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Transformative Constitutionalism in Latin America - The Emergence of a New Ius Commune edited by von Bogdandy, Armin; Ferrer Mac-Gregor, Eduardo; Morales Antoniazzi, Mariela; Piovesan, Flávia; Soley, Ximena (22nd June 2017)

Part II The Domestic Element, 11 The “New” Latin American Constitutionalism: Old Wine in New Skins

Roberto Gargarella

From: Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune

Edited By: Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, Ximena Soley

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 January 2020

(p. 211) 11  The “New” Latin American Constitutionalism

Old Wine in New Skins

I.  Introduction and Preliminary Clarifications

For some years now, and in particular since the adoption of new constitutions in Colombia (1991), Venezuela (1999), Ecuador (2008), and Bolivia (2009), there has been talk of a “new” Latin American constitutionalism. I will argue, however, that it is difficult to speak of any “new” Latin American constitutionalism in allusion to these constitutions, because their content is all too similar to what was there before. The term in question might have some sense to the extent that “new” is employed very narrowly, as a synonym of “latest” or “most recent.” In that case, the idea of a “new Latin American constitutionalism” might indeed be pertinent, albeit fairly uninteresting. Regardless, such a narrow definition does not seem to be the one in the minds of most people who talk about “new constitutionalism.” They appear to subscribe to a “broad” and not “narrow” definition; one that is generally also more commendatory than neutral.

In this chapter, I will critically examine the notion of “new” Latin American constitutionalism to suggest that what is presented as “new” turns out to be, in general, all too “old.” Basically, I will argue that the persistence of central traits of the “old” Latin American constitutionalism—above all, the organization of power based on a very limited notion of democracy, one emblematic of the 19th century—affects the actual value and appeal of this so-called “new” constitutionalism. Specifically, I maintain that the greatest achievements of the regional approach to constitutionalism, which are fundamentally concentrated in the area of constitutional rights (social, economic, cultural, and multicultural), appear to be blocked by how power is organized, a structure that (p. 212) lies in tension with the principles and aspirations enshrined in the section on rights. This type of problem, in any case, is compounded by other tensions within these constitutions, all of which, to some extent, explain the institutional deficiencies that continue to characterize the region.

The preceding paragraph, however, requires some clarification. In the first place, I am adopting a rather modest vision of law here. I understand the contributions that law can make toward social reform or to address the crises (political, social, or economic), so common in the region, to be limited, but not insignificant. For this reason, I would like to make it clear from the start that I reject both the idea that law is superficial, espoused by a part of the Left for several decades, or at least until the late 1970s, and the over-optimistic visions, that consider the autonomy and transformative potential of the law as a given.

Second, I would also like to dismiss two possible points of confusion related to the intrinsic value or insignificance of this regional constitutionalism. Before all else, I want to make it known that I find many of the contributions of Latin American constitutionalism to be positive and to have enriched global constitutionalism (some obvious examples are the granting of constitutional status to social rights and the development of the rights of indigenous communities). In addition, I find these recent constitutions to be, on balance, better than the 19th century constitutions that until recently predominated in the region. Similarly, I would like to point out that many of the aspects that I find unattractive in Latin American constitutionalism do not correlate with virtues that, by contrast, I note in European or North American constitutionalism. I recognize in those traditions problems which are similar to those of Latin American constitutionalism and others that are more unique to them. In any case, I will not elaborate further here on the analysis of extraregional constitutionalism, something that I have already discussed elsewhere.1

Lastly, I would like to make the basic premises of my argument explicit. When examining the different national constitutions in the region, I always assume that they—beyond the obvious complexities that are unique to them—are united by certain common traits. First of all, I see them as divided in two main parts, that is, in one organic section, which refers to the organization of power, and in one dogmatic section, which contains a declaration of rights.2

I also maintain that both parts of the constitution are interrelated, despite the frequent effort made to read them as autonomous sections. Another premise of my approach is that a reform in one of these sections tends to have an impact, not only (p. 213) within that section—let us call this the intra-sectional impact—but also in the opposite section—which I will call the inter-sectional impact. In order to evaluate any proposal for constitutional reform adequately, it is therefore necessary to determine, in each case, their chances of success—which includes assessing the odds that the reform will manage to “overcome” the inertial forces of the old constitution. We should thus recognize what must be done to ensure that the “new” reform prevails over the existing “old” constitutional scheme—how to make sure the “new” triumphs over the “old.” It involves a juridical calculation by Latin American reformists that, for the most part, has been conspicuously absent or inadequate.

In what follows, I will give an account of the evolution of Latin American constitutionalism over time, paying particular attention to the continuities and changes. This will facilitate the evaluation of a constitutional legacy that spans two centuries.

II.  Four Stages of Latin American Constitutionalism

With the help of Juan Bautista Alberdi—one of the great 19th century ideologues of Latin American constitutionalism—I am going to divide the evolution of the regional constitutionalism into four stages, each of which was designed to address and solve different problems: “experimental” constitutionalism (1810–1850); “foundational” constitutionalism (1850–1917); “social” constitutionalism (1917–1980); and human rights constitutionalism (1980–2000).

A.  Experimental constitutionalism or the constitutions of independence

Alberdi spoke of an “early constitutional law” following the wars of independence, which was especially concerned with the consolidation of the newly minted states. Within this “early constitutionalism” we find, for example, constitutions such as that of Chile (1823 and 1833—the most stable constitution in 19th century Latin America and upon which Alberdi and Mariano Egaña had great influence); the failed monarchist-leaning experiments attempted in Argentina and Mexico; and several constitutional projects attempted by Simon Bolivar in Bolivia or New Granada.

In Chapter 2 of his most influential work, Bases and Starting Points for the Political Organization of the Argentine Republic, Alberdi explores the content of this “early constitutional law” of the region in the following terms:

What are the obstacles that the initial constitutional law was meant to overcome? All of the constitutions that came out of South America during the war of independence were the complete expression of the prevailing need of the times. This need was ending the political power that Europe had exercised over the continent, beginning with the conquest and continuing with colonialism: ensuring its complete extinction meant going as far as denying Europe any type of superiority whatsoever in these countries. Independence and external freedom were the vital interests that preoccupied the legislators at the time.3

(p. 214) This “early constitutional law” was fundamentally aimed at consolidating independence, which explains the abundance of institutions that concentrated power. Many believed this was the only means of ensuring the desired order and stability. It was, without doubt, the time of greatest experimentation in the region’s constitutional history, and resulted in atypical (and short-lived) institutions such as that of the “moral power” which Simon Bolivar presented at the Congress of Angostura in 1819 (invoked again in the 1999 Venezuelan Constitution); the “moderating power” approach à la Benjamin Constant attempted in Brazil (1824), Nicaragua (1826), and Mexico (1836), and implicit in the moral code and the “visiting senators” (moral guardians) put forward in 1823 by Juan Egaña in Chile. We also see forays that are decidedly corporatist (for example, senates composed of clergy, military officers, large landowners, and industrialists, etc.), the proposals of Lucas Alamán in Mexico (1834), those incorporated into the 1919 Argentine Constitution. There were also monarchist experiments such as those launched by Manuel Belgrano in Argentina or carried out by Agustin Iturbide in Mexico in 1821 (Mexico would briefly experiment with this again in 1863). A “three-headed” executive system was also considered at an early stage in Venezuela and Peru and there were also ultra-federalist attempts evident, for example, in the 1863 Colombian Constitution.

