(This opinion editorial was first published in Lawfare on March 18, 2019.)
In the 1970s, Venezuela was among the richest countries in the world, and, uniquely for Latin America, it maintained a robust constitutional democracy with peaceful transfers of power. Political scientists wondered whether something special was brewing in the South American country; some even dubbed it “Venezuelan exceptionalism.” Yet, only a few decades later, Venezuela suffers from a brutal dictatorship that has dismantled all democratic institutions and has created a humanitarian and economic crisis of disastrous proportions.
How, exactly, did this institutional collapse happen? Much of it, of course, is due to Hugo Chavez’s misguided economic policies and his penchant for nationalizing every productive industry in the country. But a lot of it is also due to the development of radical constitutional theories that slowly overthrew Venezuela’s democratic regime.
Chavez’s dictatorial ambitions began in the 1980s and 1990s, when Venezuela’s democracy was going through a period of relative decay. As oil prices dropped in the mid-1980s due to declining consumption and increased Mexican and North Sea production, the Venezuelan oil state began to falter. By 1998, oil prices had slumped to just $11 per barrel, a far cry from their heights in the 1960s and 1970s, when Venezuela enjoyed an oil bonanza. With an economy almost entirely dependent on oil, Venezuela’s rentier state fell into decline and both poverty and inequality increased.
In that moment of crisis stepped in presidential candidate Hugo Chavez, a military demagogue ready to exploit existing discontent. Chavez had gained fame in 1992 for leading a failed military coup against an elected government—part of a broader effort to impose a Cuban-like socialist dictatorship in Venezuela. After receiving a pardon that released him from prison, Chavez decided to pursue the presidency (and dictatorship) through electoral politics.
Standing in his way, however, were two barriers. First, Venezuela’s 1961 constitution was designed to be anti-authoritarian. Among other things, the constitution followed the American model of dividing power among a bicameral legislature, a supreme court and a president. Unlike the U.S. Constitution, however, the Venezuelan Constitution also prohibited immediate presidential re-election (allowing only for the possibility of two nonconsecutive five-year terms with a 10-year interruption). This immediate re-election prohibition was seen as a wall against would-be dictators.
To make these restrictions nearly insurmountable, the constitution specified in Articles 245-248 two onerous methods of change—amendment or general reform. Both methods gave Venezuelan Congress the exclusive role to begin the process, required congressional majority votes, and, in the case of general reform, a supermajority vote and subsequent referendum. The president had almost no role in the process and was indeed explicitly prohibited from opposing amendments.
Second, even if Chavez could win the presidency, congressional elections were scheduled a month before the presidential vote. A Congress elected a month before Chavez’s own election and dominated by traditional political parties was likely to oppose any reforms that threatened its power. And there was reason to believe Congress could successfully stop an overweening executive because only a few years earlier, in 1993, the legislature had actually impeached and removed President Carlos Andrés Pérez. This precedent, and Congress’s otherwise powerful constitutional role, presented Chavez with a significant roadblock.
In the face of an anti-authoritarian constitution and an opposition-controlled Congress, Chavez ran on a platform of constitutional reform. This was odd given that there was no reason to believe that Venezuela needed a new or modified constitution—except, perhaps, from the point of view of a rising autocrat who wishes to consolidate power. In speech after speech, Chavez called for a constitutional assembly that would be unconstrained by existing organs of power. Pursuant to this plan, on the first day of his presidency, Chavez demanded a referendum to ask the people directly whether to call for a “constitutional convention,” an unconstitutional proceeding found nowhere in the 1961 constitution. Despite the lack of any constitutional support for this type of plebiscite, Chavez claimed that the people, through a referendum, could overthrow an existing constitution.
This was a radical theory that in many ways rendered constitutional law impracticable. Scholars typically think of a constitution’s role as removing certain structural questions and fundamental liberties from day-to-day politics. The whole point is that a constitution sets a framework for government that does not depend on elections or transient majorities. A constitution that is difficult to amend provides stability, predictability, and a foundation for day-to-day political debates and individual liberties.
Constitutional conventions called by simple-majority referenda—with no turnout requirements or supermajority thresholds—not only challenge this idea but completely obliterate it. As James Madison would have argued, such a theory places liberty and basic structural questions prey to the passions of the people and transient majorities. A referendum that can override any constitution eliminates the boundary between constitutional law and politics. It also allows would-be authoritarians to overcome any constitutional or institutional barriers from rival centers of power. Once a wannabe dictator wins a presidential election, all he or she has to do is call for a referendum to change the constitution (and likely win with the same electoral coalition).
