Posts Tagged ‘constitutional legitimacy’

“Displacement of Venezuela’s Constitutional Agency”

July 27, 2026

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Ricardo F. Morín
CGI 2026

Any examination of the policies adopted by the United States toward Venezuela must begin with the constitutional consequence of the presidential election of 28 July 2024.⠀⠀The publicly available, disaggregated polling-station results indicated the election of Edmundo González Urrutia to the presidential term extending until 2031, while the Venezuelan electoral authorities did not publish corresponding disaggregated results capable of substantiating their contrary proclamation.⠀⠀The failure to confront that antecedent constitutional fact allowed subsequent policy to proceed without determining whether the mandate produced by the election remained constitutionally operative.

That omission constitutes the first defect.⠀⠀A constitutional mandate does not arise from diplomatic recognition, foreign approval, or political convenience.⠀⠀A mandate arises from the exercise of constitutional authority by the community from which the constitutional order derives.⠀⠀The election of a president is not identical with constitutional agency, but is a particular expression of it:⠀⠀the constitutional community acts through its institutions and produces a mandate whose authority cannot be displaced merely because an external power chooses not to give the mandate practical effect.

Constitutional agency consists in the capacity of a constitutional community to determine and exercise its own constitutional order through its own institutions.⠀⠀That capacity precedes any judgment concerning the legitimacy of a government.⠀⠀Once the authority to determine legitimacy has been transferred outside the constitutional community itself, constitutional legitimacy cannot be restored.

Even if one were to assume, solely for the sake of argument, that Venezuela’s constitutional order had become impaired, the policies adopted in response could not constitutionally remedy that impairment by relocating essential decisions to the discretionary authority of the Executive Branch of the United States.⠀⠀A remedy directed toward the restoration of constitutional government must preserve the agency of the constitutional community whose government is to be restored.⠀⠀Otherwise, the remedy abolishes the condition upon which constitutional restoration depends.

The distinction between representation and agency becomes decisive at this point.⠀⠀Diplomatic recognition determines whom a foreign government chooses to treat as the representative of another state.⠀⠀Constitutional agency determines how the people and institutions of that state establish and exercise constitutional authority.⠀⠀Recognition may acknowledge constitutional agency, but recognition cannot create, replace, or suspend it.⠀⠀To recognize an external representative while disregarding the constitutional mandate produced by the Venezuelan electorate is therefore not equivalent to preserving Venezuela’s capacity to act constitutionally.

The policies adopted with respect to Venezuela have nevertheless placed decisions concerning national assets, diplomatic representation, the exercise of public authority and the conditions of political succession outside the constitutional community to which they belong.⠀⠀The consequence does not consist merely in foreign influence.⠀⠀It consists in the practical subordination of Venezuela’s constitutional action to decisions adopted by a foreign executive power.⠀⠀Therein lies the fundamental constitutional contradiction.

The constitutional concern does not arise from the existence of foreign assistance itself, but from the relationship between the resources retained under foreign control and those returned as assistance.⠀⠀If revenues derived from Venezuelan national assets substantially exceed the humanitarian assistance subsequently provided, the resulting asymmetry invites a constitutional question.⠀⠀Assistance may then cease to appear as the restoration of Venezuela’s own constitutional capacity and instead become the conditional administration of resources that constitutionally belong to the Nation.

The justification of democratic transition does not resolve that contradiction.⠀⠀A democratic transition can possess constitutional legitimacy only when it restores the authority of the constitutional community rather than replacing that authority with an externally designed succession.⠀⠀A transition that disregards an existing electoral mandate, conditions the disposition of national assets, or determines in advance which political actors may exercise authority does not restore constitutional agency.⠀⠀It substitutes a political design for the constitutional judgment of the nation concerned.

The existence of an electoral mandate, however, does not by itself restore constitutional government.⠀⠀The election determines who is entitled to exercise the Presidency.⠀⠀It does not by itself restore the remaining institutions through which constitutional government ordinarily functions.⠀⠀The Constitution identifies the Presidency, but it does not expressly provide how the interrupted constitutional order is to be restored once its ordinary operation has ceased.

