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Latin American Constitutionalism, 1810–2010

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Latin American Constitutionalism, 1810–2010 The Engine Room of the Constitution

R O B E RTO G A R G A R E L L A

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3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016

© Oxford University Press 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Gargarella, Roberto, 1964Latin American constitutionalism, 1810–2010 : the engine room of the constitution / Roberto Gargarella. pages cm. Includes bibliographical references and index. ISBN 978–0–19–993796–7 (hardback : alk. paper) 1. Constitutional law–Latin America– History. 2. Constitutions–Latin America–History. I. Title. KG548.G38 2013 342.8–dc23

1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper

CONTENTS

Preface vii Acknowledgments

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1. The First Latin American Constitutions (1810‒1850)

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2. Fusion Constitutionalism: The Liberal-Conservative Compact in the Second Half of the Nineteenth Century 20 3. The Material Basis of the Constitution

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4. The Limits Imposed by the Past upon the New Constitutions 62 5. The Crisis of the Postcolonial Constitutional Model: Positivism and Revolution at the Beginning of the New Century 84 6. Constitutionalism at the Mid-Twentieth Century and the Return of the “Social Question” 105 7. Grafting Social Rights onto Hostile Constitutions

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8. Contemporary Constitutionalism I: Constitutions in Internal Tension 148 9. Contemporary Constitutionalism II: The “Engine Room” of the Constitution 172 10. What Have We Learned in 200 Years of Constitutionalism?: For an Egalitarian Constitutionalism 196 Notes 209 Bibliography Index 269

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P R E FA C E

Origins. The origin of this book can be found in a double discomfort. Discomfort, first, with the fact that Latin American constitutionalism has not been the object of systematic academic and public attention, at least until recently and in spite of its long and enormously rich history. This initial discomfort would have, as counterpart, a certain fascination with the amount and quality of the constitutional ideas that have been discussed and reviewed in the region during these 200 years. At the same time, the book is motivated by a second discomfort that arises against the very way in which regional constitutionalism has approached constitutional reforms, particularly in recent decades. And this discomfort is produced mainly by the obsessive attention given to issues of rights, to the detriment of the organization of power. Latin American legal activists have thus acted as if the democratization that they promoted through the expansion of rights were consistent with the concentration of power and authoritarian centralism that they preserved in the organization of power. In other words, most new Constitutions have opted to keep the door of the “engine room” of the Constitution closed. The result of this is that the system of concentrated power begins to conflict with the social demands generated in the name of constitutional rights—which ends up implying that a part of the Constitution begins to work against the success of the second. The object of this study. In this book we shall examine 200 years of Latin American constitutionalism (1810‒2010), trying to better understand what has happened in the field, over the years, and to distill constitutional theory from there.1 This undertaking involves taking Latin American constitutionalism seriously, with the certainty that there is a lot to learn from what has been done in the region in legal terms. To state this does not imply assuming that public life in the region is mainly dependent on institutional questions and discussions. Quite the opposite: what is meant, against too common approaches, is that the institutional issue, and particularly as reflected in the constitutional options of a community, are important enough to merit our attention, rather than be considered superficial or merely superstructural. In this respect, the book aims to draw attention to how constitutional theory has ceased to reflect on issues and ideas central to American public life, which were the object of close scrutiny many decades ago. Consequently, we shall here review the work of statesmen, lawyers, and legal thinkers such as Juan Bautista Alberdi, Francisco Bilbao, Simón Bolívar; Juan Egaña, José González Vigil, Victorino Lastarria, Juan Carlos Mariátegui, vii

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Juan Montalvo, José María Mora, Mariano Otero, Manuel Murillo Toro, José María Samper, and Domingo Sarmiento, among many others. People like this gave shape to the foundations of what is still today Latin American constitutional law. This is the reason why we shall devote a special and particularly close attention to the writings and speeches of these early thinkers—more than to their successors. This book should then be seen as an opportunity to become acquainted with these writers and gain a better understanding of their ideas. But the point is not simply to pay attention to the rich American constitutional tradition, recovering the discussion of texts and almost forgotten writers. It is, above all, to recognize that Latin American constitutionalism has been debating many topics that, for one reason or another, the prevailing constitutional theory has not taken as objects of special study. For example, on numerous occasions, Latin Americans wondered what to do with the vocation of “importing” foreign law, in the face of the existing, fragile or too implausible, legal traditions. They were also pioneers concerning the inclusion of social rights in their Constitution, perhaps after recognizing the levels of inequalities that characterized their societies. In addition, on numerous opportunities they faced challenges related to the extreme versions of presidentialism that they adopted. Latin Americans also struggled hard on the issue of religion and State neutrality. They have repeatedly thought about how to deal with the actual, threatening presence of majoritarian forces, particularly in the face of their concern with the protection of private property. More recently, regional constitutionalism also was challenged by the problems of pluralism and multiculturalism. In sum, throughout history, Latin Americans found themselves under the obligation to deal with numerous original and significant legal and political problems. All these problems have obliged regional constitutionalism to confront some fundamental questions, such as the following: Does it make sense to “import” foreign law? And would it be possible not to do this? How to proceed in that case? How to make foreign law compatible with national law and national traditions? How to relate new and old law? What to do, in order to allow the newly incorporated rights to flourish? What type of protections should property rights receive in such unequal societies? What to do, in the face of such dominant Executive powers? How to prevent those powerful Executives from undermining the rest of the institutional structure? And what do with Constitutions that seemed at the same time committed to contradictory ideals? This list of relevant questions could continue ad infinitum, and we shall explore many of them. Purpose. The project of the book is both descriptive and normative. Descriptively, the idea is to briefly review 200 years of constitutionalism while normatively the aim is to rethink regional constitutionalism from an egalitarian perspective. In both aspects, the project sounds too ambitious, and for that reason we should clarify what the scope of the book is. In regard to its descriptive aspect, the main purpose is to recognize the main lines that have distinguished regional constitutionalism since independence (rather than the impossible goal of giving a more or less accurate picture of all that happened in constitutional terms in the last two centuries). Against those who may want to associate regional constitutionalism with chaos, anarchy, ignorance, or pure imitation, the idea is to explore its richness and also the consistency and evolution of the main constitutional projects at stake. In regard to its normative aspect, the

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main purpose of this work is to provide the readers with some important questions; a standpoint from which to formulate new questions; and most of all a theoretical ground from which to begin to imagine some possible answers. The book aims to contribute to an ongoing conversation on a difficult and important topic, which has been either neglected or the object of fragmented or too parochial studies. Structure. The book shall be organized around five key historical periods: 1. The first constitutional phase extends from independence to the middle of the nineteenth century (approximately from 1810 to 1850). 2. The second period begins by the mid-nineteenth century and follows until the beginning of the twentieth century. We shall consider this the “foundational period” of Latin American constitutionalism because it was in those years (particularly between 1850 and 1890) that the main Constitutions of the region were written (in fact, after 200 years of legal history, the “institutional matrix” of Latin American constitutionalism is still closely related to the “matrix” that was then designed). This will be the period of order and progress—the period of consolidation of the postcolonial legal structure. 3. The third period is the period of crisis of postcolonial constitutionalism. We shall place this period in between the end of the nineteenth century and the beginning of the twentieth. This period, which was profoundly marked by the presence of positivist ideas, represents the time of the breakdown of the postcolonial legal order. 4. The fourth phase is the phase of social constitutionalism. This period—we shall here assume—begins with the crisis of 1930 and has it peaks at the middle of the twentieth century (Second World War, import substitutions, and the definitive entrance of the working class into politics). During this stage numerous constitutional projects will appear, which aimed to recover the “social question” that the old nineteenth-century Constitutions had forgotten or neglected. 5. The fifth and final period that we will examine will extend from the late twentieth century to the beginning of the new century. We shall here refer to the “new Latin American constitutionalism,” and study the latest and significant constitutional reforms. These reforms, as we shall see, would still expand the social commitments of the previous Constitutions, although they would keep the old model of concentrated political authority basically untouched. These shall be the five main temporal axes of this study. The descriptive analysis of each of those parts shall be punctuated by critical reflections related to them. For instance, the study of the “first” regional constitutionalism shall be followed by a discussion about the relations established between the “new” and the “old” colonial legal system; and the examination of the “foundational” Constitutions will be followed by a reflection on the main philosophical, political, and economic assumptions of the region’s “founding fathers”—and their influence. Similarly, the crucial incorporation of social rights into the nineteenth-century Constitutions, in the twentieth century, will introduce discussions about the issue of legal transplants and constitutional grafts. Finally, the special emphasis put in the rights section of the Constitution, during the last decades, will promote further reflections on the existing relations and tensions between the two different sections of the Constitution.

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Inequality as a main concern. This study will be marked by some fundamental insights and concerns, and a common thread. The basic concern of this work has to do with inequality, which appears to mark all the different spheres of the organization of power—the social, political, and economic spheres—and which has historically affected some groups more than others (women, indigenous groups, African Americans, in particular). The main intuition will be that the institutional system had a significant responsibility in the consolidation of that political, economic, and social system, which remains, after 200 years of independence, profoundly unequal. Much of the book revolves around that problem: the limits set by the past, the difficulties in overcoming them, and the need to continue to address this issue today. The common thread that runs throughout the book is the inquiry about a different way of thinking and organizing democratic life. It is the search for a constitutional conception that substantively differs from the one that became consolidated in the past, this is to say, the model of “limited political liberties” and “ample economic liberties.” It is the search for a different constitutional model, built around the ideals of individual autonomy and collective self-government, which were present in the region from the time of independence. To a large extent, the book is an attempt to cross the constitutional thought of the region, trying to recognize, retrieve, sophisticate, and redefine the American political thought of egalitarian roots.

ACKNOWLEDGMENTS

For helping me with this book, I want to give special thanks to my colleagues from the Iniciativa Latino Americana para el Derecho y la Democracia (ILADD), with whom I debated these issues; and also to Robert Barros, Marcelo Leiras, Adam Przeworski, and Julio Saguir, for some excellent discussion sessions in sunny Buenos Aires. In addition, I want to thank Miguel Godoy and José Arthur Castillo, from the Universidad de Curitiba; and Pedro Salazar from the UNAM, for their bibliographical support; and also Vicky Murillo, for organizing a seminar, at Columbia University, NYC, where I began to think about these issues. I want to also thank Silvina Ramírez, Maristella Svampa, and Horacio Tarcus, with whom I had an early debate about the topic, at the CEDINCI, and particularly Miguel Ángel Benedetti, for his friendly, so careful, and acute reading of a first draft of this book. Also, I want to give my thanks to the participants of my Seminario de Teoría Constitucional y Filosofía Política, at the Universidad de Buenos Aires, with whom I had numerous meetings where we debated Latin American Constitutionalism; to my colleagues at the Universidad Di Tella in Buenos Aires; to the friends at Christian Michelsen Institute (CMI), from Bergen; to those who attended presentations of different parts of this book, at the David Rockefeller Center for Latin American Studies, in Harvard; the Department of Political Science, at Yale University; the law school of the University of Texas‒Austin; the faculties of law and political science at the Universidad de Sao Paulo (USP); the Seminario Latinoamericano (SELA). In addition, I discussed some of the arguments presented in this book at the GIGA Seminar, in Hamburg; at the University of Frankfurt; at the Universidad de la República, in Uruguay; at the Facultad de Derecho and the Facultad de Sociología, at the Universidad de Buenos Aires; at the Universidad Di Tella and at the Universidad de Córdoba. Many thanks to them all. Special thanks to Joanna Richardson, Alan Moir, Marinka Yossiffon, and Michelle Mangan for their help in the translation of this book. R.G

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Latin American Constitutionalism, 1810–2010

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The First Latin American Constitutions (1810–1850) Introduction An examination of Latin American constitutional history, concentrating particularly on the foundational nineteenth century, reveals an enormous array of constitutions that would suggest a situation of constitutional chaos. Since the appearance of the first, early Constitution of 1811, in Venezuela, and until almost the end of the century, 103 Constitutions were enacted in sixteen countries. Some of these countries, such as Bolivia or the Dominican Republic, had more than a dozen constitutions during those years (Loveman 1993, 370). The number is extremely high for a relatively short period, especially if we consider the nature of the document in question: Constitutions have the aspiration to remain stable. Even worse than that, Latin America has offered the image of a continent dominated by authoritarian and capricious caudillos. In agreement with this view, many may want to characterize Latin American constitutions as another expression of the arbitrary will of ambitious leaders, anxious to leave their legal imprint in “their” territories. Fortunately, when we study regional constitutionalism in a little more detail, the picture that we find is substantially different from the one suggested. It is thus possible to appreciate a rich variety of legal models in dispute and, above all, the many valuable constitutional ideas that appeared in the region—ideas from which we can still learn a great deal. In the following pages, we shall explore and expose the vitality and richness of the first period of Latin American constitutionalism.1

To Have a Constitution: Why and Against What? Early Latin American history shows the existence of multiple constitutions, clearly capable of answering two of the main questions that every Constitution should be able to answer: first, why a Constitution; and then, a Constitution against what? Or, to state it more precisely, many of the constitutions that appeared in the region during this foundational period emerged after the identification of certain basic problems (social, political, economic), and the conviction that it was possible and also convenient to employ the existing constitutional energies in order to confront those difficulties.2

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One fundamental model, which many had in mind at the time of thinking about how to organize the new societies, was the US constitutional model. This model suggested that the Constitution could become an exceptional means for confronting situations of extreme crisis. In other words, it suggested that the basic content of the Constitution had to be defined according to the peculiar “drama” that motivated its appearance. To state this does not imply that a Constitution should be only or mainly moved by short-term goals related to the recent past. Rather, the idea is that a proper constitutional project should take that recent past seriously. In the Federalist Papers, James Madison provided a great lesson about how to think about the Constitution. In fact, in the most significant and influential of his writings, namely Federalist No. 10, Madison made it clear why the federalist group was writing a Constitution and against what “drama” they were doing so. Thus, Madison properly identified the grave problem that seemed to be undermining the basis of the common organization—a circumstance that, in his opinion, forced all the states to rethink the basis of the Union. According to the Virginian, the fundamental problem that they were confronting was the problem of factions. He then defined factions in the following way: “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”3 This was, for Madison, the origin of the main institutional challenge of the time, namely, how to avoid the institutional system transforming the self-interested preferences of a few, or the passions of many, into laws. For him, as for many of his colleagues, an important answer to this question resided in the federal Constitution: the Constitution was, in fact, capable of filtering or diluting the growing influence of factions in American public life. In this way, the Constitution was then recognized as a crucial tool in the fight against the most serious political danger of the time. What Madison and many of his colleagues did, in the case of the United States, finds a clear parallel in what many Latin Americans did in their region. That is to say, many Latin Americans also tended to identify one or a few crucial public problems, which the Constitution could help in resolving.4 A first case that may deserve attention, given its early appearance and the influence that it exercised in vast parts of the region, is that of Haiti. Shortly after the French Revolution, and inspired by similar ideals, Haiti—then a French colony in the Caribbean area—went through a violent and bloody revolution, which was between 1791 and 1804. Notably, the revolution was led by black slaves, who would in the end establish the country´s independence and at the same time abolish slavery. Because of both the social composition and the radicalism of the revolution, the revolt generated enormous public resistance—in fact, panic—in America and in the colonial center. As a consequence, the constitutional organization of Haiti also evolved in a grossly imperfect and traumatic way.5 However, from the very beginning of the Haitian Revolution, it seemed clear why and against what Haitians wrote their first constitutions: what they were trying to do was to affirm the independence of the country and the rights of the free blacks; and they were doing so against radical evils such as the evil of political dependence and the evil

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of personal dependency—more precisely, slavery.6 The emphasis and the anxiety shown by Haiti’s early constitutional documents made, at least, one point clear: Haitian people did recognize, with absolute clarity, what the great “drama” of the time was, and for that reason they directed all their first constitutions (both in the declaration of rights and in the organization of power) to mainly solve that problem. Another interesting case worth examining is the one offered by Simón Bolívar`s early constitutional work. Bolívar was a crucial figure in the fight for independence in the entire region, and also someone who was deeply involved in Latin America’s constitutional life from the very beginning. In this double condition, Bolívar insisted on claiming that the new nations had to use all their constitutional energies in one single direction. Latin Americans, he believed, had to put the Constitution at the service of the fight for independence. The Constitution had to help to consolidate the triumph that Americans gained, with enormous difficulties, in their armed battles. For Bolívar, the consolidation of independence was the great political objective of the time. However, he also believed that the region was still using the Constitution in the wrong way, as if that main objective were already achieved. In 1813, for example, in his well-known “Memorial to the Citizens of New Granada by a Citizen of Caracas,” he specified that “among the causes that brought about Venezuela’s downfall the nature of its constitution ranks first, which, I repeat, was as contrary to Venezuela’s interests as it was favorable to those of her adversaries.”7 For him, it was clear that the only sensible constitutional response, in the face of the military crisis that affected the region, was one that reversed what Venezuelans had done in 1811. This is to say, for him, a reasonable constitutional response to the crisis required the concentration of authority. Therefore, it was necessary to create an Executive power endowed with extraordinary military and political faculties, politically non-responsible and capable of choosing his own successor. Another early (and perhaps more successful) Latin American constitutional project that deserves attention was the one advanced by Juan Egaña for Chile. According to Egaña, the main problem faced by the new independent nations was the problem of territorial, political, and above all moral dissolution, and the only solution for that situation of degradation consisted in the concentration of authority in favor of a shared moral ideal—the Catholic religion. For him, without a common religion, it was impossible to build a coherent, sustainable, appropriate government.8 He stated that without religion, thinking specifically about the case of England, one could create “a nation of merchants, but not of citizens.”9 Still another interesting example is the one that comes from Juan Bautista Alberdi’s work. His work is interesting for our analysis, both because of the particular content of his constitutional project and because of the way in which he justified it. In fact, Alberdi, who was one of the most lucid and influential legal thinkers in the region, praised the work of the first Latin American constitutional authorities for reasons similar to the ones that we are here mentioning. For him, those early legal thinkers had done their work properly. They had been wise enough to reflect upon the great problems of the post-independence moment, and had correctly detected some of the main problems they faced, which they tried to confront through the constitution. In chapter 2 of his most influential book, namely Bases y puntos de partida para la

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organización política de la República Argentina, Alberdi described the merits of the “first constitutional law” in the region in the following way: All the Constitutions enacted in South America during the war of independence were complete expressions of the needs that dominated their time. That need consisted in putting an end to the political power exercised by Europe in America, which began during the conquest and continued during the time of colonialism. . . . Independence and external freedom were the vital interests that concerned the legislators of the time. They were right: they understood the needs of their time, and they knew what to do. (Alberdi 1981, 26)10 But for Alberdi, times had changed and it was now necessary to face new problems and provide new constitutional solutions to them. It was time, then, to finally modify those initial proposals, according to the new requirements of the region, and to modify the constitutional responses accordingly. “At that time, what was required was to consolidate independence through the use of arms; and today we need to ensure that independence, through the material and moral enhancement of our peoples. The main goals of that time were political goals: today we need to concern ourselves with the economic goals” (Alberdi 1981, 123). What was now indispensable, he claimed, was to take the economic question more seriously, which required, in his view, to populate the country. He believed that by achieving this goal, the country would guarantee the desired, necessary economic growth. Of course, he believed that the required change implied a change in the Constitution, which had to be fundamentally reorganized. For him, the Constitution had to be oriented at fostering foreign immigration and at the same time limit the potential excesses of an oppressive, threatening State. Again, one may subscribe or not to Alberdi’s specific suggestions or his proposed constitutional remedies. However, what interests us, at this stage, is to highlight his rich approach to constitutionalism. Alberdi came to tell us that constitutionalism had to assume a more modest task. Rather than try to define the basics of the national institutional organization, constitutionalism had to have a more narrow focus: first of all, it had to recognize what the problems of the time were. In other words, it had to be first able to identify the main “drama” or “anguish” of the time, the problems that defined their time. Only then, constitutionalism had to look for adequate legal answers in the face of those problems. In the end, all the revised examples illustrate a way of reasoning that characterized a generation of constitutional thinkers. What seems clear is that many of those early thinkers took constitutionalism seriously, formulated fundamental questions, and suggested constitutional formulas that were apt to respond to those fundamental questions.

Two Foundational Ideals, Three Constitutional Models Once we have identified the main “dramas” of the time, the question becomes how to confront those dramas with the help of the law. More specifically, what constitutional answers could one suggest after that process of identification? Historically, we know,

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the answers greatly differed, partly because different sectors of society identified different problems, and partly due to the fact that different people suggested different answers to those problems. Interestingly, however, when we study Latin America’s constitutional history, we find neither a chaotic picture (namely, innumerable solutions, going in any direction) nor a picture that suggests the existence of merely discretionary, arbitrary solutions. Rather, in the face of some problems or “dramas” commonly identified as such— say, political dependence, economic crisis, political disorder, social injustice—Latin Americans suggested a few limited and significant answers. The point is that, in the end, there were just a few, different, always interesting constitutional responses at stake. The well-known Colombian jurist José María Samper began his book Los partidos en Colombia by describing the existing constitutional disputes in his country. The picture that he presented for Colombia is well representative of what we find in other countries in the region. According to his lucid description, what he found in his country was a dispute between people who defended different comprehensive constitutional projects. Samper made reference, then, to the existence of four fundamental legal debates, namely, the debate about “more or less liberty for citizens”; the debate about “more or less power to the central government” (or about the “expansion of municipal entities”); the debate about “more or less intervention of the popular masses, through the use of suffrage, in the government of the country”; and the debate about “more or less development of the social forces” (Samper 1893, 16). These were, for him, the main constitutional battles of the time. Colombians were divided in the face of fundamental questions related to the scope of individual liberties, democracy, and federalism questions about the worth of concentrating authority or dispersing it with the help of social organizations. Most of these debates, we could add, were organized around two basic and fundamental ideals, which seem to be inescapable in the history of constitutionalism. The first of these ideals is that of individual autonomy, and the second, collective self-government. The choice of these two ideals is not haphazard. They refer to two basic claims, which occupy a fundamental place in American political discussion since the time of independence. Of course, the main military battles that appeared in the region, since independence, were not fought with the idea of “autonomy” written in the flags of the contenders. However, and just to mention one important example, they did write in their banners expressions such as “religion or death,” which in the end clearly referred to the place of individual autonomy in the new nations. That particular dispute—related to the place of the Church in the organization of the new societies—was decisive for decades in American public life (and perhaps until today) and became manifest in multiple debates. For example: How should we think about the relationship between the State and the Church? How much influence should the Church have in the writing of education programs? Should different religions and cults be tolerated, and for what reasons? Should organizations that are hostile to the interests of the Church be authorized to function? How should we think and what should we do about the patronato? How should religious authorities be appointed? Could rights become dependent on the respect of interests of the Church? Finally, these disputes around the power of the Church only summarize and illustrate the

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many conflicts that appeared in the region concerning individual autonomy (disputes about the right to privacy, disputes about freedom of expression or assembly, and so on). In similar terms, it is not difficult to recognize the influence exercised by the ideal of collective self-government in America. It should be enough to state, for example, that the same independence revolutions were crucially based in the republican vindication of the right of the locals to govern themselves. Those revolutions were directly based on a claim of self-government, against the domination of foreign countries— England, in the case of the United States; Spain, in the case of most Latin American countries; Portugal, in the case of Brazil. From the early claim of no taxation without representation, presented by the early American colonists against England, the demand for self-government always occupied a privileged place in the disputes of the new societies. Perhaps more interestingly, that claim continued to occupy a central role in the new nations after independence, although in a very peculiar way. In most cases, in effect, those individuals who had been recruited to the war of independence, who took part in it, and who offered their lives in it, made the ideal of self-government their own. And, as the historian Gordon Wood always emphasized in his study of the American Revolution, they began to use the doctrines that were inculcated in them against the leaders of the revolution. They demanded a more relevant role for the people at large in the decision-making process; they asked for more space in political participation; and they disputed the political organization that emerged from the independence. In conclusion, in America, the presence of these two constitutional ideals, individual autonomy and collective self-government, in the foundational years of constitutionalism seems apparent. Assuming this fact, in what follows we will examine three different approaches to those ideals, which were present in Latin America since the independence days: • A conservative approach, which from the very beginning of the independence revolution assumed a restrictive view regarding the ideals of both autonomy and self-government (conservatism, as we shall see, tried to organize the entire constitutional system around one particular conception of the good—usually, a particular religion—and at the same time assumed a restrictive and elitist approach regarding the role of the majority will in the organization of public affairs). • A republican approach, which was directly opposed to the conservative one, particularly in regard to the value of the ideal of self-government, and which at the same time tended to see individual autonomy as subordinated to the needs of the general welfare or the demands of a majoritarian politics. • A liberal approach, which came to reverse the priorities of the republican one (liberals, as we shall see, tended to organize the entire constitutional order around the idea of individual autonomy and respect for individual choices, while showing a disposition to establish severe restrictions to majority rule in the name of protecting individual autonomy). In sum, what we find here are three different views, namely, one that vindicated the ideal of self-government, even at the risk of undermining the ideal of individual

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autonomy (republicanism); one that, in contrast to the previous one, appeared to be ready to sacrifice the ideal of collective self-government, in the name of preserving individual autonomy (liberalism); and a third view, that was open to challenge both ideals at the same time, in the name of a comprehensive conception of the good (conservatism). This fact alone—the fact that Latin Americans found a few and interesting constitutional answers in the face of their main constitutional “dramas”—is particularly telling, among other things, because it contrasts with what seems to be, presently, the only or dominant approach to constitutionalism. According to this approach, constitutionalism includes some basic institutions and arrangements, such as the division of powers, a system of checks and balances, a system of judicial review, and a bill of rights. In other words, there do not seem to be many different possible variations regarding what a Constitution could offer. Against that view, our initial approach suggests that, from the very beginning, from its foundational moment, Latin American constitutionalism recognized the existence of substantially different forms of responding to its main, basic questions. One wonders why, at the present time, we tend to ignore such a plurality of answers: Why do we tend to assume that constitutionalism is only compatible with a few, rigid, already defined solutions? In what follows, we shall organize our study around the three constitutional approaches just mentioned, which we shall present according to the above description. This tripartite distinction, we could add, seems well supported by the history of constitutionalism11 and accommodates pretty well some shared understandings about liberalism, conservatism, and majoritarianism.12 Let us examine these different models in more detail.

The Republican Model: The Project of the “General Will” The republican or radical model is the one that grew with, and was nourished by, the independence fight.13 Radicalism is the view that took the cause of self-government as its own, accompanying the collective demands for independence and self-determination that appeared in the region during those early years. Radicalism maintained its influence in Latin American public life since then, and at times (although only exceptionally, as we shall see) it came to occupy a central role in the region’s public and political discussions.14 This is what happened, for instance, in the mid-nineteenth century, during the period of social crisis that took place in the region, following the “1848 democratic revolutions” in Europe. At that time, radicals did not defend the value of self-determination against a colonial empire, but rather against a dominant class that prevented the expansion of the political rights of the excluded sectors of society. In Latin America, those claims became particularly audible in Colombia, Chile, and Peru, among other countries.15 Now, radicalism found serious problems for translating its main proposals into solid constitutional projects, supported by significant sectors of society. In any case, we shall here maintain, its influence in the development of constitutionalism in the region proved decisive. The radical model was the “phantom” against which the other alternative models developed their views and also the “phantom” that moved the rival approaches to join forces to develop a common constitutional project.16

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In what follows, we shall define republicanism in relation to its two main and central features, namely its political majoritarianism, and what we shall call (for the lack of a better term) its moral populism.17 The first of these characteristics, namely political majoritarianism, reveals the republican view in its most drastic contrast with conservatives’ elitism: Radicals always relied on the superior authority of popular majorities. What radicalism emphatically affirms is what conservatives more emphatically rejected, that is to say the right of majorities to exercise their self-government—the right of the majorities to decide, by themselves, what rules they wanted to accept in order to organize their life in common. Of course, the ideal of self-government acquired, in Latin America, different expressions at different times, and according to different thinkers. Among these views, there is at least one that seems worth highlighting, given its degree of refinement and precision. This is the view presented by the Chilean radical Francisco Bilbao. Bilbao lived a politically active and difficult life, which forced him into one exile after another. In one of his more remarkable writings, from 1855, entitled El gobierno de la libertad (written in response to General Castilla’s call for a reform of the dominant conservative 1839 Constitution), Bilbao reflected upon constitutionalism and the role of majority will in the new society. In that document, he referred to the French Jacobin Constitution of 1793 as the only one that “deserves to be remembered” and made a case for direct forms of democracy against those who appeared fundamentally skeptical toward this ideal (Bilbao 2007, 321‒22); he defined the delegation of legislative powers as a “crime against humanity” (326) and as “slavery disguised as sovereignty” (“the history of Congresses demonstrates this claim”—he maintained, 322). He also defended imperative mandates and the right to recall (321‒22): the people had to choose delegates, which he defined as “agents who depend on the sovereign, subject to imperative mandate,” with an authority that had to be “revocable,” according to the will of the sovereign (327). Clearly, the case of Bilbao is exceptional: There are not many other figures of his type in the region. However, it is also important not to exaggerate his exceptionalism. His views, in the end, only sophisticated and carried to an extreme the proposals that many other activists of his time also shared. Many of his peers also agreed with his view that the new societies should not frustrate the emancipatory promises of the independent revolutions—promises that had given content and legitimacy to the revolutions. Although through time the forms acquired by this majoritarian discourse varied, it seems clear that radicals tended to support collectivist, anti-individualist, and antiauthoritarian alternatives, based on majority rule. In line with this approach, Latin American radicals always objected to decision-making processes that were exclusionary, vertical, and concentrated in a few hands. We see these convictions expressed not only, for example, in Francisco Bilbao’s radical critique to the delegation of power but also in the strong anti-presidentialist proposals defended by the first radicals in New Granada or Peru (who reacted against the authoritarian militarism of Simón Bolívar). We also find that radicals consistently defended political federalism and decentralization of authority (see, e.g., the work of American anti-federalists; the Mexican liberales puros; or the radical liberalism in Colombia). Usually, radicals showed a clear preference

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for a strict separation of powers because they wanted to eliminate undue interferences upon the Legislature, and thus ensure the dominance of the majority branch (see, e.g., the constitutional initiatives maintained, in this respect, by the British radical Thomas Paine in the United States; in the analysis of the origins and working of “strict separation”; see also Schmitt 2008, Part II). Other expressions of the same kind of majoritarianism appear in the campaign led by the Colombian Murillo Toro in favor of political inclusion and in the early and noted initiatives promoted by the Peruvian Flora Tristán, in defense of the rights of women and workers.18 In addition, some radicals advanced a novel and courageous defense of associations (“the need of our century”),19 as an institutional scheme based on the cooperation of its members (see, e.g., the writings of Juan Montalvo in Ecuador, or those of the religious Francisco de Paula González Vigil, in Peru). Radicals also defended an intense State activism and interventionism, which deeply contrasted with the notions of laissez-faire that were so popular among the political elite of the time (see, e.g., the brilliant debate between Murillo Toro and Miguel Samper in Colombia). The other distinctive feature of political republicanism was its moral populism. Moral populism implies the extension of the majority principle to the area of morality and rights. Radicals proposed to organize the political and social life of the community in agreement with majority rule. For example, describing the view of the Argentine radicals at the end of the nineteenth century, the historian Pérez Guilhou maintains that, for them, the definition of “rights” and their content fully depended on what “the general will” decided in that regard (Pérez Guilhou 1997, 21). Now, in religious communities, this commitment to majority rule could imply the public defense of the majority religion. This was, for example, the view advanced by the anti-federalist Richard Henry Lee against James Madison in 1784, when he claimed that religion had to become the “guardian of morals” or when he maintained that the State had to educate its citizens in favor of “virtue and religion” (Storing 1981, 22‒23). However, it is important to note that this view is not based on the intrinsic value of religion but rather in its instrumental or contingent value. The association between the State and religion was defended, then (e.g., according to Lee) as a way of honoring the majority will. It could also have been defended, as Jacques Rousseau did (in his proposal of a “civil religion”) describing it as the cement of society; this is to say as an element that could help keeping fragmented society together (Wolff 1996, 95; Cohen 2010). In addition, radicals did not conceive private morality as liberals did, namely as a separate and inexpugnable moral realm, where the State was prevented from using its force. Republicans rejected this division between the public and private spheres. More specifically, for them, the distinction between the collective will of the community and the individual will appeared diluted. Probably the best way to illustrate this point is through an analysis of the concept of civic virtues, which probably represents the most important concept in the history of radical republican thought from its origins until today (Pettit 1997; Skinner 1983). According to the republicans’ view, a self-governed State requires the presence of an active citizenry; that is to say, citizens that are characterized by certain moral qualities that are considered indispensable for the existence and preservation of a free community. Without virtuous citizens, without citizens who are ready to sacrifice themselves in favor of their country—republicans maintain— society becomes completely vulnerable to the threat of external communities (Sandel

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1996). This is why, for republicans, the idea of depoliticization, or political apathy, in general, was unacceptable, the most dangerous scenario for a free country. This also explains why radicals rejected the idea of a “neutral” State, and why they defended an active State, ready to foster certain qualities of character among its members. A good example in this respect appears in the 1814 Mexican Constitution of Apatzingán, which employed a Rousseauistic language and explored the implications of an active, non-neutral State. In article 20, the Constitution asserts the absolute predominance of the general will over the particular will, calling for the “submission of citizens to the law,” which is described as “a sacrifice of the particular intelligence to the general will.” In the same way, in article 41 it defined the obligations of citizens, the importance of obeying constituted authorities, and made reference to the “voluntary sacrifice of personal goods and personal life, when the needs [of the country] demanded it.” Now, what has been said here may wrongly suggest that republicans simply maintained a hostile approach to the notion of constitutional rights as inviolable and unconditional. However, that claim is only partially correct. In fact, republicans had a rather unorthodox approach to rights, which implied in part to restrict and in part to expand the traditional approach to rights. Latin American republicans did not concentrate their energies in designing a list of entrenched fundamental interests aimed at protecting and facilitating an individual’s private life. By contrast, they were mainly focused on ensuring the social and economic conditions that favored an active public life. In other words, their attention was focused on what we could call the “social question,” that is to say, the (usually neglected) social conditions that were required to make collective self-government possible. With regard to political rights, we know that republicans played a decisive role in their discussion, and always favored a more expansive approach regarding these rights. At a time in which the right to suffrage was being severely restricted, and most of the population appeared to be deprived of the right to vote (given their socioeconomic condition, their gender, their race, and their education level), the republican contribution to the expansion of citizenry was of fundamental importance. In this respect, few approaches were more influential and articulated than the one advanced by the Colombian Murillo Toro. Murillo Toro was not only a crucial figure in the defense of the universal character of suffrage but also its main, and isolated, proponent, at a time when universal suffrage seemed completely lost, after the first, and failed, experience with an extended suffrage. Challenging the critics of universal suffrage, Murillo maintained that the essence of suffrage was to become more perfect with its use. “If the republic has to be the government of all and for all, or even better of every person by himself, and at the same time it being accepted that the majority is unable to rule for itself, then we should abandon the democratic system and proclaim a dictatorship” (Murillo Toro 1979, 93). The other area where the influence of political radicalism was decisive was the one related to the economic basis of the Constitution. In that respect, there are many significant initiatives that help us recognize what radicals did in the area. One early showing of the radical approach was the Reglamento Provisorio de la Provincia Oriental para el Fomento de la Campaña, promoted by José Artigas. The document fostered the redistribution of land, but (and this was quite unusual at the time) through progressive and egalitarian criteria. In fact, its main object was to benefit, in the first place,

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the most disadvantaged groups of society, including “free blacks,” “indians,” “zambos,” “native Americans,” “widows with children,” and “creoles” (Petit Muñoz 1956; Sala de Touron et al. 1978). In this way, the Reglamento adopted an egalitarian attitude toward disadvantaged groups that at the time were usually ignored, or “integrated” through force, or directly hit by the dominant political forces (clearly, neither the conservative nor the liberal tradition seemed well prepared to deal with these groups in a respectful way, which took into account the way in which State policies had hurt those peoples during such a long time).20 Although Artigas’s Reglamento was truly exceptional at its time, one could mention other egalitarian initiatives of the type passed during the nineteenth century. Among them, one could quote the significant redistributive measures promoted by radical groups in Mexico since the beginning of the independence (i.e., by the revolutionary priests Hidalgo and Morelos) and during the entire century (notably, e.g., during and after the Constitutional Convention of 1857; see Reyes Heroles 1957; Sayeg Helú 1972; Zarco 1957). Those examples help us recognize the influence—moderated but not irrelevant, as some would prefer to say—exercised by American republicanism in the shaping of the new constitutional order.

The Conservative Model: The Cross and the Sword The conservative constitutional model could be summarized in the commonly used phrase “the Cross and the sword”—in the words of religion and order.21 As the Argentine publicist Félix Frías maintained, “Order under the shadow and protection of the Cross, that is all my political program.”22 Arguably, this is the most traditional and rooted constitutional approach in Latin America, one of the two more influential in the region’s legal history, and the one that found expression in the most stable Constitutions of the nineteenth century. In fact, the promise of stability was crucial within the conservative proposal and also one that was particularly important in a regional context that was distinguished by its instability and continuous changes. In constitutional terms, the image of “the Cross and the sword” combined the two main elements of the conservative thought. On the one hand, there is the Cross, which represented the conviction that the new societies had to be reorganized according to a comprehensive moral project (usually, although not necessarily, the project of the Catholic Church). On the other hand, there is the sword, that is to say, the conviction that the use of coercion was necessary for recovering or imposing order—an order directly linked to that comprehensive project. Many among the first and most important constitutions that appeared in the region seemed to be clearly in line with these conservative goals. Think, for example, about constitutions such as those of Chile 1823 and 1833 (one of the most stable in the history of Latin America); those of Colombia 1843 and 1886; that of Ecuador 1869; that of México 1843; or that of Huancayo, Peru, 1839. In the end, the conservative model implied a commitment with two theoretical positions of enormous importance in America, namely political elitism and moral perfectionism.

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We could define political elitism in association with two fundamental ideals. On the one hand, there is an ontological claim, crucial in the history of conservative political thinking, according to which there exist certain political truths that need to guide and orient public life. On the other hand, there is an epistemic claim, according to which not all persons are equally capable of having access to those political truths. A good example of how to combine both assumptions appeared in Federalist Papers No. 31, where Alexander Hamilton referred both to a conviction—derived from John Locke’s analysis—about the existence of “primary truths” and to the fact that not all individuals were equally capable of having access to those truths.23 Through this approach, Hamilton was mainly doing two things. On the one hand, he was defining the principles that had to guide the organization of the new institutions. On the other hand, he was making clear that only a small part of the population had to take part in the discussion about those institutions. In this way, he was trying to intervene in a discussion that had philosophical overtones but that was mostly political. Hamilton tried to advance a sophisticated and laic view about the Constitution, which continues to have enormous influence in the region nowadays. In Latin America, a similar and perhaps more extreme view was common among political conservatives, and particularly among religious conservatives. There are many other examples, for instance, the case of Bartolomé Herrera, in Peru. Herrera developed his approach during a long polemic that he maintained with the liberal Benito Laso around the organization of politics in his country, and the political capacities of the citizenry. According to Herrera, The people, that is, the sum of individuals of all ages and conditions, have neither the capacity nor the right to create laws. Laws are eternal principles originating in the nature of all things, principles that cannot be clearly perceived except by those who are accustomed to the difficulties of this mental effort and exercised in the arts of scientific investigation. (Herrera 1929, 131; Basadre 1949)24 Herrera’s viewpoint presented, in that way, one of the most extreme, clerical, elitist versions of Latin American conservatism. In any case, the importance of that view moves us to think about the plausibility of the institutional organization proposed by conservative constitutional thinkers, for Latin America’s new societies. At this point, what is more important for our purposes is to explore the constitutional implications of the conservative approach. In that respect, the conservative view mainly suggested the concentration of authority in one territory and one person. In other ways, it defended political centralism and a strong presidentialism. These basic ideas, which seemed to fit so well in Latin America, found significant external references in the British monarchical model and also in the Napoleonic Consular Constitutions of 1799 and 1802, which were so influential in the region.25 At the same time, these ideas were directly opposed to the goals of consecrating federalism and a system of checks and balances, which so many liberals of the time defended. In Latin America, this conservative political model, which combined an extreme form of centralism with an extreme presidentialism, found different manifestations: from the theocratic model that appeared in Ecuador with García Moreno; to the

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Bolívarian model of a president appointed for life, which even Karl Marx objected to in severe terms;26 to the isolationist authoritarianism of the Paraguayan “supreme dictators,” such as Gaspar de Francia and Francisco Solano López (Romero 1970); or the imperial type, as the one that was defended in Brazilian constitutionalism (Calmón 1959, vol. 4; Mendes et al. 2008); or the model of the “Supreme Conservative Power,” created by the Mexican 1836 Constitution. Moreover, in some exceptional but significant occasions, the conservative model adopted the form of a monarchical proposal (Safford 1985, 360‒61).27 Let us now concentrate our attention on the other pillar of the conservative proposal, namely its moral perfectionism. Moral perfectionism assumes that there exist certain moral truths about what a good life is and that only a small part of the population can recognize what that good life is. This fact, perfectionists assumed, put the majority of people at the risk of having a corrupt or vicious life. This is why perfectionists believe it is important to have an external guidance that ensure that people live a morally healthy, rather than a degraded, life. Clearly, these strong moral commitments, normally associated with the Catholic religion, found prompt constitutional expressions in all of Latin America.28 Typically, regional constitutionalism proposed the adoption of clauses in favor of an official religion (thus, in 81 percent of the constitutions enacted during the nineteenth century); and in other cases prohibited the public cult of other religions (in 54 percent of the nineteenth-century constitutions; Loveman 1993). In some extreme cases, such as in that of Ecuador 1869, the Constitution reserved the condition of citizenship only to those who professed Catholic faith. On other occasions, such as that of Chile 1823, the Constitution appeared together with a Moral Code that, in more than 600 articles, the State tried to regulate even the more apparently insignificant acts of private life. The Code, in fact, regulated the relationships between parents and their children, the mode of celebration of public festivities, the use of alcohol, leisure and idleness, popular music, national dances; and defined conducts that deserved praise and repudiation, and so on. Meanwhile, the very influential Simon Bolívar, from his earliest constitutional writings, proposed a laic version of Egaña’s Moral Code. In his well-known “Letter of Jamaica,” he suggested a peculiar division of power that included a new branch—the Moral Power—aimed at taking care of the education and moral health of the people. According to Bolívar, this new institution was based in the Athenian Areopago and its guardians of morals, in the austere practices of the Spartans, and in the Roman institutions of Censors and domestic tribunals. This fourth branch of power was supposed to become a “source of virtue” and had, as its main object, “the heart of men, the public spirit, the good habits and the republican morality” (Belaúnde 1967, 184).29 According to the project that Bolívar presented in Angostura, the “Moral Power ” had to be in charge of the “education of children and national instruction”; had to “purify” everything that had become “corrupt in the Republic,” and work against “egoism, the lack of love to the country, idleness, negligence”; it had to signal the “pernicious character of corruption.”30 The presence of these somehow picturesque initiatives should not prevent us from recognizing the most important and perdurable influence of constitutional perfectionism. This was not the consecration of moral prohibitions, official religions, or

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moral codes, but rather a more indirect influence: the tendency to read or interpret the entire set of constitutional rights from the perspective of a particular conception of the good. In fact, conservatives did not consider constitutional rights as fundamental interests to be unconditionally defended by the State.31 Not surprisingly, many of them considered that rights had to be protected under the condition of first ensuring respect to religion. As the Chilean Juan Egaña stated: It is a mistake to allow all kinds of calumnies and insults, or attacks on the most sacred and inviolable principles of religion and morality, with the expectation of punishing its authors later. . . . The sum of evils produced by freedom of the press in religion, morality, the citizens’ mutual concord and even the external credit of the nation, is far more grave than the benefits it creates. (Egaña 1969, 84‒85) We find a similar approach in Ecuador’s 1869 Constitution, which made the right of association dependent on the due respect of “religious, morality and public order.” That was also the approach of conservative constitutionalists in Argentina during the discussion of the 1853 Constitution. For them, all the rights, including the right to work or the right to participate in politics, had to be interpreted according to the needs of religion.32 In sum, this particular conjugation—political elitism, moral perfectionism—came to give content to the constitutional proposals of conservatism in America since its foundational moment.

The Liberal Model: Neither Anarchy nor Tyranny The third important constitutional project in America during the nineteenth century was the liberal project. It is easier to examine liberalism when one has previously revised the alternative models with which liberals were then in dialogue. Liberals, in fact, always tried to become more attractive by showing the significant differences that separated its own projects from those of its constitutional rivals. In this work we define the liberal constitutional model through its double commitment to the equilibrium of powers and State’s moral neutrality. The constitutional implications of this double commitment are apparent. For liberals, the organic part of the Constitution had to be dedicated to prevent the abuses and excesses that the two alternative models seemed to authorize. Meanwhile, the dogmatic part of the Constitution—the Bill of Rights—had to establish firm barriers in defense of an individual’s life projects, which the two alternative models, in one way or another, seemed incapable or unwilling to ensure. This double commitment, which we shall now study in more detail, was finally based on a nuclear, primitive, definitive value of the liberal project, which is the value of individual autonomy. We can associate the idea of individual autonomy with the individuals’ capacity to choose and carry out their own life projects (Nino 1991). Through their unrestricted defense of individual autonomy, liberals opposed, first, the moral perfectionism that conservatives advanced—the conservatives’ vocation to organize

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society around the demands of a particular religion. At the same time, and in this way, the liberals’ defense of individual autonomy directly challenged the republican view, which seemed open to removing individual will in cases of collision with the general interest of society. The most important institutional manifestation of this liberal commitment to free choice appeared in the proposal for a list of individual, inviolable, and unconditional rights. As the Chilean liberal Juan V. Lastarria (one of the most important critics of the Chilean 1833 Constitution) put it, at the time of sanctioning all these rights . . . the Constitution must do it in an unconditional manner, as the US Constitution did it; because if it does it as the rest of the modern Constitutions, by including clauses such as “but the repression of crimes committed through the use of these freedoms” or “in the manner defined by the law or a decree,” then the Constitution would commit the grave mistake of leaving individual and social rights at the mercy of political power. (Lastarria 1906, 2:271) The defense of a list of unconditional rights directly contrasted both the conservative position, which typically made rights dependent on the needs of religion, and the republican view, which assumed that rights found their limits in the general welfare. In addition, and through their strong defense of individual autonomy, liberals manifested their commitment to an individualist view; that is to say, a view that, methodologically speaking, recognized the primacy of the individual. Individuals were viewed as the main standpoint from which to think about the organization of society. At the same time, the liberal view was anti-collectivist and anti-Statist—it defended spontaneity rather than regulations and controls (Jaramillo Uribe 1964, 50). For liberals, the State had to abdicate both its perfectionist and regulatory ambitions. By contrast, the State had to simply open the space for the emergence of a “spontaneous” order, which simply followed from the individuals’ contracts and agreements.33 The previous points are important because they help us recognize what was, at the time, a foundational assumption of liberalism, namely the idea that the State was the main threat to individual liberty. In other words, the State was seen as the main source of oppression, which for that reason had to be limited and contained. This is why the Colombian jurist José María Samper maintained that it is necessary to legislate as little as possible, to renounce the mania of regulation and imitation. In old societies, where interests are complicated and have deep roots, the regulation of social life is not justifiable, although understandable. In new societies, however, which are exuberant and unruly, regulations mean stagnation. Hispanic-Colombian rulers have an obsession about ruling in a European way, copying their systems, which are not suitable for the New World. This has produced the most absurd of all contrasts: regulations in a democracy, two ideas that are mutually exclusive. If what we want is to have stability, liberty, and progress in Hispanic-Colombia what we need is that public officers adopt the practice of regulating as little as possible, trusting in the good sense of the people and the logic of freedom; they should make efforts to

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simplify situations, suppressing all artificial questions whose only purpose is our mutual embarrassment. (Samper 1861, 486‒88) In synchrony with his Colombian colleague, the Argentine jurist Alberdi—as did many other important thinkers of the time—advocated a politics of laissez-faire. For Alberdi, the State had to concentrate its efforts in ensuring “security” and also certain “guarantees of protections”—aspirations that would be later reflected in the Argentine 1853 Constitution, to which he decisively contributed in writing. The idea was to establish, first, a list of protected rights and “individual liberties” that acted as barriers that limited the regulatory anxieties of the State. Of course, this view, which was particularly concerned with the protection of individual liberty and rights, also had significant implications concerning the Constitution’s scheme of organizing power. An interesting and well-known expression of the liberals’ approach to this issue appears in the (liberal) metaphor of “fighting against tyranny and anarchy.” This simple idea traveled along the entire American region, over decades, and represented an excellent summary of the liberal understanding of the division of powers. A plausible and rather obvious interpretation of that phrase would suggest that the idea of “tyranny” referred to the abuses of the Crown—say, the abuses of the British, Spanish, or Portuguese Crown—upon the American colonies; and/or the abuses of authoritarian rulers and caudillos in America. In other words, the evil of “tyranny” had to do with the types of governments usually promoted or defended by conservatives. Meanwhile, the evil of “anarchy” referred to other kinds of evils, which we may associate with radicalism: the rebellious activities of Daniel Shays’s troops, in Springfield against the dominant legal order; the early sack in the market of “Parián,” in Mexico, after independence; the “social war” led by Juan Boves and the most disadvantaged groups, in Venezuela 1814; among others. This is to say, the fight against “anarchy” implied a fight against majority actions that were, according to many, sponsored by radicalism. One early and crucial historic event in the development of this liberal view, was the institutional crisis that exploded in the United States in the years previous to the Federal Assembly. At that time (approx. 1783‒1786), many local leaders began to promote the sanction of laws (particularly, “tender-money” laws), which came to give legal support to the same proposals that before, were advanced through the force of arms.34 This situation decisively marked the life of the liberal project: most of all, liberals wanted to avoid the possibility of having laws that were the mere products of personal ambitions or collective passions. This is why they were so concerned with redesigning the institutional system: they wanted to avoid, once and forever the abuses of “one” or “the many.” The system of checks and balances was their main institutional response against those risks. On the one hand, the system appeared as an excellent remedy to the conservative threat in that it promoted the decentralization of powers and defined strict limits on the Executive’s normative capacities. On the other hand, it also seemed useful against the republicans’ disposition to transform the legislative power into an overpowering, sovereign body. For example, the system of mutual internal controls proposed to divide the legislative body into two chambers and subjected

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this body to a complex mechanism of controls and vetoes. Liberals wanted to thus abandon the old system of “strict separation” of powers, which were promoted by radicalism. In Latin America, the liberals’ first constitutional steps were timid and fearful. Typically, Latin American liberals followed constitutions such as the one of Cadiz 1812, which gave support to a slow withdrawal from the conservative model. This latter model suggested fewer powers to the Executive, more controls and authority to the parliamentary body, and more space to individual rights (Breña 2006). Constitutions such as those of Argentina 1826, Chile 1828, Nueva Granada 1830 or 1832, México 1824, Peru 1823 and 1828, and Uruguay 1830 represent very moderate examples of such tendencies.35 Later in time, however, liberals in the region would promote more powerful Constitutions: Constitutions that were more strongly committed to individual rights, more emphatic in their defense of federalism and the decentralization of powers, and firmer in their defense of internal institutional controls. The previous pages allow us to recognize the variety and richness of the main constitutional ideas that characterized early Latin American constitutionalism. This remarkable panorama clearly contrasts with simplistic approaches to the topic, which concentrate their attention in the frequent legal changes that characterized the region, or in some of its picturesque features. *

*

*

*

The Moderating Power in Brazil and Mexico, and Extraordinary Powers for the Executive We shall dedicate the following lines to revise two novel proposals—very related—which appeared in an area where the region offered some of its most innovative proposals: the organization of the Executive branch (Loveman 1993). In this respect, we shall explore two variations of the so-called “Moderating Power” (originally created, for different purposes, by Benjamin Constant). We shall focus our attention on two examples, coming from Brazil and Mexico—the two main countries where the proposal was then adopted.36 Before going into the details of these proposals, it may be worth mentioning that Constant exercised a significant influence in Latin American Constitutions (or constitutional theory). This influence becomes apparent, for example, in the exchange of letters that he maintained with political leaders such as Simón Bolívar. As we know, Bolívar always advocated for a very strong Executive.37 In his mature work, in particular, he proposed to follow the Napoleonic example through a Constitution that included a powerful president and a centralized system of government, where all municipal governments were directly suppressed.38 It was the same Constant who was then one of the most severe critics of Bolívar.39 More interestingly still, Constant’s influence became apparent in the proposals for a “Moderating Power,” which were somehow based on his original creation. In effect, Constant had at one point presented a model of “constitutional monarchy,” where power was divided into four different branches. According to this proposal, the “fourth branch” was a “neutral” institution, the Moderating Power, a position that

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was reserved to the Monarch, who had the mission of “balancing” the other three and avoiding their possible excesses. Constant’s institutional model was thus different from the traditional scheme advanced by Montesquieu (and the three branches of government), and also different from the one that was advanced by William Blackstone in England, which included a Monarch in charge of the Executive position. As anticipated, his model found remarkable expressions in Latin America, particularly in Brazil and Mexico, countries that attempted to put into practice the notion of a neutral power.40 It is also true, however, that many other countries discussed the possibility of developing institutions of the type.41 In 1824, Brazil (and, in the same era, Portugal) adopted Constant’s proposal as a kind of synthesis between “liberalism and absolutism” (Mendes et al. 2008, 163). However, in fact, the model adopted in Brazil included a too powerful emperor, who had the capacity to dissolve the legislature, the power to select the senators, the power to suspend judges from their positions, and also to appoint and remove the ministers. Not surprisingly, then, the system generated resistance among liberals, republicans, and federalists.42 Meanwhile, in Mexico, the institution of the “Supreme Conservative Power” appeared in the context of the changes promoted by the conservative reaction, after a period of pro-federalist reformism, led by General Valentín Gómez Farías. Gómez Farías’s federalist government generated profound resistance among traditional sectors, including notably the Church and the Army, who worked against the authority of the president. The anti-federalist resistance was then led by General Antonio López de Santa Anna, who became the symbol of the return of centralism. In the end, the centralist forces achieved their objective and put an end to the federalist experience. The most important institutional innovation that arrived at that point was the introduction of a “Supreme Conservative Power,” inspired by Constant’s “neutral” Moderating Power and directed to favor political stability.43 Perhaps not surprisingly, General Santa Anna resisted the presence of the “Supreme Conservative Power” from the very moment of its creation. He understood that the new institution was basically directed at limiting his own political capacities (Noriega 1972, 204‒5). The new institution, which many described as a Monarchist proposal hidden under a republican mask, was composed of five members. Among its functions, the new Power was in charge of declaring void those laws that contradicted the Constitution (which transformed this institution in one of the earliest expressions of “judicial review” or constitutional control in the region; Barrón 2001); it could also declare the physical or moral incapacity of the president to exercise his function, invalidate the decisions of the Supreme Court of Justice when it encroached the powers of the other branches, re-establish the existing powers, in case one of them was dissolved through force, and arbitrate future constitutional reforms. One of the main ideologists of the new institution was Francisco Sánchez de Tagle (although, according to many, he only set in motion an institution that was in fact designed by another noted conservative, namely Lucas Alamán).44 Sánchez de Tagle justified the existence of the new power by making reference to the fact that “political powers have frequently exceeded the limits of their constitutional functions” (Noriega 1972, 216). For that reason, he assumed, it was necessary to create an institution

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that appeared as the “center of unity, the oracle of reason and good sense,” capable of dictating “non-appealable decisions,” which became an “arbiter that ensured that the different powers remained within their constitutional limits” (217). Sánchez de Tagle defined this new institution as “a neutral power . . . because it cannot do things by itself, unless another power forces it to work.” He compared it to a “dam”: like a dam, the “Supreme Power” had as its mission to “resist” the destructive impulses of the other forces (217). The institution began to operate in 1836, and one of its first decisions was the invalidation of an order coming from the Minister of War (who actually resigned his position, offended by the intervention of the “Supreme Power”). However, and against what its creators could have expected, the new branch then began to transfer new faculties to General Santa Anna, opening in this way the path for the establishment of a dictatorship.

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Fusion Constitutionalism The Liberal-Conservative Compact in the Second Half of the Nineteenth Century

Introduction In his work Ideas conservadoras de buena ley, published July 24, 1857, the Argentinian politician Bartolomé Mitre lucidly examined the political landscape in his country and in the region. After that exploration, he made reference to the diverse political alliances that had been taking place among different political forces. More significantly, he paid attention to the reasons that, in his opinion, favored the emergence of those specific alliances, rather than alternative ones. Mitre’s study still has analytical force, in both its descriptive and normative aspects. Let us begin this chapter by revising some passages of his writing, where Mitre makes reference to the three main political factions that dominated the region— namely, liberals, conservatives, and radicals.1 In his words: “Among us, and also in all the other American countries, there have been three main parties that represented the main tendencies of society, and came to rule the country at one point. The three parties are the conservative party, the liberal party, and the radical party” (Halperín Donghi 1980, 183). Mitre characterized these parties in the following way. The conservative party, he said, “has been first monarchist, then favorable to the landowners, immediately then favorable to the proprietors, and in the end it became reduced to men of influence and good sense, who oscillated between progress and resistance.” Then he described liberalism as a “reformist” party, responsible for enacting “memorable laws,” defender of “ideas and progress,” and the one that “always rejected the influence of caudillism.” Finally, he presented the radical party, claiming that it “has been represented, among us, by the Barbarians. Artigas, Ramírez, Aldao, Rosas, those were the apostles of the radical party, the party that advocated for an exaggerated democracy and equality, that downgraded the intelligence to the level of barbarism, instead of trying to raise the masses to the level of intelligence” (183). At the end of his work, Mitre made reference to the conservatives’ political errors and particularly to the erroneous criteria that—until then—had guided their political alliances. In his view, conservatives had mistakenly (and obstinately) joined forces with radical groups, which he found totally unacceptable, but also contrary to the conservatives’ interests. It was necessary, in his view, to put an end to that tendency, 20

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and he began working toward the reunion of conservatives and liberals. This was, in his view, the only political convergence that promised stability and progress for the country. He stated: A conservative party cannot exist but under the shadow of the liberal banner. . . . That is the place, and that is what is lost when conservatives go together with turbulent and unprincipled factions, which end up engulfing conservatism and transforming it into an instrument for disorder. This is what has tended to happen to both conservatives and moderates, when they do not pay attention to the general interests of the country, and do not recognize what the spirit of their time is. This is what has tended to happen when they decide to simply follow their immediate interests or impressions, or their personal antipathies. (Halperín Donghi 1980, 183‒85) In the following pages, we shall explore some of the theoretical grounds that explain both the convergences and divergences between the three main political forces of the nineteenth century. First, we shall briefly review the elements that induced disagreement between them. Second, we shall study what is perhaps more important, namely, the reasons that explained their agreements. Finally, we shall focus our study on one particular political alliance, undoubtedly the most influential of them all (and also the one that Mitre himself promoted), namely the alliance between liberals and conservatives.

The Scope of the Differences In order to recognize the differences that separated liberals from conservatives, conservatives from radicals, and radicals from liberals, we may begin regarding the views of each of these factions concerning the two foundational values of Latin American constitutionalism. These are collective self-government and individual autonomy—two values that, as we have seen before, played a crucial role in the region’s public life since the independence period, and which are profoundly connected to the Constitution’s main parts. Taking these basic concepts as our starting points, we may now pay attention to the factors that distanced each of those political views (liberal, conservative, radical) from each other. Liberalism and radicalism. As we know, radicals favored the expansion of the political system and promoted—at least in principle—mass popular participation in public affairs. Liberals did not share that view, which they found too risky. In their opinion, there would be sufficient time for an opening of politics, but this was not the right time. This is why, for example, Juan B. Alberdi proposed to experiment with suffrage “without reducing it and without suppressing it” in order to “prepare the masses for the future exercise of direct suffrage” (Alberdi 1981, 160). For him, universal suffrage had to be basically reserved for the future, not for present times. In addition, liberals and radicals differed in their views about rights and individual liberties. According to the former, it was necessary to establish a “wall of separation” between the State and the individuals, so as to ensure a strict respect of individual liberties (i.e., religion). According to the latter, to the

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contrary, the very idea of establishing such a barrier was undesirable and also mistaken: the State could not and should not be neutral regarding the people’s political dispositions (i.e., their cowardice; their political apathy). For radicals, the State’s indifference concerning the people’s political virtues put the health of the Republic at risk. Radicalism and conservatism. As we know, profound discrepancies between these two groups existed. In fact, each of these factions shaped their own political identity in critical dialogue with the opposite, rival faction. Undoubtedly, the most important disagreement between conservatism and radicalism appeared in their approach to the organization of power. In principle, everything that conservatives claimed in this area was denied by radicals, and vice versa. The political differences between the two views became apparent in many circumstances, including their discussions about the scope of the Executive’s powers, extraordinary and emergency powers, veto power, majoritarianism, federalism, the proper relationship between representatives and the people, and so on. At the same time, conservatives and radicals differed in their approach to certain basic rights. Thus, while radicals normally wanted to expand social guarantees and political rights, conservatives resisted those moves, rejected most discussions about the “social question,” favored a restrictive approach to political rights, and—most of all—favored the protection of property rights. Liberalism and conservatism. As we know, liberals and conservatives engaged in long and bloody armed confrontations, over decades, all across the region. The tensions between these two views emerged, at least in part, from their different views about the organization of power and, more specifically, about the organization of the Executive branch. According to most liberals, a too powerful Executive put the entire institutional system under risk. By contrast, conservatives believed that it was indispensable to rely on a powerful Executive, particularly at that time, when the new nations were—above all—in search of political order and stability. In addition, liberals and conservatives differed in relation to the geographical organization of powers: liberals advocated for the political decentralization of the country, while conservatives defended the opposite view, that is to say, centralism. Still more significantly, liberals and conservatives split their positions in connection to issues of individual autonomy and personal rights. In this respect, and particularly in their approach to the religious question, liberals and conservatives adopted opposite or antithetic, rather than different views: liberals usually promoted religious tolerance, while conservatives used to demand the establishment of a particular religious view. The conservatives’ banner “religion or death” gives expression and content to the intensity of their demands in this respect. Nothing of what is said in the previous paragraphs, however, denies the existence of significant spaces of convergence between these different political views. In many cases, what facilitated the convergence of their distinct views was the common fear, or common decision to confront the third, excluded political force. In the following section, we shall focus our attention on these convergences and the reasons that may explain them.

