: he believes in the ‘constituent power as an act of revolutionary reform’.43 He, inspired by Arendt, sees that radical breaks should happen only by ‘calling upon the ideals and adapting the institutions of the past it seeks to channel, harness and constrain the revolution’.44 This is needed to ‘prevent any actor from dominating the process of writing a new constitution and opens up the process of constructing the people to multiple actors’.45 But these strong words come naturally with some doubts: would not Braver be placing constitutionalism as the last source of constitutional democracy, as a metaphysical standpoint from where the solution to have ‘more hope than the extremes of either abolishing the people or unleashing it without any restraint’46 would ever emerge?
II.THE DILEMMA OF THE SOVEREIGNTY OF THE PEOPLE
In a brilliant text whose title—Declarations of Independence—echoes the very enigmatic sense of the tense but productive relationship between constitutionalism and democracy, Jacques Derrida poses the question: ‘Who signs, and with what so-called proper name, the declarative act that founds an institution?’47 Derrida, through the example of American constitutionalism, is stressing not only the founding act of a new order, but mostly asking who the people are. Briefly, he is connecting the act of an institutional foundation with the democratic premise of the sovereignty of the people. According to him, such a Declaration exceeds the boundaries of the constative: ‘The signature maintains a link with the instituting act, as an act of language and an act of writing, a link that has absolutely nothing of the empirical accident about it’.48 The constative negotiates with the performative, which, in turn, must always remember the signature, the constative: ‘The founding act of an institution—the act as archive as well as the act as performance—must maintain within itself the signature’.49
Derrida’s words are certainly intriguing and call the attention of how circular the act of founding a constitutional reality is. In the end, there is no end—or, rather, in the beginning, there is no origin. There is an insurmountable negotiation between the constative and the performative,50 instead, which is the very condition of legal history. No grounds, but only traces and interactions mediated by language. If we go further and ask what the bases of constitutional democracy are, we will face simply history, violence, and faith. This is what remains beneath this ‘mystical foundation of authority’,51 this ‘simulacrum of the instant’,52 this ‘vibrant act of faith’.53 The lack of any ground is what makes constitutional democracy possible in its very impossibility. The constative and the performative, the history and the promise are what make constitutional democracy this ongoing paradoxical repetition in the very reinvention of a moment, where there are no guarantees and the risk of its disruption is always there. This is also what makes the so-called people a sort of fiction in this very moment. After all, as Seyla Benhabib argues, ‘in a constitutional democracy, there is no final seat of sovereignty’.54
As seen, Braver’s argument of ‘revolutionary reform’ through ‘unconventional adaptation’ leads inevitably to a discussion of the seat of sovereignty. In the end, in the face of a regime transition, the question ‘Who are the people?’ has to be raised, even to understand how to better negotiate the past, the present, and the future. For if a ‘people’ is the final seat of sovereignty, perhaps we are placing a ground, a final call for constitutional democracy. Furthermore, this might bring about the consequence of using these very ‘people’ to engender what David Landau calls ‘abusive constitutionalism’55 in Venezuela. A metaphysical standpoint would then prevail over the negotiation between the constative and the performative, jeopardising thereby what we understand by constitutional democracy. In particular, Chávez would use the ‘people’ as the seat of sovereignty, now reaffirmed by him as the source of his power, and the source for circumventing the constitutional constraints and institutional thresholds limiting his—as a derivative of the people’s—power. The ground—the ‘people’—would then make the constitution a flexible constraint the government could easily abuse, while the argument would still sound very sympathetic for the masses.
