Constituent Power and Constitution-Making in Latin America

--David Landau, Florida State University College of Law

This chapter, for a forthcoming edited handbook on comparative constitution-making (co-edited
with Hanna Lerner) surveys constitution-making in Latin America since 1990. It classifies the
nine constitution-making episodes in the region along two dimensions: (1) whether they were
constrained or unconstrained by the existing constitutional order, and (2) whether they were
drafted unilaterally or by a more consensual coalition of actors. An examination of recent
regional constitution-making reveals that original constituent power theory, or the theory that
the “people” retain the power to remake the constituted powers in the existing constitutional
order, has played a major role in most recent exercises of constitution-making. The main
practical function of the doctrine has been to allow powerful political forces to remake their
constitutional orders unilaterally, evading a need to negotiate with the opposition. Clarifying
this function is useful for developing a practical rather than theoretical critique of the harm
often done by constituent power theory, and for highlighting the desirability of alternative
conceptions of constitution-making. In many cases, reliance on replacement clauses found in
existing constitutions themselves is likely to be a superior alternative.
Eight Latin American countries have replaced their constitutions since 1990 – Colombia,
Paraguay, Peru, Argentina, Ecuador (twice), Venezuela, Bolivia, and the Dominican Republic.
Most of the constitution-making since 1990 has occurred from an electoral democratic starting
point, since almost all countries in the region that had previously been under dictatorship had
transitioned to democracy by 1990. Modern Latin America is thus probably the world’s richest
laboratory of constitution-making under democratic conditions.
One way of classifying these modern constitution-making cases is to ask whether the drafting
process was constrained or unconstrained by the existing constitutional order. In cases where
constitution-makers have broken with the existing legal order, they have generally relied on a
rhetoric that is laden with constituent power theory. This rhetoric differentiates between the
original constituent power of the people who author a constitution and the derivative powers, or
constitutional institutions that are created by the original constituent power.1 It holds that the
former have the power to remake the latter, thus allowing “the people” to step outside of their
existing political order at any time in order to replace the existing constitution.2 In practice in
modern Latin America, the original constituent power has usually been represented through an
elected constituent assembly. Referenda are also frequently used as a test of popular will, either
to trigger constitution-making, to ratify a new constitution, or both. In an influential variant of
the modern form used in some countries such as Colombia, Venezuela, and Ecuador, the

1
Joel I. Colon-Rios, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power
(Routledge 2012) 8. This essay focuses on constituent power theory as a form of rhetoric used internally by
participants in the process of constitution-making as they are engaged in it. It does not treat the somewhat different
question of how an external observer would conclude that constitutional replacement had occurred, whether through
revolutionary or other means. For an example of a perspective more focused on the latter question, see Mark
Tushnet, ‘Peasants with Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the Constituent Power’
(2015) 13 International Journal of Constitutional Law 639.
2
Ibid. (arguing that this is the only conception that is consistent with democratic theory).
Assembly asserts power not only to draft the constitution, but also to carry out any other
governmental functions, such as legislating or shutting down competing institutions, since it
instantiates the original constituent power and thus stands above all merely derivative powers of
state.3
Not all modern cases of constitution-making have involved such a break: in fact nearly half of
recent episodes have been restrained by rules found in the existing constitution. Nonetheless, I
argue that the rhetoric of constituent power theory has influenced most recent episodes of
constitution-making in the region; even where not actively deployed, powerful political actors
have threatened to use it. An examination of these experiences also suggests that the main
practical function of the doctrine in recent regional experience has been to allow powerful
political forces to remake their constitutional orders unilaterally, evading any need to negotiate
with the opposition. Clarifying this function is useful for developing a practical rather than
theoretical critique of the harm often done by constituent power theory, and for highlighting the
desirability of alternative conceptions of constitution-making.
The rest of this chapter is organized as follows: Part I lays out a basic categorization of recent
experiences, showing in particular regional trends towards constitution-making under democratic
conditions and more participatory constitution-making in most recent exercises of constitution-
making. Part II examines recent experiences of constitution-making in which there was a break
between the old and the new legal order, in order to demonstrate the function played by
constituent power in those cases. Part III carries out the same exercise for constitution-making
experiences that have been restrained by the existing legal order. Part IV concludes by analyzing
and critiquing the function played by constituent power in these experiences, and argues that
greater reliance on constitutional replacement clauses may be a superior alternative. Part V
concludes.
I. Commonalities of Modern Constitution-Making in Latin America
Latin America stands out in regional terms both for the sheer volume of constitution-making and
the variation between national experiences. Latin American countries have had a mean of 10.7
constitutions per country between independence and 2008; even leaving out the volatile early
post-independence period, they averaged 5.7 constitutions per country between 1900 and 2008.4
There is however significant variation: the number of constitutions since independence ranges
from 26 in Venezuela to 4 in Argentina.5 And despite an overarching historical pattern of fairly
frequent constitutional replacement, there are prominent examples of durable constitutions in the
region. For example, the Colombian constitution of 1886 lasted until 1991, and Mexico
continues to operate based off of a constitution written in 1917, transitioning from a one-party

3
Joel I. Colon-Rios, ‘Constitution Making and Constituent Power’ in Rosalind Dixon & Tom Ginsburg (eds)
Comparative Constitutional Law in Latin America (Elgar 2017) 57, 80-81 (noting the use of this power but arguing
that it may be inconsistent with an understanding of constituent power as being “of the people”).
4
Gabriel Negretto, Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America (CUP
2013) 21 tbl. 1.1.
5
Ibid.
state to a multi-party system with a very large number of constitutional amendments but without
replacing its constitution.
There is no single historical Latin American model of constitution-making. For example,
specialized constituent assemblies were sometimes used, but ordinary legislatures and other
bodies such as appointed commissions more commonly served as constitutional drafters
historically.6 Furthermore, some constitutions were imposed by a single victorious political
force, while others were a product of negotiation or consensus among a number of political
forces.7 And constitution-making has sometimes been constrained, and at other times
unconstrained, by the existing constitutional order.8 An example of this heterogeneity in
experiences with constitution-making is provided by the late 1970s and 1980s, when many
countries in the region transitioned from an authoritarian to a democratic regime. To give three
examples: Argentina transitioned in the 1980s without replacing its constitution at all, Chile’s
constitution was drafted by the military regime itself (with assistance from an appointed civilian
commission) and then approved by a referendum closely supervised by the military, and the
Brazilian constitution was drafted by the Brazilian Congress in a highly pluralist process.
This brief chapter disclaims any intention of analyzing all of this rich history, and instead focuses
on regional experience since 1990. Figure 1 summarizes some key features of the constitution-
making context and process for the nine regional episodes of constitution-making since 1990.
Before explaining the ways in which modern constitution-making show variation, I will
emphasize two characteristics that mark most modern exercises of constitution-making: (1) a
democratic starting point, and (2) increasingly stringent norms for popular participation.
A. Constitution-Making From a Democratic Starting Point
As Figure 1 shows, in Latin America, recent constitutional replacement has most often taken
place from a democratic starting point. Examples include Colombia (1991), Argentina (1994),
Ecuador (1998 and 2008), Venezuela (1999), Bolivia (2009), and the Dominican Republic
(2010). Constitution-making from an authoritarian or semi-authoritarian starting point has not
disappeared completely: the Paraguayan constitution of 1992 was written in a transition from
dictatorship to democracy, and the Peruvian constitution of 1993 was written while the country
had fallen into a competitive authoritarian regime, after President Fujimori had shut down the
Congress and Constitutional Court in a so-called self-coup (autogolpe).
Table 1: Constitution-Making in Latin American Since 1990
Country Regime Drafting Pre- or post- Constrained Negotiated
(year) starting body drafting by existing between
point & referendum? constitution? competing
context political
forces?

