People power



He says there is often a clash between constitutionalism, “which in the last instance is about telling people the things they shouldn’t do”, and democracy, “which is about telling people they can govern themselves in any way they want”.




Puerto Rican-born Joel is interested in a third way, currently followed by just three Latin American countries, which he says comes closer to achieving the ideals of both constitutionalism and democracy.

Bolivia, Ecuador and Venezuela have created a process that allows for the constitution to be reformed or rewritten ifthere is enough popular demand.

In these countries, if a percentage of eligible voters (which ranges from 12–20 percent in the three countries) sign a petition, government is required to call a referendum on whether a special assembly should be convened to rewrite the  constitution. The new constitution must then be ratified in another referendum.

“This procedure has never been used,” says Joel, “but it’s interesting to see the emergence of constitutions that allow for their own replacement, albeit through highly democratic procedures. Usually, constitutions aspire for the opposite—to be permanent.”

Joel says that because these Latin American constitutions were adopted after much controversy, “they tend to be regarded with suspicion and as temporary anomalies”, but he thinks their approach has a lot going for it.


Joel is the author of Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power, published in 2012, and is now working on his next book. Its focus is the way in which judges, government officials and citizens have used, and do use, the concept of constituent power in different legal contexts.

“A common perception is that constituent power, or people power, is the type of power that is exercised in a revolution or coup d’état but actually the concept has been present in legal discourse for several hundred years and has been used to both justify acts and limit political power.”