This is why the concept of ‘revolutionary reform’ should be carefully revisited. The idea of a people building a new reality while dealing with the previous constitutional constraints and institutional thresholds is, after all, at the core of this concept. Braver draws from the opposition between Carl Schmitt and Hannah Arendt, refined by Bruce Ackerman’s concept of ‘unconventional adaptation’, his main thesis.56 But maybe he could have gone further and explored what these ‘people’ really mean for constitutional democracy and thereby for his own argument. An interesting discussion is, for example, the very fictional feature of these people as paradoxically a protection for the real people. As Edmund Morgan, in his book Inventing the People, argues ‘Government requires make-believe (…) Make believe that the people have a voice or make believe that the representatives of the people are the people’.57 This fictional feature of these people, even though needing to bear some resemblance to fact in order to make it viable,58 is thereby a condition for constitutional democracy: ‘the fictional qualities of popular sovereignty sustain rather than threaten the human values associated with it’.59 Or, as Zoran Oklopcic says, we should see these people as ‘imaginative and institutional leftover space, delineated by our conscious refusal to embrace its alternatives’.60
They transcend, therefore, the real people—without forgetting them, though—because these people are indeed many people and can be as such called insofar as constitutionalism fosters pluralism and protects minorities. While not confusing with a certain particular people, sovereignty is affirmed through the very characteristics of constitutionalism: people are as such understood insofar as they free themselves while limiting themselves through constitutionalism. Again, but now with different words, Edmund Morgan is in some ways also emphasising that we cannot place a final ground in the concept of sovereignty. Moreover, there is a more prosaic aspect in the question ‘Who are the people?’. The simple fact that the people’s voice is channeled into institutional mechanisms of representation and deliberation already imposes a limit upon the spectrum of this sovereignty. The people, as the primary constituent power,61 are originally constrained by the very characteristics of constitution-making, while, likewise, the very process of constitution-making and constitution-amending (when the secondary constituent power acts) is limited by the very fictional feature of popular sovereignty.62 This double bind functions then as a mutual possibility and impossibility of constitutional democracy.63
The problem resides, however, when this double bind is put in jeopardy. This is where Joshua Braver’s comments on Carl Schmitt makes a lot of sense as an example of a constitutional theory which is anchored to placing a final ground in the concept of sovereignty. As long as, for Schmitt, democracy has as its central concept a people and not the humanity and is defined as the identity between rulers and ruled,64 it follows that ‘democratic substance precedes formal legalism and abstract proceduralism’.65 A substantive concept of democracy, kept away from any fictional or procedural view of the sovereignty of the people as above discussed, effectively surrenders constitutionalism to decisionism.66 The consequence is that whoever has the authority of the last word—and for Schmitt the last word resides in the people in this identity between rulers and ruled—can change the constitution or draft an entirely new constitution according exclusively to his or her (identified with the people’s) will and in an entirely unfettered way. It is extralegal rather than illegal,67 it is when the political68 overcomes the law.
Simply speaking, Carl Schmitt is the paramount source whenever we are faced with the use of concepts such as democracy or popular sovereignty to mean what constitutional theory usually aims to avoid. The substantive feature of those concepts in Schmitt’s viewpoint contradicts many of those assumptions constitutional theory has developed, and consequently it works as a wake-up call for the dangers of abusing of such concepts.69 Although, as Joshua Braver mentions, Schmitt might not be the source for understanding the aftermath of a transition to a new constitutional order,70 it is certainly the inspiration for building up a façade of democratic discourse where authoritarianism prevails. The use of the word ‘people’ or ‘sovereignty of the people’ to promote quite unbound changes in constitutionalism paves the way to undermine pluralism and then democracy itself. The ‘make-believe’ of a people constitutional democracy relies on as a protection of the real people is replaced by an abusive and strategic use of this very people.
Braver’s distinction between radical transition and ‘revolutionary reform’ lies thereby in the very limits and constraints the people have when establishing a new constitutional reality. Hannah Arendt understands, contra Schmitt, the paradoxical nature of constitutional democracy and, as an admirer of the American Revolution,71 certainly saw in James Madison’s institutional design to challenge the threats of factions,72 let alone the many examples in history, a message to be taken seriously. Therefore, in some ways similar to many relevant perspectives of constitutional theory, such as Derrida’s and Morgan’s above, Hannah Arendt also questions the idea of attributing the final seat of sovereignty to the people, as if they were the ‘ultimate authority’73 and, as such, ‘unbound by any law’.74 In the same manner, Arendt sees how using a substantive concept of a people, as if there were a ‘will of multitude’,75 can lead to the disruption of pluralism and, consequently, engender the rise of authoritarianism through the identification of the ruler and ruled. Yet, despite the ‘dangerous freedom of the people’,76 aren’t these people the final seat of sovereignty, after all?
