Edited by David Landau and Hanna Lerner
Chapter 26: Constituent power and constitution making in Latin America
This chapter surveys constitution making in Latin America since 1990. It classifies the nine constitution-making episodes in the region along two dimensions: (1) whether they were constrained or unconstrained by the existing constitutional order, and (2) whether they were drafted unilaterally or by a more consensual coalition of actors. An examination of recent regional constitution-making reveals that original constituent power theory, or the theory that the “people” retain the power to remake the constituted powers in the existing constitutional order, has played a major role in most recent exercises of constitution making. The main practical function of the doctrine has been to allow powerful political forces to remake their constitutional orders unilaterally, evading a need to negotiate with the opposition. Clarifying this function is useful for developing a practical rather than theoretical critique of the harm often done by constituent power theory, and for highlighting the desirability of alternative conceptions of constitution making. In many cases, reliance on replacement clauses found in existing constitutions themselves is likely to be a superior alternative.
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