Constitutions regulate a number of issues in public life, and they differ in the variety of subjects they treat (the general rule is that the more recent, the larger the number of issues treated). But a universal aspect of all constitutions — in democracies and non-democracies — is codifying the powers of the president.
Some constituent assemblies are strict: They produce constitutions with more checks and balances on the executive branch than those they replace. Others are lax: They yield more concentration of power in the presidency.
Maduro’s call for a constituent assembly is expressly designed to minimize representation outside of the ruling party. This reason alone will inevitably lead to a final text with far fewer checks and balances.
Constituent assemblies worldwide
A constituent assembly is one of several ways of changing constitutions. Other forms include acts of parliament, amendments, special commissions or presidential fiat. Constituent assemblies typically consist of bodies selected to ensure representation, and receive ample powers to change the entire text. The most famous example is, of course, the French National Assembly of 1789; some would argue that another is the Philadelphia Convention of 1787.
In contemporary times, representative constituent assemblies are not that frequent. Only 19 of the 119 constitutions that have emerged since the 1980s were born through representative constituent assemblies.
Latin America is an exception. Representative constituent assemblies have actually been quite common, accounting for 10 of the 19 constituent assemblies worldwide since 1980. Scholars (and supporters) describe them as “participatory,” because all relied not just on universal suffrage to elect delegates, but also because the resulting texts offered new rights to new constituencies, such as minorities, indigenous groups and women.
Where these Latin American constitutions differ is in terms of presidential powers. Three Latin American constituent assemblies expanded presidential powers relative to their predecessor: Peru in 1993, Venezuela in 1999 and Ecuador in 2008. Three hardly changed powers: Brazil in 1988, Argentina in 1994 and Bolivia in 2009. And the others reduced presidential powers significantly: Nicaragua in 1987, Colombia in 1991, Paraguay in 1992 and Ecuador in 1998.
My research on these constitutions shows that the variable that most predicts this difference is the power advantage enjoyed by the ruling party. Under greater power asymmetry — in which the incumbent president’s allies hold far more seats than the opposition — total presidential powers expand. Where power is less asymmetrical — i.e., the incumbent’s delegates have equal or fewer seats than the opposition — net presidential powers stay stable or even shrink.
The reason for this outcome has to do with self-dealing, the theory that actors will seek to maximize the power of the offices that they control. Incumbent presidents generally approach constitution-making with the idea of expanding powers of the presidency. They might grant powers to other institutions and actors, but only if forced to yield. The one set of actors most likely to force yielding are opposition parties.
Maduro’s plan is still vague
What we know so far suggests that the opposition’s presence in his dreamed assembly will be minimal. He has said that half the 500 delegates will be elected indirectly, by nongovernmental organizations (NGOs) officially recognized by the state. The government will not allow political parties to participate. The other half will be elected through a system, still to be determined, based on granting equal representation to Venezuela’s 23 states and one federal district, despite major differences in population size.
This selection rule undermines representativeness in several ways. First, the “groups” entitled to vote are all loyalists — in Venezuela, the state only recognizes NGOs that are loyalist — whose leaders are seldom elected democratically. Second, a ban on opposition parties constitutes a serious violation of the concept of free elections. Third, the system to determine seats by states will give greater representation to rural, underpopulated areas, which is where Chávismo — the movement named after the late Hugo Chávez and behind Maduro — is stronger.
Overall, this plan will inevitably give the president a power advantage at the assembly, and will give the opposition almost no capacity to organize the vote due to restrictions on the activities of political parties.
To compound this advantage, it’s not clear whether Maduro will seek voter approval to convoke and ratify the process via referendums, as the constitution mandates. Most likely, Maduro will use the constituent assembly to avoid holding elections for state office. He is desperate to avoid elections because polls indicate that he and his party, with approval ratings below 26 percent, would likely lose any election under current conditions.
Context makes a big difference
Power asymmetry is of course not the only factor that shapes constitutional texts. One element is context, or triggering factors. When constitutions are designed during economic crises, for instance, the constitution is likely to deliver more formal powers to the presidency. Another factor is the structure of the ruling party: Where the ruling party depends entirely on its leader (or has a short history of holding presidents accountable), it is unlikely to check the president’s desire to accumulate power.
So why does Maduro need a new constitution?
But if Maduro already holds so much de facto autocratic power, why bother with a new constitution? Political scientists Michael Albertus and Victor Menaldo help answer this question. They argue that dictators create constitutions (“act as founding fathers”) not only to give powers to themselves, but to give power to “launching organizations.” These are the groups responsible for ensuring a dictator’s survival, such as the military or cronies. When there is uncertainty about the dictator’s future, both the autocrat and the launching organizations will seek a constitution to grant protections to one another — and not necessarily to citizens at large.
All this leads to civil unrest
Overall, Venezuela meets four conditions for a constitutional process that will lead to greater autocracy: a pro-incumbent selection rule; an economic crisis; a rubber-stamp ruling party; and a dictator facing uncertain prospects in office.
Why does this matter? Constitutions hold the promise of lessening conflict, which Venezuela badly needs, but only if they expand power-sharing. As John Carey showed, more “inclusive” constitution-making can even yield more democracy. Maduro’s plan for a constituent assembly will do the opposite. The opposition knows it and for that reason, it has responded by rejecting the proposal and calling for more street protests, now in their second month.
Maduro may still go ahead with his plans. If he does, the resulting constitution is unlikely to restore democracy or abate the worst civil strife Latin America has seen in decades.
Javier Corrales is Dwight W. Morrow 1895 professor of political science at Amherst College. His book “Fixing Democracy: Constituent Assemblies and Presidential Powers in Latin America” is forthcoming from Oxford University Press. Find him on Twitter @jcorrales2011.