Jacques Derrida, as previously introduced, may bring forward a more radical approach to this subject. When we lose sight of the fictional character of the people, and identify rather a particular people as the only source of law, as if they could do whatever they want in this new constitutional moment, there is a false presumption here. For there is no new beginning that is entirely pure or unbound. Even though marked by violence and faith, there is, in every beginning, some repetition; there is a certain ‘call for self-conserving repetition’.77 The Derridian concept of iterability—as the repetition in every new beginning78—shows that, even if the people are willing to completely break with the past, there will be limits on doing that. Their sovereignty is already bound to some extent to constraints that weaken these people as the ‘ultimate authority’. Instead of a final ground, these people are interpreted as part of a process, of a negotiation wherein ‘they do not exist as an entity, the entity does not exist before this declaration, not as such’.79 Derrida’s words clearly contradict the argument that the people are the ‘ultimate authority’, since ultimately ‘the signature invents the signer’.80 This might explain why Arendt, as Braver contends,81 sees no point in sustaining a revolution that totally breaks with the past, arguing instead in favour of a renewal of the foundations of the current regime. This is also why Arendt places greater emphasis on the role of institutions in constitutional transitions while comparing the French and American Revolutions.82
Still, as Joshua Braver clearly argues,83 this focus on the capacity of old institutions to impose some limits upon the people, as it happened in the United States, might be overstressed. Since those limits were violated during the ratification process of the American Constitution, in the end, the power of the people is not as radical as Schmitt sustains, but it is not as limited by the old institutions as Arendt seems to argue, either. Schmitt, therefore, would represent the argument in favour of the people, placing greater emphasis on democracy (in his case, radicalised by the materialisation of the concept of a people). Arendt, in turn, would represent the argument in favour of constitutionalism, stressing the necessary constraints of old institutions upon the people. This unbalance should be solved by bringing another concept, one that more properly understands the complexity of regime transitions. This is where Braver recalls, in an adapted manner, Bruce Ackerman’s concept of ‘unconventional adaptation’ of old institutions84 to coin his argument in favour of a ‘revolutionary reform’. In his words, this ‘unconventional adaptation’ would mean that ‘there is continuity because revolutions use institutions, but their rules are bent, reinterpreted or even broken to create new constitution’.85 This concept may better show that the constituent power is a complex phenomenon, wherein institutions and people negotiate between themselves in an adaptive manner. It might better explain this unbalance between democracy and constitutionalism. Yet, how this adaptation will evolve in a certain context is its Achilles’ heel.
Braver understands that the concept of ‘revolutionary reform’ is, at least in the context of contemporary Venezuela, the most suitable resolution to this deadlock, to this unbalance between constitutionalism and democracy. He says that ‘by invoking Hannah Arendt and retelling the story of the creation of the 1999 Venezuelan Constitution, [he] positioned constituent power as an act of revolutionary reform’.86 The question is whether, in the end, Braver is not falling into the risk of placing greater emphasis on constitutionalism, even though recognising the value of popular sovereignty. After all, he writes that his argument ‘acknowledges popular sovereignty and permits radical breaks, but by calling upon the ideals and adapting the institutions of the past it seeks to channel, harness and constrain the revolution’.87 In fact, by defending the need of constraints upon the people, he seeks to defend pluralism: his view would ‘[prevent] any one actor from dominating the process of writing a new constitution and [open] up the process of constructing the people to multiple actors’.88 But, once again, wouldn’t Braver’s viewpoint mean a certain look at this reality somehow expressing Arendt’s excitement about American constitutionalism? And, while doing that, wouldn’t he fall into the risk of placing a final ground in the negotiation between the constative and the performative, the iteration and the alteration?89
Constitutionalism is a seductive word. Especially in a context where we can clearly see that constitutionalism is not working properly, where we can interpret it as a form of ‘abusive constitutionalism’,90 ‘stealth authoritarianism’91 and the like, our genuine reaction is to stand up against such practices that may cause it any harm. We defend constitutionalism because we see that democracy is only as such understood as a constitutional democracy. In the negotiation between constitutionalism and democracy, one is not possible without the other. ‘Constitutionalism is precisely not only an enabling but also a necessary condition of democracy (and vice versa).’92 Moreover, there is no possibility of thinking of democracy without direct emphasis on institutions. We could not imagine stable democracies without the institutionalisation of distinct channels of exercising free public speech and deliberation.93 Still, in this interplay of concepts, there is a vast area of uncertainties and fragilities which certainly push constitutional theory—and many of its presumptions—to its very limits.
