On May First, when President Maduro proclaimed the need for a constituent assembly to write a new constitution, he was following a well-worn path. The Chávez Constitution, trotted out in its blue covers to be revered at many a state occasion, itself the result of a substantial constituent experience, was suddenly declared dead. What the “voice of the people” had labouriously constructed under Chávez, Maduro felt he could demolish in an instant. He made no complaint about any particular article of the Constitution, nor did he say what he had in mind to replace it. His reference to the participation of the proletariat and the communes in the constituent process left a broad hint, however. Almost certainly, Maduro wanted a constituyente chimba to be controlled by him, one which would reduce the role of the elected National Assembly to zero, as his Supreme Court had already tried to do.

From the time of the French Revolution, it has been a truism to say that only “the people” can constitute itself as a body able to make rules to govern its future. Communists, however, had never accepted this ideological component of a bourgeois revolution; rather, they declared the proletariat the universal class, destined by history to rule. What was required was a party which knew the destination of history, and imposed the inevitable future on those it chose to represent.

It was not always politic to say so openly, however.

Russia: The Original Communist Constituyente

When Lenin arrived in Russia in April, 1917, the Provisional Government which had replaced the czar had also organized elections for a constituent assembly, to insure that true representatives of the people would write Russia’s new, democratic constitution.

“Not the Petropavlovsk prison, but instead the guillotine is what awaits our enemies” he said.

Bolsheviks disapproved, since they would inevitably lose such elections. Bukharin, the best loved member of the party according to Lenin, proposed that because “constitutional illusions are very much alive among the masses” the Bolsheviks should support the Constituent Assembly elections. But then, he said, the Bolsheviks could simply “drive out” the delegates they disapproved of, the representatives of the bourgeoisie as defined by the Bolsheviks, and then declare a “revolutionary constituent assembly” controlled by the party.

When the Leninist coup of October 1917 occurred, the party was careful to characterize it as revolution by the soviets, the people’s councils, rather than the party itself. The Revolutionary government led by Lenin, called Sovnarkom, granted itself authority only until the day the Constituent Assembly was convened, underlining its democratic principles. Lenin also le puso el cargo a la orden al poder popular, pues. While those who feared a Marxist dictatorship were angered by the Bolshevik seizure of power, their fears were somewhat assuaged by the fact that the Constituent Assembly would be seated in early January. Bolshevik rule had an expiration date about sixty days later.

Prior to the opening of the Constituent Assembly, the “bourgeois” Cadet party was declared illegal by Sovnarkom; its delegates would not be permitted to take their seats, election be damned. In January, the entire Constituent Assembly was dispersed after sitting for just one day. Trotsky, speaking for the soviets, declared that there was nothing wrong with “naked terror” being applied against the “class enemy.”

“Not the Petropavlovsk prison, but instead the guillotine is what awaits our enemies” he said.

Much Chávezian mumbo jumbo about the consejos, the communes, and their capacity to actively participate in governance, probably derives from Negri’s book.

Latin American revolutions controlled by Communists did not at first pay much attention to the need for a constituent assembly to write a new constitution. In Cuba, the new revolutionary state did not prepare a constitution until 1976, when a referendum achieved a 99% victory for the Yes vote, after millions of small pink compilations of the proposed text were spread across the land. The Constitution preceded the consultation, so the “constituent” nature of the advisory referendum was already occluded. Nothing in the text ever had the slightest reality, however; the promises of free speech and assembly and other rights were fiction from the first day. But that 99% vote proved the constitution had the support of the people, did it not?

Nicaragua: Empty Consultation

Nicaragua’s Sandinista Revolution never held a constituent assembly, per se. However, a vast propaganda exercise was organized around the preparation of the 1986 Constitution, The core of this exercise were a series of popular assemblies, called “cabildos”. Typically, two elected members of the National Assembly from the Sandinista Party would go into the countryside, along with a single opposition legislator. From the head table, they would call upon members of the public to make suggestions about the new constitution. At least here the consultation preceded the text, a seemingly more democratic practice than had occurred in Cuba.