The Scope of the Agreements I: Conservatives and Radicals Let us begin our exploration of political alliances by examining the junction between conservatives and radicals. The meeting of these two forces may well be the most

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unexpected of all. We have already explored the significant differences that separated these two views: mainly, for most conservatives, the vast majority of people were simply unable to participate in politics; while most radicals assumed that mass political participation was a necessary condition for a legitimate government. In spite of all this, there is still some room for explaining the convergence between radicals and conservatives, even at a political level, which was the area where their differences seemed most difficult to reconcile.2 In any case, it seems clear that the main point for agreement between radicals and conservatives resided in their common hostility to liberalism’s demands for individual rights and personal autonomy. In order to explore this issue in more detail, it may be worth recalling the contours of the liberal view. We know, in fact, that liberals were inclined to defend a strict separation between the State and citizen’s personal values, given the priority they assigned to the principle of individual autonomy. Among other reasons, liberals advanced that view because they assumed that nothing was more threatening to individual liberties than an omnipotent State—the great Leviathan. Given these kinds of assumptions, liberals advocated for the adoption of strong, unconditional rights. Rights were then seen as “trump cards,” as the main “bricks” in the “wall of separation” that they proposed to build. Of course, the liberal idea of a “wall of separation” was born in a particular context, and in the face of a particular political problem. According to Thomas Jefferson, the first one who enunciated the metaphor, the idea was to construct a “wall of separation between the Church and the State.”3 The metaphor was particularly fertile at a time when many “anti-federalists,” such as Patrick Henry, proposed to establish taxes in favor of Anglicanism. It was at that moment that Jefferson, and his ally James Madison, decided to launch a campaign against that initiative. As M. Konvitz put it, Madison assumed that the removal of “some stones from the new wall of separation between the church and the state of Virginia could make the entire wall to collapse, and finally work for the state’s support of one particular church” (Konvitz 1957, 24). Time went by, but the metaphor of the “wall of separation” continued to be useful and fruitful in thinking about the limits of justified State action. Liberals continued to say that the State had to be prevented from using its coercive force and economic resources in order to impose its favored conception of the good. It was against that view that radicals and conservatives reacted, in a collaborative effort. Their opposition to liberalism proved to be so important that on repeated occasions they decided to leave their differences aside and join forces against their common rival. To extend the same metaphor, we could say that both political groups proposed to demolish the same wall of separation that liberals had contributed to building and wanted to preserve. Conservatives repudiated the liberals’ aspiration to distinguish between the public and the private, which they found offensive toward the religious sentiments of the majority. Similarly, republicans also opposed the existence of a wall of separation, assuming that the very presence of that wall implied the idea of State that was indifferent to political apathy, or unconcerned with society’s lack of civic virtues (Sandel 1996). Let us provide some examples of this convergence. In the United States, for instance, and particularly during the Founding Period, conservatives maintained that the State’s support of religion was necessary for the preservation of faith.

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Radicals tended not to share that particular view. However, in a kind of “overlapping consensus,” and coming from different philosophical assumptions, they occasionally supported some of the conservatives’ institutional responses to liberalism. Anti-federalist Charles Turner, for example, claimed that “without the prevalence of Christian piety and morals, the best republican constitution can never save us from slavery and ruin.” Without those “pious and moral principles,” he believed, “the life and soul of a republican government and liberty, of which a free Constitution is a body,” would come under threat (Storing 1981, 23). Like many radicals, he advocated for the State’s support of a particular religion, either because that particular religion was the one that the majority of the people embraced or as a way of fostering certain civic virtues. In Latin America, we also find some interesting examples of this confluence between radicals and conservatives. In fact, some of the first constitutions enacted in the region after independence reflected this mixture that included, on the one hand, an emphatic radical Rousseauistic language (with references to the right to self-determination, the sovereignty of the people, the general will, and the inalienable rights of citizens); and on the other, a centralized and vertical political organization (that was considered indispensable for preventing “anarchy” following the declaration of independence) and systematic appeals to morality and religion, which were seen as necessary in order to ensure unity and order. For some, a Constitution such as that of Apatzingán, 1814, may illustrate the case of a radical-conservative alliance. However, there are other examples that seem to be more appropriate for illustrating the point. We can think, for instance, about the early Constitution of Haiti, 1801. This Constitution was radically favorable to independence and emphatically positioned against slavery. At the same time, it organized power around the exclusive figure of the revolutionary leader François-Dominique Toussaint L’Ouverture (who was appointed as perpetual governor), dedicated entire sections to religion and mores (titles III and IV of the Constitution), and defined a list of desired virtues and repudiated vices. We find a similar combination of radicalism and conservatism in Haiti’s 1805 Constitution, which rejected slavery in strong terms, defined a list of required civic virtues (i.e., art. 9), honored the condition of “blackness” (the Constitution established, in its famous art. 14, that all citizens of the country, regardless of their skin color, would be called “black”; see Gruner 2010, 275), and set the basis of a political Empire, to be built around the figure of the main political leader of the time, namely Jacques Dessalines. In Paraguay, we find a quite significant example (which would deserve close separate attention) in José Gaspar Rodríguez de Francia, who ruled his country during almost thirty years, since 1814. Appointed dictator for life, Francia—El Supremo—fought for keeping the independence and self-sufficiency of Paraguay. In order to achieve those goals, he restricted river traffic, banned foreign commerce, and developed harsh policies against his opponents. At the same time, he abolished the Inquisition, suppressed all aristocratic privileges, promoted innovative agrarian and educational policies, and seized the possessions of the Roman Catholic Church. During his long decades in power, Paraguay became an almost completely isolated country (even though Paraguay was, during those years, a refuge for political leaders like José Artigas, deserters, and runaway slaves).

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In Argentina, the best expression of that alliance between conservatives and radicals may be found in the government of Juan Manuel de Rosas. A good illustration of this collaborative work appears in the writings of the republican Pedro de Ángelis, who was one of Rosas’s main publicists. Like his American counterparts, De Ángelis proposed the internalization of morals—civic virtue in this case—in order to make republican government possible. He claimed, “The most interesting part of Licurgo’s legislation was the one related to the education of Spartans,” which was distinguished by the “severity of their habits, which frequently replaced the influence of the law” (De Ángelis 1946, 285). De Ángelis advocated for the typical republican goals, which included a defense of popular government, the maintenance of public order, and the fight against corruption and the evil of commerce. In a characteristic paragraph of his writings, he stated: If we consider carefully the history of the Carthaginians, we can see that its constitution can never be firmly established. Agitated by factions and anarchy, the government was always the victim of intrigues . . . the commercial spirit that reigned there completed the ruin of the old institutions, and came to corrupt public morals entirely, by their violent initiatives, by its many injustices, its disastrous expeditions, by their wicked wars. (De Ángelis 1946, 284) Under the inspiration of intellectuals such as De Ángelis, Rosas’s government synthesized well the ambitions of relevant representatives of both the conservative and radical camp. The historian Jorge Myers referred to this convergence through the formula order and virtue, which aptly summarizes the normative nucleus of the alliance (Myers 1995).4 Later on, we shall examine other, more contemporary examples of this particular alliance, including the case of Getulio Vargas’s administration in Brazil. Vargas’s government, as we shall see, had an authoritarian and rather conservative character, particularly at its beginning, but was justified through a political discourse that was both highly critical to liberalism and highly favorable to “substantive democracy” and the “government of the masses” (dos Santos 2007).

The Scope of the Agreements II: Radicals and Liberals (Anti-Bolívarian Politics) Let us now concentrate our attention on the convergence between radicals and liberals. As we know, these two political views were normally in tension (particularly as a result of their divergent positions about the organization of power), although occasionally liberals and radicals worked together and forged influential political alliances. If they found the need to work together, this was normally due to what they perceived as the excesses of conservatism, either in the area of the organization of power or regarding individual rights. On several occasions, liberals and radicals worked together in order to put limits on governments that embraced a particular religion, or directly assumed the interests of the Catholic Church as their own. We see this rapprochement between liberal and

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radical groups, for instance, in Ecuador, after the birth of García Moreno’s “theocratic,” repressive, and persecutory State. We also find examples of this reunion in Mexico, through the work of the liberal-radical group—the so-called liberales puros—trying to establish checks against the increasing influence and power of the Catholic Church. As we know, the liberales puros had a decisive influence in the institutional development of the country, and then in the enactment of the 1857 Constitution. In Chile we also find some interesting illustrations of this partnership in the mid-nineteenth century, when liberals and radicals reacted to the growing influence of conservative Catholics. This also occurred during the government of José Joaquín Pérez, who promoted increasingly conservative politics.5 Still more common was the reunion between liberal and radicals as an attempt to resist the authoritarian features developed by conservative governments. We find clear examples of this situation in New Granada, Venezuela, and Peru, where liberals and radicals joined efforts in order to resist the authoritarianism of Simon Bolívar—or its legacy. Another interesting illustration of this case appears in the testimony of the famed Colombian liberal Ezequiel Rojas. Rojas was the author of an incendiary pamphlet (unusual for a liberal like him), where he justified the right to resistance, the disobedience of power, the armed rebellion of society, and even tyrannicide: so strong were his sentiments against Bolívar’s authoritarianism.6 His is the case of a liberal who turned radical in the face of an extreme version of conservatism. This is an example of what Rojas wrote at that time: Does the commander of the Constitution commit a high-treason crime against society, when he destroys the Constitution and its legitimate government? Yes: it is not possible to say no. And does he commit that crime, when he usurps power and invest himself with absolute powers, so there is no more law than his own will? Yes: it is not possible to say no. Should that crime remain unpunished? No: one thousand times no. Is there a moral and legal obligation to obey the chief of state who usurps public power and governs without any title and against the law? No: one thousand times no . . . [Do citizens have] the perfect right to rebel against that Government, destroy it, punish the usurper and re-establish the violated institutions? Yes: one thousand times yes: it is not possible to say no. And, do they commit a crime against the law or against morality, when they execute that idea? Definitely no. (Restrepo Piedrahita 1997, 1:298)7 Other examples of this alliance between liberals and radicals are the antiauthoritarian and anti-Bolívarian Constitutions of Venezuela 1811 and Peru 1823. Also, the Colombian Constitution of Río Negro was fundamentally organized against the Executive power.8 The Río Negro Constitution—a Constitution that was the product of a Constitutional Convention that directly excluded conservative groups—was the highest point of a long period of collaboration between Colombian liberals and radicals. Not surprisingly, the final product of the Convention was a radically federalist and strongly anti-presidentialist Constitution.

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The Scope of the Agreements III: Liberals and Conservatives We shall now concentrate our attention on the most important and influential political alliance of the time, namely, the one between liberals and conservatives. Given the significance of this union for the constitutional development of the entire region, we shall examine the convergence of these two forces in some detail. First, we shall pay attention to their agreements regarding the organization of power, and then we shall focus on their agreements concerning the organization of rights. The organization of power. Liberals and conservatives found many points of convergence concerning how to organize the institutional system, which allowed them to leave their differences aside. First of all, both liberals and conservatives were severe critics of political radicalism, which they associated with irrationality and excesses. The irrationality that they identified in their political rivals’ initiatives appeared, above all, in the way in which radicals proposed to organize political power. We can find a good starting point for our discussion in the texts of the main leaders of the influential 1837 Generation, in Argentina. Its associates, who came to wield enormous influence in the constitutional life of the country, were disenchanted with a policy heir to the abuses of the Jacobins of the French Revolution. One of the members of the group, the young Esteban Echeverría, who in this respect would be closely followed by figures such as Alberdi and Domingo Sarmiento, referred to the need to end, for once and for all, radicalized demands for more democracy. Echeverría then distinguished between the sovereignty of reason and the collective will, and advocated a new way of doing politics, one that would be fundamentally concerned with honoring reason rather than the collective will of the people. In his main work, Dogma Socialista—a book that his rival Pedro De Ángelis described as the product of “a disturbed mind” (De Ángelis 1946, 385), Echeverría clarified the distinction between the two concepts. He claimed: “The sovereignty of the people is absolute when it has reason as its norm. Only collective reason is sovereign, and not the collective will. The will is blind, capricious, irrational: the will only has wants; the reason, instead, examines, balances, decides.”9 Democracy, he said, was not “the absolute despotism of the masses or the majorities, but the regime of reason.10 For Echeverría, it was time to begin the transit from the sovereignty of the people to the sovereignty of reason (Botana 1996). For that purpose, he maintained, it was necessary to put aside the old obsession with the “general will” to start worrying about making wise choices, capable of raising the country from a situation of disorder and backwardness. His views reflected, ultimately, the growing distrust of the political elite toward the masses. Echeverría’s distinction between the sovereignty of the people and the sovereignty of reason helps us recognize a fundamental gap that existed in most Latin American countries between two different political camps. This fundamental division separated those who believed that the independence revolution had to be followed by an expansion of political rights (the extension of suffrage), and those who viewed this alternative as fundamentally threatening; those who were open to take the principle of majority rule seriously, and those who distrusted that principle; those who wanted to foster popular participation in politics, and those who wanted to prevent it. More ambitiously, what we find here is a division between those who assumed that public

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decisions gained respectability, legitimacy, and impartiality, as a result of a public process of collective reflection, and those who—opposing this view—considered that isolated reflection among well-prepared people was a necessary condition for impartiality. This split marked the political life of the region and was perhaps the most important theoretical background in the many institutional discussions of the time concerning the organization of power.11 Liberals and conservatives came to think that, on the one hand, the increase in the number of participants in an assembly reduced the quality of its decisions. They found an inverse correlation between the number of participants in a discussion and the fairness of the decisions. On the other hand, they assumed that the proximity between voters and elected damaged the possibility of having frank discussions and finally decisions favorable to the interests of all. That is, for them, there was an inverse correlation between the proximity of representatives and represented, and the impartiality of the decisions taken. Rights. There were too many things that separated liberals from conservatives in relation to individual rights. As we know (and just to revisit our previously used metaphor), liberals wanted to build and maintain a “wall of separation” between the State and the citizens’ beliefs, which conservatives wanted to tear down: for the latter, the State had to play a decisive role in the enforcement of the “correct” moral values. The dispute between liberals and conservatives, in this respect, was serious and profound, and found immediate translation in their thinking about the Constitution. However, and in spite of this fundamental difference, liberals and conservatives still had many important points of coincidence in their approach to constitutional rights. First of all, liberals and conservatives shared a rather restricted view about constitutional rights: both of them tended to focus on civil rights, leaving apart any major concern regarding social, economic, or cultural rights.12 In contrast with the radical view, liberals and conservatives proposed the adoption of more austere Constitutions (that is to say Constitutions that were thinner in their commitment to basic rights). Constitutions such as those promoted by radicals appeared to them as empty promises catalogues, a threat to the established order, a promise of intersectoral conflicts, and therefore a sure path to political instability. Liberals’ and conservatives’ opposition to the radicals’ view on the “social question” was an important reason for their working together. However, there were many other aspects, related to constitutional rights, which induced them to join forces. First of all, both liberals and conservatives shared a particular concern for the right to property. In addition, they also favored the protection of minority rights under a very restricted definition of “minority”—a definition that was limited to the minority of the “rich and well born.” Moreover, they both advocated an extremely narrow view of political rights.13 Their restricted view of political rights implied leaving apart from civil society large and numerous groups, including, typically, indigenous groups. All these ideas then found expression in the text of the new constitutions. The historian Frank Safford, for example, maintains that “distrust of the political capacity of the mass of the people was reflected in the property qualifications established in almost all of the centralist constitutions of the 1820s and 1830s” (Safford 1985, 363). In the end, very commonly, certain basic assumptions about the capacities of the citizenry were then expressed in specific constitutional clauses related to the organization of power and the distribution of rights (we will return to this point below).

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In Latin America, we find numerous examples of this restrictive view about rights. Let us consider four examples, coming from four of the most important and influential Latin American jurists of the nineteenth century, namely the Mexican José María Luis Mora; the Colombian José María Samper; the Venezuelan Andrés Bello; and the Argentinian Juan Bautista Alberdi. All of them refused to accept the inclusion of social or economic rights in the Constitution (no major surprise about that), advocated for a very narrow approach to political rights, and showed a decisive concern for property rights, which they considered indispensable for the protection of national interests. The Mexican Mora, for example, advanced his view on the topic in his Discurso sobre la necesidad de fijar el derecho de ciudadanìa en la república y hacerlo esencialmente afecto a la propiedad. There, he expressed his fears, which he shared with many members of his class, regarding the emergence of new and unexpected demands capable of reaching “even the lower classes of society.” In his words: The worst of all evils confronted by our Republic is the one caused by this dangerous and tragic word [equality], which resulted in the scandalous prodigality with which political rights were distributed. . . . If we closely examine the origins of our disgraces we will find that all of them derived from bad administrations, and also that these bad administrations resulted from lethal elections . . . in which political rights were distributed to notoriously incapable people, who should have never taken part of those electoral processes. . . . To put it simply, we need national Congress to define who have the capacities necessary for exercising citizens’ rights, and to exclude all those who cannot inspire any confidence at all, namely the non-proprietors. (Mora 1963, 630‒31, emphasis in original) In that way, Mora explained his profound distrust toward the political capacities of the people at large. For him, the dispossessed did not deserve political rights, which had to be reserved only for property owners. We find a substantially identical approach in some of the writings of the (liberal) Colombian jurist José María Samper, who in his mature years became one of the drafters of the strongly conservative 1886 Constitution. Samper defined universal suffrage as “one of the main causes originating our revolutions; the source of elements destructive of the social order.” In his opinion, the extension of political rights amounted to a “monstrous contradiction,” which “put the destiny of the Republic in the hand of the ignorant masses” (Valencia Villa 1992, 141). Similarly, both Bello and Alberdi—crucial figures in the development of the liberal-conservative constitutional theory in the region—worked against the extension of political rights to the majority of the population. They argued that most people were still not prepared for (or interested in) dealing with the public affairs of the community. This is why the Chilean 1833 Constitution, in which Bello had a decisive participation, was so restrictive in the distribution of political rights. Bello’s attitude toward political rights had another, more interesting manifestation, in the notable Civil Code in which he deposited his intellectual energies for years. For him, as he put it in 1836, the people are “less concerned with the conservation of their political liberties, than with the conservation of their civil rights” (Jaksic 2001, 212).

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Alberdi’s view on the topic was still stronger than that of Bello. In his Sistema Económico y Rentístico, Alberdi maintained, first, that the reorganization of politics required the convergence between the two main political groups of the country, and second, that the convergence between the two demanded a reconsideration of the place reserved for rights and liberties in the Constitution. Like Bello, Alberdi distinguished between political liberties and civil liberties. For him, the former, which mainly included economic liberties, had to be generously distributed among all individuals, “natives and foreigners.” In contrast, he added, political liberties had to remain restricted, at least until the majority of the people acquired the requisite political capacities (Alberdi 1920, 14:64‒65). This peculiar approach to rights and liberties, which occupied such a central place among influential jurists, represented a crucial point of agreement between liberals and conservatives, and was complemented by their defense of ample economic liberties. Of course, in spite of their fundamental agreements regarding rights, liberals and conservatives remained separated with regard to numerous other issues. However, that basic accord helps us understand the depth and stability of the political compact that they signed.

The Liberal-Conservative Fusion As we know, liberals and conservatives were political enemies in a majority of Latin American countries during the first half of the nineteenth century. We may recall, in this respect, the brutal way in which Chilean conservatives treated their opponents since the beginning of the Conservative Republic in 1833; the bloody confrontations between unitarios and federales in Argentina; the Federal War in Venezuela, which also divided liberals and conservatives; the cruel confrontation between the two groups in Colombia, which included episodes of Civil War; the battle of the Mexican liberales puros, in Mexico, against the forces of the conservative Santanistas. Notably, however, by the mid-nineteenth century, what we begin to find are examples of the opposite, that is to say, of liberals and conservatives coming together, politically speaking. We may mention, in this regard, many other examples, including the liberal-conservative “fusion” in Chile (1857‒73), the 1853 Constitution in Argentina, and also the 1886 Constitution in Colombia, which were written by representatives of both the liberal and conservative groups. We find similar cases of convergence between these two groups in Mexico, Venezuela, and Peru. After years of severe disputes, liberals and conservatives were beginning to join forces and forge an alliance that would remain intact for decades. What could explain these surprising political developments? In the preceding pages we have examined the existence of a strong, common theoretical basis, which helped us to render such agreements intelligible. In this section we shall focus on other causes and reasons, more related to history and politics. In particular, we shall concentrate our attention on the terror caused by the radical revolutions of the mid-nineteenth century. We may begin this explanation by mentioning that, by 1848, Europe had been shocked by the “red” revolutions, which demanded the democratization of then still

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hierarchical and exclusionary societies. The same wave of political radicalization also reached the Latin American coasts in different ways (in fact, many Latin American activists actually took part in those events, and then moved back to their home countries, where they tried to reproduce them). An important expression of this influence was the sudden emergence of numerous democratic associations and trade union associations in Latin America. These groups favored an alliance between workers and students, for example, an alliance that had had an enormous impact in Europe, in the origins of the class conflict that exploded in 1848. In Latin America, these new social movements became particularly relevant—in Chile, for example, through the emergence of the Sociedad de la Igualdad; Nueva Granada, which the historian Richard Gilmore identified as a “socialist mirage” exploded; and Peru with growing social tensions fueled by artisans and low-paid workers. Suddenly, Latin America became a territory where new forms of political confrontation, class conflict, and social disorder took place. Property seemed menaced and the old colonial order in a terminal crisis (see, e.g., Collier 1967; Gilmore 1956; Gootenberg 1993). Undoubtedly, these events worked in favor of the conservative-liberal reunion. Writing about the “logic” of the convergence between conservatives and liberal groups in his country, the well-known Colombian constitutional scholar Valencia Villa claimed: [Since 1854] conservatives and liberals began a shifting relationship, which oscillated between a civil war and an electoral and governmental coalition, between a National Front and an armed conflict. . . . When they were alone, when they did not find competition to the right or to the left, or when the popular movement was under control, the traditional parties fight each other, even to civil war (the country has gone through eleven armed conflicts of a bipartisan character, between 1811 and 1957). By contrast, when the two parties were not alone, when they saw other rival forces coming from outside the system, or when the popular movement came out of control, then the two groups joined forces and formed a common front for their survival . . . (there have been six experiences of a bipartisan coalition of a preventive or restorative nature between 1854 and 1957). (Valencia Villa 1987, 133‒34) Of course, in order to make our point, we do not need to entirely subscribe to Valencia Villa’s picture or assume that his analysis was valid for the entire region. However, the author’s conclusions seem to point in the right direction: the threatening presence of alternative forces (and in particular grassroots forces) is key to understanding the sudden alliance between forces that traditionally “fight each other, even to civil war.” In countries such as Colombia or Peru, the abrupt convergence between the two groups was fostered by the emergence of growing social tensions. These tensions, again, followed the conflicts that took place in Europe in 1848. In Argentina, liberals and conservatives wanted to put an end to a period characterized by political violence but also wanted to avert the plebiscitarian features that they associated with Rosas’s dictatorship.14 In Chile, the union between liberals and conservatives was favored by the growing authoritarianism of the dominant regime but also provoked by an unexpected growth of social unrest.15

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The fact is that by the mid-nineteenth century, most countries in the region had Constitutions that were written by representatives of the liberal and conservative groups—those old enemies who appeared now as political allies. In the following pages, we shall explore some of these processes of fusion constitutionalism in more detail.

Fusion and Constitution The constitutions adopted as a result of this gradual overlap—sometimes formal, sometimes implicit—between liberal and conservative ideals were usually successful, if we evaluate them in terms of stability and compare them with the Constitutions that preceded them. Most of these constitutions went beyond the twentieth century and remained more or less unmodified for a while, allowing the rooting of the new institutions of fusion in the legal traditions of the region. We find good illustrations of these new types of constitutions in Argentina’s 1853 Constitution (which was drafted by representatives of both liberal and conservative groups), Mexico’s 1857 Constitution (mainly drafted by a convergence of moderate liberals, “pure” liberals, and conservatives), and the Peruvian Constitution of 1860 (which synthesized the different constitutional models present in the country in the previous years).16 Uruguay’s Constitution of 1830, which remained stable until the late twentieth century, combined a liberal structure, which included a list of individual rights and a classic system of division of powers, with a strong presidentialist organization and very restricted political rights. In Chile, we find the clearly conservative 1833 Constitution that regulated the political life of the country during most of the nineteenth century. However, since the 1850s, and after the pressures of liberalism, the Constitution began to lose its main conservative features. In this way, even Chile’s constitutional system became an expression of a conservative-liberal Constitution. In Colombia, we find a different process that, in part, reverses the one that we find in Chile. In effect, in the Colombian case we can see that, by the end of the century, the prevalent radical constitutional model began to lose its strength, to be finally replaced by a different one, characterized by the inclusion of numerous conservative institutions.17 In Paraguay, we find the 1870 Constitution, which was clearly inspired by Argentina’s liberal-conservative 1853 Constitution (even though the Paraguayan document strengthened some of the more conservative features of the Argentinian document—in particular, those related to the territorial organization of the country, given that Paraguayans wanted to consecrate a clearly centralist Constitution) (Mendonca and Mendonca 2009). In general terms, which we shall try to specify in more detail below, we could mention the following as the distinctive characteristics of these new fusion constitutions. They: • established religious tolerance, without necessarily affirming State neutrality. Most of the new constitutions resisted the conservative pressures in favor of establishing a particular religion and replaced that requirement with some alternative formula. On some occasions, like in Argentina, the liberal-conservative Constitution reserved a

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special place for the dominant Catholic faith (e.g., art. 2 of the Constitution, which ambiguously maintained that the State “supports” the Catholic religion), while at the same time affirming religious tolerance (art. 14). On other occasions, like in Mexico 1857 (or, similarly, in Ecuador 1906), the Constitution remained silent on the subject, which was a way of affirming the impossibility of either group consecrating its own viewpoint on the subject. In Chile, the strongly religious profile of the 1833 Constitution was moderated after some decades, when an interpretative law (from 1865) opened room for (relative) religious tolerance. • Defined a system of checks and balances, but one that was partly unbalanced in favor of the president. Most of the liberal-conservative constitutions favored the traditional system of division of power, accompanied by a system of checks and balances, in line with the US constitutional model. However, and as a consequence of the conservatives’ pressure, the new Latin American constitutions introduced some significant changes with regard to the US’s inspiring example. Typically, they created a too powerful Executive power, which challenged the structure of equilibriums that characterized the traditional system of checks and balances. Juan Bautista Alberdi, for example, explicitly proposed to (partially) leave aside the US model, at least in this respect, and follow instead the example of the 1833 Chilean Constitution. For him, the Chilean Constitution demonstrated that there existed a good alternative in between “the absolute absence of government and a dictatorial government.” This was, for him, the model of a “constitutional president who can assume the faculties of a King” when he is confronted by situations of “anarchy” (Alberdi 1981, 181).18 • Established (neither a federalist nor a centralist Constitution but rather) a centerfederalist model. The new liberal-conservative Constitutions emerged after a violent period of disputes between centralist and federalist groups. This is why, in most cases, the new liberal-conservative Constitutions did not want to consecrate either a purely centralist or federalist territorial organization of the country. What they tended to do, instead, was to adopt mixed or more ambiguous solutions in this respect (this was so, at least on paper, although, in actual practice, most countries tended to show a rather centralist profile). • Rejected the incorporation of either strong social commitments in favor of the disadvantaged, or political commitments favoring mass participation in the public sphere. The new liberal-conservative constitutions became noted not only as a result of their institutional novelties (i.e., the strengthening of the Executive power) but also because of the institutions that they rejected or decided not to adopt. Notably, the liberal-conservative compact was an exclusionary compact, which implied the displacement of most of the institutional initiatives that radical groups then proposed. During all those years, in fact, radical groups had advanced numerous constitutional proposals, which included annual elections, the right to recall, mandatory rotation, mandatory instructions, and so on. In addition, radical groups had promoted different reforms aimed at addressing the “social question.” However, the triumph of the liberal-conservative project implied the rejection of all those initiatives. The new constitutions, in the end, did not include any significant social clauses or clauses that tried in some manner to favor popular participation in politics.

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Five Examples: Argentina, Brazil, Chile, Colombia, Mexico In what follows, we shall explore some examples that illustrate the idea of fusion constitutionalism—constitutions that resulted from a combination of liberalism and conservatism. These examples may help us recognize the content, contours, and scope of this greatly influential version of constitutionalism that grew in the mid-nineteenth century. We shall first study the examples of Argentina and Mexico, where liberals and conservatives sat together around the same table of negotiations; and the one of Chile, which shows a gradual fusion between the liberal and conservative projects. In addition, we shall pay attention to the formation of a liberal-conservative constitutionalism, in the context of the transition from Empire to the Republic of Brazil. Finally, we shall also study the example of Colombia, even though it presents some relevant differences regarding the previous cases.19

Argentina Argentina’s 1852 Constitutional Convention was the product of a long political process.20 The Constitution grew slowly during the long years of Juan Manuel de Rosas’s dictatorship, and the so-called 37 Generation played a significant role in its creation. Many of the most noted members of the 37 Generation gathered for some time in the “Literary Saloon,” until it was closed by Rosas. The group included well-known public figures, such as Juan Bautista Alberdi, Esteban Echeverría, Juan María Gutiérrez, Vicente Fidel López, and Miguel Cané, who produced important political and literary work, and engaged in numerous public discussions. By the end of Rosas’s dictatorship, many of the members of the 37 Generation reflected upon the causes of the political failure of their group—the group of unitarios, which opposed Rosas—and also about the reasons that made Rosas’s regime so stable. They basically found two answers to their queries. On the one hand, they came to the conclusion that their predecessors had not paid sufficient attention to the local realities, fascinated as they were by the intellectual creations of foreign jurists. On the other hand, they considered that the early concession of the right to vote to people with insufficient intellectual preparation had been a mistake and was responsible for triggering political passions and demands that were impossible to satisfy. The unitario group, they assumed, had made a gross mistake by giving both “the suffrage and the lance to the proletarians,” and by thus leaving the country “at the mercy of the masses.”21 After the end of Rosas’s period, Argentina’s national organization became controlled by a group of politicians that was ideologically close to the 37 Generation. Undoubtedly, their main legal creation would be the 1853 Constitution. Urquiza was then the main person responsible for the gathering of the Constitutional Convention. At that time, Urquiza claimed that he aspired to have “a Constitution that made both anarchy and despotism impossible.” Both “monsters,” he added, “have engulfed us. One has filled us with blood, and the other with blood and shame.”22 Alberdi’s writings were particularly influential in the drafting of the Constitution, even though his name was virtually absent from the debates (Ferreyra 2012).23 Like the US Constitution, the Argentinian text included a division of powers, a system of

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checks and balances, a bill of rights, and also showed some openness toward federalism. According to Benjamín Gorostiaga—the delegate who was in charge of defending the project during the debates—the Argentinian Constitution was modeled according to the example of the US Constitution, which represented “the only real federation that existed in the entire world.” The delegates at the Convention followed Alberdi’s advice, particularly with regard to the organization of the Executive power. Alberdi had claimed, in this respect, that Argentina’s main document had to “distance itself from the example of the federal Constitution of the United States” and follow instead the Chilean model, which provided the president with sufficient powers to make the Constitution’s defense possible. For him, “time has demonstrated that the Chilean solution is the only rational solution for republics that were monarchies a short time ago” (Alberdi 1981, ch. 25). Alberdi’s preferred constitutional model implied a convergence between the system of “checks and balances,” which was the one adopted in the United States, and the proposal for a “strong Executive,” which was the one that Egaña had suggested for Chile. As a consequence of this combination, Argentina’s Constitution became a model example of the liberal-conservative Constitution. The fusion became visible not only in the section dedicated to the organization of power but also in regard to the territorial organization of the country: Argentina, as we know, consecrated a center-federalist system. In addition, the fusion became apparent also in the discussion about rights and, particularly, in the Constitution’s references to religion. In fact, during the constitutional debates there was no other issue that concentrated so much attention and so much energy than the one related to the relationship between the State and the Church. The disputes over the question were many, and included discussions about the possibility of declaring Catholicism as the official religion of the country, about the possibility of reserving most public positions to Catholics, about religion and education, and also about the Patronato. These issues basically consumed the Convention’s scarce ten days of debates. Conservatives were convinced that what they considered the majoritarian religious faith deserved special constitutional protections (Ibarra 1933; Sánchez Viamonte 1957). From the beginning of the debates, the most important conservative delegates, including Pedro Ferré, Manuel Leiva, Manuel Pérez, and Martin Zapata, confronted the liberal view on the topic. One of the main terrains of the dispute was article 2, which was directly reserved to deal with the religious question. Delegate Pedro Zenteno, for example, proposed a strong formula, according to which the Catholic religion would be considered the “only true religion” and the only one to be protected by the national government. In its final formulation, however, and after heated debates, the article offered a more ambiguous formula, which declared that the federal government “supported” the Catholic faith. In a clear demonstration of the liberal-conservative character of the document, the presence of article 2 was “compensated” by article 14 (which included most individual rights), which declared that all inhabitants had the right to free exercise of their own faith.24 In addition, and in line with Alberdi’s own ideology, the Constitution did not include any strong commitment to the “social question,” rejected State intervention in the economy, and subscribed an individualist view of society, as well as

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economic liberalism. Taking into account these antecedents, the noted Argentinian historian Tulio Halperín Donghi defined Alberdi’s program as one of “progressive authoritarianism—a mixture of political rigor and economic activism.”25 Although the final draft of the Constitution belongs to 1853, Buenos Aires only ratified the document in 1860, after a series of armed conflicts that ended with Buenos Aires’s final victory against Urquiza’s forces in Pavon. The Constitution suffered, then, a modest reform, and after that—and for the first time in its history—the country celebrated a national election, with the objective of choosing the national president. The lawyer, politician, and military leader Bartolomé Mitre became, then, the first elected president of the country. With his government, Argentina inaugurated a period of liberal reforms, which included a profound legal reorganization promoted by a team led by Dalmacio Vélez Sarsfield. After Mitre, the nation had three new administrations of a liberal or liberal-conservative character, led by Domingo Sarmiento, Nicolás Avellaneda, and Julio Argentino Roca, respectively. After years of social distress, Mitre’s government inaugurated a period of political stability, economic prosperity, and legal reformism, which, of course, had only a small portion of the country’s population as its main beneficiaries.

Brazil After the sudden—and very late—passage from Empire to Republic, which took place only in 1889, Brazil suffered many years of instability and uncertainty. The political scene was then occupied by many different and influential groups, which had a hard time trying to reach agreements among them. On the one hand, there were the landowners—and particularly those connected to coffee plantations—who dominated politics at a state level, in association with increasingly important political groups, mainly associated with liberal and republican ideologies (republicans, at the same time, found inspiration in the then widespread positivist philosophy). On the other hand, there were the army forces—a group that included some of the “heroes” of the war against Paraguay, like the noted Deodoro Fonseca and also military officers with links to the “positivist Church.”26 While representatives of the first group promoted a federalist territorial organization, representatives of the army resisted those policies claiming that they put the national unity under risk. Frequently, military officers defend antiliberal views and also the creation of a powerful Executive power—some of them even accepted the establishment of a dictatorship (Fausto 2006, 246). The fall of the imperial regime was due ultimately to a military coup in 1889 that ended decades of monarchical rule. The coup was led by Marshal Deodoro Da Fonseca and supported by both the army and an increasingly powerful coffee-producing bourgeoisie, which would be clearly favored by the demise of the Empire. The regime change, moreover, was consistent with a profound change in the economic organization of Brazil. In effect, by the end of the century, Brazil experienced a drastic transformation in the foundations of its economy, which changed from being dominated by the export of cotton and sugar to being controlled by the export of coffee (Halperín Donghi 2007, 273). This shift had huge implications. It involved, first, an extraordinary change in the geography of power, whose central axis passed from the northeast (predominantly

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based on cotton and sugar) to the center-south, controlled by São Paulo and Minas Gerais—the great coffee producers. The political and economic changes also generated a significant impact on the social level because they came with the end of slave labor, which was predominantly used in the traditional agricultural economy.27 In this way, and much later than most Latin American countries, Brazil began to put an end to this unacceptable practice. Also, in this way, the link between large landowners and the imperial administration came to an end. All these events facilitated the fall of the Empire, although they did not favor a well-ordered transition—rather, the contrary. The new government, under the command of Marshal Deodoro, promptly acquired the form of a dictatorship. As a result of this, different sectors of the government began to see the enactment of a new Constitution as a key element in the transition to a new political organization. The new document—they believed—could then provide a more solid and legitimate basis to the desired liberal Republic. In order to promote the constitutionalization of the country, the Provisional Government created a five-member Commission, which would be in charge of drafting the new Constitution. The Commission then presented three different projects. The first one, the so-called Werneck-Pestana project, established a system of indirect election for the president and vice president of the country, incorporated the institution of federal intervention, proposed the creation of a new capital for the country, and favored a modest federalist organization of the national territory. The second one, the so-called Américo Brasiliense project, also established the indirect election for the president and vice president of the country (although in a somewhat different manner than that of the Werneck-Pestana project), regulated the institution of federal intervention, and proposed a substantive revision with respect to the states’ territorial limits. Finally, the Magalhaes Castro project organized the election of the president and vice president through municipal chambers, proposed the creation of a new Capital for the country, affirmed the principle of federal intervention, and explicitly prohibited contracts that were incompatible with the liberty and independence of individuals (Arinos 1967, 126‒27). The Commission then revised the three different projects and summarized them in the only final alternative, which they offered to the Provisional Government. In this process, the then minister of finance, the influential jurist Rui Barbosa, appeared as the most salient figure. What resulted from that process of synthesis was a new Constitution, which would become known as Brazil’s 1891 Republican Constitution. The new document had important differences with respect to the previous ones. Among other things, it put an end to the decisive impact of French and British constitutionalism, which had been the dominant influence during the Empire. The old model was replaced by a different one, much closer to the US Constitution: it incorporated the institutions of presidentialism, federalism, judicial review, and individual rights.28 In addition, and through the new Constitution, Brazil abandoned its traditional constitutional structure, which incorporated a four-branch organization of power, including the noted Moderating Power, and replaced it with a more traditional one based on a three-branch division (da Silva 2010, 79). The Constitution that was then approved, which established a “federative republic with maximum administrative decentralization” (Calmón 1958, 313), represented a clear convergence between liberal and conservative ideals.

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On its liberal side, the Constitution included the prohibition of retroactive laws and also a much more detailed approach to individual rights.29 In addition, the Constitution proclaimed the separation between the State and the Church, authorized free interstate commerce, favored federalism (in a way that many considered exaggerated),30 promoted public instruction, granted powers of judicial review to the Superior Tribunal, created the mechanism of impeachment, made the president of the republic responsible for different crimes, and prohibited all those constitutional reforms that affected the republican and federal character of the national organization (Fausto 2006). Meanwhile, on its conservative side, the Constitution incorporated the institutions of federal intervention and state of siege, and above all favored the creation of a strong presidentialist system.31 Among other features, the Brazilian Constitution allowed the Executive to appoint and remove its ministers at will, which put the Brazilian document in line with most other Latin American presidentialist systems: all of them reserved more powers for the president than the US presidentialist Constitution. In political terms, the first years of the Constitution were particularly troublesome.32 These unfortunate circumstances favored the strengthening of the more conservative features of the Constitution and, in particular, the Executive’s supremacy (at the time, people referred to the president as a “king without throne”). As A. Wolkmer maintained, Brazilian constitutionalism became—since then and until today—“the product of a conciliation-compromise between a modernizing and social authoritarianism, and a conservative bourgeois liberalism” (Wolkmer 1989, 35).

Chile Chile does not offer us an example of a liberal-conservative Constitution, but rather an illustration of how a conservative Constitution—the one from 1833—together with a conservative constitutional practice, became gradually “liberalized.” This process of slow liberalization was favored by the political ascendance of liberalism and the growing public presence of the (so-called) 42 Generation. Members of this intellectual group published some important pieces of liberal work, which began to object to the then solid Constitution of 1833. These works included, notably, José Victorino Lastarria’s La Constitución Política de la República de Chile comentada, published in 1858 (Oyarzun 1953; Lastarria 1906, 1944), and Carrasco Albano’s wonderful Comentario sobre la Constitución Política de 1833, which advanced significant criticisms to Chile’s presidentialist system. During the same period, Melchor de Santiago Concha also published an important work advocating for constitutional reform. In this project, the Chilean legislator proposed the introduction of numerous legal changes, mainly aimed at restricting the powers of the Executive. He also made reforms in the organization of the Senate and defended religious tolerance. In those years, some Chilean activists also created the reformist Club de la Reforma, where many among the country’s main political liberals began to work together on behalf of a renewal of the Constitution. The Club included, among others, the noted Lastarria, Manuel Matta, and Domingo Arteaga. The year 1857 was crucial in this process of change. At that time, and as a consequence of a rather minor event (a sacristan’s decision not to follow the rules of the Patronato),

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a profound political crisis exploded (Scully 1992). This minor incident expanded into a movement of social unrest, which showed that part of the population disagreed with the growing authoritarian features of General Pedro Montt’s administration.33 The conservative party was created in that year, in defense of the interests of the Church. Its main demands, however, were quite similar to the demands of the liberal party. Both groups opposed the authoritarianism of the ruling administration and demanded the adoption of profound political reforms that were capable of limiting the government. Moreover, both parties favored a certain type of economic liberalism, defended the passing of an amnesty law in favor of those who participated in the 1851 Civil War, and rejected Antonio Varas as the official candidate for the coming elections (a candidacy that, in fact, would imply his almost automatic ascendancy to the presidency of the country). Liberals, in addition, required the call for a Constitutional Assembly in order to help democratize the country. The liberal program included, at that time, the expansion of political rights, the prohibition of presidential reelection, and freedom of the press. In order to support these claims, liberals began to edit the influential newspaper La Asamblea Constituyente, which was written under the supervision of Benjamín Vicuña Mackenna.34 Determined to confront the government’s growing arbitrariness, liberals and conservatives joined forces in the so-called la Fusión. Working together, they gained their first important political victory when the official candidate Varas decided not to run as a presidential candidate. Varas was then replaced by José Joaquín Pérez, who at least was not rejected by most members of the liberal-conservative fusion. Shortly after Pérez came into power in 1861, representatives of the fusion began to collaborate with the new administration. For liberals, this was the first time they took part in the ruling coalition, after decades in opposition.35 Still more significant for the interests of their party, Pérez abandoned Montt’s authoritarian methods, which he replaced with a more tolerant behavior, particularly in relation to the political opposition and the press. Moreover, Pérez stayed in power without declaring a state of siege, as was the rule at that time. He promoted the approval of the amnesty law, which the opposition demanded, and favored a constitutional reform that put an end to presidential reelection. Another crucial event of the time was the 1865 parliamentary discussion about article 5 of the Chilean Constitution. Article 5 was the one that declared Catholicism as the official religion, with the exclusion of all other faiths. It was the first time that Chileans had the opportunity to publicly and deeply discuss the scope and limits of the powers of the Church. Contrary to what most people expected, however, the debate did not end with a new constitutional amendment, but rather with an “interpretative law,” which opened some room for religious tolerance, allowing the practice and (private) teaching of other religions. Then numerous provisions designed to set new limits on decades of conservative dominance appeared. They included the end of immediate presidential reelection in 1871, changes in the quorum necessary for the functioning of the legislative chambers in 1873, new constitutional rights (including of association and peaceful assembly in a public place without permission), direct election of Senators in 1874, changes in the process of constitutional reform in 1882, an expansion in the right to vote in 1888, changes in the way of convening special sessions in 1891, and changes in the forms of the presidential veto in 1893.

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Colombia In order to better understand the process that concluded with the rather conservative 1886 Colombian Constitution, it is important to focus, first, on the radically liberal period that preceded its enactment. This process reached its peak with the enactment of the 1863 Constitution. This Constitution (which followed the also liberal Constitutions of 1853 and 1858) was promoted by General Tomás Mosquera, who had come into power after a violent victory against the forces of President Mariano Ospina. In that confrontation, Mosquera represented federalism, while Ospina appeared to synthesize the values of clericalism and centralism. Mosquera’s administration was, from its very beginning, radically anticlerical and federalist. Manifesting its anticlericalism, Mosquera closed down the existing monasteries and other religious institutions, expelled the Jesuits from the country and confiscated their goods, and prohibited religious people from occupying public positions without a previous governmental authorization. At the same time, in 1861, and making his federalist views apparent, Mosquera invited the representatives of the different states to sign a provisional constitutional document, the so-called Pacto de Unión, which would regulate their relationships until the approval of a new national Constitution. The Pacto was an extreme expression of the federalism of the time, which recognized no antecedents in Colombian history. Shortly afterward, Mosquera convoked a Constitutional Convention in Rio Negro, which would be in charge of drafting a new and more permanent Constitution. Within the Convention, there were three main factions and one remarkable absence. The first faction represented the interests of the army forces and thus also Mosquera’s views, the second one represented the liberal-radical alliance, and the third one a moderate position between the other two (Rivadeneira Vargas 1978). The noted absence was that of the conservative group, which was totally excluded from the debates. Mainly as a consequence of this absence, the Convention approved a strongly liberal/ radical Constitution, in what probably represented the highest point of influence of liberal ideas in the country.36 Liberals sought to use the new Constitution in order to undermine the basis of conservatism, and thus the dominance of the Executive power, the authority of the national government, and the influence of the Catholic Church. According to Ramón Correa, through the adoption of these decisions the Convention seemed to impose the Spencerian kind of formula, “the individual against the State . . . the states against the Nation” (Correa 1937, 295). Even though the Constitution was in force until 1886, and deeply marked the institutional structure of the country, many among the liberals who favored it, believed that liberalism had gone too far, particularly in the way it limited the powers of the Executive, and in the degree of autonomy that it conceded to the different local states (Park 1985, 46). In 1886, the escalation in intra- and inter-state conflicts and the country’s economic difficulties brought the liberal era to an end. Rafael Nuñez, once a noted liberal intellectual, headed a government of “restoration” designed to end the extreme liberalism of the period before. The main legal product of the period was the Constitution of 1886, inspired by the documents of 1830 and especially by that of 1843 (drafted by Jose Eusebio Caro, father of Miguel Antonio Caro, a key figure in drafting the new document).37

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The new Constitution was written by a small and select commission of jurists, which included one of the most prominent conservative theorists of the time, namely, Miguel Antonio Caro, and also one of the most noted liberal thinkers of the century, namely José María Samper. At the same time, the commission excluded all representatives of the liberal-radical coalition that had ruled the country for years. The conservatism of the Constitution was surprising and undoubtedly related to the previous period of ultra-federalism.38 Its contents appeared as a direct reaction against the liberalism, federalism, and anticlericalism that characterized the previous period. The new document created a centralist political system in which the local authorities remained with little autonomous power. The new Constitution also established a strong Executive power,39 a brief declaration of rights,40 limited political rights, and the declaration of the Catholic religion as the official religion of the country (Barreto 2011).41 In a famous presidential speech (known as his Mensaje del Presidente de la República al Consejo de Delegados, al reunirse en 11 de noviembre de 1885 para formar la nueva Constitución), Rafael Núñez put the new Constitution in context and compared it with previous Colombian constitutions. It became clear from then on that the new president was particularly interested in putting the heritage of the liberal period inaugurated in 1853 behind him. In his view: The 1832 Constitution was centralist and sober in the declaration of supposed individual guarantees. Public order was conserved, under its auspices, during eight consecutive years. The 1843 Constitution was still more centralist, and during the ten years of its duration, there was more effective peace than in the previous constitutional period. . . . The 1853 Constitution—which was known as a center-federal Constitution—opened the door to the rebellion that would explode in the following year. The federalist 1858 Constitution clearly prepared and facilitated the disastrous rebellion of 1860. . . . We have gone forward dividing what was non-divisible; and together with the external frontiers, we created nine additional internal frontiers, with nine special Codes, nine costly hierarchical bureaucracies, nine armies, nine agitations of all types, almost uninterrupted. . . . After the 1863 Constitution . . . disorder—it is clear—became the rule. (Antecedentes 1983, 37) The new Constitution, he added, was coming to “replace anarchy by order” (40).42 The president also manifested what were going to be, in his opinion, the new Constitution’s directive principles. He stated, “In the place of a vertiginous and fraudulent suffrage, a reflective and authentic reflection shall be established . . . the educative system shall be organized according to the sacred principle of Christian education, which is the alma mater of civilization in the world” (40).

Mexico The Ayutla Revolution put an end to General Antonio López de Santa Anna’s long and influential years in Mexican politics. After the revolution, Ignacio Comonfort became

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the president of the republic. Comonfort was a politician of conservative leanings but also a figure who knew how to balance the different forces vying for power. With the support of the army and the Church, and through his friendship with the leader of the rebellion antisantanista, Juan Alvarez, Comonfort provided a resilient barrier capable of containing the pressure from more radical groups. These groups then struggled to develop a deep reform plan aimed at eliminating the causes of Mexico’s backwardness, which they identified with the influence of the Church and the army. Shortly after coming to power, Comonfort called for a Constitutional Convention, which would be in charge of drafting a new Constitution. Most members of the Constitutional Convention were moderate liberals, although some of the so-called “pure” liberals also acceded to important positions. For instance, Ponciano Arriaga presided at the sessions of the Convention, deputies Francisco Zarco and Isidro Olvera appeared as secretaries, and other representatives of the group—including Arriaga, Melchor Ocampo, Olvera, and José Maria Mata—integrated the decisive Constitutional Commission (Scholes 1967). According to Emilio Rabasa, the Convention’s composition ratified the supremacy of the moderate sectors among those who participated in the Ayutla movement.43 At the beginning of the debates, the conservative group—delegates Santos Degollado, Ricardo García Granados, and Mariano Arizcorreta among them—suggested that the Convention simply reestablish the old 1824 Constitution. That Constitution still preserved some prestige and promised fewer risks than the enactment of a new one. However, this proposal was finally defeated by a small margin of votes.44 The Constitutional Commission presented its final project in June 1856. Shortly after, in February 1857, the National Congress and President Comonfort declared it the new Constitution of the country. The final text introduced some interesting novelties. For example, the famous (so-called) Juárez Law (1855) and the Lerdo Law (1856) were incorporated as integral parts of the Constitution. Among other things, the Juárez Law limited the military and ecclesiastical fueros, while the Lerdo Law forced the Church to sell part of its properties. In addition, the new Constitution included a long list of individual rights, such as freedom of the press, freedom of association, free transit, freedom of education, and the protection of private papers. The Constitution also abolished the death penalty. Two particular constitutional debates (probably the two most important debates of the Convention) showed the “transactional” character that would distinguish the new Constitution. The first debate referred to the institution of jury trial and the second one to religious tolerance. In the first debate, the Convention rejected the initiative because the majority of delegates considered that the people were still not sufficiently prepared to take part in such a democratic event. Delegates Ignacio Luis Vallarta and Arizcorreta became the main critics of the jury trial, in a heated debate that concluded with a vote of 42 (against) to 40 (for). Meanwhile, in the second debate, liberals managed to ensure religious tolerance rather than conservatives succeeding in imposing an official religion. What the delegates decided to do in the end—making the transactional character of the Constitution manifest—was to remain silent on the religious question. With respect to the organization of power, the Convention also adopted some significant (and transactional) decisions. For example, the Constitution did not accept

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the concession of extraordinary faculties to the Executive power—faculties that in the end were replaced by special authorizations, to be given in special cases, and which could allow the president to restrict certain individual guarantees.45 More interestingly still, some radicals or “pure” liberals tried to use the Convention in order to introduce some crucial social reforms. However, their initiatives found significant resistances within the Convention, which finally prevented their being adopted. Ponciano Arriaga, for example, suggested the incorporation of substantial changes in the organization of property; and the delegate Castillo Velasco advocated for the adoption of agrarian reforms, which ensured that everyone, even the dispossessed, became proprietors. The main criticisms against their views came from delegate Vallarta, who made an important speech in defense of economic liberalism and against the State’s intervention in the economy. In his view, since the publication of Quesnay and Smith’s works, “it is not anymore licit to doubt about these questions . . . all protections to the industry turn to be ineffectual and fatal. . . . The principle of competition has proved that any protection to industry is ineffective . . . that the law cannot interfere in the production . . . that only individual interest, in short, is the one to create, manage and protect all kinds of industry, because only he has the activity, vigilance and skill for the production of wealth” (Zarco 1957, 55‒56).46 After the end of the debates, the government accepted the proposed Constitution, even though there seemed to be a generalized discontent about it. Moderate liberals, for example, considered that the Constitution had gone too far; “pure” liberals opined that it had not gone far enough; and corporative groups, such as the army and the Church, deemed that the majority of the clauses incorporated in the new document were simply unacceptable. Comonfort’s views were more in line with those who were not at all satisfied with the document. So, in spite of the fact that he had already promised respect to the Constitution (and had been reelected after its enactment47), he led a military coup against it. After the coup, Comonfort not only suppressed the Constitution but also shut down Congress and imprisoned some of the most noted members of the opposition. His decision proved to be tragic for the country and also for his own political career: he was, indeed, forced to leave power shortly after the coup.

Conclusion In the preceding pages, we examined the theoretical underpinnings that made possible the holding of broad agreements among different constitutional projects. In particular, we focused our study on the liberal-conservative consensus that has prevailed since the mid-nineteenth century. This agreement, as we know, was crucial to the development of Latin American constitutionalism. In this chapter, we also explored the content of the dominant fusion constitutions. Acknowledging what the main constitutions included, and also what they left out of their texts, it is easier to understand what the new constitutions that would appear in the new century would do. Usually, as we shall see, the new documents came to “repair” the constitutional problems that they inherited. More particularly, the new constitutions made a special effort to incorporate some of the radical/republican commitments found in the old documents, which were simply left out of the main nineteenth-century constitutional agreements.

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The Material Basis of the Constitution Introduction: The Constitution in a Non-Egalitarian Context In this and the following chapter we shall concentrate our attention on two particularly significant aspects of early legal discussions. In this chapter we shall revise the emerging debates about the material basis of the Constitution—in other words, the personal and socioeconomic conditions necessary for the development of constitutionalism. In the next chapter we shall study the intense legal discussions that appeared in relation to the inherited constitutional structure—how to deal with the past. We shall dedicate specific attention to these topics given both the remarkable importance they acquired in the origins of constitutionalism, and the relevance they (still) have for those interested in the study of constitutions in general. The first thing to mention about the issue of the material basis of the Constitution is that, perhaps contrary to our present practice, Latin American “founding fathers” spent a lot of time and intellectual energy reflecting upon the issue. That is to say, they did not simply focus their studies on the text of the Constitution (what to include, what to change), but they also tried to say something about the material conditions necessary for its success.1 Probably, they felt forced to engage in those discussions because of the heavy legacy imposed by the colonial past. In what follows, we shall explore the conflicting views on the topic. Although the vast majority of the “founding fathers” were critics of the material legacy of the colony, they had different approaches to it. Clearly, the critique of the economic legacy of the colony—a legacy that was characterized by its profound injustices—was widely shared within the American political elite. Of course, not all of their members concentrated their attention on the same aspects of the crisis. Some of them denounced the multiple, still dominant injustices, which resulted from decades of exclusionary governments that worked against the interests of the most disadvantaged. Some others, instead, directed their criticisms against a State that, they claimed, had been captured by a few, for their own benefit. The main foundation of the first position was simple: the community had to organize itself in a more egalitarian way because that was what social justice required. The dominant state of affairs was, in this respect, totally unjustified. It was for that very reason that different political groups, of radical origin, concentrated their political energies in the analysis of the material basis of society. For many of them, it was clear

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that society had to be re-created from its very foundations, so as to make a different constitutional life possible. It was necessary to build a different type of society, more respectful of the needs and interests of the worst off. Republican activists assumed that re-creation of society required a reconceptualization of the right to property. As the Colombian Camacho Roldán put it, a republican life required an end to large property-holdings [by opening the “door of property . . . to the peasants”]. Only in that way, he claimed, would it be possible to prevent “the creation of a new Feudal class and . . . the destruction of the Republic” (Camacho Roldán 1923, 293). Only in a very few cases, like Mexico, did so many members of the political class get so deeply involved in studying and criticizing the injustices of the dominant economic system—an economic system that left the majority of Mexicans in situations of indigence. Their main criticisms appeared properly articulated in the 1857 constitutional debates. A brief review of these criticisms may then be of help, in order to illustrate the diversity and richness of the arguments at stake. According to some politicians, there was enough land for all members of society and, for that reason, there was no need to keep the Constitution committed to those injustices (Castillo Velasco).2 Others criticized the attitudes of the upper classes, which in a context of poverty continued with the accumulation of property (Arriaga).3 Still others resorted to Christian piety and claimed that nobody could deny the provision of basic goods (such as water or wood) to those in need (Olvera).4 Some pointed to the persistence of situations of exploitation and oppression toward the most disadvantaged (Ponciano Arriaga, Olvera).5 Yet others maintained that the unjust organization of property was directly linked to the existing illegal occupations (Olvera).6 There were also references to the level of inhumanity that characterized the prevailing social organization (Olvera).7 Still some others denounced the situation of slavery that affected large masses of poor workers (Ramírez).8 The other common approach to the problem—the one that was more extended within the political elite—started with the repudiation of the old conservative, corporatist, monopolist, authoritarian model that was inherited from the colonial period. Many of these critics focused their reproaches on the omnipresent State and its regulative anxieties. For them, the State represented the main source of individual oppression, and for that reason it was important to limit its power and coercive force. That limitation represented a necessary condition for the expansion of individual liberties. In line with that view, they deemed an individual’s free initiatives as a safe road to personal and collective progress. According to Alberdi, for example, private initiatives were mainly responsible for all the relevant economic advances of society: it was due to those initiatives that society had exploited mines, built routes, opened channels, invented technical novelties, and so on (Alberdi 1920, 159). For those reasons, he concluded, it was indispensable to protect individual initiatives. The State was then simply seen as a threat to individual freedom. “Private initiatives have done a great deal, and a great deal of good, as Spencer [stated] . . . [They have] fertilized our soils and built our cities, discovered and exploited mines, created routes, opened channels.” The actions of the state, and never those of the individuals, brought poverty to the country, he claimed (Alberdi 1920, 159). In similar terms, the Peruvian Tejada objected to the public authority that

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pretended to know it all and, for that reason, pretended to decide it all: it prescribed the selection of raw materials, prohibited certain procedures, fixed the quality of our products, its form . . . its color. . . . The state was the merchant who traded tobacco, salt, coffee, sugar, snow, cards, explosives, paper . . . the exclusive manager of banks, channels, bridges, routes, mines and everything else. Its regulations . . . defined the laws of offer and supply while economic law was silent. (in similar terms, see for example Tejada 1947; Quimper 1948; Leguía 1939, 137).9 Now, the fact that different diagnostics and responses in the face of the critical economic situation existed does not deny the presence of certain basic, shared agreements concerning the existing relationship between the economy and the Constitution (which, one could also add, are not easily recognizable in our time). One shared assumption was that the Constitution had something important to do in relation to the existing economic difficulties. As Alberdi maintained in his famous book Bases, it was time for Latin American constitutionalism to initiate a new legal epoch, where “constitutional law” worked for “the aggrandizement and progress of the new States” (Alberdi 1981, 25‒26). Another shared assumption—the one that is more significant for this work—was related to the conviction that constitutionalism had something to say regarding the relationship between economic independence and political independence. Let us explore the assumed links between economic independence and political independence.

Economic Independence and Political Independence in the Liberal-Conservative Tradition: Tying Rights and Interests Together Conservative, liberal, and republican voices all recognized that there existed a strong connection between economic and political independence. In this section, we shall pay attention to the liberal-conservative approach to this issue, and shortly after we shall explore the republican view. Usually, liberals and conservatives defended what we shall call the independence thesis, that is to say, the thesis according to which it was necessary to have economic independence in order to have political independence. During the Founding Period of Latin American constitutionalism, liberals and conservatives used to defend the most extreme version of the independence thesis. The main idea was the following: in contexts that were marked by strong inequalities between proprietors and nonproprietors (or between small and big proprietors), the latter faced enormous difficulties for acting freely. This result was the consequence of different reasons. According to some, only those who had property had a direct and strong link with the interests of the country. Others took into account the extortive capacities of the proprietors, which made it very difficult for nonproprietors to decide freely. Still others considered that there was an important correlation between property, wealth, and intellectual capacities (Wood 1969).