Venezuela’s recent constitutional history is a paradigmatic case to observe how one can subvert this interplay of concepts in the course of authoritarian actions: constitutionalism surrenders to the will of the people as the final seat of sovereignty, now embodied by the executive power. The paradoxical concept of ‘revolutionary reform’ according to which institutions of the past are adapted to the new times in the very moment of constitution-making would thereby give to this people’s ‘ultimate authority’94 a less risky meaning. These people would be interpreted in a pluralistic way, as ‘multiple actors’,95 and not as a concept one single actor could manipulate according to his will.
Seductive as it is, Braver’s belief in the strength of constitutionalism—and, especially the past constitutionalism as the cornerstone for his concept of ‘revolutionary reform’—seems quite overstated. Even if tempered with a people who is able enough to further a radical break with the past while preserving some of past ideals and institutions, the very complexity of constitutionalism may contradict some of his optimistic narratives. In fact, the constitutional phenomenon should be interpreted in less normative terms. When faced with the contingencies of social life, constitutionalism, although necessary, may not be enough, especially in a country whose former institutions are not what one could really call democratic.96 Constitutionalism is, after all, a fragile form of collective self-binding precommitment97 even in relative successful democracies, let alone in realities whose constitutional tradition falls short of providing stability and predictability.98
Where institutions have not historically worked side by side with the citizenry, where the constitution has been rather an instrument for keeping untouched privileges and extractive political and economic institutions,99 the idea of constitutionalism as an effective instrument for limiting power and preventing tyranny and private oppression100 has to be assumed in less abstract terms. Constitutionalism, in countries with a past of social oppression and rampant inequality like Venezuela, may not have the necessary strength and binding force to prevent the rise of semi-authoritarian practices, many of them abusively adopting constitutional means for their purposes.101 This is the reason why constitutionalism must be intertwined with some perspectives of economic development,102 as long as it can be—and normally is—used as an argument for preserving the status quo against any effective social and economic change. Therefore, the concept of ‘revolutionary reform’, according to which those old institutions should be shaped for the new regime, constraining somehow whoever is in power, might not be enough and, indeed, might even engender the opposite of any desirable construction of a constitutional democracy.
True, Braver carefully examines the Venezuelan history and acknowledges the dominance of an oligarchical and oppressive regime in its almost entirely past. His ‘revolutionary reform’ would, in this case, ‘start with a veneration of Bolivar and then condemn the subsequent 147 years of Venezuelan history’.103 He even says that the ‘revolutionary reform’ ‘repudiates much of Venezuelan history, including the corruption and neoliberalism of the 80s’.104 But he places great confidence in the ‘promise of the 1961 Constitution, the longest lasting and first truly democratic constitution in Venezuelan history’.105 The constitutional strength of this very past would enable a ‘revolutionary reform’ that could preserve the rules of the game in order to avoid semi-authoritarian practices. Instead of a radical revolution, there would be a renewal and acceleration of the constitutional reforms of the 1990s,106 keeping alive the spirit of 1961 Constitution to promote a more ‘representative and even participatory democracy’.107 Briefly, the ‘revolutionary reform’ demands a strong confidence in constitutionalism and in that the people could and should uphold its premises as their guarantee of a promising future. In the specific case of Venezuela, the spirit of the 1961 Constitution could have lasted, had the Supreme Court and Congress participated in the definition and discussion of the electoral rules of the Constituent Assembly. As with the past democratic constitutionalism, Braver’s ‘revolutionary reform’ also relies on the past institutions and on their capacity to control the rising constitutional transition. Normatively speaking, this is the best-case scenario. Still, constitutionalism, as powerful as it may seem, is only the tip of the iceberg in the midst of multiple contingencies of social life that can even play a greater role in such a regime transition.
