“I swear before God, before the fatherland, and before my people, that upon this moribund constitution, I will enforce and propel the necessary democratic transformations so that the new republic may have a magna carta appropriate to a new age.” 

–Hugo Chávez ¹ Open footnote #1 1 Footnote #1 content: TeleSur tv, Venezuela recuerda hoy la primera juramentación de Chávez, YOUTUBE, at 0:51–1:19 (Feb. 2, 2013), https://www.youtube.com/watch?v=cnSIJrhzeJc.  close

In his inaugural address, President Joe Biden praised the “resilience of our Constitution” for defeating a riotous mob that attempted to overrun the Capitol and stop the certification of Electoral College votes that declared him the victor in the 2020 election. But constitutionalism itself can be a path to authoritarianism, and old constitutions are just as ripe for tyrannical exploitation as new ones. This Note is the first to compare U.S. and Venezuelan constitutional design to demonstrate how liberal-democratic constitutions can facilitate partisan institutional capture and allow authoritarianism to take root. In the United States, constitutional reverence alone will not prevent another crisis in 2024, and dismissing these efforts to undermine the rule of law as the thing of “banana republics,” as public officials and scholars have done, wastes an opportunity to identify the path that pulled American democracy to the brink. 

Instead of dismissing the Venezuelan case as too dissimilar from the American one, I argue that both constitutional architectures allowed an elected president to capture the legislature, pack the judiciary, and delegitimize the credibility of elections under the guise of popular sovereignty through distinct paths. Necessary U.S. federal reforms can prevent another crisis in 2024, but because of the Electoral College and other minoritarian work-arounds, state reforms may be more effective in guaranteeing adequate democratic representation. Legal safeguards to ward off constitutional exploitation have to be cemented in place—as the election of 2020 showed, relying on abstract norms and shared ideals is insufficient. 

Continue Reading The Paper-Thin Constitutions: Paths to Authoritarianism in the United States and Venezuela.