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For reasons such as the above, many of the members of the dominant political elite assumed that only those who were economically independent deserved to enjoy political rights. In the context of extremely unequal societies, this claim put the institutional system at the service of the existing social and economic relationships. The law, in this way, was used to enforce and provide stability to those relationships. But how could this be done? How could the institutional system be adjusted so as to honor those initial goals? The solutions that were then imagined were many. The first and most important was the restriction of political rights to those who, presumably, enjoyed economic independence. The idea of limiting political rights was widely shared in the continent among liberals and conservatives. In Argentina’s 1826 Assembly, for example, many proposed the creation of a Senate against those who had “tried to equalize everything, without recognizing the existing hierarchies,” without ensuring a proper place to those who occupied a special place in the social scale (Ravignani 1926, 1:293). This was also the view of the liberal Mexican José María Mora, who maintained that “general Congress has to define the conditions for exercising the rights of citizenship in the entire Republic” and also ensure that “those who cannot inspire confidence, this is to say nonproprietors, remained excluded from those rights” (Mora 1963, 630‒31). Mora’s extreme views, in the end, only reflected what the common assumptions among Mexican political leaders of the time were. For people like Mora, nonproprietors were not reliable because their will was subject to manipulations by those who enjoyed a privileged economic situation: it was that very material condition of economic affluence that ensured political independence. Mora openly defended that view. For him “only this class of citizens [property-owners]” was “truly independent and capable of inspiring confidence to the legislator and also to the mass of the Nation. Their decisions would never be the result of intrigues, nor be motivated by principles that are foreign to reason and to the natural sentiments of justice that accompany men in their whole life. By contrast, the destitute, the day laborer, the debtor cannot be but subject to the bribes of others, when his subsistence, which is the first need of men, depends precisely on those who have an interest in corrupting him” (529). Defending a stronger and more conservative view on the subject, Lucas Alamán went beyond Mora’s concerns and suggested adopting still more extreme institutional solutions. Alamán was an iron-clad supporter of the idea of economic independence, assuming that big landowners were the only ones who could contribute to the nation’s economic growth. It was indispensable, for him, to link rights with interests, democracy with property (Lira 1997, 45). For that reason, on many different opportunities, Alamán proposed to reserve a specific political room for the big interests, and particularly to the big landowners of his country. He made reference to the “importance of giving property, and particularly territorial property, which is the more stable and more intimately linked with the prosperity of the nation, a direct influence in legislation” (Alamán 2008, 214). In other words, for him, it was clear that the decision-making process had to ensure a special place to property. In that way, Alamán established a direct and strong association between democracy and property—the only way, in his view, to give sense and reality to democracy. In his words, “the only positive quality that may exist in a democracy, and the only one that can offer us some security for a moderate exercise of such enormous power, is property” (Alamán 2008, 212).

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Alamán’s justification revisited all the most important topics of conservative political thought. He stated (and here we shall quote him extensively): Nobody should think that we are here closing the doors of the legislative bodies to those who are not property-owners. It has nothing to do with that . . . but it would also be a mistake to go to the opposite extreme and think that a low level of education, a limited view of things . . . could authorize someone to rule . . . the essential character of property . . . resides in inequality. The big landowners are the object of envy, their presence generates rapacity in others, and this is why they have to be protected . . . I have tried to demonstrate that the restrictions established by our Constitutions for the composition of our legislative bodies are still insufficient, which tells us about the importance of giving property, and particularly territorial property, which is the more stable and more intimately linked with the prosperity of the nation, a direct influence in legislation . . . the division of General Congress into two Chambers is never enough to fulfill that purpose because the two only differ by the way in which their members are elected, and for some accident by their duration in office, but they do not represent essentially different interests so as to ensure that their combination helped to the production of laws for the general convenience . . . and this is why different nations have limited the right to suffrage only to property owners . . . These and other restrictions are always more important when the system changes from one without popular elections to another where everything is dependent on popular elections, when the people are endowed with that faculty, when they have no idea about the object of elections, their consequences, or their importance. In the civil order, more than in the natural order, everything is gradual because the civil is nothing more than the natural order modified . . . we never see nature acting for sudden motives, but in cases of earthquakes, and these are occasions of ruin rather than creativity. In order to avoid this inconvenience and forever save the metaphysical fiction of the general will, elections have become not direct, and through different graduations and reelections, the appointment of deputies results from the work of only a few. (Alamán 1997, 187‒92)10 Even though Alamán’s project was undoubtedly extreme, the fact is that many other constitutional programs of the time went in a similar direction and at least as far as his program. One of these cases is that of Simón Bolívar, who advocated adopting a quasi-monarchical regime both in his famous Carta de Jamaica from 1815 and in his Discurso de Angostura from 1819. Following the British monarchical example, he also proposed organizing a corporatist legislature, which ensured the representation of the most accommodated sectors of society. We find a similar case, for instance, in the Argentine 1819 Constitution, which was written by the local liberal elite, and which also reproduced some of the more exclusionary features of the British model, which were translated into a corporatist organization of society.11 The Argentinean elite wanted to ensure that all relevant, powerful sections of society found a place in the constitutional scheme.12

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Indirect elections (which came to prevent the most disadvantaged from interfering with the selection of the most important public officers), property qualifications, the political exclusion of the illiterate, the establishment of certain economic conditions as prerequisites for the enjoyment of political rights were just some of the many different routes explored for guaranteeing the triumph of elitist constitutionalism.

An Economic Reform for the Political Reform Before examining the objections to the independence thesis, it is worth pausing for a moment in order to highlight one important point: all the most lucid constitutional thinkers in nineteenth-century America recognized that it was necessary to introduce new reforms that transcended the mere internal, legal structure of the Constitution so as to ensure the success of the reform. In other words, they recognized that in order to adequately think and finally act upon the Constitution, its content, its stability, and its final goals, it was necessary to go far beyond the mere text of the Constitution. For instance, in the introduction of the important work Sistema Económico y Rentístico de la Confederación Argentina, Juan Bautista Alberdi made explicit reference to the numerous links existing between the Constitution and the national economic structure. For Alberdi, the Constitution included a “complete system of economic politics.” Alberdi tried to demonstrate that the success of the Constitution finally depended on the working of the economic system, which the Constitution itself helped to set in motion. If one neglected the questions and problems posed by the economic structure that surrounded the Constitution, one would act irresponsibly, incoherently, with regard to the desired reform. In a similar manner, the Mexican jurist Mariano Otero published his well-known Ensayo sobre el verdadero estado de la cuestión social y política, where he reflected upon the material basis of constitutionalism. Like Alberdi, Otero was well aware of the need to transcend the text of the Constitution in order to take the Constitution seriously. For him, if the problems affecting the Constitution were so intimately linked to the distribution of property, then solutions to those legal problems could not ignore the required changes in the distribution of property. The Colombian politician Murillo Toro also established a clear connection between legal/constitutional reform and economic reform. For him, it was simply unreasonable to conceive of one reform without the other. In his words: Every political reform has to have as its object an economic reform. If we did the former without the latter, we would not only run the risk of doing an unfertile work, but also to discredit the reform in the eyes of the people . . . political forms are worthless if they do not come together with a radical reconstruction of the social structure, through taxes and (reforms in the system of property). What would universal and direct suffrage mean (even if secret) in a society where the majority had not guaranteed subsistence . . . ? (Murillo Toro 1979, 70)

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In sum, these testimonies allow us to recognize that different influential legal thinkers of the time, coming from very different extractions, shared fundamental assumptions regarding the material conditions of constitutionalism. This fact seems remarkable, particularly when we look at it from the present—in fact, we currently tend to disregard the existing connections between the economic and legal spheres, and act as if they were separate spheres, completely independent of each other.13 All the quoted legal thinkers assumed that the project of transforming existing societies required the promotion of radical, extended, profound transformations in the basic structure of society. As Mariano Otero put it, “What we need, then, is a general change, and this change has to begin with a change in the material relations of society because these same material bases have defined, until today, our situation, and the situation of all peoples in the world” (quoted in Noriega 1972, 59).

Objections to the Independence Thesis The grave and exclusionary consequences that followed from the independence thesis generated immediate political reactions and responses. Republicans, in general, challenged those elitist proposals in different ways and advanced radical economic reforms against them. Herein we shall mention two of the main republican reactions to the independence thesis. The first response was to challenge the existing connection between economic independence and political independence, by claiming, for instance, that economic dependence did not necessarily cloud judgment, in the same way that economic independence did not necessarily illuminate it. Some others, instead, radicalized the republican view and claimed that if it were true that only economic independence guaranteed political independence, then it was necessary to ensure economic independence to all. Among those who followed the first route, many tried to demonstrate that, in fact, all individuals (no matter their social position) were dependent on some other. The question was, then, why deny political rights to only some of them (say, the most disadvantaged, the poor). Others preferred to challenge the dominant approach to property, objected to the moral and political qualities of property-owners, and questioned the anti-republican character of the criticized view. Still others defied the independence thesis in a more direct way and maintained that economic independence did not guarantee political independence, in the same way that economic dependency did not necessarily imply political dependence. The Argentinean Manuel Dorrego—one of the few interesting representatives of Argentinean republicanism—offers an excellent example of these criticisms. In one of the first important constitutional discussions in the country, Dorrego objected to the idea of restricting political rights. He then showed the inconsistencies and contradictions that characterized the views of those who advocated for the restrictive position. In his words: I find no reason to think that domestic servants lack independence, which could not be applied to the rest of society. I wonder why . . . employers of any kind do have the right to vote? . . . Is it not the case that employers of

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any condition receive their subsistence from the Government? . . . However, these employers are not excluded from vote. Why, then, to exclude domestic servants? . . . What results from here is an aristocracy, the worst aristocracy, because it is the aristocracy of money. (In that way) the representative system is undermined because the representative system is based on equal rights. (Ravignani 1926, 3:118) Dorrego accused those who defended the status quo, claiming that in such a way they put the entire political system in the hands of a small elite (3:118‒19). He wondered: What kind of independence do we need? . . . Is it the case that the capitalist does not depend on others? On the contrary, it may be the case that he is more, rather than less dependent on others . . . What is important is to find out whether there is a level of coercion that prevents someone from voting freely. (3:119) We find a quite similar view in the work of Mariano Otero.14 The Mexican legal thinker articulated one of the strongest criticisms against the independence thesis. First of all, Otero objected to the anti-republican character of such thesis (Otero 1967, 1:367). In addition, he maintained that the solution that many his adversaries advanced was impossible to apply in actual practice. The idea was—he claimed—“inconvenient” because every argument directed at limiting the political rights of some people implied, unavoidably, the exclusion of many others. For him, it was practically impossible to demonstrate that a certain economic level would be correlated to “morality and independence.” Moreover, he deemed the proposal of defining a certain economic threshold as a minimum necessary for participating in politics totally impracticable: the threshold would have to vary in different localities and according to different professions, which in the end made the whole system “embarrassing, and finally impossible” (1:362). This is why he proposed adopting a different rule, which implied conceding citizen’s rights to all Mexicans who had reached the age of 20, who had not been condemned in a legal process for a defamatory crime, who had an honest means of living. In such a way, he assumed, the “democratic principle” would be distributed “in the frankest way” (1:362).

Economic Independence/Political Independence Probably the most interesting challenge to the independence thesis came from those who accepted the conservatives’ invitation, but only in order to radicalize their claim. Many republicans, in fact, took the conservative’s view on the interrelation between economic independence and political independence to its extreme and proposed to assume the also extreme consequences of this choice. The idea was the following: if the conservative claim were true, then it implied that most people could not actually participate in politics. Precisely for that reason it was then necessary to radically change the dominant state of affairs, in order to permit the political participation of popular majorities. That is to say, it was necessary to “free” the majority of the people from

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their situation of economic anguish, rather than simply closing the door of politics in their face. A particularly interesting expression of this debate appeared in a dispute about universal suffrage in Colombia. Manuel Murillo Toro had then led a successful campaign in defense of universal suffrage. However, given that the first elections with universal suffrage favored the conservative group, many within the liberal-radical camp objected to the proposed strategy. These critics began to question the use of universal suffrage, which seemingly allowed property-owners to use its extortive capacities against the dispossessed, so as to benefit their candidates. On that occasion, the future Colombian president, Murillo Toro, was one of the few who kept a firm position in favor of universal suffrage. When most of his peers seemed to renounce that principle and began to explore new limitations on the right to vote, Murillo Toro opted for radicalizing his position. He thus maintained that the political democratization of society had to come together with a process of economic democratization.15 That is to say, instead of renouncing the defense of expanding political rights, he claimed that political inclusion—the democratization of politics—had to be based on the economic democratization of society: a proper exercise of the right to suffrage required the economic independence of the voters. The “basic question,” he stated, was “to ensure the purity of the suffrage through the independence of the voters. We will never obtain independence or education but by ensuring the independent subsistence of individuals through their liberty and the security of work” (Murillo Toro 1979, 70). For Murillo Toro, the economy had to be at the service of politics, so as to ensure the free election of the majority.16 This was also the remarkable conclusion that he achieved in his polemic with the liberal Miguel Samper. According to him, the notion of “laissez-faire,” which Samper proclaimed, denied the essential principles of “association and fraternity” (Murillo Toro 1979, 79). And he stated, “Every portion of land represents an equivalent portion of sovereignty” (79, emphasis added). The message could not be clearer: political independence had a strong, direct, intrinsic connection with economic independence.17

The Economy and the Creation of a Politically Committed Citizenry Through his committed defense of universal suffrage, Murillo Toro was advancing a particular idea of liberty, which contrasted with the one that liberals usually defended. Against the typically liberal idea according to which individuals had to be “left alone”—a negative approach to liberty—radical/republicans tended to propose a different notion, based on the idea of non-dependency.18 Murillo Toro was quite explicit in this respect.19 He stated, “Each person should have guaranteed the fruits of his labor.” And also: “If a tenth part of society kept the land only for themselves,” then the rest would die or “live in absolute dependency.” In such a society, he concluded, there would be “no political equality” but only “aristocratic domination” (Murillo Toro 1979, 78‒79). In what follows, we shall explore this different

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approach to the idea of liberty and particularly its implications concerning the forging of character. One way to begin with this exploration is by stressing the extended character of this alternative view, which was shared by important participants in the region’s legal and institutional debate. In this respect, we may refer again to the work of Francisco Bilbao, particularly to his pamphlet El gobierno de la libertad. Bilbao published that document in Lima, during his exile in 1855, and there he exposed an articulated understanding of constitutionalism, which then found expression in his proposal for a Constitution. Assuming a republican approach to the law, he wrote, in a section dedicated to “the institution of liberty”: “Every man is free. No man can depend on another man. The freedom that makes a person sovereign prevents him from violating or establishing the dependency of another man. Liberty is thus the IDEA that presides and legislates all other actions” (Bilbao 1886, 1:278; 2007). What Bilbao said was similar to what is possible to find in the writings of other republican thinkers of the time, who were also severe critics with the problems derived from oppression or exploitation. This is, for instance, the case with the Mexican politician and constitutional thinker Ignacio Ramírez. Ramírez was the editor of the satiric newspaper Don Simplicio, from which he used to engage in polemics with the conservative writer Lucas Alamán, who expressed his political views in the newspaper El Tiempo. Through his articles, Ramírez denounced, again and again, the abuses that affected a majority of his contemporaries.20 For Ramírez, the situation of economic dependence that affected a large part of the population prevented them from enjoying full citizenship. He then criticized the “wise economists” that worked on the Convention, who had “proclaimed the sovereignty of the people in vain,” while they deprived the laborers of the “fruits of their labor, and forced them to consume their own capital.”21 If the dominant economic system generated economic dependency, and economic dependency alienated people from politics, then a radical politics required the introduction of substantive changes in the organization of the economic structure, so as to make political changes possible. The introduction of these changes was seen, then, as a way of integrating the majority of people into politics—ultimately, a way of building citizenry. This was, perhaps, the most important contribution of republicanism to those early public discussions: the idea that the basic structure of society was crucial in the forging of character and could thus contribute to the strengthening of the public sphere (Sandel 1996). The idea of employing the institutional system in order to build better citizens, or citizens of a certain type, was particularly attractive at a time when the new societies appeared to confront historical decisions regarding how and where to proceed. In fact, many of the most important political leaders of the time in America—including Benjamin Franklin, Thomas Paine and Thomas Jefferson—posed fundamental questions of these types, concerning how to reorganize the new societies. In particular, all of them questioned whether it was reasonable to base society on commerce. Against that alternative, they advocated for an agrarian republic (see, in particular, the “agrarian writings” of both Jefferson and Paine), and they grounded that claim on a clear concern for the construction of citizenship. The idea of an agrarian republic—the utopia of “40 acres and a mule”—in countries that still had plenty of rich unexploited land, promised a world of equality. In that

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world, everyone would have enough to live on and also the chance to actively participate in the decision of the common affairs. By contrast, an economy organized according to the needs of commerce promised just the opposite, particularly in terms of the formation of character. A commercial society in fact, promised a group of self-interested, greedy citizens, interested only in defending their own affairs, who looked at the rest as potential competitors. This is why so many republicans established a strong link between commerce, vice, and corruption.22 Contrary to this picture, the production of manufactures on a small scale appeared to be much more attractive because it was a horizon that did not seem to come together with the concentration of wealth and power (Sandel 1996, 144).23 That approach was not at all foreign to Latin American thinkers. There are numerous examples, beginning with José Gervasio Artigas’s Reglamento Provisorio, which was directed at ensuring a radically egalitarian distribution of land, which would mainly privilege the rights of the worst-off. Similarly, we can mention the egalitarian politics promoted by the Sociedad de la Igualdad in Chile or the work of the agrarian egalitarians in Mexico (e.g., Francisco Severo Maldonado).24 Later on, the remarkable work of the Peruvian radical José Carlos Mariátegui, who combined radical initiatives for economic change and institutional proposals favorable to the political inclusion of marginalized groups, particularly including indigenous groups, also appears.25 *

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Discussing State Neutrality: The Endogenous Formation of Character Through their dispute with the liberal approach to liberty, radical/republicans also confronted the traditional liberal understanding about the State and its role. In this way, they helped to put into crisis another crucial liberal notion, namely, that of State neutrality.26 This discussion about neutrality included questions like the following: Should the State try to identify what the qualities of character necessary for doing politics are? Should the State use its coercive powers to promote or support the development of certain moral dispositions? Has the State the right to discourage some types of ideals about the good life? Through different identities, the idea of neutrality occupied an important place in the nineteenth-century political and constitutional debates. This was not surprising, given the weight acquired by the Church and religious ideals in Latin America during the colonial period. The grave excesses committed by the State, in the name of religion and against individuals’ personal convictions, made it clear that there was some sense in the idea of taking the State away from the sphere of the personal. Most people understood that the State could become a threat for personal liberties. Liberals and radicals, in particular, coincided in their common rejection of religious perfectionism, imposed through the use of the State’s coercive powers. Beyond this basic agreement, as we know, their views tended to differ. Herein, we shall examine their different approaches to the subject, so as to have a broader picture of the Latin American debate about neutrality.

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First of all, we could recall that, for republicans, the achievement of a self-governed society required the presence of citizens that were identified with the destiny of their community. Moreover, in their view, if people were not actively engaged in politics, the entire self-governing project became under risk. Then, it was necessary to do everything possible in order to promote certain basic civic virtues. Liberals, by contrast, tended to reject the two premises that guided their adversaries’ reasoning. On the one hand, they assumed that citizens were fundamentally egotistical and self-centered. On the other hand, they assumed that people’s basic moral features were fundamentally unchangeable. For those reasons, republicans and liberals tended to assume a strongly different view, concerning the role of the State. Synthetically, while republicans suggested putting the entire institutional system at the service of creating a more robust and civically active citizenry, liberals proposed organizing the institutional system by taking the dominant motivational qualities (say, self-interest, ambition) as given. Typically, then, they suggested building the institutional system in relation to human self-interest: self-interest would then be, for them, the “fuel” that would set the institutional system in motion and maintain its functioning. Republicans, by contrast, seemed to put their attention in what we could call the endogenous formation of character, that is to say, in the impact that the institutional system had or could have in the forging of character. Later on, we shall explore both contrasting views, namely that of republicanism, which promoted the construction of character through the institutional system (and also, in particular, through the economic system); and that of liberalism, which tried to organize the institutional system by taking the dominant motivational characteristics as given. Before doing so, however, we shall pause for an instant to highlight the importance of this coincidence—the fact that both views conceived of the relationship between character and institutions as central to their institutional projects. First of all, for both views it seemed clear that the institutional system could open the door to the people’s intervention in politics, or not; favor collective action, or not; foster a close relationship between representatives and the citizenry, or not. In sum, for both radicals and conservatives, it was clear that the institutional system was always going to be in dialogue with the people’s motivations—either by trying to change them or by taking them as its main combustible. From this point we do not want to derive any substantive conclusion regarding State neutrality. In fact, neutrality may be achieved or defended to different degrees and may be analyzed at different levels of abstraction. However, the previous discussion may help us to clarify something that is crucial when comparing different institutional models. The fact is that all the different constitutional models appear to be committed to a certain view of the citizen, which they took as their basic anthropological assumption. Moreover, in one way or another, they always try to foster or discourage certain features of the people’s character. Liberalism, for example, could in principle be compatible with any plan of life. However, at the same time, liberalism tends to better accommodate certain plans of life over others. Probably, and for reasons that are easy to understand (for example, the conviction that representatives have to be able to change their viewpoints once elected or the fear of having an overactive citizenry, which could affect the stability of a fragile institutional system), liberalism seems to

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be more at home with a particular institutional system: one that ensured a strong separation between the representatives and the people; one that favored apathetic, rather than activist, citizens. Republicans, instead, always favored a more participative citizenry and encouraged the cultivation of civic virtues—they wanted to obtain politically conscious citizens active in the defense of their community’s affairs.27

The Fuel of the Constitution: The Constitution and Personal Motivations in the Tradition of the Federalist Papers According to republicans, constitutionalism required the presence of civically active, economically independent citizens, and the State was required to contribute to the forging of those virtuous citizens. The republican view of human motivation, however, differed in significant terms from the liberal one that greatly influenced what would then become the dominant institutional model. In the dominant model, individuals appeared to be motivated only or decisively by their self-interest. Given the extraordinary impact achieved by the liberal institutional model, it may be appropriate to examine it in more detail. In particular, we shall pay special attention to the liberal decision to “use” self-interest in the construction of the new institutions. For that purpose, we shall focus our attention on the liberal model, as defended in the Federalist Papers, which was greatly influential in the shaping of regional liberalism. The Federalist Papers represent an extraordinary intellectual exercise, through which some of the main political leaders in the United States, provided a foundation to the liberal constitutional project. At the core of the federalist project, we find a view of politics and economics that greatly differed from the one advocated by republicans. While republicans (according to liberals) seemed to start from a utopian view about citizens, federalists began their institutional analysis with the crudest picture of human beings. And they took those human motivations as given because they assumed that it was actually possible to put the most unattractive human motivations at the service of the common interest. In fact, federalists took as their starting point a conception of the person that assumed that individuals tended to be motivated either by their pure self-interest or blinded by their passions—a view of human motivations like the one that David Hume had presented (White 1987). In order to find traces of that view in the liberal project, we do not need to look in some hidden or marginal texts. On the contrary, this view appears as the dominant view at the very center of Federalist No. 10, which is to say, in the most important Federalist Paper and also the most important piece that was written in defense of the new institutional system. In Federalist No. 10, at the core of his argument, James Madison described factions as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” That is to say, for Madison there were no alternatives: it was clear that men were motivated by passions or by self-interest and that, in both cases, human behavior tended to create serious risks to others’ rights and liberties. In his view, the worst political scenario appeared when people got together in large assemblies, because on those occasions, almost unequivocally, passions tended to take the place of reason. This was

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also what Madison wrote in Federalist No. 55, where he stated, “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason.” Madison persisted with a similar idea in Federalist No. 58, where he claimed: “In all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason.” In other words, for him, decisions motivated by passions were, in principle, irrational decisions. The situation did not improve much when individuals acted out of egoism—for example, when they tried to improve their economic situation, or gain more social influence, or more political power. For both cases (persons or groups acting out of passions or self-interest), the proposed solution was the same, namely the creation of institutional barriers and channels capable of accommodating those human impulses. The institutional system that was then created was aimed at “using” or transforming those evil or threatening impulses in directions more favorable to the interests of all—sometimes by containing their effects, sometimes by channeling them. The logic of this reasoning was particularly important at the time, at least within the dominant elite. It was, for example, the same logic that appeared in Adam Smith’s work. In fact, the notion of the invisible hand came to say precisely the same as the notion of checks and balances in the Federalist Papers; namely that, in order to work, an adequately established institutional system did not need to rely on the solidarity or goodwill of any person or group; it was enough to have self-interested people (we come back to this point below). In both cases, the idea was that, if properly channeled, self-interest could work for the interest of the rest—selfish behavior, in the end, could be put at the service of the common good. Both in the economic sphere and in the sphere of politics, the idea seemed to be the same: to utilize the institutional system in an efficient way, economizing on virtue. A proper institutional design did not require from people more than what was reasonable to expect from them, acting as rational egoists (Ackerman 1984).

Motivations, “Checks and Balances,” and Endogenous Controls One of the most significant examples of how to channel self-interest through the institutional system—how to put it at the service of collective welfare—appears in Federalist No. 51. In that paper, Madison proposed to “use” the representatives’ self-interest for the common good, thus building a system of mutual controls. This is the purpose of the system of checks and balances. In Madison’s words: The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on

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human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In this way, Madison made it clear what the fuel of the institutional system would be: mere personal self-interest. Following Hume, Madison agreed with the idea that in politics “every man must be supposed to be a knave” (White 1987, 98). Ambition had to be used to counteract ambition. How? To set in motion a system of mutual controls his “formula” consisted of combining personal motives with constitutional means, so as to ensure that the entire structure of controls functioned. All these efforts, he added, would have been unnecessary if men were angels; that is to say; if people were always or most of the time well-motivated, aimed at serving the common interest. However, that did not seem to be the case. According to federalists, it was unreasonable—it was ultimately wrong—to create institutions under such unrealistic and over-optimistic assumptions. The first promise of a proper system of checks and balances was then simply an armed truce. In effect, the idea was to give each of the contenders (each branch of power) powerful firearms, which would allow them to resist the potential attacks and encroachments of the other branches: the president would enjoy veto powers; judges would have the ability to defy the validity of the laws (an attribution that was consolidated only later); the legislature would enjoy powers of insistence against the president and also the power to initiate impeachment processes and so on. The idea was clear: endowed with “defensive guns,” all the members of the different branches would feel equally intimidated and would thus tend not to exceed their own powers, fearing retaliation—gunfire—from the other public agents. Clearly, the reaction—the gunfire—would not be the product of the others’ desire to serve society or altruist motivations or a commitment to protect individual rights; not at all. That response would only express each person’s desire to serve his own self-interest and thus preserve his own quota of power. In other words, the egoism of public officers—public officers’ decision to preserve their positions and powers—would thus serve to avoid the excesses of other public officers and thus also discourage the rise of those motives. More significantly, the idea according to which men were not angels had a clear addressee, namely anti-federalists and republicans, objectors to the Constitution in general. According to federalists, their rivals wrongly assumed that people acted or could act basically out of other-regarding, altruist motivations. Through the Federalist Papers, Madison wanted to show why they were wrong and how much they neglected the importance of controlling power. Those rivals seemed to assume that individuals, once in office, would act as angels, offering their best efforts to the common interest. Madison’s criticisms were, in the end, exaggerated and unjust. It was true, of course, that many of his opponents did not share the Humean view of human motivations, which he himself subscribed to. It was also true that many of those opponents took, as their starting point, a more optimistic view of human beings. At the same time, it was clear that many of them—even without taking for granted a naïve view of human motivations—had a great confidence in the transformative capacities of

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the institutional system. Some anti-federalists did seem to assume that the institutional system would be capable of transforming human motivations or taking the best motives from each. Given the centrality of this debate in the development of America’s institutional history, it is important to take precise note of the differences that separated federalists from their critics in this respect. First of all, it is not clear, as federalists sometimes suggested, that those critics were completely disinterested in the creation of public controls and thus naively confident about the civic virtues of the representatives. Many anti-federalists actually advocated for other types of institutional controls. The main division between federalists and anti-federalists did not reside then, in their different views of human motivation (say, egoism vs. altruism). Rather, they were fundamentally divided regarding the types of institutional controls that they wanted to build—namely, either, internal/endogenous controls or external/exogenous controls. Madison was clearly aware of this dispute, as we can see, for instance, in the last line of the paragraph that was above quoted, which read that, if angels were to govern men, then “neither external nor internal controls on government would be necessary.” And he advocated for the adoption of a system of internal or endogenous controls, which would allow each branch of power to restrain or contain the actions of the rest. In his scheme, exogenous or external controls were fundamentally reduced to one, namely, the periodical vote. Anti-federalists, instead, advocated for other, fundamentally different controls, namely external, exogenous, popular controls. In this case, the universe of controls began with periodical suffrage, which then extended to a diversity of other mechanisms. These mechanisms could include mandatory instructions, the right to recall, mandatory rotation, annual elections, and so on. This is why, for anti-federalists, the ascent of federalists to power offended the type of democracy that they imagined. In the federalist project, in effect, popular suffrage appeared as the only relevant institutional bridge between representatives and the represented. In that way, periodical suffrage assumed an extraordinary responsibility: it was going to be alone in charge of a difficult and complex mission (expressing and channeling the popular will), which anti-federalists preferred to distribute among plural institutional mechanisms. The federalist choice deposited an enormous responsibility in a single instrument and consequently augmented the chances of failure: periodical suffrage, by itself, could rarely satisfy those increased political anxieties.28

Burned Bridges and How to Reconstruct Them: The Place of Associations (from Juan Montalvo to González Vigil) In the previous section, we examined how republicans and anti-federalists objected to the liberal institutional machine—a machine that used self-interest as its fuel. While the latter proposed an institutional organization that stressed the importance of endogenous controls (horizontal controls from one branch of power upon the other), the former instead stressed the importance of exogenous controls (vertical controls from the citizenry to their representatives). Rather than subscribing

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to a naïve conception of society (as many federalists maintained), republicans and anti-federalists advocated for a different kind of institutional system, based on different assumptions. Instead of simply rejecting all internal controls, or even worse neglecting the importance of controls altogether, they stressed the importance of other types of controls on the representatives—popular or external controls.29 The fact is, however, that critics of the (from then on) dominant system of checks and balances objected to the limits of the federalists’ proposal, which did not seem to take popular controls seriously. Clearly, the periodical vote represented an extremely important instrument of vertical, popular political control, which federalists accepted. The problem was, however, that this mechanism became much less attractive when (1) all the other “bridges” that connected the representatives and the electorate (mandatory instructions, right to recall, etc.) had blown up; and (2) periodical suffrage was designed in such a way that its potency was finally undermined (for instance, because the Founders established severe requisites for having access to political rights, such as economic requirements, literacy, etc., hindered popular participation, established long political mandates, and spaced elections in time). Under those conditions, the chances of suffrage becoming an appropriate instrument of communication between representatives and the people became extremely low. What should be done, then, to strengthen the power of vote? How can the relationship between representatives and the people be improved? Herein, we shall mention only one of the many alternatives offered by the critics of the system of checks and balances—namely; the creation of democratic associations. We shall highlight this response because of its importance, its influence, and the fact that it refers to what is still a highly topical subject. Associations seemed to have numerous virtues: they had a collectivist character; they favored a “horizontal” way of doing politics; they contributed to the construction of a virtuous (civically engaged) citizenship and an egalitarian economy; they favored the citizens’ more direct intervention in the public life of their community. The associational proposal also suggested the level of discomfort that many felt concerning the dominant institutional system, based on egoist and elitist assumptions. In nineteenth-century Latin America, the defense of associations became increasingly common, particularly among radical and republican thinkers. We shall illustrate the importance acquired by associations in the region’s public debates, through three main examples, based on the views of Juan Montalvo in Ecuador, Victorino Lastarria in Chile, and Francisco de Paula González Vigil in Peru. Montalvo was one of the main critics of Gabriel García Moreno’s extreme conservative, “theological” government. For him, associations were “the need of our century.” He believed that despotism and anarchy could only be confronted by “the assembly of men of good will . . . the mutual support of good citizens” (Roig 1984, 233).30 Montalvo also made clear the collectivist character of his proposal: “Isolation, the separation of citizens, is the triumph of despotic rulers and their perverse auxiliaries. [However] if the oppressors see that they must clash against a vast number of closely united men, they are afraid and retreat” (233). For radicals like him, associations also represented an interesting way of reversing the effects of many existing practices and institutions that discouraged civic activism.31 In a well-known speech that he pronounced during the installation of the association Sociedad Republicana, in Quito 1876, he exposed the

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main assumptions of his view. These assumptions included a commitment to majoritarianism and to the idea that citizens were equally capable of taking public affairs in their own hands. Wisdom was not, for him, the “exclusive property of those who have it: they are only depositaries (of that wisdom) and have the obligation to share it with their brothers. . . . All great social ideas need to be approved by a numerous and august body” (232). During the same epoch, in Chile, Victorino Lastarria considered that associations constituted “the leverage” for change, a fundamental means for progress, the “political and social symbol” that reunited “friends of liberty and rational liberty,” and finally as the “means that more efficaciously can contribute to the organization and re-organization of American peoples” (Cristi and Ruíz-Tagle 2006, 35). For him, the key problem of the time was the “triumph of individualism,” which had consecrated “the principles of egoism and self-interest” with consequences that were extremely grave for society (34). For Lastarria, as for many other thinkers of his time, the politics of associations pointed to a completely different political paradigm, called to replace the dominant one, which he characterized by its individualist features. The religious figure González Vigil—a great influence within Peruvian politics— also conceived of associations as an excellent means for “promoting and favoring the general interest,” particularly in the face of a profoundly flawed institutional system. For him, the fact that governments looked to associations with distrust was simply “absurd.” “There is no reason to prohibit or discredit them,” he claimed. In his opinion, it was “extravagant” and “inconceivable” to prevent citizens from taking “an active role in politics” (González Vigil 1948, 19‒22). Like Montalvo or Lastarria, Vigil also understood that the associational alternative required citizens of other types, differently equipped, differently motivated. And he also assumed that the very presence of associations could have an endogenous impact in the promotion of the necessary qualities of character. This was, for him, one of the great advantages of “particular associations”: through them, people would find the chance to “establish relationships among them,” they would “get to know each other, deal with each other, love each other” (19‒22).

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The Limits Imposed by the Past upon the New Constitutions Discussing the Past Few issues seemed more important in Latin American public debates after the independence than the discussion about the place, importance, and interpretation of the past. The discussion about the past was an obsession among public figures of the time, who greatly differed in their approach to the issue. For many, it was important to leave behind the oppressive legacy of the colony, “uprooting” its influences. For others, what was important was to assert the country’s own “glorious” past, against foreign influences. Still others wanted to recuperate past experiences, but only those coming from successful foreign examples. They all engaged in dialogue with the past and battled around how to interpret it, in the face of questions like the following: What value should be given to the old colonial rules? What were the merits and demerits of certain crucial events (i.e., the French Revolution)? How should the institutional developments that had taken place in neighboring countries be evaluated? What were the limits imposed by the country’s own history on its present political alternatives? In what follows, we shall pay attention to some of the most important debates about the past that took place in the region during the nineteenth century. As we shall see, all the most significant legal and political thinkers of the time got involved, in one way or another, in those debates. The discussions referred mainly to four key questions: (1) how to identify the past; (2) how to describe it; (3) how to evaluate it; and (4) how to act in relation to that legacy. All these discussion, as we shall see, were profoundly influenced by normative considerations.

Identifying the Past At the very moment in which they began to discuss how to organize their country’s postcolonial legal system, Latin Americans recognized that the discussion directly concerned what to do with their colonial legacy. Most of them tried to demonstrate that their favored responses were consistent with that legacy and above all respectful of the history and traditions of the country. They all wanted to demonstrate that their own version of the country’s history represented the best reconstruction of the national legal history. However, the task was clearly difficult, because the past includes 62

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too many contradictory facts that are open to too many contradictory interpretations. This is why, at the same time, we all want to resort to the past in discussions about the present; while we find it so difficult to agree about how to read that past.1 Here we shall examine two significant examples that illustrate the uses and abuses of the past in Latin America. The first example refers to the polemic maintained on the topic by two noted Argentinian intellectuals, namely Juan Bautista Alberdi and Domingo Sarmiento, and the second one shall take us to study the writings of Simon Bolívar. All these figures engaged in discussions about the past, defended the importance of retrieving certain political traditions, and at the same time seemed to repudiate other alternative traditions. However, they greatly differed regarding which traditions had to be recuperated and which ones rejected.

The Polemic between Alberdi and Sarmiento: Local Traditions or Foreign Successful Examples? We shall begin with the debate between two important Argentinian intellectuals: the enormously influential jurist Juan Bautista Alberdi and the then president of the country, Domingo Faustino Sarmiento. Alberdi and Sarmiento were able to agree on many key issues, including their criticism of the country’s institutional situation, their trust in institutional change, and their conviction that the past offered crucial tools for thinking about the present. At this point, their differences began to emerge: Where was it necessary to look in the search for examples or solutions? For Alberdi, it was primarily important to focus on the rich local past and, if necessary, to the experiences coming from neighboring countries (i.e., Chile, his favorite example). By contrast, Sarmiento proposed to directly ignore all local antecedents, which he considered vague and insignificant “as characters traced in sand.” For him, it was necessary to mainly pay attention to successful international experiences—to those experiences that had “received the sanction of time.” The polemic between the two grew bitter, and also became more extreme, after the victory of General Urquiza against the federalist troops of Juan Manuel de Rosas. At that time, the country began to take the question of enacting a Constitution seriously, and they both wanted to be heard in that respect. The debate between the two appeared (mainly, but not only) through five extensive letters, which they wrote to each other: the five cartas quillotanas, written by Alberdi, from Quillota, between January and February 1853; and the five letters written, as a reply, by Sarmiento, which he named Las ciento y una. The polemic was marked by harsh personal attacks. Characterized by his sharp and potent plume, Sarmiento did not lose one occasion to object to Alberdi’s academicism, arrogance, and political ambitions. At the same time, he criticized Alberdi’s choice to live as an intellectual, in the midst of abstractions, when so many (even himself, who worked for Urquiza’s army) were getting personally involved in public affairs and even offering their lives to their country. Meanwhile, Alberdi responded “from above,” assuming a more equilibrated and distant position in the debate, as if he were completely uninterested in Sarmiento’s personal attacks and angry criticisms. Subtly, however, he always tried to humiliate Sarmiento, knowing how much the latter was affected by his fame and prestige, and

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also how much Sarmiento lamented the lack of educational opportunities that he had suffered in comparison to people like Alberdi. The topics of their debates were many and different. One of the most important, for our present analysis, relates to their discussion about the relationship between local law and foreign law and, more particularly, about the worth of employing “successful” foreign legal solutions to local problems. Sarmiento developed a radical view on the topic and proposed to follow US constitutional practice in every aspect. By doing so, he directly challenged Alberdi’s view, which he properly recognized had become enormously influential in Argentina’s national politics (Alberdi had sent his constitutional proposal to the triumphant General Urquiza, and it had gained immediate and wide recognition within the dominant elite). In his comments on the national Constitution (Comentarios a la Constitución), which he wrote after the enactment of Argentina’s 1853 Constitution, Sarmiento made a meticulous comparison between Argentina’s main text and the US Constitution. In that comparison, he frequently quoted the American jurist Joseph Story, who had also made an in-depth analysis of the US Constitution (his famous Commentaries on the Constitution of the United States). Following Story, Sarmiento described the US Constitution as one that was “already discussed, already fixed, already tried.” It represented, for him, the model Constitution, the one that had received “the sanction of time.” It was the Constitution that had passed all necessary exams in “each of its phrases, each of its clauses, each of its words” (Sarmiento 1926, 4). Fascinated as he was by the US example, Sarmiento maintained, provocatively, that the local law lacked any interest whatsoever: there was nothing really relevant, nothing worth studying, that came from the local experience. Those antecedents, he claimed, had been “erased from the memory of the peoples, as characters traced in sand.”2 For him, it was necessary (and possible) to simply import the US model. In his words, for the “free peoples,” there existed only one “political gospel,” only one “political morality” to follow, and this was composed of “fixed principles that already acquired the character of dogma, which cannot be modified in their application, nor altered in their essence.” The example that he had in mind was “democratic government of the United States, the ultimate example of the human logic.” With that example available, it was simply pretentious to “innovate in constitutional law, ignoring the laws that had been confirmed by experience” (Pérez Guilhou 1989, 46). In Sarmiento’s view, invocations about “national specificities” or local “originalities” were only bad pretexts for not doing what was required. “There is only one truth,” he stated, and that was coming from the best and most successful examples (Sarmiento 1926, 46). His conclusion was that “the peoples have to adapt themselves to the form of government, and not the form of government to the aptitudes of the peoples” (29). He proposed a rational-deductive approach to the issue, which deeply contrasted with Alberdi’s historically based approach. In another important book—his Estudios sobre la Constitución argentina de 1853—Alberdi responded to Sarmiento with vehemence. He objected to Sarmiento’s use of the US Constitution for comparative purposes, which he considered a way to “falsify and trivialize the national Constitution.” Against Sarmiento, he claimed that one should not “ruin the Constitution under the pretext of explaining it” (Alberdi 1886, 149). More significantly, he condemned his colleague for disregarding the existing

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national legal antecedents. In his view, people like Story had properly studied the US law, before commenting on it. This was not, he suggested, the case of Sarmiento, who, in his opinion, had unjustifiably disregarded the “colonial history, the constitutional writings of the new regime, the preparatory work of local publicists, the discussions and motives of the Argentinian legislator” for barely examining the US Constitution (154). Also, and challenging Sarmiento’s comparative enterprise, Alberdi maintained that a contrast with the neighboring case of Chile was much more promising than one with the United States. This was so, he maintained, because the Argentinian legal system “resembled one thousand more times to the Chilean system than to the one of the United S”: both Argentina and Chile were, in the end, ex-Spanish colonies from South America (Alberdi 1886, 157).3 Heavily influenced by the writings of Guizot and, most of all, by Savigny (whom he knew through his study of Lemminier), Alberdi rejected the idea of importing a Constitution like that of the United States, a country that was so distant from local traditions (Terán 2005). In his opinion, a proper constitutional law had to be able to recognize and recover the local realities. As he wrote in the Prefacio al Fragmento Preliminar al Estudio del Derecho, “men draft the law, they do not create it.” Alberdi assumed that men could draft the law, but not create it. For him, “Power derives from circumstances; the constitution does not create power, it only establishes it” (Barros 1997, 293). Alberdi proposed to think and study the law as a “living phenomenon,” trying to reach the “spirit of the law.” In his view, the science of law had to be, like physics, experimental and thus interested in facts rather than abstract doctrines. Law had to be then examined through the lens of history—a proposal that many found too conservative in its implications.4 In the end, for Alberdi, constitutionalism was an enterprise that required a persistent process of trial and error, based on the study of local habits and practices, which contradicted Sarmiento’s reverence for foreign “theorems” that were incompatible with national realities. This was, for example, what he wrote in the Chilean newspaper El Comercio de Valparaíso, on July 4, 1848: What is required in South America is not the study of Constitutions written in other countries, but rather the study of the things, the habits, the means, the capacities of these peoples, which do not resemble those of other peoples, which have different antecedents and live in different conditions. This is an experimental study, which needs support from the observation of life and society in South America. It needs to be more practical than speculative . . . (or a) scientific doctrine. And then the first point of reference is that of Chile. Guided more by experience than by abstractions, Chile has given to its democracy a Constitution that has ensured the country its peaceful and ordered development. This Constitution is different from all other Constitutions. . . . It could be a nice point of departure for the study of Hispanic-American democracy. Its study is more relevant today than ever before, because these peoples, after being victims of the seductive example of the United States, seem prepared to start running behind the shining but confusing example of the French Republic; always going behind what

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is inadequate, always practicing plagiarism, without recognizing that this crime is punished both in history and in the Criminal Law (Barros 1997, 296–7).

Simón Bolívar: Which Local Traditions Should be Recovered? The case of Bolívar is particularly important because it illustrates a phenomenon that was very common at his time, namely the political use of the national past in order to resist the influence of certain imported, foreign institutions. The obvious problem with this view was that the entire public discussion of the time was (not surprisingly and unavoidably) dominated by foreign ideas, examples, and institutions. In other words, it was very difficult then, as it is still difficult today, to find institutional proposals that did not come from abroad; or had not been, in one way or another, shaped by foreign influences. In the end, what was normally at stake, then, was the repudiation of not all, but only certain, foreign proposals, in the name of alternative, local ones, which were also based on and influenced by foreign ideas. Very commonly, those who pushed in favor of this divisive view between local and foreign institutions were politicians of the conservative type, who feared the diffusion of radical proposals that questioned the status quo. In their discourses and writings, they contrasted local history, national sociology, the dominant traditions, the more established habits, the permanent values, the overriding practices (which they considered truthful to the realities of the country) with the alternatives that they identified with their opponents, which they described as full of abstractions, principles, rationalist proposals, empty theories, and foreign inventions imported from abroad. In this respect, Bolívar’s example is particularly telling, given his enormous influence in Latin American early constitutional debates. Bolívar was, unequivocally, distrustful of foreign principles and theories.5 He appeared as the champion of “local” initiatives.6 He claimed that a country had to first have the chance to try to affirm its own local initiatives, and only then, after a long period of transition, could it start trying foreign, imported institutions. In line with this view, he made frequent criticisms of the institutional arrangements that prevailed in modern Europe and, in particular, to those coming from the French revolutionary experience.7 “They do not want monarchs; they do not want life-tenured presidents; even less aristocrats. Why then they do not drown themselves in the boisterous and joyful ocean of anarchy?” he questioned.8 Now, the fact is that Bolívar’s harsh criticisms against imported abstractions seemed to contradict his own political discourse and also the practice that he advanced, as an activist engaged in constitutionalism. This is to say, Bolívar’s constitutional views were also obviously informed by foreign models. In effect, at an early age, his legal writings appeared to be profoundly marked by the British model of constitutionalism, which was characterized by a powerful monarch, appointed for life, and political representatives coming from the upper classes. That influence appeared, clearly, in his well-known Jamaica Letters (1815), where Bolívar reflected on how to organize the political systems of the new independent nations. Following the example of Great Britain, he then recommended the adoption

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of a strong Executive and a hereditary Senate. In his proposal, the legislative power was thus divided into two chambers. The first one was to be composed by popular representatives, and the second one by the elite of those who had fought for the independence of the country and their descendants. Members of this political elite had to receive a special education, which would help to prepare them for their delicate political tasks (Belaúnde 1967, 178). Five years later, in 1819, in his Angostura Discourse, the influence of the British model in his writings was still dominant. At that time, he proposed accompanying the Executive with a hereditary Senate, organized according to the model of the British Chamber of Lords. The political power of the country had to remain, as usual, concentrated in a strong Executive power. “There is nothing as dangerous as the weakness of the Executive power,” he claimed. In line with that view, he proposed that the president of the Republic should be appointed for life, and he also suggested making this position unaccountable. By 1826, his views were more clearly influenced by the example of France and, more specifically, by the French Consular Constitution. Following the Napoleonic example, Bolívar insisted on his preference for an Executive appointed for life and with the power to choose a successor. In his message to the Bolivian Congress (May 1826), he detailed the features that, in his opinion, had to characterize the president of the Republic. He stated: The president of the Republic, in our Constitution, becomes the sun which, fixed in its orbit, imparts life to the universe. This supreme authority must be perpetual, for in non-hierarchical systems, more than in others, a fixed point is needed about which leaders and citizens, men and affairs can revolve. “Give me a point where I may stand,” said an ancient sage, “and I will move the earth.” For Bolivia this point is the life-term president. (Bolívar 1976, 233) On that occasion, Bolívar incorporated in his constitutional project a fourth branch of power, named the Electoral Power, which he took from the Napoleonic Constitutions of the years VIII and X, the Constitution of Cadiz, and the 1823 Peruvian Constitution (Belaúnde 1967, 237). This new branch was in charge of defining the requirements for becoming an elector and also responsible for presenting the main candidates for most public positions.9 In actual practice, then, Bolívar did not appear to be really against the importation of foreign ideas or institutions, as he declared. Rather, he seemed to be emphatically against the importation of certain specific foreign influences. Undoubtedly, Bolívar’s bête noire was the French Revolution and its radicalism, which he had begun to fear through the close example of the “black revolution” in Haiti in 1791 (a revolution that was clearly inspired by French egalitarian ideals) and that he found also present in Juan Boves’s pro-Spanish insurrection in Venezuela. Bolívar’s critique of French revolutionary thought was a constant in his entire intellectual life. Already in his Memoria dirigida a los ciudadanos de la Nueva Granada por un caraqueño, o Manifiesto de Cartagena, which he wrote in December 1812, Bolívar dedicated long paragraphs objecting to the supposed teachings of the French revolutionaries. He claimed that the revolutionaries in America had nothing to learn from those

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examples: “We have been having philosophers as leaders, philanthropy in the place of legislation, dialectic rather than tactics, sophists rather than soldiers.” He also criticized what he called the “exaggerated maxims of human rights” that had only served to “destroy social compacts” and drive the new nations into “anarchy” (Bolívar 1976, 9). Similarly, in his Jamaica Letters, Bolívar repudiated the idea of a federal system, which he deemed a “too perfect” solution that demanded “virtues and talents” that were “far superior to the ones we find among us” (69). Also, in the Angostura Congress (1819), he made a claim for the moderation of “excessive demands” and faulted “abstract theories” for promoting the ambition for an “unlimited liberty” (120). Of course, Bolívar’s invectives against the “exaggerated maxims” and “abstract theories” that he related to the French Declaration of Human Rights were shared by a vast generation of politicians and jurists, of conservative origin, in all the American countries. Among American conservatives, in particular, Bolívar’s reasoning was very common. They all tended to challenge the importation of foreign theories, but particularly those related to French revolutionary ideas.10 Their strong repudiation of foreign ideas was thus compatible with the vindication of other authors, more closely linked to the dominant nationalistic discourse.11 In the end, what happened was no surprise. There seemed to be too little room for defending fully local ideals or institutions: it was actually very difficult to propose or discuss political institutions without taking into account proposals and institutions originated beyond the national borders.

Describing the Past Having identified a certain aspect or moment of the past to be discussed, the question is then how to describe that object. In principle, we seem to face again a noncontroversial question: we just need a fair description of the selected object. However, the task immediately reveals itself to be also enormously controversial. The description of the past requires the selection of facts and figures, and also of particular features or expressions of those facts and figures. In order to describe the past we need, first of all, to select what we consider the defining features of that object. Moreover, to properly describe a certain period of the past we need to start making decisions regarding different and enormously complex causal connections. We need to question, for example: Is it really the case that the signature of treatise T “provoked” the popular uprising G? Could it be possibly said that the enactment of document D is “responsible” for the institutional weaknesses that since then characterized society S? Is it right to say that the coming to power of popular leader P “determined” the unity of the inhabitants of country C? To answer these questions, one is required to subscribe causal theories that are basically impossible to verify. However, we tend to talk and write as if those causal connections were obvious: our public discourse—like the public political discourse that was prevalent decades ago—is heavily based on those descriptions about the past, which play a decisive role in our task of persuading the rest about the value of what we affirm. An interesting and relevant illustration, in this respect, comes again from Simon Bolívar and his analysis of the 1811 Venezuelan Constitution. The 1811 Constitution was a particularly significant Constitution, given its pioneering character, its

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Rousseauistic terminology, and its anti-presidentialist profile. Bolívar, however, was a tough opponent of the document from the very beginning. He actually considered the text to be responsible for many of the worst calamities that affected Venezuela after the independence. He stated, “Among the causes that provoked the fall of Venezuela, we should mention, in the first place, the nature of its Constitution, which was so contrary to the interests of the country, as it was favorable to the interests of its enemies” (Bolívar 1976, 14). The claim was obviously exaggerated: the Constitution was basically not in force, and Venezuela’s woes, at the time, seemed to have little to do with the law in force. In any event, the example is attractive because it illustrates the role played by the reconstructions of the past (and thus certain reconstructions of certain causal connections) in actual political disputes (Bolívar wanted, at the time, to make a case in favor of the concentration of powers). Another interesting example comes from Mexico and concerns the rise and fall of the 1824 Constitution. The Constitution was, again, short-lived, but it played a significant role in discussions about present and future politics. For instance, the conservative jurist Lucas Alamán dedicated five heavy volumes—his famous Disertaciones—to discussing Mexico’s history. Through that work, Alamán tried to demonstrate the enormous impact of the past upon the present. And in his reconstruction of Mexico’s political past, the 1824 Constitution played a central role. For him, that document was directly responsible for the period of political instability that followed its enactment. He wondered “what caused this situation of permanent turmoil, these continuous revolutions.” His answer was clear: the origins of that tragedy resided in the 1824 Constitution, which inaugurated a period of legal confusion, putting an end to almost 300 years of political order (Noriega 1972, 351‒52). As in the previously examined example, here we also find a liberal, prestigious Constitution, which was repudiated by a conservative activist, who tried to present the document as the origin—“as the main cause” of all national disgraces. Like other conservative thinkers of the time, Alamán dedicated an important part of his intellectual energies to denouncing the liberal Constitution and proposing a new reading of the legal history of the country. This was, in fact, the main object of the monumental effort expressed by his five-volume work: Alamán tried to demonstrate that the liberal heritage of the country required repudiation, rather than affirmation or continuity. Of course, we also find (politically speaking) opposite cases of liberal authors trying to demonstrate the pernicious character of conservative, stable, or “successful” Constitutions. The most interesting case in this respect is probably the one represented by the Chilean 1833 Constitution. We must recall that the 1833 Constitution had become the regional symbol of political stability: an actual demonstration that legal and political stability were possible, even in the midst of serious social difficulties. The Chilean example suggested, for many, that stability only required the adoption of the appropriate legal tools. The fact is, however, that at least since the mid-nineteenth century, many of the most lucid liberal intellectuals in Chile began to attack the 1833 Constitution. These critics tried to show that the Constitution was actually a failed experiment, even regarding its contribution to stability. Among these critics we find, for example, the noted liberal intellectual José Victorino Lastarria, who became the most important objector to the 1833 Constitution. For him, the Constitution had been a failure in a

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diversity of aspects, including the one that was most praised by its defenders, namely its service to peace. In his words: Is it the case that this politics obtained what it wanted, that it guaranteed order and tranquility forever, putting an end to revolutions and turmoil, and making national freedom possible? . . . For us . . . clear adversaries of this way of doing politics . . . the answer to that question is negative, and we ground our judgments in facts. (Recall) all the conspiracies and tumults . . . the revolutions and battles of 1837, 1850, and 1851; and (all the years in which) our republic has been under state of siege and extraordinary powers . . . which have demonstrated that neither the revolutions nor the disorders have come to an end (in the long period in which the Constitution has been in place). By contrast, what is clear is that it has been necessary to rule without it, by sacrificing the national liberty in order to perpetuate such an erroneous politics . . . the dominant restrictive or absolutist politics has been incapable of maintaining order because that politics itself is a threat to justice . . . the only possible base to tranquility and progress in human societies! Is it possible to think, however, that without those measures and those extraordinary faculties we would have had more disturbances and a more terrible anarchy? Surely no, because . . . liberal politics and the rule of law are the best means for achieving order and the more solid guarantees for security and tranquility (Lastarria 1906, 1:215‒16).12 Another noted liberal, Justo Arteaga Alemparte, reached exactly the same conclusion as his colleague Lastarria. For Arteaga, it was clear that “all the troubles” that affected Chile during the years of the 1833 Constitution were “a consequence of that same Constitution.” For him, the causes of Chile’s stability resided, instead, “in the character and necessities of its inhabitants, and the conditions of its soil, rather than in the 1833 Constitution.” Without that Constitution, he concluded, “We would have had less troubles and more progress” (Arteaga Alemparte 1870, 28‒29). And also “the Constitution has understood how to provoke turmoil; but it has not been able to prevent or overcome it. To make it responsible for the success of the country is . . . absolutely unjust” (31).13 Ultimately all these examples point in the same direction, that is to say, the profound disagreements that existed in the region regarding the effects of constitutionalism on the new independent societies. The creation of new institutions seemed to require, then, a prior agreement regarding how to describe the past, and particularly regarding the actual impact of constitutionalism on the evolution of the local history.

Evaluating the Past Analytically speaking, we need to distinguish between the descriptive and evaluative aspects of a certain phenomenon. Here we are going to concentrate our analysis on the conflicts originating from different evaluations of the same facts. In our analysis, however, it will become clear what we already suggested, namely, the profound

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interrelation that exists between the descriptive and evaluative aspects of a certain phenomenon. A good illustration of how a crucial historical example may be the object of opposite interpretations is the French Revolution and how it was read in the Americas. There are many facts that explain why discussions about the French Revolution created such a heated debate in the region. These factors include, among others, the circulation and impact of French revolutionary texts during the independence wars; the enormous reputation achieved by the French Declaration of Human Rights; the numerous Latin American rebellions (sometimes in favor of the Spanish Crown, sometimes against the colonial domination) that invoked the revolutionary values of liberty, equality, and fraternity; and the many American public figures who were in direct contact with French intellectuals and French politics. The fact is, however, that French political practice was open to too many diverse readings. According to many Americans, the French Revolution symbolized the fight for emancipation and freedom; and the texts produced in that context had to be considered crucial intellectual material, for questioning the dominant political, social, and economic structures. According to many others, the most important and revealing aspect of the French Revolution was the Jacobin period of terror and its promises of chaos, violence, unrestrained passions, and disorganized masses trying to subvert the traditional order. Both readings were, in the end, possible and reasonable. If the first of the two readings—the one that vindicated the emancipatory character of the French Revolution—turned out to be of crucial importance, at the time of the independence revolutions of the Americas (think, for example, about the examples of revolutionary leaders such as Mariano Moreno or Bernardo de Monteagudo), the latter gained importance right after American independence was achieved. At that time, anti-French rhetoric became enormously popular, at least among conservative political thinkers. We can begin our examination with the testimony of the conservative Colombian leader Sergio Arboleda, claiming that “all the incidents of our revolution relate to one principle, which is conducive to one tendency: . . . the idea is the anti-Catholic idea of the French Revolution; and the tendency is that of destroying the moral sentiment of our peoples” (Rodríguez Albarracín 1988, 278). We find a similar approach in the writings of Mariano Ospina Rodríguez and José Eusebio Caro, who were the main authors of the Colombian 1843 Constitution (a Constitution that was then considered the most conservative in the history of the country). In a message that he pronounced before the Colombian Congress in 1842, where he examined the recent history of the country, Ospina faulted the “doctrines of the French philosophers” for New Granada’s political crisis. And he considered that the recent civil war (the so-called “War of the Supremes”) was due to the influence of the existing “Jacobin tendencies” that prevailed among the political elite and also the presence of “institutions that favored anarchy” (González González 1997, 176‒77). Similarly, for the main ideologist of Peruvian conservatism, Bartolomé Herrera, the key for understanding the evils affecting the political life of his country resided in the prevalent Rousseauistic ideology. “Both government and citizens have become slaves of what they call the will of the people, this is to say, government, citizens and the people have become slaves of the will of demagogues.”14 For Juan Ignacio Gorriti,

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one of the most inspired voices among Argentinian conservatives, the refutation of the French revolutionary ideology was an intellectual priority. Gorriti dedicated a good deal of his famous Reflexiones to that goal. “Human societies,” he claimed, are based on “the solid and indestructible natural law,” rather than in abstractions like a “social compact.”15 We find other similar opinions, for instance, in the writings of father Francisco de Paula Castañeda (Lewin 1971, 99). In sum, the point is that many of the most important Latin American conservative thinkers, reflecting upon the new Constitutions, agreed on taking French revolutionary ideology as one of the main targets of their intellectual attacks. For them a necessary connection between those extreme ideologies and the type of social anarchism and political violence that affected the region seemed to exist. This negative evaluation of revolutionary ideas played a crucial role in the early intellectual debates in the Americas. For those thinkers, “winning” that evaluative dispute about the past represented a fundamental condition for ensuring the success of their favored political project in the present.

What Should Be Done with the Past? Do We Need to Eradicate the Past Completely? The identification, description, and evaluation of the past, promoted by most political leaders and publicists in the Americas, was mainly aimed at one objective, namely, the justification and motivation of their present political actions. Discussions about what to do with the past (fundamentally, discussions about how to reform the present situation in light of the past) forced new reflections on certain fundamental issues, including the rhythm or speed of the required changes (should these reforms be gradual or drastic?); their scope (was it necessary to advance localized or ample reforms?); and their depth (should those reforms be structural?) These issues are well illustrated in the debate held in Mexico by Lorenzo Zavala, who advanced quite extreme views about the past (views that related to the radical constitutional model), and Lucas Alamán, who, as we know, dedicated his monumental Historia de México to defending a different interpretation of the history of his country (Aguilar Rivera 2008). According to Zavala, it was not acceptable for the new authorities to pact with the dominant sectors of the Army or the Church, which he identified with the colonial past. For him, it was imperative to promote “a radical break with the past” rather than continuing with a process of slow changes, which could only “perpetuate and exacerbate the existing tensions and the existing instability.” According to Zavala, Mexico required “actions of rupture,” which included “the abolition of all the existing privileges” and at the same time guarantees for the “basic individual rights of all Mexicans” (Fowler 1966, 177). Lucas Alamán developed a completely opposite view. For him, it was necessary to accommodate the new political institutions to the old ones and not the other way around. “Things should be accommodated to the prevailing status quo,” rather than continue deepening the existing divorce between “the written Constitution and the real Constitution, between the formal and the inorganic” (Noriega, 1972, 352).

