Hugo Chavez’s Constitutional Legacy

After his recent death, Hugo Chavez’s legacy is being widely debated. Those on the right see his death as a chance for Venezuelans to emerge from repressive dictatorship – for instance, Republican Senator Marco Rubio has argued that Chavez’s death is an opportunity to “turn the page on one of the darkest periods in its history and embark on a new, albeit difficult, path to restore the rule of law, democratic principles, security and free enterprise system in a nation that deserves so much better than the socialist disaster of the past 14 years.” Those on the left mourn his death. Sean Penn lamented that the “people of the United States lost a friend it never knew it had. And poor people around the world lost a champion."

Less well known, however, is Chavez’s constitutional legacy. Chavez leaves the Venezuelan constitution with a textual basis for populist constitution-making that has been a favored argument of charismatic dictators since the French Revolution.

The Revolutionary Dictatorship of the “People”

This populist constitution-making tradition has its origins in the French Revolution. In 1789, an obscure French clergyman argued that the French people possessed the “constituent power” (pouvoir constituant) to remake the constitutional system. To do this, he argued that an extraordinary body of the people’s elected representatives—a constituent assembly—should establish a new constitutional system of government. This constituent assembly was the ultimate “free radical” of politics: Bearing the limitless power of the “common will of the nation itself,” it—and the leader that controlled it—would be superior to any pre-existing law or institution. In the years that followed, the allure of such concentrated popular power has proven irresistible to aspiring dictators.

In the late 1990s, Hugo Chavez joined this list. Hours after being sworn in as president in 1999, Chavez issued a decree calling for a referendum on a constituent assembly to rewrite the Venezuela constitution. Opponents immediately challenged this decree in court, arguing that existing constitution required the legislature to call such a referendum. The Venezuelan Supreme Court rejected this argument, upholding Chavez’s power to call a referendum because the people’s constituent power is “superior” to the existing constitution. In a subsequent decision, however, the court backed away from this reasoning, holding that if the people approved a constituent assembly, it would be “bound to the spirit of the constitution in force, and therefore is limited by the fundamental principles of the democratic state of law.”

After winning the referendum and successfully gerrymandering a majority in the Constituent Assembly, Chavez ignored this subsequent ruling completely. Calling the vote a “home run with the bases loaded,” Chavez declared the Constituent Assembly to embody the limitless sovereign power of the people. He argued that “neither the president nor Congress nor the Supreme Court, which are the maximum representatives of the constituted powers, can contrive to place themselves above, or put into a subordinate position, a sovereign elected assembly.'' To prove this point, he placed his own presidency at the mercy of the Constituent Assembly, retaking the oath of office after the Constituent Assembly “re-elected” him president. Chavez was now in control of the ultimate “free radical” in Venezuela politics.

The judiciary tried to beat back these claims of ultimate power. Chief justice of the Supreme Court, Cecilia Sosa Gomez, argued that the Constituent Assembly’s responsibility was to draw up a new constitution and not to destroy existing institutions. These arguments, however, were too late. Soon after, the Constituent Assembly considered and approved a “national declaration of emergency” that authorized it to reshape Venezuela’s existing government. The Constituent Assembly fired a number of judges for “corruption” and replaced them with pliant new ones. The assembly next neutered the existing Venezuelan legislature, reducing it to a largely powerless body that rubberstamped the actions of the Constituent Assembly.

Members of the legislature challenged these actions in the Supreme Court. A reshaped Supreme Court accepted Chavez’s argument that the Constituent Assembly stood above above the existing legal order. Chavez’s coup had succeeded. He used his unfettered control over Venezuelan politics to push through a new constitution in December 1999 that strengthened the presidency at the expense of the legislature.

Constitutional Charisma

This constitution is still in force today. Chavez’s revolutionary populist arguments are now part of the text. Article 347 states that “the original constituent power rests with the people of Venezuela” and that this power can be exercised by “calling a National Constituent Assembly for the purpose of transforming the state, creating a new juridical order and drawing up a new constitution.” Article 349 of the constitution explains that “[t]he existing constituted authorities shall not be permitted to obstruct the Constituent Assembly in any way.”

These provisions are an uneasy reminder of the continuing threat of charismatic dictatorship to existing rules and institutions. With the “free radical” of Venezuela politics—the Constituent Assembly—enshrined in the text, Chavez leaves a problematic legacy for those hoping a post-Chavez Venezuela will establish “a government of laws and not men.”