Young and Defenseless


by Daniel Lansberg-Rodríguez

“As Constituições são como as mulheres, elas são mais férteis, enquanto elas são mais violadas.”

~Getulio Vargas, Brazilian Dictator.

First things first: that the government of Venezuela should seek to circumvent inconvenient constitutional requirements is to be expected. Tension between a nation’s constitution and its executive are a constant worldwide. After all, a  constitution’s value lies largely in its ability to restrain an executive.

What IS troubling about the situation in Venezuela is not a matter of intent but of opportunity: the ease with the government can ride roughshod over the national constitution.

The ideal way for a government to violate a constitution has always been through sleight of hand. If it can do so with impunity, “interpreting” the text in a novel way is often the best option as it preserve a veneer of constitutionality. With maximum “cover” and minimal costs, a government gets its cake and eats it too (as both the chivo and the mecate look on.)

Legal scholars know that a constitution can, at best, raise the costs associated with certain government actions, either compounding the perceived illegitimacy of those actions within the domestic and international arena, or else raising troubling specters of actual sanctions on those involved.

For this to be effective you need a culture of restraint. Such a culture prevents certain actions from even being considered.

Developing this culture takes time. For any constitution to resist government attempts at “creative interpretation” such as the Maduro Doctrine, it must have achieved a level of societal buy-in, procedural understanding, and relevance that the Bolivarian Republic’s constitution does not have.

For one, it’s too new. Venezuela has always had a kind of attention deficit disorder when it comes to constitutions. Having gone through 26 of them, (while amending existing constitutions only twice), Venezuela ranks second worldwide in terms of hyper-constitutionalism (The Dominican Republic wins out but that’s only because Trujillo personally rewrote his like ten times.)

When Venezuelans let Chavismo rewrite the Constitution completely in 1999, they gave up all the constitutional precedents, traditions and understanding that had developed under the 30+ years of Punto Fijo. This new constitution has never gone through a presidential transition of any sort, let alone one as complicated as this one.

It’s also one of the longest and wordiest constitutions in the world, with a great many ill-defined terms and ambiguities. Absent citable precedents in any direction, the TSJ can essentially define things as if for the first time. In a country with no judicial independence, the only opposition riposte likely to be an appeal to common sense. And who’s going to make it?

Well, Quico gave it a valiant try, but as the Venezuelan electorate has shown on many occasions, rational arguments by academics or nongovernmental lawyers (much as those of professional economists, human rights organizations, bloggers, etc.) aren’t worth much. The sources themselves are often dismissed as suspect so that the arguments become irrelevant. It’s just the oligarchs whining again, they will say.

In constitutional terms, Venezuela’s in the middle of a perfect storm: entrenched regime, low judicial independence, long constitution, new constitution. I suspect that this combination will render pretty much any action the government undertakes in violation of the constitution a “formality.”

Speaking both as a constitutional legal scholar and as a Venezuelan, it very much pains me to say this, but I suspect the specifics of constitutional design will prove largely irrelevant to whatever happens in Venezuela over coming weeks.

Should the government attempt anything too shameless, such as disregarding the requirement for new elections, it would raise enough eyebrows abroad to create real push-back domestically, but out of indignation mostly, not a deep-seeded respect for constitutional process. For the myriad smaller constitutional violations that are more difficult to track, I doubt anyone–save a very few–will pay them much mind.

Every constitution is—at its heart—an attempt by the present to bind the future. For this to work, the constitution has to become engrained in the national psyche or else have institutions that are strong and independent enough to push back on Constitutional grounds. Failing that, a constitution is not even a paper tiger. It’s just paper.

Venezuela has never developed a culture of constitutional restraint able to protect national constitution from those who would seek to “Vargas” her. But the future starts today.

The first step will be for us to refuse to accept a society where such violations are considered routine. Yes, in the end, Chavismo will probably do whatever it wants in the short-term –repeatedly so– but we must continue to thrash and scream and protest each new violation as energetically as if it were the first. We must continue to be visibly shocked and vocally outraged always. We must shout it from the rooftops, until we feel like worn-out records. Then we must dust ourselves off, have a good cry and a shot of Santa Teresa and get back to protesting once more.

Whatever happens, we cannot allow this become the new normal.

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  1. So a couple of people have reached out to me and asked that I post a translation of the Vargas quote at the top. Apologies in advance for the misogyny involved. RT ≠ agreement.
    Translation: “Constitutions are like women: the more they are violated the stronger they become.” ~ Getulio Vargas

  2. The main issue of constitutional respect is the initial buy-in of all major segments of the people. A simple 50.0001% approval in a tilted referendum just buys illegitimacy. It ought to be at least 75% or 80%. To achieve that kind of raw consent, the writers of such a document have to keep their eyes only on universally accepted principles, concentrate on setting fair rules of procedure and conflict resolution, define EXACTLY how all leaders are chosen, specify their limits, and leave their pet programs and grievances to the mercies if those rules, principles and procedures they want to sell to the 75%. If they do a good job, and the people subscribe to it BY THAT KIND OF MARGIN – they buy in – they will have some sense of ownership worth fighting for. But 75% won’t buy just anyone’s utopian mish-mosh like Vz’s 1999 constitution riddled with loopholes and oranizations with undefined leadership and vague police powers. The people just want a government to be “fair”, and fair to at least 80% of them. Government by “The boss is the boss!” is fair only to the boss. Please, you Venezuelans have good brains and you know what fairness is. It’s hard to define, but you have to define it and put it on paper to get the 80% buy-in you need to build a stable nation that its own citizens will fight for. From what little I know of him, Capriles has the kind of inclusive mind-set to lead such an effort to write a fair constitution. I hope he will “get around to it” soon.
    Best Regards, Deedle

    tha do not favorone set of issues over another, have to kw hre pet projects ot of the ways an

  3. “…but we must continue to thrash and scream and protest each new violation as energetically as if it were the first…to be visibly shocked and vocally outraged…shout it from the rooftops…” Agree but as right now I’m so dissapointed at this “constitutional violations” situation, the only thing in my mind is to implement “plan b” and get out of here as fast as possible. I will protest very energetically, I will be shocked, be outraged and shout as loud as I can, as I’ve done it BUT will do it far far away in a first world country…

  4. Most common people in Venezuela are not interested in Constitutions nor do they understand what having one entails , at most ( when prodded) they use it as fodder to rouse their political passions, something they really enjoy!! Tomorrow well see proof of this. Lots of the most common people in Venezuela like feeling strong , mighty ( the result of leading lives full of futility and petty humilliation) and that to them means being brutal , violent , shrill , cruel , ripping apart what they dont understand and of course shouting their supports for those who stage for them spectacles of brute force , of delectable brutality !! thats why caudillos are so admired in Latin America, the more brutal the better , This love of force and violence and brutality is an old one , its what drove the german and italian masses to fascism . Facism is not a right wing ideology , it is a collective craze tha afflicts people who feel impotent and incompetent in the organization of their lives, who become bessotted with the cult of Might and Power be it left wing or right wing . In todays rethoric fascism takes the name of ‘Revolution’ , violent change which involves a mighty theatrical show of force and the destruction of a demonized enemy!!


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