That unanswered question cannot simply be ignored.⠀⠀A constitutional government cannot consist of the Presidency alone.⠀⠀The legislative, judicial, electoral, and other institutions through which public authority is exercised must also be restored.⠀⠀Where the Constitution provides no express procedure for accomplishing that task, the need for a provisional governing body naturally arises.

The constitutional question therefore is not whether such a provisional body may become necessary.⠀⠀Under the present circumstances it may well be.⠀⠀The question is whether its authority proceeds from the constitutional Presidency established by the election or independently of it.⠀⠀If its purpose is to restore constitutional government, it cannot begin by setting aside the constitutional consequence of the presidential election.⠀⠀Otherwise, the process intended to restore the constitutional order would begin by replacing the very constitutional foundation upon which that restoration depends.

The same principle applies to the invocation of national security and to the historical assumptions associated with the Monroe Doctrine.⠀⠀Neither national security nor hemispheric policy may operate as self-validating premises exempt from the constraints imposed by constitutional and international law.⠀⠀Whenever either is invoked to justify the continuing control of another nation’s assets, political representation, or governmental succession, the language of protection assumes the character of tutelage.

The policies adopted toward Venezuela therefore contain two related, though conceptually distinct, defects.⠀⠀The first consists in disregarding the antecedent constitutional mandate produced by the presidential election of 28 July 2024.⠀⠀The second, which remains even if the first were conceded, consists in transferring the exercise of constitutional judgment from Venezuela’s constitutional community to the discretionary authority of a foreign sovereign.

The fundamental constitutional error lies in confusing the power to recognize a representative with the authority to displace a nation’s constitutional agency.⠀⠀Representation may express the constitutional will of a people, but it cannot substitute for that people’s capacity to determine it.⠀⠀A policy that seeks to remedy a defect of constitutional legitimacy by depriving the constitutional community of its capacity to act does not restore constitutional order.⠀⠀It produces a defect more fundamental than the one it purports to correct.

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July 27, 2026

Oakland Park, Florida

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“What Can Presently Be Stated About Venezuela”

July 18, 2026
Ricardo F. Morín
CGI 2026

An officially announced political process is scheduled to begin on August 1, 2026, while authorities in Washington are reportedly considering a broader mechanism through which the United States might assist Venezuela’s material reconstruction.   The former has been publicly confirmed by the parties and by the United States Department of State.   The latter remains under consideration as a longer-term technical and financial framework and has not yet become official United States policy, notwithstanding the humanitarian assistance already authorized by the United States in response to the recent earthquakes affecting portions of Venezuela.

The announced political process follows the removal of Nicolás Maduro from the exercise of executive authority on January 3, 2026.⠀⠀The governmental structure that had previously exercised public authority nevertheless remains in place as part of the transitional arrangements announced by the Trump administration.⠀⠀Those arrangements do not explain the constitutional consequence of the presidential election of July 28, 2024, despite the available voting records indicating that Edmundo González Urrutia had received the majority of the votes, while the electoral authorities withheld the complete results and declared Nicolás Maduro the winner.⠀⠀Nor do they identify whose constitutional authority is to be exercised after August 1.⠀⠀The possible establishment of a junta, or of some other governing authority composed of representatives drawn from opposing political factions, would leave that antecedent constitutional question unresolved.⠀⠀Any subsequent electoral process conducted under an authority whose constitutional basis has not first been established would necessarily inherit that unresolved condition.

Against that background, the contacts between Jorge Rodríguez, who presides over the legislative body presently exercising parliamentary functions in Caracas, and Dinorah Figuera, who presides from exile over the body composed of the deputies elected in 2015, gave rise to the agenda subsequently announced.⠀⠀That agenda encompasses institutional reconstruction, the strengthening of the electoral system, the establishment of guarantees for political participation, and the restoration of civil liberties.⠀⠀The United States has formally adopted that agenda as a Venezuelan initiative directed toward a democratic transition.