For instance, his main thesis anchored in the capacity of the Supreme Court and Congress to avoid such an outcome and bring about the ‘revolutionary reform’, had they imposed ex ante constraints on Chávez, seems overstated. Braver’s argument that ex ante constraints would be more efficient than ex post ones, because ex post constraints would be unfeasible in the context of Chávez’s great popularity,108 ‘constitutional boot-strapping’,109 longstanding demand for change,110 among other causes,111 is certainly reasonable. Yet, especially where institutions have historically failed to guarantee the rule of law and are seen as part of a past to be overcome, it does not follow that ex ante constraints would necessarily perform any better. The Supreme Court and Congress, after all, would also be faced with similar dilemma of confronting a highly popular president in a country in severely need of change. As with ex post constraints, they would also be in serious threat of being purged with little political cost.112 In these circumstances, both the Supreme Court and Congress would have to act in a vigorous and courageous way to contest Chávez’s electoral rules with distinct remedial options that may however prove vulnerable. Braver’s confidence in the capacity of past institutions to control the pace and form of constitutional change stems thus from his belief in the ‘promise of the 1961 Constitution’113 that could have lasted as a limit to the exercise of Chávez’s hegemonic power.
Beneath this argument lies a visible dichotomy between the so-called past democratic reality114 and the semi-authoritarian order in Chávez’s government. This dichotomy is almost personified in his two main theoretical sources, Hannah Arendt and Carl Schmitt. Hannah Arendt (with Bruce Ackerman) would bring, through the concept of ‘revolutionary reform’ and ‘unconventional adaptation’, the argument that could have made Venezuelan history to evolve differently. Had the Venezuelan Supreme Court and Congress better knowledge and more effective tools to set the conditions for a constitutional transition, imposing thereby constraints upon Chávez, Venezuela might have had a distinct outcome.115 On the other hand, Carl Schmitt would be to some extent the personification of those authoritarian practices that took place in that country. In this case, Braver even argues that Schmitt was a ‘decisive influence on constitutional advisors’116 to Hugo Chávez in the creation of the 1999 Constitution, as well as on the new Venezuelan Supreme Court117 and constitutional literature.118
Schmitt is, as previously argued, normally interpreted as the paramount subversion of concepts such as democracy to legitimise authoritarian practices. However, Braver’s emphasis on Schmitt, as an opposition to Hannah Arendt and the concepts of ‘revolutionary reform’ and ‘unconventional adaptation’, may simplify the set of negotiations and variables that are in play in such a context of regime transition. Whether Schmitt, despite his possible influence, indeed served as the theoretical basis for those authoritarian outcomes is nonetheless an open question. And if he did, this may be more accidental than Braver suggests. It is precisely in this matter that we can observe that, albeit his analysis of Venezuelan history to justify why his concept of ‘revolutionary reform’ is ‘viable, suitable and appealing’,119 his argument ultimately revolves around constitutionalism and institutions, not dwelling on more structural causes that made Chávez possible. Yet, unlike Braver’s argument,120 that old constitutional and institutional framework, even if the seeds of a democratic future were there, was also characterised by ‘structural and cultural determinants of exclusion and political illegitimacy’,121 and could not possibly constrain Chávez as Braver suggests.
In fact, if we shift focus from constitutional theory to the very contingencies of social life, rather than Schmitt, we could simply argue that Chávez was someone who experienced the very reality of social inequality and exclusion of his country and saw in the idea of bringing to the forefront the historically oppressed popular masses a genuinely reasonable cause for action.122 He nevertheless ended up doing it in an erratic way, as it not rarely occurs in circumstances of combining a charismatic leader, a society marked by extractive economic and political institutions, and weak constitutionalism. Furthermore, in an environment where distinct forms of authoritarianism have been entrenched for centuries, to abuse constitutionalism was nothing new. Instead, distinct forms of abusive constitutionalism have a longer genealogy123 in that region than even Schmitt would ever imagine and it is no wonder that Chávez may have just followed similarly passed paths, but with a much greater visibility.