B.  The foundational period of Latin American constitutionalism

At this stage Alberdi and his contemporaries began to draft constitutions. This period—from 1850 to around the end of that century—is the second and decisive stage of Latin American constitutionalism. Alberdi believed that his generation of constitutionalists should direct their efforts at promoting a new kind of constitutionalism, one motivated by preoccupations distinct from those that had dominated the early period described above. Once independence had been consolidated, it was time—Alberdi held—to channel constitutional energy toward strengthening the economy (and many of the intellectual references of the time, such as José María Samper in Colombia and Andrés Bello in Chile, seemed to concur with him). In Alberdi’s words:

In those days (referring to early constitutionalism), the priority was securing independence through arms; today we must attempt to ensure it through the material and moral growth of our people. The political objectives were the great objectives of the time; today we must especially devote ourselves to economic objectives.4

This period was particularly productive. It was then that many of the most influential national constitutions in the history of Latin American constitutionalism were written, including the 1857 Argentine Constitution, the 1857 Mexican Constitution, the 1886 Colombian Constitution, and the 1891 Brazilian Constitution. The strength of these (p. 215) constitutions and the stability they acquired are signs of how adapted they were to their times and of the solid pact behind them. For the first time, constitutions were supported by a deep, substantive agreement between the primary opposing forces in the region at the time: Liberals and conservatives (sometimes referred to by other names). The constitutions that emerged played a decisive role in consolidating states that were territorially centralized and, in political terms, that concentrated power in the figure of the executive.

In the terms employed by Alberdi, the core of that agreement was captured in the formula: Limited “political liberties,” very broad “civil liberties:”

[w]hat I desire are unlimited and extremely abundant civil liberties for our people, among which one can mention the economic liberties to acquire, transfer, negotiate, exchange, circulate and exercise any and all industry.5

C.  Social constitutionalism

The third phase of Latin American constitutionalism began at the turn of the 20th century, in particular with the 1917 Mexican Constitution.6 A period characterized by greater attention to political and social liberties appeared to dawn. These issues—in general, anything related to the so-called “social question”—had been postponed for future consideration during the period of “foundational constitutionalism.” The Mexican Constitution was in fact the first in the world to include a long and very complete list of social rights. Eventually—often much later but in constant if gradual fashion—the constitutions of Latin America began to include similar declarations. New or reformed constitutions with an accentuated social profile appeared on the scene; for example, the 1937 Brazilian Constitution, the 1938 Bolivian Constitution, the 1940 Cuban Constitution, the 1949 Argentine Constitution, and the 1949 Costa Rican Constitution.

D.  Human rights or multicultural constitutionalism

Lastly, the wave of reforms of the late 20th century were the starting point of what we might consider the latest and most recent phase of Latin American constitutionalism. These reforms include texts of distinct character, such as the Constitutions of Colombia (1991), Argentina (1994), Venezuela (1999), Ecuador (2008), Bolivia (2009), and Mexico (2011). Although, as we shall see, these constitutions did not introduce substantive changes in relation to the documents which preceded them—a (p. 216) central claim of this piece that I will develop in detail—it can be said that they tended to expand—in a relevant manner—the existing declarations of rights. This was accomplished, above all, by incorporating human rights concerns, in particular issues related to the rights of indigenous communities, which had not been seriously considered in previous systems. These commitments seem to have been motivated, in a very special way, by the succession of bloody dictatorships that afflicted the region in the 1970s.

We have thus identified four important stages of constitutionalism in the region—stages in which a significant number of countries amended their constitutions. These four stages, as we saw, corresponded—in very general terms—to four types of motivations: Consolidating independence; bolstering economic growth; addressing the deferred social question; and making a stronger commitment to the defense of human rights.

III.  The Two Key Moments of Latin American Constitutionalism

Of the four main stages of Latin American constitutionalism, two stand out: The second—the foundational moment of regional constitutionalism, and the third—the age of social constitutionalism. In my understanding, these are the only two stages that were critical to the development of regional constitutionalism, by virtue of the impact they had on the structure of Latin American constitutions. As I will argue, the reforms introduced in the mid-19th century were decisive with regard to the structure of power in the constitution, making it what it is today. Meanwhile, the reforms introduced in the first half of the 20th century proved decisive in relation to the declarations of rights typical of Latin American constitutions, which remain to this day shaped by the traits introduced then.

In descriptive terms, I would say that current Latin American constitutions are still marked by two main features, one relating to the organization of power that was acquired in the mid-19th century, and another relating to their organization of rights, acquired in the mid-20th century. Since then and up to the present day, constitutions have done nothing other than temper or, more often, reinforce these features without introducing any substantive changes. This is why we cannot speak of a “new” Latin American constitutionalism.

The other part of the argument I want to advance—its more normative aspect, what I am most interested in defending—is that the power structures in place since the mid-19th century are a very heavy and negative legacy for current day constitutionalism—a heavy legacy that the reforms in the declarations of rights at the end of the 20th century could not remedy. Power structures reflect an understanding of democracy that is very typical of the 19th century, and therefore appears to conflict with present day intuitions, which are more democratic, or more favorable to self-government. Moreover, the legacy is heavy because power structures lie in tension with declarations of rights and—given their stability, centrality, and force—they are capable of impeding the implementation of the social and multicultural commitments contained in the section on rights.

(p. 217) In what follows I will focus on the description of the two trademarks of Latin American constitutionalism, advancing afterward to the normative argument that motivates this article.

A.  An unbalanced system of “checks and balances”

In the mid-19th century a crucial political movement occurred in Latin America, emerging from the gradual but resolute rapprochement of liberal and conservative forces that, until then, and in most of the countries of the region, had waged bloody battles against each other.7 In some countries, such as Argentina, Brazil, and Mexico, the coming together of these two factions occurred through direct constitutional negotiation. In Chile, the pact acquired “deferred” aspects when the “hard” constitutional conservatism embodied in the 1833 Constitution began to “thaw,” giving way to gradual liberalization. The Colombian experience was the opposite of Chile’s. The “hard” constitutional liberalism imposed by successive constitutions in 1853, 1858, and 1863, started to lose strength, opening the way for increasing conservatism, which was consolidated in the 1866 Constitution.

This period is especially important, particularly because it engendered many of the most significant constitutions of Latin American history. In fact, many of the texts adopted at that time—Argentina (1853), Colombia (1886), Mexico (1857), among others—remain unavoidable reference points for understanding constitutionalism in the region in its current form. In particular, I have previously argued that it was then that power structures took their definitive form (to a large extent). Such an organization of power continues to characterize most of the constitutions in the region.

In support of this argument, we must recognize that in the previous period—following independence—constitutional disputes tended to pitch liberals against conservatives, both of whom alternated in power and sought to make their own constitutional projects prevail. Thus, the conservative Constitution of Chile of 1823 was succeeded by the more liberal one of 1828, which was replaced by the more conservative one of 1833; the 1843 conservative Constitution of Colombia was succeeded by an ultra-liberal one in 1853; the liberalism of the Mexican Constitution of 1824 was followed by the enactment of the Constitutional Laws of 1836 and the Organic Bases of 1843 countering it; and so on.

This violent succession of governments, policies, and constitutions resulted in constitutional systems that oscillated between extremes—typically from formulas for concentrated power in the name of order to attempts to limit power—within a wide range of forms. Once the liberal–conservative pact was consolidated, however, much of that initial experimentation ended. Corporatist attempts were put to rest, monarchist (p. 218) experiments fell into obsolescence, no longer were “three-headed” executives to be found, and institutions such as the “moral power,” “moderating power,” and “visiting senators” also disappeared from the constitutional map.

From the mid-19th century onward we begin to encounter more defined constitutional schemes, i.e. structures less open to experimentation. Since then, only a few variations within rather narrow margins have been introduced. The general structure of power was thus stabilized in terms of the features defined by the liberal–conservative pact: A system of “checks and balances” or “balances and counter-balances” ultimately “unbalanced” in favor of the executive. This entailed a partial overlap between the demands of liberals (a system of checks and balances in U.S. style) and those of conservatives (a system organized around the executive).

Something similar can be seen regarding territorial organization (i.e. the tension between centralism and federalism) and, importantly, regarding rights. The central question there revolved around the integration of the demands of liberals and conservatives, considering that the differences between the two camps were particularly significant because of the religious aspect, something which had driven them to take up arms for decades. The formulas for integration chosen at the time were diverse, and in most cases left much to be desired. They ranged from remaining silent on the matter, the option favored by the Mexican constituent assembly of 1857—which made no reference to the demands of both groups—to double invocation and direct superposition of the demands of both sides, the option chosen by the Argentine constituents in 1853 (proclaiming religious tolerance in Article 14 and a special status for the Catholic Church in Article 2).