6
Gabriel L. Negretto, Constitution-Making and Constitutionalism in Latin America in Rosalind Dixon & Tom
Ginsburg (eds) Comparative Constitutional Law in Latin America (Elgar 2017) 19-21 tbl. 2.1.
7
Ibid.
8
Ibid.
 Colombia democratic – constituent Pre- No Yes
(1991) political crisis assembly
Paraguay authoritarian constituent Neither Yes No
(1992) transition assembly
Peru (1993) competitive constituent Post- No No
authoritarian assembly
regime
seeking
legitimacy
Argentina democratic – constituent Neither Yes – ordinary Yes
(1994) non-crisis assembly amendment
procedures
used
Ecuador democratic – constituent Pre- No Yes
(1998) political crisis assembly
Venezuela democratic – constituent Both No No
(1999) political crisis assembly
Ecuador democratic – constituent Both No No
(2008) political crisis assembly
Bolivia democratic – constituent Post- Yes – Yes
(2009) political crisis assembly replacement
clause in text
Dominican democratic – ordinary Neither Yes – ordinary Yes
Republic non-crisis congress amendment
(2010) procedures
used

This chapter does not attempt to fully answer the question of why constitution-making has been
fairly frequent within recent democratic regimes in Latin America. But a big part of the answer
must focus on the prevalence of deep regime crises, such as a loss of perceived political
legitimacy of key actors due to corruption or lack of responsiveness to deep economic drops, or
sharp and ongoing conflicts between different institutions of government.9 In other words, some
Latin American democracies suffer from recurring complaints about dysfunction, low levels of
institutionalization, and poor performance, which creates conditions where constitutional
replacement is more likely. Indeed, Figure 1 notes that most recent constitution-making episodes
have taken place during a mood of political crisis. The may be a sense that a prior regime has run
its course (as in Colombia and Venezuela), or a sense of ungovernability (as in both Ecuadorian
episodes and the Bolivian case).
The nature of political leadership is also important. Populist leaders, who have long been
common in the region, tend to run against the existing institutional order by identifying it with a

9
Gabriel L. Negretto, ‘Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin
America’ (2012) 46 Law and Society Review 749, 771 (finding a statistically significant relationship between
constitutional crises and likelihood of constitutional replacement in Latin America).
corrupt set of elites.10 They may gain power by promising to sweep away remnants of the old
regime. Constitution-making in this sense becomes identified as a “re-founding” of the entire
institutional order. Such a model might fit, for example, cases in Peru (1993), Venezuela (1999),
Ecuador (2008), and Bolivia (2009), all of which rewrote their constitutions after insurgent, and
arguably populist, leaders took power.11 Furthermore, a number of recent leaders – whether
populist or not – have sought constitutional change or replacement as a way to fulfill their
political interests. For example, several recent presidents have sought constitutional replacement
or substantial constitutional change as a way to remain in power by extending limits on their
terms. This is perhaps clearest in the “non-crisis” democratic cases of Argentina and the
Dominican Republic, where extensions on term limits and increases in presidential power were a
major piece of the motivation in carrying out constitutional change.12 But presidents were the
main drivers of most of the existing cases of democratic constitution-making, and many of the
texts involved significant increases in presidential power.
Of course, the fact that constitution-making in modern Latin America has a democratic starting
point need not mean that it has a democratic ending point. Constitution-making would ideally
deepen democracy and improve regime performance. On the flip side, it could also have the
effect of eroding democracy, helping to move a formerly democratic order towards a hybrid
regime somewhere between democracy and dictatorship. Such arguments have been made
particularly of the Venezuelan and Ecuadorian (2008) cases, where constitutions were made
without any input from the opposition, allowing incumbent presidents to consolidate their
power.13
B. Towards More Participatory Constitution-Making
There has been a trend in Latin America towards more participatory constitution-making. Some
models of constitution-making that have historically been important in the region, such as
appointed commissions or assemblies, have essentially disappeared since 1990. Instead, as
Figure 1 shows, constitution-making has been carried out by elected officials, and, in a flip of the
historical tradition, usually in a Constituent Assembly. Most modern constitution-making
processes have also included referenda, either to trigger the process or to ratify the final
constitutional text (or both). The constitution-making process in Peru in 1993 is an interesting
example of the importance of both elections and referenda for modern legitimacy. President
Fujimori called for a process to write a new constitution after essentially shutting down other
avenues of ordinary liberal democracy – he closed the Congress after it refused to ratify core
pieces of his economic package, and he “reorganized” the judiciary. Nonetheless, he called an

10
Cas Mudde, ‘The Populist Zeitgeist’ (2004) 39 Government & Opposition 541, 543; Benjamin Moffitt, The
Global Rise of Populism: Performance, Political Style, and Representation (Stanford UP 2016) 118.
11
Maxwell A. Cameron & Kenneth Sharpe, ‘Andean Left Turns: Constituent Power and Constitution-Making’ in
Maxwell A. Cameron & Eric Hershberg (eds), Latin America’s Left Turns: Politics, Policies, and Trajectories of
Change 61 (Lynne Rienner Publishing 2010).
12
Negretto, Making Constitutions, 148-49.
13
Carlos de la Torre, Populist Seduction in Latin America (2d edn, Ohio UP 2010) 187-88; David Landau, ‘Abusive
Constitutionalism’ (2013) 47 UC Davis Law Review 189, 203-207.
elected Constituent Assembly (which was dominated by supporters of his movement) and had
the new constitutional text ratified by referendum.14
The high prevalence of Constituent Assemblies over ordinary legislatures as constitutional
drafters in the modern period perhaps needs some additional elaboration, since the historical
pattern shows more variation even where elected officials have been used. In large part, this may
be determined by the conditions within which constitution-making has tended to occur. As noted
above, the most common pattern since 1990 has been for replacement during a crisis in a
democratic regime, rather than during a regime transition or periods of ordinary democratic
governance.15 This means that constitution-making has often occurred during periods in which
ordinary political institutions have lost legitimacy. A specialized assembly outside of the
political order may be a more feasible alternative in those conditions. Moreover, and as
explained in more detail below, at times political leaders have sought political advantages by
bypassing ordinary political institutions, thus allowing them to reduce the political influence of
the opposition.
Recent work has suggested that participation should be evaluated in thicker terms than merely
elections and referenda.16 One key question is whether civil society groups and the general
public can offer meaningful input into the text, rather than just ratifying the result in a
referendum. Here there continues to be more significant regional variation, but likewise a
seeming trend towards higher degrees of popular involvement. The Colombian constitution-
making process of 1991 was a relevant early precedent. It was triggered in part by a student
movement, and the Assembly itself demonstrated openness to proposals from a number of
different groups, although the influence of popular participation was limited both by lack of time
and lack of formal outreach.17 The constitution-making processes in Venezuela (1999), Ecuador
(2008), and Bolivia (2009) are widely regarded as at least reasonably participatory in this sense,
and all included more formal outreach to encourage popular participation, even though those
procedures had limitations.18 In the Dominican Republic as well, where constitution-making was
done in the ordinary legislature, the government nonetheless created an expert commission that
undertook significant steps to educate the public about the nature of the reform and to solicit
input.19 The trend towards participatory constitution-making thus seems to cross models of
constitution-making: it shows up both in many examples of constitution-making where
constituent power theory was used (such as Venezuela, Colombia, and Ecuador), and many
examples where it was not used (such as Bolivia and the Dominican Republic).
The trend towards relatively participatory constitution-making in the region is a product of the
circumstances in which constitution-making has taken place – where constitution-making has a
14
Philip Mauceri, ‘Return of the Caudillo: Autocratic Democracy in Peru’ (1997) 18 Third World Quarterly 899,
901.
15
Negretto, ‘Replacing and Amending’ 771.
16
Abrak Saati, The Participation Myth (Umea UP 2015) 36-37.
17
Ibid. 103-105.
18
Ibid. 106-108 (explaining the existence and limitations on popular participation in the Bolivian case).
19
Leiv Marsteintredet, ‘Change and Continuity in Dominican Constitutions: The 2010 Reform Compared’ in Detlef
Nolte & Almut Schilling-Vacaflor (eds), New Constitutionalism in Latin America; Promises and Practices
(Routledge 2012) 229.
democratic starting point, it is naturally far less legitimate to undertake a closed process like the
one carried out by the military regime with the 1980 Chilean constitution.20 In addition, popular
participation has increasingly become an international expectation or even emerging norm
pushed and encouraged by regional and international organizations.21 This changing
transnational discourse has plausibly influenced some of the more recent processes of
constitution-making.
Finally, it is worth noting that there appears to be little relationship between participation and the
extent to which the constitution-making process includes input from a wide range of political
parties or forces. In some cases, as in Venezuela in 1999, the constitution-making process was
fairly participatory, but also a highly majoritarian process in which legal continuity with the old
regime was broken and minority political forces were marginalized. In other cases, a process is
both highly inclusive and highly participatory, with the final product being negotiated between
competing political forces, as in Colombia in 1991 and (more contestably) in Bolivia between
2006 and 2009. In yet other cases, like Argentina in 1994, the process includes competing
political elites is non-participatory, because the Assembly in that case mostly ratified an
agreement reached by those elites.
In the remainder of this chapter, I emphasize questions raised by Table 1 in which there is greater
modern variation. My focus is on the question of whether there is a legal break with the
preexisting legal order. In some cases, constitution-makers have deployed the doctrine of
constituent power to break with the existing constitution, effectively arguing that constitution-
making is a revolutionary act outside of the existing constitutional order and unconstrained by it.
In other cases, however, constitutional replacement has taken place inside the existing
constitutional order.
I. Constitution-Making Unconstrained by the Existing Constitutional Order: Constituent
Power Theory
There are a number of recent cases in Latin America where constitutions were made outside of
the existing political order, drafted by a Constituent Assembly that was unrestrained by any
element of the existing constitutional regime. Colombia (in 1991), Venezuela (in 1999), and
Ecuador (in both 1998 and 2008) are all examples of this kind of process in recent Latin
American history, and all initiated from a democratic starting point. Fujimori’s constitution-
making process in Peru in 1993 made use of similar logic, although from a competitive
authoritarian rather than democratic starting point. One way to further classify these cases is
based on the level of consensus involved in constitution-making: this part starts with cases where
constitutions were negotiated between competing political movements, and then treat cases
where the constitution was imposed unilaterally by a single political movement.
A. Negotiated Break

