Author Meets Critics: Joshua Braver's "We, The Mediated People"

Session Submission Type: Author meet critics

Session Description

This Author Meets Critics panel brings together a distinguished group of democratic and constitutional theorists to discuss Joshua Braver’s new book, “We, the Mediated People: Popular Constitution-Making in Contemporary South America (Oxford University Press, 2023).

Constitutions often make their replacement difficult. Some lack replacement mechanisms or spell out awkward constitution-making bodies. Others contain onerous amendment rules, eternity clauses, and/or outright prohibitions on a new constitution. But constitution-making is often understood as the rare time when the people are truly supreme, having broken away from an old constitution and not yet regulated by a new one. Political actors involved in constitution-making thus often act and speak as if this is true, claiming the right to do anything on the road to creating a new legal foundation. In such moments, these actors face a choice: how and how much to violate the existing constitution when creating a new one. “We, the Mediated People” directly addresses this question, in the process showing that the stakes are nothing less than how the “people” are conceived.

This book retells the story of popular constitution-making in South America to sketch out two broad ways existing law and institutions can and are treated during constitution-making. On the one hand, in lawless constitution-making, populist leaders define the people as one segment of the population that is unbound to law, thereby creating new constitutions that often centralize powers in the leaders’ hands and completely sidelines those outside the designated ‘people’. On the other hand, political actors can engage in what Braver calls the “extraordinary adaption” of old institutions. Here, the people and its constitutional convention may include all parties. Rather than overthrowing old institutions and opening a legal void, the revolutionary party gains offices through democratic elections and then repurposes the old regime's institutions by bending, reinterpreting, and even breaking their rules. However, it never creates a legal vacuum, and this partial legal continuity facilitates the participation of old parties that continue to hold some power in the previous constitution's institutions. The adaptation must be principled: the revolutionary must first exhaust all legal channels, openly acknowledge the violation to seek popular vindication, and concede enough to the opposition so that it may begrudgingly acquiesce to the new constitution.

“We, the Mediated People” develops these theories of constitution-making by examining all four instances of popular constitution-making in contemporary South America. It shows how populists in Venezuela and Ecuador established semi-authoritarian constitutions through lawless constitution-making, while Colombia and Bolivia managed to avoid the same fate by engaging in extraordinary adaptation.

The critics on this panel include leading scholars on comparative constitutionalism, constitution-making, populism, and popular sovereignty. It will be chaired by another scholar who works on similar themes. While this is a large panel, time will be left for audience question and discussion.

Sub Unit

• Division 3: Normative Theory

Cosponsor

• Division 27: Constitutional Law and Jurisprudence

Chair

• Jeffrey A. Lenowitz Brandeis University

Presenters

• Emily Zackin Johns Hopkins University

• Andrew F. March University of Massachusetts, Amherst

• Andrea Pozas-Loyo UNAM-IIJ

• Kim Lane Scheppele Princeton University

• Joshua Braver University of Wisconsin