Three issues can be highlighted from the preceding analysis. The first is the curious formula for organizing power chosen by the architects of the liberal–conservative pact: A model of “checks and balances” that was ultimately “unbalanced.” The point is interesting because the chosen scheme involved “opening” a deep “wound,” from the start, in a model that held balance itself as its organizing principle. It is possible to raise many objections to James Madison’s scheme for the organization of power, and yet, regardless of these objections, his scheme purported to follow the distinctive virtue of balance between powers based on the attribution of relatively equal power to each of the distinct branches of government. By disrupting the balance at the outset, thereby tilting the organization of power toward the executive (as advanced by Alberdi, who saw the need to combine the American model with the Chilean model), all the logic of the system of checks and balances—the logic that gave the system its meaning and appeal—was, from the outset, placed directly in jeopardy. Many of the persistent problems affecting the health of Latin American institutions are related to that dubious initial decision.

The second issue I would underscore has to do with the explanation, in constitutional terms, of the sudden liberal–conservative pact, given the profound differences that seemed to divide them so starkly. Conservatives, for instance, preferred systems that concentrated power and lists of rights organized around religious principles, two demands that liberals in appearance emphatically rejected. Notwithstanding this tension, both in the section on the organization of power and in the section on the organization of rights, there was also fertile terrain where the two positions could meet. (p. 219) Indeed, concerning the organization of power, it is clear that both liberals and conservatives feared anarchy and unbridled majoritarianism. As such, it was not difficult for the two sides to agree on the need for constitutional instruments to curb the (increasingly) menacing power of the majority. The constitution would thus be based on a strong principle of “mistrust” of majoritarian power—a coincidence that is without doubt very powerful in explaining the motives and nature of the legal arrangements made at the time.

Both liberals and conservatives agreed on the need to limit political rights, at least for the time being, in the aim of preserving other rights—particularly those related to property, contracts, and free trade—which they considered threatened by the expansion of majority rule. In his work The Economic and Financial System, Alberdi thus asked for freedoms that were “unlimited and very abundant for our people,” among which he included “civil liberties” such as the “economic freedoms to acquire, sell, work, navigate, trade, transport and exercise any industry.”8 We find the same type of appeals in the thought of liberal José María Samper of Colombia (especially at the time of the 1886 Constitution) or in Andrés Bello of Chile. Bello, primarily engaged in drafting the Civil Code, justified his task, holding that:

[p]eople are less zealous in the preservation of their political freedom than their civil rights … Rarely is a man so devoid of egoism that he would prefer the exercise of political rights, conceded by the fundamental code of the State, to the preservation and maintenance of his interests and existence, or that he would feel more injured when arbitrarily deprived of, for example, the right of suffrage, than when he is violently stripped of his property’.9

The third point I want to emphasize is that the liberal–conservative consensus also points to the presence of an “excluded third party,” i.e. the radical–republican forces that had exerted significant pressure in constitutional discussions from the beginning of the 19th century. As we shall see, this fundamental exclusion, which was often partially corrected in the 20th century, is crucial to understand the type of constitutional formulas ultimately adopted in the foundational period. In other words, the constitutions of that period can be understood both in terms of the forces that formulated them and the initiatives that were rejected: Initiatives calling for “extended political rights, and limited property rights;” more decentralized and democratic governments; and a marked emphasis on the “social question.”

B.  Robust declarations of rights

As noted in the previous section, the exclusion or relegation of the “social question” is essential to understand constitutional developments between 1850 to 1890 in Latin America. The wish to limit political rights was explicit during the first stage of regional constitutionalism. Attention was actively diverted from existing social (p. 220) problems—problems that were mainly linked to the economic and political inequalities that arose during the colonial period, and that the postcolonial period had failed to solve. Renowned Argentine historian Tulio Halperin Donghi defined the program that began to gain priority in the mid-19th century (and which he identifies with policies such as those promoted by Alberdi), as a model of “progressive authoritarianism”—a “blend of political rigor and economic activism.” In the words of Halperin Donghi:

Alberdi turned a deaf dear to the “social” causes supposedly contained in economic liberalism—and in the authoritarianism—of Louis Napoleon. For him, indeed, the well-being that the development of the economy makes possible is not only intended to offset the limitations on political freedom, but also to mitigate the social tensions dramatically revealed in 1848.10

The open resistance of conservative liberals against the first serious attempts to remedy the “social question” found dramatic expression in the Mexican constitutional convention of 1857.11

This “constitutional resistance” only reflected the increasing levels of coercion and political repression that began to characterize the region in the late 19th century. The “outbreak” of such tensions began at the beginning of the 20th century—an explosion that would force the ruling elite to provide immediate answers to the demands that had been postponed. The responses given were varied. They ranged from the passage to a “welfare state” from a “regulatory state” to the adoption of more open political systems. At the constitutional level, the overwhelming response was the emergence of social constitutionalism, basically consisting of the introduction of comprehensive lists of social, political, cultural, and economic rights in the constitution.

The most salient example of what happened at the constitutional level is once again to be found in Mexico, where the crisis reached dramatic levels, first expressed in a successful revolutionary movement and, soon after, in a very pertinent constitutional reform that resulted in the 1917 Constitution.12 It was, as we shall see, the first constitution in the world that included a long list of social and economic rights within its body of articles.

To understand Mexican—and more generally Latin American—constitutionalism, the events of 1917 in Mexico are of enormous relevance. Two points should be highlighted. First of all, the Constitution of 1917 is still revered, nationally and internationally, for its radical content. Given the context in which it arose, however, one could say that the text also surprises by its extreme moderation. Shortly before the constitution was approved, the common demand among its proponents was “expropriation, confiscation, restitution.”13 Second, it is important to distinguish between the constitutional (p. 221) achievements of 1917 and its shortcomings. The 1917 Constitution represented momentous change regarding rights, but it raised concerns because the organization of power remained essentially the same.

In any case, the fact is that the second great “trademark” of regional constitutionalism—robust, extensive, and generous rights declarations—surfaced in those years. Gradually, other countries in the region followed the Mexican example, Brazil in 1937, Bolivia in 1938, Cuba in 1940, Ecuador in 1945, Argentina in 1949, and Costa Rica in 1949.14

As mentioned previously, the consolidation (in the mid-19th century) of a certain structure of concentrated power also represented a definitive departure from the experimental phase of constitutionalism—that characterized the first half of the 19th century, the period following independence. In a similar manner, the affirmation of long lists of social, economic, and cultural rights (in the mid-20th century), also left behind the model of rights organization that was dominant until then. The previous model was characterized by lists of rights that were spartan, brief, and focused on what today we call “classical liberal rights:” Rights related to property, contracts, and a few basic freedoms, typically those of expression, association, due process, and, occasionally, religious tolerance. The model basically guaranteed “negative rights” to the extent that they required inaction on behalf of the state: Prohibited was the interference in the physical integrity, fundamental freedoms, or property of individuals. Starting in 1917, Mexico, later Latin America (and much of the West) changed, at least in constitutional terms. New constitutions enshrined their own more complex lists of rights, breaking the old mold and appending new social, economic, and cultural rights to the existing schema of liberal rights.

At this point, I would like to bring attention to three more issues before turning to the analysis of the “latest” period of the regional constitutionalism. In the first place, I would like to point out that ever since the emergence of Mexican social constitutionalism, declarations of rights typical of Western constitutionalism have shown similar complexity. With few exceptions, bills of rights contain both classical liberal rights and the new social, economic, and cultural rights brought forth by the Mexican Revolution. There are few exceptions. In the United States, for example, the constitution maintained the old system of “negative rights”—classical liberal rights (despite attempts to interpret “welfare rights” into it). Chile also preferred to reaffirm a modest, austere list of rights.