20
Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (CUP 2002).
21
Vivien Hart, ‘Constitution-Making and the Right to Take Part in a Public Affair’ in Laurel E. Miller (ed),
Framing the State in Times of Transition: Case Studies in Constitution-Making (United States Institute of Peace
2010) 20.
In the paradigmatic case of Colombia, whose use of constituent power theory influenced all of
the subsequent cases studied in this section, a number of political parties and movements agreed
on the need for a break from the existing constitutional order, and they called a Constituent
Assembly outside of the existing constitution in order to carry out their goal. Constitution-
making thus took place outside of the existing legal order, but it was based on an inter-party pact
that included most political forces.
The background to the making of the 1991 constitution was a major social and political crisis in
the 1980s.22 This was in part a crisis of public order, as guerilla groups gained power and narco-
trafficking became a massive industry and problem in the country. It was also in part a political
crisis: the traditional two-party system in the country was perceived as breaking down and
becoming unresponsive to major problems. The two parties, after a bloody period of unrest
simply called La Violencia and a subsequent interlude of military dictatorship, had agreed on a
pact in the 1950s in order to ensure a return to democracy and subsequent order. Under this pact,
called the National Front, the two parties agreed to rotate the presidency, to divide cabinet
positions and other posts such as judges equally, and to require effective agreement of both
parties for major legislation.23 The pact dampened inter-party competition, but it also
factionalized the parties and led to complaints that the system was exclusionary and
unresponsive to change. The National Front formally ended in the 1970s, but many vestiges of
the system endured. Critics complained that both the Congress and the Supreme Court, both
heavily impacted by National Front politics, prevented major changes to the system from
occurring, and that Colombia had become a “blocked society.”24 The president, in turn, often
ruled the country through extensive use of state of siege powers, which were simultaneously
critiqued both for abuses of human rights and the separation of powers and for proving
ineffective in fighting the crisis.
Those changes that did pass Congress were often struck down by the Supreme Court. The Court
developed an aggressive procedural review of proposed amendments; it also created a doctrine
suggesting that the sole mechanism of reform found in the text of the post-National Front
constitution, requiring calibrated thresholds of congressional approval, was exclusive and
unamendable.25 For example, when President Lopez Michelson in 1977 sought to reform the
constitution in order to create a “small constituent assembly” with powers of amendment over
certain areas, the Supreme Court struck down the amendment because it attempted to add to the
exclusive method of constitutional change.26
Thus, when reformers in the late 1980s sought sweeping constitutional change after a wave of
political assassinations followed by a brief but significant student movement demanding an
Assembly, they looked outside of the existing constitutional order, but did so in a consistently

22
David Bushnell, The Making of Modern Colombia: A Nation in Spite of Itself (U Cal P 2003) 251.
23
Ibid 223-225.
24
Mario Latorre Rueda, ‘Colombia, una sociedad bloqueda? Articulo 120: Espiritu Nacional y participacion
Adecuada y Equitativa’ in Hechos y Critica Politica (U Nacional P 1986) 121-130.
25
Mario Alberto Cajas Sarria, El control judicial de la reforma constitucional: Colombia 1910-2007 (ICESI P 2008)
65.
26
Ibid.
consensual way. In 1988, the Liberal President Virgilio Barco signed a pact with the
Conservative party calling a referendum presenting the possibility of amendment via three
options, but this pact was suspended by the Council of State for attempting to evade the
exclusive congressional reform procedure.27 At the demand of the student movement, and after
the assassination of the Liberal presidential candidate Luis Carlos Galan, an informal vote was
held alongside state and local elections in March 1990, and the results suggested broad support
for a Constituent Assembly.28 Barco then issued a state of siege decree allowing for a formal
referendum on whether to call a Constituent Assembly to be held simultaneously with the 1990
presidential election; the Supreme Court upheld this decree and the referendum passed
overwhelmingly.29
The new President, the Liberal Cesar Gaviria, also refused to act unilaterally and instead signed a
pact with most heads of other major political movements, including a guerrilla group that had
recently reached a peace agreement with the government, called the M-19.30 Under the pact, the
parties agreed on a set of electoral rules to elect the 70 members of the Assembly that were a
sharp break from traditional Colombian rules and guaranteed adequate representation of minority
groups through proportional representation in a single nationwide district. They also reserved
posts for other demobilized guerrillas and for indigenous groups, gave the Assembly 180 days in
which to act, and defined the subjects on which it was competent to carry out reforms. The
elections were to be called by the president, bypassing Congress, and the pact itself was
instantiated via a state of siege decree.31
In a very narrowly divided vote, the Supreme Court upheld the decree.32 It held that the
Assembly was a reflection of original constituent power – it reflected the will of the Colombian
people, who were capable of replacing their constitution through a process that was found
outside of the existing constitutional text. The Court also held that the theory of original
constituent power implied a constituent assembly that was unfettered by limitations imposed by
existing political institutions; it thus struck down the topical limitations on the Assembly’s
power.33 The Assembly subsequently carried out its role in a way that is consistent with a broad
vision of constituent power theory and would subsequently prove influential elsewhere. For
example, towards the end of its life it revoked the mandate of the Congress, called early elections
for its members in which neither current members of Congress nor members of the Constituent
Assembly would be eligible, and created a commission from within its membership to exercise

