
Contents
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2.1 Introduction 2.1 Introduction
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2.2 Constitutional History 2.2 Constitutional History
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2.3 Exclusionary Plurality 2.3 Exclusionary Plurality
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2.4 The Initial Structuring of the Assembly 2.4 The Initial Structuring of the Assembly
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2.4.1 Legal Exhaustion in Bolivia 2.4.1 Legal Exhaustion in Bolivia
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2.4.2 The Illegal and Inclusive 2004 Amendment Permitting a Constituent Assembly 2.4.2 The Illegal and Inclusive 2004 Amendment Permitting a Constituent Assembly
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2.4.3 Inclusive Electoral Rule for and Approval Rule Inside the Constituent Assembly 2.4.3 Inclusive Electoral Rule for and Approval Rule Inside the Constituent Assembly
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2.5 Subsequent Adjustments to the Framework: Congress vs Constituent Assembly 2.5 Subsequent Adjustments to the Framework: Congress vs Constituent Assembly
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2.5.1 Extraordinary Reinterpretation of the Assembly’s Location 2.5.1 Extraordinary Reinterpretation of the Assembly’s Location
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2.5.2 Extraordinary Amendment of the Assembly’s Location 2.5.2 Extraordinary Amendment of the Assembly’s Location
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2.5.3 Congress’s Lawless Attempt to Approve the Referendum Statute 2.5.3 Congress’s Lawless Attempt to Approve the Referendum Statute
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2.5.4 PODEMOS’s Lawlessness: The Autonomy Statutes and the Massacre at Pando 2.5.4 PODEMOS’s Lawlessness: The Autonomy Statutes and the Massacre at Pando
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2.6 Final Ratification and Contents 2.6 Final Ratification and Contents
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2.7 Conclusion 2.7 Conclusion
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5 Constitutional History of the Colombian Paradox (1886–2016): Hegemony, Exception, and Postponement
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2 The 2009 Bolivian Constitution
Get accessJoshua Braver, Climenko Fellow and Lecturer on Law, Harvard Law School.
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Published:13 January 2022
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Abstract
The ‘people’ are the ultimate source of authority for a constitution. But who are ‘the people’? The danger is that populist leaders will define the people as one segment of the population that is unbound by law to create a new constitution that centralizes power in the leader’s own hands. This is exactly what happened with the creations of the 1999 Venezuelan and 2008 Ecuadorian constitutions. In many ways, Bolivia is a sister country to Venezuela and Ecuador. However, unlike the Venezuelan and Ecuadorian Constitutions, the 2009 Bolivian Constitution has reasonable levels of checks and balances and respect for the rule of law. I trace Bolivia’s divergence to its peculiar constitution-making process and how that process embodies a profound theory of constituent power, that is the relationship between law and ‘the people’ in constitution-making. Bolivia illuminates an alternative idea of the people’s relationship to law that I call ‘extraordinary adaptation’. In it, law is simultaneously transcended to break with the past and drawn upon to ensure the inclusion of multiple actors. Even as many of the specific rules of the old institutions are bent, reinterpreted, or broken, those institutions are still ‘extraordinarily adapted’ to regulate the creation of the new constitution. The process may violate a law to realize a new beginning, but it does not plunge the country into a legal abyss. It may be illegal, but it is not lawless. The illegality must be principled in three ways: (1) The violator must exhaust all other legal channels; (2) openly acknowledge the violation in search of popular vindication, and (3) concede enough to the opposition so that it may begrudgingly acquiesce to the new constitution. This liminal legal space constructs a plural people that may realize their freedom to break with the past but still stave off the establishment of semi-authoritarian constitutions.
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