This chapter considers the ways in which constituent power has been understood and constructed at different moments of Latin American constitution-making history. In so doing, it examines the extent to which various notions of constituent power are reflected in the mechanisms used for the creation of four constitutions. The four processes that will be studied are those that resulted in the Constitution of the Federal States of Venezuela (1811), the Political Constitution of Colombia (1886), the Political Constitution of the Republic of Bolivia (1967), and the Constitution of the Republic of Ecuador (2008). Keywords: constituent power; constitution making; constituent legislatures; constituent assemblies
During the late 18th and early 19th centuries, some constitutions were drafted and ratified in processes that had at their base meetings of neighbours in particular localities. Usually called primary assemblies, these local meetings facilitated practices inconsistent with the logic of representation, such as the preparation of instructions intended to bind the elected deputies. This chapter examines the ways in which primary assemblies figured in four historical constitution-making episodes: the creation of the first two French Constitutions (1791, 1793) and the subsequent creation of constitutions in Spain (1812) and Venezuela (1811). Through the analysis of these cases, we will see how the notion of primary assemblies as the main site of constituent activity, as well as the institution of citizen instructions, were replaced by a conception that attributed to local meetings of citizens the sole function of electing representatives considered capable of drafting a constitution. I then explore the ways in which primary assemblies, as well as a ‘soft’ version of the imperative mandate, could operate in contemporary constitution-making practices.
Joel I. Colón-Riós
Abstract: This chapter has two main objectives. First, to propose a typology of the rules of change found in Latin American constitutions. These rules are not presented as a representative sample of those contained in the world’s constitutions, but their diversity reflects, to a certain extent, those present in other regions. The second objective of the chapter is to consider the possible theoretical basis of the categories identified in the previously mentioned typology. In advancing this second objective, I will consider these rules from the perspective of what may be termed modern constitutional theory. Modern constitutional theory looks at formal constitutional change through the lens of three main distinctions: the distinction between the constituent and the amending power, between the legislature and the people, and between amendment and replacement.