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.

24 COMMENTS

  1. HOW TO NEUTRALIZE MADURO’S CONSTITUYENTE?
    1. Article 348 of the CRVB gives the “initiative” not only to the president but also to the 15% of the electorate. Does this mean that 15% of the electorate could impose a Constituyente on all the people? Well if CNE gives that privilege to Maduro CNE would have to give that privilege to 15% of the electorate. How could CNE say NO if according to 348 both Maduro and 15% of the electorate have that privilege?
    2. Then the signatures of 15% of the electorate are collected and a new request for a Constituyente is submitted to CNE with different electoral basis.
    3. The CNE will be on a bind.

    Anyway it could be pointed out the absurdity that 15% of the people could impose a “constituyente” on all the people without asking all the people in a referendum and likewise that Maduro could impose a “constituyente” on all the people without a asking all the people in a referendum.
    But if Tibisay gives that privilege to Maduro she would have to give it also to 15% of the people because Article 348 gives the “initiative” to both.
    Therefore the “initiative” is not enough.
    Many times the obvious needs to be explained.

    • “Well if CNE gives that privilege to Maduro CNE would have to give that privilege to 15% of the electorate”
      Wow that’s one very ignorant statement Juan, wake up and smell a dictatorship buddy! Why on God’s green earth are there still people here on CC that think those chavistas will play fair or have respect for say …. the constitution???? But keep up the small non violent protests (y) Viva Castro Viva Chavez!!!

      • Who said that CNE will play by the rules?
        But it will put pressure on them that together with street protests will make it happen. Why do you expect that the FANB will stop the repression and that change will come? Hope buddy, just hope. Hope could not be given up!

        • Street protests … which protests … those couple of thousand poor people that are in the streets every other day ..
          Those ones. … I would be laughing if it wasn’t so sad. Venecuba is being set up as we speak and there isn’t anything we can do.

          • There you are! Leopoldo Lopez is doing something! Thousands are doing something while you despair.

          • Agree with Juan. Scrap your despair. The protest is working and the government is in it’s weakest. Join the resistance and do something other than complaining here.

  2. The difference with Maduro’s constituyent is that he doesn’t care about replacing the moribunda 1999 constitution, his spokesmans have said they don’t want to. Maduro only wants a supraconstitutional body that will materialized wathever legal barbarity his party’s sinister minds can imagine, something like Maikel Moreno on steroids, all while suspending all elections. Even those defending it are aware of this, and those in aporrea saying this is legal and a great idea, probably only want one of the 500 seats. There are hundreds of ways this could backfire for the regime, but the truth is that so far there is no real power challenge to it and so it seems it will go ahead

    • The only thing that could stop it is a counterproposal fully constitutional.
      Continued street demonstrations + counterproposal with 15% will have the support of the international community.
      Otherwise it will happen.

  3. So the signatures are collected and given to the Pope and Almagro. And the street demonstrations continue and increase.

    • The Pope is as Marxist as they come, he doesn’t give a fuck about Venezuela, stop all this wishful thinking mate, it’s irritating to read!!

      • As irritating as your hopelesness! Of course the Pope is a Marxist. You have to confront him with his own shit.

  4. Has anyone else noticed how anytime Maduro talks about the constituyente, he also brings up the Carnet de la Patria? He also brags about how “11 million of our fellow citizens now have their Carnet de la Patria”. In the totalitarian thought process of the regime, anyone who accepts the Carnet is also willing to blindly accept anything else the regime wants. Everyone who signed up for the Carnet de la Patria (including at least one contributor to this site) has already requested the constituyente, whether they realize it or not.

  5. “Thousands are doing something while you despair”
    @ Juan, you’re damn right I despair, there should be hundreds of thousands if not millions in the streets all day every day. … but there are a couple of thousand and that’s why Castro-Maduro will win this battle and the whole god damn war and install a dictatorship that will last for a very very long time indeed. The majority of Venezuelans are doing NOTHING as usual and have done NOTHING for the last 18 years. It’s paradise lost siglo 21. Go go go non violent pathetic protests!!!

    • Evidently, you need to inform yourself. Whining won’t get you or any of us anywhere, especially ignorant whining. Get out, joing the struggle and quit writing irrelevant opinions here.

  6. Jeffry, very illuminating, thank you. Even the French Revolution in its various Assembly iterations usually had, for the most part, representations of the clergy/middle class/etc., and not just of the “People”. Negri’s BS mumbo-jumbo Constituyente certainly is Universal (as in the sense of the universe), since it is “this force, with the absence of finalities, that is projected outward, as an all-powerful all-expansive tendency”, which cannot be limited in time, in space The difference, of course, is that the real universe follows known laws (of physics), whereas the Constituyente universe follows the laws of the Constituyente organizers/managers, who make them up as they go along, and use the power of the State to pay for allegiance/enforcement, with no recourse for public abuse. For example, I had the (dis) pleasure to attend a semi-rural town meeting in the local Plaza Bolivar (virtually the only non-town drunk/idler/occasional PSUV member in attendance), headed by Martha Harneker/local Chavista luminaries, during a golden-period Chavista electoral campaign (and, at which Harneker was constantly pointing me out to others on the dais, since I wasn’t “like the others”, making me constantly having to change seats in the small crowd), at which many hundreds of millions of Bolivares (real money back then) were approved for promised local public works projects, NONE of which was actually ever spent/executed….