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Against the claims of his political rival, Alamán emphasized the existing differences and incompatibilities between the traditions coming from the United States and those distinctive of the Mexican Monarchy. For him, it was necessary to go back to the old practices that had distinguished the political life of the country, rather than continue looking for foreign examples to imitate. In polemic with many of his colleagues, the Argentinean Alberdi showed another, different and provocative approach to the past.16 On the one hand, Alberdi did not advocate for a simple and comprehensive compact with the past, but rather for a selective compact that implied both reassuming and leaving apart certain aspects of the recent history. His favored pact included the incorporation of many distinctive aspects of what had been Rosas’s oppressive regime, which his colleagues repudiated. At the same time, this openness toward central features of Rosas’s regime came together with a drastic rejection of other aspects of Argentina’s history. These aspects included, for example, all the democratic ideals that were present in the country since the time of the independence revolution. These were the ideals that, in his view, derived from the old Greek democracy and also from the teachings of Rousseau, which many of his colleagues admired. For Alberdi, both examples were equally and seriously unsatisfactory because of their anti-individualism and the way in which they stressed popular participation in politics. In ancient times, he claimed, “Human persons counted very little in the face of that sacred, almost divine authority, which was called the State.” “They,” he continued, “did not know either the freedom of private life, or freedom of education, or religious freedom” (Alberdi 1920, 2:149). Similarly, Alberdi criticized Rousseau’s views, which he associated with the thought, writings, and practice of Mariano Moreno—the fierce revolutionary ideologist of Argentina’s Independence. “The Social Contract,” he stated, “became the catechism of our revolution, thanks to the influence of Doctor Moreno.” The outcome was a growing process of subordination of the individual to the State (2:137‒38).17 Now, one of the richest Latin American debates about how to deal with the past was the one held between the Chilean Victorino Lastarria and the noted jurist Andrés Bello. Given the importance and fertility of this discussion, we shall herein focus our attention on that dispute. Reflecting upon the past, the liberal Chilean Victorino Lastarria wrote a significant essay on the Spanish colonial legacy, where he referred to the importance of “attacking the evil from its roots,” in alliance with “disinterested patriots, who actually aspire to reform the country” (Lastarria 1868, 9). This reform had to be directed to putting an end to what was, in his opinion, the most significant political problem of the time: the prevalence of a “repressive political organization.” For him, this repressive system had characterized “all our governments, all our parties, in the last 38 years.” This was “a repressive system” that had worked “openly against the goals of the revolution, making political reform impossible” (7). In the face of the existing institutional legacy, Lastarria recommended the adoption of a “radical political reform,” which would preserve all existing individual rights “without restrictions.” The proposed changes included an electoral reform that conceded the right to vote only to literate persons;18 a more powerful Legislative power, organized through a bicameral system; a reorganized Judiciary led by a

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Supreme Court; an Executive power with five years’ mandate and without the right to reelection; and a stronger municipal and provincial organization (Lastarria 1868, 10‒14). A severe critic of the colonial institutions, Lastarria advocated for the eradication of that legacy and assumed that the law could play a fundamental role in that task. His view came to challenge two very common ideas in the area, which were, for him, both clearly mistaken. On the one hand, he wanted to confront the conservative assumption according to which the habits and manners of the Chileans represented a powerful barrier against any desired change. On the other hand, he wanted to challenge those who were skeptical about the transformative powers of the law. For Lastarria, dominant patterns of behavior had, indeed, an impact upon the law, in the same way that the law had an impact upon human behavior. Both these elements (the law, the dominant habits) were in the end capable of enriching the other. In Lastarria’s view, nobody could deny those obvious facts—but those who actually benefited from the old institutional order.19 In his words: [There are those who] believe it indispensable . . . to modify the local customs, assuming that no new arrangement can work unless it finds support in those customs. This belief is correct with respect to social reforms, but it is not so regarding political reforms. [This is a kind of concern] that is usually advanced by conservatives who want to preserve the ancient regime and poor politicians who are interested in maintaining a political monopoly that benefits them. However, this view does not acknowledge the reciprocal influence that exists between the law and customs. . . . It has been said that “liberal institutions are born naturally from the customs of a population where each individual is used to organize his own life and to discipline himself, while the customs of free men are not the mere product of liberal institutions.” The first part of this thesis is obvious, while the second is false. Free customs produce liberal institutions, in the same way that retrograde, corrupt, and decayed institutions produce analogous ones. In a similar way, liberal institutions moderate old customs, and change them, or produce free customs. This is so, because customs are the product of the beliefs of society at a certain time, which can change as a consequence of the rectification of those ideas. And there is no more efficient way to create and impose that rectification, than through the work of the law: this is the influence of the law upon the customs (Lastarria 1906, 2:209‒10) For him, the example of the United States was particularly illuminating in this respect: it clearly demonstrated the law’s capacities to have an impact on the people’s behavior. According to Lastarria, if the American colonies had to wait for the adequate functioning of schools, or the flourishing of culture in order to become truly democratic republics, then reforms would still be waiting their time. “The law by itself is enough . . . for promoting an opinion or creating new customs. . . . We can recognize this fact by merely looking to the way in which [these new nations] have radically changed their opinions and customs, after a brief essay with a political reform. . . . What institutions have done with customs is simply admirable!” (2:210‒11).

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The well-known jurist Andrés Bello was, then, one of the first and surely the most important constitutional thinker in answering Lastarria’s views on the colonial past. Above all, Bello objected to Lastarria’s philosophical approach to the problem, which he found improperly lacking historical support (Jaksic 1997, xlv). Bello felt “repugnancy” (this was the word he used) for Lastarria’s analysis, particularly in the latter’s references to the “profoundly degraded” character of the Chileans, or to the lack of “social virtue” that distinguished Chilean society after so many decades of colonial life. For Bello, those claims were completely false and had been refuted already by the numerous “heroic acts” that were carried out by Chileans in all those years. Quoting Sismondi, he stated: Those who want to propagate new ideas have fallen in serious mistakes. Being aware of the kinds of evils they wanted to destroy, they have formed false ideas about the good they wanted to create. They believed they discovered principles, when they only had paradoxes. The social science [that humanity needs] requires renewed, more serious and more profound studies (Bello 1997, 19:157). Bello’s disagreements with Lastarria’s main thesis were still more profound. In particular, he disputed the way in which Lastarria reconstructed and interpreted Chile’s political life (and, more generally, the political life of the Americas). For him, Lastarria had adopted a too extreme and radical position against the colonial legacy, which was useless both to understand the present situation and to begin its reconstruction. According to Bello, traditions had to be closely studied and finally recovered, rather than simply rejected. Bello in this way was opposed to those who developed a “philosophy of history” that was, in the end, lacking in basic historical information (Jaksic 1997, xlv). In his view, “the picture that Lastarria is presenting to us about the vices and abuses of the Spanish colonial regime finds support in undoubtedly authentic documents. . . . However, it is also clear that the picture is obscured by many shadows” (Bello 1957, 19:164).20 The intense polemic between Bello and Lastarria also reached Jacinto Chacón. Chacón was the author of an important book—the Bosquejo histórico de la constitución del gobierno de Chile durante el primer período de la revolución, where he advanced a strong defense of Lastarria’s view. In particular, Chacón supported Lastarria in his idea of approaching the Constitution with the help of abstract theoretical principles. Not surprisingly, then, Bello decided to charge against Chacón by using the same arguments that he had previously presented against Lastarria. In his view, Chacón committed the same mistake as his predecessor. Both Chacón and Lastarria appeared to be blind concerning the most significant aspects of their country’s history. They were both wrongly propelled by the idea of analyzing the past from a philosophical viewpoint, neglecting the centrality of a historical approach. In the rather naive “progressivism” of the author of the Bosquejo . . . the backwardness of local societies is explained by the legacy of Spanish colonialism, the predominance of the Church, the enormous weight of a static tradition. If we modify these institutions, inspiring ourselves with the most advanced

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countries in the world—principally Anglo-Saxon countries, which are in the forefront of material progress and political freedom—we will transform the traditional structure. Imported customs and laws will provide a powerful panacea. (Jaksic 1997, lvii‒lviii) The paragraph reflected well what was then at stake: it was a dispute about the past, which everybody recognized as crucial for thinking and deciding about the future. In sum, in the previous pages, we examined two opposite positions about how to deal with the past. On the one hand, we found what came to be the triumphant project in most of the continent, which we could summarize with the idea of a “compact with the past.” On the other hand, we found the defeated project, which is the one that proposed to eliminate the remnants of the past “from its very roots.” Of course, this division is in part artificial—in the end, it was impossible not to “pact with the past,” in one or another way, in the same form that the aspiration of eliminating the past “from it very roots” was obviously excessively ambitious.

Continuity and Rupture in the Mid-Nineteenth Century: Two Models of Democracy and Constitutionalism After the consolidation of the independence, disputes about the past acquired a new character. In effect, by the mid-nineteenth century, the revised polemic regarding how to deal with the basic rules established during the colonial period had lost most of its importance. Now the main public debates seemed to be more concentrated on the future than on the past: the question was now how to ensure the progress of these new independent nations. However, as we shall see, disputes about progress also required engaging in reflections about the past. In particular, legal and political thinkers disagreed regarding how to treat the established political and economic order. Had it to be considered a condition or an obstacle to growth? More specifically, they disagreed regarding how to accommodate the values of progress and order. Gradually, this new dispute about the past favored the development of two very different responses. Supporters of the liberal-conservative agreement subscribed to a first response that put great emphasis on the idea of continuity. For them, progress required the preservation of fundamental aspects of the old, established political and economic order. Consequently, they advised containing the growing demands for social and economic change through the (transient) restriction of political liberties. Opponents of the liberal-conservative agreement, instead, subscribed to a different approach, based on the idea of rupture. For them, progress required abandoning fundamental aspects of the established political and economic order. Consequently, they proposed opening the public space, freeing the political energies that were then contained, which would undoubtedly generate social and economic changes. Ultimately, these contrasting views referred to the existence of opposite understandings of democracy and constitutionalism.21 Proponents of the liberal-conservative agreement and their rivals disagreed regarding how to organize the structural aspects of public life in this new, postcolonial era.

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Herein, we shall briefly contrast these two opposite and widely shared views, which have been enormously influential in the region during its “founding period”—the time when the basic rules of the game were being settled. For didactic reasons, we shall summarize the first approach with the formula restricted political liberties-plentiful economic liberties, and the second one with the alternative formula of expanded political liberties-restricted economic liberties.

Limited Democracy in Alberdi, Bello, and Samper: The Model of “Restricted Political Liberties” and “Plentiful Civil Liberties” In order to reconstruct the first view, we shall base our analysis on the testimonies of the Argentinean Juan Bautista Alberdi, the Venezuelan Andrés Bello, and the Colombian José María Samper, three jurists who exercised an enormous influence in Latin America’s constitutional discussions. We choose them because they came to represent the most sophisticated intellectual expression of the liberal-conservative way of thinking about the Constitution. Alberdi’s position on the topic is, as usual, particularly interesting, and we can learn about it by reviewing his harsh polemic with Domingo Sarmiento. The idea that we suggest is the following: even though Alberdi and Sarmiento maintained a heated dispute on substantive legal and political issues, the fact is that they shared a very similar view about constitutionalism and democracy. We find traces of this shared view, for instance, in Alberdi’s first letter from Quillota, which was written at the beginning of his dispute with Sarmiento. In that letter, Alberdi illuminated some of the key elements that characterized the liberal-conservative agreement. And he made use of a concept that was to gain force in the history of Latin American legal thinking, namely the concept of imperfect liberty. In his words: It is a crime to continue delaying the enactment of a Constitution: a betrayal to the Republic. We need to proceed to organize the Republic, no matter the caudillos, the unitarios, the federalists, and everything that is still included in our disgraceful Republic: they are all part of the same family. Any exclusion would affect us all: it would imply division and anarchy. You think that it is impossible to have a perfect liberty if we also include the bad guys? Well, then you should know that there is no alternative but to have an imperfect liberty. . . . That would be the only way of obtaining perfect liberty. If you want to build up this Hispanic-Argentine ex colony, this is to say this motherland and not another, then you have to begin with imperfect liberty, like the people that have to exercise that liberty. You cannot aspire having the liberty of the North American republics, which our peoples could only obtain after they have the same wealth, culture, or level of progress than the peoples and men of New York, Boston, Philadelphia, etc. (Alberdi 1886, 16‒17) The idea was, then, that the new nations were living in a transitional period, from disorganized, anarchical political systems to more organized ones—and were going to live in transition for a while. This is why Alberdi suggested accepting the prevalent and

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imperfect conditions of liberty for some time. That would mainly imply an acceptance of restrictions on political rights. Another revealing passage of the dispute between Alberdi and Sarmiento concerned their different views about authority and stability. Notably, the two Argentinian intellectuals had important differences on these subjects but, as Alberdi made clear once again, their differences could not hide their substantive agreements. As a consequence, Alberdi repeatedly demonstrated that Sarmiento was contradicting what he himself had written in previous works, and particularly in Facundo (perhaps Sarmiento’s main work, which Alberdi admitted to having read with great admiration).22 This is what Alberdi stated in the third of his Letters from Quillota: If the caudillo is the necessary and useful expression of the pastoral life, as it exists nowadays, then in order to put an end to it there is no alternative (according to the system that was designed in the Facundo) but to put an end to the desert, the distances, the material isolation, the lack of industrial development, which have, as a normal and logical consequence, the existence of the caudillos. This is the reasoned political analysis: the one that begins from the impartial study of the soil, men, society. . . . [This is against] the politics of the liberal party that, out of excitement, tried to suddenly suppress the caudillo system, either by brutally imposing the most advanced institutions from Europe, nineteenth century, or by executing or suppressing the caudillos. Against the irresponsible exercise of power came the exaggerated liberty, which tried to replace the despotism of backwardness with the despotism of progress: to replace violence with violence. (Alberdi 1886, 60‒61) In his third Letter from Quillota, Alberdi maintained that one of the main virtues of the Facundo was its capacity to get into the roots of “Argentina’s [main political] question.” In that book, Sarmiento made an inquiry into the construction of authority in Argentina and reached conclusions that Alberdi now wanted to retrieve. Inspired by Sarmiento’s own reflections, Alberdi advanced some crucial considerations about the topic. He stated: “Authority can be neither founded in discussion nor in resistance. Authority mainly presupposes and requires obedience. . . . Authority is founded in the non-deliberate approval that a particular nation gives to a pervasive fact. Where you have deliberation and will, you do not have authority” (Alberdi 1886: 64‒65, emphasis in original). This is a remarkable definition because it manifests a very peculiar understanding of democracy (which, we could add, profoundly contrasts with some of our more basic shared agreements).23 Alberdi then summarized his view on democracy and the Constitution, which he assumed derived from ideas that Sarmiento, as most members of his generation, had reasons to subscribe. He stated, “I do not share [the fanatic and inexperienced position] that it is necessary to freely distribute political freedom.” By contrast, he deemed that “economic freedoms,” including the freedoms to “buy, sell, work, navigate, trade, travel, and undertake any industry,” had to be distributed unrestrictedly among “native and foreigners.”24 In other words, Alberdi, who, as we know, always assumed the temporal limits of Constitutions, considered that his generation had to accept the idea of living under a system of imperfect liberties, which is to say under a system of

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limited democracy. Theirs was not the time of expansive political liberties: political liberties still had to wait until the introduction of new changes in external conditions. Alberdi’s view on the subject, which in part summarized and in part refined the existing agreements between liberals and conservatives in Argentina, was similar to the one that we find in the writings of other legal thinkers of the region during those years. In particular, Alberdi’s position was substantially similar to the one expressed by the noted Venezuelan jurist Andrés Bello. Working for the Chilean government in the drafting of a Civil Code, Bello maintained that the people were less interested in the preservation of their political liberty than in the preservation of their civil rights. As a consequence, he believed, governments should not feel in a hurry to distribute new political rights: it was much more reasonable to concentrate the public energies, as he himself was doing, in expanding economic liberties and ensuring firm guarantees to property rights. It is worth noting that Bello’s claim about the people’s main interests was not merely descriptive. Rather, it had clear normative overtones. In his opinion, “we must recognize an important truth: that people are less zealous about the conservation of their political liberties than about the conservation of their civil rights. The ability to participate in public affairs is infinitely less important than the ability to secure life. . . . Rare is the man who is so free of selfishness that he will prefer the exercise of political rights granted by the Constitution, to the care and conservation of his own interests.” For that reason, “he would be (less) hurt when arbitrarily deprived of the right to vote than when violently deprived of his property” (Jaksic 2001, 212). Surprisingly or not, we find an almost identical view in the writings of the Colombian liberal intellectual José María Samper, who would then become, together with the conservative intellectual Miguel Antonio Caro, one of the authors of the 1886 Constitution. Samper stated: The Colombian people wanted a government and an organization capable of guaranteeing them national unity and peace, a just liberty, dignity, independence for their religion and Church . . . a government that recognized and made effective diverse and necessary public liberties, and limited— but actual and effective—political and civil rights; capable of suppressing anarchy and constant disorder, which characterize all our institutions since 1858 . . . which suppressed the constitutional and irresponsible despotism of our legislative bodies . . . which returned its liberty to the right of suffrage. (Valencia Villa 1992, 154‒55) In other words, Samper, like Alberdi and Bello, made an effort to interpret the will of the sovereign people and concluded that the vast majority of citizens in his country preferred order and stability (against disorder and anarchy), rather than ambitious political rights. It is not by chance that these three great thinkers—Alberdi, Bello, and Samper— coincided in a common diagnosis at the time of imagining the institutional future of their own countries. For the three of them, the coming years were going to be necessarily characterized by restricted political rights and ample economic liberties. In actual practice, that position required the establishment of strong protections to property

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rights, which in fact implied the provision of strong protections to the prevalent—and fundamentally unjust—economic order. In other words, in the context of societies that were deeply marked by inequalities in the distribution of resources, the entrenchment of property rights signified the entrenchment of existing injustices. Clearly, the decision to protect the existing economic order came together with another important institutional choice, which was the establishment of strong restrictions to majoritarian politics. In fact, the three legal thinkers, namely Alberdi, Bello, and Samper, coincided in presenting these political restrictions as fundamental guarantees for the preservation of the social order.25 More specifically, and as a consequence of those types of assumptions, most Latin American countries established severe restrictions to political rights.26

Expanded Democracy in Otero, Murillo Toro, and Bilbao: The Model of “Expanded Political Liberties” and “Limited Property Rights” In what follows we shall briefly examine the second, alternative understanding of democracy and constitutionalism, which appeared as a reaction to the dominant, liberal-conservative model. We shall do so by exploring three versions of this more substantive approach. The first one, which we shall associate with the Mexican Mariano Otero, represents a radicalized version of liberalism, particularly concerned with the expansion of rights; the second one, which we shall associate with the Colombian Murillo Toro, represents an egalitarian view, which places a special emphasis on the value of economic equality as a condition for political democracy; and the third one, which we shall relate to the Chilean Francisco Bilbao, offers the most solid view of political radicalism, which included an extreme critique of the representative system. In any case, it should be clear that the differences and tensions between these two understandings of democracy and the Constitution were present in Latin America at least since the independence. And also that the differences grew bigger since the consolidation of the liberal-conservative order. For the critics of the dominant legal order, it then became clearer that the idea of having an authoritarian regime adapted to the new language of constitutionalism, the feasible republic, was not only a bad solution but also a part of the problem—a cause of political instability and violence, rather than a proper response to it. In addition, we need to recognize that the anti-authoritarian and anti-presidentialist movement that grew in Latin America since the independence years was not merely a reactive movement, localized in time, but rather an expression of a different understanding of politics. Behind the anti-Bolívarian movement that grew during the independence period, or the early proposals of the Artiguismo in the River Plate area, or the initiatives of the Society for Equality in Chile at the mid-nineteenth century, or the extreme federalism of New Granada’s liberals, or the fight against authoritarianism and centralism of the Mexican radicals, one can find a different understanding of democracy and constitutionalism, which we summarized in the ideas of expanded political liberties and limited property rights. Let us focus now on our three selected examples. A member of the Constitutional Convention between 1842 and 1846, Mariano Otero offered numerous examples of his legal approach, which showed him always to be a liberal reformist, who was moderate in politics, but at the same time radical in

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the defense of liberal principles. Very few Latin American thinkers can exhibit such a consistent defense of liberal ideals. In effect, during his short but intense legislative life (he died of cholera at the age of 33), Otero advanced several initiatives trying to favor the political expression of the Mexican people. First of all, he proposed a less corrupt, more representative and inclusive electoral system, which would also be able to ensure the presence of minority voices. He claimed, “National representation has to offer the image of society, like in a daguerreotype” (Otero 1967, 26).27 He also defended secularism, proposed a new federalist model, judicial independence, a jury system, an ample scheme of popular petitions, a different prison system inspired by the teachings of Bentham, the abolition of the death penalty, and stronger protections to individual rights.28 In fact, Otero is currently recognized (together with Crescencio Rejón) to be one of the main intellectual creators of the institution of amparo, which he introduced in his famous voto particular that he presented at the 1842 Constitutional Convention—a time when he exposed his opposition to the then dominant centralist and authoritarian Constitution.29 Otero also proposed a different model of judicial review, one of a political character (which recognized the same antecedents in the Seven Laws of 1836 and then with the Supreme Conservative Power), and also in the regional context. According to his proposal, “every state law that was against the Constitution or the general laws shall be declared null by Congress” (Otero 1967, 335). These were typically liberal initiatives, but also an expression of the consistency of his principles. However, Otero made clear that he was ready to go far beyond many of his colleagues, who used to invoke the formalities of legal liberalism in order to ensure protection only to members of the elite. Otero’s agenda reached many topics that transcended the traditional liberal position. Those topics included a special concern for the “material” basis of democracy and, more particularly, the right to property. In his words, what was needed was “a general change, and that change has to begin from the material relations of society” (Otero 1967, 59). In that respect, Otero proposed the creation of a republic of small proprietors, recognizing that big property had “created despotism in Asia,” “feudalism” in Europe, and the “aristocracies of antiquity” (52‒53). For that purpose, he proposed the redistribution of property from the Church and from the Mexican aristocracy, and also the redistribution of all unproductive lands. In line with that view, he was also one of the few legislators who objected to the idea of using property as a condition for becoming a member of the Senate.30 Probably the most lucid expression of this second model, characterized by expanded political liberties and limited property rights, comes from the Colombian politician Manuel Murillo Toro. We know about Murillo’s ideas both from his actions (Murillo was president of his country on two occasions and also Minister of Finance), and from his writings, which include a noted polemic with the Manchesterian liberals that were then so influential in his country.31 Murillo had the chance to advance some of these economic proposals during his time as a minister of finance in the government of General López. One important part of his program consisted in the establishment of significant limits to the accumulation of land in the same hands. “Territorial property,” he claimed, was the “permanent and indubitable cause of social inequality, this is to say, of the systematic exploitation of the big numbers by the small numbers” (Murillo Toro 1979, 72).32 Although he finally

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did not manage to fully apply his economic program, Murillo made clear that his radical proposals were not merely speculative: those egalitarian reforms figured at the center of his agenda as a public officer. It is important to acknowledge that, for Murillo, the reorganization of the land was not only a way of limiting the economic and political dominion of the landowners but also a necessary requirement for ensuring the actual liberty of voters. In Murillo’s words: “What is the meaning of universal and direct suffrage . . . in a society where [most of the voters] have their basic needs unsatisfied and, for that reason, depend on the will of [a few]?” (Murillo 1979, 69). Hence, Murillo appeared as one of the few American political thinkers who established a close link between economic equality and political democracy. Going beyond typically narrow liberals’ concerns, Murillo Toro considered that “the independence of individuals and their education” could never be obtained without previously guaranteeing the subsistence of each (70).33 If Otero was the champion of individual liberties, and Murillo Toro the main advocate of economic independence, the Chilean Francisco Bilbao was the activist who presented the most articulated (and radical) proposal for reforming the political system. In fact, Bilbao derived from abstract egalitarian principles a complete set of institutional reforms, which began with a Rousseauistic critique of the representative system and the delegation of authority in general. We shall explore his proposals in some detail, as a way of approaching one of the most complete and consistent versions of the egalitarian model. In his significant work El gobierno de la libertad, which was published in 1855 from his exile in Lima, Bilbao presented a profound proposal for constitutional change, which was openly inspired by the Jacobin Constitution of 1793 in France. This Constitution was, in his opinion, the “only one that deserves to be remembered” (Bilbao 1886, 278).34 From a profound confidence in the benefits of collective action, he also proposed “the abolition of delegation, the abolition of the presidency, the abolition of the Army, the suppression of the fueros” (Bilbao 1866, 279). He complained about the character of most of the Constitutions of his time: “All Constitutions,” he claimed, “recognize the sovereignty of the people, but they immediately add that, given the practical impossibility of exercising it [through direct democracy], or the people’s incapacity to exercise it, the people were obliged to delegate it” (246). Confronting this view, he wondered: “Do we need to delegate sovereignty? Do we need to delegate our liberty? If this were true, I would prefer abandoning the idea of sovereignty and affirming the legitimacy of despotism, rather than deceive the true sovereign, transforming it into a slave” (246). And he concluded: “To delegate means to transmit, to renounce, to abdicate sovereignty. . . . He who delegates . . . becomes a machine or a slave. . . . We do not have the right to delegate our sovereignty. We have the duty to be immediately, permanently, and directly sovereign” (246). “Delegation,” he proclaimed, “is slavery disguised as sovereignty” (247). In accordance with these principles, Bilbao’s proposed Constitution instituted a peculiar form of political representation. Bilbao wanted to challenge a political system where representatives “do what they want: legislate, adjudicate, execute, becoming the true sovereigns” (247). For him, if the people were not given a chance “to discuss, deliberate and vote what the law should be,” then the whole idea of citizens as

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legislators became false. Trying to give sense to the idea of the “sovereignty of the people,” he proposed a representative system where representatives received mandatory instructions from the people and acted as mere “agents” or “commissioners” of the latter (247).35

A Few Final Comments At this point, we could derive some comments and conclusions from the previous pages. In the first place, it seems clear that the dispute about the past played an absolutely crucial role in the “founding period” of Latin American constitutionalism. It seems remarkable, in that respect, the level of reflection, and also the frequent use and abuse of arguments about the past. It seems also clear that the importance of these discussions about the past was related not only to the intrinsic value of that discussion but also to the actual influence of the past upon the present. Everybody seemed to be aware of the need to discuss what to do with the received legal legacy. In addition, it is worth highlighting the difficulties that most activists and legal thinkers found for advancing in this discussion. Clearly, the topics under discussion were numerous and difficult, and were related to issues of enormous importance, including discussions about democracy and the Constitution. In any case, however, the level of disagreements that remained, after so many years of intense discussion on the topic, is surprising. Finally, we could mention that many of those original disagreements are still present in contemporary discussions: contemporary constitutional debates seem to still be deeply marked by references to the country’s legal traditions and discrepancies about how to recover—and up to what to point—to recover those traditions.

5

The Crisis of the Postcolonial Constitutional Model Positivism and Revolution at the Beginning of the New Century

Ruptures and Continuities A new international order began to emerge from 1880 onward, which allowed most Latin American countries to strengthen their economies in alliance with foreign economies and as exporters of primary goods. This was the time of what Halperín Donghi defined as “a new colonial compact.” This new compact transformed Latin American economies, which began to export primary goods to the new centers of the industrial economy and articles of consumption to the metropolitan areas. At the same time, these peripheral economies began to consume industrial goods produced in the central economies (Halperín Donghi 2007, 222). The new economic order replaced the old “colonial pact” (which Latin American societies had with the Spanish Crown) with a different one that had England and its satellite countries as the dominant economies (Halperín Donghi 2007, ch. 4). This new arrangement permitted countries in the region to accelerate their economic growth, in the same way that it allowed England to gain an enormous influence in the entire area, mainly through the creation of the basic infrastructure required for the exportation of primary goods—from railroads, to sugarcane companies, to meat processing plants, to silos for the cereals (289). These economic changes had an extraordinary impact on national and international legal politics, with the appearance and consolidations of (so-called) regimes of “order and progress.” The new regimes tried to speed up economic growth and, for that purpose, attempted to impose discipline in countries marked by growing social conflicts. As a consequence, a new type of authoritarian regime emerged; the regimes were the final product of a strong liberal-conservative alliance (liberals pushing for “progress,” conservatives pushing for “order”). These alliances were, in most cases, enormously successful, at least in relation to their goals of “order and progress.” The leaders of these processes included figures such as General Roca in Argentina, Da Fonseca and the republicans in Brazil, Núñez in Colombia, Rufino Barrios in Guatemala, Porfirio Díaz in México, Latorre in Uruguay, and Guzmán Blanco in Venezuela.

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The period of “order and progress” marked a “before and after” in the history of Latin America. At the end of this era most Latin American societies were richer, stronger politically, and more integrated geographically. At the same time, these new societies were politically more active. They were composed of numerous and demanding middle and lower classes. These new demands were directed toward stronger States, who seemed still unwilling to change the existing inequalities. In this chapter we shall study the constitutional impact of this double process, which included a first phase of ascent and consolidation of the model of “order and progress” and a second phase of fracture and growing criticism of that same model. In our examination of the first phase, we shall concentrate our attention on the main intellectual works produced in support of these regimes of “order and progress,” regimes that were characterized by their exclusionary legal systems, the concentration of powers in the Executive, limited political rights, and the extreme use of the State’s coercive powers. In exploring this intellectual production, we shall pay particular attention to the growth of “positivism.” As we shall see, “positivism” became, at one point, the common language among the main public intellectuals of the time. Most positivists supported, in one way or another, new dominant political and economic tendencies, and at the same time they rejected the elements of Jacobinism, extremism, utopianism, and political radicalism that they associated with their opponents’ works. Then, we shall examine some of the alternatives that grew, first as a reaction, and then as a form of resistance, against the model of “order and progress.” We shall make reference to three of the main political branches that marked this period: a radicalized branch (agrarian, indigenist, socialist); a democratic branch (mainly, for the cases of Uruguay and Argentina); and finally a revolutionary branch (Mexico) to which we shall dedicate more space, given its importance and influence in the renovation of the region’s constitutional life (Halperín Donghi 2007, 325).1

Positivism, Order, and Progress The type of fusion constitutionalism that was born in Latin America in the mid-nineteenth century became much stronger by the end of the century and consolidated its influence at the very beginning of the twentieth century. What seemed to be in place was a new historical phase, characterized by political stability and economic growth. Then, new governments of an authoritarian character prevailed— governments that first of all tried to discipline societies that seemed to be every day more open to conflict. These conflicting societies appeared to disturb what had seemed to be, at least until then, a peaceful path toward economic development. In economic terms, Latin American countries had adopted, over decades, extreme forms of economic liberalism, which were defended through Spencerian arguments of enormous influence during those years. It was clear, however, that the proclaimed anti-Statism of the defenders of “law and order” was little more than an ideological masquerade: far from promoting State abstentionism, the new governments were noted for their brutal use of State coercion, which was employed to install and stabilize the basis of the new economic order.

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We find an interesting example of this new way of thinking in the testimony of General Julio Argentino Roca, one of the paradigmatic governors of the period. In a well-known discourse, pronounced before the national Congress at the time of his assuming his presidency (October 12, 1880), Roca made clear that his government would have two main objectives, namely, to strengthen the Army and to improve the circulation of goods within the country (Halperín Donghi 1980, 437). Roca wanted to ensure that what was produced in the interior of the country arrived at Buenos Aires’ harbor without problems—the harbor was Argentina’s main door to the foreign world. This is why he reserved such a central role to the Army. The Army had to “ensure the complete subjection of Indians from Patagonia and Chaco,” freeing those “vast territories from their traditional enemies” and offering “actual guarantees to life and property” to those who moved to the interior of the country, in order to exploit the rich natural resources of Argentina (437). Roca was proud of the repressive place that his government reserved for the Army. “I want to state it clearly from this high position, so the entire Republic can hear what I am saying . . . I will employ all the constitutional means at the Executive’s disposal in order to avoid, suffocate and repress every attempt to question the public order.” He also announced that he would use “all the repressive power of the Nation” every time that a “subversive movement” tried to challenge the government or prevent the work of the national authorities (438). One of the main theoretical defenses of these governments of order and progress came from positivist thinkers and the notion of a “scientific politics,” which was promoted in Europe by authors such as Henri de Saint-Simon and Augusto Comte (Zea 1970). The positivist ideology proposed a technocratic alternative, through which an enlightened elite would ensure social peace and lead the way to economic progress, even through the use of authoritarian means (August Comte, for example, celebrated the coup of Louise Napoleon, in 1851, in the same way that representatives of his thought, in Latin America, would celebrate the coming to power of authoritarian governments). In what follows, we shall briefly review some of the main expressions of Latin American positivism. We shall concentrate our survey on a few paradigmatic cases, including those of Mexico, Venezuela, and Brazil.2

México: Justo Sierra and Emilio Rabasa The two most important examples of Mexican positivism appear in the work of Justo Sierra and Emilio Rabasa, which we are going to briefly examine.3 Justo Sierra had been engaged in politics since his youth. At an early age he took part in a rebel movement against President Sebastián Lerdo de Tejada. During his youth and not surprisingly given this antecedent, he began to collaborate with Porfirio Díaz after the latter’s arrival into power. From the newspaper La Libertad, which he directed, Justo Sierra provided intellectual support to the new administration [which financed his publication]. Porfirio Díaz was convinced that good “friends” of “strong governments” had to work hand in hand with public authorities for the diffusion of the government’s projects or “truths” (Cossío Villegas 1957, 20). As a representative of positivism, and in his role as main publicist of the Porfiriato, Justo Sierra, like other members of his generation, began to advocate for economic progress and social order: “Positive progress,” he claimed, “requires the normal

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development of society, this is to say, it requires order” (Cossío Villegas 1957, 27). Two other requisites seemed to be also indispensable for achieving progress, namely “railroads and population” (28). Also, in his well-known book Evolución Política del Pueblo Mexicano, Justo Sierra gave some additional details about his views on order, freedom, and progress. In his words: A dictatorship led by a progressive man, who at the same time administers public revenues in an honest and intelligent manner, tends to be clearly socially beneficial . . . because they ensure peace and work. . . . In theory, they may be detestable, but theories belong to the history of political thought, not to political history, which can only generalize scientifically, from facts. Dictatorship becomes a calamity, instead, when it impairs justice, creates disorder, and affects peace, which is what happened with the Santanista dictatorship. (Sierra 1940, 251) The Santanista period appeared, for him, as the main counterexample of his desired model of progress. Justo Sierra and his allies presented harsh criticisms against the previous political era and contrasted that example of extreme arbitrariness with the scientific novelties of the new times. This was also the conclusion that Sierra’s group presented in the newspaper La Libertad. They stated that new leaders “guided by science . . . must repudiate half a Century of revolutions and anarchy, they must reconcile the parties that are in conflict, and strengthen the government so as to satisfy the needs of the industrial era” (Hale 1986, 388).4 Emilio Rabasa’s political views were fundamentally similar to those of Justo Sierra both in their content and in their political orientation. As a noted jurist, he provided an important service to the justification of Porfirio Díaz’s regime. Rabasa’s legal defense of the Porfiriato began with a profound critique of the 1857 Constitution. For him, that important document combined two evils, namely abstraction and utopianism, which he contrasted with the type of oligarchic enlightenment that the Porfiriato promoted (Rabasa 1912). He believed that those defects explained why the 1857 Constitution became a failed document. In his words: The 1857 Constitution has never been followed in its attempts to organize the public powers because, in case of being followed, it would have made political stability impossible. A government, by contrast—no matter how good or bad it is—is the first and necessary condition for the [permanence of society] . . . Juárez, Lerdo de Tejada, General Díaz preferred to ensure (political stability) rather than follow the Constitution. And they were right in doing so . . . [And Porfirio Díaz] was also right . . . when he declared it impossible to ensure the equilibrium of powers fixed by the Constitution. (Cossío Villegas 1957, 167‒68) Taking into account these kinds of criticisms, both Sierra and Rabasa proposed, in the face of the old Constitution, the introduction of new and ample reforms (and they actually took active part in the introduction of some of those changes). In these and other aspects, their work became crucial to the consolidation and legitimation of

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Porfirio Díaz’s regime: Sierra, at the very beginning of the Porfiriato; Rabasa, at its very end (Cossío Villegas 1957).5 Rabasa, in particular, played a fundamental role in the process of constitutional reform. According to Silva Herzog, Rabasa would be the most relevant legal nexus between the Porfiriato and the revolutionary regime that would follow it and actually put an end to the Porfiriato. In his words, “Rabasa’s proposal for institutional change would become the bridge between the Porfiriato and the revolution. The 1917 Constitution is, in this respect, the perfect synthesis: the revolutionary ideology through the methods of the Porfiriato” (Silva Herzog 1990, 295). Rabasa proposed a complete program of changes,6 which Silva Herzog summarized in the following way: Do not rule against nature. . . . Reconstruct the institutional basis of presidentialism, make his election direct so as to strengthen his representative character, fortify his veto powers, limit his responsibility, weaken Congress by dividing it into two chambers, limit its capacities by allowing only one period of sessions. (Silva Herzog 1990, 292) Most significantly, the proposed reforms included numerous changes directed at strengthening the capacities and powers of the president. In addition, they incorporated limitations to the freedom of the press and restrictions in the suffrage (for Rabasa, without such a reform, all other reforms would become useless). Finally, the new Constitution would incorporate some of his ideas. According to an advocate of Rabasa’s work, the new document adopted some of his views “related to . . . the veto powers, the appointment of magistrates, the interpretation of article 14 (about the non-retroactivity of laws), etc. (which) were crucial for correcting features of (the Constitution) which were not in tune with reality, and which, after the adoption of Rabasa’s proposed reforms, began to work in favor of the national progress” (Lascurain 1956, 69).

Venezuela: Vallenilla Lanz We find another relevant example of the influence of positivism in Latin America in the well-known work Cesarismo democrático, written by the Venezuelan author Laureano Vallenilla Lanz (Vallenilla Lanz 1919). Vallenilla Lanz, like his Mexican colleagues, criticized the extremism and idealism that characterized the writings of some of his predecessors. He objected to the “abstract principles of Jacobinism,” which he related to failed Constitutions of improbable duration. At the same time, he vindicated the role of Venezuelan caudillos who learned to act as Cesar—caudillos that were able to understand the “psychology of our popular masses” (Hale 1986, 413). Vallenilla characterized the idea of “democratic Cesarism” by making reference to a situation where every person is equally subordinated to the country’s main leader (a situation of “great collective equality,” as he described it). For him, “there is no stable government without a people backing the government, a people that feel and proceed like the leader” (Vallenilla Lanz 1919, 203). In Venezuela, the main political antecedent of that kind of Cesarism was Simon Bolívar. Vallenilla praised Bolívar, first, because he recognized—better than most of his peers—that the “right to sovereignty” was nothing but “each country’s right to

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rule by itself according to its own tradition, temperament, history” (Vallenilla Lanz 1919, 218). In addition, Bolívar would have properly understood that, in order to rule in Latin American, the new countries needed a different type of democracy, characterized by a strong government—a government that was capable of disciplining society for the collective benefit. Bolívar’s mistake, if any, would have been his incapacity to align the masses behind himself. For Vallenilla, Bolívar’s example exercised remarkable influence over his successors, and particularly over two of them. The first one was the caudillo José Antonio Páez, who Vallenilla presented as “the only man capable of containing, through his authority and prestige, the hordes”—the man coming from the llanos.7 The second was Dictator Juan Vicente Gómez, who ruled Venezuela for twenty-seven years, between 1908 and 1935. Gómez is described as the “Magistrate who was necessary for these democracies, because he managed to put in practice Bolívar’s old apothegm according to which American States require the protection of paternal governments, capable of curing the wounds of war and despotism” (in Pereira Larraín 1980, 30). The case of Vallenilla Lanz recognizes strong parallels with those of the Mexicans Justo Sierra and Rabasa. Vallenilla Lanz’s work can be mainly read as an attempt to justify the authoritarian government of General Gómez, with whom he worked during several years, as a Member of Parliament, as the president of the Legislature, and most important of all, as a journalist for the newspaper El Nuevo Diario, from where he developed a close defense of Gómez´s ferocious dictatorship.

Brazil: The Apostolado Positivista and Rui Barbosa In Brazil, positivist ideology had Luis Pereira Barreto as one of its first defenders and propagandists. Pereira Barreto was one of Brazil’s main critics of liberalism and Catholicism, two doctrines that were enormously influential in his country at the time. For Barreto, only members of an exclusive elite could accede to the most sophisticated and advanced ideas, which in the end justified why they could rule over the rest (Paixao 2000). Brazilian positivism achieved a particularly relevant place within the Brazilian Army and, more specifically, within the Military School of Rio de Janeiro, particularly through the teachings of a military officer, Benjamín Constant, a follower of Auguste Comte’s ideas. Within certain circles, positivism was seen as a Church, as the new religion for humanity—a cult that even included a temple, where the principles of the new faith were venerated. Within this more extreme and orthodox version of positivism, the work of Raimundo Teixeira Mendes8 and his brother-in-law Miguel Lemos was set apart from the rest. Together, they worked for the proclamation of the republic, the (gradual) abolition of slavery (Buarque 1972, 290), some inclusive social reforms, and the separation of Church and State. Those reforms, they assumed, were necessary for Brazil’s development. Even though they defended the adoption of gradual changes, they both considered that, on occasion, it was justified to impose those changes “from above,” even through a military coup. It is not surprising, then, that in the end, both of them—members of what was called the Apostolado Positivista in Brazil—backed the instauration of a “republican dictatorship” in their country and provided decisive intellectual support to Benjamin Constant’s armed insurrection in 1889; the insurrection

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ended with the proclamation of Brazil as a Republic (Buarque 1972, 293). Mendes and Lemos offered Constant a complete political program, where they defended laicism, adopted a concentrated political system, and a weak legislature (which was an attempt to weaken the power of the fazendeiros—representatives of the coffee interests—in relation to the interests of the industrial sectors). This is what positivists claimed, through their program: Our constitution should combine the most absolute freedom with a principle of authority. That combination could be achieved by ensuring: (a) the perpetual character of the dictatorial function, which should encompass the judicial power, the legislative, and the power to freely choose a successor, after the sanction of public opinion is conveniently consulted; (b) the separation between the Church and the State, the suppression of official education, but in the case of primary instruction, complete freedom of assembly and discussion . . . complete professional freedom, the abolition of all scientific, technical, and industrial privileges; (c) a single assembly . . . composed by only a few members. (Zea 1964, 103) After the fall of the monarchy and the arrival of the Republic, General Deodoro da Fonseca became the president of the country. In his cabinet, positivists played an important role, occupying the Ministries of War (Constant) and Agriculture (Demétrio Ribeiro). Positivists also played a significant role in the first discussions about a new Constitution. For them, it was necessary to call a Constitutional Assembly and to delegate the writing of the constitutional draft to a group of experts, who could then open their proposal to the general public, perhaps through the use of a plebiscite. In 1890, representatives of the Apostolado presented their main constitutional project, which was called “Order and Progress in the name of Humanity, the Country and the Family.” In Title No. III of the same project, positivists made reference to the importance of leaving the federal government in the hands of a dictator, who would have the right to designate his successor. The president, they proclaimed, would be accompanied by four Ministers—the Ministers of War, Finance, Justice, and Foreign Affairs (quoted in Horbáth and Szabó 2005, 24‒25). In addition, in their constitutional project, positivists incorporated different civil rights (press, opinion, assembly), which they considered indispensable for avoiding the transformation of the government into despotism. And even though their project was not finally accepted, many of their proposals were incorporated into the Brazilian 1891 Constitution (i.e., the separation between Church and the State, civil marriage, and a more decentralized administration, etc.). The Constitution that was finally approved, however, was in relevant aspects very different from the one that most orthodox positivists advanced. In fact, the main intellectual responsible for its text was a noted jurist, namely Rui Barbosa, who cannot himself be considered a positivist.9 During the constituent process, Barbosa became the person in charge of revising the (five) different projects presented by the commissions of experts. Barbosa was also the key person in trying to approach the Constitution by way of the US model (some people said, at the time, that Barbosa “wrote to Brazil by translating texts from

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the United States”). At the same time that he favored the “importation” of US constitutionalism, Barbosa considered that it was impossible to “import” the Swiss model (which was then seen as a plausible alternative), given Brazil´s territorial immensity, which made the country incomparable with Switzerland. Similarly, Barbosa also rejected the possibility of following the French model, which many of his compatriots defended, given that, in his opinion, Brazil needed to become a federalist country. In the end, the Constitution that he proposed included a presidentialist system, a tripartite division of power, a federalist organization, and a Superior Federal Court, capable of controlling the political decisions of both the Executive and the Legislative (Arinos 1967).10

The Radical Branch: Agrarism, Indigenism, and Socialism After having reviewed testimonies from the propagandists of the “order and progress” system, in what follows we shall begin to study the critical political currents that appeared in reaction to it. We can start by saying that, at the beginning of the twentieth century, Latin America recognized the echoes of a radical movement that it had already known (in a more rudimentary and less effective version) at the mid-nineteenth century. We must recall that 1848 symbolized, in the entire region, the example of a powerful radical political movement, which sought collective liberties (at the same time, this movement appeared to have connections with the early revolutionary movements of 1810). That wave of radicalism found particularly stimulating expressions in the writings of Francisco Bilbao or Santiago Arcos in Chile, in the work of the reformist anti-Santanista movement in Mexico, and in the activism of Colombian radicals. The origins of this new twentieth-century wave of radicalism were not, in the end, so different from those of the previous century—they recognized similar influences, both at the internal and external levels. In particular, the radical movement of the twentieth century was influenced by a renewed radical and leftist political thought. We can mention, in particular, the growing socialist and anarchist movements that emerged in Europe and in the United States; and, more generally, the enormous expansion, in numbers and power, of the working class in the more developed world. The 1917 Bolshevik Revolution in Russia constituted one of the most paradigmatic expressions of this movement of reaction against the dominant order (Hobsbawm 1995, ch. 2; Hobsbawm 1998; Angell 1994). There was another external factor that played an important role in this history, which was the growing influence of the United States in the region, which also generated strong movements of resistance. In what relates to the internal context, the new radicalism emerged after a long period of political conservatism and restrictions on political rights. The conservative regimes of “order and progress” began to find it increasingly difficult to maintain “the new colonial compact” (Halperín Donghi 2007). In addition—and here the parallelisms with 1848 seem to be still more relevant— the region was going through fundamental changes in relation to its social composition. The social changes that took place in Latin America at that time found different sources. In some cases, they had to do with the arrival of (poor and politicized)

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European immigrants to the subcontinent; in other cases, these changes related to the growth of the “local” working class (particularly the urban proletariat in Argentina, Chile, or Mexico). Moreover, the contextual conditions encouraged these groups to demand more opportunities for political participation, which the governments of “order and progress” had systematically resisted. The dominant political atmosphere became marked by these new demands and a mounting disenchantment with both the dominant exclusive order and the increasing presence of the United States in local affairs. One interesting area where we find early signs of discomfort and rupture with the old order is Latin American literature. There are numerous works that, at the same time, appear as a continuation of the positivist way of thinking and show the existing fatigue with the dominant state of affairs. In some of these works we find a confrontation between the utilitarian, “materialist,” imperialist values that are associated with the US culture and other values that are more closely in line with the Hispanic—even Catholic—tradition.11 We see excellent examples of these new movements in the poetry of Rubén Darío and in the anti-materialist critiques of Paul Groussac.12 At the beginning of the twentieth century, some reactive political currents emerged, in clear defiance of the old system. On the one hand, we find a democratizing movement, which works against the dominant political authoritarianism. On the other hand, we find a more radical movement, which is closely linked to socialist and agrarian groups (Halperín Donghi 2007, ch. 5). We shall now concentrate our attention on the latter movement, and later, we shall comment on the former. Finally, we shall examine the revolutionary—and enormously influential—response that came from Mexico. The emergence of a robust socialist/agrarian movement is particularly interesting when we compare it with the weaknesses that characterized its immediate antecedents. The fact is that “after 1900 their appearance was sudden and forceful in several countries, sparked by the quickened pace of socio-economic change—the expansion of export economies and their integration into the international capitalist system, the modest growth of industry and of an urban work force, and in some regions massive immigration” (Hale 1986, 428). By 1920, the main expressions of these experiences were “socialism in Argentina and Chile, indigenous agrarianism in Mexico and a unique ideology in Peru, which included elements of both” (428). If the Russian Revolution was the main source of inspiration for Americans—an inspiration that came from Europe—the Mexican Revolution constituted, without doubt, the main mirror where Latin American critical movements within the region wanted to look.13 In addition, both the democratizing movement and the socialist/agrarian movement found inspiration and support from the emergent student movement—rebellious and democratic—which began to gain influence in the entire continent. This reformist student movement achieved particular importance in the central province of Córdoba, in Argentina 1918 (where it received important support from the government of President Hipólito Yrigoyen). Demands were then made “for student representation in university government, the reform of examination practices and an end to nepotism in the appointment of the professorial staff ” (Rock 1986, 432). From Córdoba, the reformist student movement grew fast and spread over other Latin American countries. In fact, many of the most noted

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political leaders of the century began their public careers as leaders in the student movement—and for example, the cases of Fidel Castro, the then leader of the Cuban Revolution, or the Peruvian Víctor Raúl Haya de la Torre, who would become the founder of the enormously influential Alianza Popular Revolucionaria Americana (APRA). Obviously very critical of the dominant legal order, the new radical Latin American thought never managed to become the region’s main ideology, and it did not even become the main alternative to the prevalent way of thinking (also in this respect, there is a strong parallelism between this radical movement and the one that emerged in the region in the mid-nineteenth century). However, it must also be said that this new radicalism achieved an enormous presence in the region—its influence, in fact, helps us understand the strength acquired by social constitutionalism since the mid-twentieth century. In order to better understand the dimension of this new radical paradigm, in what follows we shall concentrate our attention on some of the main names that were associated with it, whom we shall highlight given both the importance of their ideas and the impact that they achieved. We shall refer, in this respect, to three of the main and initial leaders of Argentina’s socialism (Juan B. Justo, Alicia Moreau de Justo, and Alfredo Palacios), the Chilean Luis Recabarren, the Peruvians Manuel González Prada and José Mariátegui, the Cuban José Martí, and the Mexican Ricardo Flores Magón. The Argentinean Socialist Party was founded in 1894. Its role in Argentinean politics was significant, particularly because of the influence that it exercised in the renovation of local legal thought and social legislation. Its founder was the doctor and writer Juan B. Justo (together with José Ingenieros), who would play a crucial role in this renovation process. According to the philosopher Alejandro Korn, Justo would be the first Argentine intellectual to go beyond “Alberdian ideology,” to which he added the idea of social justice (Hale 1986, 429). Justo was the first translator of Marx’s Das Capital to Spanish, and he founded the socialist newspaper La Vanguardia and was the creator of the cooperative El Hogar Obrero and also of the Workers Library. He worked as a Deputy and as a Senator of the country, and as such he promoted numerous relevant legislative proposals, which included projects for prosecuting gambling and alcoholism. Most saliently, he worked in the creation of different social initiatives, in association with a prominent member of the Socialist Party, namely Alfredo Palacios. Many of their initiatives obtained congressional approval and contributed to the emergence of a robust social legislation; a social legislation that would be expanded and consolidated during the years of Peronism in power.14 This renewed social legislation included numerous initiatives related to women’s rights.15 In Chile, the Workers Socialist Party (Partido Obrero Socialista, POS) was founded only a few years later, in 1912. In contrast to the Argentinean case, its founder was a lower-class worker, namely the typographer Luis Emilio Recabarren (Recabarren 1979, 1987; Hall and Spalding 1986). Together with some of his allies, Recabarren promoted the adoption of numerous legislative measures destined to improve the lives of the working class. More significantly for our purposes, he also presented a significant project for a new Constitution—a project through which they proposed the establishment of a “Socialist and Federal Republic in Chile.” According to that recommended Constitution, the “supreme sovereignty” would reside in the Industrial Assemblies,

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the Municipal Government, and the National Assembly. In addition, all citizens—men or women, national or foreigner, of more than eighteen years of age—were going to have the right to “take part of the respective assemblies and to cooperate in the social administration of the Republic” (article 1 of the Constitution). Always an extreme critic of private property, Recabarren believed that property had to be either abolished or collectivized. In his projected Constitution, there was only a place for one specific type of property, namely, “social” property. Together with his proposition for constitutional reform, Recabarren also advocated for radical economic equality,16 became a stark detractor of the types of democracies that were then emerging in the region,17 and was also an early critic of the use of State coercion (Recabarren had strong objections to the penal and jail system, in particular,18 and the judicial system, generally19). Economic equality and a new moral model, he suggested, were going to be the pillars of the new system.20 More or less at the same time, in Peru, the work of another noted anarchist appeared, namely Manuel González Prada (2009), who also developed an interesting and very critical line of thought. In particular, he objected to political representation through a discourse of clear Rousseauistic resonances. His work seemed to be clearly in line with predecessors like the noted Flora Tristán or the Chilean Francisco Bilbao (who had spent many years exiled in Peru). González Prada wondered: “What did workers obtain by casting their votes . . . ? They could not even choose their master, because every national election is decided either by force or by fraud. Even though there are people who continue talking about equality and confraternity, the fact is that the world is still divided into classes . . . that continue oppressing each other.” It was clear, for him, who the victims of this process of confrontation were. He stated: “Workers . . . they are the law, they are justice, they have the numbers,” but, nevertheless, they still “live separated one from each other . . . in front of the homogenous and compact group of their executioners and their exploiters” (González Prada 2009, 302). González Prada was very critical toward the law. Like Recabarren, he also denounced the judicial system and the way in which power interfered with the judges’ activity. In his opinion, judges were usually the mere tools of dominant power.21 The law was, for him, the product of the dominant classes, and Parliament a basically useless institution controlled by strong interests.22 Later, another Peruvian thinker and political activist, José Carlos Mariátegui, carried González Prada’s claims further still and denounced—in an unusually radicalized way—the political, social, and economic exclusion and exploitation suffered by “indigenous groups” and “black” people in his country (Mariátegui 1988, 2006; Sobrevilla 2005).23 Few other Latin American works, such as those of Mariátegui, emphasized in such a way the problems of indigenous groups, and very few others established a strong link between the suffering of these groups and the issue of land distribution.24 Mariátegui also maintained a critical dialogue with Peruvian law, which he denounced not only for being too liberal and individualistic but also because of the way in which it was applied in practice. The prevalent law was, in his view, modeled according to the will of the most powerful.25 Mariátegui’s works mixed indigenism and Marxism, a combination that gained some attraction in Peruvian radical political thought at the beginning of the century (see, e.g., Mariátegui 2006).26

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In Cuba during those years, we find the important writings of José Martí—the poet, journalist, philosopher, and founder of the Cuban Revolutionary Party. Martì’s works constituted a significant source of inspiration for radical movements—usually very critical of the United States—who labored in defense of the island’s autonomy. Like Mariátegui, Martí also produced a rich, radical, and nationalistic discourse, which clearly differed from the communist ideology that was gaining importance at the time. Not an orthodox Marxist like Mariátegui, Martí’s views managed to reach not only or mainly members of the “radical left” but also members of the “liberal bourgeoisie” (Angell 1994, 176).27 Austere, hard-working, and a full-time activist, Martí’s anti-colonial and anti-imperialist discourse became extremely influential in the entire region, and particularly in Cuba, where he is still considered the main “apostle of independence.” In Mexico, the anarchist Ricardo Flores Magón—founder of both the Regeneración newspaper and the Mexican Liberal Party (Partido Liberal Mexicano, PLM)—also developed a radical political discourse, focused on the situation of the most disadvantaged groups. For him, the only way of overturning the dominant situation of injustice was through a substantive change in the organization of property (Viñas 1983). Some of Magón’s main political ideas became visible through the famous PLM program, which he decisively contributed in writing (a program that would become a fundamental antecedent for the advanced reforms to be included in the Mexican 1917 Constitution). The program proposed to restrict the powers of the Executive, required limitations in working times (or in the working day), and also demanded the establishment of a minimum salary and nonreligious education. More significantly, the program dedicated special attention to the issue of property. In this respect, it demanded the expropriation of nonproductive land and the creation of an Agricultural Bank (which would be directed to ease the disadvantaged groups’ access to land). It also established that the State would “provide lands to those that demand them, with the only conditions that the land would not be sold and would be dedicated to agricultural production.” By 1911, the program incorporated a claim for the direct abolition of the “principle of property,” from which, it affirmed, the powers of the Church and the State grew. At the time, the PLM considered that the people had the right to “regulate the production of wealth according to their own needs.”28

The Democratic Branch: Yrigoyenism, Battlism, and the Experiment of a Collective Executive in Uruguay In the previous section, we examined some of the main political currents that emerged in Latin America in reaction to the nineteenth-century model of “modernizing authoritarianism.” We made reference, then, to a radicalized branch of politics, with its agrarian, socialist, and Marxist manifestations. Herein, we shall explore a different alternative, which also challenged the existing order. This is the democratizing current, which we shall explore through the experiences of Yrigoyenism in Argentina and the formation of the Radical Party, and Battlism in Uruguay with the Colorado Party.29 Both examples, coming from neighboring countries, provide a good illustration of a political alternative typical of the time, which came to affirm the democratic

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order, opened a major space for popular participation in politics, promoted an armed confrontation with the old conservative model, and stressed a secular profile that generated acute disputes with the still well-established power of the Church (Lynch 1986, 569).30 Let us focus our attention on these two examples. A singular and principled leader, Hipólito Yrigoyen, led Argentina’s Radical Party— the Unión Cívica Radical. The Radical Party was particularly strong among urban and rural middle classes, and led a crucial political battle for the political democratization of the country and the moralization of its public life (Romero 2001). As the founder of the Unión Cívica, Yrigoyen had an active participation in the armed revolts of 1890 (the “90s Revolution,” which were led by Leandro N. Alem, Bartolomé Mitre, and Aristóbulo del Valle), against the so-called conservative unicato of President Juárez Celman.31 The popular rebellion was then defeated, but still Celman decided to resign his position, being replaced by Carlos Pellegrini. The Unión Cívica had finally achieved one of its main objectives. However, and under the influence of Yrigoyen, the party continued to seek the introduction of new and additional political changes. Mainly through electoral abstention and armed revolts, the party wanted to end the extended practice of electoral fraud. In 1912, and partly in response to the Radicals’ demands, the then President Roque Sáenz Peña passed a law establishing mandatory, secret, and universal suffrage. As a result of this, Yrigoyen was then the first president elected through popular suffrage. His first presidency extended from 1916 to 1922;32 and the second from 1928 to 1930, the year in which a military coup inaugurated a long list of military coups that Argentina would suffer during that century (Alonso 2006; Luna 2005). Yrigoyen’s government illustrates well the particular political transition that characterized Latin America during that period. On the one hand, Yrigoyen—like other regional leaders—was fighting against the remnants of the conservative power, which had dominated the countries for many decades. This fight represented the political battle against the past. On the other hand, Yrigoyen’s government was constantly harassed by growing social conflicts, promoted by a working class that was every day more significant, both in its numbers and in its influence. These social conflicts represented the types of tensions that would characterize the political life of the new nations in the future years.33 Let us focus our attention on Uruguay at the beginning of the new century. We may begin this analysis by saying that at this time, at the beginning of the twentieth century, the traditional Colorado Party had gone through a fundamental renovation under the influence of José Battle y Ordóñez. Principally, the party had drastically changed its social composition: it began to incorporate new sectors coming from the capital of the country, Montevideo, and also from rural areas close to the capital. Battle’s government, like Yrigoyen’s, was marked by a secular conception of the public life, and—most of all—by its strong policies of State interventionism, directed to improve the situation of social groups that were, until then, virtually marginalized from politics. The new administration managed to give expression “to the new social forces which were emerging in what was no longer a society dominated by the elite,” thus addressing many of the demands “of the middle and working classes (especially of Montevideo) against the autocratic labor regimes of both national employers and foreign investors in Uruguay” (Oddone 1986, 465).

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There is at least one other specific aspect of Battlism that may deserve special attention for the purposes of this work. This is the experience of the plural Executive, advanced by the new regime. The first Uruguayan Constitution, enacted in 1830, had promoted the adoption of an individual Executive, as it was common at the time. However, already at that early stage, constitutional debates were distinguished by heated discussions about the amount of powers to be transferred to the president (Bauza 1887; Pivel Devoto 1951, 1956; Ramirez 1967). The noted constitutional thinker José Ellauri became one of the most important defenders of the chosen model. As the main ideologist of the Uruguayan Constitution, Ellauri had tried to follow the elitist model of the 1826 Argentinean Constitution. The Argentinean example included a strongly presidentialist Constitution, which was very difficult to reform, hostile to parliamentary powers, and strongly restrictive in terms of political and civil rights.34 With the coming of Battlism, legal thinkers began to imagine alternatives to this presidentialist alternative. José Battle y Ordóñez was the first public officer who advocated the transformation of the single president into a plural Executive. He found inspiration for this alternative in the Swiss model, which he had learned about in a visit he made to Switzerland after the end of his first presidency, and which he sponsored as a strategy for alleviating the expectations and pressures that would fall on his successor, Claudio Williman (1903‒1907). According to the Swiss model, the government resided in a plural Executive, whose members rotated in the assumption of the country’s main political responsibilities. Battle’s scheme represented a reaction to the strong presidentialist regime established by the 1830 Constitution. It was an attempt to defend public liberties through a strategy that promised, at the same time, to help avoid the phantom of new dictatorships. Even though his proposition initially met popular resistances, Battle kept sponsoring it at the Constitutional Assembly, as he himself acknowledged in a famous article published in the newspaper El Día, under the title “My Behavior with the Reform.” Finally, and in spite of the political pressures that pushed against his plan, in 1918 the Assembly decided to accept a middle way in between the existing presidentialist system and the pure model of the plural Executive. In article 70 of the Constitution it created a dual Executive and stated that the Executive power resided in the “president of the Republic and in the National Administrative Council.”35 The president was directly elected for four years and was in charge of governing and representing the nation. The Ministers of Foreign Affairs, Interior, War, and Marine were also under his direct command. Meanwhile, the National Council had administrative functions and was in charge of coordinating the Ministries of Instruction, Finance, Industry, and Planning as well. The 1934 and 1942 reforms (which were produced in violation of the formal amendment procedures established by the Constitution) maintained a drive against the concentration of authority in a single president and tried to strengthen the powers of Congress. According to these new reforms, every Minister could require every matter to be put under the study of the Council (which they integrated, together with the president). In spite of this, in actual political practice, the new model was virtually unapplied. Only in 1952, Battle managed to establish his desired model of a plural Executive, and thus abandon the old transactional formula of 1917. The government became

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fully collective, the figure of the president was substantially diluted, and the National Council of Government became in charge of the government. The principal political responsibilities were successively assumed by one of the four members of the Council. The main function of the president was to coordinate the work of the Council. The anti-presidential reform was in place for fifteen years, until the enactment of the 1967 Constitution, which reestablished the old system of a single Executive (Sanguinetti and Pacheco Seré 1971, 122‒32).