The participation of the deputies elected in 2015 must nevertheless be understood within its constitutional limits.   Their presence identifies them as political interlocutors possessing an objectively ascertainable representative antecedent.   Claims have been advanced that their constitutional standing continued beyond the expiration of their elected term.   Those claims, however, do not themselves demonstrate the continuing representative mandate required by the Constitution.   Their participation therefore cannot, by itself, resolve the constitutional status of the body in whose name they act.

The negotiations simultaneously expose a second constitutional question.   If the displacement of the National Assembly elected in 2015 occurred without constitutional foundation, the title of the legislative body that replaced it necessarily becomes subject to the same inquiry.   A successor institution cannot derive constitutional validity from the unconstitutional displacement of its predecessor.   Its title must therefore be demonstrated independently rather than presumed from its continued exercise of legislative authority.

The consequence is that the negotiations bring together two legislative bodies whose constitutional situations remain unresolved for different reasons.   One asserts the continuation of a representative status requiring demonstration.   The other continues to exercise legislative authority under a title that likewise requires demonstration.   Neither circumstance is resolved by the passage of time, by the effective exercise of institutional power or by participation in a political agreement.   The burden of demonstration therefore applies equally to both.

The presidential election of July 28, 2024 occupies a different constitutional position.   It constitutes the most recent direct act through which the Venezuelan Nation attributed the Presidency of the Republic.   The voting records examined by independent observers demonstrate that Edmundo González Urrutia obtained the majority of the votes, while the National Electoral Council did not publish the disaggregated results necessary to substantiate its contrary announcement.   The constitutional period corresponding to that election remains in effect.

The announced negotiations may therefore contribute to constitutional restoration by facilitating the recovery of electoral guarantees, civic freedoms and the institutional conditions indispensable to the functioning of the Republic.   They cannot themselves constitute a new source of public authority or cure, by agreement alone, unresolved defects in title.   Their proper constitutional function, should they attain their declared objectives, would be to facilitate the effectiveness of the Nation’s most recent electoral act rather than substitute another title in its place.

Separately, reports indicate that authorities in Washington have examined a possible technical and financial framework through which the United States might contribute to Venezuela’s long-term reconstruction.   The proposal contemplates technical personnel, engineers and financial resources dedicated to rebuilding infrastructure and essential public services beyond the humanitarian relief already authorized following the recent earthquakes.   No public announcement, executive order, enacted appropriation or bilateral agreement has yet established that broader reconstruction framework as official policy.

Foreign technical assistance would be compatible with Venezuelan sovereignty only insofar as it remained subordinate to constitutionally attributable Venezuelan authority.   It could assist in rebuilding infrastructure, administering resources allocated for that purpose and restoring the operational capacity of public administration.   It could not independently determine the source of Venezuelan public authority or replace the attribution already expressed by the Nation through the presidential election of 2024.

The developments presently unfolding increasingly intersect with one another.   Political negotiations, diplomatic recognition, institutional accommodations, sanctions policy and proposals for material reconstruction no longer operate independently.   Each may appear justifiable when considered in isolation, particularly in light of Venezuela’s prolonged institutional deterioration and the humanitarian consequences recently aggravated by natural disaster.   Considered together, however, they may progressively shape a political settlement before the source of public authority has itself been determined.   In that event, the unresolved defect would risk becoming incorporated into the very institutions intended to restore the Republic.

The constitutional question therefore remains antecedent to every political arrangement that may emerge from these concurrent developments.   Neither political agreement, institutional continuity, the effective exercise of power, foreign assistance nor diplomatic recognition can supply the title that only the Nation itself is competent to attribute.   Urgency cannot eliminate uncertainty, nor can constitutional method guarantee the course of events.   It does, however, furnish the only criterion capable of distinguishing constitutional restoration from the consolidation of a new distribution of public authority.   The seriousness demanded by that inquiry cannot be presumed from negotiations principally designed to achieve political accommodation, immediate stability or material reconstruction.   It requires the prior and public demonstration of constitutional title.   Any arrangement proceeding without resolving that antecedent question would not overcome Venezuela’s constitutional crisis but instead transmit it into the future under a different institutional form.

