The Transformative Potential of Constituent Power: A Revised Approach to the New Latin American Constitutionalism

• DOI: 10.1177/0094582X18810533
• Published date: 01 November 2019
• Author: Carys Hughes
• Date: 01 November 2019
• Subject Matter: Articles

LATIN AMERICAN PERSPECTIVES, Issue 229, Vol. 46 No. 6, November 2019, 73–91

DOI: 10.1177/0094582X18810533

© 2018 Latin American Perspectives

73

The Transformative Potential of Constituent Power

A Revised Approach to the New Latin American

Constitutionalism

by

Carys Hughes

The processes of constitutional change and resultant constitutional models initiated in

Venezuela, Bolivia, and Ecuador since the late 1990s have been celebrated for offering a

democratic form of constitutionalism. The new Latin American constitutionalism prom-

ises to resolve the democratic deficit in traditional constitutional theory by institutional-

izing spaces for citizen-led constitutional change. However, events in which actors outside

the state or without the wider support of the state have attempted to initiate similar pro-

cesses of constitutional transformation suggest a problem with current theories. This is a

residual bias toward state actors and a tendency to underestimate the power of extrainsti-

tutional actors in these processes. By reconceiving the central concepts of “constituent

power” and “constitutional process,” an account of the new Latin American constitution-

alism is possible that both resolves remaining tensions in the literature and illustrates the

relevance of this phenomenon to struggles across the continent.

Los procesos de cambio constitucional y los modelos constitucionales resultantes

iniciados en Venezuela, Bolivia y Ecuador desde fines de la década de 1990 se han celebrado

por ofrecer una forma democrática de constitucionalismo. El nuevo constitucionalismo

latinoamericano promete resolver el déficit democrático en la teoría constitucional tradi-

cional mediante la institucionalización de espacios para el cambio constitucional

liderado por los ciudadanos. Sin embargo, eventos en los cuales actores fuera del estado

o sin el apoyo más amplio del estado han intentado iniciar procesos similares de trans-

formación constitucional sugieren un problema con las teorías actuales. Este es un sesgo

residual hacia los actores estatales y una tendencia a subestimar el poder de los actores

extrainstitucionales en estos procesos. Al reconcebir los conceptos centrales del “poder

constituyente” y el “proceso constitucional,” es posible hacer un recuento del nuevo

constitucionalismo latinoamericano que resuelve las tensiones restantes en la literatura

y demuestra la relevancia de este fenómeno para luchas en todo el continente.

Keywords: Seventh ballot, Fourth ballot box, New Latin American constitutionalism,

Constituent power, Democracy

In 1990, following a decade of failed attempts to reform the constitution by

civil society and governments alike, a group of Colombian students organized

an unofficial, clandestine ballot on the creation of a Colombian constituent

Carys Hughes recently completed a Ph.D. on the use of a-legal space as a political strategy in the

School of Politics and International Relations at Keele University, U.K. She is grateful to Joel

Colón-Ríos and to Illan rua Wall for their comments on this article.

810533LAPXXX10.1177/0094582X18810533Latin American PerspectiveHughes / The Transformative Potential Of Constituent Power

research-article2018

74 LATIN AMERICAN PERSPECTIVES

assembly. This “seventh ballot” took place through the hijacking of the official

elections for Congress and other public posts and had no recognized legal

basis. However, millions of Colombians participated, and the event is credited

with leading to the creation of a constituent assembly and the new constitution

of 1991. More recently, shortly before the coup that removed him from power

in 2009, Honduran President Manuel Zelaya initiated plans for an unofficial

and nonbinding “national poll” on the creation of a constituent assembly to

rewrite the Honduran constitution. Despite Zelaya’s protestations that this

“fourth ballot box” was merely a public opinion poll, which lacked binding

implications (CNN, 2009), the initiative was met with fierce opposition from

Congress, the courts, and the military. On the day it was due to take place,

Zelaya was arrested by the army for treason, abuse of authority, and usurpation

of functions and replaced by an interim government (Cassel, 2009). These

events are not normally understood as connected. However, it is argued here

that they are best viewed as examples of a broader phenomenon that can be

identified across Latin America. In the absence of institutional channels, actors

attempt to force an opening in the constituted order for what might be under-

stood as an expression of constituent power in order to initiate a process of

constitutional transformation.

This article considers the implications of these events, interpreted in this

way, for the theory and understanding of the new Latin American constitution-

alism,1 which describes the processes of constitutional change and resultant

constitutional models in Venezuela, Bolivia, and Ecuador. The constitutional

experiments under way in these countries have been championed in the con-

stitutional-law literature as offering a solution to the democratic deficit in tra-

ditional constitutionalism by operationalizing and institutionalizing the

concept of the “constituent power of the people” (Colón-Ríos, 2012; Viciano

and Martínez, 2010). It is argued here that the Colombian seventh ballot and

Honduran fourth ballot box are expressions of the same broad phenomenon as

that which has taken place in Venezuela, Bolivia, and Ecuador and that this is

significant for the theory of and research into the new Latin American consti-

tutionalism. It builds on existing theory and underlines its relevance to strug-

gles across the continent while suggesting limitations to the framework through

which the new Latin American constitutionalism is currently understood. The

new Latin American constitutionalism is intended to recognize the role of

extrainstitutional actors in the constitutional process. However, as I will show,

these case studies suggest a residual tendency to privilege state actors and for-

mal political spaces and a failure to fully recognize the potential role and agency

of nonstate actors in processes of constitutional transformation. Analysis of the

seventh ballot and the fourth ballot box helps to draw out a revised account of

the constitutional process at stake that can better explain these events and help

to resolve persisting tensions and ambiguities in current theory.

In the first section I provide some theoretical and historical context with a

brief discussion of the processes of constitutional change that have taken place

in parts of Latin America in the past two decades and how they have been

theorized. In the following two sections I describe the case studies—the

Colombian seventh ballot and the Honduran fourth ballot box—in more detail

and highlight their resonance with the new Latin American constitutionalism.