The Revolutionary Branch: From the Mexican Revolution, to Ayala, Aguascalientes, and Querétaro Mexico’s political revolution represented the most significant expression of discontent in the face of the dominant system of “order and progress”—a revolution that would leave the remarkable 1917 Constitution as one of its main legacies. From the beginning, the Mexican resistance movements tried to confront the long decades of Porfirio Díaz’s rule, namely the Porfiriato. During those years, what prevailed in Mexico was an authoritarian and progressive government that was at the same time modernizing and exclusionary. Díaz’s regime had slowly become a dictatorial government, after four years in which it tried to respect the established legal formalities. The dictatorship lasted from 1884 to 1911. As we know, during those years, Porfirio Díaz was favored by the assistance of two brilliant legal minds, namely Justo Sierra and Emilio Rabassa. Both of them had been severe critics of the Mexican 1857 Constitution. For these jurists, the old 1857 Constitution represented the origin of many of the extreme evils that were still affecting the country. The 1857 Constitution was considered responsible for the grave period of political instability that affected the country since its enactment. At the same time, for both of them, Díaz’s regime represented a direct consequence of that period of instability and also the main solution to it: Díaz was seen as the person who provided the country with its necessary stability. By 1910 the Porfiriato was showing its worst face and also clear signals of decadence. This is why the forces in the opposition, for the first time, began to attract some public attention.36 From the impoverished peasants led by Emiliano Zapata in Morelos to an ample convergence of groups that were discontent with the dominant regime in the then prosperous north of the country—from where Pancho Villa arrived after, large sectors of society began to join forces in a revolutionary movement trying to put an end to Porfirio Díaz’s dictatorship (Knight 1990a).37 The Revolution also brought conflicts and divisions within the rebel group, which only began to calm down when Venustiano Carranza, then one of the chiefs of the rebels, and commander of the so-called Ejército constitutionalista, decided to call a Constitutional Convention. The Convention of Querétaro was going to be in charge of setting the legal basis of the new period, through the reform of the old 1857 Constitution. Two things are worth noting at this stage. First, we should mention that the Querétaro Convention was the result of a long process of violent political disputes activated by a situation of extreme economic inequality (particularly in relation to the

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property of the land). Second, we should also highlight that the Querétaro Convention followed at least two significant but finally unsuccessful attempts to introduce constitutional reforms—one in Ayala and the other in Aguascalientes. The first important attempt to re-think the Constitution, after the Revolution, appeared with the so-called Plan de la Villa de Ayala or Plan de Ayala. This plan was signed on November 28, 1911, by a military Zapatista group, which was mainly composed of peasants. The Ayala document first denounced the risks faced by the Revolution (the document denounced, in particular, Francisco Madero, who was at the time the head of the Revolutionary Movement), and then went on to propose diverse initiatives for agrarian reform. These proposals included the recovery of land that was improperly appropriated by the leaders of the Porfiriato; the expropriation of the land that belonged to the main landowners of the country, after compensation (given the needs that affected “the immense majority of the Mexican people, who . . . suffer the horrors of misery”); and the nationalization of the goods that belonged to the enemies of the Plan (Gilly 1994, 97‒98). The Plan de Ayala was followed by another radical document addressed to the Mexican people—Al pueblo mexicano—which was also published by the Zapatistas in August 1914. In that document, the Zapatistas rejected the alternative of a military government and also discarded all electoral reforms that did not include elements of social reform. In addition, the document called for an assembly composed of “the chief of the combatant groups, representatives of the armed people.” The manifest also vindicated the main principles of the Ayala Plan, that is to say, expropriation, confiscation, and restitution (156). Another remarkable document of the time was a programmatic letter, written by General Manuel Palafox in September 1914, where Palafox vindicated the Zapatista agrarian revolution and the principles of the Ayala Plan. More specifically, Palafox called for a meeting composed by “the revolutionaries of the republic,” where the three main “agrarian principles” of the Ayala Plan received constitutional status: “land restitution to those who were dispossessed by evil governments; confiscation of goods to the enemies of the Ayala Plan; and expropriation for causes of public utility” (157‒58). Some of these proposals would become law and reality shortly after, for example, in Cuernavaca, thanks to the initiatives of the Zapatistas who controlled the area. Even more significantly, there was then the Aguascalientes Convention, which would become the main antecedent of the Querétaro Convention. Aguascalientes gathered representatives of the Constitutionalist Army (under the commands of Venustiano Carranza) and of the North Division (commanded by Pancho Villa). Only later, representatives of the Zapatista’s South Division would join the meeting and their presence would dramatically change the direction of the event. One of the main objectives of the Convention was to end the extreme disputes that divided the different factions that battled against Porfirio Díaz’s regime. The meeting generated great expectations. According to Luis Cabrera (one of the most important jurists of the time), the Congress wanted to become “bigger than that of 1857.” The Convention also aspired to become “the first in the history . . . of Mexico” to legislate according to the actual needs of the Mexican people (165). After a difficult start, and also after the arrival of the Zapatistas, the Convention became more active in its role and also made some important statements. Among

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them, the delegates vindicated and acclaimed some of the basic points of the Ayala Plan, defied the power of General Carranza, and proclaimed that “the sovereignty” resided in “the armed people” (168). However, the Convention concluded shortly afterward, without having completed its proposed tasks. With these antecedents in mind, the Querétaro Convention becomes easier to explain and understand. Undoubtedly, many of the decisions adopted by the Convention were very advanced socially. However, at the same time it is clear that this new Convention greatly differed, in its initiatives and its character, from previous Conventions. One explanation of this result appears in the political and social composition of the meeting: if the Ayala meeting had been dominated by the radical Zapatistas and a majority of peasants; and Aguascalientes composed by more diverse groups (including representatives of Villa’s and Carranza’s factions, military sectors, and only at the last moment the delegates of the Zapatistas), Querétaro became mostly—although not only—the expression of the then dominant (and most conservative) political faction, namely the representatives of Carranza’s group and also of the more accommodated sectors of society (we shall come back to this point later). The Querétaro Congress was inaugurated on November 21, 1916. Immediately after its opening, the Congress showed the presence of opposite factions: one of them more conservative (for instance, the group that included Luis Rojas and Félix Palavicini) and the other more radical or Jacobin (which included, for instance, Francisco Múgica). In his important Inaugural Speech at the Constitutional Convention, Carranza returned to the recurrent topics of regional constitutionalism. He criticized the old constitutional model for being too idealized and based on “general principles” that had no actual utility (Rabasa 1986, 196); he claimed that previous legal thinkers had been unable to adjust constitutional law to “the needs of the Mexican people” (196); he also referred to the uselessness of the old legal order to ensure the benefits of the division of power, federalism, and republicanism (197‒98). Although it was clearly open to the consideration of previously unattended social issues, the legal program defended by Carranza in Congress was still very distant from the one that finally became enacted by the Convention.38 Carranza’s project barely mentioned the agrarian problem; it (simply) authorized the Legislature to pass laws related to labor and the progress of the working classes and favored the “frank intervention” of the State in the economy. In spite of the distrust it showed toward majoritarian politics, the plan also made room for the inclusion of broader political rights—these expanded rights were justified through references to “the inferior classes, the ignorant and the oppressed” that had adopted a leading role during the Revolution (208). In the end, however, the core of Carranza’s project mainly reproduced the traditional organization of power and thus strengthened the powers and authority of the Executive branch.39

Revolution and Single-Party System: “Not Only by Shooting . . . We Sweep Away Tyrannies” The new Mexican Constitution became known worldwide because of its radical openness to the “social question.” As anticipated, however, the new Constitution reaffirmed the old-style hyper-presidentialist system of government and also the “liberal

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and individualist model of the 1857 Constitution” (Carpizo 1982, 58). The result was a “mixed” document, like the ones that would become more typical in the Latin American context during the mid-twentieth century. This Constitution was “mixed” in the sense that it combined constitutional models of different inspiration, many times of opposite characteristics. The incorporation of the “social question” in the Constitution was not, in the end, totally surprising, particularly in the context of profound inequalities and intense social mobilization. However, in the more restricted context of the constitutional debates, the emergence of the “social question” was in fact unexpected. For instance, in the Aguascalientes Convention—the crucial antecedent for what would later become the Querétaro Convention—the voices of marginalized groups were heard for the first time, particularly in the surroundings of the Convention. One especially important testimony of the time was that of Paulino Martinez, who asked for “land, liberty, and justice” because, he added, “not only by shooting . . . we sweep away tyrannies” (Sayeg Helú 1974, 3:204). It was in that context, which included dissident voices clamoring for the consideration of remedies to the existing social difficulties, that the Constitutional Convention organized a special commission for the study of the “social question.” The Commission was promptly created and put under the direction of Deputy Rouaix. This group became in charge of writing the first draft of what would then become the noted social clauses of the 1917 Mexican Constitution. As Deputy Cravioto stated, the Mexican Revolution could “proudly claim” to be “the first of the world in creating a Constitution that included the sacred rights of the workers” (Noriega 1988, 104). The result was, as we know, remarkable. Just to highlight a few aspects of the Constitution, one could first mention article 27, which declared that the ownership of the lands and waters within the boundaries of the national territory were “vested originally in the Nation.” Article 27 maintained: The Nation shall at all times have the right to impose on private property such limitations as the public interest may demand, as well as the right to regulate the utilization of natural resources which are susceptible of appropriation, in order to conserve them and to ensure a more equitable distribution of public wealth. With this end in view, necessary measures shall be taken to divide up large landed estates; to develop small landed holdings in operation; to create new agricultural centers, with necessary lands and waters; to encourage agriculture in general and to prevent the destruction of natural resources, and to protect property from damage to the detriment of society. Centers of population which at present either have no land or water, or which do not possess them in sufficient quantities for the needs of their inhabitants, shall be entitled to grants thereof, which shall be taken from adjacent properties, the rights of small landed holdings in operation being respected at all times. Another crucial clause was article 123, which included wide protections for workers and recognized the role of trade unions, and also regulated labor relations reaching

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very detailed issues, which in a way covered most of the topics that later on would come to distinguish modern Labor Law. The clause made reference, for example, to the maximum duration of work, the use of labor of minors, the rights of pregnant women, the minimum wage, the right to vacation, the right to equal wages, comfortable and hygienic conditions of labor, labor accidents, the right to strike and lockout, arbitrations, dismissals without cause, social security, right to association, and so on. According to Rouaix, those two articles were “the outcome of revolutionary radicalism . . . which was present in the conscience of all, after the period of bloody confrontations that transformed the Mexican society.” Also, it is worth mentioning article 5, which referred to the question of personal services and also established limits to labor contracts. With the enactment of the 1917 Constitution, Mexico turned a new page and left behind the old model of “order and progress” advanced by the Porfiriato. Unfortunately, however, the political context in which the Constitution emerged was profoundly conflictive. This difficult context included the existence of multiple military leaders and caudillos who had taken part in the Revolution and who now sought a more relevant role in the new political scenario. The country seemed at the same time threatened by anarchy and by new military rebellions (Mexico suffered many of these military rebellions in a short time, including those of 1924 with De la Huerta, 1927 with Serrano, and 1929 with the Guerra cristera). All of these events promised the coming of new periods of political authoritarianism. In addition to all this, the international context of the reform was particularly complex. This was the time of the Second World War, the time of the growth of fascism in Europe, and the beginning of the Cold War. Within that complex situation, in December 1928, General Plutarco Elías Calle promoted the formation of the National Revolutionary Party (Partido Nacional Revolucionario, PNR), which would then become the Partido Revolucionario Institucional (PRI)—the party which would completely dominate the Mexican public scene during the entire century. The PNR first appeared as a social reformist party, which gathered numerous military leaders, as well as workers and peasants. Most notably, the party took L ázaro Cárdenas to the presidency of the country. Cárdenas governed Mexico between 1934 and 1940 with a program of a clear socialist inspiration. His government promoted agrarian reform, experimented with workers’ control in the railways, and nationalized the oil companies (Angell 1994, 165; Gilly 2001). Since 1929, and until 2000 (when a representative of the alternative political party, the Partido Acción Nacional (PAN), won the national elections), all the Mexican presidents would emerge from the Revolutionary Party. The Mexican example, in this way, summarized many of the main features that would characterize Latin American politics in the coming decades, including features of authoritarianism, reformism and socialism, populism, corporativism, and pacts between the dominant elites. *

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Mexico 1917: Constitution and Presence There is one aspect of the constitutional debates so far examined that deserves particular attention, given its implications for present discussions on pluralist societies and multiculturalism. This is the debate about the politics of presence, which emerged, for instance, from our analysis of the Mexican Constitutional Assembly. It seems clear that the “presence” of representatives of subordinated groups in and outside that Assembly played a crucial role in explaining and understanding, for instance, the emergence of debates on the “social question,” which have not appeared before in any other Latin American Convention. The debates in Querétaro help us understand that the “presence” of certain voices and viewpoints constituted a fundamental condition (perhaps neither necessary, nor sufficient, but in any case fundamental), for arriving at certain legal results—which more recent constitutional debates, for instance in Bolivia, Colombia, or Ecuador, would clearly ratify (Pisarello 2011; Uprimny 2006).40 Let us pause for a while and focus on the Mexican case and the forceful arrival of the “social question” to the Convention. In their study of the 1917 Constitution, historians always refer to an unexpected, exceptional speech made by the revolutionary Luis Cabrera, in October 1914, at the Aguascalientes Convention (which is deemed “the anteroom of the Constitutional Convention,” Sayeg Helú 1974, 3:197). It was where Cabrera claimed that the “main necessities” of the country were not political (politics was only a means for doing something else, he maintained). What the country really needed, he said, was to carry out social reforms. This is why, he added, the Constitution had to be adjusted “according to our needs” (196). The Constitution had to “be in agreement with the blood, the race and the necessities of the aborigines,” rather than a document “copied from the French or the U.S. Constitution” (197–8). Shortly after, on October 27, the debates were interrupted by a “Zapatista delegation,” which again came to stress the importance of moving the Constitution toward the “social question.” Among these testimonies, we could mention that of Paulino Martínez, who told the delegates that “the lack of bread and justice were the main causes that forced the people to resort to an armed uprising” (200). And he added, “Not all those who launched this movement could properly understand and interpret the just aspirations of the masses that rebelled in the name of an oppressed and hungry people” (200‒201). He demanded “Land, liberty, and justice,” rather than “presidential armchairs for those of ambition wealth and authority.” He was not looking for “privileges for a particular social group without political equality and collective welfare . . . land for all” (204). There was another, also significant, popular irruption in the constitutional debates. This one took place in Querétaro when the Convention was about to begin its work. At that time, an ample and diverse group of people, from the surrounding areas, showed up. The group, composed of “women, men, and children,” claimed that it wanted to talk to the delegates. “Those of us who are here now,” claimed the worker Rafael Jiménez in the name of the crowd, “represent the people of Querétaro, who come to tell you that we are looking forward to a Constitution that is authentic, real, effective, liberal, grounded on firm basis, and capable of improving the economic, political, and social conditions of the Mexican people” (Carpizo 1982, 62).

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Among all these sudden social demands, none was more influential than the one voiced by another worker, Héctor Victoria, a Deputy who represented the state of Yucatán.41 According to the crucial testimony of Pastor Rouaix—probably the main intellectual responsible for the radical agrarian program included into the Constitution—it was that very testimony that “made it clear that the Constitution had to face, as a whole, the workers’ problem” (Rouaix 1959, 15). Victoria complained, at that time, about the legal initiatives promoted by General Carranza, which he found shallow and incomplete in their approach to the “social question.” At the same time, Victoria highlighted the crucial role played by workers in the revolutionary movement (Carpizo 1982, 95‒96). Victoria began his speech by clarifying his status as a representative of the workers and complained about the complete absence of that perspective during the first debates (Rouaix 1959, 79). After saying this, he focused his attention on article 5, which was about to be discussed, and suggested what should be, in his opinion, the article’s required content. For him, the article had to regulate a multiplicity of social problems, including maximum labor hours, minimum salary, women and children’s labor, unsafe and unhealthy work conditions, compensation, and so on. In addition, he proposed creating special courts for hearing labor disputes and facilitating negotiations between employers and workers (80). Victoria had in mind a Constitution that included a very detailed regulation of work, a claim that the 1917 document would finally satisfy. Moreover, he encouraged his colleagues to leave all formalities behind and focus instead on the justice of the Constitution’s content.42 According to Rouaix, Victoria became the main interpreter of a feeling shared by most members of the Convention. All these testimonies grab our attention for different reasons. First, they represent the crucial reintroduction of the “social question” in a Constitutional Convention. In addition, they let us recognize the detailed radicalism of those demands. Moreover— and this is what we want to highlight in this section—they allow us to pay attention to a crucial correlation that existed between the “irruption” of the workers’ voice, before or during the constitutional debates, and the incorporation of the “social question” into the Constitution. The Mexican case gives support to an idea that has been the object of much contemporary academic attention, namely, the importance of presence in politics (Kymlicka 1995; Phillips 1995).43 Undoubtedly, the diversity of the voices heard at Querétaro’s Convention represents a central element in the explanation of its results. It incorporated “well known lawyers, engineers, professors and journalists, together with industrial and agrarian workers, miners.” This is why so many people, at the time, objected to the Convention and referred to the “ignorants and barbarians” that composed it, which they contrasted to the “culture and refinement” of the members of the 1857 Convention (Sayeg Helú 1974, 3:245‒46). Deputy Rouaix made a similar point by making reference to a Convention that, in his opinion, represented the “genuine voice of the Mexican people, revolutionary as a whole,” and included numerous representatives who defended “progressive ideas” and were “committed to the interests of the popular cause.” Most of them, he added, came “from the middle class or the proletarian class.” It included “artisans and peasants, local and reputed professionals, and improvised military officers who obtained their degrees in the battles, all of them completely inexpert in the Congressional affairs” (Rouaix 1959, 61).

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Constitutionalism at the Mid-Twentieth Century and the Return of the “Social Question” The Impossibility of Re-creating 1880 In the period we shall examine below (about 1930 to 1980), a decisive event occurred that would change the political life of the region, namely the incorporation of the working class into politics. The fact would also have an immense constitutional impact, which consists of the incorporation of social rights in constitutionalism. This is the period when the “neocolonial order” finally ended, after a profound crisis that reached its peak with the world economic crisis of 1929/30. In effect, the world crisis brought abrupt and fundamental changes to the region. The most visible of them appeared in the economic sphere: at that time it became both more difficult to continue exporting the primary goods that had been ensuring the economic success of the region and to continue importing some of the basic goods required by the internal market. In that emergency situation, most Latin American societies began to rethink the role they had reserved to the State. After decades of proclaiming a “neutral” role (not only, but mainly, in the economic realm), the State openly assumed an interventionist role and decided to gain control of the production and distribution of resources. The State played its new function in different ways, which included the creation of Central Banks, the formation of regulatory agencies, the fixation of maximum prices, and so on. The history of the region was also deeply marked by the two world wars. In principle, and at least in economic terms, the region benefited greatly from these tragic events. Latin American countries began to play a fundamental role as exporters of food and other primary goods to the countries most directly involved in the conflict. At the same time, Latin American economies were forced to change their profile in ways that would also be decisive in their political development. In effect, most nations in the region had to start a process of import substitution in order to replace the manufactured goods that they used to import from more industrialized countries (countries that were now involved in the armed conflict). This gradual process of industrialization contributed to the emergence of a class of industrial workers that would soon begin to demand a more active role in the public life of their countries.

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In sum, everything had changed. In economic terms, the emergence of this new paradigm implied the definitive breakdown of the old formula of “order and progress.”1 In political and social terms, the changes were also dramatic, given the increasing importance of a more extended suffrage and the growing influence of a more numerous and powerful working class. In legal terms, Latin America would also become distinguished by this “new and increasingly urgent” factor, namely the growing political participation of the masses (Halperín Donghi 2007, 379‒80). However, it was not clear how the law was supposed to react in the face of those novelties.2 One thing seemed to be obvious at the time, namely, that under existing conditions it was impossible to maintain the old and exclusionary order based on an alliance between liberals and conservatives. How could such an order be kept in societies where the middle classes had gained universal suffrage, where the working class looked strong and well organized, and where the State had definitively abandoned its old self-proclaimed “neutral” role? Of course, for the traditional, dominant sectors, the alternative of definitely abandoning the old model of “order and progress” was difficult to accept—that period represented, for them, a mythical epoch. In fact, during those years, Latin American countries had gone through a profound economic transformation (that clearly benefited the dominant sectors), which took place under conditions of social peace and political stability, which seemed totally exceptional in comparison with the region’s previous history. However, at the beginning of the twentieth century, it seemed impossible for the most favored sectors of society to continue to expand their economic profits in a peaceful manner, particularly in the face of the existing levels of poverty and inequality. What should be done, then, in order to re-create the old order? How could the 1880s be re-created when conditions seemed to have varied so significantly? At the level of the Constitution, the example of Mexico 1917 appeared, then, to be an attractive “solution.” Of course, what looked attractive from the Mexican example was not the period of profound crisis and armed violence that preceded the Constitution, but rather the legal response that followed the crisis. In fact (as frequently happens in similar circumstances), many attributed some responsibility for the period of political stability that followed its enactment to the 1917 Constitution. At least, it was true that the Constitution offered a new and original version of the social compact by integrating some renewed social demands in the basis of the traditional liberal-conservative agreement. Inspired by the Mexican example, the leaders of the liberal-conservative compact in different Latin American countries recognized that it was not only possible but also necessary to expand the limits of the traditional constitutional compact. Accordingly, they also began to claim that the new Constitutions had to accommodate the social demands that had been previously excluded from the old, prevailing constitutional documents. In other words, they recognized that it was now necessary to somehow incorporate the third model of constitutionalism that had been marginalized from previous constitutional discussions. This would be one of their more fundamental concessions aimed at calming down the existing levels of social discomfort.3 In this way, Latin American Constitutions began, one after the other, to add these new social concerns to the old, existing legal matrix, which notably was not suppressed or significantly changed. Subsequently, the new, twentieth-century type of

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constitutionalism became distinguished by socially committed Constitutions, a feature that found expression in a renewed organization of rights, but also by Constitutions that remained too conservative and restrictive with regard to the organization of power. In constitutional terms, the emergence of social rights represented the most significant novelty that came with the new century. However, it would in no way be the only one: the changes that took place in the region during the twentieth century were numerous and so were also the responses that came from constitutionalism. In this chapter, we shall examine a few of these legal responses, which we shall select according to their importance and influence. We shall concentrate our attention on five main alternatives, namely the following: (1) The Authoritarian Alternative. This response, normally promoted by the local Army forces, appeared time and again in the region. This was, of course, the most direct and brutal form of reinstalling the old 1880s project of “order and progress.” We shall briefly examine this very common response and also some of its most immediate consequences. (2) The Reformist Alternative. This response mainly emerged in the first decades of the twentieth century, commonly as a reaction to the previous wave of authoritarian governments. In some (but not all) of the cases, this alternative response included Constitutions that explored an unusual path within the region’s history, one that combined the introduction of social rights with moderated forms of presidentialism. (3) The Populist Alternative. This response was particularly important in Argentina with Juan Perón and in Brazil with Getulio Vargas. In this case, the proposal was to ensure economic development and social peace through a compact between opposing social classes—usually through political arrangements between employers and employees, which were celebrated under the auspices of the State. (4) The Democratic-Exclusionary Alternative. This type of response appeared in countries such as Colombia and Venezuela, where members of the dominant political elite decided to get together after years of extreme violence to try to find a way out of a political crisis that included extreme violence. Usually, they tried to ensure political stability by distributing political resources and positions among the members of the elite and also by fostering peaceful economic development through a new social compact from which leftist and rebellious political forces were excluded. (5) The Socialist Alternative. This exceptional response appeared in a few countries, which included at different periods Cuba, Chile, or Nicaragua. The idea was, in this case, to reverse the conditions prevalent during the 1880s—to literally turn them upside down—in order to ensure the triumph of the most disadvantaged social sectors.

The Authoritarian Alternative The usual formula of “limited political liberties” and “ample economic liberties” (which came to prevail during nineteenth century Latin American politics) achieved its peak at the beginning of the 1880s. However, in the twentieth century, the political, economic,

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and social conditions that made that situation possible had dramatically changed and demanded the introduction of radical changes into the dominant context. In political terms, universal suffrage had made its appearance, which also provoked a profound change on the social and economic scene. One crucial question was then: How was it going to be possible to maintain universal suffrage, social peace, and political stability together, in a context that was still characterized by profound inequalities? (Przeworski 2010). In addition, would it be possible to maintain the level of growth and the social discipline that had characterized the long period of “order and progress” under these new conditions? In those conditions of “social tie” and growing political demands,4 the first and most persistent reaction from the dominant sectors took the form of an authoritarian response. In the context of more stable democracies, the authoritarian response normally implied the use of powers of emergency and emergency measures, which came to establish severe limitations on personal liberties. In the most extreme (but not uncommon) cases, the authoritarian rejoinder implied military coups that put an abrupt end to democracy. Typically, the first kind of authoritarian response was channeled through the figure of state of siege, which allowed democratically elected and legitimate governments to adopt restrictive measures with regard to individual rights. Very commonly, the state of siege became aggravated in two ways. On the one hand, those situations of emergency were, time and again, extended in time: the seemingly exceptional emergency measures became, after some time, a regular, normal state of affairs. On the other hand, there was the emergence of the political questions doctrine. According to this doctrine, which tribunals frequently adopted in their decisions, certain topics— typically, those measures implemented by a certain government in the context of a state of siege—had to be considered essentially political in character and thus free from judicial scrutiny.5 Mexico offered a second (and unique) authoritarian response to the crisis of the old paradigm. Here, we find that the Revolutionary Party (PRI) that emerged after the fall of Porfirio Díaz soon became hegemonic, occupying the entire political space. In fact, until the end of the twentieth century, the PRI virtually functioned as the single national party. In 1936, and thanks to Lázaro Cárdenas’s efforts, the party created a new branch, namely the Confederation of Mexican Workers (Confederación de Trabajadores de México, CTM). Even so, in 1938, the party constituted the National Confederation of Peasants (Confederación Nacional Campesina, CNC); in 1943 it created the National Confederation of Popular Organizations (Confederación Nacional de Organizaciones Populares, CNOP, which included, for example, the national bureaucracies); and in 1946 the military branch of the party appeared. The characterization of Mexico’s political regime as authoritarian may be not really polemical (the writer Mario Vargas Llosa called it “the perfect dictatorship”),6 although it requires certain clarifications. As Peter Smith aptly put it: Most observers stressed the “authoritarian” qualities of the regime, but even this characterization would be subject to qualification. Mexico has had a pragmatic and moderate authoritarian regime, not the zealously repressive kind that emerged in the Southern Cone during the 1960s and the 1970s;

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an inclusionary system, given to co-optation and incorporation rather than exclusion or annihilation; an institutional system, not a personalistic instrument; and a civilian leadership, not a military government. Whatever else might be said, the Mexican regime has confronted and apparently resolved one of the most intractable problems for non-democratic systems, the issue of elite renewal and executive succession. It is an authoritarian system, but one with many differences. (Smith 1990, 93) By the middle of the century, Mexico’s system was able to show some significant achievements, which not many other countries in the region could match. These achievements included significant rates of economic growth and industrial development, which were combined with a remarkable level of political stability (Smith 1990; Knight 1990b). The system was also able to show some important results with regard to the “social question,” including the promotion of agrarian reforms, the creation of the Mexican Social Security Institute (the Instituto Mexicano del Seguro Social, during the administration of Manual Ávila Camacho in the 1940s), and the launching of the Institute of Security and Social Services for State Workers (the Instituto de Seguridad y Servicios Sociales para los Trabajadores del Estado, created by President Adolfo López Mateos in 1959). In addition, during these decades the national university (Universidad Nacional Autónoma de México, UNAM) gained autonomy and also accomplished a massive expansion at all levels. These facts are worth mentioning particularly if we take into account that by the mid-1960s students took the lead in the opposition to the PRI’s policies. At that time, students expressed their dissatisfaction with the PRI’s way of doing politics and the growing repressive features of the government (mainly during the presidency of Gustavo Díaz Ordaz). In association with workers and the urban poor, students protested in demand for substantive political, social, and educational reforms. Their protests achieved its peak in the sinister “night of Tlateloco” (October 2, 1968), when the government—anxious to put an end to the opposition’s demonstrations— killed dozens of students (the massacre occurred just a few days before the celebration of the Olympics in Mexico). The massacre of Tlateloco marked the beginning of the end of the PRI’s hegemony. The disastrous event was followed by a prolonged political crisis and a wave of successive constitutional, legal, political, and social reforms, which began in 1977. Successive reforms included the constitutionalization of the right of information, the right to have socially useful work, the right to housing, and the right to a clean environment. These reforms also inaugurated Mexico’s transition to democracy.7 Now, the most important, extreme, and common authoritarian response to the crisis of the old paradigm was the one that involved military coups. This was the main way in which dominant sectors tried to resist the growing social demands, now institutionally expressed by popular suffrage. Suffrage was then directly suppressed through the use of force. The military coup alternative became the most common response of conservative sectors that seemed unwilling to accept any significant change in the dominant distributive (political, economic, and social) order. According to the available data, Latin America registered more than 170 military coups during the twentieth century (Przeworski 2011).

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Not surprisingly, then, military coups in the twentieth century somehow reproduced the main features of the typical nineteenth-century conservative policies. That is to say, they tended to impose elitist political systems characterized by a concentrated Executive power, territorial centralization, limited political and social rights, and forms of moral perfectionism backed by the State’s coercive apparatus. In these regimes, the State tended to enforce religion, repress social protests, prosecute dissidents, and also censor all alternative ideas.8 In Latin America, the first important wave of military coups appeared at the beginning of the century in the context of the “Great Depression.” In Argentina, President Yrigoyen was removed from power in 1930. In Brazil, in October of the same year, General Augusto Tasso Fragoso replaced President Washington Luis and thus prevented elected President Julio Prestes from assuming his mandate (Tasso Fragoso would then hand power to Getulio Vargas). In Uruguay, then President Gabriel Terra established a dictatorial regime on March 21, 1933, after dissolving the existing legislative institutions and also the National Administrative Council (his new government would then be characterized for its anti-liberal and anti-leftist conservatism). At that time also, Peru inaugurated a long period of military governments, which had begun with dictator Augusto Leguía. In Venezuela, dictator Juan Vicente Gómez, who had been in power since 1908, remained in it until his death, which occurred in 1935. By the mid-1940s, the pendulum moved to the contrary side—the side of democracy—together with the end of the Second World War and the final defeat of the Nazi-Fascist axis. Since 1939, Peru has been under a democratic government; the same has happened in Uruguay since 1942, Brazil and Venezuela since 1945, and Argentina since 1946. However, the tensions that were then escalating between the United States and the Soviet Union, and the coming of the so-called “Cold War,” also exercised a profound impact on the region. A good illustration of this is that, in 1947, the Communist Party was made illegal in Brazil, and the same thing occurred in Chile, Colombia, Costa Rica, and Peru in 1948, and in Venezuela in 1950 (Hartlyn and Valenzuela 1994, 139). The period of democratic reemergence turned out to be extremely brief. By the end of the decade, the pendulum had moved once again, toward military coups and authoritarianism. Manuel Odría overthrew President José Luis Bustamente y Rivero in Peru in 1958. In Venezuela, Rómulo Gallegos was removed by a military coup led by Carlos Chalbaud in 1948. Simultaneously, Laureano Gómez promoted a coup in Colombia against Constitutional President Mariano Ospina. José Linhares, President of the Supreme Federal Court in Brazil, led a transition period in his country, after 1945, following the violent removal from power of President Getulio Vargas. In 1955, Juan Perón was displaced from power in Argentina through a military coup. Sometime before this, in 1954, the president of Guatemala, Jacobo Arbenz (accused of being a “communist”), had been dismissed from democratic power by a military coup that was promoted by the US government;9 and in 1952, Fulgencio Batista had led a (second) military coup, which allowed him to return to the presidency of Cuba. The wave of military coups even reached Costa Rica (a country that proved to be more resistant to authoritarianism than its neighboring countries), after a period of Civil Wars (1948‒49) (although after this event the country inaugurated a long period of democratic stability, which would be absolutely exceptional in the region).

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Things began to change again in the mid-twentieth century, when there was an almost simultaneous fall of many dictatorial regimes, including those of Rojas Pinilla in Colombia, Odría in Peru, and Pérez Jiménez in Venezuela between 1957 and 1958. In 1959, most Latin American countries—including Argentina, Brazil, Colombia, Costa Rica, Chile, Peru, Uruguay, and Venezuela—were living under democratic rule, which was completely unusual. Finally, there was a new and important wave of dictatorial regimes that began in the early 1960s, in good part after (and in reaction to) the Cuban Revolution (and also the 1952 Revolution in Bolivia). Fidel Castro’s coming to power, in particular, contributed to the emergence of different guerilla movements in the region, which unleashed an anticommunist fever in America. The United States led and financed an economic response to this revolutionary wave—the so-called Alliance for Progress. The idea was to prevent the expansion of communism on the continent. At the same time, they promoted and supported the emergence of anticommunist regimes in the region, which in most cases took the form of authoritarian governments. This was the case, for example, of the dictatorship of Castelo Branco in Brazil (1964), Juan Carlos Onganía and, later on, Jorge Rafael Videla in Argentina (1966 and 1976, respectively), and Augusto Pinochet in Chile (Pinochet overthrew Salvador Allende’s socialist government in 1973). This wave inaugurated a new type of military coup in the region and a new type of military regime in Latin America: instead of merely deposing a democratically elected government, the new regimes came to establish a new and substantially different political order (Hartlyn and Valenzuela 1994, 142; and for the cases of Argentina and Brazil, see O’ Donnell 1982).10 Only at the beginning of the 1980s would democratic government become dominant again in the entire region, finally inaugurating a new period of democratic stability that still exists today.11

The Reformist Alternative In the first decades of the twentieth century, and as a direct consequence of the regimes of force at the beginning of the century, Latin America came to know some reformist experiences, sometimes expressed through a new type of hybrid constitutionalism. The most interesting cases within these experiments, which could be called “social-democratic” cases, included Constitutions that combined new social clauses (in line with those adopted by the Mexican Constitution) with rich and diverse forms of attenuated presidentialism—something that was both remarkable and unusual in the region’s history. Some of the Constitutions that may be classified within this reformist alternative included, for instance: votes of no confidence to the ministers of government (Guatemala 1945, i.e., art. 146 and following; Costa Rica 1949, i.e., arts. 121‒27); a prime minister and a council of government that could lose the legislative confidence and thus be forced to resign (Cuba 1940, i.e., arts. 164 and following); and even legislative votes of no confidence combined with the Executive’s capacity to dissolve Congress (Uruguay 1942, i.e., arts. 136 and following). Let us examine some of these examples in some more detail.

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We can begin this exploration with the interesting case of the 1945 Constitution of Guatemala. This Constitution was the result of a civic and military revolutionary movement, which included workers and students. It can be said that its main target was the military dictatorship of General Federico Ponce Valdés. Drafted and enacted during the presidency of the intellectual Juan José Arévalo, the Constitution introduced numerous social clauses, in accordance with the new regional constitutionalism. Inspired by the example of the Spanish Republican Constitution of 1931, the 1945 document opened its text by making reference to the country as a “republic of workers.” The Constitution also recognized diverse social rights and guarantees (including minimum wage, paid vacations, new rights for women and minors), legalized trade unions, established the social character of property, and declared that the indigenous question was of public interest. At the same time, the new constitutional text organized a somewhat moderated presidentialist system, through an important reduction of the presidential powers. Like other Constitutions that emerged after a period of prolonged dictatorship (i.e., the Mexican 1917 Constitution), the 1945 Constitution consecrated the principles of alternation in power and non-reelection. At the same time, the Constitution provided more powers to the ministers and created a Council of Ministers that would be under the supervision of Congress. Congress was also authorized to pass votes of no-confidence against the ministers (who in that way were obliged to resign from their positions). In the case of the Constitution of Costa Rica, 1949, we can also recognize those dual features, which on the one side implied the incorporation of social clauses and on the other brought a certain moderation of the presidentialist system. The new Constitution appeared after the 1948 Civil War, as a product of a broad package of reforms sponsored by provisional President José Figueres. The 1949 text also incorporated numerous social clauses, which thus provided constitutional status to the social reforms promoted during the government of Rafael Calderón Guardia.12 At the same time, the Constitution represented a strong reaction against the type of presidentialism that had dominated the country (and the region) for decades. Notably, the reform process came together with the direct abolition of the Army, an initiative that was totally exceptional and has undoubtedly been very influential in the country’s political development since then. At the same time, the new Constitution showed its hostility toward presidentialism and the concentration of powers, through an expansion of the powers of Congress. In 1949, Costa Rica adopted a unicameral Congress (whose members could not be reelected), endowed with the capacity to censor the Executive’s ministers.13 Other constitutions that were created during this same period, and that also expressed this double commitment to social rights and moderated presidentialism, were the Brazilian 1946 Constitution, the Cuban Constitution of 1940, and the Constitution of Uruguay 1934—we have already made reference to this Constitution and in general to the Battlista experiment and its remarkable exploration of an Ejecutivo Colegiado.14 The 1946 Brazilian Constitution incorporated numerous social clauses, following the example of the two previous Constitutions, which were created during Getulio Vargas’s regime. Among other clauses, the 1946 Constitution included, for example, the

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institution of minimum salary; it established the social function of property and made reference to the workers’ right to participate in the profits of companies. In addition, the Constitution recognized the right to strike, which had not been previously adopted in any Brazilian Constitution (Villa 2011, 88). According to Afonso Arinos de Melo Franco, the Brazilian 1946 Constitution was also characterized by “the common vice that affects all those Constitutions that appear after long periods of dictatorship,” namely the obsessive, concerned aim of avoiding the excesses of the previous regime (quoted in Limongi 2008, 28). The point of this criticism was to suggest that the Constitution created a weak presidential system. This was clearly not the case: the fact that the Constitution did not create a strong presidency does not necessarily mean that it created a weak one. However, since that time that statement has become a common assumption. According to some analysts, the combination of presidentialism and a proportional electoral system (such as the one that was then created) necessarily resulted in a weak democracy with a fragile president—doomed to fall prey to the opposition in Congress (Furtado 1965). The 1940 Cuban Constitution also incorporated many interesting novelties related to social constitutionalism: minimum salary, social security, public education, protection of family and culture, and so on. The Constitution also insisted on the notion of collective rights and proposed different measures directed at reforming property. In addition, the Constitution created a Court of Constitutional and Social Guarantees, which acted under the supervision of the Supreme Court. The 1940 document also incorporated certain “semi-presidentialist” elements: for instance, the president was assisted by a Council of Ministers, whose members were responsible before Congress, which could force the former to abandon their position in government. However, in actual practice none of these “parliamentary elements” became really effective.15 As in the previous cases, the 1934 Constitution of Uruguay also incorporated social rights: it made reference to the rights of the family, the right to education, maternity rights, the right to work, and the right to social security. In addition, this Constitution extended suffrage to women, who were until then denied that right. Moreover, the 1934 document experimented with a kind of parliamentary regime: ministers were responsible before Congress, and Congress had the power to censor them (which only happened once, in 1969). Meanwhile, the Executive had the capacity to dissolve the legislative chambers and call for new legislative elections. Another Constitution that appeared during those years was the important Constitution of Bolivia, 1938, which did not change the political system in an interesting way, but introduced social constitutionalism in Bolivia, and which was promoted by Colonel German Busch Becerra, after the serious armed conflict known as the Guerra del Chaco. This Constitution, enacted by a Convention that, for the first time, included representatives from the working class, together with that of 1945, which was promoted by the military government of Gualberto Villarroel, advanced social constitutionalism in the country and, in particular, defined limits to the right of property, which became a conditional right, marked by its “social function” (Barragán 2006, 70‒71). Later on, and after some political and legal regressive periods, the Constitution of 1961 readopted and expanded some of the social commitments assumed in the previously mentioned constitutions. The new Constitution added, in particular, new considerations about agrarian reform, gratuitous education, and the nationalization of mines.

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Having reached this point, we shall make reference to the Chilean case, which occupies a peculiar place within this section dedicated to the reformist constitutional alternative. The case of Chile clearly connects with some of the previously presented experiences, particularly if we pay attention to the gradual introduction of interesting social legislation. However, it also differs from them, particularly because of the limits that (in 1925) it introduced to the then well-developed parliamentarian practice, which was totally exceptional within the region. The exploration of the Chilean case may well begin with a reference to the important Constitution of 1925, which some have presented as an “expression of social constitutionalism, and in this respect closer to the European Constitutions that emerged between the wars, than to those that were written after the [Second World] war” (Pisarello 2011, 151). The Constitution was enacted in 1925, during President Alessandri’s administration, and remained in effect for almost five decades. In truth, the 1925 Constitution was only moderately “social” (it fundamentally included one article—art. 10—that was clearly dedicated to the “social question,” making vague references to “work,” “property,” and “public health”). However, it is also true that this constitutional document proved amenable to the existing social legislation. More significantly, the Constitution was functional to the organization of workers and the development of a mixed economy characterized by state interventionism, import substitution, and welfare measures.16 These developments were characteristic of the years of the Popular Front, and particularly of President Aguirre Cerda’s administration. Member of the Radical Party, Aguirre Cerda had run for the presidential elections of 1939 (which he won) as the candidate of the Popular Front. His government “placed greater emphasis on state intervention, industrialization and the needs of labor” (Drake 1991, 290).17 This welfare activism, backed by the modest 1925 Constitution, regained life in the second half of the twentieth century, particularly after the social-democratically oriented Christian Democratic Party, presided over by Eduardo Frei, won the national elections in 1964 (Angell 1991).18 The welfarist policies enforced in Chile during this period did not come together with a constitutional moderation of the Executive’s powers—as happened in the cases of Costa Rica, Guatemala, or Uruguay, which we just explored—but rather with an increase in the presidential faculties. This was so, at least in part, as a consequence of a Chilean peculiarity, the period of the so-called “parliamentary republic,” which lasted from 1891 and the defeat of President Juan Manuel Balmaceda in the Civil War to 1925, and the enactment of the new Constitution. The victory of the congressional forces in the Civil War resulted in a period where politics was organized around Congress. Since then, presidents have been forced to form their cabinets in ways that reflected the changing legislative majorities, although at the same time (and contrary to what happens in truly parliamentary republics) they lacked the power to dissolve Congress and seek a renewed mandate (Blakemore 1986, 522). In the end, the traditional oligarchy continued dominating public life (523), corruption persisted, and politics—subject to permanent negotiations within a small elite in Congress—lost social respect. Some of these reasons explain the emergence of the 1925 Constitution, one that was seen as “a reaction—in form at least—to the indecisive years” of the parliamentary republic (Blakemore 1986, 545). Crucially, the Constitution came to restore

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presidential authority, although it did only in part. On the one hand, the president was now going to be elected through direct, rather than indirect, elections; would serve for six, rather than for five years; and ministers would be accountable to the president, rather than Congress. On the other hand, however, the president was not immediately re-eligible, and elections became subject to closer scrutiny by a new tribunal. Moreover, the Constitution allowed the final election of the president by Congress for those (rather common) occasions when no candidate obtained the majority of votes in the presidential election. The Constitution was abrogated in 1973 with the arrival of General Pinochet’s military coup against President Allende.

The Populist Alternative In this section, we shall examine two experiences of fundamental importance in the region, as alternative responses to the grave crisis at the beginning of the century. These were the experiences of Brazil and Argentina. Both countries’ responses to the crisis shared some basic features, typical of the World War and import-substitution period, such as the following: nationalism, the defense of a strong “interventionist” regulatory State, an anti-leftist policy, the consecration of a single politician as the nation’s leader, a particular appeal to the mobilized masses and industrial workers, and the attempt to sit down together—at the same bargaining table—the main interests of the country, including the local business class, the trade union leaders, and representatives of the State. Summed up, these features conform to what many people still characterize as “populist” regimes.19 In what follows we shall explore, in particular, the connections that were then established between these experiences—Varguism in Brazil, Peronism in Argentina— with constitutionalism. More specifically, we shall pay attention to the singular way in which these experiments promoted the incorporation of social rights into the old Constitutions.

Social Rights and Varguism in Brazil As anticipated, one significant example about how constitutionalism changed in the mid-twentieth century, in order to acquire a more social character, is that of Brazil. To examine this case, we can go back to the so-called First Republic, which came to its end in 1930 after a Revolution that was promoted by a liberal alliance led by powerful sectors coming from Minas Gerais. The Mineiros sectors considered that the Paulistas, who represented the coffee interests, had broken the pact that existed between the two groups, which had allowed them to share political power. Their agreement was broken (the Mineiros assumed) when the Paulistas decided to promote Julio Prestes as a presidential candidate. Faced with this possibility, the Mineiros sponsored an armed rebellion that ended with Getulio Vargas as the head of a provisional new government. In spite of its early promises, which included the political reorganization of the country and the promotion of substantial institutional changes, Vargas’s government soon transformed into a dictatorship. Vargas only agreed to call a Constitutional Assembly after three years, and only as a consequence of an armed insurrection that

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took place in São Paulo—the so-called “constitutionalist revolution of 1932.” This civil war became the “main armed conflict in Brazil’s 20th Century” and mobilized more than 150,000 combatants (Villa 2010, 38). The process of legal and constitutional reform promoted by Varguism in Brazil was inspired by European authoritarian regimes, partly in response to the 1932 civil war and partly due to the growing conflicts generated by the numerous worker strikes of the time, which were usually organized by foreign workers (Villa 2011, 53). At that juncture, there was “no more space for liberals,” as the noted writer and former deputy Gilberto Amado once said (49). The military regime launched then a period of “xenophobic nationalism” (52), which included numerous measures against foreign workers (and even eugenicist initiatives, aimed at “improving the race” and the “mental health” of the population, and fighting against those who “poisoned” social life, as indicated by art. 138 of the 1934 Constitution). These initiatives were strengthened by presidential decrees, which both restricted the incorporation of foreign workers and forced the expulsion of many of them, who were then associated with “economic disorder” and “social insecurity” (53). The government promoted the mass inclusion of workers in politics and also favored the organization of labor through the creation of trade unions. The State was then more economically active than ever before. At the same time, Vargas’s regime showed a strong disdain toward institutional forms, which it accompanied with an active anticommunist drive. An expression of its attitude toward institutions is the fact that Vargas’s dictatorship worked “during seven years without the support of any Constitution, with the prohibition of all political parties, the dissolution of all legislative bodies, and the replacement of all state governors by agents who worked for Vargas” (Halperín Donghi 2007, 381). Meanwhile, the achievements of the government’s anticommunist drive became apparent with the bloody repression against the forces of the communist leader Luis Carlos Prestes, who in 1935 commanded an important rebellion movement against the dominant regime. Vargas’s constitutional legacy was very rich. During his years in government, Vargas promoted the enactment of two Constitutions. The first one, the 1934 Constitution, was the more innovative of the two and also represented a significant rupture with the traditional Brazilian political-constitutional structure (Bercovici 2009). The second one, which was sanctioned in 1937, accompanied the creation of the Estado Novo and decisively contributed to the strengthening of the powers of the Executive. Again, social constitutionalism was coming hand in hand with the creation of a strongly presidentialist regime.20 The 1934 Constitution was mainly inspired by the Constitution of Weimar. The document was originally drafted by the so-called Itamaratí Commission, which gathered many noted Brazilian legal and political thinkers.21 Among other members, the Commission included Afranio Melo Franco, Carlos Maximiliano, José Américo de Almeida, Temístocles Cavalcanti, and, perhaps most significantly, Joao Mangabeira.22 The Commission, first, and then the Convention worked in isolation in a context of almost complete absence of popular participation.23 From its very composition, the Constitutional Convention tried to reflect the different economic interests and also the demands of the different political elites

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existing in the country. As a consequence, the Convention included representatives of the Paulistas interests and local oligarchies, and an ample forty-member group of so-called “classist Deputies” (which included eighteen employees, seventeen employers, three members of the liberal professions, and two public officers), which would have the decisive voice in issues concerning social and economic rights. The Convention also included two socialist representatives, namely Zoroastro Gouveia and Lacerda Werneck.24 The project coming from Itamaratí was then examined in the Constitutional Assembly, where a special commission discussed more than one thousand modifications to it. The 1934 Constitution was characterized by two main notes, namely its strong corporatist character (Lima Lopes 2008, 361), and its decision to take the “social question” seriously (V. da Silva 2011, 69).25 The final text incorporated many of the basic features that characterized the previous Constitution, including federalism (the Convention rejected the excessively centralist orientation of the Itamaratí project), presidentialism, and republicanism. At the same time, the new Constitution incorporated some important novelties: it strengthened the capacities of the Union; transferred more powers to the Executive; replaced the more traditional bicameralism by a different one (where the Senate acted as a collaborator of the Chamber of Deputies, thus also abandoning the unicameral proposal advanced by the Itamaratí Commission); created Electoral Justice; and organized forms of corporatist representation (art. 23 established that the Chamber of Deputies would include representatives of the people at large, but also representatives of professional interests related to industry, commerce, transport, liberal professions, and public officers). Concerning the rights section of the Constitution, the new document significantly expanded the traditional list of legal rights. On the one hand, the new Constitution extended political rights, for instance, through the establishment of secret ballot and the recognition of women’s suffrage. On the other, it included two new sections, previously nonexistent, one which referred to social and economic order (Title IV), and the other (Title V, Chap. I) to the family, culture, and education (J. da Silva 2010, 81‒82; Reiner 1982; Mendes et al. 2008, 167‒68; Wolkmer 1989). Articles 120, 121, and 122 were also decisive in the shaping of a new social policy. Among other things, the social clauses prohibited the establishment of different payment for the same work and established minimum salary, eight hours as maximum working hours, paid vacations, medical and sanitary assistance to workers, and so on. The Constitution also made reference—for the first time in the country’s constitutional history—to the indigenous groups that inhabited Brazil. However, after three years of only partial application of the Constitution, President Vargas himself abandoned its enforcement. Vargas justified his decision through a speech that was transmitted nationwide on November 10, 1937. On that occasion he claimed that the Constitution presented “manifest and lamentable failures,” particularly as a result of the influences that it had received from “liberalism and the representative system.” For Vargas, the Constitution was thus incapable of properly confronting the new realities posed by a “world crisis.” More significantly perhaps, Vargas believed that the 1934 Constitution had not provided him with the powers that he needed in those times of crisis (Mendes et al. 2008, 168).

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In the same way that the 1934 Constitution emerged in dialogue with (if not in direct reaction to) the political ascension of Luis Prestes, the civil war of 1932, and an increasing level of conflict with the workers, the 1937 Constitution appeared as a clear response to the communist insurrection of November 1935. This popular uprising was again commanded by Luis Carlos Prestes, who, taking advantage of the existing climate of social unrest, tried to carry out the revolution that he had been unable or unwilling to promote in 1930. Vargas managed to contain the leftist insurrection and, immediately afterward, launched numerous measures against the rebels. In fact, from that moment, the national legislation—and then the Constitution itself—became clearly marked by an anticommunist and authoritarian character. First of all, Vargas announced the state of war, which was followed by a declaration of state of siege and the detention of more than 7,000 people. Soon afterward, he created a National Commission for the Repression of Communism and a National Security Court, which would be in charge of prosecuting the enemies of the government (there would be more than 4,000 people under trial during the period). Finally, in 1937, the government enacted a new Constitution. The 1937 Constitution was also known as the “Polish Letter,” given the inspiration it found in the authoritarian Constitution of Poland, 1935 (the Constitution was also inspired by Portugal’s 1933 Novo Estado). The Constitution was characterized by the way in which it strengthened the powers of the president and also by its “centralizing and antifederalist character” (Lima Lopes 2008, 362). It maintained the majority of the social clauses included in the previous one except the right to strike, which it considered “anti-social” (art. 139) (see Bercovici 2008, 389, 399). The main ideologist behind its text was Francisco Campos, who had worked as the Minister of Justice during Vargas’s dictatorship. Campos was also known as the Brazilian Carl Schmitt (dos Santos 2007). The jurist seemed unsympathetic to democracy and openly resistant to liberal constitutionalism, an ideology that, in his opinion, “made government impossible” (Villa 2011, 65). Notably, in his work Estado Nacional, Campos developed his views on the topic and stated: “The political regime of the masses is a dictatorship. . . . People always ask for their own Caesar” (Bercovici 2008, 390; Campos 1937). Together with other noted jurists, such as Oliveira Viana (who at one point even defended racist and eugenicist policies) or the influential Alberto Torres (author of significant works, such as O Problema Nacional Brasileiro and Organizacao Nacional), Campos advanced a legal approach that defended the concentration of power with arguments in favor of a “substantive” and plebiscitary democracy (dos Santos 2007). Their views represented a renewed approach to constitutionalism, which wanted to leave behind the legacy of the 1891 Constitution. This reactive approach was characterized by its antiliberal, anti-idealistic, and anti-democratic features (V. da Silva 2011). The new Constitution opened up with a preamble that referred to the danger of a “communist infiltration” and the need to respond with “radical and permanent measures.” For the first time in Brazilian legal history, the Constitution included the death penalty, created mechanisms of censorship, and put severe limits on the rights of freedom of expression and freedom of assembly. At the same time, it transferred extraordinary powers to the Executive, which included the capacity to declare the

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state of emergency or the state of war at will (without previous consultation with the Legislative, according to art. 166). At the same time, and in order to strengthen the legislative role of the president, the Constitution established that the Executive would be also part of the Legislative power and granted to it the faculty of federal intervention. In reality, the 1937 Constitution was used as an excuse to dissolve the Legislative powers in the entire country. The pretext was that it was necessary to reorganize the whole institutional system. For that purpose, the Constitution established that the nation would first have a plebiscite (in order to legitimize the new legal order) and then hold elections. But those initiatives did not prosper and Vargas ended up ruling at will, almost without any institutional controls. As a consequence, the Constitution was never applied, and the regime became “a pure and simple dictatorship” (V. da Silva 2011, 71). A few years later, in 1946, a new Constitution was sanctioned. Enacted after the defeat of the Axis in the Second World War (an event that put Vargas’s regime at risk), the new document returned to the basis of the 1934 Constitution and reproduced many of its main aspects. In 1950, Vargas returned to the presidency of the country, although this time through the democratic vote. His government, characterized by its nationalism, lasted until 1954, when he committed suicide.

Social Rights and Peronism in Argentina General Juan Domingo Perón had been one of the key figures during the government of General Farrell, who had come to power in 1943 through a military coup. At that time, Perón became the Secretary of Labor—a position from which he strengthened his contacts with the trade unions and promoted numerous labor laws, which favored the interests of the working class and the labor movement. Those circumstances made Perón enormously popular. Not surprisingly then, in 1946, and through democratic elections, he became the president of the country. During his government, Perón strengthened the social reforms that he had initiated as Secretary of Labor. The reforms were benefited by a favorable economic context. The coming of the Second World War had forced Argentina to deepen its economic process of import substitution and allowed it to increase its gains through the export of primary goods. It was in those circumstances of profound economic, political, and social change that Perón also promoted a significant constitutional reform. Arturo Sampay was then one of the most influential legal thinkers in Peronism and the decisive intellectual figure behind the Peronist 1949 Constitution. Sampay was also a harsh critic of the old 1853 Constitution, which he described as an unacceptably liberal document, improperly favorable to laissez-faire as a consequence of the influence of Alberdi’s ideological preferences. According to Sampay, the new Constitution had to abandon the “[absurd] modern mistakes of autonomy and naturalism in economic sciences” (Sampay 1944, 81). President Perón made reference to similar ideas in the speech he presented before the Constitutional Assembly on March 11, 1949. At that opportunity, he maintained that neither the organization of the State nor the writing of the Constitution should again fall into the hands of “conservatives and liberals.” He also claimed that the State’s functions had to be profoundly changed—the State could not continue being

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the mere organizer of the market and society (Perón 2008, 18). For him, it was time to leave behind a period characterized by an improper legal practice, which included an infringed Constitution, laws that were violated or made according to the interests of the enemies of the nation, “citizens who were deprived of their most basic civil rights, workers who were at the mercy of those who abused them in complicity with the ruling government.” It was time to move from a “liberal democracy” to a “social democracy” by ensuring three basic and fundamental goals: “a socially just, economically independent and politically sovereign Nation” (13, 19). The president particularly insisted on the importance of guaranteeing that the “economically disadvantaged” were “protected from the egoism, prepotency and exploitation of the economically strong” (Sampay 1975, 478; Perón 2008). In the end, the 1949 Constitution included features such as the following: (1) A new understanding of human behavior, which (as in Vargas’s Brazil) aimed to challenge the selfish liberalism associated with the original Constitution. In the “Majority Report,” which was presented at the Constitutional Convention, and which was written by the Commission that revised the 1853 Constitution, Arturo Sampay objected to the old “liberal philosophical anthropology.” The liberal view, he claimed, was based on an “angelic conception of men, derived from the liberalism of Descartes and Rousseau,” which proposed to free individuals from “external restrictions” so as to allow them to act according to their “free will” and their “innate goodness.” Against the liberal view (which, he added, produced a “lamentable sociological reality” based on “the concentration of wealth in a few hands”), he proposed embracing a different, anti-individualist view, based on the intervention of the State in the economy and directed at achieving the “common good.”26 (2) A renewed philosophy, based on the teachings of Aristotle and Saint Thomas. This philosophy was clearly influenced by the Vatican’s Social Doctrine and the value of “social justice” (which was interpreted according to the views of the Catholic Church).27 In line with these theoretical principles, Sampay criticized the old Constitution and proposed the adoption of a new jurisprudence that recognized “Christianism” as “the law of the country.”28 The presence of this philosophy helps to explain the particular content of the social clauses of the new Constitution, which included a new reading of the right to property and its “social function” and an unprecedented list of social rights (with the remarkable omission of the right to strike).29 At the same time, the 1949 Constitution included numerous clauses in defense of economic nationalism. In this way, and for example, it incorporated the significant article 40,30 which would remain as the symbol of this new nationalist conception.31 (3) A strong commitment to Christian morality, which explained the clearly perfectionist features of the new Constitution. This view was manifested, for example, in the notion of the “Christian family,” which the Constitution defined as representing the essence of the new society.32 For that reason, the Report added, the constitutional reform would be mainly directed at “providing support and strengthening the family, conceived of as the primary social nucleus.”33 For the new Constitution, society was going to be treated “not as a mere collection of individuals, but rather as a congregation of families.” The new document aimed to

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work for “the consolidation of the spiritual and moral principles” that it assumed were necessary for living together. (4) A political conception organized around the personality of the leader.34 Notably, the Majority Report reserved a special section for justifying the importance of concentrating power in the Executive. According to it, “historical experience demonstrates that the weakness of the Executive and the atomization of power in Parliament open the path to totalitarianism, which can be seen as a reaction against the political system’s incapacity to act, in a moment where it was important to have a strong State intervening in the economic, social, and cultural domains” (489‒90). Both the example of Perón in Argentina and Vargas in Brazil became enormously significant in the history of Latin American constitutionalism. They represented a new and in certain ways “successful” way of combining a novel commitment to social rights with a more traditional commitment to centralized political authority.

The Alternative of an Exclusionary Compact In this section we shall examine a new alternative response to the social crisis of the beginning of the century, which was based on an exclusionary political compact. We could characterize these compacts because of what they usually included (an agreement between the dominant political forces), what they usually excluded (leftist political forces), and what they mainly came to prevent (extreme uses of State violence and also the radicalization of society). This alternative response to the crisis represented the most explicit attempt to re-edit the old liberal-conservative compact of the nineteenth century. As in the old example, the new compact wanted to favor rapid economic growth and at the same time contain social conflict. For dominant sectors, the decision to go for this (exclusionary) agreement implied the recognition that the authoritarian response, which they had explored on other occasions, was no longer satisfactory. In what follows, we shall concentrate our attention on the two most significant exclusionary compacts that were celebrated in Latin America during the first part of the twentieth century.35 These are the compacts of Punto Fijo in Venezuela and the one of the Frente Nacional in Colombia.36

The Punto Fijo Compact in Venezuela The Venezuelan compact of Punto Fijo came after the end of Marcos Pérez Jiménez’s cruel dictatorship. Its main objective was to prevent the installation of a new military regime.37 In that context, the main leaders of the dominant political parties, namely the Alianza Democrática (AD), the Social-Christian Party or Comité de Organización Política Electoral Independiente (COPEI), and the Unión Republicana Democrática (URD), got together in New York, with the goal of reorganizing the public life of the country. In the meeting there were present, among others, Rómulo Betancourt, Jóvito Villalba, and Rafael Caldera, who were at that time living in exile in the United States. In

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their first important agreement, which became known as the “Pact of New York,” they decided to work together for the introduction of substantive political changes. Some time later, October 31, 1958, the leaders signed the Pacto de Punto Fijo, from which they excluded the Venezuelan Communist Party (Partido Comunista de Venezuela, PCV). The decision was, from a certain viewpoint, surprising, given that the PCV had taken a decisive role in the fight against Pérez Jiménez’s dictatorship. Through this contract, the signatories agreed to join forces in favor of three main issues: (1) presenting a common minimum program; (2) respecting the electoral process (that is to say, not to resort to coercive means in order to resist the electoral results); and (3) creating a coalition government where none of the three parties controlled the Executive branch by itself. Shortly after the signing of the compact, Venezuela held national elections (December 1958), where Rómulo Betancourt was elected president of the country. Two years after, the URD abandoned the coalition, which allowed for the creation of a virtually two-party political system. In this way, and thanks to their political agreement, the AD and the COPEI shared power and distributed political positions between them during the following decades and until 1993 (in actual practice, until 1999, when Hugo Chávez came to power). During this period, the main political forces enacted a new constitutional document, namely the 1961 Constitution. This new legal document would be in force for thirty-eight years, thus becoming the most stable Constitution in Venezuela’s contemporary history. Sanctioned during Rómulo Betancourt’s government, the new Constitution was only abrogated in 1999, after a national referendum. Throughout its life it received two important modifications: the first one in 1973 was an Amendment that prevented the former dictator Marcos Pérez Jiménez from running for president; and the second one, in 1983, introduced some significant changes in the electoral system. Partly based on the 1947 Constitution (which was abrogated by Pérez Jiménez in 1953), the 1961 document established a presidentialist system with no immediate reelection (although it permitted the president’s reelection after two periods). It also authorized the president’s impeachment by the Supreme Court (which actually occurred in 1993, against President Carlos Andrés Pérez). The Constitution also expanded the president’s power to intervene in economic matters (these powers would be augmented even more shortly after, through reforms that allowed the State to get control to the main natural resources). At the same time, the new constitutional document strengthened its profile in favor of welfare (for instance, through expansion of the existing list of social rights). In addition, the Constitution reserved significant legislative powers to the president (particularly through the use of legislative decrees), although it also established some new legislative controls over the Executive. Among these controls, we may highlight the Senate’s capacity to evaluate the president’s main appointments in the Army or in the Foreign Service. Moreover, the Legislative was allowed to supervise some key presidential decisions, such as those of sending military forces abroad or the launching of expropriations. The presence of these particular constitutional features favored the idea that Venezuela enjoyed a system of “mixed presidentialism” (we must also remember, e.g., the Legislative’s capacity to censor and remove

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ministers, which appeared in Venezuela as early as 1864). Most of these controlling faculties, however, would disappear in 1999 with the arrival of a new Constitution. By that time, the existing political system, which had in fact favored the concentration of powers in the hands of certain political oligarchies, was basically dissolved. This was so, particularly, after two crucial political conflicts that took place during Carlos Andrés Pérez’s last presidency: the so-called “Caracazo” (a set of violent social protests that took place mainly in the Capital, after the president announced a new economic adjustment, which was followed by hundreds of deaths after armed repression); and two attempts at a military coup, which took place in 1992, before President Pérez was forced to step down from power. According to some commentators, the process of popular mobilizations that reached its highest point with the “Caracazo” “put an end to the Constitution of 1961, which had been the product of the Punto Fijo pact” (Pisarello 2010, 191‒92).