    • “Even the French Revolution in its various Assembly iterations usually had, for the most part, representations of the clergy/middle class/etc., ”

      All of the Assembly iterations were dominated by the upper middle class and (later) non-noble rich merchants. None of them resembled anything like a Constituyente.

      • National Constituent Assembly of 1789: 1145 Deputies: 291 Clergy (1st Estate, many parish priests, more like the Third Estate); 270 Nobility (plus some wealthy affinity-related upper clergy, wealthy bishops, et, al.); 584 Commoners (Third Estate).

  7. Nice touch to lead with of a photo of Maduro with Mel Zelaya. Well written and informative, Mr. House.
    Your “I was there” story about the Sandinista “effort” to build a Constitution with grass-roots input- all smoke and mirrors- showed this article was not a mere academic treatise. You were one of the few visitors to Nicaragua in the 1980s whom the Sandinistas couldn’t fool. Did you go down to Nicaragua as a neutral, as pro-Sandinista or as anti-Sandinista?
    One book which helped change my mind on Nicaragua was Martin Kriele, Nicaragua: America’s Bleeding Heart, who IIRC visited Nicaragua on the behalf of a West German foundation (Adenauer Siftung?).

    • Glad you liked it!

      I went to Nicaragua seven times, the first as an anti-Somocista. Then, post revolution, I had a lot of high hopes. Slowly, these hopes vanished, replaced by the feeling that there was a high b.s. content to everything I was shown and saw.

      It really helped to have good Spanish. Most outsiders didn’t, and that meant they couldn’t penetrate the propaganda.

      I was an official observer at the 1990 election. The story, above, about Fidel’s advice to the Sandinistas was something I heard on election night from someone who knew.

  8. The constituyente is lipstick on a pig. The pig is totalitarian communist rule.

    As el Chapulin would say “Y ahora quien podra ayudarnos?”.

    I am now convinced that the armed forces will not. They are encapsulated from normal Venezuela. They interpret reality in an opposite way than average people. Listening to my-no-longer GN high school friend state “tampoco son manifestantes si no delincuentes o terroristas”, I can only assume that they are literally fed ideology and grub and kept apart from daily difficulties Venezuelans live in, plus the occasional shady business opportunity. They are happy as the occupying force of their own country.

    The other opportunity that I thought would break the military support was the experience of other Latin-american countries. Many of those countries were run by military in the 70s and 80s. It was a disaster, so it would stand to reason that they would learn from history. But the military leadership brought up by Chavismo was not the scholarly type, but instead steeped in fascist ideology of military superiority to civilians. They want to run the country because they truly think they do it right.

    So my only next hope is a traumatic credit event which would cease up the government liquidity and it would be unable to pay its armed forced goons. This in the context of hyperinflation.

    All this costly protests soften the government, but will not deliver the knockout punch. It is sad to say but the knock out will contain bullets and death, and a lot of it.

    Cry, the Beloved Country

  9. The only answer to Maduro is that his actions are unconstitutional.
    Do not fall into any trap. Oppose it from its inception.
    Refuse to recognize any “new Constitution” as it is illegal.
    The article on CC regarding Venezuelan authorities not needing approval from the National Assembly to borrow, will take on a whole new aspect if lenders are told that the government is borrowing with illegal authority that they have granted themselves under an illegal Constitution. The government will be without any options to borrow. Venezuela is already shut out of the credit markets. There are few assets to mortgage and individual lenders will not take the risk.
    The protests are working.
    Maduro and his cadre are acting more and more irrationally.
    If the protests were ineffective, they would not be reacting like they are.
    The cracks are showing. The 85 National Guard soldiers that were arrested have sown a seed of paranoia into the military leadership as well as the lower ranks.
    Today the national Guard took 2 police officers into custody.
    Without the cooperation of the police, things become much tougher for the government.
    As the soldiers witness the weakening and more erratic leadership, morale will decline. Eventually the soldiers will be more concerned about what crimes they will be held to answer for. The soldiers will see a revolt as their redemption.
    Castro, like Chavez promised the people something better. Maduro can not convince the people that his way is better. The people see Maduro as the man responsible for their suffering.
    Maduro is losing support from the poorest of the poor.
    Venezuela does not have the resources that maintaining a highly repressive government will require.
    The domestic and international pressure will be the end of this tyrannical regime.

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