Observations On Perception

The constitutional attribution of authority presupposes not only the institutional safeguards governing those entrusted with restoring constitutional conditions, but also constitutional conditions sufficient to preserve the Nation’s own capacity to exercise sovereign judgment.  The sovereign will of the Nation cannot be reduced to the mere numerical aggregation of individual preferences.  Constitutional attribution requires that the collective act through which public authority is conferred remain publicly ascertainable as the juridical act of the Nation itself.

That constitutional capacity cannot exist where the constitutional formation of public judgment has been systematically impaired.  Coercion, institutional capture, systematic deception, personality cults, or the subordination of constitutional allegiance to partisan allegiance do not merely distort political competition.  They impair the constitutional conditions under which public authority may become demonstrably attributable to the Nation.  The Nation, from which public authority derives, must therefore retain the capacity to form and manifest its sovereign judgment under conditions that preserve its independence from every influence capable of converting public assent into constitutional indeterminacy.

Constitutional government therefore presupposes institutions capable of preserving the Nation’s constitutional independence in forming and manifesting its sovereign will.  Freedom of political judgment is not merely a democratic value.  It constitutes a constitutional condition precedent to the lawful attribution of authority.  The constitutional inquiry consequently does not concern the personal virtues of individual candidates.  Constitutions do not certify character.  They establish the constitutional conditions under which the Nation may judge for itself.  The constitutional question never consists in determining whether a candidate is morally worthy, but in establishing whether the constitutional order permits the Nation to form its judgment under conditions compatible with the lawful attribution of authority.

The ultimate guarantor of constitutional title is therefore neither the government, nor the judiciary, nor the legislature, nor the authority of the National Electoral Council.  It is the constitutional capacity of the people constituting the Nation to manifest their sovereign will under conditions that render the resulting attribution of authority publicly ascertainable, juridically attributable, and susceptible of constitutional demonstration.

If the constitutional capacity of the Nation ultimately determines the very possibility of constitutional title, a further constitutional question necessarily arises.  How is that constitutional capacity preserved through time?  That question bears directly upon one of the oldest problems of constitutional history.

Why does constitutional instability recur even after the adoption of successive constitutions?  If constitutional title depends upon the Nation’s capacity to attribute authority, constitutional instability need not originate in the constitutional text itself.  It may instead originate in the deterioration of the constitutional conditions that make the attribution of authority possible.  The repeated replacement of constitutions does not therefore entail an equally repeated act of constitutional creation.  It may instead reveal the persistence of an antecedent constitutional defect that remains unresolved throughout successive constitutional orders.

Constitutional continuity consequently does not depend exclusively upon textual continuity.  A constitutional text may remain formally unchanged while the constitutional title from which governmental authority derives progressively deteriorates.  Conversely, constitutional continuity may survive textual amendment where the constitutional conditions governing the attribution of authority remain substantially intact.  The constitutional identity of a political community therefore resides not exclusively in its constitutional text, but also in the constitutional conditions under which public authority continues to be demonstrably attributable to the Nation.

Constitutional instability must therefore be understood as symptomatic rather than causal.  The repeated replacement of constitutions does not itself explain constitutional instability.  It constitutes, rather, evidence that the constitutional conditions necessary for the stable attribution of authority have failed to endure.  The constitutional inquiry consequently shifts its attention away from the repeated drafting of new constitutional texts and toward the preservation of the constitutional conditions that permit constitutional title to endure across generations.

Certain constitutional conditions therefore possess juridical significance extending beyond institutional design itself.  Freedom of political judgment, the public ascertainability of truth, institutional independence, and resistance to coercion acquire constitutional significance because they preserve the Nation’s capacity to attribute authority under conditions compatible with constitutional title.  Their constitutional importance derives not from moral preference but from constitutional necessity.

The principal constitutional question therefore does not consist solely in determining how constitutions are adopted, amended, or replaced.  It consists in establishing how the constitutional capacity of the Nation to attribute authority may be preserved across generations.  Only where that capacity endures can constitutional title remain publicly ascertainable, juridically attributable, and susceptible of constitutional demonstration despite the inevitable succession of constitutional texts.  Constitutions endure, therefore, not because they are continually rewritten, but because the constitutional capacity of the Nation to attribute authority survives the passage of generations.

How may the Nation’s constitutional title be preserved and rendered effective once again when the constitutional order has ceased to function in accordance with the Constitution itself?

The answer requires abandoning every hypothetical construction and turning directly to the constitutional text.  The question is not how a rupture of the constitutional order ought to be resolved, but whether the Constitution of the Bolivarian Republic of Venezuela, enacted in 1999, provides the juridical mechanism through which the Nation may restore the effective exercise of its constitutional title once the constitutional order established by that Constitution has ceased to operate in conformity with its own provisions.