Second, I would also like to mention another remarkable fact: Since 1917, except in cases associated with military coups, the tendency in Latin America has only been to expand even further the lists of rights. Despite the high number of constitutional reforms produced in the 20th century (around 100), and in spite of the criticism pointing to the existence of “rights inflation,” owing to the lack of implementation of new rights, or the “poetic,” “utopian,” or “purely declamatory” character of their constitutions, Latin America would not or could not reverse the process of expansion of constitutional rights that was initiated in the early 20th century. The long, generous lists of (p. 222) rights incorporated then became a (second) “trademark” of this new constitutionalism, reaffirmed, confirmed, and extended time and time again.

A third point to highlight is the peculiarity of what was actually achieved in this “social” stage of regional constitutionalism. To put it in metaphorical terms, since the early 20th century, the “working class” came to occupy a central role not only in economic and labor terms, but also in legal terms. It began to enter spheres of public life that were hitherto closed off, including the constitution. It is important to recognize, however, that the working class did not enter the constitution through the front door—into the chamber where the “levers of power” are found—but rather found its way into the constitution through a “side door”—through the declaration of rights. Side entry into the constitution, moreover, did not mean that the working class actually gained entry; the “engine room” of the constitution has remained off limits.

IV.  The “Latest” Period of Latin American Constitutionalism

In light of what has been discussed so far, it should be simple to see why it does not make much sense to talk of the emergence of a “new” type of Latin American constitutionalism based on recent reforms. Rather, that so-called “new constitutionalism” simply reinforces certain features already present in the constitutional framework of Latin America. After the last wave of reforms, we find that: (1) the organic part of the new constitutions is still characterized by power structures that are politically concentrated and territorially centralized; and (2) the dogmatic part of the new constitutions still contain robust statements of generous and extensive rights, which combine individual and social rights of various kinds. In other words, the “double trademark” that began to characterize Latin American constitutionalism in the early 20th century remains as forceful as ever.

This last observation, in any case, does not mean that the “latest” Latin American constitutionalism has achieved nothing innovative or important. I merely mean to point out that the old structures remain intact, and that this is relevant to describe the type of constitutional problems we face. I will now briefly review what the “new” Latin American constitutionalism offers before undertaking a deeper critical analysis.

A.  Declarations of rights

As I understand them, a fundamental characteristic of the “latest” reforms are the innovations introduced into the declarations of rights. These developments targeted three major historical “defects” of the regional constitutionalism: (1) its disregard for the rights of “the neglected among the neglected” (typically indigenous communities); (2) its persistent disdain for human rights; and (3) its inability to ensure and give effectiveness to the political rights of the majority of voters in a manner that would encourage “active citizenship.”

First, in this most recent phase, the social commitments assumed by the constitution since the early 20th century were expanded. They reached sectors (primarily indigenous groups and women), and matters (“third generation” rights) that had previously not been included or recognized in that first “social wave” of the regional constitutionalism. (p. 223) The “excluded among the excluded” were granted “entry.” Constitutions thus acquired a more “multicultural” profile and began to recognize the value of measures such as affirmative action. At the same time, constituents sought to “upgrade” their old texts in light of the prevailing “new awareness of rights” (environmental, consumer, user, etc.).

Today—to cite but a few examples—gender equality is promoted in the constitutions of Argentina (Article 37); Bolivia (Articles 11, 15, and 26); Colombia (Article 40); Costa Rica (Article 95); Ecuador (Article 65); Nicaragua (Article 48); Paraguay (Article 48); the Dominican Republic (Article 39); Venezuela (Article 88). Affirmative action is stipulated in the constitutions of Argentina (Article 75(23)); Bolivia (Article 71); Colombia (Article 13); Ecuador (Article 65); Mexico (Article 2(b)); Nicaragua (Articles 48, 56, 62); Paraguay (Article 46); the Dominican Republic (Articles 39, 58); Venezuela (Article 21). There are declarations on environmental protection in the constitutions of Argentina (Article 41); Bolivia (Article 33); Brazil (Article 22); Chile (Article 19(8)); Colombia (Article 79); Costa Rica (Article 50); Ecuador (Article 14); El Salvador (Article 117); Guatemala (Article 97); Honduras (Article 143); Mexico (Article 4); Nicaragua (Article 60); Panama (Article 118); Paraguay (Article 7); Peru (Article 2); the Dominican Republic (Article 66); Uruguay (Article 47); Venezuela (Article 117). The existence of a plural or multicultural state or national identity is affirmed in the constitutions of Bolivia, Colombia, Ecuador, and Paraguay, in their very first article; also, Mexico (Article 2); Nicaragua (Article 5); Peru (Article 2(19)); and Venezuela (Article 6).

Second, the new constitutions expressed a decisive commitment to human rights. The constitutional cause of human rights is extremely important because it denotes the reconciliation of significant parts of Latin American intellectuals with the “lists of rights” that they had despised for decades—often for ideological reasons linked to vestiges of Marxist theory. Following the wave of brutal dictatorships that ravaged the region in the 1970s, the need for comprehensive and effective basic human rights protection began to be recognized across the political spectrum. Former detractors came to realize that legal issues such as due process and freedom of conscience were in fact matters of life and death—and not merely “super-structural issues.” The ways in which Latin American countries incorporated human rights into their constitutions varied, and were especially influenced by the numerous international human rights treaties to which they became states parties. Formulas were often sought to recognize the special value of those treaties; that is, in order to give them legal or supralegal status.15

Currently, constitutional or supralegal status is given to human rights treaties in: Argentina (Article 75(22)); Bolivia (Article 256); Brazil (Article 5); Colombia (Article 93); Costa Rica (Article 7); Ecuador (Article 417); El Salvador (Article 144); Guatemala (Article 46); Honduras (Article 18); Paraguay (Article 141); Peru (Article 56); the Dominican Republic (Article 74); Venezuela (Article 23).

Third, the most recent phase of Latin American constitutionalism is marked by an attempt to remedy the serious democratic deficit that for decades has seriously affected the region. Such reforms acknowledged that political institutions were not working (p. 224) well and that they had failed to foster political participation. Given the widespread nature of the complaints directed at politics, Latin American constitutionalism proposed various formulas designed to open up greater opportunity and space for popular control and decision-making.

In this regard, the latest constitutions approved in the region include mechanisms for popular initiatives: Argentina (Article 39); Bolivia (Article 162); Brazil (Article 14); Colombia (Article 155); Costa Rica (Article 123); Ecuador (Article 103); Guatemala (Article 277); Honduras (Article 5); Nicaragua (Article 140); Panama (Articles 238, 314); Paraguay (Article 123); Peru (Article 107); the Dominican Republic (Article 97); Uruguay (Article 79); Venezuela (Article 70). They incorporate the institution of open or popular cabildos, an institution of local decision-making akin to town hall meetings or councils that began in the colonial era: Bolivia (Article 11); Colombia (Article 103); Ecuador (Article 100); Panama (Article 151); the Dominican Republic (Article 30); Venezuela (Article 70); or establish forms of popular control over public policies: Bolivia (Article 241); Brazil (Articles 10, 194, 198, 204); Colombia (Articles 103, 270); Ecuador (Article 100); Guatemala (Article 98); Mexico (Article 26); Nicaragua (Articles 138, 196); Panama (Article 233). Some constitutions have also established procedures for referenda or popular consultation: Argentina (Article 40); Bolivia (Article 11); Brazil (Article 14); Colombia (Articles 103, 374); Costa Rica (Article 105); Ecuador (Article 104); Guatemala (Article 173); Honduras (Article 5); Mexico (Article 26); Nicaragua (Article 2); Panama (Articles 238, 313, 325); Paraguay (Articles 121, 122); Peru (Articles 32, 176); the Dominican Republic (Articles 203, 210, 272); Uruguay (Articles 79, 331); Venezuela (Articles 71, 73); and include mechanisms for the revocation of mandates: Bolivia (Article 240); Colombia (Article 103); Ecuador (Article 105); Panama (Article 151); the Dominican Republic (Article 30); Venezuela (Article 72).