Several groups challenged Chavez’s referendum in front of the Supreme Court. Facing significant political pressure, the Supreme Court allowed the referendum to take place regardless of the amendment restrictions. The court reasoned that the people retained ultimate sovereignty above any existing constitutional constraints. Chavez interpreted this decision as wholly embracing his radical theory, and argued that the constitution’s limits on reform could not override the public’s inherent power to remake the government.
With the court’s apparent blessing, Chavez schemed to maximize his control over a constitutional convention. An abysmal turnout rate of about 38 percent of the electorate participated in the vote to create a Constituent Assembly. In a second referendum organized under unprecedented voting rules, Chavez’s electoral method distorted a 60-plus-percent popular vote in favor of his assembly candidates into more than 90 percent of Constituent Assembly seats.
Here is where disaster struck: As soon as the Constituent Assembly was in place, Chavez called on it to suspend Congress and the Supreme Court. Arguing that the more recently elected assembly members better embodied the views of the people, the Assembly then declared a state of emergency, barred Congress from meeting or adopting new laws, formed a committee to remake the judiciary, and threatened to abolish all public organs of power. In short, once the Supreme Court opened the way for a referendum and a Constituent Assembly, it opened the way for the end of the 1961 constitutional democracy.
Although the Supreme Court initially opposed the Assembly’s absurd claim to absolute power, Chavez and assembly members threatened any potential opposition with violence. In the face of these threats, the court allowed the emergency decree to stand. As a result of that decision, the chief justice resigned in protest, stating that “the court had committed suicide rather than wait to be killed by the Assembly.” Within two months, the court fully caved in, holding in one case that the new Constituent Assembly was a supra-constitutional body and thus “cannot be subject to the limits of the existing judicial order, including the current Constitution.” With this final blessing in place, the Assembly later sacked and replaced most members of the Supreme Court.
With all opposing institutions of power cowed, a new constitution, adopted after another simple-majority referendum—with a 44.3 percent turnout rate—gave Chavez sweeping decree powers and broader control over the military; abolished the Senate; extended presidential term limits to six years; empowered the president to call for constitutional amendments; and, critically, allowed for the possibility of immediate presidential re-election. As a whole, the new constitution heralded a “hyperpresidential” system that would lead to authoritarianism.
This theory of constitutional change through a simple-majority referendum set Venezuela on the path to dictatorship, a strategy that is still unfolding today. Chavez’s successor, dictator Nicolas Maduro, used a similar theory of constitutional change to sideline an opposition-controlled Congress in 2017–2018. But this time, Maduro dispensed even with the requirement of an open referendum. Instead, the government devised a wholly rigged process whereby only Maduro’s supporters could vote.
Constitutional change through extra-constitutional means like simple referenda is inherently unstable because it opens the door to future extra-constitutional changes that can also pass through referenda or even rigged electoral contests, as Chavez’s 1998 vote did. Although ultimate sovereignty must reside in the people, we need not accept that a simple referendum actually represents the people for purposes of constitutional lawmaking. Constitutional reform can remake governments with generational consequences for a country’s liberties and governance. At minimum, such a moment should require supermajority voter turnout requirements and approval thresholds.
The electoral and constitutional events of the past 25 years in Venezuela show, yet again, that James Madison was mostly right. Madison anguished in Federalist No. 48 about a reliable way to check power that would depend not on words on parchment, but on incentive structures and robust institutional mechanisms. He feared that constitutions could become simple parchment barriers without institutional mechanisms to prevent an authoritarian president or parliament from appealing to transient majorities. The Venezuelan Supreme Court, facing threats and political pressure, opened the door to dictatorship and allowed the 1961 constitution to become mere words on parchment. Latin America and beyond would do well to continue to worry about Madison’s dilemma and to reject any theory of constitutional change by simple referendum with no supermajority turnout and approval thresholds.
Diego Zambrano is an assistant professor of law with his primary research and teaching interests in the areas of civil procedure, transnational litigation, and federalism. His work generally explores the civil litigation landscape: the institutions, practices, and incentives that influence litigant choices and outcomes, including how parties in the legal system strategically shape and respond to procedural rules. Zambrano’s projects aim to address the doctrinal revolution in civil procedure that has taken place over the past few decades through a blend of doctrinal analysis and theories of institutional design and political economy.