The first observation is immediately significant.  The Constitution distinguishes between original constituent power and the constituted powers.  The latter receive defined powers and temporally limited mandates.  The former constitutes the very foundation from which all organs of the State derive their constitutional legitimacy.

That distinction is expressly formulated in Article 347.  ”The people of Venezuela are the repository of the original constituent power.”  The provision does not attribute that status to the President of the Republic, the National Assembly, the Supreme Tribunal of Justice, the Electoral Power, or any of the remaining constitutional organs.  All of them belong to the constituted order.  None receives permanent custody of the Nation’s constitutional title.

The Constitution further confirms that distinction by subjecting every constituted power to constitutional mandates expressly limited in time.

The President of the Republic exercises office for the term established by Article 230.  Members of the National Assembly serve for the period prescribed by Article 192.  Justices of the Supreme Tribunal of Justice are appointed for a fixed term under Article 264.  The same temporal limitation governs the Ombudsperson, the Attorney General of the Republic, the Comptroller General of the Republic, and the members of the National Electoral Council.

The Constitution establishes no exception to that temporal limitation.  No provision transforms a constituted organ into the permanent repository of constitutional title merely because it was originally elected or appointed in accordance with the Constitution.  Legitimacy of origin does not eliminate the temporal limits that the Constitution itself imposes upon the exercise of the powers it confers.

That observation carries immediate juridical consequences.  If every constituted power receives a constitutional mandate subject to expiration, the continuity of the Nation’s constitutional title cannot rest upon the indefinite extension of the mandate of any one of them.  It must necessarily rest upon a constitutional foundation distinct from the constituted organs themselves.

The Constitution expressly contemplates the possibility that its own juridical order may cease to be observed.  Article 333 provides that the Constitution shall not lose its force through an act of force or by any means other than those prescribed by the Constitution itself.  The normative continuity of the constitutional text is thus affirmed even when the constitutional order has been broken.

The same article, however, introduces an observation of extraordinary importance.  It does not assign the duty of restoring constitutional effectiveness to any of the constituted powers.  Nor does it extend the mandate of any constitutional organ for the duration of the constitutional rupture.  Instead, it provides that “every citizen, whether or not invested with authority, has the duty to cooperate in restoring the Constitution to its effective force.”  The constitutional subject once again becomes the citizenry as a whole rather than any organ of the State.

Article 350 develops the same constitutional logic from a complementary perspective.  It likewise does not confer upon any constituted organ the authority to repudiate a regime contrary to the Constitution.  That authority belongs expressly to the people of Venezuela whenever a regime, legislation, or public authority contravenes democratic values, principles, and guarantees or undermines human rights.

There, however, the decisive constitutional problem emerges.  Articles 333 and 350 impose a duty and recognize a constitutional prerogative.  They do not establish the juridical procedure through which the people may effectively exercise that duty and that prerogative once the constitutional order as a whole has ceased to function in accordance with the Constitution itself.  The Constitution preserves the continuity of constitutional title.  It remains silent concerning the mechanism required to render that title effective once again.

That constitutional omission necessarily alters the object of the inquiry.  Whereas the Constitution regulates the ordinary exercise of constituted power, the breakdown of the constitutional order shifts the inquiry to a different problem.  The continuity of the Republic no longer depends upon an expressly prescribed procedure.  It depends instead upon the existence of constitutional principles sufficiently fundamental to permit the constitutional order to be restored without ceasing to remain constitutional.

This gives rise to a different question.  When a constitution expressly identifies the permanent holder of constitutional title yet omits the procedure through which that title may again be exercised following the breakdown of the constitutional order, can the constitutional order itself contain principles sufficient to supply that omission without replacing the Constitution with a different source of authority?

If constitutional title belongs permanently to the Nation rather than to the constituted powers, the procedure of constitutional restoration does not necessarily consist in reinstating the previously existing institutions.  It consists in reconstructing the conditions that enable the Nation once again to manifest its sovereign will through an authentic attribution of public authority.

Accordingly, an electoral authority whose composition cannot constitutionally demonstrate its own legitimacy cannot constitute the foundation of renewed constitutional title.  Constitutional restoration therefore requires the prior constitutional reconstitution of the electoral authority or, should that prove juridically impossible because the constitutional conditions prescribed by the Constitution itself have ceased to exist, the adoption of an exceptional mechanism enabling the Nation directly to manifest its sovereign will under equivalent guarantees of publicity, public ascertainability, and institutional independence.

That deduction does not arise from an institutional preference.  It arises from a logical requirement inherent in constitutional title itself.  If public authority derives from the Nation, the first act of constitutional restoration must necessarily consist in restoring to the Nation the effective capacity to attribute that authority once again.

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