Anticipating an analysis that I will develop in more detail below, I would like to add a few comments here. First, the tendency to incorporate more and more rights in the constitution is not negative, despite the reasonable objection that it limits the scope of democratic decision-making. We can accept, in principle, the value of affirming certain very basic interests of citizens, and trust that this (constitutional) recognition will leave sufficient room for reflection and decisions attuned to particular circumstances.

Second, the reasonable criticism that it is not good to generate too much expectation around “new rights” can also be resisted. The constitution may well represent, at least in part, a program for future political action. In this regard, the assertion of certain commitments and certain aspirations may result in a combination that is acceptable in principle. The constitution is, in part, a bet on the future—a bet that the social conditions surrounding the constitution, which may be unfavorable to the full expression of all its clauses today will change in the future, and thus facilitate the realization of rights that today seem difficult to implement.

That, however, does not solve at least two problems that are evident from the outset. On the one hand, the history of Latin American constitutionalism reveals blind obstinacy on the part of local reformers, who insist on promoting social change through the introduction of new rights. More precisely, constituents have demonstrated a notable obsession with incorporating more rights, something that has not been matched by a similar obsession with improving—or changing, where warranted—the organization (p. 225) of power (I will revert to this point). This problem is larger still: Constituents have not matched their recurring impulse to write more rights into constitutions with a corresponding concern for the conditions necessary (material, political, or legal) for their realization.

B.  Organization of power

In many cases, the expansion of rights of the latest wave of reforms in Latin America came hand in hand with, if it was not directly produced by, the intention to facilitate presidential reelection. That is, the desire for reelection of some presidents motivated their willingness to trade “more rights” (offered as a pledge to the opposition or the citizenry) for “reelection.” The situation of Carlos Menem in Argentina (and the 1994 Constitution); or that of Alberto Fujimori in Peru (and the 1993 Constitution) testify to such agreements. Unfortunately, this led to reforms being too closely tied to the circumstances of the moment. This runs counter to Alberdi’s notion—more traditional and more venerable—in the sense that scarce constitutional energy should be devoted to the “great social dramas” of the moment (the struggle for independence and the fight against economic backwardness, during his lifetime; as today we might consider the fight against inequality16).

Given the length and importance of the current period of constitutionalism, it may be useful to distinguish two phases within it, associated with two sets of events of great importance in the region. The first is the rise of bloody dictatorships in the 1970s and the second refers to the social crises that followed the implementation of “structural adjustment programs” (“neoliberalism”) in the 1990s. Very roughly, we could identify some reformist attempts aimed at moderating the strong residual powers of the executive following the severe dictatorial phase. After the social crises that followed “economic adjustment,” the emphasis was once again on the need to concentrate power, while in parallel, constitutional remedies were sought for some of the open sores caused by unemployment and inequality.

Concerning the first phase, for more than a decade, several countries imposed additional limits on presidential reelection. Among them were Ecuador in 1978, Guatemala in 1985, Honduras in 1982, Colombia in 1991, and Paraguay in 1992. While the trend of moderating presidential powers responded to various motives and was not unidirectional, it became more defined following the succession of violent dictatorships in the 1970s.

The passage from dictatorship to democracy favored constitutional reforms that incorporated strong commitments to human rights. Something similar happened regarding the organization of power. This period of political obscurantism promoted the emergence of an unexpected theoretical consensus oriented to limit presidential powers. Many jurists and social scientists began to question not only concentrated (p. 226) presidential power (which had caused extreme suffering in the years of dictatorship), but also to associate so-called hyperpresidentialism17 in Latin America with political instability and the recurrent regional practice of staging coups. At least for a while, legal and political scholars began to argue that instability could have many causes, but that at least one of them was endogenous to constitutionalism, and was linked to the high levels of concentration of power allowed by local constitutions, which were furthermore accompanied by a radical lack of “safety valves” against the kinds of crises that usually affected regimes in the region. Thus, Latin American hyperpresidentialism began to be identified as a key factor of the political instability that had characterized the region throughout the century.18

Hyperpresidentialism involved concentrating power, responsibilities, and expectations in one person. Any sudden disenchantment with the president—any political or economic crisis, any breakdown in his health, any decline in popularity tended to translate into a crisis of the political system since the system lacked safety valves that would mitigate imbalances and prevent the crisis from spreading to the entire constitutional structure. There was widespread agreement that strongly moderating or eliminating the hyperpresidential system would buffer crises, prevent their conversion into systemic crises, and thereby address recurrent instability.19 However, these reformist impulses only occasionally and very partially made it into the constitution in the form of limitations to or additional controls of presidential powers.

As anticipated, and for various reasons—especially the aforementioned social crisis unleashed by the “adjustment programs” that swept the region in the 1990s—the longstanding fear of “chaos” and “anarchy” again led to appeals to concentrate power in the hands of a “strong authority.” Thus, years of critical reflection and growing agreement regarding the ills of presidentialism were toppled down. For instance, the trend observed in the 1980s on presidential reelection changed course. Since the early 1990s, nine out of sixteen projects of constitutional reform have concerned countries that reformed their basic texts to facilitate reelection.20 Reforms began to benefit the actors who promoted them more directly, extending mandates, or prompting the possibility of returning to power.

According to a study by Payne and others, recent changes in reelection matters can be summarized as follows: Argentina went from prohibiting immediate reelection to permitting it in 1994; Brazil did the same in 1997; Colombia banned immediate reelection in 1991, but backtracked in 2005; the Dominican Republic did the same, prohibiting immediate reelection in 1994 and reversing the decision in 2002; Ecuador (p. 227) went from a prohibition of reelection to allowing nonimmediate reelection in 1996; Nicaragua went from immediate reelection to nonimmediate reelection in 1995; in 1994, Panama decided to allow reelection only after an interim of two (instead of one) presidential terms; in Paraguay reelection was prohibited in 1992; in Peru reelection went from being nonimmediate to immediate in 1993, and again to noninmediate in 2000; Venezuela went from a ban on nonimmediate reelection to allowing it in 1998.21

Other reforms were introduced in recent decades concerning the organization of power. For example, the popular election of mayors was introduced in several countries—Bolivia (1994); Colombia (1991); Paraguay (1992); Venezuela (1989). In Argentina, the 1994 reform brought about popular election of the (powerful) mayor of the city of Buenos Aires, hitherto appointed by the executive. There were also electoral reforms that generally fostered open competition between political parties and the emergence or dominance of proportional representation systems.22

In some countries, such as Mexico, electoral amendments significantly redefined the terms of political contest. The amendments designed to moderate the legislative powers of the executive had some effect (Brazil in 1988, Colombia in 1991, Paraguay in 1992, etc.); as did those which strengthened the powers of congress in relation to the executive (such as the original mechanism of muerte cruzada adopted in Ecuador). It is also important to mention the modifications aimed at strengthening judicial independence, which can also be read as moderating the powers of the executive, and generally increasing controls on power.23

The institution of the public prosecutor’s office (ministerio público) was strengthened or renovated; judicial councils were created to select judges more transparently; the position of the ombudsman was introduced; in the most extreme cases, diversity was favored in the composition of courts, and judges were elected by popular vote. Importantly, legal reforms were introduced to promote access of ordinary citizens to courts—reforms concerning legal standing—such as that of the tutela in Colombia (which was substantively renovated with the emergence of a new constitutional court) and in Costa Rica (where the famous “Fourth Chamber” was created within the Supreme Court to address constitutional issues.24 These represented particularly significant changes in the functioning of justice.

These reforms contrast not only with measures expanding presidential reelection, but also with others that directly established or further expanded the authority of the executive. Indeed, in some cases –Argentina in 1994, for example—the reforms basically certified constitutional powers that the executive already de facto possessed and (p. 228) that courts had gradually recognized (i.e. the expansion of the executive’s legislative capacities or its power to act in emergency situations). In some instances, the president was directly granted powers to set the budget, to intervene in economic issues more directly, or to submit proposals for popular approval.