Bala Cynwyd, Pennsylvania

July 18, 2026

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“The Burden of Constitutional Demonstration”

July 14, 2026
Ricardo F. Morín
CGI, 2026

Every constitutional system presupposes that public authority becomes attributable through constitutionally identifiable acts.   Once that premise is accepted, every proposed response to a constitutional crisis bears a constitutional burden of its own.   It is no longer sufficient to show that a particular solution appears politically desirable, practically effective, institutionally necessary, or internationally supported.   Such considerations may explain why a proposal appears attractive or even urgent.   They cannot demonstrate why the authority it proposes to exercise would become constitutionally attributable to those who claim it.   Every proposed solution must therefore first identify the constitutional source from which its own authority would arise before its political merits can even enter into consideration.

This requirement immediately alters the order of constitutional inquiry itself.   Before foreign policy, transitional governments, negotiated settlements, or any other institutional arrangement may be examined, it is indispensable to determine whether the Nation has already performed the constitutional act capable of attributing public authority.   If that act has already occurred, the constitutional question no longer concerns how authority should be constituted.   It concerns whether the attribution already made by the Nation has been prevented from producing its institutional effects.   Every subsequent proposal must then be examined in light of that antecedent determination rather than independently of it.

The presidential election of July 28, 2024 constitutes the first test of that methodology.   Before asking which authority should govern, it is necessary to determine whether the constitutional act through which the Nation attributes the Presidency has already occurred and what juridical consequences follow from it.   If the answer is affirmative, the controversy no longer turns upon the constitution of a new title.   It turns instead upon the reasons why a title already attributable has been unable to acquire institutional effectiveness.   Only after that question has been resolved does it become constitutionally possible to assess any alternative.

Once that inquiry has been resolved, the significance of foreign policy also changes.   Foreign governments may recognize, support, exert pressure, negotiate, or facilitate particular conditions.   They may influence the circumstances within which a constitutional order seeks to restore itself.   They cannot, however, perform the constitutional act through which Venezuelan public authority becomes attributable to the Nation.   The constitutional question is therefore not whether a particular foreign policy is geopolitically coherent or strategically effective in its own terms.   It is whether that policy advances the effectiveness of a constitutional title already attributable to the Nation or whether, even without intending to do so, it postpones, displaces, or substitutes that title with considerations of political or institutional expediency.

The same burden of constitutional demonstration rests equally upon every transitional authority that proposes to exercise public power.   It is constitutionally immaterial whether the proposal takes the form of a military government, a civilian council, a negotiated transition, a judicial authority, a congressional arrangement, an internationally sponsored administration, or a governing junta.   The identity of the proposal remains subordinate to an antecedent question that none of these arrangements may evade.   Through what constitutionally identifiable act would the authority that such a body proposes to exercise become attributable to the Nation?   So long as that demonstration remains absent, the proposal may appear prudent, competent, or politically advantageous.   It will not, however, have satisfied the burden of constitutional demonstration necessarily borne by every claim to authority.

The inquiry thus returns to the point from which it began.   Constitutional crises are not resolved merely by identifying who appears most capable of governing or which proposal inspires greater confidence or promises more immediate results.   Every proposed solution must first submit to the same constitutional requirement that the crisis itself has brought to light.   Otherwise, the attempt to restore constitutional order merely substitutes one insufficiently demonstrated claim to authority for another equally in need of demonstration, leaving untouched the question from which no constitutional inquiry may depart: through what act did that authority become constitutionally attributable to the Nation?