27
Mario Alberto Cajas Sarria, La historia de la corte suprema de justicia de Colombia, 1886-1991 (vol 2, U Los
Andes P 2015) 388.
28
Cajas, El control judicial 86.
29
Ibid 86-87.
30
John Dugas, ‘La Constitucion Politica de 1991: un pacto politico viable?’ in John Dugas (ed), La Constitucion de
1991: un pacto politico viable? (U Los Andes P 1993) 15, 38.
31
Ibid.
32
Decision No. 138 of Oct. 9, 1990.
33
Ibid.
legislative powers during the vacuum.34 The Assembly was thus not only a constitutional drafter,
but also asserted dominance over other institutions.
The electoral rules produced a pluralistic body, in which no one political force had a majority
and the presidency of the Assembly was shared between a Liberal, the head of the ex-guerilla M-
19, and a member of a breakaway faction of the Conservatives.35 Much of the text was thus
written through a high degree of consensus, although some major decisions, such as the
revocation of the Congressional mandate as well as certain structural decisions involving
electoral rules and the separation of powers, did produce a sharp political debate.36
The Ecuadorian constitution-making episode of 1998 is worth noting as an example of the same
basic dynamic: a negotiated use of constituent power theory. Like the Colombian case, the
Ecuadorian constitution of 1998 was the product of an atmosphere of political crisis. Ecuadorian
presidents in the 1980s and 1990s operated in an atmosphere of high party fragmentation and
polarization; the result was that presidents had only minority party support in Congress and many
had great difficulty constructing a working coalition.37 A culmination of these clashes between
executives and legislatures occurred in February 1997, when the populist and controversial
president Abdala Bucaram was removed from office by Congress in an irregular manner after
less than one year in office. Congress lacked the supermajority necessary to remove Bucaram by
impeachment, so it acted by simple majority, and based on the dubious grounds of the
president’s supposed mental incapacity.38 The removal occurred after widespread popular
protests led by indigenous groups and other social movements.
The Bucaram episode crystallized an already-present sense among the political elite that a
combination of the party system and balance of power between the president and Congress made
the country ungovernable.39 As in Colombia, the major political parties and movements from
across the ideological spectrum supported replacement, although some may have done so
strategically because it was perceived as popular or inevitable. The new interim president held a
referendum gauging support for an elected Assembly to replace the constitution and for certain
specific reforms; both the Assembly and most proposals garnered widespread popular support,
despite the fact that an Assembly was not textually stated as an available mechanism for
constitutional replacement.40 Based on that vote, the parties (pressured by social movements)
sought agreement on the rules under which an Assembly would operate.41

34
Elizabeth Ungar, ‘La reforma al congreso: Realidad o utopia?’ in John Dugas (ed), La Constitucion de 1991: un
pacto politico viable? (U Los Andes P 1993) 162, 186.
35
Dugas, ‘Constitucion politica de 91’ 38.
36
Negretto, Making Constitutions 187.
37
Andres Mejia Acosta, Informal Coalitions and Policymaking in Latin America: Ecuador in Comparative
Perspective (Routledge 2009).
38
Ibid 18.
39
Ibid 141.
40
Negretto, Making Constitutions 203-204.
41
Renata Segura & Ana Maria Bejarano, ‘Ni una asamblea mas sin nosotros! Exclusion, Inclusion, and the Politics
of Constitution-Making in the Andes’ (2004) 11 Constellations 217, 222-223.
Predictably, given the high level of polarization, they had less success than in Colombia at
reaching consensus; smaller and larger parties disagreed for example about the degree of
proportionality in the system. Still, the core agreement was fairly pluralistic -- the congressional
law governing the electoral rules was hammered out between larger parties from the center-left
and from the right, and provided for an open-list system.42 The system, coupled with a short
campaign, favored established politicians with known followings, who tended to come from
traditional parties.43 The result nonetheless was a highly fragmented Constituent Assembly in
which the largest party had only 30 percent of seats and eight parties had at least 4 percent of
seats.44 Some newer actors, such as indigenous organizations, were able to gain significant
support.
The Assembly broadly focused on increasing the power of the president, consolidating and
rationalizing the party system, and improving the image of Congress. The votes on many of these
proposals were controversial and tended to be decided through a series of shifting majority
coalitions (although the larger traditional parties won a number of key battles).45 The dynamics
of the Ecuadorian constitution-making process of 1998 was thus less consensual than that in
Colombia, but still quite pluralistic. The reforms nonetheless did little to improve governability,
and subsequent presidents wrestled with similar problems as their predecessors.46
B. Unilateral Break
In several other cases in recent Latin American history, constituent power theory was used as a
means for a political party or movement to bypass the opposition and to write a new constitution
unilaterally. This was the case in Venezuela in 1999 and Ecuador in 2008, both of which worked
from an electoral democratic starting point. It was also the case in Peru in 1993, although here
constitution-making occurred after President Fujimori had carried out an autogolpe that had
closed down the Congress and restructured the judiciary, and thus had made the regime
competitive authoritarian in nature.47
In these cases, as in the ones above, constituent power was used to place the constitution-making
process outside of the existing constitutional order. Indeed, the Colombian model appeared to
have an influence on many of these subsequent exercises. However, the cases reviewed here
were carried out in a very different context: in these cases, constituent power theory was
deployed in ways that evaded restraints that the political opposition might otherwise place on the
process. In Venezuela, for example, President Hugo Chavez won the presidency in 1998 as an
outsider to the existing political order – he ran for president as a sworn enemy of the two
dominant parties, promised to hold a Constituent Assembly to rewrite the existing constitution,
and had even risen to prominence by, as a younger Coronel, leading a failed military coup

42
Negretto, Making Constitutions 204-205.
43
Segura & Bejarano, ‘Ni una asamblea mas’ 223.
44
Ibid 222 tbl. 2.
45
Negretto, Making Constitutions 210 tbl. 7.3.
46
Mejia Acosta, Informal Coalitions 16 (arguing that some of these reforms actually worsened governance).
47
Steven R. Levitsky & James Loxton, ‘Populism and Competitive Authoritarianism: The Case of Fujimori’s Peru’
in Populism in Cas Mudde & Cristobal Rovira Kaltwasser (eds), Populism in Europe and the Americas (CUP 2012)
160.
against the regime.48 Chavez won the presidency in a period in which there was a broad social
sense that the old political regime had broken down due to a combination of economic crisis and
high levels of corruption. Nonetheless, he still faced opposition control of most key institutions,
including the Congress, Supreme Court, and many state and local governments.49
The existing constitution contained a clause allowing for its “total reform,” but this procedure
required approval in Congress. Rather than negotiating with an opposition-controlled Congress,
Chavez acted unilaterally to call a popular referendum on whether a Constituent Assembly
should be called, and the Supreme Court upheld this maneuver by articulating constituent power
theory. The Court maintained that the people had the power to carry out constitutional
replacement outside of the existing constitutional text.50 The Supreme Court struck down a
proposed referendum question that would have allowed Chavez to ask the public whether it
wanted to hold a Constituent Assembly subject to rules that would be written by the president
later. Instead, it forced Chavez to disclose his electoral rules in advance, holding that even use of
the constituent power was subject to some control from principles found in the existing
constitutional order, such as the authentic popular will.51 But it allowed Chavez to draft those
rules unilaterally, so long as they were presented to the public before rather than after the
referendum. The referendum passed decisively with over 80 percent of voters in favor, and the
electoral rules written by Chavez proved to be well calculated to maximize his support. His
forces would have fared quite well anyway, given that Chavez was popular, the opposition was
disorganized, and major opposition forces decided to boycott the referendum. But because of the
majoritarian tilt of the rules, Chavez candidates won about 93 percent of seats with 65 percent of
the votes, and completely dominated the resulting Assembly.52
The resulting dynamic was not one in which debate was completely absent; the Chavez coalition
was itself internally diverse. But the Chavistas had no need to negotiate with the few members of
the opposition who made it into the Assembly. The Constituent Assembly thus allowed the new
president to draft a new constitution without negotiating with a still sizable opposition.
Moreover, the Assembly wielded its constituent power to close down other institutions in which
the opposition still had power, effectively consolidating Chavez’s control.53 The Congress was
reduced to a rump commission and stripped of its authority to legislate over many key matters;
those legislative powers were transferred to the Assembly. The Supreme Court was eventually
closed by the Assembly. And the Assembly replaced key local officials as well. The Court
acquiesced in these maneuvers, essentially accepting the argument that the Assembly, as the
direct manifestation of the original constituent power of the people, was placed above all other