I attended three such cabildos as the invited guest of the National Assembly. I can state confidently that nothing proposed in any of the cabildos had any effect whatsoever on a constitution that was ultimately prepared in secret, by a committee of Sandinista supporters. In part, that was because average people’s concerns were not constitutional in nature, and the cabildo was a rare opportunity to address a government official about the fact that eggs could no longer be purchased, and even rice was in short supply. Even those interventions that were relevant were often too broad to be of use; for example, one person in Diriamba suggested to the cabildo that a good constitution should have a President, elected legislators and a Supreme Court. He wasn’t willing or able to say much about the relationships among these three groups, or their ultimate legal authority.

Even more critically, I never saw any transmission belt between the cabildos and the writers of the Constitution. Notes were taken, but no electronic recording occurred, The politicians at the front of the meeting faithfully promised to inform the National Assembly as to what had been proposed, but even after I inquired repeatedly, no one could show me where the suggestions had been archived or deposited or how the anonymous constitution writers could review them.

The cabildos, then, were a legal fiction, decorating a constitution written by persons unknown. The National Assembly then claimed that it had now completed its “labor constituyente”, and ratified the document it had created.

The cabildos, then, were a legal fiction, decorating a constitution written by persons unknown.

Under the new constitution, the President, Daniel Ortega, was to remain in office for six years. However, things quickly fell apart as so-called “contras” opposed the Sandinista government militarily. The war ended with the Pact of Esquipulas, brokered by Costa Rican
President Arias, one provision of which was early Presidential elections, in 1990. Ortega and the Sandinistas lost those elections,then rejected the advice of Fidel Castro to declare the results null and void. Critical to that decision was the fact that it appeared unlikely that Nicaragua could rely on a fading Soviet Union for economic help, should an embargo ever be declared. Voices inside the Sandinista Directorate argued that stepping down now would insure a comeback later, while presiding over an economic nightmare would destroy the party forever.

The New Marxist Theory of the Constituent Power

In 1994, Marxist intellectual and one-time member of the Italian Red Brigades Tony Negri produced a reworking of the concept of the constituent power, elevating it from a detail to a core doctrine. Using the work of Nazi legal theorist Carl Schmitt as a starting point, Negri counterposed the constituent power to the constituted power. The power of the people to take matters into their own hands, he said, stood in contradiction to the existing political world of elections and Parliaments. On occasion, it will surge forth and destroy representative institutions, creating all norms anew.

According to George Cicciarello-Maher, a hardcore Chávez mythmaker and fabulist, and to his co-fabulist Martha Harneker, Hugo Chávez devoured Negri’s book “Insurgencies: Constituent Power and the Modern State” while in prison in the mid 1990s. Be that as it may, much Chávezian mumbo jumbo about the consejos, the communes, and their capacity to actively participate in governance, probably derives from Negri’s book.

According to Negri,

Constituent power is this force that, with the absence of finalities is projected outward as an all-powerful, always expansive tendency. Lack of preconstituted assumptions and fullness of strength; this is a truly positive concept of freedom.

Negri followed Schmitt in insisting that a constituent power did not itself require a democratic origin, “pre-existing rules”, since it was the sovereign power of the people, could not be limited in time, or in space. There is no “ought” involved, since the constituent power creates all norms, and is not bound by them. Thus the constituent power need not respect individual rights; everything must cede before its might. According to Schmitt, an important constituent power was “the right to name the enemy.” As Arendt wrote about the Schmittian version of this, “it resembles nothing so much as the Abrahamic God”.

There can be no doubt that Marxist thinkers have taken up Negri’s views with a passion. By summoning up the constituent power, all of the corrupt bourgeois institutions such as elections and Parliaments can be consigned to the garbage heap, while the constituent power of the people reorganizes the world anew.