If the burden of constitutional demonstration is indeed inherent in every claim to authority, its validity must be capable of being tested precisely where circumstances appear to justify exceptions.   No case presents a more exacting test than one in which the intervention of a foreign State alters the conditions under which the constitutional order of another Nation must be restored.   It is precisely at that point that the distinction between the political effectiveness of an action and its constitutional consequences acquires its full significance.

The constitutional significance of these events does not lie merely in the preference for one political arrangement over another.   It lies in the transformation of a temporary factual condition into an asserted structure of public authority.   The question, therefore, is not whether the United States removed Nicolás Maduro, but what it did with the governmental vacuum created by his removal.

The intervention of the United States did not merely prevent the restoration of the constitutional consequences arising from the presidential election of July 28, 2024.   By removing Nicolás Maduro while allowing the governmental structure through which the usurpation had been sustained to remain in possession of the State, it separated the removal of the usurper from the restoration of the constitutional title that his removal should have made possible.   The authority attributable to Edmundo González Urrutia by virtue of the electoral act was not permitted to acquire institutional effectiveness.   Instead, the United States entered into negotiations with officials whose authority arose precisely from the order constituted in open defiance of that same constitutional act.

The resulting contradiction extends beyond a mere divergence between democratic principle and political expediency.   The Nation had already performed the constitutional act through which presidential authority became attributable.   Once the person who had prevented that attribution from acquiring institutional effectiveness had been removed, no further determination concerning the constitutional consequences of that act fell within the constitutional competence of the United States.   Its constitutional relevance could consist only in facilitating the effectiveness of the title already produced by the electoral act.   By recognizing the surviving members of the de facto government as the authority competent to administer the transition, the United States subordinated the constitutional mandate of the Nation to an arrangement defined by its own strategic considerations.

That decision did more than preserve an existing de facto situation.   Recognition, negotiation, the restoration of diplomatic relations, the lifting of sanctions, and the acceptance of decisions adopted by the de facto authorities enlarged the sphere of action available to those who exercised power without constitutional title.   Powers that until then had rested exclusively upon control of the governmental apparatus acquired an international projection that enabled those authorities to represent the State, negotiate over its resources, reorganize its institutions, and determine the conditions under which a future transition would unfold.   Their continued presence therefore ceased to correspond to a merely provisional condition while constitutional title was being restored.   They came to exercise authority in spheres from which the absence of constitutional title should have excluded them.

The constitutional contradiction reaches its fullest expression at this point.   Once the Nation had performed the constitutional act through which public authority became attributable, no subsequent political actor, domestic or foreign, could substitute the constitutional consequences of that act with a determination of its own without first assuming the burden of demonstrating the constitutional source from which such displacement derived its legitimacy.

The electoral result was not merely postponed.   Its constitutional priority was displaced.   Officials whose authority had never derived from that result were permitted to determine when, how, and under what conditions the constitutional consequences of the act already performed by the Nation might acquire institutional effectiveness.   A government without constitutional title thus came to exercise authority over the eventual restoration of a title whose attribution had already occurred, while the person to whom the Presidency had become constitutionally attributable by virtue of the electoral act remained excluded from its exercise.

The removal of the principal usurper did not therefore authorize the reconstruction of Venezuelan public authority through political negotiations with those who continued to exercise power.   It required the restoration of the constitutional consequence already produced by the Nation.   By strengthening those who remained in possession of the governmental apparatus while the electoral attribution continued to be deprived of institutional effectiveness, the intervention enlarged the authority of a de facto government without demonstrating the constitutional source from which that enlarged authority would become attributable.

The burden of constitutional demonstration does not disappear when foreign governments intervene or when circumstances appear to demand exceptional solutions.   On the contrary, the more extraordinary the crisis, the greater the need to demonstrate the constitutional act through which the authority proposed for exercise becomes attributable.   Once the Nation has performed the constitutional act of attribution, no subsequent political actor, domestic or foreign, may substitute its own determination for the constitutional consequences of that act without first demonstrating the constitutional authority by which it has become entitled to displace them.   Otherwise, the transition ceases to constitute the restoration of constitutional order and becomes the mechanism through which a new authority installs itself without satisfying the very requirement whose absence it purported to correct.   The burden of constitutional demonstration is therefore not an exceptional requirement peculiar to particular moments of crisis.   It is the permanent condition that preserves the primacy of the Nation’s constitutional act against every subsequent claim to exercise authority in its name.