On balance, these reforms have concentrated political power. This conclusion, moreover, is consistent with the data collected by the Comparative Constitutions Project, a major comparative study, as well as the work of a number of authors carrying out comparative constitutional analysis.25 These studies affirm that the most significant development evident in the regional constitutionalism is related to the “increase in provisions granting legislative powers to the executive branch.”26 These studies confirm the existence of a “distinctly Latin American model of presidential power, which includes a powerful role for the president in the legislative area and, at the same time, broad emergency powers.”27

V.  Overlapping Models of Democracy

This chapter started by asserting that the new is too similar to the old. In this section, I will delve more deeply into the assessment of the developments discussed in order to make a stronger argument, namely, that the existing structure leaves much to be desired in terms of what it proclaims. Latin American constitutions superimpose opposing models of democracy that correlate with economic ambitions, political ideals, and legal commitments—ultimately, constitutional models—that are in tension with one another.

This idea of “mixing” opposing claims, superimposing some on others, is already well rooted in the Latin American constitutional tradition. It was, after all, the primary mechanism for reaching an agreement between liberals and conservatives. It was common practice, as we saw, simply to lump together quintessentially liberal aspirations with conservative ones. The liberal scheme of “checks and balances” was combined—with no qualms whatsoever—with an all-powerful executive, just as liberal declarations of religious tolerance were placed alongside a state bias in favor of the Catholic Church. A very deficient system of integration of models—a constitutional mixture—was thus chosen, over systems which could have better combined constitutional models.

In more precise terms, in trying to integrate conflicting aspirations, a deep-seated endeavor in pluralist societies where reasonable disagreement arises, the institutional model may choose different paths. It may, on the one hand, choose synthesis. That is, it may make the effort of taking (the best) parts of every proposal to combine distinct conflicting aspirations. This is what happens when—faced with conflicting religious demands—the impossibility of placing one religion above the rest is affirmed, (p. 229) and thus the coexistence of all religions is allowed. On the other hand, the institutional model may opt for accumulation—a proposal which in my opinion is quite unfortunate—the simple overlap of conflicting aspirations. The Argentine Constitution of 1853 (still largely in force) followed this route by providing for religious freedom (Article 14) while at the same time affirming the special status of Catholicism (Article 2). Most Latin American constitutions followed suit when they simply accumulated the demands of conservatives in favor of a strong executive, and those of the liberals in favor of checks and balances. This gave rise to a problematic Latin American hybrid that combines checks and balances with an all-powerful executive capable of challenging that balance.

The reforms in the constitutional life of the region since its foundational years tend to follow exactly the same logic of that period. Primary tensions are related to the accumulation of at least two different and opposing models of democracy. Indeed, the “double trademark” of the region’s constitutionalism reveals its unusual two-sided democratic commitment. The structure of power thus corresponds to the democratic principles of the 19th century: Low popular participation, exclusion of entire sectors of the population, limited political rights—mechanisms that are emblematic of wealth-based democracy. Meanwhile, new declarations of rights appear linked to “next generation” democratic discourse and principles. These aim at broad popular participation, for which support is sought in various ways. For instance, institutional opportunities are opened to the public for increased decision-making and power control (establishing recall elections, etc.); political rights are expanded; and, simultaneously, commitments are made to social rights with the aim of promoting even more political participation of majorities (all of which, I will insist, is subject to several limitations). In democratic terms, ultimately, what one hand of the constitution gives, the other takes away.

The same problematic accumulation occurs with other matters and areas of the constitution. Many of the new constitutions (such as those of Colombia or Peru) affirm both “neoliberal” economic formulations and proclamations with strong social content, suggesting calls to different economic forms. It is also very common for the “new” constitutions committed to indigenous rights to affirm the principle of private property and that of communitarian property (or other similar values) simultaneously; or to enshrine the values of private, mixed, and public economy all at the same time.

For some, this type of combination is virtuous. It allows political parties or interest groups in conflict to commit to the same constitutional project. In constitutional terms, however, such decisions are questionable, and take us back to the problems alluded to above, the intra-sectional impact of reforms. An appropriate question then is how newly incorporated rights (i.e. social, multicultural, etc.) relate to existing rights. Numerous problems are apparent.

In the first place, the text of the constitution becomes confusing and unclear. What is ultimately the meaning of the constitution when it simultaneously affirms opposing claims? Furthermore, the constitution opens itself to contradictory interpretations: It either says a great deal, or nothing at all, or everything at the same time on key issues. What is the point, in such cases, of having a constitution? Worse yet, organized like this, the constitution generates conflicting expectations: Whoever is litigating in the name of private property is right, but so is the party challenging such possession in (p. 230) the name of ancestral values. To take a case in point, the introduction of the “rights of nature” (kausay sum) in constitutions such as those of Ecuador and Bolivia, reveals relatively obvious problems (i.e. it is unclear what exactly the “ancestral rights” of indigenous communities actually are or whether it really makes sense to speak of the “rights of nature”). One can appreciate the intention behind incorporating new “interpretative principles” that are different from traditional ones,28 however, it is hard not to wonder how these principles should be understood when the constitution does not repudiate other principles and institutions that are contrary to them (i.e. those associated with traditional property rights).

We find similar problems in the link between the “old” power structures and the “new” institutions that have been created. A good illustration of this is the so-called “train collision” in Colombia, which pitted the existing Supreme Court against the new Constitutional Court introduced by the Constitution of 1991. Their relationship is one of rivalry and tension and began with the very birth of the latter; it involves persistent power struggles and unhealthy competition.29 Another relevant example can be found in Argentina if we examine the relationship between the Supreme Court (created by the first Constitution of 1853) and the Judicial Council, introduced by the 1994 constitutional reforms. Relations between the two bodies are strained because of the difficulty of precisely defining the areas of exclusive competence of each institution. In addition, (stemming from that difficulty) there is some harassment by the Court of the Council, in which the former seems possessive of powers lost.30 The lacking reflection, or misguided reflection, by Latin American constituent assemblies is striking. Whether because of hypocrisy, demagogy, neglect, or some misunderstanding, a constituent assembly acts badly when it does not consider the ways in which “the past” will relate to “the present” and how the “old constitution” will welcome or accommodate the “new” aspects incorporated to it.

The previous discussion is tied in a special way to the intra-sectional impact of reforms, but the problems in question also extend to—and even become more serious—in the inter-sectional impact of reforms. That is, how the incorporation of new rights affects the organization of power, or how measures affecting or leaving the organization of power intact, affect the declarations of rights.

Problems occur at different levels. The general problem that frames all subsidiary problems is a classical one of constitutionalism, one related to the tension between constitutionalism and democracy.31 In principle, it is often said, there is something akin to a “zero sum” relationship between the two spheres. For instance, incorporating more and more rights in the constitution equates to less space for collective deliberation: The more questions are resolved in advance through the assertion of rights (“trump cards” (p. 231) against democratic ambitions, as Ronald Dworkin argued in 1977),32 the less room there is for the citizenry to determine the best responses to the needs and claims of the moment democratically.

More specifically, a question arises concerning the way we “transfer power” within the constitution, through every change incorporated into it. To give an example, the incorporation of social rights (usually advanced by democratically minded reformists) amount to a transfer of additional powers to the judiciary (that is, the least democratic branch of government). Note that problems such as these are particularly relevant in contemporary constitutionalism. Many advocates of social rights seek to strengthen the “power of the people” rather than the power of existing legal hierarchies and yet, their course of action generates a “constitutional impact” which at least in part is contrary to their objective.

Finally, we come to the question that interests and worries me most, one related to the ways in which the “old structures” block “new proposals” or hinder their implementation. Typical for the region is how the existing organization of power impedes the implementation of new social and multicultural rights.

The issue at stake is not merely one of “simple negligence” in the drafting of constitutions. That is, it is not that, when introducing new rights, we neglected to pay attention to how the old power structure would or could react. Above all, the problem is that we do not recognize the peculiar place occupied by “organic” aspects that remain unreformed: What is at stake is the core of the organization of power, that is, the engine room of the constitution. Of course, identifying all the changes that need to be adopted to make constitutional amendments effective is very difficult. However, ignoring the question of how the constitutional “engine room” will react to constitutional changes (“more rights”), means neglecting the most important question of all. It is in the “engine room”—and nowhere else—that the heart of the constitution is found. We cannot operate on the constitution while turning a blind eye to the way in which the power structure within it will react (or, at least, will foreseeably react) to the changes introduced.