48
Kenneth M. Roberts, ‘Populism and Democracy in Venezuela under Hugo Chavez’ in Cas Mudde & Cristobal
Rovira Kaltwasser (eds), Populism in Europe and the Americas (CUP 2012) 136, 148-149.
49
David Landau, ‘Constitution-Making Gone Wrong’ (2013) 64 Alabama Law Review 923, 945.
50
Caso: Junta Directiva de la Fundacion para los Derecrios Humanos (Supreme Court of Justice, Political–
Administrative Chamber), in (1999) 77-80 Revista del Derecho Publico 56.
51
Caso: Gerardo Blyde, contra la Resolucion No. 990217–32 (Supreme Court of Justice, Political–Administrative
Chamber), in (1999) 77-80 Revista del Derecho Publico 73.
52
Segura and Bejarano, ‘Ni una asamblea mas’ 230.
53
Allan R. Brewer-Carias, Dismantling Democracy in Venezuela: The Chavez Authoritarian Experiment (CUP
2010) 58-60.
institutions of state.54 It thus could legislate at will and shut down or limit other institutions,
which were merely constituted powers subject to the popular will.55 This was the same argument
that had previously been used, in the very different context of Colombia, to revoke the mandate
of the Congress.
The cases of Peru in 1993 and Ecuador in 2008 show the same dynamic. In both countries, as in
Venezuela, electoral rules calling the Assembly and procedural rules under which it would
operate were written unilaterally by powerful presidents, rather than being negotiated with
Congress or other institutions. In Peru, President Fujimori called elections for a new Constituent
Assembly after the old Congress had been closed and Fujimori had thus arrogated legislative
power to himself. Many opposition parties boycotted the election and the electoral rules gave
Fujimori’s movement a majority of the Assembly with just under half of the votes.56
In Ecuador, there was basic popular agreement on the need for a constitutional replacement after
President Rafael Correa won election in 2006, since the prior constitution of 1998 had failed to
resolve the country’s pervasive governability problems or political instability. Correa, like
Chavez, had campaigned and won on a platform promising to replace the constitution, in an
atmosphere of overwhelming public distrust in the institutional order.57 The Congress
nonetheless was still controlled by the opposition, and indeed Correa’s own direct movement
refused to run candidates for congressional elections within an institution that it wanted to paint
as completely corrupt.58
The Congress initially resisted Correa’s plan for a referendum on a constituent assembly. The
opposition argued that under the text of the constitution, the Congress would need to approve
such a referendum. More broadly, it noted that the text did not provide any textual mechanism
for the calling of a Constituent Assembly.59 After Correa pressured the Congress and it faced
massive popular protests, it agreed to approve the president’s referendum, but expressly removed
powers it might otherwise have under constituent power theory to close down or limit other
institutions of state, and particularly of any power to dissolve the Congress.60 The president
nonetheless convinced the Supreme Electoral Tribunal to certify a version of the question that
restored the full constituent power of the Assembly and to drop any special protection for the
Congress; this was the version that the public approved by 81 percent of the vote.61

54
Caso: Vicepresidente del Congreso de la República vs. Asamblea (decreto 25-8-99) (Supreme Court of Justice,
Plenary Chamber), in (1999) 77-80 Revista del Derecho Publico 111.
55
A symbolic manifestation of this power came during one of the Assembly’s first sessions, when Chavez submitted
his continuance in office to the ratification of the Assembly– a maneuver through which he could legitimate its
sovereign power. The Assembly, predictably, ratified Chavez’s mandate. Landau, ‘Constitution-Making Gone
Wrong’ 945-946.
56
Levitsky and Loxton, ‘Populism and Competitive Authoritarianism’ 211.
57
De la Torre, Populist Seduction 186-188.
58
Catherine M. Conaghan, ‘Ecuador: Correa’s Plebiscitary Presidency’ (2008) 19 Journal of Democracy 46, 50.
59
Agustín Grijalva, Courts and Political Parties: The Politics of Constitutional Review in Ecuador (unpublished
Ph.D dissertation, 2010) 152.
60
Conaghan, ‘Correa’s Plebiscitary Presidency’ 51.
61
Ibid 52. This set in motion a dynamic that allowed Correa to gain control over several key institutions. The
Congress responded by passing a measure removing the head of the Electoral Tribunal; the Tribunal responded in
Correa’s movement and its allies won 80 seats in the 130-member Assembly, while the main
elements of the right-wing opposition fared quite poorly.62 The Correa-controlled Assembly
voted to approve articles with a simple majority vote, a maneuver expressly designed to avoid
the dynamic caused by supermajority rules in Bolivia’s more constrained assembly process
examined below.63 Like the Venezuelan Assembly, it also used its constituent power to shut
down other institutions. The Assembly dissolved the Congress and assumed legislative powers,
as well as shutting down several key institutions including the Attorney General, Comptroller,
and the superintendents of banks and companies.64
It is of course difficult to trace a firm causal link between process and outcome even in these
three cases. The Ecuadorian and Venezuelan constitutions, in particular, contained innovative
elements, including a number of creatively-drawn rights (in the Ecuadorian case) and new
mechanisms for popular participation (in the Venezuelan one).65 Nonetheless, all three
constitutions significantly increased presidential power.66 And all three left those presidents in an
environment where they faced significantly fewer constraints from competing political
movements. In short, constitutions written unilaterally at the behest of powerful presidents
seemed designed in part to consolidate the power of those individuals. Presidents in all three
countries also proved difficult to dislodge subsequently – Fujimori left power during his third
term in 2000 only after a major bribery scandal, Chavez eliminated term limits and died in 2013
after holding the presidency for nearly 15 years, and Correa left power in 2017 after three terms
and after pushing through an amendment abolishing presidential term limits (but which took
effect only after the 2017 election had been held).
II. Constitution-Making Inside the Existing Constitutional Order
In several other episodes of constitution-making in recent history, replacement occurred inside
the existing constitutional order and made use of the rules already found in that order. In
Argentina and the Dominican Republic, replacement was carried out by using ordinary
amendment rules found in the existing constitution; in Bolivia, perhaps the most interesting
recent case, the major players relied on a special constitutional replacement clause found in the
existing text. In these cases, the rules of the existing legal order effectively required negotiation
among major political forces, and hindered attempts by one political actor to impose a new