July 14, 2026

In transit, Pennsylvania

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“The Exercise of Power and Constitutional Title”

July 13, 2026
Ricardo F. Morín
CGI 2026

The question concerning the exercise of public power can arise only after the constitutional title under which that power is exercised has been identified.   Once that order of inquiry is altered, the very nature of the constitutional problem likewise changes.   Attention ceases to be directed toward the act through which public authority became constitutionally attributable to the Nation and turns instead toward identifying those who effectively exercise power.

What occurs when the inquiry into the Bolivarian Republic of Venezuela itself abandons the question of constitutional title?

At first sight, the inversion appears innocuous.   The institutions that administer the State, exercise the public force, dispose of public resources, represent the Republic in its international relations, or adopt governmental decisions are identified.   The description may attain a high degree of precision.   None of those observations, however, determines the constitutional title by which that power is attributable to the Nation.

The constitutional question is displaced.   The foundation of public authority ceases to constitute the original object of inquiry.   The exercise of power assumes its place.

A recent example illustrates that alteration in the order of inquiry with particular clarity.   In an extensive report published by The New York Times, Tyler Pager and Anatoly Kurmanaev describe the effective exercise of power in Venezuela through a detailed reconstruction of the functions attributed to Secretary of State Marco Rubio, Delcy Rodríguez, as well as the interim government itself.¹   The report attributes to Marco Rubio control over the public finances, the direction of foreign policy, and decisive influence over ministerial appointments and the timing of future elections, while describing Delcy Rodríguez and the interim government as the authorities responsible for the ordinary conduct of government.   None of those descriptions is accompanied by the antecedent constitutional question.   The analysis does not examine by what constitutional act Marco Rubio, Delcy Rodríguez, or the interim government itself became constitutionally attributable to the Venezuelan Nation.

The consequence extends beyond the particular case.   The effective exercise of power becomes the principal object of analysis while constitutional title ceases to be an object of inquiry.   Governmental stability, the administration of public resources, territorial control, foreign policy, or the holding of future elections consequently acquire decisive importance because the analysis has come to be organized within a geopolitical framework.   The constitutional question receives no different answer.   It simply ceases to be asked.

The difficulty, therefore, does not lie in the description of the facts.   It lies in the order of inquiry.   So long as the effective exercise of power occupies the place of constitutional title, the antecedent constitutional question remains unexamined.

Once the question of constitutional title has been displaced, the sovereign will of the Nation ceases to govern the Republic constitutionally.   Power continues to be exercised in the name of Venezuela, yet the constitutional attribution of that power no longer proceeds demonstrably from the Nation.   From that moment forward, the people cease to constitute the foundation of the power exercised over them and become its serf.   The Republic thereupon becomes tributary to decisions whose origin no longer resides within the Nation itself.   A Republic ceases to be genuinely democratic when public authority continues to be exercised without the Nation being able to demonstrate constitutionally that such authority proceeds from it.

The omission of the constitutional question therefore tends to perpetuate itself.   Each new proposal for political transition begins from the effective exercise of the power already in existence rather than from the constitutional act through which the Nation would once again attribute public authority.   The political order thus begins to reconstruct itself upon the very constitutional omission that made its restoration necessary.   The indeterminacy of constitutional title consequently ceases to constitute a transitory anomaly and risks becoming the permanent condition within which every future solution seeks to unfold.

Epilogue

Every constitutional inquiry necessarily remains open to the passage of time.   No line of reasoning can anticipate the particular manner in which history will ultimately unfold.   It can, however, identify the constitutional conditions within which that history must proceed so long as the question of constitutional title remains absent from public reasoning.