In this regard, Braver might have fallen into the common Manicheanism of interpreting the past Venezuelan regime as if it were quite an exception in Latin America.124 Although acknowledging Venezuela’s historical oppression and oligarchical dominance, he depicts Chávez as the responsible for hindering the so-desired ‘revolutionary reform’. Some continuities and ruptures—and in the very practices of authoritarianism—are evident in this transition, whose complexities demand looking at this situation without such a confidence in the strength of constitutionalism. Even though Braver introduces a very interesting analysis of Venezuelan history to coin the concept of ‘revolutionary reform’, some further relevant discussions of structural economic and social development of that region would make his concept more solid and convincing, and possibly show that ‘revolutionary reform’ may better work in the companion of also other premises and categories.
Braver’s paper leads us to a direct confrontation with many theoretical assumptions regarding constitutionalism. Venezuela, after all, is a perfect scenario for bringing the natural seduction of constitutionalism and its many abstractions and fictions to face reality, without overlooking, though, their performative meaning. The promises of constitutional democracy are continuously challenged by such limits, where the questions ‘Who are the people?’, ‘What does constitutionalism mean?’ or ‘What do we understand by democracy?’ reveal their insurmountable fragility. For, in the end, even though we aim to see, in every context, those paramount categories of constitutionalism, the fact is that such categories can be only interpreted in the historically contingent process of social life.125 The ‘right to self-critique and perfectibility’126 constitutional democracy holds makes us seduced by its potentiality to bring about a new future, leading us thereby to defend it against its very risks of disruption.
Braver calls our attention by bringing such a brilliant examination of how Chávez’s government disrupted many of the ‘make-beliefs’127 of constitutional democracy, but it also reveals the very limitations of constitutional theory and its categories to interpret such a complex reality. A substantive concept of a people, as Braver interprets it in Venezuela, is just the other side of the coin of a country where constitutionalism has been historically subverted and abused, where the double bind of constitutionalism and democracy is continuously put in jeopardy. While we believe in constitutionalism and its institutions (as Braver’s faith in the 1961 Constitution and the Venezuelan Supreme Court, had it better knowledge and tools), and we are normally seduced by constitutionalism, social life reveals its boundaries and fragilities. The ‘non-foundational foundations of law’,128 as a negotiation between the constative and the performative, between constitutionalism and democracy, is permeated by history, violence and faith. Braver’s paper, with its intriguing and dense analysis of such a complex constitutional context, is hence a wake-up call for understanding that constitutional democracy is only possible in its very impossibility.
*I am very grateful to the participants of the Workshop on Comparative Constitutional Amendments, held at Boston College in May 2015, and particularly Richard Albert, Xenophon Contiades and Akmene Fotiadou for organising such a fruitful workshop. I am also thankful to the peer reviewers who contributed with very relevant comments. This chapter critically comments on Joshua Braver’s Article Revolutionary Reform in Venezuela: Electoral Rules and Historical Narratives in the Creation of the 1999 Constitution.
1J Braver, ‘Revolutionary Reform in Venezuela: Electoral Rules and Historical Narratives in the Creation of the 1999 Constitution’, in this volume.
2I provide a critical analysis of the concept of constitutional moments in JZ Benvindo, ‘The Seeds of Change: Popular Protests as Constitutional Moments’ (2015) 99 Marq L Rev 363.
3Braver (n 1) 138.
4ibid 144.
5ibid.
6ibid 139.
7ibid.
8ibid 142.
9ibid 156.
10ibid 146.
11ibid.
12ibid 147.
13A Kalyvas, Democracy and the Politics of the Extraordinary (Cambridge University Press, 2008) 119.
14Braver (n 1) 147.
15ibid.
16H Arendt, On Revolution (Penguin Books, 1990) 239.
17Braver (n 1) 147.
18ibid.
20Braver (n 1) 149.
21ibid 149.
22ibid 150.
23ibid.
24ibid.
25ibid.
26ibid.
27ibid.
28ibid 151.
29ibid 149–150.
30ibid 151.
31ibid 152.
32ibid.
33ibid 153.
34ibid.
35ibid 154.
36ibid.
37ibid.
38ibid 155.
39ibid.
40ibid.
41ibid 155.
42ibid 156.
43ibid.
44ibid.
45ibid.
46ibid.