The National Front in Colombia In the case of Colombia, the history of the exclusionary compact also began with a cruel dictatorship, which was led by General Gustavo Rojas Pinilla. Trying to put an end to this extreme version of authoritarianism, leaders of the political opposition began to get together and proposed the construction of a Frente Nacional, or National Front. The main figures behind the agreement were the conservative leader Laureano Gómez and the liberal Alberto Lleras Camargo, who was also the head of his party. One of the foundational meetings of the Front was celebrated in Benidorm, Spain. At that reunion, the opposition leaders recognized their own responsibility in the prevailing situation of political crisis and began to imagine a way out from authoritarianism. As in the Venezuelan case, they also proposed a political mechanism that would allow the opposition forces to share power and political responsibilities in the coming years. One crucial objective of the compact was to avoid the opening of a new cycle of political violence. Shortly after this first accord, a new agreement was signed in the city of Sitges. On this occasion, the leaders of the opposition decided to distribute power between their parties during the coming years. In addition, they decided to call for a plebiscite in order to provide the new compact with a broader base of popular legitimacy. Thus, when Dictator Rojas Pinilla finally abandoned power, a military Junta took his place, and ruled the country until August 1958. After this transitional period, the government convoked a national plebiscite, as agreed. Most of all, the compact between liberals and conservatives came to ensure peace and political stability. For that purpose, two main and crucial solutions were proposed: “parity” and “alternation.” Parity implied the equal participation of each of the parties in governmental functions. Meanwhile, alternation referred to their successive access to the presidency of the Republic. The idea was that during a period of twelve years, the Liberal and Conservative parties would alternate in the presidency, in a way that implied two periods of government for each of the parties. As a consequence of the compact, Alberto Lleras Camargo was elected as the first president of the National Front. After him, there followed Guillermo León Valencia in 1962, Carlos Lleras Restrepo in 1966, and Misael Pastrana Borrero in 1970. As anticipated,

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the Front excluded political forces from the Left—that is to say, it excluded not only revolutionary groups but also reformist political options. As one author maintained, the compact between the dominant forces consecrated in the end “the doctrine of the shared hegemony, the parity between liberalism and conservatism, and the total negation of the electoral and political rights of those who were not affiliated to the official parties” (García 1977, 210). The 1957 plebiscite was approved by more than 90 percent of the voters. It established the principle of alternation between the two main parties for a period of twelve years, and defined that the first elections would be held in 1958. Another constitutional change, which took place in 1958, extended the alternation pact for a total of sixteen years (that is to say, until 1974). It also established that the first presidency would be occupied by a liberal, rather than a conservative politician, as initially established. In 1968, the government of Lleras Restrepo promoted new constitutional changes, which anticipated the end of the old compact. Although the novel constitutional change was mainly directed at economic matters (the figure of “economic emergency” was then created, which gave the president additional economic powers in times of crisis), it also introduced some modifications with regard to the National Front agreement. Mainly, the reform opened some room for the intervention of minoritarian groups in politics and tried to guarantee that the party that came second in the elections, after the end of the agreement, also obtained an “equitable” participation in government. The idea was to preserve the “spirit” of “shared government” after that ending. How should the working of the exclusionary agreement be evaluated? It is true that the agreement brought political stability to a country deeply marked by political violence and instability. However, it is also true that the compact brought with it significant problems. According to a Colombian thinker, the National Front compact provoked feelings of exclusion and apathy in vast sectors of the population. Electoral abstention, for instance, rose to around 50 percent during those years (Gutiérrez 2007, 107‒9). Similarly, the historian Halperín Donghi claimed that the compact came to “freeze . . . the Colombian political life under the control of the liberal and conservative oligarchies,” which would occur in the following sixteen years. In his opinion, the alliance, which at first “was seen as an instrument for the broadening of the political realm and the democratization of society,” became then “an instrument working just in the opposite direction,” this is to say for the consolidation of an elite compact (Halperín Donghi 2007, 419).

The Socialist Alternative In this section we shall make brief reference to two remarkable expressions of the socialist response, which appeared in Latin America during the mid-twentieth century. The first of these expressions has to do with the triumph of the Cuban Revolution (January 1, 1959), led by Fidel Castro, which put an end to the dictatorial regime of Fulgencio Batista. The second is the one that appeared after the surprising triumph of the socialist leader Salvador Allende in the presidential elections of Chile in 1970.

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Constitution and Socialism in Cuba after the Revolution The Cuban Revolution took place in a context of political extremism and social effervescence throughout Latin America and the Caribbean. First of all, it was in those years that the United States exported the politics of “McCarthyism” and “anticommunism” to the entire region, which normally implied the adoption of dire political measures against the Left. Second, also in those years, the United States promoted a military intervention in Guatemala, designing and executing a military coup (1954) against the government of Jacobo Arbenz, which created some additional tensions in the region. Arbenz was accused of developing a radical program of agrarian reform, and the United States feared that Guatemala would become a territorial basis for the operation of the Soviet Union in the region. The pressures of the United States in the area thus increased, particularly in Central America and the Caribbean. Moreover, it was also at that time when the Bolivian Revolution of 1952—“the most extraordinary event in the entire history of the country,” according to Zavaleta Mercado—took place (Zavaleta Mercado 1984, 99).38 The Bolivian insurrection seemed to demonstrate that in order to achieve a successful revolutionary movement, an ample social coalition was required—one that incorporated different social sectors and different ideologies, rather than simply extreme expression of the radical Left (Angell 1994, 195).39 In such a context, the triumph of the Cuban Revolution appeared as yet another remarkable event, which immediately provoked a political commotion in the region. Even though there are numerous aspects of the Revolution deserving a close analysis, in this section we shall mainly concentrate our attention on the relationship between the Cuban Revolution and constitutionalism. The first constitutional norm that prevailed in Cuba during the socialist era was the one of 1959, which would be in force until the enactment of the 1976 Constitution. The 1959 Constitution challenged the constitutional precedents of 1901, 1934, and 1940, which had opened the door to attenuated versions of presidentialism. The 1901 Constitution, which seemed to be inspired by the liberal US Constitution, adopted the traditional political organization based on the notion of “checks and balances”—but with some changes, such as the concession of some additional powers to the president. That Constitution also became famous for the inclusion of the so-called Platt Amendment, which was incorporated to its text in February 1901.40 During more than three decades, the Amendment was used for “establishing and expanding the hegemony of the United States in Cuba,” and thus became a “visible symbol and a provocative expression of U.S. ascendancy” (Pérez Jr. 1986, 336, 338). The 1934 Constitution, instead, created a different Executive power that was based on a president and a Council of Ministers. By contrast, the 1940 Constitution was inspired by the Spanish 1931 Constitution and the Weimar Constitution. It was also defended by Fidel Castro before the triumph of the Revolution, in well-known texts such as La historia me absolverá and the Manifiesto de la Sierra. The Constitution appeared to be one of the most interesting consequences of the 1933 Cuban Revolution, by which General Machado was thrown out of power (Castro 1957). Considered to be “one of the more liberal and progressive Constitutions ever written in America,” the 1940 Constitution “was an attempt to establish both in history and on paper what the 1833 Revolution had not managed to implement in practice” (Farber 1976, 94, 96).

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With the instauration of the new revolutionary socialist regime, however, the prevalent constitutional organization suffered radical changes. According to an early commentator, the new regime made an attempt at transforming “aristocratic democracy” into a “Rousseauistic” democracy (Frondizi 1961: 154‒55). In constitutional terms, however, what Cubans wanted was different: they wanted to make a transition from the traditional system of separation of powers to a different one, based on the idea of the “unity of power.” Socialist constitutional theory, it was said, was incompatible with the idea of the separation of powers (Azcuy 2010, 214). In February 1959, the government introduced fundamental modifications in the organization of power (which would be very much in line with those that would come to distinguish Latin America’s radicalism in the twentieth century). Above all, the government concentrated powers in the Executive branch as a way of ensuring the imposition of social changes “from above.” The arguments in support of this extreme concentration of power were many, including the need to establish the “dictatorship of the proletariat” (thus initiating the transition to socialism) and the need to resist the menaces coming from external threats. In part, the new Constitution reproduced the organization of powers already established in the 1940 Constitution, through the creation of a presidential structure composed of the Executive power and the Council of Ministers. However, the Constitution also introduced some important changes to the traditional structure. Now, “Congress was suppressed and the Legislative power appeared in the hands of a Council of Ministers, which in fact strengthened the powers of the president, who was in charge of appointing those ministers” (Valencia Carmona 1979, 91). Actual practice, in addition, made this situation still more extreme because Fidel Castro became in charge of the exercise of the Executive functions: he appeared as “the Commander in Chief, the First Minister, the First Secretary of the Revolutionary Organizations (ORI), and the main popular leader” (Valdés Paz 2009, 109). In less than three years, the new regime replaced the entire Army Forces for new ones, created a new institutional system, changed the composition of the State bureaucracy almost completely, organized popular masses for the defense of the Revolution, nationalized the economy, displaced the old dominant economic power, and created a new media system (123‒24). The Revolution thus consecrated a system of extreme concentration of power and gave form to a single-party system (124).41 The 1976 Constitution, which received the support of a popular referendum, introduced some changes in the original constitutional organization and put the system more in line with the Soviet 1936 Constitution. In particular, the new document stressed the role of the Communist Party, organized a planned economy, and established free health services and education. In addition, the new Constitution created a Council of State, a Council of Government (which belonged to the Executive branch), and a National Assembly of Popular Power (a legislative institution). The 1976 Constitution deserves special attention for different reasons. For example, this is the first American Constitution that explicitly adhered to the socialist creed (art. 1 maintains that Cuba is a “socialist state of workers”). The Constitution also declared to be guided by the ideas of Marx, Engels, Lenin, and also Latin American independence leaders such as José Martí (Preamble). In addition, the Constitution organized an economic system based on the collective ownership of the means of

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production (art. 14 reads: “In the Republic of Cuba rules the socialist system of economy based on the people’s socialist ownership of the fundamental means of production and on the abolition of the exploitation of man by man”), and defined for the State an active and non-neutral role in the areas of Culture and Education (Chapter V of the Constitution). Regarding the organization of power, the Constitution also included some uncommon features, such as the right to recall most public officers (according to art. 68, for example, “those elected must render an account of their work and may be revoked at any time”).

Constitution and Socialism in Chile after Allende’s Victory The experience of government of the Unidad Popular in Chile was very different from the one of Castro in Cuba. Allende became the president of the country after a process of transparent elections, where he obtained 36 percent of the total votes. The election was also scrutinized by different external organizations (coming particularly from the United States, which was involved in the “Cold War” and was closely following the political evolution of the region after the Cuban Revolution). The opposition parties began to act as if each step of the new administration implied a direct or indirect defiance to basic individual (and particularly property) rights. In fact, and as a consequence of the political tensions generated by the election, Allende was forced to sign a Statute for Constitutional Guarantees, before assuming government. The opposition obliged Allende to do this as a precondition for providing him with the congressional authorization that he needed in order to become officially appointed as the head of government. Congress had to choose the president between the two parties that obtained the majority of votes in the election. The tradition indicated that Congress had to simply accept the first majority, but the apprehension generated by the Unidad Popular moved them to challenge the traditional procedure. Allende finally accepted signing the Statute of Guarantees, through which he committed himself to preserving basic liberties and rights. The Statute imposed strict obligations upon the new government, particularly with respect to the rights of freedom of expression, assembly, and education. In addition, the government committed itself to compensating proprietors in case of expropriations (which were included in the party’s electoral program). Allende managed, at least at the very beginning of his mandate, to advance some important measures, including those concerning the nationalization of copper, the nationalization of private companies, and an agrarian reform. In addition, and in order to provide these initiatives with a broader legal support, Allende promoted a constitutional reform, in 1971, which was concentrated in article 10 of the document. The reform came in support of the government’s main economic initiatives. Among other things, it cleared the way for agrarian reform and declared that natural resources belonged to the State. In addition, it made it easier for the State to afford its economic obligations after nationalizing or expropriating private companies.42 Allende had a difficult relationship with the legal world during his entire mandate. Ultimately, these tensions were another important expression of the heated legal, academic, and political debates that characterized the region, particularly after the Cuban Revolution.43 The fact is, however, that the Supreme Court led one of the

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most severe institutional disputes with Allende’s presidency. The conflict between the Executive and the Court became manifested in a strong exchange of discourses and letters between the two. On May 26, 1973, the Court wrote a letter to the president, maintaining that: This Supreme Court feels obliged to address (the president, once again, given) the illicit attitude of the administrative authority, which consists of illegally interfering with judicial affairs, and also in putting obstacles to the police when the latter is trying to fulfill its obligations, following the commands of the Criminal Courts. . . . [These] attitudes not only put the rule of law in crisis, but also suggest the imminent or peremptory breakdown of the nation’s legality. In a speech that followed immediately after the Court’s letter, Allende tried to reaffirm his authority and stated: “In times of revolution, the political power has the right to decide whether judicial decisions correspond, or not, to the high aims and historical needs for transforming society, which must take absolute priority. As a consequence, the Executive has the right to decide whether he enforces the judicial decisions or not.” Later on, in a letter published on August 23, 1973, the Court expressed its disagreement with the president, maintaining that it was its duty to respond to the Executive, given that the president insisted on “distorting the law, exaggerating the transcendence of the administrative task and undermining the judicial function.” Undoubtedly, the conflict with the superior tribunal severely affected the respectability and authority of the president, particularly within politically influential groups. The relationship between the Executive and Congress was also extremely tense. Congress was implacable in relation to many of Allende’s most important measures. For example, Chile had, at the time, a well-established practice of legislative delegation from Congress to the Executive (a practice that had become the rule during the governments of Carlos Ibáñez and Eduardo Frei). In spite of it, however, the opposition consistently denounced Allende’s government for exceeding its legal capacities, and at the same time established limitations to its capacities to decide (Cristi and Ruiz Tagle 2006, 127). In June 1973, for example, Congress sanctioned a constitutional reform (the so-called “Hamilton-Fuentealba” reform), which strictly limited the government’s capacities to carry out expropriations. Undoubtedly, the peak of the legislative actions against the president appeared in August 1973, when the Chamber of Deputies published an “Agreement” whereby it denounced the “grave breakdown of the constitutional order and the legality in the republic.” According to the legislative majority, the government “had not incurred in isolated defilements of the Constitution and the law, but rather in a systematic practice of violations.” The president, it added, “has ignored and encroached on the attributions of the other branches of power, usually through the violation of the existing constitutional guarantees . . . and the creation of parallel, illegitimate powers.”44 Allende responded to this legislative declaration by claiming that the Agreement ignored and finally denied the very existence of the Constitution. However, the end of the government was already defined, and on September 11, 1973, a military coup commanded by General Augusto Pinochet put an end to the unique experience of a

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socialist government elected through popular suffrage. Tragically, President Allende decided to end his life while the military coup was taking place.45 The examples of Cuba and Chile became the mirrors in which all leftist movements in the region have found inspiration since the mid-twentieth century. The Cuban Revolution showed that it was actually possible to organize the political and economic life of a country in a way that defied traditional arrangements. The initial, inspiring promise of Cuba, however, became more opaque after the passing of time, as a consequence of external political pressures, internal economic crises, and also the abuses committed by the ruling elite. Meanwhile, the socialist government in Chile helped to confirm the severe limits faced by the socialist alternative, in the context of internal and external political hostility.46 *

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The Left and the Constitution: A Fundamental Change in Democratic Radicalism The role of radical groups in the new century varied, from time to time, and from country to country. What is clear, in any case, is that the old ideas, now renewed and more extreme, had become for the first time attractive to large social sectors and were capable of seriously challenging the dominant political order. The Latin American Left had, then, its first participation in electoral politics through different socialist parties. In addition to these socialist parties, in the new century there also emerged different activist groups, including some linked to anarchism, communism, pacifism, or indigenism that vehemently irrupted in the social and political scene. There were, of course, important lines of continuity between the old nineteenthcentury radicalism and its renewed, twentieth-century version. Most significantly, the old and new versions of radicalism shared some egalitarian ideals, their decision to serve the interests of the most disadvantaged, a certain confidence in majoritarian politics, a preference for more direct forms of democracy, an animosity both against conservatism and liberalism, a willingness to fight for the expansion of political rights, and a common concern for the so-called “social question.” In addition, the radical Left maintained an interest in changing the established “rules of the game,” which explains why it always showed a critical attitude toward constitutionalism. Gradually, however, the Left began to adopt a more skeptical view of the law and finally broke relationships with it. There are many reasons capable of (at least partially) elucidating this sad outcome. Perhaps the Left considered, after so many bad experiences, that dominant groups only appealed to a democratic and legalistic rhetoric in order to mask the use of brute violence against their political representatives. Perhaps leftist activists recognized that the law was only or mainly at the service of maintaining existing inequalities. Perhaps the Left simply subscribed to the traditional leftist doctrines that treated the law as a mere superstructural epiphenomenon, which depended on structural and fundamental economic relationships.47 Clearly, this view became extended in the entire region when Marxism became more influential as a political ideology, and particularly after the triumph of

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the Cuban Revolution. In those years, for example, leftist authors referred to constitutional clauses as “mechanisms . . . of the juridical supra-structure” (Escasena 1984, 129), stated that the Constitution merely “ratified the existing economic and political relations” (Peraza Chapeau 1986, 184), described its content as the mere “reflect[ion of . . . ] the socioeconomic reality” of the country (Fernández-Rubio Legrá 1985, 53‒54, emphasis added), or as a mere mirror of reality (Palacios Barrera 1988). Some others made a distinction between “the formal constitution” (the text) and the “real constitution” (the material, external reality) (Alvarez Tabio 1985, 13).48 The fact is that, through most of the twentieth century, the political Left and the law became decoupled and ended up operating in different realms. The situation remained basically the same for a long time, at least until the end of the century, when, after a long period of atrocious dictatorships, the Left began to rearticulate its links with constitutionalism and human rights. Thus, by the end of the twentieth century, and after decades of suspicion against the law, the Left opened itself again to constitutionalism. This final alteration came to complement some other, rather curious developments in the radical and leftist approach to the law, which took place in the last decades of the twentieth century. First of all, the Left (or at least an important part of it) seemed to have substantially abandoned (or substantially modified) its long-standing concern with the “social question.” Oddly, perhaps, the Left seemed to have learned to speak the liberal language of rights. (We shall come back to this point in the following chapter.) This was now the language that the same Left spoke when it had to say something about the social needs of the poorest, or the social protections required by the most disadvantaged. The Left found itself demanding the inclusion of new and more ample social rights in the Constitution, which it had never done before, at least in that fundamentally formalistic way. The notion of social rights seemed to have taken the place of its traditionally more complex and substantive approach to the “social question.” In this way, also, the Left favored the judicialization of problems that were fundamentally political and also contributed to the individualization of conflicts that were fundamentally collective. The changes in the Left’s approach to constitutionalism were still more serious than the ones just described. In effect, and according to what we examined in previous pages, the radicals’ traditional view suffered from additional and substantive changes (not only in its approach to rights but also in its approach to the organization of power). The unequivocally anti-presidentialist, democratic, and federalist conception had muted now into a completely different (almost opposite) one. In effect, while in the nineteenth century radicals had (almost) always fought for the democratization of power, by the end of the twentieth century many radicals and leftists began to advocate for (or at least tolerate) the concentration of power in the Executive branch. In this way, radicals seemed to subscribe to the traditional conservative claim concerning the institutional system. Of course, to state this does not imply that the profile of the new constitutions that shone in the first half of the twentieth century (constitutions that were very strong regarding social rights and conservative in the organization of power) was due mainly to the pressures of the Left. Quite the contrary, cases such as Perón (faced with a radicalization of the Left, according to Waisman 1987) and Vargas (who confronted

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Luis Prestes’s forcers), and the conservative compacts of Colombia and Venezuela (covenants that were exclusive of the Left) refer to a new constitutionalism with some social rhetoric, but decidedly anti-leftist in reality. It is not clear why the Left changed its traditional view, particularly concerning the organization of power, so profoundly and in such a short time. The changes may have been the product of multiple, different factors, including ignorance, lack of interest, and also the disgraceful fact that many of its more lucid minds became victims of prosecution and violence—which actually prevented the Left from deepening its analysis of the institutional system. On other occasions, the Left’s defense of the centralization of power seemed to merely respond to a certain “division of labor” with the dominant political forces. The Left seemed to have concentrated its attention on the social aspects of the Constitution—its Bill of Rights and the expansion of its social rights, in particular—while dominant forces would have kept control of the design or redesign of the “organic” part of the document. In addition, examples such as the Cuban Revolution seemed to teach that the concentration of powers was a necessary precondition for setting in motion the types of changes required by the Revolution (Azcuy 2010, 284, 290).49 (Examples such as the case of Cuba, in which the polemic had been renewed about whether or not it was necessary to concentrate power in order to promote social change. In the past, Marx had been against that alternative and had harsh criticism of the leader Simon Bolivar.) For Marx, Bolívar represented another disgraceful example of Bonapartism).50 Moreover, some contemporary theorists have maintained this point, asserting that the concentration of power was necessary, on occasion, to make possible the breaking of the net of interests that prevented the expansion of popular power (Unger 1987; Nino 1993).51 In any case, we should add, the Left tended to ignore the lessons taught by its ancestors, who, with good reason, had always warned of the risks derived from the concentration of authority in one or a few. In that way, they claimed, the main responsibilities for social change became dependent on the goodwill or good disposition of a small (and normally unchecked) minority. Curiously, by the end of the twentieth century, the strong radical view maintained during most of the nineteenth century by radical activists seemed to have changed completely—it looked like liberalism, concerning the Bill of Rights; and it looked like conservatism, concerning the organization of powers.

7

Grafting Social Rights onto Hostile Constitutions Introduction: The Old and the New Law An old metaphor used to understand legal reforms describes current law as a large and tranquil lake, and legal reforms as leaves that fall onto that lake. These reforms, like leaves, rest atop the existing law (the peaceful lake) and seem, at first, to be alien to it. For a long time, the new law and the old seem like distinct bodies and each maintains its own identity. Similarly, the leaves float on the lake, unharmed, as though they have not realized their contact with the lake. However, time passes and, little by little, the makeup of the new law changes—the leaves give in—and the interior architecture of the reform begins to lose strength. Little by little, reforms that seemed like foreign bodies to the old law begin to modify their texture to resemble that of the law on which they rest. Time passes and the reforms, like damp leaves, no longer appear to be distinct bodies. Now, the old law and the new, just like the lake and the fallen leaves, create one body. However, are these images really appropriate for thinking about the links that are created, slowly, between old and new laws? The noted conservative jurist Andrés Bello, enormously influential in the region, seemed to conceive of the relationships between the new and the old law, according to similar lines and images. He refused to see the community’s laws as clear expressions of the “habits and sentiments of the peoples” (Bello 1997 19:166‒67). By contrast, he believed that the most common situation was rather an opposite one, which implied a mixture between the community’s norms and aspirations, and the norms and aspirations of other communities. The slow process of mixture between the local and the foreign law tended to reproduce the process described in the metaphor of the leaves and the lake. He said: The ideas of a people get incorporated to the ideas of another people; and losing one and the other their purity, what was at the beginning a mere aggregate of discordant parts becomes, little by little, an homogeneous whole, which will resemble in different parts to its particular origins, and which from another viewpoint will present new forms. From the clash of these diverse ideas will emerge an outcome, which will resemble more or less one of its particular components, according to the intensity of the received influences, and the circumstances that favored them, respectively. (19:166‒67) 132

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Again, what we find here is a situation where—as in the metaphor—different materials, coming from different places, begin to interact until they constitute a new, integrated element, different from its original parts, and which is not the mere aggregate of its original parts. A cursory look at this metaphor suggests a more-or-less quick and nonconfrontational adaptation between the established body and the newly arrived one. The metaphor suggests it is just a matter of time until the process ends happily, with the smooth integration of one part with the other, after both have given in and abandoned their initial resistance. However enticing this view may be of the way links form between current and new laws, a critical look at the process suggests different results. In effect, it is important to note that the metaphorical image suggests a relationship in which the old law, as a dominant body, establishes a clear role of predominance over the body that arrives. This does not imply that reforms do not, like the fallen leaves, have some impact on the current law. Nor does it refute the more interesting observation that the mass of reforms can generate significant change in the long run, much like a multitude of leaves can have a significant impact on the lake upon which they fall. Nonetheless, nothing that has been said should prevent us from highlighting the unequal character of the link established between the dominant body and the one resting on it. It is the latter that suffers the greater impact—radically greater—and that, shortly, adopts the former’s structure. It is this special weight of the greater body, older and more vigorous, that I wish to emphasize. In other words, the metaphor does not refer to a relationship between equals, but to the collision of two unequal forces, where the weaker of the two will suffer the main impact. More than that, the metaphor under examination requires us to go a little further in our reflections. The example in question actually suggests that, after some time, the new, incorporated body ends up virtually disintegrated (unless this is a continuous process, where one leave falls after the other, which may end up substantially affecting the nature of the lake). In this more common, case it would be a misunderstanding to talk about a process of mutual integration, rather than of a different process, where the dominant body ends ups imposing its dominion upon the newly arrived body. This idea, in fact, is present in Andrés Bello’s reflection on the topic. Bello assumed that “from the clash of these diverse ideas will emerge a resultant, which will resemble more or less one of its particular components, according to the intensity of the received influences, and the circumstances that favored them, respectively.” In the following pages, we shall focus on this process of unequal legal integration where, in principle, all indications suggest that existing legal practices tend to impose their force on new ones. To do this, we shall consider perhaps the most important example, in terms of mixture of different legal traditions, that is offered by the Latin American region: the incorporation of social rights into the framework of Constitutions that were hostile to the social demands creating those rights.1

Three Questions for Constitutional Theory The operation of “constitutional grafting”—in this case, the attempt to incorporate a radical social profile into a liberal-conservative model—creates significant questions

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for constitutional theory. In the face of these complexities we shall explore three questions of the many that are possible. (1) The first refers to a question regarding the internal influence of a particular constitutional graft. Our starting point, in this case, will be the following insight in order to ensure a successful reform, we need to pay particular attention to the ways in which that reform may affect the same modified constitutional structure. That is to say, we should not only focus our attention on the ways in which the new Constitution impacts upon the “external world” (i.e., the way in which the introduction of new rights expands the scope of personal liberties) but also explore how changes introduced in one part of the Constitution affect other parts of it. For example, we will explore how an extension in the list of enumerated rights may provoke changes in the structure of government, say, by actually transferring more powers to the Judiciary; or how a change in the organization of power— say, the introduction of a new Judiciary body, like a Constitutional Court—may change that same organization of power, for example, by reducing the actual capacities of the existing Supreme Court. We shall make reference to these cases through the notions of crossed impact and internal impact of the reforms. (2) The second question that we shall examine will take us to reflect upon problems of constitutional translation. Our main question, in this case, shall be the following: When we reform the existing Constitution—which belongs to a certain model of constitutionalism (say, a conservative Constitution that concentrates the authority in the Executive)—by introducing institutions that are characteristic of a different constitutional model (say, a typically liberal institution, aimed at restricting the powers of the Executive), what should we do in order to “translate” the new institution into the “language” of the old constitutional order? Our concern is that most constitutional reforms are carried out as if we had only one, single, constitutional “language”—as if the exercise of “constitutional translation” were unnecessary. In this way, we tend to minimize or underestimate the particular efforts required for ensuring a successful graft. (3) Finally, our third question shall be related to the problem of the dormant clauses. In this case, we will be thinking about the introduction of new institutions that (beforehand) we knew would have serious difficulties for being set into motion (i.e., a new set of so-called “aspirational” rights). How should a sensitive reform proceed in this situation? Should we bet on these novelties (say, new social rights), hoping for a change of external circumstances? Should we abandon that initiative so as not to transform the Constitution into “mere poetry”? In what follows, we will examine each of these cases in more detail.

On the Possibilities of a Successful Constitutional Graft: Internal Impact, Crossed Impact The first question that we shall deal with leads us to look at the influence of constitutional reforms within the internal dynamic and organization of the reformed Constitution. The topic has particular importance given that, remarkably, at the time

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of reflecting upon and evaluating the impact of a particular constitutional reform, we tend to merely focus on the “state of the word” “outside” the Constitution. That is to say, we tend not to pay attention to the meaning of that reform in relation to the same constitutional structure. There are at least two types of influences that it makes sense to distinguish and examine, given that all Constitutions contain two parts: a dogmatic one that includes a declaration of rights and an organic one that divides and organizes power. On the one hand, it is logical to focus attention on the way the reform inserted in a certain section of the Constitution impacts the internal structure of that same section. This is the “internal impact.” On the other hand, it makes sense to explore the way in which the reform inserted in a certain section of the Constitution (for example, a reform in the area of rights or a reform in the area of the organization of power) impacts the other section. This is the “crossed impact.” In what follows we shall be mainly concerned with the impact that reforms in the rights sections tend to have over the section dedicated to the organization of power. Having said this, let us think about the internal impact of reforms—that is, the way in which a reform to one section impacts the internal structure of that same constitutional section. As an example, think of the introduction of a constitutional court or magistracy council within Constitutions already endowed with a designated judicial organization under the authority of a supreme court. When reflecting on this type of reform and evaluating its efficacy, it is not enough to pay attention to the way in which the new institution is organized or how it works. That is, it is not enough to ask important questions such as whether it will be adequately staffed or financed. It is also particularly important to ask how the new judicial institution will interact with the other constitutional institutions that comprise the extant framework. Certain questions, in particular, turn out to be particularly revealing and promising in this respect. For example, what institution previously carried out the functions that the new institution—call it X—will now carry out? What institution will have its operative capacity or decisional authority affected by X’s arrival? These inquiries are important in principle, much beyond what practice may reveal their answer to be. The point is that when it comes time to promote a reform in the organic part of the Constitution, the main resistance to newly arrived institution X can come from within the existing constitutional structure. That is to say, it is foreseeable that the organic reform may be affected by resistance from an existing entity or individual—for example, from a public official—that is directly impacted by the introduction of the change in question. It is not unforeseeable, in this sense, that the more institutions and public servants are affected by the change, the greater resistance the newly adopted institution will have to face. A good illustration of this phenomenon can be found in the example of the so-called “train wreck” in Colombia, which pitted the old Colombian Supreme Court against the Constitutional Court introduced by the Constitution of 1991.2 Both institutions maintained for years a relationship of rivalry and tension, which started with the birth of the latter and which has yielded persistent disputes over power, as well as a noxious competition between the two courts (Cepeda 2007; Uprimny et al. 2006). A similar example is offered by Argentina and the tensions that have arisen between the old Supreme Court and the Magistracy Council, which was introduced by the 1994

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constitutional reform (Garro 2007). Beyond the design problems of each of these institutions and the fact that conflicts might have been minimized had their competencies been more clearly delineated, the truth is that the types of conflict that have resulted were foreseeable from the moment contemplation of the new institutions began. This is true even though events clearly suggest that such conflicts were not actually foreseen. The failure to anticipate these conflicts suggests how little attention is paid to what we called the internal impact of reforms. Another interesting case of internal impact would relate to tensions at the interior of the section of rights of the Constitution and after the introduction of certain novelties in the area. Imagine, for example, the case of a Constitution that incorporates new indigenous, multicultural, collective or group rights, and the possible tensions that these kinds of moves generate regarding the more traditional structure of individual rights. Here we may find significant difficulties for accommodating certain new or renewed commitments with the collective rights of an indigenous group, and the desired respect to the individual rights of the members of that same indigenous group (a problem that Will Kymlicka examines through the categories of “internal restrictions” and “external protections”; Kymlicka 1995). Similarly, we could think about tensions originating between the strong social commitments assumed by the new Constitutions and their more ancient or traditional clauses establishing strong protections to property rights.3 Of course, like situations not only help us understand the tensions that appear when a certain reform is put in place but also explain the difficulties that exist for introducing constitutional or legislative changes of a certain type. In spite of its obvious character, we tend not to think sufficiently about the way in which existing powers tend to block the production of changes that may put in question their own practical capacities. Typically, the Executive power will tend to block all those constitutional or infra-constitutional changes promised by the Constitution, but capable of reducing the powers of the presidency. This is, for instance, what happened in Bolivia, where the president severely undermined the popular right to participate in the selection of judges (incorporated in the 2009 Bolivian Constitution; see Veizaga Ovando 2010, 67; Quiroz and Lecoña 2012, 220‒45) by forcing the electorate to choose candidates coming only from a list previously agreed upon by the president’s majoritarian party (Albarracín Sánchez 2011; Asbun 2011). For those cases, we may foresee that the Executive will use his or her legislative and veto powers against the threatening initiatives. Similarly, Congress will tend to block the enforcement or implementation of those reforms capable of reducing or somehow challenging its own authority. This is, for example, what Demian Zayat explains in the case of Argentina (Zayat 2011, studying the difficulties for implementing the participatory clauses included in the 1994 Constitution). Not surprisingly, some of the most significant or interesting reforms that appeared in the Latin American context, in recent times, have been either the result of an explosive political context (as in the case of Colombia 1991, see Lemaitre 2009), or a certain negligence on the part of legislators (as in the case of Costa Rica and the introduction of the Sala IV; see Wilson 2010). We shall now discuss the crossed impact of reforms in the area of rights on the organization of power. The impact of these reforms can vary based on many factors, for example, if the reform in question is more or less comprehensive, if it operates on a more or less consolidated structure, or if it can transcend the text of the Constitution.

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One way to begin thinking about the possible impact of these constitutional reforms is to pay attention to a series of persistent reflections that were carried out about the subject, now years ago, by Argentine jurist Carlos Santiago Nino.4 Nino was interested in calling attention to the paradoxical reality that followed the then-habitual modifications of Latin American Constitutions—modifications that were destined to expand the list of existing rights in order to annex new social rights. The Argentine jurist detected a problem in these reforms, which were unquestionably made by groups that were more advanced or progressive and more favorable to social change. The problem had to do specifically with the crossed impact of these changes—in this case, the impact of the introduction of these new social rights on the organization of power.5 For Nino, it was clear that, upon the incorporation of new social rights, progressive forces would fall into a paradoxical position. Contrary to what these forces hoped, by acting in this way they transferred additional powers to the judicial branch6—the branch furthest from electoral or popular control and, in Jeffersonian terms, the least republican of the branches (Jefferson 1999). In the face of this paradox, Nino questioned the rationality and appropriateness of introducing new social rights aimed at strengthening the power of the people and the capacity for action and decision by society’s most marginalized groups. Was this the hoped-for result of the constitutional reform? Or was it that they, in reality, threatened to undermine even further the power of disadvantaged groups?7 It can be said that the doubts raised by Nino revealed, above all, the lack of reflection by many constitutional activists motivated to defend the rights and interests of those who are worse off. Of course, Nino may or may not have been right in calling into question the ultimate progressive character of the expansion of social rights. Perhaps, in certain contexts (i.e., in the face of a radically corrupt legislative branch), it could make sense to strengthen the judiciary in this way. Most importantly, it could make sense to include such rights at a constitutional level given what that can symbolize as a gesture oriented at the “empowerment” of the most forgotten or downtrodden groups (independent of what this recognition might mean in terms of the distribution of constitutional power). However, of interest now is what reflection about the case does to encourage us to think about the analysis of constitutional reforms. Through his inquiries, Nino helps us see that the traditional reforms carried out in the dogmatic section do much more than expand the existing list of rights. Whether intended or not, this type of reform is not neutral on the subject of the organization of power. As such, and in order to evaluate its impact, we need to look beyond the boundaries of the demarcated section on rights, asking ourselves about the impact of the reform on the distribution of power among the different branches of government. In the case examined here—that of social rights—the idea would be that today, given the mode in which we think about rights and act in relation to them, making the rights section any more robust would imply, in principle, a transfer of power to the judicial branch.8 This would not require the judicial power to take active measures in the implementation of these rights to flex its muscles before the political branches of government. The inactivity of a majority of judges in this respect does not deny the existence of their potential to put such rights in practice, something that in fact has occurred.9 Judges may enforce rights unexpectedly in the face of any demand.

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In any case, the previous reflection may be useful to call our attention to a more general point, related to the deficit that tends to distinguish contemporary approaches to the subject (Nino’s analysis being one significant exception). More specifically: at the present time, those who propose a constitutional graft tend not to think about the internal impact and crossed impact of the reform that they want. In the particular case of social rights, we tend to miss, first of all, a crucial reflection regarding the internal impact of that desired reform. In other words, how are these new rights going to modify or affect the existing structure of rights? (How are the new rights going to impact upon the old ones?) More to the point: What are the implications of incorporating a long list of social rights regarding the existing rights that, seemingly, legal reformers want to preserve (i.e., the right to property, contracts, and legal security, in general)? In the same way, we miss a reflection regarding the crossed impact of that reform. In that sense, we not only need to think about the way in which the new rights will expand or limit the existing organization of power (Nino was interested in this case, and in particular in the influence of the new rights regarding the capacities of the Judiciary) but also about the way in which the existing or possible organization of power will help or prevent the development of those new rights. Remarkably, all those difficulties and limits that seem to characterize contemporary reflections on constitutional grafts radically contrast with the reflections that were typical among the “founding fathers” of Latin American constitutionalism. In effect, members of Argentina’s 37 generation or the main Mexican intellectuals, at the time of the Porfiriato showed a lucid approach to constitutionalism, when they defended their basic proposal of “limited political liberties—ample civil (economic) liberties.” In effect, at the time of advancing those reforms, intellectuals such as Alberdi and Justo Sierra appeared to be well aware of the types of problems here examined. They all properly recognized that, in order to ensure full protection to certain rights (in their case, particularly, the right to property), nothing was more important than regulating in a certain way the organization of power (in their case, through the limitation of political rights). In sum, they adequately realized that the best way of ensuring certain changes in the area of basic rights was by ensuring certain changes in the area of the organization of power. In such a way, their reasoning was—directly and mainly—concentrated on the impact (in this case, on the crossed impact) of their constitutional proposals, something that contemporary reformers tend to neglect or forget. At this point, the provisional conclusion that we can present would be the following: at the time of reflecting upon the probabilities of “success” of a particular constitutional reform, and evaluating its possible impact, we need to pay particular attention to the way in which the reform impacts the very structure of the modified Constitution. Most probably, those reforms will affect the distribution of power organized by the same Constitution, which will tend to generate resistance to the reform, coming “from within.” As a result of this—in spite of the capacities of the public officers who will occupy the newly created institutions and also in spite of the authority or budgetary capacities of those institutions—we will need to carefully examine the way in which the new institutions will tend to “land” within the existing organization of power. As a consequence of this type of analysis, it is possible that a certain constitutional reform may not be desirable given the redistribution of power it will generate within

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the constitutional structure, or given that it could be carried out in another way considering the foreseeable internal tensions that a new institution will cause.

Convergences and Tensions between Different Constitutional Models In the preceding pages we have examined different ways in which a constitutional reform tends to impact the underlying constitutional structure that is itself undergoing reform. However, the examples we held up as related to particular constitutional reforms—the introduction of a magistracy council, the expansion of the list of rights—can and should be made more general. This is thanks to the knowledge we have accumulated in relation to the existence of different constitutional models. In effect, we have already made reference to different models of constitutional organization, which we called—following the language of the era—conservative, radical, and liberal. We know that in the constitutional history of the Americas there have been Constitutions of a conservative tone (i.e., Chile 1823, Chile 1833, Colombia 1843, Ecuador 1869), a radical tone (i.e., Pennsylvania 1776, Apatzingán 1814), and a liberal tone (Colombia 1853, Colombia 1863). Additionally, we have paid attention to Constitutions of “fusion” (of particular relevance are liberal-conservative Constitutions such as those of Argentina 1853, Mexico 1857, and Paraguay 1870). Here we should consider briefly the likelihood of success of constitutional reforms oriented at modifying the structure of the existing constitutional model. Clearly, the case of reforms that introduced social rights in the old Constitutions of the Americas is especially interesting in this sense. Here we speak of the introduction of reforms to the liberal-conservative constitutional model that were originally excluded from said compact; that is, the introduction of radical or republican reforms. The question can be discussed in a more general sense. Specifically, what possibility is there of successful reform when the aim is to modify, in this way, the constitutional structure in force? More precisely, what possibility is there of successfully grafting institutions belonging to a certain constitutional tradition into a constitutional body organized according to the parameters of a different or opposing tradition? One possible way to begin the aforementioned reflection would be to examine some of the facts that we know regarding the different constitutional traditions in the region. So far we have referenced conservative, radical, and liberal constitutional models. The first, as we know, can be defined by its combination of political elitism and moral perfectionism (the model that in Latin America signified power concentration in the executive and religious imposition). The radical model can be characterized—in sharp contrast with the conservative model—as a Rousseauistic model distinguished by political majoritarianism. The liberal model—which sought to mediate between the other two models—stands out for its defense of a balanced political system (versus the excesses of strong presidents and concentrated majorities) and its assertion of the religious neutrality of the state. Taking this panorama into account, it is possible to recognize the existence of areas of partial convergence and conflict among the different models. We have known of such agreements and disagreements throughout our study of history, but we are able to anticipate and explain them by paying attention to the areas of conflict and existing tensions between these various schemes. The intersections range from the

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common anti-majoritarianism of liberals and conservatives, to the shared rejection of liberal neutrality on the part of conservatives and radicals; they include the habitual resistance that liberals and radicals jointly presented when faced with the religious authoritarianism so common in Latin America. In short, the possibility of a successful transplant is increased when the institutions being introduced are part of the constitutional model in force (i.e., institutions with a liberal character over a constitutional scheme in force that is also liberal). For example, one might introduce a new comptroller’s office, say, “Auditor General of the Nation” or “Tribunal of Accounting,” within an existing checks and balances scheme. The likelihood of success is also increased when the institutions that are introduced form a part of a distinct constitutional model, but in areas where both models are compatible. This could occur, for example, with the introduction of liberal reforms that tend to limit the power of controlling authorities within a conservative institutional scheme, when the reforms are seen as clearly hostile to a radical political majoritarianism. To illustrate this by example, one might examine a case where the judiciary is given the power to conduct constitutional review and to invalidate laws deemed unconstitutional, an option considered typically counter-majoritarian. Such a constitutional change could be well received both by a liberal constitutionalism and a conservative one, if both are suspicious of legislative power and especially if the conservative suspects the government may have a particular influence in the nomination of members of the highest court. Meanwhile, the most difficult grafts would occur in connection with efforts to merge institutions belonging to different constitutional models in areas where they tend to conflict. We would talk, in this case, about mixed constitutions, that is to say, Constitutions that combine institutions coming from different constitutional models and, more specifically here, about peculiar mixed constitutions, that combine institutions that are in direct tension. This is the situation that was reported, for example, by Lucas Alamán about the Constitution of 1824, which was seen as an imperfect attempt to amalgamate the constitutions of the United States, Cadiz, and revolutionary France (Alamán 2008, 201; Aguilar Rivera 2008, 21). This is also the situation that, according to some, characterized the pioneering Mexican Constitution of 1917—the first to explicitly make a compromise between conservative liberalism and social rights. The jurist Emilio Rabasa described it, justly, as “a document with two well defined parts: the liberal and the social, or more precisely that of political juridical liberalism and that of economic social liberalism” (Rabasa 1986, 97). This was the case because the constitutional project adopted the tone of the domineering General Carranza, who tried to combine the liberal “political philosophy of the 1857 [Constitution]” with new elements of social content demanded by the growing influence of marginal sectors that participated in the social revolution that was taking place. Introducing social rights into a liberal-conservative scheme would be the typical, contemporary example of the phenomenon described above, given that social constitutionalism was expressly rejected by both liberals and conservatives during constitutional conventions in the nineteenth century. Moreover, social constitutionalism requires an institutional framework that challenges the current order and is characterized by institutions more responsive to popular demand. An institution of this sort is a far cry from the models that either liberals or conservatives would be willing to support.

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Another example of interest to Latin America would be institutions designed to emphasize mechanisms for direct democracy within a constitutional model hostile to civic participation. Once again, here we can anticipate tensions will run high as a result of attempting to combine institutions whose aspirations are contradictory in principle. Moreover, we might predict for such cases that the president in power will boycott or undermine those attempting to implement reforms that would affect the president’s authority (we will soon examine some examples in this respect). This is why, for example, the Bolivian intellectual Raúl Prada pointed to the strong contradictions that seem to affect the new Bolivian Constitution. For him, the new document works against colonization, but at the same time preserves colonial features, for example, in the organization of the State. It declares that the State is plurinational, communitarian, and autonomic, but it maintains a political geography that resembles the one coming from colonial times, and preserves institutions and powers that are eminently liberal in character. It incorporates institutions for popular participation and social control, looking for a new relationship between the State and society, but at the same time maintains institutional forms and a representative system that is clearly liberal. It combines, in the end, institutions of a communitarian and participatory democracy, with others that come from the old representative democracy (interview in Svampa et al. 2010, 186).10 Ultimately, recognizing the existence of differing constitutional traditions and analyzing their areas of connection and tension can be helpful when attempting to discern whether a given right will transplant successfully.

Translations between Different Constitutional Models The second of the problems we shall examine—a problem typical of the method used when attempting to incorporate social rights into Latin American constitutions—is the one related to issues of what we can call “translation.” To examine this type of issue, we can begin with the understanding mentioned above: that it is not easy to accomplish “blending” between different constitutional models. Nonetheless, as we have pointed out, said blends are facilitated in areas where different models intersect. For example, conservative and liberal Constitutions often have countermajoritarian leanings, and this makes them in many ways compatible. Additionally, this suggests that a number of institutional arrangements can be well supported by both constitutional structures. The translation problem appears with more intensity when we attempt to reconcile institutions associated with areas where the models in play conflict. For example, liberals and conservatives have celebrated relatively successful constitutional pacts (successful, at least, in terms of the stability they have reached). We also know that there are many areas of accord between the two models, and that these areas have made it possible for those pacts to enjoy success. For instance, the two models share a common commitment to a list of restricted rights, with an emphasis on the protection of property rights, and an institutional scheme with a countermajoritarian outline. Nevertheless, liberals and conservatives disagree profoundly in other respects. For example, they differ sharply regarding what powers they consider it necessary to transfer to the Executive branch. The conservatives consistently supported an

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extreme concentration of political power, while the liberals commonly fought against this, certain that such a concentration threatened their entire constitutional structure. Here we have a grave problem in translation. In the case of a majority of Latin American countries, the issue was whether one could incorporate the fundamental conservative demand for a greater concentration of power within the liberal, US-type constitutional scheme that was being adopted, and its system of checks and balances. This was a great translation problem and it was resolved, in most cases, by “unbalancing the checks and balances” through the ceding of additional powers to the executive branch. These powers converted the Executive into a primus inter pares. In principle, this peculiar graft was very problematic—a poorly made translation—and, according to some (though we do not insist upon it here), it came to be a cause of the frailty that accompanied the system from that moment. This ceding of power to the Executive became the Achilles’ heel of a scheme that was, in terms of stability, generally successful (see, e.g., Linz and Stepan 1978; Linz and Valenzuela 1994; Nino 1997). Having said this, we can return to the example cited in the prior section, referring to the introduction of social rights. We have here another case, more serious in appearance, of a failed blending between schemes. To begin this analysis, it is worth noting that many of the essential compromises of a particular constitutional model are often interrelated; that is, they need each other (for this reason we speak about models in general terms). Schematically, we could say that the following are found within the fundamental building blocks of the radical model: (1) a political organization that is open and responsive to participation by the people; (2) a rather egalitarian economic structure; and (3) citizens endowed with “civic virtue,” which in this case means, primarily, that they are motivated to actively participate in politics. These pieces were linked together and mutually dependent on one another. The objective was collective self-government, and this required a virtuous citizenry. To this end, political institutions were created that were open to and encouraged political participation. At the same time, radicals proposed to organize the economy in a way that encouraged the generation of collectivist behaviors and discouraged purely self-interested behavior. The absence of any of the pieces threatened to put the entire structure at risk. For example, if the general scheme was maintained, but the political framework was such that it closed off participation by the people, the institutional scheme would invite social unrest, and thus plunge the entire system into crisis. Similarly, if the institutions remained open to and supportive of participation by the people, but within a context of profound inequality, they risked undermining the entire participatory process that they otherwise attempted to encourage. Those most affected by the existence of inequality, in this context, would have great difficulty dedicating their energies to politics instead of ensuring their immediate subsistence. The problem that arises upon the constitutional incorporation of social rights is in the same vein as the problems mentioned above. For any of the radicals who advocated higher social engagement in the constitutional order in the nineteenth century, what was done in the twentieth century—namely, the inclusion of a list of social rights in liberal-conservative constitutions—would be seen as uninteresting, if not simply offensive. For those who felt as Artigas of the Banda Oriental did, or, better yet, as Ponciano Arriaga, the president of Mexico’s 1857 Constitutional Convention did—that the Constitution ought to be “the law of the land” (which is to say that

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constitutional reform should be accompanied by a profound reform that redistributed land ownership)—the mere incorporation of a list of social rights would have sounded nothing short of ridiculous. What relevance would said list of written rights have when the aforementioned men were working toward bringing about socioeconomic changes which included, but at the same time largely transcended, the drafting of a Constitution? The difficulties inherent to this operation (the introduction of social demands from radicals into Constitutions that were not sympathetic to them) were many. Primarily, such modest constitutional reforms were not accompanied by additional measures that were capable of sustaining the radicals’ old claims. This is not to say that the liberal-conservative leadership should have transformed its Constitution into a radical one; nor that they should have assumed that giving in to radical demands was necessary before they could give life to a radical scheme. Neither does it suggest that the pieces of one constitutional model must all fit together in only one fashion, nor that they cannot arrange themselves in different ways, or with other pieces, if they are to take on a life of their own. Instead, the point is that each constitutional model incorporates a certain internal logic that is far from arbitrary. Keeping this in mind, the radicals might reasonably argue, it was difficult to sustain the social reforms that they had proposed at the time, if at that moment they did not count on a mobilized society ready to defend the strong measures of change promoted. The Constitution—they might add—was capable of modestly collaborating in said task; nonetheless, it happened that those in charge of the reform had not taken any conclusive steps in that direction. Just the opposite. Indeed, it is almost impossible to imagine any success for the radical reconstruction proposals that were presented, when, ever since the new constitutional conventions, not only had the social mobilization required by the reforms not been encouraged, but concentrated power remained and was supported by the political and social elite hostile to the progress of radical initiatives. In institutional terms: was it conceivable, just to take an example, that the judiciary would be the vanguard in the social battle over expanded social rights, when it operated within a framework where the citizenry’s access to the courts was extremely closed off ? It is difficult to imagine a less favorable institutional context for the flourishing of this feature of social content. The last point that will be made regarding the failure in principle of this grafting operation (perhaps the most important point of all) has to do with the way in which the liberal-conservative leadership decided to incorporate the social demands that radicals had been advocating for decades. The method chosen was to translate these potent, vigorous, radical social demands into the liberal language of rights (Atria 2004; Gargarella 2004).11 In this manner, the radicals’ demands, which largely exceeded the constitutional text, were reduced to an especially limited constitutional formula. Transformed into social rights, the demands were now tightly bound, practically immobile, and they sat within a narrow, stifling mold that had almost nothing in common with the pattern the radicals, in their time, had used to make sense of, and give permanence to, their political and constitutional demands. What was left in the end was such a weak attempt at constitutional change that some might even call it a mere act of demagoguery or hypocrisy, that is to say, a way of committing through a series of actions known to be difficult to undertake due to innate shortcomings.

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Dormant Clauses The bleak outlook described in the previous pages calls for an important clarification, however, that could be very useful when we reflect on a more general concept that encompasses the Constitution, rights, and legal reforms: the concept of “dormant clauses.” To briefly summarize: in the previous pages we determined that it is important to take into account the ways of carrying out constitutional reforms. Constitutional reforms commonly involve modification of a text that establishes long-lasting institutions. Existing institutions or constitutional practices will not be expected to be neutral in the face of new institutional additions. They can aid or, more commonly, resist the arrival of such changes, if the implemented reforms are not taken seriously. Of course, there is no magic formula that will allow us to predict what must be or must not be done in such situations, but criteria exist that allow us to anticipate when a certain reform is off to the wrong start. The special example of social rights illustrates the material difficulties (and political irresponsibilities) that tend to accompany the difficult process of constitutional reconversion. In the end, we are talking about a case of an addition that was considered failed at the outset. Such affirmation is supported by a long-standing consensus that pointed to the many decades during which social rights fell into a constitutional slumber, cast aside in the desks of judges throughout all of Latin America who considered those rights as not directly operative. Within modern legal thinking, the problem is well-known: once and again, and during decades, judges opted for considering the new social rights as nonenforceable or mere programmatic rights, in contrast to traditional first-generation rights, which were normally subject to judicial enforcement.12 In other words, social rights were seen as political objectives to be promoted through law, by the political branches, rather than as traditional rights under the custody of tribunals.13 A situation like the one described can help strengthen a common position that tells us that these new constitutions, as generous as they might be regarding the rights they affirm, turn out to be “pure poetry”—text that is disengaged in its application in real life.14 Moreover, for some, the inclusion of such clauses at a constitutional level is a negative decision for the existence of the constitutional text given that the repeated—if not impossible—failure to meet those social mandates ends up undermining the authority and legitimacy of the Constitution (Rosenkrantz 2003). Could it be that the incorporation of such social clauses was an error? Could it be that Latin Americans erred in their overwhelming alignment with the cause of constitutionalization of social rights? The first doubts in the face of these questions arise when we note that toward the end of the twentieth century, those legally relegated social rights began to awaken from their slumber. The same judges who, time and time again, had opposed recognizing judicial suits to enforce or implement these constitutionalized social rights began to open their doors and deem acceptable suits they had previously rejected.15 This striking and notable situation begs us to ask an additional question: Why had social rights, after lying dormant for such a long time, slowly awakened almost half a century later? The explanations for these changes are diverse: the growing internationalization of the law;16 the increasing weight of exigent international human rights treaties;17

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the development of a complex and dense dogmatic reflection on this subject matter (critical of the status quo);18 the emergence of larger suits, channeled outside the political entities, disfavored by a disappointing practice;19 and the implementation of legal reforms (in particular, clauses pertaining to legal standing) destined to facilitate access of the most disadvantaged to the tribunals. All of these elements, among others, combined to provide structure to a changing reality, where social rights no longer necessarily appeared as second-rate rights. In the face of this new context, judges began recognizing that they had before them diverse alternatives not limited to the dichotomy that had dominated until then: enforcing or not enforcing a right (i.e., a suit for access to housing). Judges could opt to give orders to the other branches, making it clear that the other branches were violating the Constitution and suggesting different options that could be considered; they could request public hearings to collectively discuss how to resolve situations of complex litigation; they could define time frames in which the political power ought to find solutions to all the problems under review, among other remedies (Fabre 2000; Gloppen 2006). And here again, an important fact worth noting arises. The countries that appear to fall the furthest behind in this slow march toward public recognition of social rights appear to be those that, for one reason or another, more strongly resisted the incorporation of those social demands into the bodies of their constitutions. Examples that stand out include the austere Chilean Constitution, and most notably the United States, whose Constitution is completely silent on the subject of social rights and has been described as a truly “negative” Constitution.20 One wonders how irrational that initial proposition was, decades ago, to incorporate rights into a Constitution that did not appear amenable to the novelties being added. Is it not appropriate to speak of a failed graft? Is it that, contrary to what I suggested just a few paragraphs ago, the constitutionalization of social rights ended up being a victorious strategy in the long term? The answer, one could say, is nuanced. In light of everything, it is clear that those involved in a constitutional reform like the one described (defending the incorporation of social rights into the Constitution) became involved for very diverse and at times contradictory reasons. Without a doubt, there were constituents who undertook the task with the goal of easing what they saw as a growing social conflict; others did so thinking textual changes would never produce practical results; others participated due to mere hypocrisy or populism. At the same time, there were participants who believed in what they were doing and trusted the collective strength of the constitutional changes. Whatever the rationales, one could say that a constitutional modification like the one mentioned took place, for the most part, with a certain irresponsibility, considering the magnitude of the purpose sought. Of course, it was not easy to foresee all the implications resulting from the type of reform proposed. Meanwhile, it was clear that a sufficient level of intellectual reflection had been achieved that could have helped avoid problems like the ones that resulted from the reforms in this case. But what is there to say about the dormant clauses mentioned? First of all, let us clarify that today is not the era of consolidated social rights; instead, it is the

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beginning of a phase where, typically, more judges are open to the idea of hearing suits to implement social rights (or at the very least not automatically determined to discard nonenforceable rights). With that said, it would be worth referencing some general points that are particularly important in the discussion of constitutional reform. First of all, it makes sense to recognize that, beyond what has been pointed out, some reforms can be worth the struggle, even when the initial response to the reforms is not favorable. That is because such a gamble could result in a sense of constitutional duty adopted by the community—a duty that is, symbolically, far from a minor legal change. Some have begun to speak, in that sense, of an aspirational constitutionalism as a way to account for this different way of thinking about the constitutional question: a Constitution should not be seen as just a catalog of rights and duties but also as a tool to signal the utopia or ideal sought to be reached (Sunstein 2004; Lane Sheppele 2003).21 Second, the incorporation of certain ambitious constitutional clauses could be a safe bet on the future, in pursuit of a change in current sociopolitical conditions that block the development or the consolidation of the new commitments. Moreover, it could be an intelligent way of intervening in time, starting to create the conditions for turning diverse coalitions into dominant ones. In this way, the modified Constitution could serve to enact changes in the incentive structure of the principal actors involved in the relevant reform. For example, by recognizing that their demands are backed by constitutional sources, certain individuals could begin working together in pursuit of their rights or certain groups could begin to mobilize socially for the same. We could make a final point in favor of the gamble for certain “dormant clauses”— that is to say, the gamble in introducing new constitutional clauses that, it would appear, are not in a condition to prosper and develop in the short term. What is at play here is none other than what appears to have been locked into the whole idea of “universal rights” from their origins (Brown 1991). Perhaps, at the time when universal rights were first adopted, some people invoked them with the sole purpose of advancing their own interests, without comprehending the effect on others, or in any case, focused primarily on securing benefits for themselves. Those who insist—but not in a selfish manner—on the importance of universal rights do so backed by the consensus that usually surrounds the idea that this “has to do with a demand for something that we all deserve” (who could oppose such a claim?). It could be, as usual, that not everyone is in the same position to take advantage of the benefit sought in the moment that request is granted. It could be that some individuals benefit much more than others, even when the benefit is characterized as universal. However, the law tends to get its revenge in such situations. It tends to be the case that, as time goes on, original social conditions vary substantively, and those who were not initially in a position to take advantage of what others enjoyed are suddenly positioned to demand their share. Ultimately, the gamble on clauses that, in principle, could turn out to be dormant clauses is not rare and is certainly not irrational. Instead, it is all too common and is deeply entrenched in the history of modern rights.

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A Few Final Comments Clearly, none of what was said in the last section—referring to the value that incorporating “dormant clauses” may have—completely dissolves objections like the ones examined above. It could be preferable to have a Constitution that is more austere than baroque or unnecessarily overloaded. Someone could suggest that it makes sense not to demand too much of the Constitution, so as not to generate undue risk of loss of authority within it. Nothing justifies, above all, the degree of irresponsibility, ignorance, or disengagement displayed by many who participated in constitutional reform. In addition, what was said in defense of the inclusion of “dormant clauses” in the Constitution does not imply the adoption of a naively optimist position. In the end, it is neither obvious that the desired changes will take place at one point, nor clearly acceptable to go for changes that, in the best case, will take place after long years—even less, when so deemed fundamental rights are at stake. Despite all that, the things that have been pointed out here could be useful to show that the gamble on clauses that we know will not take effect immediately could be a very rational and reasonable bet. The (partially successful) history of social rights in Latin America offers a good lesson from which constitutionalism, beyond the region, may learn something. Finally, what happened in Latin America with social rights can be seen as a nice way to show confidence in the future and, above all, confidence in the remarkable power that the nucleus of constitutional rights holds: there are rights that come to life after some time, like leaves that once again look like leaves, when the water that appeared to be drowning them has subsided. One final and important comment would be the following: The entry of workers into politics, and of social rights into Constitutions, mark a before and after in the political and legal history of the region. In particular, we should emphasize how much the new Constitutions differed from previous ones, and destabilized the old liberal-conservative scheme. However, we should also highlight the following fact: the intense demands of workers came into the Constitution through the introduction of changes in the section of rights, but not through changes in the organization of power. The organization of powers remained basically immune to that fundamental novelty. This fact clearly signaled the limits of the significant ongoing reforms.