Future elections may take place sooner or later.   Governments may succeed one another.   International alignments may change.   Effective centers of decision may shift from one nation to another or be redistributed among different political actors.   None of those transformations will, of itself, alter the antecedent constitutional question.   So long as the Nation has not recovered the capacity publicly to demonstrate the act by which it attributes public authority, the restoration of constitutional government will remain an expectation rather than a constitutional reality.

Time, moreover, does not of itself remedy constitutional omissions.   It may prolong them.   It may conceal them beneath new institutional forms.   It may even transform them into the silent premise upon which entire generations come to understand the exercise of power without perceiving the absence of the constitutional title from which that power ought to derive.

That may well constitute the deepest consequence of a prolonged constitutional rupture.   The disappearance of constitutional title ceases to be perceived as an anomaly requiring restoration and gradually comes to be accepted as the ordinary condition of public life.   The very horizon of public life ultimately contracts to the administration of the power already in existence.   The Nation ultimately grows accustomed to debating who governs without ever again asking from what constitutional source the power exercised in its name proceeds.

A Republic may survive for a long time despite the degradation of its institutions.   It may even survive the succession of governments.   What is far less likely to survive is the loss of the constitutional question.   Upon that question every public authority depends.   Once that question disappears from the consciousness of a Nation, the restoration of constitutional order no longer depends solely upon political will.   It comes to depend upon the recovery of the constitutional memory of a free and sovereign people.

July 13, 2026

Bala Cynwyd, Pennsylvania

Endnote

  • ¹ Tyler Pager and Anatoly Kurmanaev, “How Marco Rubio Is Running Venezuela From Afar,” The New York Times, July 11, 2026; updated July 13, 2026.

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“Constitutional Title: Part Two”

July 11, 2026
Ricardo F. Morín
CGI, 2026

The Venezuelan constitutional controversy is not fundamentally a dispute over the exercise of governmental power.  It is a dispute over the constitutional attribution of authority.  By constitutional attribution of authority is meant the constitutional act through which public authority becomes publicly ascertainable and therefore juridically attributable to the sovereign Nation.  Until that antecedent question has been constitutionally resolved, proposals concerning transitional governments, constitutional amendment, constitutional reform, constituent power, or any other institutional arrangement remain incapable of establishing the constitutional title from which governmental authority itself derives.

The present analysis therefore proposes neither a governing junta, an interim presidency, a constitutional amendment, a constitutional reform, nor the convocation of a constituent assembly.  Each of those proposals may ultimately prove constitutionally sufficient or insufficient.  That question cannot be answered in the abstract.  Their constitutional validity depends upon antecedent conditions more fundamental than the institutional arrangements themselves.  The object of the present analysis is to identify the constitutional conditions by which every proposal intended to restore the constitutional attribution of governmental authority must ultimately be judged.

The constitutional attribution of governmental authority is no longer publicly ascertainable.  It has not been demonstrated that the existing constitutional organs retain the constitutional capacity to restore the constitutional conditions under which constitutional title may once again arise.  Nor has it been demonstrated that a transitional authority may itself acquire constitutional title before the restoration of those constitutional conditions constitutes the very purpose of its existence.  Equally unresolved is whether constituent power may be invoked while simultaneously claiming juridical continuity with the constitutional order established by the Constitution of 1999.  More fundamentally, constitutional theory has yet to demonstrate that any extra-constitutional arrangement can avoid reproducing the very constitutional defect it purports to remedy.  Under those circumstances, it necessarily remains unresolved whether the constitutional procedures governing amendment, reform, or any other mechanism established by the Constitution may validly be invoked by authorities whose own constitutional title forms part of the very controversy those procedures are expected to resolve.  From that constitutional uncertainty arises what may be described as the burden of constitutional demonstration.  By that expression is meant the obligation resting upon every claimant to constitutional authority to demonstrate that the constitutional conditions under which public authority may lawfully become publicly ascertainable and therefore juridically attributable to the Nation have in fact been satisfied.  That burden necessarily rests upon those who claim the authority to prescribe the constitutional means by which those conditions are to be restored.  Until it has been discharged, no institutional proposal may presume the constitutional legitimacy it seeks to establish.