VI.  Judicial Activism

What one can say regarding the intense judicial activism of the past years is that it is a phenomenon characterized both by a higher level of citizen participation in judicial proceedings, as well as one supported by a stronger commitment on the part of the judiciary in applying rights.33 Surely this proves that some of the most recent constitutional reforms—for example the Constitutional Chamber in Costa Rica or the new Constitutional Court of Colombia—have produced important changes in the “engine room” of the constitution?

The results seem to point in that direction. Consider the examples mentioned. In Costa Rica, the Constitutional Chamber received 2000 cases in its first year of operations (1990), by 1996 its annual caseload was 6,000, in 2002 it was 13,000, and in (p. 232) 2008, 17,000. It received 200,000 cases in its first nineteen years—almost all of them are amparos or writs of constitutional protection.34 The developments regarding the Constitutional Court of Colombia are even more noteworthy. It ruled on 236 cases in its first year of operations (1992) and ten years later it was averaging over 1,100 decisions a year (a fivefold increase). In its first year 8,000 individual protection claims were filed, and by 2001 it was receiving 133,273 (a sixteen-fold increase). The average number of annual judgments by the Constitutional Court of Colombia is also sixteen times higher than that of the Supreme Court before the creation of the new tribunal.35

As I have held elsewhere, these are “modest but significant changes.”36 More precisely: The changes are significant because they have indeed impacted the “engine room” of the constitution—they have managed to enter it, primarily, by enabling average citizens to have access to courts. Thus, results such as those mentioned above confirm the thesis that runs through this text: Even if small, changes in the “engine room” that enable citizens to enter it have an interesting and not irrelevant potential.

Nevertheless, having said this, I would like to explain the cautiousness with which I regard such changes. Despite their importance and value, the changes are modest inasmuch as they hardly affect the “engine room.” Not only did the reforms maintain or even strengthen old “hyperpresidents,” but also the judiciary’s structure was not substantively affected. Even when citizens have greater opportunities of initiating litigation, in the end the law (the interpretation of the law) is still in the hands of judges. That is, citizens still lack the power of decision and judges still monopolize “the last word” in constitutional matters. Certainly, popular recourse to justice is usually accompanied by a judiciary that is more sensitive to subject matters that were easily ignored in the past. However, the fact that inequality indexes in Latin America have remained the same and even deteriorated in the past decades, suggest that despite increasing social activism of the judiciary, the organization of power is still largely untouched. The decision-makers of the past remain in this position today. Citizens have not only not gained decision-making power, but they have also not obtained new and decisive tools to control decision-makers.

The problems highlighted are even greater when we talk about international justice. Again, the situation has changed significantly, especially after the increased presence and activism of the Inter-American Court of Human Rights. This court has had to decide matters which are fundamental, linked to the human rights and claims of some of the most excluded groups of the region—typically indigenous communities. Its interventions have generated expectation and hope among an important part of legal doctrine. For example, it has been said that for a new “transformative constitutionalism” in Latin America “the hopes are based much more upon a rights-based, supranationally secured and regionally rooted constitutionalism.”37

(p. 233) The renewed commitment to human rights in the region and some decisions of the Inter-American Court of Human Rights deserve an enthusiastic response. However, some complications linked to the problems noted above remain: There are no good reasons to expect significant changes “from above”—even less from international tribunals. There are several reasons for this: International judges tend to have little contact with the communities whose affairs it judges; citizens in the region (most of which ignore who these judges are or how they work) lack appropriate institutional channels to access these tribunals (the modest improvements in this regard regarding local tribunals are missing from international justice); and popular control mechanisms or accountability over such judges are practically nonexistent. In addition, the dynamics of international tribunals raise other significant difficulties. The Inter-American Court lacks incisive mechanisms to enforce its decisions. Those states that most often violate human rights in the region do not shy away from openly defying the Inter-American Court when they are “reprimanded.” Most importantly, solutions imposed “from above”—without effective support from the social constituency in which they are meant to be applied—tend to dissipate when adverse winds blow in their direction.

VII.  Appraisal and Future

Considering what has been said thus far, some might say, “it’s not so bad, little by little we will get there.” Indeed, a parsimonious approach to reforms might be best. However, we should also be aware that what remains “undone” could block adequate implementation of newly incorporated rights (and there is no evidence to suggest that such awareness exists). Worse yet, my own experience with certain constituent assemblies suggests that, when adding to the declarations of rights, it was simply assumed that such changes would not interfere at all—or were actually consistent—with existing power structures.

Others might say, more emphatically “the implementation of rights requires concentrated power.” Without wishing to close all discussion on the subject, there is a serious problem in proposing to concentrate power when what we are trying to do is to incorporate tools to promote the political participation of citizens, or put in place means to “empower” them, both socially and politically. There is an obvious problem when the promotion of popular participation is entrusted to those whose power will be undermined (the executive) once such participation becomes effective.38

In short, we cannot behave the way many Latin American reformers have done in the past. It does not make sense to advocate for the democratization of power on behalf of the marginalized while—instinctively—maintaining political power concentrated.

It is not only that Latin American reformers failed to consider what would happen (or no longer happen) in the “engine room” of the constitution because of their reforms. The problem is that they seem to have lost sight of the historical dimension of their actions, all the while ignoring the effective practice of the region’s constitutionalism. (p. 234) A conscientious study of that history would have enabled them to recognize the constant advance of concentration in the organization of power for the past two centuries. In Latin American history, attempts of the executive branch to expand its power at the expense of the other branches, and at the expense of the power of the people, are recurrent.

Moreover, popular power is not viewed as an autonomous power, and only tends to be invoked or cited as an accompaniment to executive power. Autonomous popular power is seen as a threat and, as such, is resisted. Similarly, the region’s history shows that concentrated political power is intertwined with concentrated economic power, an affirmation, which is not meant to deny a history of struggle among certain sectors of the economic elite. Nevertheless, reformists cannot act without expecting repercussions from the all too common link between concentrated political and economic power. It makes even less sense to favor the concentration of power while genuinely invoking the will to expand popular power. The fact is: Entry to the constitution has been granted to the citizenry, in particular, albeit belatedly, to the most disadvantaged groups, but only through declarations of rights. The time to grant them entry to the “engine room” of the constitution has come.

The big question left unanswered is which institutional reforms are capable of decisively affecting the “engine room.” Any attempt to give an answer in the remaining paragraph would be in vain. At most I could offer some preliminary and tentative ideas in this regard: (i) the institutional reforms which the region needs are only one aspect, a small one, of the type of changes needed, which must include social and economic reforms, among others; (ii) the thrust of institutional changes in the “engine room” should be clear: Combating inequality and supporting self-government; (iii) regarding the organization of power, no reforms are more relevant than those aimed at putting an end to hyperpresidentialism; (iv) at the same time—and perhaps most crucially—it all boils down to strengthening the power and control that citizens wield over their own affairs. This should take place not only by opening up access to tribunals (an avenue that has been explored, as we have seen, with some success) but by opening up access to politics. Additionally, such reforms should contribute to strengthening fundamentally inclusive public discussion—particularly in light of exclusion today and the structural deficiencies of political institutions in fulfilling their old promise of “full social inclusion.” It goes without saying that the development of these ideas must be left for future analysis.


*  An earlier version of this contribution was presented at the 2015 Seminar in Latin America on Constitutional and Political Theory (SELA–Yale Law School) with the title “Too Much ‘Old’ in the ‘New’ Latin American Constitutionalism.”

1  In particular, in Roberto Gargarella, Latin American Constitutionalism, 1810–2010 (OUP 2013) and especially in Roberto Gargarella, The Legal Foundations of Inequality (CUP 2010). I looked at similarities and differences between Latin American and U.S. constitutionalism. More recently, I did the same in Roberto Gargarella, 200 Years of American Constitutionalism: United States and Latin America Face to Face (unpublished manuscript, on file with author) (2014).