8

Contemporary Constitutionalism I Constitutions in Internal Tension

Introduction In the late twentieth century, Latin America was severely impacted by two crucial historical events. The first was the political crisis of the 1970s and the grave human rights abuses committed during those years by dictatorial and authoritarian governments. The second was the social and economic crisis that followed the application of structural adjustment programs during the 1990s. Taking into account these events, in this chapter we shall study those constitutions that were direct reactions to the authoritarianism of the 1970s (constitutions that attempted to replace the unjust constitutional order imposed by the dictatorships); constitutions that, in an attempt to prevent the repetition of those tragic events, either introduced changes in the organization of powers or created new legal barriers against potential violations of human rights; Constitutions that set the stage for the application of “structural adjustment” programs during the 1990s; and finally constitutions that were reactions to the severe social crisis provoked by these so-called “neoliberal” programs of economic change. After this descriptive approach we shall critically examine the main constitutional initiatives adopted during this period. On balance, we shall maintain that the new constitutions that were drafted in the last decades did not dramatically change the main structure of the constitutions that appeared following the 1917 Mexican Constitution. In general terms, the new constitutions strengthened the social commitments of the former ones. At the same time, they left the traditional vertical organization of power almost untouched.

Dictatorship, Human Rights, and Hyper-presidentialism: Brazil 1988, Chile 1980 The influence of the last wave of Latin American dictatorships in the development of new constitutional ideas, texts, and discussions seems undeniable. Dictatorships had both a direct and indirect impact on the progress of regional constitutionalism, as the examples of Chile and Brazil shall help us illustrate. Chile lived under a dictatorial regime starting in 1973, the year when a military coup ended Salvador Allende’s presidency. The dictatorial regime, commanded by General 148

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Augusto Pinochet, promoted a radical reorganization of society, which included the adoption of a new Constitution that took the place of the Constitution of 1925. With that purpose, Pinochet promptly designed a new commission—the so-called Ortúzar Commission—in charge of setting the bases of the new Constitution. The final draft of the document, however, was completed in 1980.1 The new Constitution, which reflected the impoverished and paternalistic conception of democracy of the Chilean Armed Forces, transcended Pinochet’s government, and thus remained as the national Constitution even after the return of democracy. This situation imposed a heavy burden upon the newly elected democratic regime. In effect, after the democratic elections of 1989, the democratic community had to make enormous efforts to overcome the numerous legal limitations imposed by the dictatorial document—the so-called authoritarian enclaves created by the Constitution in force. Those enclaves included the institutions of life-tenured Senators (which allowed Pinochet to be part of the Senate during the democratic period) and of “designated Senators” (which allowed members of the coercive forces to be part of the Senate), a National Security Congress, an extremely exclusionary electoral system (which made it very difficult for minoritarian forces to participate in electoral politics); and the requirement of qualified majorities in order to change basic aspects of the institutional system (e.g., education, the organization of Congress, and the regulation of the Army). Very slowly, and through successive constitutional reforms, the new democratic governments began to leave behind these authoritarian legacies. The most important of these legal reforms took place during Ricardo Lagos’s government. Among other significant reforms, the modifications included the following: limitations on the institution of “states of exception” (1989), changes in the organization of the provinces (1991), a reduction from eight to six years of the presidential term (1994), changes in the modes of judicial appointments (1997), changes in the working of the Judiciary and the organization of the second term of the presidential election (1999), changes in the mechanisms for constitutional reform (2000), the introduction of guaranteed free education (2003), the end of life-tenured and designated Senators, a reduction of the presidential term to four years, the granting of presidential power to remove the head of the armed forces and the director of the police, changes in the National Security Council (2005), and changes in the electoral system (2009). Brazilian constitutionalism in the post-dictatorial period shared several elements in common with the Chilean experience. In this case, too, a newly elected democratic government was required to deal with the legacy of an authoritarian Constitution sanctioned by a dictatorial government. The Constitution at stake was that of 1967, which was enacted during the military government of General Humberto Castelo Branco. The 1967 Constitution (amended in 1969) imposed severe limitations on the federal organization of the country and the political and civil liberties of the population.2 For that reason, shortly after the recovery of democracy, Brazilians wrote a new Constitution that tried to repair the worst consequences of its predecessor. The democratic 1988 Constitution prohibited the use of torture, reestablished direct and secret suffrage, laid the foundation for the reorganization of democratic electoral competition, penalized the restriction of civil liberties, adopted antidiscriminatory measures, promoted political participation through plebiscites and referenda, expanded

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municipal autonomy and federalism, established protections for indigenous lands, and included a long list of social rights and guarantees. This Constitution also maintained a strong presidential system that was very much in line with the reforms introduced in the executive branch by the same dictatorship.3 This strong presidential system was perhaps a reaction to the “trauma” of the 1946 Constitution that, according to many, created too weak a presidency. In sum, the democratic Constitution modified the previous one with respect to organization of rights but did not fundamentally change the organization of powers established by the dictatorship in the 1967 Constitution (Limongi 2008).4 We have just examined two significant illustrations of how democratic constitutionalism directly reacted to the kind of Constitution that had emerged during dictatorship in an attempt to overcome that improper and unjust juridical legacy. In what follows, we will focus on a more indirect constitutional reaction to the dictatorial past. We will study, in this respect, initiatives directed at remedying the causes that (seemingly) provoked the emergence of authoritarian regimes. Attempting to understand the structural causes of the authoritarian phenomenon, many Latin American scholars began to focus their attention on the pattern of political instability that characterized the public life of the region during the entire century. One of their conclusions was that the Constitution was not completely independent from the generation of that pattern of instability. In particular, many of them agreed in pointing to (what they named) the hyper-presidentialist character of the constitutions as conducive to instability. Consequently, they suggested that the elimination of hyper-presidentialism could reduce the levels of instability, and thus reduce the risk of a return to authoritarianism. This was the first time in a long period that activists and scholars from different countries and origins agreed on criticizing a central aspect of the dominant organization of power (Nino 1987; Linz and Stepan 1978; Linz and Valenzuela 1994). Their agreement was exceptional and also particularly attractive: it was the first time, after long decades, that public figures recognized (as old legal scholars had previously done) that in order to guarantee certain basic rights (now, human rights) it was first necessary to modify the structure of power in a certain way (now, limiting the powers of the Executive). According to Carlos Nino, for example, “the diagnosis of the time was that a crucial, although not the only factor, explanation for the fragility of (the institutional system) was a presidential system that had grown excessively” (Nino 1992b, 38). For him, as for many others, it was clear that in a hyper-presidentialist regime, the president concentrated too much power, too many responsibilities, and too may expectations in his/her own figure during a fixed term.5 As a consequence, any sudden change in the people’s attitudes toward the president, any sudden fall in his/her popularity, or any significant crisis tended to put the entire political system under stress. A political or economic crisis became thus transformed into a systemic crisis. Even worse, given the lack of “escape valves” in the system, the “ejection” of the president tends to appear as the only way to evade the crisis. Given these assumptions, the parliamentary alternative appeared as an interesting option to presidentialism in the different way in which it distributed political power and, most significantly, the “escape valves” (principally, a change of the Prime Minister) offered by the system (Ackerman 2000; Linz and Valenzuela 1994). Unfortunately, after gaining so much attention among academic circles, these theoretical reflections were promptly abandoned (we shall come back to this point below).

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In the same way that Latin American constitutionalism tended to resist these anti-presidentialist initiatives, it opened its doors to other rights-based reforms. These changes implied giving special, sometimes constitutional, status to different human rights treaties that the countries had signed during the last four or five decades. These treaties were in part a response to the massive violations of human rights committed by dictatorial governments (Sikkink 2012; Acuña and Smulovitz 1996). Argentina, Brazil, Bolivia, Colombia, Costa Rica, Chile, and El Salvador were among the many countries that tried to ensure more protections for the rights affected by the recent authoritarian governments. The legal response was, in this case, more immediate and extended across many different countries. This response was perhaps not surprising given the extended character of the atrocities committed by the military governments in these countries.6 The decision to provide a special legal status to diverse human rights treaties created interesting results. In part, these initiatives reaffirmed the reconciliation of certain parts of the political Left with the issue of rights and constitutionalism, which they had frequently resisted. In addition, the new legal status many of these constitutions granted to human rights had an interesting effect on conservatives. More specifically, after these changes in the texts of the Constitution, many conservative judges began to consider more seriously arguments based on the value of human rights.

“Neoliberal” Programs, Social Crisis, and Presidential Authority In the previous section, we explored the way in which the legacy of the dictatorships influenced Latin American law. In this section, we will explore the impact on constitutionalism of so-called programs of structural adjustment. By structural adjustment programs, we mean the harsh economic policies applied in the region during the 1980s. These were monetary policies that usually implied a drastic reduction of public expenditures and the elimination of social programs. These adjustment programs were originally promoted in Great Britain under the direction of Margaret Thatcher and in the United States during the presidency of Ronald Reagan (Etchmendy 2012; Cavarozzi et al. 2002; Svampa 2005). The impact of these policies of structural adjustment on constitutionalism was enormous. More directly, the launch of these programs usually required the introduction of legal and even constitutional changes directed at facilitating the application of economic initiatives. More indirectly, the social crisis generated by the application of those programs also brought with them significant constitutional consequences. Here we will focus our attention on two of those consequences. First, we will explore the way in which the social crisis generated by the application of those economic adjustments generated claims for the reestablishment of a “strong” presidential authority. Second, we will explore the way in which those social crises helped the emergence of new constitutional initiatives of a clear social and political character. The direct constitutional impact of these adjustment programs included a large number of constitutional reforms aimed at facilitating the economic initiatives. Constitutional scholar Gerardo Pisarello, for example, refers to the thirty-five amendments to the 1988 Brazilian Constitution that were promoted by former president

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Fernando Henrique Cardoso (amendments that came to facilitate the privatization process); the reform of article 58 in the Colombian Constitution of 1991 (which was promoted by the conservative government of Andrés Pastrana, in order to provide more guarantees to foreign investment); the modification of article 27 of the Mexican Constitution (which came to put limits to initiatives for the distribution of land); the Peruvian constitutional reform in 1993 (which was advanced by President Fujimori—after his auto-golpe—and directed at eliminating many of the social commitments assumed by the 1979 Constitution); and the guarantees given to the value of the money in Argentina through the constitutional reform elaborated by Carlos Menem (Pisarello 2011, 186‒87). Similarly, one could mention the many different initiatives for judicial reform promoted by the World Bank and other financial multilateral institutions during the 1980s, which were mainly directed at providing a more stable framework to the new types of economic transactions that dominated the period (Domingo and Sieder 2001). This first period of economic reforms was immediately followed by an era characterized by a profound and extended social crisis. In effect, the economic changes of the era brought with them growing levels of unemployment that were not compensated by the existence of a solid safety net. The first consequence of the crisis was that millions of people suddenly found themselves in a situation of complete abandonment, without means to ensure their own subsistence and the subsistence of their family. The State, which for the previous forty years had guaranteed work and social protections for vast sectors of the population, was now shrinking. Most of its most valuable assets were sold in nontransparent and hasty transactions. Not surprisingly, then, Latin America began to experience a process of social mobilization demanding the social protections that many constitutions still promised. Social protests and counter-institutional uprisings exploded in the entire region, from South to the North, East to West. They included, for example, the insurrection of the Zapatistas of the Ejército Zapatista de Liberación Nacional (EZLN) in Mexico (which began in January 1994, one year after Mexico’s signature of its free trade agreement with the United States); the “wars” of “water” (2000) and “gas” (2003) in Bolivia, directed against the privatization of basic sections of the national economy; the occupations of land promoted by the Landless Movement (Movimento dos Trabalhadores Sem Terra, MST) in Brazil; the taking of lands in Santiago de Chile; the “invasions” of property in Lima, Peru; the emergence of the piqueteros movement in Argentina; and also numerous acts of violence against the exploitation of mineral resources in different parts of the region. It is interesting to recognize, in any case, that these profound social crises did not result in the breakdown of the new democracies in the way other crises had in previous years. The conclusions that many derived from those events were, in a certain way, paradoxical. On the one hand, many people considered that Latin Americans finally had learned to deal with these critical events in a proper democratic way—in other words, that they no longer needed to resort to military coups. On the other hand, many people began to ask for the recovery or strengthening of presidential authority in the face of the “authority vacuum” or “political chaos” that seemed to affect so many countries in the region after the crisis. In the end, the same institutional crisis that could have served to illustrate a new failure of the presidentialist system for dealing

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with situations of social crisis contributed to the opposite goal: the vindication of the strong presidential authority. This conclusion was, at least in part, hasty and exaggerated. It may be true that the region had learned the lessons of extreme violence and seemed now more resistant to the temptation of authoritarian alternatives. However, this fact did not deny that the institutional system was partly responsible for the production of the crisis and not well prepared to process and channel the crisis in a nondramatic and more institutional way.7 In effect, the crises that dominated the region after the end of the 1990s did not end with the classical military coups of the previous decades, but still provoked a profound institutional crisis that was accompanied by vast processes of social mobilization and collective distress. The combination of the economic crisis with these processes of popular protest generated serious consequences that included the fall of President Color de Mello in Brazil in 1992 and Carlos Andrés Pérez in Venezuela in 1993 (both of whom lost their positions through impeachment processes), the removal of Abdala Bucaram in Ecuador in 1997 (who lost his position after being, surprisingly, declared mentally unable to led the country), the resignation of Raúl Cubas in Paraguay in 1999 (who resigned after an impeachment process was set in motion), and the dismissal of Alberto Fujimori in Peru (Fujimori decided to escape from the country in the year 2000 when he was about to be tried in an impeachment process, although he then suffered arrest in his country). Ernesto Samper in Colombia in 1996 and Luis González Macchi in Ecuador in 2001 were also subject to impeachment processes, although they were finally absolved. Other dramatic situations, including those of Lucio Gutiérrez in Ecuador (Gutiérrez left the presidency of the country in 2005), Fernando de la Rúa in Argentina (his immediate successors were forced to resign, one after the other, as a consequence of the profound social crisis of 2001), González Sánchez de Losada and Carlos Mesa in Bolivia in 2003 and 2005, respectively (both of them were obliged to resign after extended periods of social protest). In other words, the region was radically affected by a social crisis that reached the very top of the institutional system. In sum, situations of radical political, economic, and social crisis, as described, did not contribute—as many could have expected—to the introduction of changes in regards to the organization of the presidential system, but rather to initiatives aimed at strengthening the presidential authority. However, those extreme situations of crisis did promote the introduction of other kinds of constitutional changes directed at social commitments. We shall explore these initiatives in the following section.

From the “Neoliberal” Crisis to Social Constitutionalism: The Case of the Mexican Reform of 2011 Some of the most relevant socio-legal reforms of the last few decades—including those of Colombia, Bolivia, Ecuador, Venezuela, and Mexico—followed the economic crises of the 1990s. In Colombia, initiatives for constitutional reform came shortly after a profound crisis that peaked with the occupation of the Supreme Court building by the guerrilla forces of the M-19. That event signaled the highest point of a crisis that included an exhausted state that seemed unable to take control of vast sections of the

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country and the presence of guerrilla groups, paramilitary groups, and drug trafficking groups. These groups disputed the state’s control of the national territory. In Bolivia, popular rebellions forced President Sánchez de Losada to propose a new Constitution in 1994 that was more inclusive and socially committed than the former ones, particularly in relation to the rights of indigenous groups. Some time later, President Carlos Mesa was forced to convoke a Constitutional Assembly, which resulted in the coming to power of Evo Morales and the sanction of the new Bolivian Constitution. In Ecuador, the process of constitutional reform was also prompted by the new social crisis. As Gerardo Pisarello put it, “The obstinate defense of policies of economic and financial adjustment provoked a persistent resistance mainly coming from indigenous groups and urban movements, which in the end forced the removal of three governments, namely those of Abdalá Bucaram (1952‒ ) in 1997, Jamil Mahuad (1949‒ ) in 2000, and Lucio Gutiérrez (1957‒ ) in 2005” and paved the way to the election of Rafael Correa in 2006 (Pisarello 2011, 192). In Venezuela, too, the constituent process promoted by President Hugo Chávez also followed a succession of popular uprisings. These movements began after the launch of a profound adjustment program and the repressive measures that followed its application. The crisis culminated in the so-called Caracazo, an extreme social revolt that symbolized the end of the “old order” that had begun with the compact of Punto Fijo (Martínez Dalmau 2009; Pisarello 2011; Svampa et al. 2010; Viciano Pastor and Martìnez Dalmau 2011). Another relevant case is Mexico. In June 2011, Mexico concluded a long period of constitutional reforms directed at enhancing the constitutional status of human rights agreements (see, in general, Carbonell and Salazar 2011). The causes that explain these changes resided in factors that were similar to the ones that we have examined in the previous paragraphs. In effect, Mexico’s recent history was also characterized by grave and massive violations of human rights, economic programs of structural market-oriented reforms, and sometimes violent social reactions to the application of those programs. Mexico had not gone through the drama of a dictatorship, but it had during long decades lived under the ruling of a single, dominant, hegemonic party, which was also responsible for massive human rights violations. These violations included cases of abuse and torture by the police and also cases of electoral abuses that in the end seriously undermined the legitimacy of the social and political order (Saltalamacchia and Covarrubias 2011, 15). Moreover, Mexico suffered from extreme political violence—there were numerous and serious cases, in this respect, which gathered enormous internal and international attention. These cases included the murder of Luis Donaldo Colosio, candidate of the main party, the PRI, to the presidency of the country; and also that of José Francisco Ruiz Massieu, General Secretary of the PRI. The aforementioned political and legal context became even more complex as a consequence of the unexpected, radical social uprising of January 1994, led by the Zapatista movement. In that context, the dominant political elite found it very difficult to continue delaying the adoption of significant legal changes (17). Facing this difficult situation, Mexican political authorities began to promote slow but also persistent legal reforms. According to some, these reforms began as more “defensive” reforms and then became more “active” or aggressive. The proposed reforms were diverse, and they included, for instance, an invitation to the International Commission of Human Rights in 1996 (this was the first time that Mexico invited the

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Commission to evaluate the human rights situation in the country) and the signature of the Rome Statute (16‒21). More interesting for our purposes, and following a gradual process of political aperture, the legal reforms began to gain constitutional status. The new constitutional changes included those concerning access to information, changes protecting personal data, antidiscriminatory norms, the constitutionalization of social rights (such as the right to health, housing, nourishment, and a clean and healthy environment), the provision of special protections to specific vulnerable groups (from minors to indigenous groups), and even the prohibition of the death penalty (a survey of these reforms in Salazar 2012). The most important and substantive reforms were introduced in 2012, with new and very significant constitutional modifications. These new changes included a fresh and strong constitutional aperture to the International Human Rights Law (including the decision to follow principles of international law such as the interpretation pro personae or the principle of progressivity in the application of social rights), a more active commitment to the effective protection of human rights (including the obligation of the state to investigate, sanction, and repair human rights violations), the prohibition of sexual discrimination, the constitutionalization of the right to political asylum, the establishment of strong limitations on the arbitrary expulsion of foreigners, the transfer from the Supreme Court to the National Commission of Human Rights of the capacity to conduct investigations in cases of grave violations of rights, and so on. (Carbonell 2011). Notably, this reform came at the same time that the country was going through a profound humanitarian crisis as a consequence of the so-called “war against drugs,” led by the government through the armed forces. According to some commentators, this was a period of “exacerbated violence” and “illegality” on the “part of the armed forces” (which provoked, among other things, six condemnatory decisions by the Inter-American Court of Human Rights). This growing contradiction between Constitutions that are increasingly more generous and constitutional practices that are increasingly more unjust must be highlighted. The fact is that, by the end of the century, the entire region offered extremely strong constitutions, at least with regard to the social, economic, and cultural rights that they included.8

Power and Rights in the New Constitutionalism The analysis presented in the previous pages allows us to recognize the importance and variety of the changes incorporated by Latin American constitutional law in the last decades. The question we now pose is what the proper assessment of those changes is. The answer is not clear, although we do have numerous analyses that may help us reach a conclusion. For example, according to the Argentine researcher Gabriel Negretto (2009, 2011a), between 1978 and 2008 Latin America created fifteen constitutions.9 During that period, ten countries modified their rules for presidential reelection—rules that, in total, were modified sixteen times (on nine occasions in order to make the clauses for

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reelection more flexible; and in seven cases for restricting that possibility).10 In twelve countries of the region, the presidential powers have been augmented, and only in six were they restricted (Negretto 2011a).11 Trying to provide a general picture of what was done in the period, the author also suggests that some of these measures were aimed at “concentrating power in the hands of the president,” while others came to strengthen the controlling powers of Congress and the Judiciary (Negretto 2011b). In another comparative examination of the same reforms, Rodrigo Uprimny begins by mentioning some of the common features that characterized these changes. In his opinion, the new Constitutions tended to re-elaborate their sections related to rights: they provided special protections to “traditionally discriminated groups,” became more open to the international human rights law, recognized the multicultural character of the new societies, abandoned certain previous religious commitments, and so on. In addition, Uprimny examines what the Constitutions did concerning the organization of power.12 In that respect, he mentions that the new documents “preserved enormous powers in the hands of the executive” and generally tended to “accept the possibility of immediate re-election.” However he also believes that through these changes the Constitutions also introduced “important efforts for limiting the presidential powers” (Uprimny 2011, 10). Another commentator, Gerardo Pisarello, first distinguishes between reforms that came at a time of “conservative reflux” (at the beginning of the 1990s, for instance, the reforms promoted by Fujimori in Peru or Menem in Argentina, but not the Colombian 1991 Constitution) and those that came after the processes of “structural adjustment” (including those of Bolivia, Ecuador, and Venezuela). In his opinion, the first types of reforms tended to strengthen the presidential authority and tried to open the Constitution to “privatization or monetarist policies” while at the same time including new “protections of rights, according to international law.” The latter changes, he maintains, tended to be of a different type. He actually classifies them as belonging to the “radical democratic constitutional tradition” (Pisarello 2010, 193). For him, these latter reforms tended to promote “more political participation” and the protection of “collectives in situations of exclusion.” Also, he believes that these new changes generally came to challenge the neoliberal policies applied in previous years, particularly through the promotion of a more active economic state (195‒96). The previous analyses are in general consistent, in one important respect, with the conclusions of a significant comparative work called Comparative Constitutional Project (see also Cheibub et al. 2011; Elkins et al. 2010, commented by Hartlyn 2011). According to the conclusions of that work, the latest reforms have kept the matrix of concentrated political authority basically intact. The authors of the report also maintain that in recent years there has been in the region an “increase in the clauses transferring legislative powers to the executive branch” (Cheibub et al. 2011, 1718).13 This result, they believe, represents one of the main aspects where most recent reforms tend to converge. These recent studies maintain that the latest reforms have shaped a particular, Latin American model of presidentialism, which consists of a president with ample legislative powers and also ample emergency powers (1730). In sum, we can say that one of the main features of the recent reforms has been the preservation of a distinctively presidentialist organization of power based on the

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concentration of functions in the hands of the president. A second feature of these reforms concerns the changes that they introduced in relation to the rights section of the Constitution. In this respect, we could say that the recent changes clearly strengthened their previous commitments regarding individual and collective rights. In the following section, we shall critically reflect upon this phenomenon, which suggests the existence of internally contradictory constitutions.

More Presidentialism and More Rights: A Contradictory Relationship? The description we presented in the previous pages refers to a Constitution that works with two different velocities and two somehow opposite purposes. We thus find, on the one hand, a Constitution that is anxious to ensure the imposition of order; and, on the other, a Constitution that is concerned with ensuring that each step is taken in agreement with the full acceptance of guarantees and rights. On the one hand, a Constitution that affects democracy through the preservation of a vertical and centralized organization of powers; and, on the other, a Constitution that aims at democratizing society through the distribution of new rights and the expansion of the more traditional rights, typically, political rights.14 Why did Latin American constituents opt for such a design that seems to take the internal constitutional tensions to the extreme? Why, for example, did they try to disperse power through the distribution of rights, while concentrating powers through the organization of powers? Is it simply that they did not realize they were creating the conditions for future institutional conflicts? In what follows, we shall explore three possible responses to these questions.

Autonomy and Indifference Perhaps Latin Americans chose to design their institutions in the way they did because they did not think that in that way they were going to favor the emergence of conflicts of any kind. In other words, they did not imagine that they would be creating constitutional tensions because they assumed the existence of two completely separated spheres—one related to the organization of power and one related to the organization of rights. According to this view, constitutional thinkers would have acted as if the different sections of the Constitution were autonomous. The idea would be that each section of the Constitution has its own rules and its own internal logic, which are independent from the others. Another related assumption would refer to the self-operative character of the different constitutional clauses. The idea would be, in this case, that by merely incorporating certain rights in the Constitution, these articles would slowly tend to gain life, becoming more operative. However, these views seem to be too simplistic. Against what liberalism has usually suggested (“liberalism as the art of separation,” according to Michael Walzer’s (1984) famous claim), the Constitution should not be seen as being composed of autonomous components, but rather components that are related and interdependent.15 For example: if rights are barriers or limits to power, then the inclusion of more rights (or an expansive interpretation of those rights) may imply more limits. In other words, these

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rights may limit the scope of action for existing powers.16 The argument that constitutional clauses are self-operative also falls short. That view tends to be contradicted by well-grounded criteria that suggest the opposite: in the end, every new clause comes to life in a particular political, institutional, and legal context, which may be hospitable or hostile to the constitutional novelties that suddenly begin to ask for a place. (In previous pages, for example, we have studied the way in which the enforcement of social rights was systematically blocked for several decades, by a judicial organization that was not very receptive to these new rights.) A more sophisticated version of the former argument would maintain that the different sections of the Constitution are indeed interrelated, but in a peaceful, nonproblematic way. In other words, the idea would be that in usual circumstances there exists a relation of relative indifference between the two sections of the Constitution. Finally, one could claim that in the history of Latin America we have seen governments of a very different type coexisting with Constitutions that became more generous in terms of rights. This coexistence would suggest that the machinery of powers would be totally compatible with diverse and changing organizations of the bill of rights section of the Constitution. Surely, these kinds of experiences may have contributed to the extended idea about the relationship of “indifference” between the different spheres of the Constitution. The question is, however, whether that rather simplistic approach resists a more detailed analysis. Herein, we have supported (and we shall continue supporting) a different understanding that says that the image of “peaceful coexistence” hides, on occasion, the political branches’ failure to comply with their obligations; or is blind to the implications of having a president hindering the implementation of social rights; or unduly ignores the meaning of having a Congress that indefinitely delays its duty to help implement the participatory clauses of the Constitution.

Compensation A second approach would say that the project of strengthening presidentialism while expanding rights allowed Latin Americans to reestablish a certain constitutional equilibrium. That movement would have thus favored an inter-sectional compensation, which would have permitted the internal balance of the Constitution to be kept. This approach would suggest that the different sections of the Constitution were neither autonomous nor self-operative, nor indifferent. Rather, there would be a relationship of dialogue between the two spheres, which in this particular case would have permitted compensation of the unbalanced situation with the organization of powers. The latest reforms would have thus promoted compensation rather than contradiction. This is the conclusion that, some could say, derives from the majority of the comparative studies presented in this chapter. For example, Uprimny (2011) or Pisarello (2010) clearly maintain that, on balance, the new Constitutions augmented the powers of the executive and allowed presidential reelection, but at the same time strengthened their social and inclusionary aspects. Gabriel Negretto refers to the seemingly “inconsistent institutions” that characterize some of the new Constitutions (Negretto 2011b, 1792, emphasis added).17 However, he emphasizes that “contemporary trends in electoral rule changes have . . . not all

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favored Executive power concentration” (Hartlyn 2011, 1980). In this respect, he mentions the “growing congressional power over cabinets,” the “growth in political decentralization,” the “greater judicial independence from the executive,” and refers to the “introduced elements of direct democracy” incorporated in the new constitutions, including “in some countries the popular recall of presidents” (Hartlyn 2011). This is to say, in the latest reforms, the growing presidential powers would have been somehow “compensated” by the emergence of numerous counterbalancing tendencies. In sum, it is possible to infer from the previous analyses that the recent reforms both strengthened and limited the powers of the Executive. In effect, while certain constitutional clauses would have transferred more powers to the executive branch, other changes would have compensated that move by expanding the capacities of the people to control and make their representatives accountable. According to Hartlyn and Luna, “comparing formal executive powers found at the beginning of the countries’ most recent democratic period (or enacted in the Constitution which ushered in that period) with current formal powers (as of 2006), we find that the overall trend has been one of slight movement toward declining executive powers” (Hartlyn and Luna 2007, 6). The cause of this decline would be “the emergence of greater [potential] constraints on presidential power concentration in other [non-legislative] areas” (6). This is similar to what Pisarello maintains in his analysis, when he claims that the “neo-presidential” system promoted by the latest reforms have been in the end “mitigated by other mechanisms of control, such as the right to recall, a kind of popular motion of censure, which has already been used in the cases of Venezuela and Bolivia” (Pisarello 2011, 194). Now, the “compensatory” view that is proposed by the above-examined studies seems questionable for diverse reasons. First of all, those studies assume an egalitarian relationship between the different spheres of the Constitution, thus ignoring the dimension of “power” that is present. In effect, the constitutional section dedicated to the organization of powers could be properly considered as the one that includes the “engine” of the Constitution. For that very reason, one might conclude, the reforms included in one or the other section should not be judged as if they had a similar impact or transformative capacity: the “engine” is located in only one of those sections and—one may expect—exercises a special influence on the functioning of the entire Constitution. Second, and in connection with our first point, we should say that the previous studies seem not to take the dynamic aspect of the Constitution seriously. Rather, they seem to adopt a rather static reading of the document. When we take into account this dynamic aspect, we recognize that the relevant question, after a reform process, is not one about what the reformers did or attempted to do, but rather one about what we could expect to happen, given the existing distribution of powers, when the adopted reform is set in motion. Usually, the established powers (say, a dominant Executive power or the existing judicial organization) have special capacities for fostering or hindering (for activating or deactivating) the novel reforms. Finally, the mentioned works seem not to properly consider, in their analysis, the importance of context and history. When one takes into account these historical and contextual variables, one immediately recognizes that in Latin America the Executive became the primus inter pares within the organization of power and thus appears in a position of privilege within the constitutional structure. The Executive has, on the one hand,

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institutional tools that favor its predominance over the other branches. On the other hand, since its creation, the Executive obtained additional institutional powers as a result of different para-constitutional practices and decisions. All of these special powers have contributed to undermining the authority of Congress. They have also transformed the judiciary into a usually fragile, politically dependent institution (Domingo and Sieder 2001; Gloppen 2010; Prillaman 2000). The president has become capable of exercising its dominion in relation to the other branches of power.

Necessity Finally, we will mention another, more optimistic approach, which considers that the new reforms have been not only substantively appropriate but also necessary, in order to ensure a proper respect for rights. According to some proponents of this view, these new Constitutions would have come to articulate “the lost (or never recovered) relationship between sovereignty and the government” (Viciano and Martínez Dalmau 2011, 20). Against what we have so far suggested, the idea would be that the recent reforms would have actually “activated,” rather than dishonored, the renewed social aspects of the Constitution. This is why scholars talk about the different “forms of democratic participation” created by the Colombian 1991 Constitution, refer to the system of “participation within democracy” designed by the Ecuadorian 1998 Constitution, or study the model of participatory democracy established in the recent constitutional documents of Venezuela and Bolivia (21).18 Such views seem close to affirming that a system of concentrated authority is a necessary condition for making a politics of rights possible. As one researcher has recently argued, historically, “the consolidation of social rights” in the region always appeared in contexts characterized by “the concentration of power in the hands of the executive, accompanied by parliamentary hegemony, rather than in contexts of weak presidencies and pluralism within the legislatures” (Etchemendy 2012). In the face of these views, one could make the following introductory point: indeed, the type of hyper-presidentialism that has become dominant in the region is, in principle, compatible with the most diverse outcomes in terms of constitutional rights. Hyper-presidential regimes may promote the constitutional endorsement of those rights. They may ensure their full or partial respect. They may promote the systematic violation of those rights. As a result, and at least prima facie, we do not have reasons to affirm either that hyper-presidentialism implies, per se, the disrespect of constitutional rights or that it is inconsistent with their promotion.19 Having said this, we should add that through this work we have advanced the following arguments, which could contribute to undermining the idea that hyper-presidentialism is a precondition—or even a good basis—for a strong politics of rights. First, Latin America’s history offers significant evidence supporting the existence of a correlation between more liberal regimes—those that were more resistant to authoritarianism and the concentration of power—and the expansion of rights. This tended to occur in the region after the end of military dictatorships and the coming to power of democratic regimes. Very commonly, these new democratic governments offered more “moderated” versions of presidentialism, which came together with

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stronger protection of rights and a particular concern for human rights. This outcome challenges, in principle, the above-suggested idea that maintains that a strong version of presidentialism is a necessary condition for the “creation” and protection of fundamental rights.20 Second, those who defend the existence of a correlation between strong versions of presidentialism and the creation of rights should tell us something more about the trajectory of those governments and those rights. Many authoritarian regimes both enforced and limited certain rights (i.e., social rights); and other governments created certain rights (again, social rights) while at the same time limited other different kinds of rights (think, for example, about the cases of Perón and Vargas, who both promoted the creation of new constitutional social rights and severely challenged or undermined individual rights). Third, our previous claims coincide with one of the basic “iron laws” of constitutionalism once advanced by James Madison. This law referred to the risks derived from unbalancing the system of “checks and balances.” For Madison, as for many of his contemporaries, if one of the branches of power became more powerful than the others, then the more powerful branch tended to undermine the authority of the others, and thus became a threatening force or a source of abuses.21 We have here maintained that contemporary Latin American history represents a good illustration of the risks of opting for an institutional design of those characteristics. In effect, in Latin America the Executive became the primus inter pares and gradually began to erode the authority of the other branches. The consequences of this “law” for the purposes of our present analysis are also significant. On the one hand, one could predict that an Executive with greater powers and lesser controls would become an even more serious threat to fundamental rights. On the other one hand, one could also anticipate that the Executive would tend to block all those initiatives capable of “empowering” the citizenry (or other branches of power) or capable of questioning his or her own authority. In this and in previous chapters we have also made reference to the ways in which nonegalitarian contexts tended to aggravate those evils. In addition, we have strengthened our arguments through further reflections on constitutional theory. We have made reference, for example, to the problems generated by the implementation of constitutional transplants and “grafts.” We have said, in that respect, that it was difficult to introduce significant changes in the old “institutional matrix” by merely adding to it new (social) articles that suppose and call for a different institutional organization. We have thus made reference to the way in which the “old” legal organization tended to restrict the possibilities of the “new” ones to grow and flourish in the proper, desired way. In direct connection with the previous comments, we insisted on the importance of thinking about the crossed impact of the reforms on the different sections of the Constitution. We have thus emphasized that the different sections of the Constitutions tend to enter in dialogue with themselves, and that the strongest and more established section of the Constitution—the one related to the organization of power—tended to resist the introduction of “threatening” changes in the opposite section. Finally, we could mention that the opposing view—the one that connects hyper-presidentialism with the protection of rights—hides the fact that Latin American hyper-presidentialism did not only come together with the constitutionalization of

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social rights but also with the dismantling of the welfare state and the undermining of social rights. We can think, in this respect, about the cases of Menem in Argentina, Fujimori in Peru, or Collor de Melo in Brazil, among others. In sum, hyper-presidentialism is, according to our view, consistent with the creation and enforcement of new rights but at the same time consistent with the non-application and undermining of those rights. Moreover, we suggested that hyper-presidentialism tends to normally work against rights—particularly when the enforcement of certain rights contributes to the empowerment of social sectors that can challenge the authority of those in power. *

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Madison vs. Schmitt: The Schimittian Argument for Hyper-Presidentialism: A Critique In this section we are going to explore a renewed argument in defense of the concentration of powers, and certain forms of hyper-presidentialism, that is based on old Schmittian ideas. The renewed version of this argument is also based on a direct, explicit rejection of Madisonian ideas such as the ones expressed in previous pages (see, e.g., Aguilar Rivera and Negretto 2000). These arguments, which favor a certain concentration of powers in the hands of the executive, take as their starting point the fact that there have been substantive political changes in the last few decades which demand a different approach to the old Madisonian system of “checks and balances.” In our time, it is said, the Madisonian approach has lost part of its meaning and sense, given that the main axis of institutional power has been (fortunately) displaced to the executive branch. This change has been required in order to confront the urgencies that characterize contemporary societies: only the Executive power would offer the speed and action demanded by present politics. At the same time, the argument follows, traditional controlling powers in the hands of Congress and the judiciary have become weaker as a consequence of two main factors. On the one hand, most countries have chosen to promote delegations of legislative authority to the president. On the other, the Executive began to expand its own capacities through new emergency powers. Usually, these changes appeared after periods of crisis such as the ones that have been distinctive of the last decades (from economic and financial crises, which favored the Executive’s intervention in economic affairs, to security crises, which have resulted in the enactment of new antiterrorist laws in the entire region, from the United States to Argentina, Ecuador, or Chile). For defenders of this approach, the reasons explaining or justifying these de iure and de facto delegations of authority to the Executive would be apparent. First, both Congress and the Judiciary suffer from an information deficit that would hinder their capacity to intervene in situations of crisis. Second, both branches are affected by operative problems that would also affect their reactive capacities. These operative problems would principally include collective action and coordination problems. In sum, the idea would be that both Congress and the Judiciary face severe obstacles for

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acting with the knowledge, speed, and capacity that present circumstances require (Posner and Vermeule 2010, 215). What has usually emerged in these contexts is the creation of “imperial presidencies” with an ample and growing capacity to act at will (Ackerman 2010). According to the defenders of this model (and this is a crucial point in their argumentation), there is nothing to fear from the emergence of this new panorama. According to this Schmittian view, the “panic” generated by a powerful Executive derives from the typical “liberal legalism” that confuses the lack of formal, legal controls upon the president with the absence of controls altogether (Posner and Vermeule 2010, 4). Contrary to what liberals claim, Schmittians maintain that presidents in our time would actually be subject to significant political controls that would take the place of traditional legal controls. These political checks would include, for instance, those that allow the sovereign people to prevent the reelection of the president, if they wish. They would also include other informal checks facilitated by the “revolution in communications” that characterize present democracies (i.e., the Internet). These new controls would make it costless and easier for the public to criticize and check their authorities (209). The lesson to be learned from this analysis would be that the time has come to abandon the Madisonian paradigm of “checks and balances” so as to accept the force of the Schmittian model. According to this view, “the rapidity of change in the policymaking environment and the institutional incapacity of legislators and courts to supply the necessary policy adjustments make executive governance inevitable” (Posner and Vermeule 2010, 16; Schmitt 1994, 2008). The problems with this view are numerous, and here we shall only mention a few. In descriptive terms, this approach affirms the importance of popular, more informal control of the Executive, in comparison with the traditional legal controls proposed by “liberal legalism.” Now, this conclusion seems to be based on an overestimation of the people’s chances to control power, and an underestimation of the Executive’s capacities to overcome all limits to its authority. On the one hand, these new defenders of hyper-presidentialism suddenly abandon the radical skepticism that characterizes their approach to legislative and judicial controls when they turn to examine popular controls. In effect, when they refer to popular formal and informal checks, they transform this skeptical view into a very optimistic attitude. As we have seen, in their analysis of legislative and judicial controls they seemed eager to mention the serious information, coordination, and collective problems that affected the controlling capacities of the two branches. In their analysis of popular controls, instead, those problems seem to be basically absent. As a consequence, defenders of the Schmittian view claim, without much nuance, that popular controls work pretty well. Common sense, however, suggests that the citizens have even more serious information, coordination, and collective action problems than the Congress and the Judiciary together. On the other hand, the previous analysis overestimates the controlling powers of the citizenry by emphasizing the (retrospective) character of suffrage, and particularly its power to prevent or sanction the excesses of the Executive. The fact is, however, that suffrage is an extremely limited tool, particularly if we consider its capacity for making the government accountable. Above all, this is so because the citizenry may want to give multiple and different orders or messages through the vote, but they have

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only one chance to express all those different messages. These messages may grow in number, after some time, and develop in different, perhaps opposite directions. (For example, someone may want to “punish” the Executive for what it did with respect to X, but at the same time “reward” the president because of its policy Z). Each person has only one vote, every few years, which can hardly help citizens to express their view in any topic. It may be difficult to transmit their multiple agreements and disagreements on so many different areas. In sum, given the enormous limitations that characterize the right to suffrage, one could say that even the strongest controlling mechanism in the hands of the people is too limited for ensuring that purpose.22 In addition, defenders of a strong Executive underestimate the president’s capacities to evade controls and undermine the authority of those willing to restrict its powers. These capacities of the president seem to be even more significant in unequal societies, such as most of Latin American. Think, for example, about the Executive’s influence upon the judiciary (i.e., the influence it has in the appointment, removal, or displacement of judges; or in the pressures that it exercises against hostile judicial decisions); or in the way it imposes its authority or blocks the functioning of Congress; in the development of the doctrine of “political questions”; or in the successive effects of federal intervention; or in the emergency powers it enjoys, and the emergency decision that it takes; or in its capacity to issue necessity-decrees, and so on (Nino 1990, 1265; Nino 1996). All these powers refer to the Executive’s exceptional capacities for imposing its own authority, in most circumstances, which also runs against the (new version of the old) Schmittian argument. In the end, this analysis helps us recognize the importance of limiting the development of “imperial presidencies” and restraining their capacities, which is to say, that we do not have good reasons for “accepting” existing practices, “reconciling” with the dominant institutional structure, or “making peace” with it (Posner and Vermeule 2010, 209). Most of the arguments we advanced against the Schmittian position challenge its descriptive assumptions. However, we should note that there are also many normative arguments against that view. It may suffice to say that the president’s attractive capacities for dealing with emergency situations or circumstances of crisis may mask numerous other problems relating to political, epistemic, and moral questions. To mention a few, we could state that hyper-presidentialism (1) tends to facilitate the work of powerful interest groups (which find it much easier to exert pressure on one person than over a large group—a problem that, of course, tends to be much more significant in profoundly unequal societies); (2) increases the risks of mistake (given the absence of voices and mechanisms capable of forcing the Executive to think through its decisions twice); and (3) eases the path to the commission of grave human rights abuses (this is so, again, because of the absence of mechanisms of “check” and “alert” regarding the unconditional rights and interests of minority groups). As Jeremy Waldron maintained, the “enhanced power” of the president may not only work for certain valuable goals (say, increased security) but also in the opposite direction: “diminishing liberty might also diminish security against the state, even as it enhances security against terrorism” (Waldron 2010b, 26). Having said this, we should insist on at least one point: the critique that we are here presenting against hyper-presidentialism in no way implies a defense of parliamentarianism, as if this were the only alternative to presidentialism. Parliamentarianism

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does not appear as a viable alternative, according to the principles that we have here defended (even less when we take into account the actual functioning of Congresses in Latin America). At the same time, our critique does not imply a defense of the new role acquired by certain judiciaries in the region, in the last decades (even less when we recognize the elitist character that is still distinctive of Latin America’s judicial organization).23

“Mixed” Constitutions, Reform, and Contradiction: Is Consistency a Value? In this chapter, we have studied different cases of Constitutions that seemed to strengthen their internal contradictions, given the way in which they organized their different parts. Even though in what follows we shall concentrate our attention on those tensions, which we shall call internal contradictions, it may be useful to refer, first, to what we shall call external contradictions. Juan Bautista Alberdi can be seen as a precursor in the analysis of external contradictions or, in other words, the analysis of the consistency of the law as a whole. For that purpose, Alberdi typically studied the relationship that existed between the Constitution and the different laws actually in force. This is what Alberdi said in chapter 18 of the Bases: [The task ahead is not limited] to declaring the right to private property inviolable, but rather it must guarantee the reform of all the civil laws and all the colonial regulations which remain in force, [and which] in spite of the republic, make this right illusory and nominal. With a republican constitutional law and an administrative colonial and monarchial law, South America seizes with one hand that which it promises with the other: liberty on its surface and slavery in its depths. (Alberdi 1981) The most recent constitutional reforms in the region offer many interesting (and also worrisome) examples, in that respect. For instance, we have seen the case of Constitutions that were particularly strong in terms of the social rights that they incorporated, even though (or perhaps, because) they appeared at the time when extremely antisocial neoliberal programs were applied. The cases of Brazil and Colombia were particularly telling in this respect. Both constitutions strengthened their social commitments at the very same time when numerous other, market-oriented laws, were approved. As we know, one of the main consequences of these programs was a sudden and dramatic growth in poverty and in the levels of unemployment. Another parallel case is that of Mexico 2012. In this case, we find a significant contradiction between what was done at the level of the Constitution and what was promoted in the actual legal practice. As we know, Mexicans promoted an avant-garde reform in terms of the incorporation of international human rights treaties and norms; while at the same time developing a policy characterized by grave violations of human rights, carried out in the name of a “war against drug-traffic.”

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Alberdi’s concerns, related to the external contradictions of constitutionalism, can be perfectly extended to the internal level of the Constitution. For instance, we may find constitutions that provide strong protections of private property while, at the same time, establishing bold social commitments with regard to social rights. In this case, we also find the risk of “seizing with one hand what is promised with the other”—as Alberdi denounced. Given the importance of the topic, in what follows we shall concentrate our attention on these internal contradictions, assuming that what we said in this respect would also be meaningful, in the end, with regard to the external contradictions.24 More specifically, we shall here refer to those Constitutions that improperly “mix” institutions belonging to different constitutional models. The “mixture” would be “improper” if it implied the combination of institutions coming from opposite models, in aspects where these models are in tension. This would be, for instance, the case of a Constitution that combined a firm commitment to property rights (like most liberal Constitutions do) with a strong concern for the “social question” (like what radical Constitutions did). Or, to mention another example, this would be the case of a Constitution that at the same time established an exclusionary political system (like the one promoted by the liberal-conservative compact) and promoted an inclusive and participatory democracy (like the one that radicals wanted to advance).25 Also as an introductory note, we should mention that these contradictions tend to radicalize other tensions that seem inherent to any Constitution. In effect, all modern Constitutions seem to be the expression of a double commitment to the values of democracy and rights that are, in principle, in tension (Elster and Slagstad 1993). That contradiction is expressed in the establishment of a section dedicated to the organization of powers and the section dedicated to the organization of rights. There—in that double commitment—resides the “main and fundamental constitutional contradiction.”26 The existence of this first and fundamental tension defines, from the very beginning, the character of all constitutions. These kinds of initial tensions tend to become immediately extended to the rest of the constitutional structure. Those tensions, however, can be moderated, diluted, or aggravated in accordance with the way in which we structure the rest of the Constitution. The tensions tend to be aggravated with Constitutions that “mix” different institutional models in aspects where they are in tension. Internal contradictions can be of diverse kinds. We may find, for example, inter-sectional contradictions, that is to say, contradictions between the section of rights and the section dedicated to the organization of powers. This would be the case, for instance, of a Constitution that wanted to promote political participation at the same time that it established firm protections to property rights; or a Constitution that appeared too generous in terms of social rights and at the same time strongly exclusionary in political terms. There would also be intra-sectional contradictions, that is to say, contradictions that appear in the same section of the Constitution. These contradictions would appear, for instance, in a Constitution that at the same time expressed a strong commitment to civil rights (and mainly to the right of property) and at the same time included a very generous list of social, cultural, and economic rights (a situation that became all too common in Latin America, particularly since the enactment of the 1917 Mexican Constitution).

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The question would then be how to conceive of and evaluate the decision to draft this kind of Constitution. One could consider the decision correct, in that it allows either commitment to prevail, depending on the relationship of the forces that dominate at any time: in situations of social fervor, the Constitution appears as capable of summoning the most advanced initiatives. Something similar occurs in situations where these social demands ebb. Nevertheless, if this were the answer, it would be an unsightly one, insofar as there are thought to be better ways of safeguarding constitutional neutrality. For example, other solutions could include establishing a greater level of generality in constitutional language, remaining silent on these questions, or proving their compatibility with different economic programs. In this sense, one could revisit Thomas Paine’s criticisms of constitutions that established systems of intervention and mutual control between the powers: these Constitutions ended up, in his opinion, being confused constitutions that prevented the citizens from having clear access to their meaning and orientation. In Common Sense, he wrote, “But the Constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies” (Paine 1987, 69). On the other hand, it does not seem certain, actually, that the situation we described ends up being realistically descriptive: a Constitution with contradictory promises can be simultaneously activated, in both directions, by the simple fact that any Constitution includes majoritarian institutions (which are, in principle, more sensitive to changes in the majority’s humors) and counter-majoritarian institutions (that can, in principle resist the majorities).27 One could claim, in addition, that in pluralist societies it is particularly important to have constitutions that acknowledge and express the existing diversity of values. By contrast, in pluralist societies we should neither expect to have, nor demand, monolithic constitutions (that is to say, Constitutions that are organized around one single value or set of values related to one particular conception of the good). This argument, however, is substantially flawed. The fact is that there are different ways to accommodate different principles and express society’s pluralism. For instance, the principle of tolerance may be a nice way to accommodate the demands of Muslims, Atheists, and Protestants. And that constitutional response is very different from another where the Constitution, at the same time, takes sides with a particular religion and also affirms the principle of state neutrality (something like this is what we find, in fact, in Argentina’s Constitution, and the contradiction that it established between arts. 2 and 14 of its text). In a similar way, a Constitution may show respect to different economic views by simply accepting the possibility that different governments—say, one socialist and one conservative—rule the country. However, this attitude is very different from another one, where the Constitution appears, at the same time, committed to the principles of free market and committed to the adoption of strong programs of social coverage to all (we find something like this in Colombia’s 1991 Constitution).28 In sum, there are different ways of honoring the principles of a pluralist and tolerant state, which do not require the creation of a contradictory text, which at the same time affirms and denies a certain commitment. Now, given the extent and depth of the contradictions already discussed, why, ultimately, should we need a more consistent Constitution, if regardless, we will remain stuck in the context of irresolvable inconsistencies?

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These kinds of questions are very important, but, we can say, they too are susceptible to a common, decisive answer. Constitutional consistency is valuable, but not, as Paine believed, because of the relatively minor (though not irrelevant) fact that through it we have a more clear and orderly law. Consistency is important in as much as it favors the predictability of the law, and, thereby the rule of law. To the contrary, the greater the risk of contradictory solutions to our conflicts, and the greater the risk of expecting constitutional contradictions, the less certainty the law will have. This would lead to fewer reasons for individuals to obey or place their trust in the rule of law. (Although, of course, this does not imply that a Constitution cannot be consistent though it is applied contradictorily, in the same way in which it can be internally inconsistent and applied in a consistent manner.) In any event, the principal value of consistency, as we understand it, is not this— but rather something related to it, and that refers us to our obligation to treat all people as equals. This, and none other, is the principal commitment that we undertake when we draft a “democratic and rights based” Constitution, that is to say, when we affirm the value of a pact among equals. The mere fact of drafting a Constitution already implies, in this way, taking sides in favor of equal treatment. In other words, it is a question—to borrow the words of legal philosopher Ronald Dworkin—of treating everyone with equal consideration and respect. This equal consideration vanishes when, today, we condemn someone facing circumstances similar to those that led us, yesterday, to free another (this would convey to all that this person’s liberty once had a certain scope that we now deny). In this way, when as judges yesterday, we allowed an individual possessing drugs for personal use to go free, we conveyed to all other citizens that the constitutional commitment to freedom incorporates the idea that each individual is master of choosing and freely developing the way of life that he/she prefers. This conclusion is contradicted, however, if today we allow another individual to be convicted when she is found in possession of a similar quantity of drugs. In this case, the law would be acting at will, in accordance with the impulse of the moment, and in this way would be treating each individual in a substantially different way. It would be treating one of them as if she had less intrinsic value or less equal dignity than any another. Ultimately, as Dworkin would say, it is a question of the law making a single persistent effort at integrity, directed toward speaking to the people with one voice, thereby making it clear that, in every case, the state does not act arbitrarily, or capriciously, but rather tries to establish rules and principles that are applicable to everyone equally: that everyone’s actions and decisions are important and that they are all equally important (Dworkin 1977; 2011, ch. 6).

International Human Rights Law vs. Internal Law An extraordinary transformation, peculiar to recent decades and intimately connected to new developments in constitutionalism, is related to the “arrival” of international human rights law. Nowadays, countries in the region recognize the existence of international laws because there are international tribunals that can pose challenges to

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the decisions made by the internal political and judicial authorities. Of course, it can be said that, in the relevant sense, international law always existed. Nonetheless, it is also true that the issue has undergone a “before” and an “after” in connection with the most recent modifications introduced at the highest levels of regional law. And, over the course of many decades, local law somehow always managed to relegate international law to a specific corner. This involved, in the best cases, treaties signed between a country and other countries that could not contradict internal constitutional order. With these types of formulas, international law was “pasteurized” and deprived, ultimately, of all ability to challenge internal law. Toward the end of the century, nevertheless, things began to change. The reasons for this change, which could be called the “process of the globalization of law,” are many. We are particularly interested in those dealing with the law itself. On one hand, the law seems ever more open to the use of norms and decisions derived from international law. Judges are inspired as never before to cite and apply international law in their sentences. Meanwhile, they adopt standards established by international organisms, follow criteria set by international tribunals, or supervise the implementation of international norms in local administration.29 This phenomenon of stronger judicial commitment to the norms and directives of international law seems to be driven by a new political attitude toward the international order. On one hand, it happened that during the last decades, many regional countries decided to incorporate international law into their domestic systems, usually according it privileged status. In some countries, such as Argentina and Bolivia, human rights treaties were explicitly awarded the status of constitutional laws. In other cases, such as Costa Rica or El Salvador, these treaties were awarded supra-legal status (Rossi and Filippini 2010). In any case, ways of incorporating international human rights law have been quite varied. Some constitutions, like those of Peru and Colombia, included interpretive clauses in their texts that incorporated specific references to international law. Others, like Brazil, refer to the existence of non-enumerated rights, among which are those related to principles and treaties to which Brazil is party. That of Guatemala makes reference to international human rights law by establishing guidelines for the country’s foreign policy. That of Chile assigns special duties in the area of human rights with which all state organs must comply (these and other alternatives of incorporation, in Dulitzky 1998). The fact is that in Latin America in the last decades, events of great importance have unfolded involving international human rights law; in some cases these served to forge a new direction for public life in the region. Surely, the most strident case in the area was that which led to the overseas prosecution of General Augusto Pinochet, and which soon led to expanding Chilean criminal prosecution to include those responsible for massive human rights violations. Until that time, those responsible for the abuses had benefited from the legal approach on the part of the justice system that wound up being dogmatic and positivist (in the worst sense of the word), in addition to being conservative. The Chilean Supreme Court provided a dramatic example of this. Trying to respond to strong critiques about its meager protection of human rights during the Pinochet regime, the Court held that it ought to concern itself with the “strict” application of the (current) law (the law of the regime) (Correa Sutil 1993, 91). What is certain is that the appearance of the Pinochet case was explosive for

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regional law, so that in a short time, many other cases began to appear. All of these cases can, without a doubt, be traced back to Pinochet. Among the resonant cases that can be mentioned is the Inter-American Court of Human Rights case Barrios Altos v. Peru from March 2001, in which the Court invalidated the amnesty granted by the Peruvian government of Alberto Fujimori to the participants in the so-called “Barrios Altos Massacre,” and the Argentine Supreme Court decision in Simón,30 in which the Argentine Court, following the Inter-American Court’s decision in Barrios Altos, invalidated the laws (passed democratically in Argentina) pardoning crimes against humanity. More recently, in April 2011, an Uruguayan congressional decision set aside the amnesty passed in Uruguay on Crimes Against Humanity that had been twice ratified, in separate plebiscites, by the Uruguayan people. The growing stature of international standards and decisions made by international tribunals and organisms adds a healthy complexity to Latin American law. Moreover, this occurrence brings with it serious legitimacy problems. In effect, we should not forget that the international norms invoked often refer to principles with imprecise content that we have no clear way of identifying (typically this occurs where there are repeated invocations of ius cogens, which holds great weight in international law). And more importantly, decisions are made by international organisms with flimsy democratic credentials (a particularly important case is the Inter-American Court of Human Rights). The common, underlying criticisms laid against these tribunals— their place on the democratic stage and the counter-majoritarian character of their decisions (Bickel 1962)—is played out most vividly in these cases. Further still, we could consider how the judges of these tribunals are chosen, their incredibly weak connection to the citizens of Latin America, and the minuscule possibilities for citizens to be able to engage them in dialogue or to challenge their decisions. One particularly important case for this discussion is that of Gelman (in the case of Gelman v. Uruguay, Sentence: February 24, 2011), decided by the Inter-American Court of Human Rights.31 In it, the court was asked, among other things, to evaluate the validity of the Law of Expiration (of punitive actions by the State), sanctioned in Uruguay and by which established the expiration of “punitive prosecution of crimes committed through March 1st 1985 by military and police officials and personnel equipped as military for political purposes, during the discharge of their duties and in actions ordered by the commanders during the de facto period.” Remarkably, the law was backed by the Uruguayan citizens, who were called to give voice on the matter in two plebiscites. Nonetheless, in its decision, the Inter-American Court held the law in question to be incompatible with the American Convention of Human Rights, that the “protection of Human Rights” constitutes an “insurmountable limit to majority rule” and that the Uruguayan plebiscites did not endow the contested law with “legitimacy as regards International Law.” Amnesties such as that of Uruguay were actionable, “not because of a formal question, such as their origin, but rather (due to their) material aspect.” As a result of this, the Uruguayan State was obliged, therefore, to investigate and eventually sanction the serious violations of Human Rights committed in its territory during the period of the dictatorship in power in the 1970s. The problems posed by the Inter-American Court verdict are manifold, but here, we can object above all to the way that the ruling cast aside—in a few lines and without further explanation—decisions that had been made according to strongly democratic

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procedure in Uruguay (that said, fully recognizing the need to critically examine the democratic authority of any specific plebiscite), the Court’s lack of commitment to any consideration about the more or less democratic origins of the norms in question,32 the simplistic way that it justifies the use of penal coercion, and the lack of reflection regarding the conditions of democratic legitimacy of its own decisions (that is, the authority of the tribunal with fragile democratic credentials versus, as in this case, democratically robust decisions). In any case, the interest here lies in how this example dramatically and radically reveals the possible tensions between democratic values and constitutionalism.33 This does not in any way imply completely denying authority to international organisms with some degree of democratic legitimacy, less yet when the law challenged is one that has been approved and put into effect by nondemocratic regimes (such as the dictatorships in Argentina or Chile) or very weakly democratic regimes (such as Peru under Alberto Fujimori after the Peruvian Congress was shut down). The question, in any event, provokes us to include these critical new issues of law in the democratic conversation that considers that affected citizens should play principal roles.

9

Contemporary Constitutionalism II The “Engine Room” of the Constitution

A Brief Introduction In the previous chapter, we examined the most recent constitutional reforms adopted in Latin America. We have seen the importance of these reforms in terms of their rhythm or speed, and also in relation to their profundity and scope. These reforms were complex, rather than simple: on the one hand, they tended to maintain or strengthen the powers of the president; while, on the other hand, they insisted on the inclusion of a robust list of social, political, and cultural rights, which promised more opportunities for popular controls upon the structure of power. In our analysis of those reforms, we maintained that these changes should not be read as if they affected independent and autonomous areas of the Constitution. By contrast, we claimed that, once in motion, those reforms tended to strengthen (or not to significantly affect) the authority of the Executive; and also that such an unbalanced structure of powers tended to put the rest of the reforms at risk. It seems clear that a powerful president, acting rationally, would tend to resist all attempts to undermine his or her authority, coming from a more autonomous or empowered citizenry. In this chapter, we shall illustrate the referred dynamic (centralization of authority vs. expansion of rights) with some examples coming from the new Latin American constitutionalism. Particularly (but not exclusively), we shall focus our attention on the example of the introduction of indigenous rights in the new Constitutions. Through our analysis, we shall examine a characteristic that has become distinctive of the new constitutionalism, namely the reformers’ unwillingness or difficulties of getting into the “engine room” of the Constitution. Finally, we shall explore some modest attempts directed at introducing reforms in the “engine room.”