turn by removing and replacing 57 members of the Congress. These removed representatives filed a case in front of
the Constitutional Tribunal, which ruled in favor of most of them. However, the removal of the 57 legislators had
allowed Correa to form a majority in Congress, and this new majority in turn removed and replaced the members of
the Constitutional Tribunal, allowing Correa to establish control over that institution as well. Ibid; Grijalva, Courts
and Political Parties 153-154.
62
Conaghan, ‘Correa’s Plebiscitary Presidency’ 56.
63
Ibid 56-57.
64
Ibid 57.
65
Phoebe King, ‘Neo-Bolivarian Constitutional Design’ in Denis J. Galligan & Mila Versteeg (eds), Social and
Political Foundations of Constitutions (CUP 2013) 366.
66
Katja S. Newman, Constitutional Coups: Advancing Executive Power in Latin American Democracies (paper
prepared for presentation at the Center for the Study of Democracy, 7th Annual Southern California Graduate
Student Conference at University of California, Irvine, 2011) 27 tbl. 4.
constitution unilaterally. Nonetheless, even in these cases the constituent power doctrine has at
times emerged as a more or less credible threat by powerful actors to bypass existing procedures.
A. Constitution-Making by Ordinary Amendment Procedure
In both Argentina (in 1994) and the Dominican Republic (in 2010), constitution-making was
carried out through use of the normal amendment rules. In the case of the Dominican Republic,
sweeping changes to the existing constitutional text were carried out in the Congress itself, using
amendment rules found in the existing constitution.67 In Argentina, likewise, fundamental
changes were carried out through the rule of change found in the existing constitution of 1853
itself, which allowed either partial or total reform to be carried out via a two-thirds vote of
Congress, followed by the election of a special Constituent Assembly.68
In both of these cases, the changes were carried out through hard bargaining between major
political forces, rather than through the imposition of one dominant political force. Across both
cases, a desire for presidential reelection by incumbents (Leonel Fernandez in the Dominican
Republic and Carlos Menem in Argentina) emerged as the driving factor behind the desire for
significant constitutional change.69 But both presidents lacked the partisan support in Congress
needed to impose this change unilaterally, and thus constitutional change emerged as a product
of negotiation with other political forces.70 The resulting bargains contained some surprising
elements, in addition to making concessions on presidential terms. In Argentina, for example, the
constitution overhauled the judiciary and radically enhanced the status which it gave to human
rights treaties; in the Dominican Republic, it strengthened the Congress but also made
accountability institutions more susceptible to political influence.71
In the Dominican Republic, constitution-making was carried out directly in Congress; in
Argentina, a Constituent Assembly was elected but it was a very limited one, working off of a set
of instructions and topics previously agreed to by the government and main opposition party in
the Pact of Olivos and then passed by the Congress via the requisite two-thirds threshold, and
thus with only limited power to make changes.72 The Supreme Court subsequently confirmed the
limited and controlled nature of the process by striking down certain reforms agreed to by the

67
Marsteintredet, ‘Change and Continuity in Dominican Constitutions’ 230.
68
Constitution of Argentina (1853), art. 30.
69
Negretto, Making Constitutions, 148-149; Marsteintredet, ‘Change and Continuity in Dominican Constitutions’
230.
70
This does not mean that bargaining was carried out by consensus, just that major opposition parties were included
in both cases. In Argentina, for example, most small minority parties opposed the law by which a Constituent
Assembly was called. Negretto, Making Constitutions 159.
71
Miguel Schor, ‘The Once and Future Democracy: Argentina at the Bar of Constitutionalism’ in Denis Galigan &
Mila Versteeg (eds), The Social and Political Foundations of Constitutions (CUP 2013) 561, 572-574.
72
The Paraguayan experience in 1992 was similar, since the existing constitution of 1967 required the election of a
national constituent assembly for either an amendment or a “total reform” of its text. Nonetheless, in this case a
relatively divided dominant party, the Colorado party, won 55 percent of seats in the Assembly. This allowed for
negotiation on certain issues and a more democratic constitutional overall, although the Colorado party voted as a
block on key issues involving its own party powers and its relationship with the military. Marcial A. Riquelme &
Jorge G. Riquelme, ‘Political Parties’ in Peter Lambert & Andrew Nickson (eds) The Transition to Democracy in
Paraguay (St Martin’s Press 1997) 47, 57.
Assembly that it held to have exceeded the scope of the Assembly’s instructions.73 There was no
serious danger of working around formal procedures in either case, although Menem in
Argentina and his party did use some ideas perhaps drawn from constituent power theory. He
threatened, for example, to hold a supposedly non-binding plebiscite on whether a Constituent
Assembly should be held, in order to pressure the other side to reach an agreement.74
The high degree of legal continuity in these two cases and the fact that the existing constitutional
texts were not rewritten from scratch in fact raises difficult questions about whether these two
processes were in fact constitution-making episodes or merely packages of constitutional
amendment. The Dominican practice has been to promulgate a new constitution every time an
amendment has been approved, resulting in highly misleading statistics as to how many
constitutions the Dominican Republic has had (a number often cited of 38); in contrast, the
Argentine constitution in force is often still cited as being the Constitution of 1853. But in both
cases, the changes were fundamental and sweeping enough for experts to credibly label the
resulting products to be new constitutions rather than mere amendments.75
When do political actors choose to use the ordinary mechanisms of constitutional amendment
rather than extraordinary procedures? One significant driver seems to be the absence of major
crisis – neither Argentina nor the Dominican Republic was suffering from pervasive problems at
the time their processes were carried out, and constitutional change instead responded to ordinary
political pressures such as the desire of incumbents to stay in office. The absence of crisis
plausibly increased the ability to rely on ordinary political processes and lessened the ability of
leading politicians to bypass them. There are of course important potential drawbacks of
choosing this path. One is potentially decreased legitimacy due to a perception of reliance on
ordinary political mechanisms rather than special constitution-making bodies.76 Another is that
carrying out broad programs of public participation may be more difficult. The Argentine
process in particular was not very participatory, and the Assembly was mostly limited to
ratifying agreements made by party leaders elsewhere. However, the Dominican example, where
the Congress actually did make substantial efforts at popular outreach by appointing an expert
commission that carried out extensive efforts both to conduct education and gather feedback,
suggests that a fairly high level of public participation is possible even where a process makes
extensive use of more ordinary rather than exceptional procedures.77
B. Constitution-Making by Special Replacement Clause

73
Illeana Gomez, ‘Declaring Unconstitutional a Constitutional Amendment: The Argentine Judiciary Forges Ahead’
(2000) 31 The University of Miami Inter-American Law Review 93, 101.
74
His party also suggested that they might pass the reform fraudulently if necessary. Gabriel L. Negretto,
‘Constitution-making and Institutional Design: The Transformations of Presidentialism in Argentina’ (1999) 40
European Journal of Sociology 193, 217-219. The use of referenda as a device to make constitutions by bypassing
political blockages is frequent in comparative constitutional law. William Partlett, ‘The Dangers of Popular
Constitution-Making’ (2012) Brooklyn Journal of International Law 193.
75
Marsteintredet, ‘Change and Continuity in Dominican Constitutions’ 223; Negretto, The Durability of
Constitutions in Changing Environments, Working Paper 350, Kellogg Institute (2008) 27-28 n.17, at
https://kellogg.nd.edu/sites/default/files/old_files/documents/350_0.pdf.
76
Andrew Arato, Post-Sovereign Constitution-Making (OUP 2016).
77
Marsteintredet, ‘Change and Continuity in Dominican Constitutions’ 229.
A significant variation on the constitution-making as ordinary politics model occurred in Bolivia
between 2006 and 2009, where constitution-making was carried out by a specialized Constituent
Assembly using rules found in the existing constitution, but in a special constitutional clause
designed for replacing the existing constitution, rather than the normal rules for constitutional
amendment.
The replacement clause had been inserted into the Bolivian constitution in 2004, during a period
of social unrest known as the gas wars.78 It was supported by President Carlos Mesa, who took
power in 2003 after a previous president resigned under pressure. Mesa himself was forced to
resign in 2005, and the ensuing elections were won by Evo Morales. Morales won election as the
head of an insurgent movement of indigenous groups called MAS, seeking to carry out a
constitutional replacement. Morales faced a powerful and well-organized opposition centered in
the low-land east of the country; many of these groups also supported constitutional replacement,
although they had different goals. For example, while MAS wanted a plurinational definition of
the state and greater indigenous autonomy, the regional opposition in the natural gas-rich east
sought greater territorial autonomy and control over resources located there.79
Morales used the replacement clause found in the existing constitutional text, rather than seeking
change outside of the constitutional order. This clause required that the “total reform” of the
existing constitution be carried out by a Constituent Assembly triggered by a special law passed
by two-thirds of Congress, and which could not be vetoed by the president.80 The supermajority
requirement forced MAS to negotiate with the opposition, since neither side possessed the
requisite two-thirds super-majority in Congress.
In March 2006, the two coalitions agreed on and passed the law convoking the Assembly. The
law created an electoral system that made it likely both MAS and the opposition would receive
substantial representation.81 The law also provided that the text of the constitution would be
approved by a two-thirds majority of those present in the Assembly. This provision was
significant in light of the election results, where MAS received a majority of seats but the
opposition received well more than the one-third necessary to block MAS from receiving the
requisite supermajority.82 Further, the law provided that once the requisite threshold had been
reached, the president would convoke a referendum to approve the final text, and it gave the
Assembly one year in which to complete its work.83
Because of the highly politicized dynamic of the Assembly, these rules were challenged almost
from its inception. Morales and his allies in MAS made a series of arguments that they were not

