The Paper-Thin Constitutions: Paths to Authoritarianism in the United States and Venezuela

• Author: Jesus A. Rodriguez
• Position: Georgetown University Law Center (GULC), J.D. 2022; Global Law Scholar, GULC; Senior Articles Editor, The Georgetown Law Journal
• Pages: 1519-1549

The Paper-Thin Constitutions:

Paths to Authoritarianism in the United States

and Venezuela

JESUS A. RODRIGUEZ*

“I swear before God, before the fatherland, and before my people, that upon

this moribund constitution, I will enforce and propel the necessary democratic

transformations so that the new republic may have a magna carta appropriate

to a new age.”

–Hugo Cha

´vez

1

In his inaugural address, President Joe Biden praised the “resil-

ience of our Constitution”for defeating a riotous mob that attempted

to overrun the Capitol and stop the certification of Electoral

College votes that declared him the victor in the 2020 election. But

constitutionalism itself can be a path to authoritarianism, and old

constitutions are just as ripe for tyrannical exploitation as new

ones. This Note is the first to compare U.S. and Venezuelan consti-

tutional design to demonstrate how liberal-democratic constitutions

can facilitate partisan institutional capture and allow authoritari-

anism to take root. In the United States, constitutional reverence

alone will not prevent another crisis in 2024, and dismissing these

efforts to undermine the rule of law as the thing of “banana repub-

lics,”as public officials and scholars have done, wastes an opportu-

nity to identify the path that pulled American democracy to the

brink.

Instead of dismissing the Venezuelan case as too dissimilar from

the American one, I argue that both constitutional architectures

allowed an elected president to capture the legislature, pack the ju-

diciary, and delegitimize the credibility of elections under the guise

of popular sovereignty through distinct paths. Necessary U.S. fed-

eral reforms can prevent another crisis in 2024, but because of

the Electoral College and other minoritarian work-arounds, state

reforms may be more effective in guaranteeing adequate democratic

* Georgetown University Law Center (GULC), J.D. 2022; Global Law Scholar, GULC; Senior

Articles Editor, The Georgetown Law Journal.©2022, Jesus A. Rodriguez. This Note benefited

immensely from thoughtful feedback by Robin West and Yvonne Tew at GULC, as well as

Rachel E. López, Yuvraj Joshi, Aziz Rana, Aziz Huq, Evan Bernick, and Mark Tushnet. I am

especially grateful to my colleagues, the editors of The Georgetown Law Journal, for their labor

with this piece. Translations of Spanish sources into English, as well as any errors of fact and

law, are mine.

1. TeleSur tv, Venezuela recuerda hoy la primera juramentacióndeChávez,Y

OUTUBE, at 0:51–1:19

(Feb. 2, 2013), https://www.youtube.com/watch?v=cnSIJrhzeJc.

1519

representation. Legal safeguards to ward off constitutional exploi-

tation have to be cemented in place—as the election of 2020

showed, relying on abstract norms and shared ideals is insufficient.

TABLE OF CONTENTS

INTRODUCTION..................................................... 1520

I. VENEZUELAN CONSTITUTIONAL DESIGN AND MANIPULATION . . . . . . . . . . 1524

A. A NEW CONSTITUTIONAL PROJECT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1524

B. INSTITUTIONAL CAPTURE IN SERVICE OF THE PARTY. . . . . . . . . . . . . 1527

C. ELECTORAL CONTROL AND ITS AFTERSHOCK. . . . . . . . . . . . . . . . . . . 1530

II. AMERICAN CONSTITUTIONAL DESIGN AND MANIPULATION . . . . . . . . . . . . 1534

A. MINORITARIAN CHECKS AND BALANCES . . . . . . . . . . . . . . . . . . . . . . . 1535

B. CONSTITUTIONAL EXPLOITATION AND THE 2020 ELECTION . . . . . . . . 1538

C. THE FIRST VIOLENT TRANSFER OF POWER . . . . . . . . . . . . . . . . . . . . . 1542

III. THE URGENCY OF DEMOCRATIC REFORM.......................... 1544

CONCLUSION...................................................... 1547

INTRODUCTION

Jenna Ryan is a fifty-one-year-old real estate agent from Frisco, Texas,

and a person of interest in a wide-ranging federal investigation. On January

6, 2021, Ryan took a private plane from Texas to Washington, D.C., to par-

ticipate in a seditious insurrection against the U.S. government. She filmed

herself packed into a crowd of supporters of President Donald Trump push-

ing into the Capitol building, and posted those videos online. Her stated

goal, as well as that of her thousands of compatriots gathered there, was to

have Congress overturn the results of the 2020 election, from which

President Joe Biden had emerged victorious. Many of them threatened vio-

lence against members of Congress, who had to be cloistered together in an

undisclosed location because of grave threats to their safety. The insurrec-

tion left the Capitol damaged, five dead, and many more injured, as well as

a deep gash in U.S. democracy as the process to certify the winner of the

election was interrupted. Ryan faced a prison sentence for federal criminal

charges related to disorderly conduct at the Capitol and knowingly entering

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