A critique of populist jurisprudence: Courts, democracy, and constitutional change in Colombia and Venezuela

The purpose of this dissertation is to critically assess the use of the jurisprudential approach to the problem of constitutional change developed by the courts of Colombia and Venezuela during the last wave of Latin American constitutional reformism. I attach to this approach the label of Populist Jurisprudence. The courts of Colombia and Venezuela have recovered the distinction between constituent and constituted powers developed by E.J. Sieyes and Carl Schmitt and applied it, first, to the episodes of constitution making that led to the adoption of the current constitutions of these countries and, second, during processes of constitutional change set in motion by populist presidents seeking to extend the number of terms in office for which they could run. Through detailed analysis of these processes of constitutional change this dissertation will show that despite the eventual capacity of populist jurisprudence to open the democratic regime to the participation of excluded political forces and to protect the democratic regime against attempts to usurp the constituent power of the people, its adoption by the courts is most likely to yield authoritarian results. Therefore, this critique of populist jurisprudence is an attempt to persuade Latin American constitutional judges of the need to put aside the conceptions of democratic legitimacy and constitutional change upon which they have been relying until now and move towards a new jurisprudential approach that is better suited to avoid the perils of authoritarianism.