47J Derrida, ‘Declarations of Independence’ in J Derrida (ed), Negotiations: Inteventions and Interviews, 1971–2001 (Stanford University Press, 2002) 47.
48ibid 47.
49ibid 48.
50ibid 49.
51J Derrida, ‘Force of Law: The Mystical Foundation of Authority’ (1990) 11 Cardozo L Rev 920, 939.
52Derrida (n 47) 51.
53ibid 52.
54Sh Benhabib, ‘Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida’ in L Thomassen (ed), The Derrida-Habermas Reader (Edinburgh University Press, 2006) 140.
55D Landau, ‘Abusive Constitutionalism’ (2013) 47 UCDL Rev 189.
56See Braver (n 1) 139–144.
57ES Morgan, Inventing the People (WW Norton & Company, 1988) 13.
58ibid 14.
59ibid 15.
60Z Oklopcic, ‘Constitutional Theory and Cognitive Estrangement: Beyond Revolutions, Amendments and Constitutional Moments’, in this volume, 70.
61The primary constituent power refers to the people in constitution-making, while the second constituent power relates to the process of constitution-amending. See Y Roznai ‘Amendment Power, Constituent Power, and Popular Sovereignty’, in this volume.
62See Roznai (n 61).
63See L Thomassen, ‘A Bizarre, Even Opaque Practice: Habermas on Constitutionalism and Democracy’ in L Thomassen (ed), The Derrida-Habermas Reader (Edinburgh University Press, 2006) 186.
64See C Schmitt, Verfassungslehre [Constitutional Theory] (Duncker & Humblot, 2003) 234.
65Kalyvas (n 13) 117.
66This argument is related to Schmitt’s statement that the ‘sovereign is who decides on the exception’ [Souveräin ist, wer über den Ausnahmezustand entscheidet] See C Schmitt, Politische Theologie [Political Theology] (Duncker & Humblot, 2009) 11.
67See Kalyvas (n 13) 118.
68Carl Schmitt defines the political in a very concrete perspective according to the division between friend and enemy and by directly focusing on the exception rather than the rule. According to him, ‘the concept of friend and enemy are to be understood in their existential and concrete sense but not as symbols or metaphors. It cannot be mixed or weakened by the economy, morals or other concepts as an expression of private feelings and tendencies’. C Schmitt, Der Begriff des Politischen [The Concept of the Political] (Duncker & Humblot, 2009) 27. For Schmitt, therefore, there is no political without the figure of the enemy. As Derrida argues, ‘the disappearance of the enemy would be the death knell of the political as such’. J Derrida, ‘The Politics of Friendship’ (1988) 85 The Journal of Philosophy 632, 684.
69See Landau (n 55) 189.
70Braver (n 1) 141.
71See Arendt (n 16) 215–81.
72J Madison, ‘The Federalist, 10’ in A Hamilton, J Madison, and J Jay, The Federalist Papers (Oxford University Press, 2008) 49–55.
73Braver (n 1) 141.
74ibid.
75ibid 142.
76ibid 141.
77Derrida (n 51) 997.
78ibid 997.
79Derrida (n 47) 49
80ibid 49.
81Braver (n 1) 143.
82Arendt (n 16) 155–78.
83Braver (n 1) 144.
84ibid 144.
85ibid.
86ibid 156.
87ibid.
88ibid.
89Thomassen (n 63) 186.
90Landau (n 55) 189.
91O Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa L Rev 1673.
92Thomassen (n 63) 179.
93See, eg, Benhabib (n 54) 145.
94Braver (n 1) 141.
95ibid 156.
96As Julie Buxton argues: ‘Certainly it is the case [to judge Bolivarianism as authoritarian] that if Chávez’s Venezuela is to be judged by the procedural benchmarks of liberal democracy, there is a deficit of checks and balances on government, the rule of law is weak, the military is not apolitical, and executive power is pronounced. But this leads to a number of related considerations. It has never been the case that liberal democracy was consolidated in Venezuela. During the Punto Fijo period, the country had a model of illiberal democracy that delimited participation, restricted access to power, privileged a minority, and politicized all state institutions. The rule of law was historically weak, and corruption and human rights abuses were pronounced. To present the Bolivarian process as some form of democratic regression or authoritarian aberration in this historical context is misleading. It denies the structural legacies of Puntofijismo and negates the progress that has been made in extending social and political inclusion in a historical context characterized by disaffection with political parties, politicians, and institutions.’ J Buxton, ‘Foreword: Venezuela’s Bolivarian Democracy’ in D Smilde and D Hellinger (eds), Venezuela’s Bolivarian Democracy (Duke University Press, 2011) XV.