Precisely because those antecedent questions remain unresolved, any proposal intended to restore the constitutional attribution of governmental authority must satisfy conditions arising from the nature of constitutional authority itself.  It cannot derive its legitimacy solely from political agreement, military success, diplomatic recognition, or practical necessity.  It cannot presume the constitutional title whose constitutional attribution remains unresolved.  It cannot exercise powers that presuppose the very authority whose constitutional attribution remains unresolved.   Nor can it substitute institutional convenience for the publicly verifiable manifestation of the Nation’s sovereign will.

Those constitutional conditions necessarily govern not only the constitutional sufficiency of every proposal for restoration but also the constitutional position of those entrusted with restoring them.  It is the constitutional recognition that the constitutional attribution of public authority, from which constitutional title alone may arise, is too fundamental to depend upon assumptions concerning the good faith of those temporarily exercising public authority.  The preservation of the integrity of constitutional title therefore requires objective constitutional safeguards.  Those entrusted with restoring the constitutional conditions under which constitutional title may once again arise cannot be permitted to exercise temporary authority under conditions that allow its continued possession to become indistinguishable from the constitutional title whose restoration constitutes the sole justification for its existence.  For that reason, the temporary exercise of public authority must remain confined to those acts strictly necessary to restore the constitutional conditions under which the sovereign will of the Nation may once again become publicly ascertainable.  Because temporary authority derives its constitutional justification exclusively from the restoration of constitutional conditions, its existence cannot extend beyond the fulfillment of that constitutional purpose.  Because constitutional title can arise only through a constitutional act that is publicly ascertainable, the process through which that act is made possible must itself remain transparent, publicly ascertainable, and independently verifiable.  Those entrusted with administering that process must therefore remain constitutionally incapable of deriving personal or political advantage from the constitutional title whose restoration they are charged with making possible.  Only under such conditions does the burden of constitutional demonstration remain objectively capable of being discharged.

The restoration of the constitutional attribution of governmental authority does not require the impossible expectation of politically neutral actors.  Constitutional government presupposes political plurality, and plurality necessarily entails competing interests among those entrusted with the exercise of public authority.  Conflict of interest is therefore not an accidental defect of democratic government but an inherent consequence of representative institutions.  The constitutional difficulty arises, not because public officials possess political commitments, but because those whose own constitutional title forms part of the controversy cannot alone furnish the constitutional demonstration by which that controversy is to be resolved.

The first objective is therefore neither the replacement of one government by another nor the immediate exercise of governmental power.  It is the re-establishment of the constitutional conditions under which the sovereign will of the Nation once again becomes publicly ascertainable through a transparent constitutional process capable of attributing public authority in a manner that is independently verifiable and binding upon all.  Only after those antecedent conditions have been restored may governmental authority once again become constitutionally attributable to the Nation.

The present analysis therefore advances no institutional blueprint.  It establishes the constitutional conditions by which every institutional proposal must be judged.  Whether the eventual solution assumes the form of a constitutional amendment, a constitutional reform, a constituent assembly, a transitional authority, or another institutional arrangement altogether, none may claim constitutional legitimacy until it satisfies those antecedent conditions under which constitutional title may once again arise.

Bala Cynwyd, Pensylvannia
July 11, 2026

Endnote:  

  • The Constitution of 1999 does not contemplate a “constitutional emergency” as an autonomous juridical institution or as a specific mechanism for the substitution or reorganization of public authority.  If the concept is employed in a strictly juridical sense, it requires an independent constitutional foundation.  If, on the contrary, it is used merely as a doctrinal description of a constitutional crisis, it cannot by itself produce the normative consequences later attributed to it.

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