78
Landau, ‘Constitution-Making Gone Wrong’ 952.
79
Eduardo A. Gamarra, ‘Bolivia: Evo Morales and Democracy’ in Jorge I. Dominguez & Michael Shifter (eds)
Constructing Democratic Governance in Latin America (3d ed., John Hopkins Press 2008) 124, 138-140.
80
Law No. 2631, Feb. 20, 2004, art. 232.
81
210 of 255 members were elected in districts with a magnitude of three – the winner of each district would receive
2 seats, while the second-place movement would get 1. The remaining 45 members were elected at the departmental
level through elections in which the district magnitude was 5; the first place winner there received 2 members, while
the second, third, and fourth place finishers all received one. See Law 3364 of 2006, Mar. 6, 2006, art. 14.
82
Fabrice Lehoucq, ‘Bolivia’s Constitutional Breakdown’ (2008) 19 Journal of Democracy 110, 117.
83
See Law 3364 of 2006, Mar. 6, 2006, art. 25.
bound by the restraints placed on the Assembly by the law because, once convoked, the
Assembly exercised original constituent power. Morales, for example, stated that the Assembly
was “above all of the constituted powers, but submitted to the social movements.”84 The
Assembly was also challenged by the extraordinarily high level of popular mobilization
surrounding the proceedings. Both sides organized huge protests and mobilizations in Sucre,
where the Assembly was meeting. When the members of the Assembly went to other cities to
meet and gather popular opinions, they were also met by a highly mobilized citizenry, which at
times descended into violence.85 A final draft effectively written by MAS was approved only
after the Assembly had been moved to another city (after previously meeting in a military
compound in Sucre) and in sessions marred by significant procedural irregularities.86
Throughout this messy process, the Congress monitored the Assembly and made revisions to the
law convoking it. For example, when it appeared impossible for the Assembly to meet its one-
year deadline, the Congress extended the time for it to act.87 The Congress also amended the
convoking law to provide that Congress, and not the president, would now have the
responsibility of calling the referendum to approve the final text by a two-thirds vote.88 The
opposition argued that the approval of the constitution by the Assembly had been illegal, and
therefore refused to approve the law scheduling the approval referendum. This impasse broke in
February 2008, when massive social mobilizations prevented the opposition from entering the
Congress, thus allowing MAS to approve the law with the requisite super-majority. This time the
Electoral Tribunal stepped in, nullifying the new law on technical grounds.89
MAS then negotiated with the opposition, and the two sides agreed on a compromise draft in
October 2008, which Congress then put up for a referendum via approval of a new law. The text
likely favored MAS overall, but did make important concessions to the opposition in order to get
approval. The final text was approved by a referendum in January 2009, after a three-year
process, with 61 percent of the vote in favor of approval.90 The replacement clause found in the
existing constitutional text arguably helped to guide participants towards a more negotiated and
less unilaterally imposed constitution than a pure theory of constituent power, even though those
constraints were tested throughout the long process of writing the constitution by assertions of
original constituent power, by popular mobilization, and by elite shenanigans. In the end, though,
a difficult process in Bolivia produced a fairly inclusive result, where the opposition received a
real say into the content of the text.

84
Landau, ‘Constitution Making Gone Wrong’ 953-954.
85
Ibid 954-955.
86
Ibid 956; Lehoucq, ‘Bolivia’s Constitutional Breakdown’ 119.
87
Lehoucq, ‘Bolivia’s Constitutional Breakdown’ 118-119.
88
Landau, ‘Constitution Making Gone Wrong’ 956.
89
Resolucion No. 013/2008, May 7, 2008 (National Electoral Tribunal). The referendum bundled several questions
together – some of these presented the competing text of certain articles on which no agreement had been reached,
along with approval of the new draft as a whole. The Tribunal held that this was illegal because it violated the terms
of the law convoking the Assembly: that law was amended by Congress to allow these referenda to occur
simultaneously minutes after the law convoking the referendum had been approved.
90
Landau, ‘Constitution-Making Gone Wrong’ 957.
 IV. Evaluating the Constituent Power Doctrine
What shines through in the survey above is first the sheer diversity of constitution-making in the
past several decades in the region: most constitution-making in Latin America since 1990 has
had a democratic starting point, and yet the models of constitutional replacement that have been
used are quite diverse. That said, the survey also highlights the broad importance of constituent
power theory to constitution-making. In a number of cases, this doctrine has allowed political
elites to step outside of the constraints of the existing constitutional order to rewrite their
constitution. In other cases, even when the doctrine has not been deployed, it has nonetheless
exercised notable influence on the process.
The aim here is not to give a full accounting of constituent power theory, but merely to clarify
and evaluate the main practical functions played by it in recent Latin American constitution-
making processes. Colon-Rios makes a normative rather than empirical argument that constituent
power theory is best understood as emphasizing popular participation and engagement in
constitution-making.91 But his analysis also shows that, historically, the doctrine has more
commonly been used for other ends (such as to legitimize elite power grabs). The evidence in
this chapter, at any rate, offers no empirical support for a relationship between constituent power
and popular participation: as noted above, most modern constitution-making experiences have
been participatory, whether or not they have been restrained by the existing constitutional order.
The main functional significance of the doctrine as a rhetorical tool seems to be elsewhere.
One important function has been to allow politicians to rewrite their constitutions in
circumstances where the existing political rules would otherwise prevent them from doing so. In
other words, it sometimes allows politicians to seek a safety valve from a deep political crisis
that could not otherwise be escaped under the current legal rules. The clearest recent application
of this safety valve theory occurred in the Colombian case, where political actors could plausibly
claim that they had no other way to seek fundamental change within a “blocked society.” Indeed,
the Colombian case proved to be exceptionally influential on subsequent cases, especially in the
other Andean countries.
But the Colombian case was exceptional in fundamental respects, limiting its generality. The
main issue is the particular role that the Supreme Court played in creating the “blocked society,”
especially through the application of doctrines that limited constitutional change. The problem is
not that it deployed a variant of the unconstitutional constitutional amendment doctrine, but
rather that it actively prevented any attempt to create an alternative mechanism for changing the
constitution. The implication was that a replacement clause regulating the constitution-making
process would likely itself be a constitutional violation. In the years immediately after the
creation of the National Front, such a vigorous mode of enforcement might have been defended
as a way to enforce the bipartisan pact. But as time went on, and especially after the Front itself
formally ended, the effect of this doctrine was to ossify the system and essentially force actors to