97See, eg, J Elster, ‘Don’t Burn Your Bridge Before You Come to It: Some Ambiguities and Complexities of Precommitment’ (2003) 81 Tex L Rev 1758.
98This does not mean that economic prosperity is a necessary requirement for constitutional democracies, although it may play a relevant role. Examples of rather successful constitutionalisms in contexts of severe inequality and economic difficulties can be found in India and South Africa. The particularity of Venezuela relates above all to the fact that Chávez could control the pace and form of constitutional change in a practically unbound way and without any particular need of negotiating conflicting interests. In such a scenario, the economic background of longstanding exclusion of a large part of the population appeared as a fundamental argument for change, which could be easily embraced by a charismatic leader to sustain his own power.
99D Acemoglu and JA Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (Crown Business, 2012) 73.
100See S Holmes, Passions and Constraint: On the Theory of Liberal Democracy (University of Chicago Press, 1995) 6.
101Landau (n 55) 189.
102See, eg, J González-Jácome, ‘On Abusive Constitutionalism: Two Critical Impulses’ (International Journal of Constitutional Law Blog, 11 June 2015) <www.iconnectblog.com/2015/06/on-abusive-constitutionalism-two-critical-impulses> accessed 1 August 2016.
103Braver (n 1) 155.
104ibid 151.
105ibid.
106ibid 155–156.
107ibid 155.
108ibid 149.
109ibid 150.
110ibid.
111ibid.
112ibid 149.
113ibid 151.
114ibid.
115ibid 139.
116ibid 140.
117ibid 150.
118ibid.
119ibid 156.
120ibid 151.
121E Lander, ‘Venezuelan Social Conflict in a Global Context’ in S Ellner and M Tinker Salas (eds), Hugo Chávez and the Decline of an ‘Exceptional Democracy’ (Rowman & Littlefield Publishers, 2007) 24.
122See VM Figueroa, ‘The Bolivarian Government of Hugo Chávez: Democratic Alternative for Latin America?’ (2006) 32 Critical Sociology 187, 199 (arguing that Chávez’s Bolivarian Democracy ‘is a process seeking to combat economic and social exclusion while opening the way to an inclusive democracy’).
123See, eg, González-Jácome (n 102).
124Many scholars name this positive understanding of Venezuela as ‘Venezuelan exceptionalism’. According to Ellner and Salas: ‘Notions of Venezuelan exceptionalism influenced the work of political scientists and other scholars. Three basic formulations underpinned exceptionalism writing: that Venezuela was privileged with respect to the rest of Latin America, that it remained free of acute class and racial conflict and cleavages that threatened political stability elsewhere, and that its democratic system and political culture were healthy and solid.’ S Ellner and M Tinker Salas, ‘The Venezuelan Exceptionalism Thesis: Separating Myth from Reality’ in Ellner and Tinker Salas (eds) (n 121) 5.
125In this regard, see Thomas Pereira contribution to this volume, who clearly points out that concepts such as popular sovereignty cannot merely be interpreted abstractly and should always make reference to the contingencies of real life. As he argues: ‘In a more concrete way, if we stick to the traditional canonical examples, the relationship between constitutional law and popular sovereignty is completely different when it comes to constitutional systems as diverse as the United States, England, and Germany. In each of these orders, both the constitutional founding and the specific institutional designs of the constituted system are different in their relationship with “the people”’; Th Pereira, ‘Constituting the Amendment Power: A Framework for Comparative Amendment Law’, in this volume.
126J Derrida, Rogues: Two Essays on Reason (Stanford University Press, 2005) 86.
127Morgan (n 57) 13.
128G Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ in Ch Jöegers et al (eds), Constitutionalism and Transnational Governance (Hart Publishing, 2004) 16.