Observations On Perception

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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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