91
Colon-Rios, ‘Constitution Making and Constituent Power.’
use constituent power theory; they could not simply amend the constitution to create a new
constitution-making procedure.92
In contrast, in all of the other cases where the doctrine was deployed, the constitution likely
could have been amended to add a Bolivian-style replacement clause. In Ecuador in 1998, for
example, there is little reason why the agreement leading to the calling of the Assembly, which
was enshrined legislatively, could not have been instead included as a replacement clause in the
constitution. The decision to proceed extra-constitutionally was seemingly taken because
political actors thought it made no difference, not because a constitutional amendment would
have been impossible to achieve.
The dominant practical function of the doctrine outside of the extraordinary Colombian context
has thus been to allow one political actor or force (often an incumbent president) to bypass
negotiations with other political forces. In Ecuador in 2008 and Venezuela, constituent power
theory allowed presidents to proceed unilaterally, obviating any need to negotiate with Congress.
This is most obvious in the Ecuadorian case, where Congress (under pressure) actually settled on
a law allowing Correa to hold a referendum, but one that restrained the potential Constituent
Assembly’s powers over existing political institutions in ways that he did not like and
subsequently disregarded. In Venezuela, the existing constitution included a “total reform”
procedure, but that procedure required approval by Congress in addition to a referendum, so
Chavez did not want to use it. In Venezuela, just as in Ecuador, it seems fairly unlikely that the
alternative to unilateral convoking of the Assembly would have been no constitution-making.
Chavez won election with a core priority of replacing the old constitution, and there was a broad
popular consensus by that point on the need for replacement. Forcing negotiation with Congress
would surely have changed the shape of the process and composition of the Assembly, but likely
would not have prevented replacement from occurring at all.
That this is the major function of constituent power theory becomes even clearer when one
considers cases where elements of the doctrine were threatened, even if not ultimately deployed.
In Bolivia, as noted above, supporters of Morales at several key points made arguments about the
Constituent Assembly’s original constituent power in order to seek relief from the super-majority
requirements within the Assembly and the congressional control over the Assembly’s mandate.
The effect of these changes would have been to abolish any need to negotiate with the
opposition. In Argentina, likewise, at points where negotiations between the party of incumbent
president Carlos Menem and the opposition party stalled, Menem made at least vague threats to
take his case directly to the people through a non-binding referendum.
The implications of this finding for constitutional theory are potentially rich but also murky.
Some recent work has suggested that theorists focus on improving or fleshing out constituent
power theory in order to better differentiate the conditions under which its deployment matches

92
Another respect in which the Colombian case was exceptional was in the split between the parties themselves and
their representatives in Congress. The problem is not just that the political order was illegitimate (which is
common); it was rather that because of the effect of National Front institutions and practices, the Congress itself was
seen as particularly illegitimate, more than political elites as a whole. In this context, an extra-legal (but still
multiparty) pact made particular sense.
the authentic will of the people.93 Such an attempt, of course, holds promise against the kinds of
problems identified here, but it is both conceptually difficult and practically challenging at the
level of enforcement.94 It may also be a largely unnecessary project. A simpler solution might be
to encourage would-be constitutional replacers to rely on a preexisting replacement procedure, or
to craft a new one, rather than moving outside the existing constitutional framework. And such
provisions, if well designed, may have important virtues – they may encourage dominant actors
to negotiate during constitution-making, rather than imposing a constitution unilaterally, and
they may help to stabilize the constitution-making process. The supermajority requirements
underpinning the Bolivian replacement clause, for example, were consistently in danger of
breaking down, but ended up providing a framework under which negotiated constitution-
making between the regime and the opposition did occur.
This is not to say that all replacement clauses have these virtues; these clauses can of course be
written in ways that thwart rather than encouraging multi-party negotiation.95 An extreme
example is the 1999 Venezuelan constitution, which has a provision stating that the “people of
Venezuela” wield “original constituent power” and can use that power to write a new
constitution. The constitution also states that the “initiative to convoke” a Constituent Assembly
can be taken by the president alone, along with various other actors.96 This provision thus
potentially allows a president to avoid negotiations with other institutions of state when
triggering constitution-making, and indeed President Nicholas Maduro wielded this clause
unilaterally in 2017 to call a new Constituent Assembly against the wishes of an opposition-
controlled Congress and without holding a prior referendum to gauge support for the process.97
The Venezuelan clause was obviously inspired by the way in which the 1999 constitution itself
was written – it is a replacement clause deeply imprinted with constituent power theory. The new
Assembly has severely exacerbated rather than ameliorating Venezuela’s deep social, economic,
and political crisis, and the main intent seems to be to weaken the opposition and aid Maduro in
hanging onto power by centralizing political power and by removing opposition-held political

93
Joshua Braver, ‘Hannah Arendt in Venezuela: The Supreme Court Battles Hugo Chavez Over the Creation of the
1999 Constitution’ (2016) 14 International Journal of Constitutional Law 555; Kim Lane Scheppele,
Unconstitutional Constituent Power (unpublished manuscript, on file with author).
94
David Landau & Rosalind Dixon, ‘Constraining Constitutional Change’ (2015) 50 Wake Forest Law Review 878-
879 (emphasizing practical difficulties); Mark Tushnet, ‘Peasants with Pitchforks, and Toilers with Twitter:
Constitutional Revolutions and the Constituent Power’ (2015) International Journal of Constitutional Law 639, 651-
53 (arguing that constituent power doctrine is best understood as a conceptual tool of legitimation rather than a
sociological phenomenon).
95
The constitutions of Colombia, Ecuador, and Bolivia also include replacement clauses explicitly empowering
Constituent Assemblies to replace their constitutions, and all of these clauses were influenced by constituent power
theory. The Colombian clause requires congressional passage of a law by absolute majority in order to convoke a
referendum on whether to call an Assembly; the Ecuadorian and Bolivian clauses allow the president to bypass the
legislature, although they require prior approval in a referendum before the Assembly can be called.
96
Constitution of Venezuela (1999), arts. 347-349.
97
The argument is not the Assembly and its actions have been legal under the constitution, but more modestly that
the replacement clauses provided the basic justification for its existence. For an argument that the convocation of the
Assembly was unconstitutional on various grounds, see José Ignacio Hernández G., ‘Symposium on “Venezuela’s
2017 (Authoritarian) National Constituent Assembly”–Pursuing Constitutional Authoritarianism’ International
Journal of Constitutional Law Blog, Sept. 1, 2017, at: http://www.iconnectblog.com/2017/08/symposium-on-
venezuelas-2017-authoritarian-national-constituent-assemblyjose-ignacio-hernandez-g.
leaders, rather than actually drafting a new constitution.98 A better-designed clause, one
incentivizing negotiation with the opposition, might in contrast have been helpful as an exit from
the Venezuelan crisis.
V. Conclusion
This chapter argues that constituent power theory is significant in modern Latin American
constitution-making, but also that its main rhetorical function for participants – allowing
insurgent political elites to bypass the need for negotiation with opponents – is deeply troubling.
An approach that emphasizes legal continuity with the existing constitution (at least with the
understanding that elites can use existing procedures to add replacement clauses to their
constitution) might better promote negotiated constitution-making. Whether and when negotiated
constitution-making might be a negative rather than positive thing is a question that cannot be
conclusively tackled here. From one perspective, the use of constituent power theory for
insurgents such as Chavez and Correa to avoid negotiating with a delegitimized opposition
representing the old order was a virtue, not a vice, because it allowed them to negate the power
of delegitimized and corrupt elites. But leading theorists of transition from authoritarian to
democratic orders have tended to argue, for a long time now, that negotiating or pacting even
with very bad actors representing an authoritarian regime will often improve outcomes, and that
failure to do so may result in instability or even a return to a form of authoritarianism.99 If that
lesson is true in the authoritarian case, then it would seem to be even more true in cases of
democratic constitution-making like those so common in recent Latin American history, where
even a spent or corrupt opposition has much more moral claim to a seat at the table. The use of
constituent power theory in Latin America has tended to push political actors away from
negotiated constitution-making; in that sense, it may be best to move beyond it.

98
Ibid.
99
Much of this work is distilled in the work of Andrew Arato, for example Post-Sovereign Constitution-Making.