2  I am aware of how broad the reference to “Latin American constitutionalism” is, and that it includes countries whose histories and cultures vary largely. In previous works, such as those cited in the last footnote, I have tried to examine the constitutional development in the region by looking in detail at some of the many similarities and differences that exist among those countries’ constitutional traditions. These traits include—clearly, I would add—the essential information regarding the basic structure of the organization of power and the basic structure for the organization of rights that are present in most national constitutions.

3  These early responses, Alberdi recognized, had been adequate in formulating against what the constitutions should be conceived. See Juan Bautista Alberdi, Bases y puntos de partida para la organización política de la República Argentina (Plus Ultra 1981) 26: “All the ills of America were thus comprised of and defined by its dependence on a conquering European government: consequently, it was held that the remedy for its ills was removing the influence of Europe.”

4  ibid. 123.

5  Alberdi continued: “These liberties, common to citizens and foreigners (by virtue of articles 14 and 20 of the constitution), are those that are needed to populate, enrich, and civilize these countries, not political liberties, an instrument of disquiet and ambition in our hands and of little interest to the foreigner who comes to us in search of wellbeing, family, dignity, and peace. It is fortunate that the most fertile liberties are the most practical ones, above all because they are accessible to the foreigner who brings with him the knowledge of their exercise.” See Juan Bautista Alberdi, Sistema económico y rentístico de la Confederación Argentina según su Constitución de 1853, vol. xiv (Administración General: Vaccaro 1921) 64–65.

6  In this sense see Rainer Grote in this volume.

7  The question around what reasons explain the liberal–conservative pact—its process of progressive convergence or merger—after decades of armed disputes, has yet to be accurately answered. Some might say that the change was due to the menacing (although ephemeral) presence of radical groups (especially in Colombia, Peru, and Chile) after the “red revolution” in Europe in 1848. Others might note the need for self-survival and the acknowledgment that the continuation of hostilities was detrimental to both sectors. I’ll leave this question to focus on how this pact was translated into constitutional law, adding, in any case, that it tended to be generalized throughout the region between 1850 and the end of the century.

8  See Alberdi, Sistema económico y rentístico de la Confederación Argentina según su Constitución de 1853, vol. xiv (n. 5) 64–65.

9  Iván Jaksic, Andrés Bello, la pasión por el orden (Editorial Universitaria 2001) 212.

10  Tulio Halperin Donghi, Proyecto y construcción de una nación: Argentina, 1846–1880 (Biblioteca Ayacucho 1980) xxi.

11  A lively discussion finished with Vallarta reading a speech in defense of economic liberalism. See Francisco Zarco, Historia del Congreso Extraordinario Constituyente de 1856 y 1857 (Biblioteca Virtual Miguel de Cervantes 2013) 455 http://www.cervantesvirtual.com/nd/ark:/59851/bmccc191 (last accessed February 15, 2017).

12  Discussed at length in this volume by Rainer Grote.

13  Adolfo Gilly, La revolución interrumpida (Biblioteca Eratoward 1994).

14  For reasons of space, I overlook, for the moment, some attempts made in the first half of the century, partly directed at moderating presidential powers. I deal with them in Gargarella, Latin American Constitutionalism (n. 1).

15  In detail see the contribution by Mariela Morales Antoniazzi and Pablo Saavedra Alessandri in this volume.

16  In this sense, I fully agree with the distinctive characteristics of the project known as Ius Constitutionale Commune—a project initiated by the Max Planck Institute for Comparative Public Law and International Law under the guidance of Armin von Bogdandy—in the sense that “exclusion and inequality are the central problems” currently faced by the region. c.f. Armin von Bogdandy in this volume.

17  Regarding the origins of Latin American hyperpresidentialism see Diego Valadés in this volume.

18  Carlos S. Nino (ed.), Presidencialismo vs. Parliamentarismo (Consejo para la Consolidación de la Democracia 1987) 1003; and “Hyperpresidentialism and Constitutional Reform in Argentina,” in Arend Lijphart and Carlos H. Waisman (eds.), Institutional Design in New Democracies (Westview Press 1996); Juan Linz and Alfred Stepan (eds.), The Breakdown of Democratic Regimes (John Hopkins University Press 1978); Juan Linz and Arturo Valenzuela (eds.), The Failure of Presidential Democracy (John Hopkins University Press 1994); Carlos S. Nino, “Qué reforma constitucional?” (1992) 21 Propuesta y control 38.

19  Bruce Ackerman, ʻThe New Separation of Powersʼ (2000) 113 Harvard Law Review 634–42; see Linz and Valenzuela, The Failure of Presidential Democracy (n. 18).

20  Gabriel Negretto, Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America (CUP 2013) 33.

21  Mark J. Payne, Daniel Zovatto, Mercedes Mateo Díaz, and others, Democracies in Development. Politics and reform in Latin America (Inter-American Development Bank, International Institute for Democracy and Electoral Assistance, the David Rockefeller Center for Latin American Studies 2007) 32.

22  See Negretto, Making Constitutions (n. 20) 25.

23  Julio Ríos-Figueroa, “Institutions for Constitutional Justice in Latin America,” in Gretchen Helmke and Ríos-Figueroa (eds.), Courts in Latin America (CUP 2011) 27 ff.

24  Bruce M. Wilson, ʻChanging Dynamics: The Political Impact of Costa Rica’s Constitutional Court,” in Rachel Sieder, Line Schjolden, and Alan Angell (eds.), The Judicialization of Politics in Latin America (Palgrave Macmillan 2005) 47–66; Bruce M. Wilson, ʻExplaining the Rise of Accountability Functions of Costa Rica’s Constitutional Court,” in Siri Gloppen and others (eds.), Courts and Power in Latin America and Africa (Palgrave Macmillan 2010) 63–82.

25  Jose Antonio Cheibub, Zachary Elkins, and Tom Ginsburg, ʻLatin American Presidentialism in Comparative and Historical Perspectiveʼ (2011) 89 Texas Law Review 1701; Zachary Elkins, Tom Ginsburg, and James Melton, The Comparative Constitutions Project: A Cross-National Historical Database of Written Constitutions, Survey Instrument (May 11, 2010); Jonathan Hartlyn, ʻCommentary: Constitutional Structure in Latin Americaʼ (2011) 89 Texas Law Review 1977.

26  See Cheibub, Elkins, and Ginsburg, (n. 25).

27  ibid. 1730.

28  Alberto Acosta Espinosa, “El buen vivir, una oportunidad por construir” (2008) 75 Revista Ecuador Debate 33–48.

29  Rodrigo Uprimny, Cesar Rodríguez, and Mauricio García, Justicia para todos? Sistema judicial, derechos sociales y democracia en Colombia (Norma 2006); Manuel José Cepeda-Espinosa, “Judicial Activism in a Violent Context: The Origin, Role and Impact of the Colombian Constitutional Court” (2004) 3 Washington University Global Studies Law Review 259–700.

30  Roberto Gargarella, La justicia frente al gobierno (Ariel 1996).

31  Jon Elster and Rune Slagstad (eds.), Constitutionalism and Democracy (CUP 1993).

32  Robert Dworkin, Taking Rights Seriously (HUP 1978).

33  I thank Francisca Pou and Armin von Bogdandy for this question.

34  See Wilson (n. 24); generally on the institution of the writ of amparo see Allan R. Brewer-Carías in this volume.

35  The figures are taken from Manuel José Cepeda-Espinosa, “Judicial Activism in a Violent Context” (n. 29) 259–700.

36  See Gargarella, Latin American Constitutionalism (n. 1).

37  See Armin von Bogdandy in this volume.

38  The problem is not dissipated by alleging that the great “enemy” of popular political participation is “concentrated economic power.” See Roberto M. Unger, “El sistema de gobierno que le conviene a Brasil,” in Nino (ed.), Presidencialismo vs. Parliamentarismo (n. 18).