Zelaya’s Turn

In 2006, Manuel Zelaya was elected President of Honduras on a center-right platform. Over time, he came under the influence of Chávez, and almost certainly received monetary support from the Venezuelan treasury. In any event, he made a hard left turn that betrayed the principles of his electoral campaign, becoming a populist overnight. But Zelaya’s usefulness to Chávez was constrained by the Honduran Constitution, which limited the Presidential term to one four-year period, with no re-election. Furthermore, the limiting Article, s. 136, could not be amended in the ordinary way. This concept, “Effective suffrage, no re-election” dated from the Mexican Revolution of 1910 and became part of the Mexican constitution. From there it spread throughout Latin America as a method of controlling entrenched governors, legislators, and presidents. Revolutionaries feared that in the absence of rigorous controls over state spending, the President, especially, could direct public money towards his supporters while starving out the opposition, thereby insuring continuing rule by an autocrat.

Zelaya decided that he would perform an end-run around the constitutional prohibition, and the Negri doctrine was at hand. Zelaya took steps to create a constituent assembly, requiring that the people be constituted in all their sovereign power, though he never explained why this step was needed, or what deficiencies in the existing Constitution needed remedy. Nonetheless, he took steps to set up a referendum which would allow Hondurans to vote for a constituent assembly at the same time as the scheduled Presidential elections would occur.

Zelaya’s thesis that the President could organize a constitutional convention on his own authority was not accepted by the courts in Honduras.

While Zelaya claimed repeatedly that he had no interest in continuing in office, the truth was that whoever controlled the Constituent Assembly did not have to be “President” or hold office to rule the country as a dictator.

Zelaya’s thesis that the President could organize a constitutional convention on his own authority was not accepted by the courts in Honduras. The Constitution was clear, and the attributes of the Presidency did not included organizing a parallel, “constituent” election. Finally, the Supreme Court refused his appeal because the law was not in doubt. Undeterred, Zelaya went forward lawlessly, usually claiming that his desire to consult the people was the democratic option, while the courts and legislature were “corrupt”.

Eventually, he was disavowed by his own party, and the National Assembly called for his removal from office. The Attorney General issued a warrant for his arrest for abuse of power but Zelaya did not comply, resorting to rhetoric about how the people would not permit him to be arrested. After attempting to fire an Army general who refused orders to organize the illegal balloting, Zelaya was taken into custody by the Army, which then failed to present him to the civil authorities, instead unceremoniously dumping him on a plane headed to the Dominican Republic. This step violated the Constitution, and caused a vast wave of worldwide complaints about the Honduran “coup”. Honduras was suspended from the O,A.S. as a result.

Next in line for the Presidency was the speaker of the National Assembly,Roberto Micheletti. As the Honduran Congress voted unanimously that Micheletti should take office, Hugo Chávez, spoke on TV:

“If they swear in a Micheletti, a Peleletti, a Gafetti or a Gorileti, we will overthrow him. I’m telling you straight up. We’ll do everything we have to to return Manuel Zelaya to power,” After further fulminations about this being due to a plot by the Supreme Court and the National Assembly, he stated that he had put the Armed Forces on alert. It would seem that Zelaya’s right to call for a constituent assembly was deep-seated in Chávez thought, as even the sacred principle of non-intervention could be put aside to protect it.

Tony Negri’s terrible idea is just not ready to die yet. The far left’s mania for constituent power shows no sign of abating. Even before Maduro made his latest gambit, Pablo Iglesias was calling for a Spanish constituyente while in France, nearly one in five voters supported Jean-Luc Mélenchon this year, an ALBA fan who —you guessed it— called fervently for an “Assamblée constituante,” even though —you guessed it again!— there’s no such thing in France’s constitution.

Plus ça change…

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Jeffry House has practiced criminal and human rights law in Toronto Canada since 1978. His interest in Latin America dates to the mid-1960s. He admires Jose Agustín, Anna Akhmatova and Steph Curry, in equal measure.