Presidentialism vs. Rights: Ecuador, Venezuela, and Mexico There are numerous examples that illustrate, in actual practice, the difficulties coming from constitutions that want to promote popular participation and expand political rights, while, at the same time, organizing power in a centralized and vertical way. In what follows, we shall examine these tensions through examples coming from Ecuador, Venezuela, and Mexico. 172

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Ecuador The case of Ecuador is particularly interesting in this regard. Although its last reforms were incorporated during a period dominated by a surge of anti-presidentialism, the Constitution did not direct its principal efforts toward limiting or tempering presidential powers—rather the contrary.1 Regarding presidential faculties, with good reason it has been said, in one of the most interesting works written to analyze the new Constitution, that the 2008 text not only fails to reduce “the excessive presidential power consecrated by the constitution of 1998, but rather increases it, and correspondingly diminishes the faculties of the legislature” (above all in the naming of functionaries) (Oyarte Martínez 2009, 45).2 At present, the president exerts special functions over judicial issues (granting pardons for common crimes). Independent institutions, such as the central bank, have lost their capacity to set exchange, credit, and monetary policy. Moreover, the president has gained legislative faculties that no longer derive from delegation by the legislature or that formerly belonged jointly to both powers. The president, in effect, issues implementing regulations, both delegated and autonomous (art. 147), can propose legislation and constitutional amendments and reforms (arts. 134 and 442), can qualify projects of law about economic issues as “urgent,” and in the face of legislative omission can implement these projects as a decree-laws (art. 140). Further still, the president can object to laws approved by the national assembly either for reasons of opportuneness or vices of unconstitutionality (arts. 138, 139, 438). According to some, these additional faculties conceded to the president can be seen as equilibrated, ultimately, by a series of controls and alternative institutions. On one hand, the legislative assembly can demand the fall of the Executive by calling early elections for both powers—the Assembly and the Executive (this right emerges from the sudden death clause and is parallel to the Executive’s same right, with equal consequences, arts. 130, 148). On the other hand, we find a number of participatory mechanisms. Also notably, the Ecuadorian Constitution tries to defy the traditional “tripartite” organization of powers by including additional State functions, as “new branches” of power: the electoral function and the one related to popular participation, on which we shall concentrate our attention (Grijalva 2012, 33). By means of this latter creation, all the organisms of control are coordinated and various forms of popular participation are promoted (including the people’s faculty of revoking a mandate or binding instructions, even the very Constitution, and it can revoke the mandates of those who fail to comply with its will.)3 In any case, the evolving constitutional practice showed the limits of some of the expectations created by the letter of the Constitution. This was so not only because the strengthened presidential system ended up blocking the evolution of other reforms favorable to political participation but also because of the way in which the hyper-presidentialist dynamic contributed to the same expansion of the presidential powers. This expansion in the presidential powers was thus produced, for example, through the removal of Deputies from the opposition or the removal of all the members of the Constitutional Court by pro-governmental legislators (Torres 2009, 432–34). According to what was anticipated, in addition, these participatory clauses were undermined by an Executive power that, in actual practice, opposed the

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democratization of power that those clauses were supposed to bring about. In effect, and according to what we maintained in the previous chapter, it was not at all clear that the strengthening of the presidential powers could be in fact compensated or counterbalanced through the emergence of more controls or more participatory institutions. We have here claimed that the two different parts of the Constitution were in tension, and that the section related to the organization of powers exercised a powerful influence upon the other. Not surprisingly, in this as in other parallel cases, we find a weak performance of the new participatory clauses.4 The immediate practice that followed the ratification of the Constitution reaffirmed every one of the aforementioned suspicions. In a wholly unsurprising manner, it was the very president of the Republic who limited popular participation by discouraging the civic organization fomented by the Constitution or by directly vetoing legislative initiatives designed to implement the institutions created during the Montecristi debates.5 The testimony of key personages of the convention, such as Alberto Acosta, who was president and principal ideologist of the new Constitution, simply confirmed what was already known: the presidential practice that followed the drafting of the Constitution, did not help to strengthen and activate its participative clauses, but rather limited them.6 Similarly, the “fourth state function” can and has been subjected to resounding criticism for limiting or directly diluting, rather than ensuring and promoting, the citizens’ participation (which was constrained by a series of bureaucratic state mechanisms). With regard to this it is said that “the attempted participation, the supposed power of the people, are not designed to be exercised by the society, but rather to be assumed as a function of the State; the society does not control public activity, but is substituted by State’s institutionalism” (Aguilar Andrade 2009, 97). One important example of this appears in the referendum of 2011, promoted by President Correa. According to the Constitution, referendums may address constitutional issues, as long as they don’t alter the fundamental structure of the State, its character and constitutive elements, restrict rights and guarantees, or modify the due process of constitutional reform (art. 441). Nevertheless, one of the principal objectives of this convocation was to effect participative mechanisms set out by the Constitution that were intended to guarantee civil intervention in naming judges.7 Beginning with an extraordinarily complex question,8 the Executive ended up suppressing these complex mechanisms of popular participation and thereby ensuring that the naming of judges would remain, fundamentally, under the control of the ruling party.9 In the postscript of his book on the 2008 Constitution, the Ecuadorian jurist Ramiro Ávila examines the serious problems that came after the popular consultation. He thus refers to restrictions to “the liberty of movement, the presumption of innocence, the right to be judged in a reasonable time by impartial and independent judges,” among others. For him, the reform gravely impaired many of the most significant rights that were recognized in Montecristi (Ávila Santamaría 2011, 305).10 Another Ecuadorian professor, Julio Echeverría, arrives at a similar conclusion, which is also consistent with the main point that we here present. For him, the new Constitution has to be seen as one “advanced from the perspective of the rights it incorporates, but at the same time retarded with regard to its organic part” (Echeverría

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2008, 33). For him, “the constitutional improvements” that the text presents go hand in hand with different problems and disfunctions included in relation to the organization of powers. These problems, he claims, affect in the end the institutional structure in charge of putting in motion the “public policies required” for the implementation of the new rights (34).

Venezuela The case of Venezuela also offers an important example of the point we are trying to advance here: once again we find a broad text in terms of popular participation, but one which preserves the Executive branch’s extensive powers and scope for action. For example, article 72 of the Constitution states that: All of the popularly elected positions and magistracies are revocable. After one half of the term for which a functionary is elected, no less than twenty percent of the registered voters of the corresponding district may solicit a call for referendum to revoke the mandate. In addition, the Constitution attempts to re-create the Bolívarian constitutional ideas, through the creation of an institution called “Citizens power,” which is very similar to the one that Bolívar created under the name “Moral Power”—one of his more polemical constitutional inventions—which is to “prevent, investigate and sanction those facts that affect the public ethics and the morality of the administration” (art. 274). Making reference to the different constitutional novelties created in Venezuela in the area of popular participation, the Spanish constitutional scholar Antonio de Cabo maintains that the Venezuelan Constitution has a “radical-democratic, perhaps Rousseauistic heart, which is expressed in the prevalence of different modalities of participative democracy” (de Cabo 2007, 40; Pisarello 2010, 194). Now, this significant openness to citizens’ participation in politics seems to be severely contradicted by the significant expansion in the presidential powers. In fact, the new 1999 Constitution not only extends the presidential mandate from five to six years but also allows its immediate reelection. In addition, the Constitution suppresses some of the parliamentary controls over the president included in the previous 1961 Constitution (for instance, those related to military appointments), undermining the “semi-presidentialist” character of the political system, which for so long seemed to distinguish the Venezuelan democracy. At the same time, the Constitution expands the legislative powers of the president by augmenting his capacity to act through legislative-decrees. While, according to the 1961 Constitution the president could only dictate legislative-decrees in limited circumstances (economic, financial), the new Constitution allows Congress to authorize the intervention of the Executive in all other areas. The new Constitution also changes the relationships between Congress and the Executive. On the one hand, it makes the conditions for parliamentary removal of the ministers easier (following a legal tradition of the country, which goes back to 1864), but, on the other hand, it allows the president to dissolve the legislative assembly in some exceptional cases. More seriously, the Constitution establishes different modalities of “state of exception” (arts. 337 to 339), which included the “state

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of alarm,” in situations of natural catastrophes, for example, the “state of economic emergency” and the “state of internal commotion.” In all these cases, the Executive is authorized to restrict constitutional guarantees. As in the case of Ecuador, the legal practice that has since then developed, expressed the actual limits of the reformist project. These problems appeared not only in the area that is more relevant for our present analysis (the one related to participatory and social rights), but also, unexpectedly, in the area of the organization of powers. That is to say, in Venezuela, as in Ecuador, the strengthened hyper-presidential system worked for the strengthening of that same hyper-presidential system. We find illustrations of this practice, for instance, in the Amendment No. 1, from February 2009, which modified five articles of the 1999 Constitution (arts. 160, 162, 174, 192, 230): the Amendment came to allow the immediate and indefinite reelection of all positions subject to popular election. In addition, this process of concentration of power came together with a continuous attempt to undermine the authority of the different controlling institutions, which gradually all fell under the Executive’s dominion. A remarkable illustration of this situation appears in the insistent calls made by the president of the Venezuelan Supreme Court in favor of the concentration of powers— she directly proposed to abandon the old system of “checks and balances” in favor of a new institutional system organized around the idea of the “unity of power.”11 But let us now concentrate our attention on the reforms that are more relevant for us, namely those related to the introduction of new constitutional rights. As an introductory note, we could first mention the following: when the opposition party tried to instigate a revocation of the mandate of the president in office, it met with extraordinary difficulties that cast doubt on the opportunity that the Constitution seemed to offer. First, the electoral and judicial authorities began to hinder the possibility of carrying out the referendum that had been executed. Before the first attempt to do so, the Supreme Court of Justice ruled to deny authorization of the process, arguing that, before commencing the referendum the directory of the CNE, the National Electoral Commission, needed to be replaced, its members having only provisionally occupied their posts. Then, once the CNE was seated, the court invalidated a second campaign to gather signatures, alleging that it had been conducted before the president completed one half of his mandate. A third campaign, convened in 2004, was not immediately approved because the electoral authorities maintained that some of the signatures might have been forged. This accusation was followed by the scandalous publication of the so-called Tascón List, in which Luis Tascón, a representative from the ruling party, decided to leak, via Internet, the names of all the signatories since the first campaign. Under the guise of ensuring the transparency of the convocational process, this event actually posed a serious threat for those who had decided to accept the call to political participation (Pérez Flores et al. 2010; Miguel et al. 2009). In any event, the previous story illustrates the very real difficulties that can strangle participative clauses in the context of reinforced hyper-presidentialism. In Pérez Flores et al. (2010, 89 and following) another good example is revealed that illustrates the same phenomenon already described but reproduced on the municipal level. The case related to article 70 of the Constitution, which included everything imaginable among the means for “participation and protagonism by the people.” The article in question says:

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Participation and involvement of people in the exercise of their sovereignty in political affairs can be manifested by: voting to fill public offices, referendum, consultation of public opinion, mandate revocation, legislative, constitutional and constituent initiative, open forums and meetings of citizens whose decisions shall be binding among others; and in social and economic affairs: citizen service organs, self-management, co-management, cooperatives in all forms, including those of a financial nature, savings funds, community enterprises, and other forms of association guided by the values of mutual cooperation and solidarity. (art. 70) In June 2009, following article 70, which concedes binding status to local assemblies, a vote took place—with 99 percent approval—on a project intending to build a civic center and to revitalize the area around the municipal market. Nevertheless, the municipality was controlled by the opposition, and the outcome of the issue ran against the government’s intentions. It resulted in the mobilization of the National Guard, dependent on the National Executive, that ended up occupying the land on which these projects were to be carried out. Once again the participatory initiatives, backed by the Constitution, found their decisive limits in the strongly vertical national political organization. Of course, the previous examples are only illustrative of the ample and profound tensions that have appeared in contemporary Venezuela between the country`s proclaimed desire to expand rights and its actual practice of bolstering presidential powers. These tensions may be exemplified through numerous illustrations, including the emphatic affirmation by the Organization of American States (OAS) of its “deep concern over the deterioration of the situation of the right to freedom of expression” in the country;12 Venezuela’s (and Ecuador’s) proposals for limiting the abilities of the OAS’ Special Rapporteur on Freedom of Expression;13 and Venezuela’s more recent and radical decision to denounce the American Convention on Human Rights.14

Mexico The third and last collection of examples that we shall examine relates to the case of Mexico, even though this example differs, in relevant ways, from the previous two. In effect, the example does not derive from a Constitution that is actually in place, and which is then impaired by its internal organization (usually, problems connected with the concentration of powers in the hands of the Executive). Moreover, the cases that we are going to examine (which emerged by the mid-1990s) did not arise in times of extended preoccupations with the new “human-rights agenda” (as the cases of Ecuador or Venezuela did), but rather during the period of political hegemony of the PRI (which may explain some of the differences that we may find regarding the previous cases).15 In any event, the cases shall help us illustrate how strongly the dominant institutional organization can resist the rights-based demands of strong, and unjustly marginalized, minority groups. What we shall study in Mexico is a group of para-constitutional agreements, derived from the so-called Acuerdos de San Andrés, which came to introduce more inclusive constitutional reforms, but which were finally not implemented because of restrictions

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deriving from the existing concentrated powers. The Acuerdos were mainly directed at incorporating new indigenous rights. However, like in the other two cases, the agreements were resisted and undermined from the very first moment by an institutional system that seemed to be well prepared to reject them. In the end, the demands and promises of democratic participation and inclusion suffered from the presence of a concentrated and vertical political organization. The Acuerdos de San Andrés Larraínzar (Chiapas) were signed in 1996 between the Mexican government and the Zapatista Army for National Liberation (Ejército Zapatista de Liberación Nacional, EZLN), some years after the unexpected Zapatista uprising of 1994. The agreements followed a long and arduous process of negotiations between the two parts—a process that combined armed confrontations and democratic dialogue—and had a constitutional reform as their primary object. The reform would have as its main object the satisfaction of traditional claims coming from indigenous groups. The Zapatistas received advice from different representatives from the civil society and initiated a process of debates on the constitutional reforms with representatives of their community. The most important demand that appeared was one in favor of indigenous autonomy. Other demands included claims for a “profound reform of the State,” a “reorientation of the political economy,” and a “reinvigoration of the social expenditures” (Díaz-Polanco 1997, 189). Representatives of Zapatism maintained that “without a profound and consensual reform of the political and constitutional framework,” the claim for autonomy would become senseless. One of the main products of these difficult negotiations was the creation of the Commission for the Pacification and Concord of the Congress of the Union (Comisión de Concordia y Pacificación, COCOPA). The Commission was formed by representatives of the two chambers of the National Congress and representatives of the local Congress. After some time, the COCOPA presented a project for constitutional reform directed to guarantee basic social and political rights for the indigenous population, and thus ensure them a place within the national political structure. However, the conflicts that emerged in the relationship between the indigenous community and the State were so significant that they ended up frustrating the whole bargaining process. The problems at stake were diverse and began at a very early stage. From the very beginning, it seemed clear that the national government wanted to challenge the main indigenous demands, as expressed in the original Acuerdos. The same COCOPA initiative appeared as a downgraded version of what the Zapatistas had required in the first stage. The project was accepted by the Zapatistas as a showing of goodwill toward the government. However, as the expert Díaz-Polanco maintained, “In each of the following phases of the negotiation” the government appeared “pressing towards the bottom,” trying to empty the Zapatistas’ demands (Díaz-Polanco 1997, 228). (In this respect, the process seemed to reproduce the same dynamic that had taken place at the beginning of the twentieth century, after the revolutionary movement—the process that we described as the road from Ayala to Aguascalientes.) The attacks against the indigenous demands—particularly those directed against their claims for more autonomy—grew after some time, when the three branches began to act in concert against the agreements. The Legislative branch, for example, defied the reformist proposal by challenging the representative character of their authors.

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More significantly, the Supreme Court rejected more than 300,000 constitutional controversies, which had been presented by different indigenous municipalities (the municipalities were questioning the process for constitutional reform, which seemed to contradict some of the most basic indigenous demands). Against those claims, the Court maintained that it had no faculty to judge the constitutionality of the reforms of the Constitution proposed by the Legislative Power (see, e.g., http://www.cedoz .org/site/content.php?doc=414&cat=6). In the end, the Zapatistas decided that, after years of showing their goodwill and disposition toward the State, they were only receiving disrespect as a response and consequently decided to abandon the negotiation. The bargaining process was considered a failure and a mistake.16 In the end, the Mexican case seemed to ratify what we had already explored in the previous cases, that is to say, that the dominant institutional matrix has enough capacity to block reformist initiatives directed at expanding the political and social rights of disadvantaged groups.

From the “Social Question” to the “Indigenous Question”: The Fact of Subordination and the Need of Going beyond the Politics of Integration In the previous pages, we concentrated our attention on the existing tensions between a highly centralized organization of power and the promises for an expansion of political rights and social inclusion made by different contemporary governments. In what follows, we shall focus our study more directly on one of the areas—the one related to indigenous rights—that in the last decades became one of the most promising and innovative areas of Latin American constitutionalism. The particular study of what the new Latin American constitutions did regarding indigenous rights—and the difficulties that followed from those decisions—will allow us to have a better understanding of the issue that we have been here studying, namely the existing tensions between the goal of expanding certain specific rights and the decision to keep a concentrated organization of powers basically untouched. A first thing to highlight, in this respect, is the centrality acquired by the “indigenous question” in Latin American constitutionalism from the late twentieth century and until today. All the new constitutions appeared to be enthusiastic and generous regarding the inclusion of “new” indigenous rights. In fact, one could say that if the first wave of constitutional reforms in the twentieth century was distinguished by its emphasis on the “social question,” this second wave (with all its variants) was particularly marked by the “indigenous question.” For the first time, Latin American constitutionalism made the decision to seriously face a problem that it had postponed time and again. In the same way that fusion constitutionalism at the end of the nineteenth century decided to incorporate the social question into their texts, now the “mixed constitutionalism” at the end of the twentieth century incorporated the “indigenous question,” which previous Constitutions had abandoned. It was a way to recover the most relegated constitutional topic—a way to find a place for those who were excluded among the excluded.

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Now, the constitutional decision to pay attention to the “indigenous question” faces significant problems, given the nature and complexity of that question. First of all, it was the question of how to incorporate those renewed concerns into the Constitution: What should be done? How should we proceed with that incorporation? In other words, how are we to carry out a successful graft, taking into consideration the difficult previous experiences with constitutional transplants and grafts? More specifically, how are we to do it, considering the tensions usually created between these reformist impulses and the desire for order that typically characterizes concentrated political regimes? Second, there is what we called the problem of translation. Briefly stated: Is it right to “translate” such vigorous, important, and diverse claims (claims related to language, land, culture, etc.) into the liberal language of rights? Such a legalistic response—call it the legal rights response to structural social problems—is problematic, for different reasons: the idea of rights tends to simplify what is normally too complex; it represents an attempt to solve problems that are mainly non-juridical through juridical means; it is an invitation to judicialize problems that mainly require non-judicial, political, and cultural solutions (not to mention the problems related to judicial biases); it is a way to individualize problems that are mainly collective; and it runs the risk of expropriating the control of these decisions from the same affected communities that it wants to benefit. At the same time, there is the problem of making the demands, interests, and needs of the indigenous communities compatible with the demands, interests, and needs of the “dominant” communities. The point seems particularly important given that many constitutions have happily included numerous aboriginal rights, without giving much consideration to the types of conflicts that they were thus creating with other existing rights.17 To be sure, to take the rights of indigenous groups seriously implies not only to “tolerate” the “exoticism” of certain foreign cultural claims, but mainly to assume the different serious costs required to ensure a multilingual education, guarantee the provision of health services, and so on. First of all, rights have economic costs that need to be assumed by the State (Holmes and Sunstein 1999). These significant costs demand that constitutional scholars begin thinking about (what we called) the material conditions of constitutionalism (the Bolivian 2009 Constitution is an interesting example in this respect). In addition, respect for religion and traditions may imply the concession of vast territories to indigenous communities or the noneconomic exploitation of mines or lands that are under their control (which in contemporary Latin America has become one of the most important sources of conflicts between established societies and indigenous peoples). Moreover, the tolerance of “alternative dispute resolutions” may imply the need to accept different forms of violence or coercion (whipping, as in Guatemala; cruel and unusual punishments, as in Bolivia; and the rondas campesinas, as in Peru; Sieder 2004; Yrigoyen Fajardo 2002), which the dominant system of formal justice has usually resisted. How should we solve, then, the questions posed by the emerging tensions between the rights and interests of indigenous groups and the rights and interests of the rest of the population? Then there is the problem of what to do regarding the previous, massive violation of indigenous rights committed by the State—violations of rights that normally extend their influence to the present. How should our society react to the fact of subjugation,

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that is to say, the fact that the State used, for so long, its coercive powers, in a systematic way, in order to subject these indigenous communities to its authority? How should our society react to the fact of exploitation, that is to say, the fact that the State took unfair advantage of the members of these groups for so long?18 Those situations of massive violations of rights call for the concession of special rights to specific groups, which has always been resisted both by liberal and conservative groups (although there are some significant exceptions, such as the ones that we find in the pioneer works of Dworkin 1985 and Fiss 1976). The proposal for recovering the “indigenous question” for constitutional law faces another problem, which is the lack of a strong constitutional tradition in its support.19 Of course, Latin American history is full of histories of indigenous mobilizations and rebellions, but the fact is that indigenous claims never found real attention on the part of legal scholars. Indeed, there were some isolated efforts within the radical legal tradition in support of indigenous demands (including, for example, the Reglamento Provisorio of José Artigas and, much more recently, the work of authors like Mariátegui). However, legal thinkers’ attitudes toward those demands oscillated between disinterest and “patronage” (we have made reference, for example, to the fact that the remarkable armed rebellion led by indigenous groups in early Mexico ended with the Constitution of Apatzingán, 1914, which directly ignored the “indigenous question”). Worse still, the type of economics that dominated radical political thinking in the twentieth century did not contribute to the advancement of the indigenous cause: economic questions always took precedence over the “indigenous question.”20 After this general, theoretical introduction, in what follows we shall first describe the most recent constitutional innovations in the area, and then we shall critically examine them.

Indigenous Rights in the New Constitutions By the end of the twentieth century, the constitutionalization of indigenous rights found a decisive moment in Nicaragua, after the conflict that confronted the Sandinista government with the indigenous group of the Miskitos in 1987.21 The Nicaraguan Constitution begins with a preamble that evokes “the fight of our indigenous antecessors.” Also, in article 5, it makes reference to indigenous peoples’ rights to “maintain and develop their identity and culture” and also mentions their right to maintain, exploit, and enjoy the fruits of their communal properties. More interestingly still, the Constitution refers to a “regime of autonomy” (regulated in chapter II of the document) for those communities of the Atlantic Coast. The Guatemalan Constitution reserved section III of its text to indigenous communities and made reference to the respect of indigenous language, habits, and traditions (art. 66). It also included protections to their lands and agrarian cooperatives (arts. 67and 68), and references to their right not to be discriminated against (art. 69). The Constitution of Brazil 1988 also showed some openness toward the “indigenous question,” and it included, in particular, special protections reserved for indigenous groups, in chapter VIII of the text. These pioneer cases were then followed by the Convenio 169, which was enacted by the International Labor Organization (ILO). The advent of this covenant, which became

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the main international instrument in support of demands by indigenous groups, substantially changed the legal discussion on the subject. The agreement included clauses guaranteeing respect for the culture, way of life, and institutions of the indigenous peoples. It also made reference to the right to effect consultation with these peoples, in the case of public legislation that could put their main interests at risk. After the enactment of the Convenio 169, a new wave of Constitutions emerged, and basically all of them took the “indigenous question” seriously. The new documents included complete lists of indigenous rights in their texts and adopted views favorable to legal pluralism. Among these new Constitutions, we could mention those of Colombia, 1991; Mexico and Paraguay, 1992; Argentina and Bolivia, 1994; Ecuador, 1996 (and 1998); and Venezuela, 1999. These documents defined the State as multicultural or pluricultural (as in the cases of Colombia, Peru, Bolivia, Ecuador), guaranteed the right to cultural diversity (Colombia, Peru), and/or proclaimed the equality of cultures (Colombia, Venezuela). In this way, these new Constitutions challenged the inherited monocultural model, which had predominated in the region since the nineteenth century (Yrigoyen Fajardo 2011, 132). This new wave of constitutions was followed by another international event of crucial, foundational character. This was the Declaration of Rights of the Indigenous Peoples, which was enacted by the United Nations in 2007. The Declaration gave a detailed account of the individual and collective rights of indigenous peoples and established basic, minimal standards that all the different States promised to respect. It also made reference to issues such as cultural identity, education, employment, and language. It also guaranteed the indigenous peoples’ right to be different and also referred to their right to economic, social, and cultural development. The UN document was then followed by a new set of constitutions, which would be the more advanced in the area. These Constitutions include those of Ecuador 2008 and Bolivia 2009.22 Given that the constitutions of Bolivia and Ecuador summarize the region’s best efforts in favor of indigenous rights, we shall briefly explore the content of these new Constitutions. First of all, and only to highlight some of the main efforts introduced by the Bolivian Constitution in the area, we could mention that the 2009 document: • Declares the country to be a plurinational State, affirming from the beginning of the text the principle of pluralism in all areas (art. 1). • Considers the languages of ethnic minorities to be official languages, and decrees that each government department shall communicate in at least two languages (art. 5). • Defines notions related to a “good life” (buen vivir or sumak kawsay) invoked by indigenous peoples, as basic moral principles (art. 8). • Includes, within the form of government, the one defined communally by the native nations and peoples (art. 11). • Considers, included among the basic rights, those related to self-determination of the peoples, the preservation of the environment, and cultural heritage (Title II). • Promises a “decolonizing” education (art. 78). • Organizes original rural indigenous jurisdiction (art. 190). • Recognizes, within the organizational territory, the original rural native territories (art. 272).

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• Consecrates, within the economic organization of the State, all forms of communitarian organization, establishes the State’s obligation to control strategic sectors of economy (art. 307), and declares natural resources to be the property of the people (art. 348). Meanwhile, the Ecuadorian Constitution: • • • •

Recognizes the plurinational, intercultural identity of the country (art. 1). Recognizes the indigenous peoples’ right to use their own language (art. 2). Recognizes the right to “good life” or buen vivir or sumak kawsay (art. 14). Recognizes diversity of “collective rights,” which include the right to “maintain the possession of lands of ancestral territories.” It also makes references to the use, administration, and conservation of the renewable natural resources found in their lands; and also to the right to previous consultation before projects for the exploitation and commercialization of non-renewable resources (art. 51). • Recognizes the right to collective property of land (art. 60). • Recognizes the rights of “nature” (art. 71).23 • Recognizes the indigenous communities’ rights to develop jurisdictional functions, according to their traditions (art. 171).24 These initiatives illustrate some of the most important measures promoted by the new Latin American constitutionalism in defense of indigenous rights. The obvious problem, however, is that these important proposals were also the most conflictive, given their capacity to question the existing organization and distribution of powers. In the following section, we shall explore some of these tensions with more details.

Concentrating Political Powers While Expanding Indigenous Rights Legal recognitions such as the ones mentioned in the preceding section were sometimes the result of pressure and mobilization of native peoples. In many cases, however, those pressures and mobilizations were triggered by the same appearance of the legal reform—particularly in issues related to land use and exploitation of natural resources (Giraudo 2008; Lillo 2003). These demands exploded into conflicts involving the indigenous communities and the states in question, and even national and international companies. This is what happened, for example, in the confrontation that took place in Nicaragua between the Mayagnas and Korean companies that were involved with deforestation and wood harvesting; the conflicts that arose between the Huaorani, Secoya, and the Cofán, in Ecuador, against North American oil companies; the disputes that pitted the Mapuce in Argentina and Chile against companies engaged in above— ground mining; the confrontations provoked by various indigenous communities in Peru related to petroleum, water, or natural gas extraction; and the fiery territorial demands of the U’wa community, in Colombia, against petroleum companies (Ariza 2009; Rodríguez Garavito et al. 2005; Ramírez 2006; Svampa and Antonelli 2009).

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In this context, tensions were commonly generated between the generosity of some constitutional clauses inviting participation, consultation, and decisions by native groups, and the already existent mechanisms of political decision. Usually, as we know, these mechanisms deferred to the authority of an Executive power who might have been interested—and often was—in more aggressive and undeliberated exploitation of natural resources. This was especially the case, given the extraordinarily large, quick returns promised by the more or less indiscriminate exploitation. The indigenous groups asked the governments in power to take seriously the respective constitutional clauses that they had trivialized (i.e., assuming that “referendum” could be satisfied by merely communicating with the populations involved) or directly ignored. (Let us recall that, in the case of Ecuador, the alliance between various indigenous/ecological groups and the government would break, as a result of which, during the Montecristi constitutional convention, the two sides would face off on the issue: for the former, the constitution ought to incorporate an explicit clause, conditioning the exploitation of basic resources, water, and mines, on the consent of the indigenous communities, while the government felt that it was sufficient to poll these groups; Ramírez Gallegos 2010, 95.) In some more extreme cases, like that of the U’wa community, the tensions reached the point of adjudication of the conflict; the adjudication ended up involving the highest political and judicial strata of the country, including the Constitutional Court. When examined, the results of this politico-judicial process are ambiguous; they include delayed judicial decisions (some favorable, others not) on the indigenous demands, following waves of mobilization and demobilization by the U’wa after each judicial intervention (Rodríguez Garavito and Arenas 2005). What these processes seem to teach, at a more general level, seems clear, and clearly related to the intuition that we have been exploring along these pages. The idea is that a serious commitment to popular participation requires a direct and special attention to the existing distribution of powers, as defined in the organic part of the Constitution. It seems necessary, then, for those who are sincerely committed to the promotion of changes favorable to popular political participation and social inclusion (in this case, of indigenous groups), to pay particular attention to what is done and what is not done in relation to the organic section of the Constitution. In addition, the previous considerations call our attention, again, to the problems of what we called “mixed constitutions,” that is to say, constitutions that assume contradictory moral, political, or juridical commitments, radicalizing their (say, natural) internal tensions. As Yrigoyen Fajardo maintained, “The adoption of multiculturalism and indigenous rights in the 1990s came hand in hand with other constitutional reforms aimed at facilitating the implementation of neoliberal politics, at a time marked by globalization. These changes included a contraction in the role of the State and in the enforcement of social rights, the flexibilization of markets and the opening to transnational corporations, as it happened in Bolivia and Peru” (Yrigoyen Fajardo 2011, 129). For her, “the simultaneous adoption of neoliberal policies and indigenous rights … had as a consequence the actual neutralization of the new conquered rights” (129). Of course, some people may celebrate the coming of these “mixed Constitutions” as an expression of a commitment to “do all that is actually possible.” Some others may see the constitutions’ ambiguities as a virtue, which would be compatible with a future “awakening” of the rights at stake. However, we know these responses face significant

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problems. This is so, first, because in societies deeply marked by profound inequalities, one should expect that those in power acted, in principle, in ways consistent with the preservation of those unjust inequalities. Second, those ambiguities always allow some public officers, typically, some judges, to take measures against indigenous groups, invoking the text of the Constitution. And, we should add, one has to expect this situation to frequently happen, particularly in contexts such as the Latin American, which is still so deeply marked by unjust inequalities. Finally, one has reasons to resist those kinds of bargaining, taking into account that we are dealing with some fundamental interests that require unconditional respect, rather than mere haggling. That said—and this should also be emphasized—we must recognize that the incorporation of these rights into the Constitution appear to have had some significant positive impact, particularly in relation to those very disadvantaged that were the subject of those clauses. In effect, for groups who were traditionally ignored or harmed by the law, the fact of recognition—the fact of being recognized by the dominant legal rules, from one moment to the other—has been always important: indigenous peoples had finally become visible, as a group, and somehow recognized in their dignity. This recognition not only helped to activate new forms of legal and social combats for their rights but also helped them to rebuild and strengthen their group identity (see, e.g., http://www.cels.org.ar/common/documentos/informe_2005_cap:15.pdf; and also Groesman Wagmaister 2005). This point, which requires further study and closer attention, allows us to have a more comprehensive and also a more optimistic understanding about the capacities of the law to interact with the actual people and also contribute to change existing social practices.25

The “Engine Room” of the Constitution Examples such as the ones that we reviewed in the previous pages make it clear how important, but also how limited, the task of those who got involved in processes of constitutional reform was. Legal reforms could not or did not want to go as far as they could have gone, in order to ensure that those reforms had the transformative character that they (so declared) wanted them to have. To state this does not deny the value of what has been achieved in the region, in constitutional terms, in recent years. Many of these reform processes managed to advance the interests of the most disadvantaged, at least on the books. However, it seems also clear that the reforms were, in the best case, very limited in their scope and achievements. And one of the main reasons that explain this conclusion is the fact that the reforms seemed to have concentrated their energies in the section of rights, without taking into account the impact that the organization of power tends to have upon those very rights that were then (extra) protected. Notably, legal reformers concentrated most of their energies in the creation of new rights, leaving the organization of powers basically untouched. As Raúl Prada, one of the main members of the Bolivian Constitutional Assembly, stated, the Convention did not manage to confront “the main problems affecting the interests of the people,” although it did produce important changes “in what concerns the area of constitutional rights” (Prada as quoted in Svampa 2010). By acting in this way, legal reforms maintained the closed “doors of the engine room” of the Constitution: the core

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of the democratic machinery was not changed, the engine of the Constitution did not become the main object of their attention, as if their mission concluded with their work on the rights section; as if the main controls could only be touched by the closest allies of those in power. It is interesting to contrast this remarkable omission, typical of recent reformers, with what their old intercessors used to do when engaged in a process of constitutional change. In effect, the engineers of the liberal-conservative compact showed no doubts about what they were required to do in order to ensure the life of their most cherished rights—say, basically, the right to property. For them, it seemed totally clear that in order to guarantee these types of rights, the first thing to do was to get into the “engine room” and introduce some necessary modifications at the outset. Typically, then, they proposed the restriction of political liberties in order to ensure the enjoyment of broader economic freedoms. This was, for example, Alberdi’s main constitutional lesson for his time: it was necessary to temporarily tie the hands of the majority so as to ensure protection for certain basic economic rights. By doing so, they showed that they were totally aware of the importance of crossed reforms, this is to say, they were positive about the need to introduce changes in the organization of power, in order to achieve certain results in the opposite section. More particularly, they were clearly aware of the priority that the “organization of powers” section of the Constitution deserved, in order to achieve substantive results regarding fundamental rights. Above all, they seemed to have no doubts about the meaning of having a strong Executive for achieving the changes they wanted (i.e., regarding the preservation of existing property rights). The “mistake” committed by those who wanted to promote social reforms with the help of the Constitution, but without effectively touching the “engine room” of the document, appears clearly in an extraordinary paragraph written by Arturo Sampay. It is important to recall that Sampay was the main (Peronist) jurist who worked on the writing of the 1949 Argentine Constitution. That Constitution, we know, incorporated a profound social commitment manifested in a long and innovative list of social rights. However, in an article that the same Sampay published some years later (in 1973, in his book Constitución y pueblo, which belonged to his more radicalized period), the jurist challenged part of his previous initiatives. In a strong expression of self-criticism, Sampay mentioned that the Constitution had been affected by one grave omission, which in the end condoned the entire text to death. The omission consisted, precisely, in its lack of courage for (what we here called) opening the door of the “engine room.” In his words, the Constitution did not make the organization of powers consistent with the new social impulses that it had incorporated in the text through the Bill of Rights section of the document. This is what he said: The Constitutional reform of 1949 was not properly conducive to the predominance of the people, by favoring the exercise of political power by the popular sectors. This was due, first, to the faith that the triumphant popular sectors had in the charismatic leadership of Perón. Secondly, this was due to the same vigilant attitude of Perón, who made everything possible to prevent the popular sectors from achieving an actual power that could impair the power of the legal government. These facts helped the government to

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stay in power until the time that the oligarchical sectors, in accordance with the armed forces, decided to put an end to his government. That was, then, the Achilles’ heel of the reform. And this explains why the Constitution, like Achilles, died at an early stage, by his enemy: it was vulnerable precisely in the most significant part, that is to say, in that part that had to provide for its support. (Sampay 1973b, 122) In other words, with unusual virtue, Sampay recognized the fatal mistake that he and other members of his generation committed, by not paying sufficient attention to what he himself described as the Achilles’ heel of the Constitution. Social reformers like Sampay should learn from him that important lesson: in order to introduce social changes in the Constitution, one needs to primarily affect the organization of power.26

Modest but Significant Breaks: Costa Rica’s Chamber IV, 1989, Colombia’s Constitutional Court, 1991, and Modifications to Procedures for Granting Standing in the Courts What reforms related to the “engine room” of the Constitution should be propelled? Recent regional history suggests some answers that speak to the conflicts generated from the attempt to foster an ever more democratic society and the inclinations of governments in power to hold the vertical and self-contained institutional order in place. The fact that the disadvantaged powers are the very ones that have been deserted midway along the path toward the realization of these envisioned reforms makes the work needed to fulfill them especially difficult—a task which, moreover, requires the uniting of extraordinary efforts for it to be completed. As difficult as it may be to navigate this path and as urgent as it is that we do so, we would do well to recall that the true history of Latin American constitutionalism reveals that not all regional judicial life has played out in all-or-nothing maximalist reforms. On the contrary, and in contrast to what we might think, recent history has shown the relative “success” of reforms that are, apparently, modest in scope and innocuous in content.27 In what follows, let us dwell a moment on the impact achieved by certain procedural reforms directed toward the conditions for access to the justice system by the poorest sectors of the population. The example of these reforms will serve to illustrate, simply, that entry into the “engine room” of constitutionalism can recognize different forms and searches. The cases we will take into account are basically two: those that took place in Costa Rica and Colombia at the end of the twentieth century.28 Undoubtedly, both as a consequence of their content and their scope, these reforms would not be the ones that a radical egalitarian politics would foster in the event of change. In any case, those reforms—which, at the very least, do not seem incompatible with an egalitarian program—may illustrate a modest, but still significant, way of introducing some changes in the “engine room” of the Constitution.

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Both cases deserve a previous comment: in the case of Colombia, the constitutional reform was passed in the context of a radical political crisis (although it is not clear that the judicial reform that we shall study was passed with clear conscience of its consequences, which may explain in part the success of the reform, perhaps better than the crisis itself). We must recall that Colombia was trying to put an end to the long and tragic period of La Violencia. It had just been hit by the massacre of guerrilla members of the M-19 who had entered the Supreme Court’s building (a massacre that was carried out by the national armed forces) and was also (and at the same time) fighting against the forces of drug dealers that controlled part of the country (Lemaitre 2009). In the case of Costa Rica, the reform under study—the introduction of the famed Sala IV—was carried out by legislators that did not seem to understand the profound potential consequences of the change they were implementing. According to Bruce Wilson, possibly the most knowledgeable political scientist in the study of the Court, “interviews with leading actors in the debate over the new court reveal that many deputies failed to grasp the potential significance of the court they were creating” (Wilson 2010, 67).29 (Do these facts suggest that the only successful significant reforms are those that are done without real consciousness of their implications?) In Costa Rica, no one seemed to anticipate, at all, the changes that would take place in the high court’s operation from then on. In effect, during the last fifty years, the court had received only a few cases (155) dealing with constitutional questions. Apart from that, the court record, until that time, had been always marked by strong deference to political power (Wilson 2005). Hence, when the decision was made to annex a special Chamber dealing with constitutional issues—the Constitutional Chamber, or Chamber IV—to the high court, no one paid very much attention. As might be expected, only the members of the Court then seated on the bench showed any resistance to the creation of the new Chamber. In Costa Rica, the parliamentary discussion about the constitutional amendment that would modify the organization of the Judicial Power took place without major polemics or snags. Nevertheless, the reforms in question include some other details that ended up playing a decisive role in explaining what followed: hyperactive, socially conscious, and politically defiant behavior on the part of the new Chamber. Conspicuous among the reforms that occurred is the extraordinary expansion granted in the legitimacy of standing before the court; this was accompanied by a break in the strict procedural formalism that had characterized Court appearances up to this point. Similarly, we can add the fact that every person was granted standing to appear in Chamber IV, without needing to resort to legal representation, without needing to pay any fee, and without having to stick to pre-established rules and arguments. A claim could be filed at any time of the day, in any language, without any age requirements for the claimant, and could be written in any medium (Wilson 2010). The results of these changes were swift and extraordinary. In the first year of operation, 1990, the tribunal received 2,000 cases, increasing to 6,000 in 1996, 13,000 in 2002, and more than 17,000 in 2008. There were 200,000 cases over the first nineteen years of operation, almost all, currently, related to seeking injunctions (“amparos”) (Wilson 68). Otherwise, we should note, this incremental dynamic was favored in the

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very operation of Chamber IV, which proved itself not only able to deal with the sheer number of cases but also to do so in a short time. The situation described has several strong parallels, and at least one significant difference, with what occurred at the highest level of the Judicial Power of Colombia, in the 1991 constitutional reform. The difference is that this Constitution was the product of a broad and heterogeneous group of representatives (which included figures from the political right, ex-guerrillas from the M-19 group, indigenous peoples, and religious minorities) working together over the course of six months (García Villegas 2001, 14). The Constitution seemed to be, finally, the product of a broad consensus, rather than a carta de batalla, or winner´s document, according to the famed expression of Valencia Villa (Lemaitre 2009, 124). This fact of plural representation would also explain, for example, how a profusion of social rights incorporated into the Constitution arrived hand in hand with explicit constitutional declarations in defense of the free market (thus creating a typical “mixed Constitution”).30 In any case, the fact is that in Colombia, as in Costa Rica, the creation of a new judicial organ—here a Constitutional Court to be positioned alongside the already extant Supreme Court—also failed to generate serious preoccupations or resistance, except, as in Costa Rica, on the part of the magistrates then seated, who feared seeing their powers curtailed. Politically, the new Court was not perceived as a threat in the context of a country where the tribunals were characterized by a long tradition of independence while displaying deference to political power. Nevertheless, and as can be seen in the Costa Rican example, the tribunal showed immediate signs of strength, activism, social calling, and defiance, which surprised even its own creators (Bonilla and Iturralde 2005; Cepeda 1997; Gaviria Díaz 2002; Lemaitre Ripoll 2009; Rodríguez Peñaranda 2005; Uprimny et al. 2006). And although, yet again, it is not easy to determine an explanation for this noteworthy development in the Court, since its creation some apparently modest procedural reforms seem to hold part of the answer. In Colombia, as in Costa Rica, judicial reform incorporated drastic changes of procedural issues—especially, for example, through the acción de tutela,31 which grants any person recourse to the justice system without any formal experience, without the necessity of incurring economic costs, without the requirement of hiring a lawyer, and without having to demonstrate the concrete interest of the claim being sued. This is to say, it is a maximal expansion, not easily matched, in terms of access to the courts. The results of the adoption of this mechanism were as explosive in Colombia as in Costa Rica. The new Court decided 236 cases in 1992, its first year of operation, and ten years later it averaged well above 1,100 (an increase of almost 500 percent). In the matter of tutelage, the Court received some 8,000 amparos in its first year, and in 2001, this number reached 133,273 (the figure had increased some sixteenfold). The number of average annual decisions by the Constitutional Court ended up also being sixteen times higher than those of the Supreme Court before the arrival of the new tribunal.32 Finally, what happened in Costa Rica and Colombia—then later, more modestly, in Argentina and Brazil—was no more than the repetition of a phenomenon that had already occurred in far more distant and unexpected places, such as Hungary, India, and South Africa. Relatively minor changes in the law of standing, together with drastic

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reductions of the formal requirements customary in judicial proceedings, tended to produce radical changes in the relationship between individuals and the judicial system. These changes translated into an unequivocally significant rise of litigation rates and at the same time, notably, altered the behavior of the tribunals. Beset by an excessive burden of claims from the least advantaged sectors, who thanks to the aforementioned changes had access to opportunities for judicial redress—the tribunals tended to demonstrate greater acceptance toward questions connected with social and economic rights (Gloppen et al. 2010). In the case of the Colombian Court, contrary to the practice of a majority of similar tribunals, the new judicial organ would mostly end up resolving social rights cases. In fact, the great majority of cases resolved by the tribunal between 1992 and 2005 (55 percent) were related to social rights (while the remainder were related to civil or political rights), and more importantly, in 66 percent of the cases, the magistracy inclined toward ruling in favor of protecting the rights solicited by the claimant (García Villegas and Saffón 2005, 18). Ultimately, in both Costa Rica and Colombia, we find ourselves looking at lowprofile, localized, well-directed reforms that understand the importance of and scope for effectiveness, by producing serious modifications to the “engine room” of the Constitution. What has been said so far should not be understood, however, as if the examples of Costa Rica and Colombia illustrated the only or main existing ways for advancing social reformism in Latin America at the present time. These reforms tend to show strong limitations in actual practice, particularly when the basic structure of political power remains untouched, as tends to be the case, and the organization and composition of the judiciary maintains its elitist bias. On the one hand, this double limitation hinders the citizen’s capacity to actively participate in the reformist process, pushing for more significant changes, and contributing to their stability in time. On the other hand, in that way, judges tend to face severe difficulties for advancing changes in politically sensitive areas. Worse still, under present conditions, judges tend to feel more proximity with the interests and rights of certain groups—particularly middle and upper classes—rather than others (Sajo 2008; Maestad et al. 2011); and the citizenry finds scarce possibilities for controlling public officers and making them accountable.

Social Protest in Latin America The situation so far described refers to an institutional system that became too restrictive, even regarding its modest original ambitions. The system seems also too closely linked to a too narrow conception of democracy, which is in conflict with basic and widely shared intuitions and convictions (i.e., intuitions related to the equal dignity of all, with independence of each person’s gender, race, or level of education). Those facts explain, at least in part, a growing social discomfort with the institutional system (a general discomfort that may be, of course, compatible with occasional enthusiasms with one or another political leader or institution). The crisis says something about the vitality that characterizes public life in most Latin American countries—vitality that is usually expressed through intense and extended social mobilizations and social protests. These protests became particularly intense after periods of severe economic

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adjustments (i.e., during the 1990s), which ended with high levels of unemployment, and the attempt of constructing a “minimal State.” The protests emerged—perhaps surprisingly, perhaps not—after a period of weakening of trade unions (a distinctive note of the end of the twentieth century); an increase in the levels of social inequality (which generated social irritation); and during a time of democratic stability (stability that installed the idea that solutions to the crisis could not be found, as usual, beyond the limits of the democratic system). In addition, this was a time of growing social distrust of traditional political parties, and a growing certainty that public offices and public officers were not willing or well prepared to recognize, attend, or process the existing popular demands. The referred protests included those that exploded in 2001 in Argentina, promoted by the piqueteros (usually unemployed people who blocked the national roads to call the public attention to their demands, following the adjustment programs of the 1990s); the consistent and powerful protests in defense of their right to land, promoted by the movement of the Sim Terra (MST) in Brazil; the “wars” for water and gas in Bolivia, during 2000 and 2005; the “invasions” produced in Peru or the takings of land that were done in Chile on private or public land; the protests of the young students, pingüinos, in Chile; the fights lrd by the mapuches in the Patagonia of Argentina, and in the south of Chile, in defense of indigenous rights; the numerous environmental disputes, particularly against mining companies, which appeared in the entire region in the last decades; and so on. All these protests, in addition, received strong popular support and gained social legitimacy, even in the cases of their most extreme expressions.33 Of course, such results—produced in different moments, in different countries, with different intensity—deserve a separate analysis, which we cannot afford in the context of this chapter. However, there are some general reflections that may be appropriate to mention at this point, because they may be relevant for this work. Constitutional rights. First of all, protests such as the ones that we examined in previous pages force us to pay attention to the existence of grave violations of rights—particularly social rights—that are daily produced in the region. In addition, those demands refer to violations of rights that have a constitutional status. Governments get involved in the violation of these rights, first, through their actions, which in many cases implied the advancement of adjustment programs that cause high levels of unemployment, which may from one day to the other affect millions of people. In addition, these governments are responsible for their omissions, which may for instance imply leaving the new unemployed without any attention and social protection. (Still worse, in many cases, these programs of structural adjustment included privatization processes that were carried out with high levels of corruption.) The law and illegality. According to some, these protests express the anti-legal behavior of the protesters—in other words, their disposition to constantly challenge the law. However, one could also reasonably read these events in a different way: rather than focusing on individuals who irresponsibly challenge the law, one could call the attention to the way in which the law became more restrictive and exclusive concerning the disadvantaged. In a certain way, one could say that the law became every day more severe; that the criminal law gained too much space within contemporary legal

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disputes; and that the place of liberty became increasingly reduced: the law illegalized numerous conducts that could otherwise be seen as simply reasonable—conducts that one could even consider an homage to the law, done for the most disadvantaged people who live in extremely harsh conditions and who, in spite of their sufferings, stand up to denounce the injustice that they suffer. Consequently, one could say that the increasing number of illegalities produced in contemporary Latin America has more to do with a law that became more restrictive than with a citizenry that became more anxious to defy legality. Presently, even innocent actions of defiance to the law became grave violations of the criminal law, which helps us to put the entire legal system into question. The absence of “voice.” The recent wave of social protests, in Latin America, suggests the existence of some crucial problems such as the absence of “voice” affecting large segments of the population. It is this reason that seems to explain the modality of many of these reforms, for example, blocking national roads, producing public “scandals,” burning down public buildings, and so on. Some people just need to express their views in public, letting the rest of the population recognize their sufferings. They desperately need to make their claims “visible” to make their voices audible. And—it seems clear—they want to make their voice audible because they want to denounce (at least on many occasions) the existence of a grave violation of rights.34 Criminal law and inequality. A final point to mention refers to the criminal law and its place in situations of social conflict. The question would be: How should the State use its coercive powers in circumstances of unjust inequality? In order to answer this question, we should remember that the problem of justifying coercion is, and has always been, central in political philosophy (Rawls 1971). This problem becomes even more serious when what is involved is the use of penal coercion, given that penal coercion involves the most extreme forms of authorized State violence. And this difficulty becomes even more serious when what is at stake is not just penal coercion, but rather penal coercion that is used in the context of unjust inequalities. In these cases, the risk of abuse from the State apparatus so as to preserve those inequalities seems particularly high. Or, to be more precise, in these circumstances, the most advantaged may feel tempted to use the State apparatus under their control, for the goal of preserving the structures of inequality that benefit them. And the risk is much bigger because of the absence of “voice” that in such situations affects the least advantaged—in the end, we would maintain, the diversity of voices is a fundamental component of an impartial law (Duff 1998, 2001, 2004; Duff and Garland 1994; Gargarella 2011a; Murphy 1973; Von Hirsch 1976). *

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Bolivia: The Material Conditions of the Constitution As we have already explored, among the Constitutions that took the “indigenous question” seriously, the Bolivian Constitution occupies a significant place. Two features are

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particularly salient. In the first place, the Constitution identifies a fundamental social problem or “drama,” which is the situation of marginalization and subjugation that affected the indigenous peoples over the centuries. In the second place, like few other documents of the kind, the Constitution deals with the important issue of what we here called the material basis of the law. With regard to the first issue, we could mention that the Bolivian Constitution contrasts with many of the other documents advanced in the region in the same period, which appeared to be more clearly motivated by short-time purposes. Against that common tendency, the Bolivian document seems to be the result of a crucial question, namely: What can the Constitution do to help solve one of the main “tragedies” confronted by this country? What is still more important, the Constitution identifies as the main “tragedy” one that clearly occupies a central place in its public life. Of course, to state this does not say anything about the ability of the representatives in the Convention to choose the best institutional means in the face of the identified problem or about the ability of citizens and public officers to then deal with those issues in a proper way. It seems clear, in addition, that the Constitution is affected by numerous shortcomings. Someone could say that the Constitution suffers, in fact, from voluntarism; that it is too long, unnecessarily meticulous, and exaggeratedly aspirational. In addition, it could be said that the Constitution is founded on opposite and contradictory theoretical views, which are, on occasion, simply implausible. However, and in spite of all that, it seems also clear that the Constitution is creative and innovative, and that it explores areas and solutions that other constitutions have not even touched. We have already mentioned some of the innovations incorporated by the Constitution in its attempt to deal with the problem of indigenous marginalization. In what follows, then, we shall make reference to some of the steps that were taken in order to deal with the material basis of constitutionalism. The issue of the material basis occupied an important place along the entire reformist process. In its special interest for dealing with socioeconomic matters, the Bolivian Constitution related to a few other documents of the time, such as the Venezuelan new Constitution (which dedicates one entire section of the document—Title VI—to the “Socio-economic system” and declares to be openly against monopolies, oligopolies, and cartels (art. 13)); or the Ecuadorian Constitution (which also favors a “social” economic system, based on the value of “solidarity,” and which also opens its text to different forms of economic organization). In order to deal with the issue of the material basis, the new Constitution designed a multiplicity of measures. We have already mentioned some of them, related to the use of the natural resources and the role of the State, so in what follows we shall focus our attention on the way it approached property and property rights. In principle, the Constitution recognizes two forms of property: private, and collective or communal. The second is acknowledged by article 394, which refers to the recognition and protection granted to property in territory of “native indigenous farmers, intercultural native communities,” and “rural communities.” This property is declared “indivisible, illimitable, inexpropriable, inalienable, and irreversible” (art.

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394). Additionally, in article 395, the Constitution points out a criterion for the distribution of fiscal lands: they should go to the indigenous groups, rural groups, native communities, Afro-Bolivians, landless rural communities, or those with insufficient property, thereby implying that these lands be used so that their “sustainable exploitation” would be ensured and that they would be used to guarantee the subsistence and well-being of their holders. Nevertheless, the most conspicuous novelty incorporated into the Constitution was the one relating to the great estates—latifundios. In one of the most polemical measures adopted, the Constitution decided to prohibit these large estates, a decision that met with extraordinary resistance. To overcome this impasse, the framers proposed two principal ways out. One was by deeming the measure to be non-retroactive; that is to say, it would be applicable only to future properties seeking to establish themselves as large estates. The other was by determining maximum legal limits on property through a referendum ratifying or repealing the proposal. This referendum took place on January 25, 2009, on the same day that the Constitution was submitted for popular ratification. On this occasion, the population was asked if they would approve article 398 of the Constitution, which would define a large estate on the basis of four possibilities or possible forms: (1) unproductive land holding; (2) land not serving a social function; (3) exploitation of land employing systems of servitude, slavery, or semi-slavery in labor relations; and (4) property in excess of the maximum area of 5,000 hectares. The text of article 398 was approved by 78 percent of the vote. All the mentioned initiatives refer to a very peculiar constituent process—perhaps the only one in the region that dared to put seriously in question the liberal-conservative matrix. However, it must also be noted that this Constitution, which appears quite defiant in its text, represents in fact the result of an arduous and extremely conflictive bargaining process, which forced the moderation of its content. In this respect, there seems to be an interesting parallelism between what this Constitution came to represent at the beginning of the twenty-first century, and what the Mexican Constitution represented at the beginning of the twentieth century. In effect, the Constitution approved in Oruro suffered numerous changes from what was its original, proposed text (we have already mentioned some of these changes related to large states). The changes were introduced by the Writing Committee first, and by a new, ad hoc Constitutional Congress, which was also created, ex nihilo, in order to revise the work of the original Assembly. In total, 144 articles of the approved Constitution were revised and finally changed in this peculiar manner. According to the lucid analysis of Boaventura de Sousa Santos, all the modifications introduced were “of a conservative character” and implied “severe loss for the indigenous, popular, peasant movement” (Santos 2010, 75). The reforms included, according to Santos, the following: “the number of special indigenous circumscriptions (was reduced); the agrarian reform was blocked through the non-retroactivity imposed to the norm; the indigenous communitarian justice was limited and confined to the indigenous in their territories and between them; the composition of the Pluri-National Constitutional Tribunal was altered (the Tribunal now requires all their members to have a Eurocentric academic legal education, and only a few of them need to be acquainted of the indigenous rights)” (75).

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These final modifications tell us something about the limits of the Bolivian reformist project, in particular, but also something about the limits of reformism in Latin America, more generally. Among other things, those limits point to the persistence of an institutional matrix that is strongly hostile to the production of changes; to the tensions that seem to be inherent to such institutional structure; to the disjuncture that seems to exist between a mobilized citizenry and their representatives (in this respect, see Levitsky and Murillo 2012). Finally, what we are facing is the way in which the past still influences and limits the present.

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What Have We Learned in 200 Years of Constitutionalism? For an Egalitarian Constitutionalism

The Double Demand for Equality: Collective Self-Government; Individual Autonomy Studying Latin American constitutional law during the mid-nineteenth century, Juan Bautista Alberdi distinguished between “two essentially different periods . . . one that began in 1810 and ended with the war of independence against Spain, and the other that began the time of the war of independence and continues to the present day.” (Alberdi 1981, 21). Alberdi wanted to reflect upon the “spirit” of the “new constitutional law in South America,” given that the dominant constitutional law seemed to “express needs of a previous time” in America, and, as a result of that, was ignorant of the “needs of the present.” (61). The exercise in constitutional law that he was proposing was descriptive of what he and many of his colleagues had actually been doing in the region during those years. The same Alberdi, in his work Bases, had carefully examined the evolution of constitutionalism in America. As we know, this task was not merely descriptive, as suggested by the author, but creative and normative: it actually moved him to define a program for future action. Taking into account his work and his suggestions, we could make an imaginary exercise and ask ourselves the basic Alberdian questions, that is to say: What are the constitutional needs of our time? What is the main legal “drama” of the present time? How could the Constitution react in the face of that “drama”? In previous pages we suggested at least one possible answer. We maintained that the main “drama” confronted by the entire region, since its independence, was the “drama” of inequality. And we also made two additional claims: first, we said that a situation of unjust inequality represented an obvious disvalue; and second, we maintained that, since the early days of the Independence Revolution, Americans proposed a robust and rich ideal of equality, which is in need of further reflections. The egalitarian ideal seemed to include two main parts, which were the following: (1) On the one hand, there was a demand for collective self-government, that is to say, a demand for the right of all and each person to intervene in the decision of basic issues related to public affairs. 196

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(2) On the other hand, there was a strong claim in defense of individual autonomy, which at the time appeared to be asphyxiated by a type of moral perfectionism imposed during centuries by the Spanish Crown. Of course, we are not claiming that all the revolutionary leaders believed in those ideals, and even less suggesting that those ideals are presently valuable because some revolutionary leaders, in the past, promoted them. What we do claim, instead, is that the double ideal of collective self-government and individual autonomy occupied a central place in the self-justificatory discourse of the revolutionary movement in America, and that such choice can be explained and justified because of the independent value of both those ideals. In addition, we claimed that both egalitarian ideals were deeply dishonored after the revolution. (1) Conservatives tended to seriously offend both ideals. On the one hand, they subscribed to an elitist view that led them to resist the demands for collective self-government. On the other hand, they endorsed a moral perfectionist view, which moved them to defy the claims for an expansion of individual autonomy. (2) Radicals, for their part, defended the ideal of collective self-government, which they adopted as the core of their political view. However, they tended to do so by displacing or neglecting the value of individual autonomy, which they often left at the mercy of the majority will. (3) In a certain way, liberals reversed the radicals’ approach. What they tried to do was to ensure the protection of individual autonomy through the use of the State apparatus. However, in order to do so, they usually accepted sacrificing the ideal of collective self-government (typically, through the acceptance and promotion of counter-majoritarian institutional devices). After this analysis, there is at least one important issue to be addressed, which is related to a fundamental absence—what is absent is a conception that subscribed and maintained both ideals, consistently, at the same time. In effect, conservatism challenged both ideals at the same time, while the other two views—namely radicalism and liberalism—adhered to one of them, but challenged or neglected the other. So, what is lacking is a view that vigorously advocated for both ideals consistently. What explains this result, given the centrality of both ideals since the early years of independence? Why is it that we do not find significant political forces pushing for both ideals? What explains, in the end, this remarkable absence? At this point, we have to leave these questions open and concentrate our attention, rather, on Latin America’s actual institutional legacy and its implications.

The Forge of the Liberal-Conservative Alliance and Its Legacy By the mid-nineteenth century, liberals and conservatives began to work together on a new constitutional project, which would synthesize their demands. On the one hand, this compact reflected the growing social discomfort toward the elitism and the abuses typical of conservatism. On the other hand, it expressed the difficulties liberals

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always had for making their own political project stable.1 Surprisingly or not, and in the face of its own limitations, liberalism systematically looked for help in conservative forces. This choice also implied liberals’ decision not to explore another, different and risky alternative, which was that of opening itself to majoritarian politics.2 Liberalism seemed to care less, however, about what both the empirical evidence and history seemed to suggest, namely that their option for conservatism always proved successful at the beginning and in the short term, but also always revealed itself as a tragic option in the mid and long run. At the same time, this alliance revealed the existing affinities between the liberal and conservative projects. In particular, they coincided on two fundamental questions. First, they both wanted to keep certain crucial aspects of the country’s economic organization untouched—most of all, they both wanted to prevent “abuses” concerning the right to property (typically, the politics of expropriation). In addition, liberals and conservatives wanted to prevent the growth of a threatening political alternative, which they identified with the majoritarian/radical-democratic project. The liberal-conservative compact forged, at that moment, the basic matrix of Latin American constitutionalism, which we summarized with the formula of limited political liberties and ample civic (economic) liberties. That model, it is worth remembering, expressed a too restrictive conception of democracy, which according to Alberdi required the citizenry’s undeliberated assent of what political authorities decided. The basic institutional structure that was then created proved enormously successful, at least with regard to two fundamental issues: (1) the diffusion that it achieved, and (2) the stability that it gained. In the end, and after 150 years of its creation, the main constitutional structure of the region appears to be basically the same. At the same time, that basic structure appeared to be very problematic, concerning its design; and also profoundly unattractive, concerning the egalitarian ideals that were present in the region since its independence. With regard to the first issue, it should be enough to mention some of the, for want of a better term, “descriptive” failures of the system: since its creation, the institutional design appeared to be unable to express the existing social complexity. The risk was that the institutional system left significant parts of society unrepresented and numerous viewpoints unattended (Nedelsky 1994). The basic institutional structure, we claim, was based on a primitive and too simple image of society. Society was assumed to be divided into two basic groups, which were conceived of as internally homogeneous and with interests that were stable over time (Gargarella 1998b).This picture became even more distortive with the passage of time: the old institutions, like an old suit, became even tighter, and thus excessively restrictive of society’s movements. As a consequence, they tend to limit, rather than facilitate, the expression of the present social diversity.3 With regard to the original egalitarian ideals, the institutional design proved to be unattractive in different ways. On the one hand, the created institutional structure prevented the actual political inclusion of large sections of society, at least during long decades. On the other hand, that institutional structure did not ensure the ample guarantees in terms of individual autonomy that it had promised. In addition, and invoking the need to defend economic liberties, the institutional system provided extraordinary protections to existing economic inequalities (inequalities that were, in the end, a result of an intense State “activism”—an activism that was rhetorically

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repudiated at the time). In that way, it favored the consolidation of an extremely unfair distribution of resources. Thus, the Constitution offered all the necessary guarantees for the preservation of the economic status quo and, at the same time, it severely limited the possibilities of politically resisting that situation. Ultimately, the original constitutional structure came to serve the consolidation of grave and unjustified existing inequalities. The lack of neutrality of those Constitutions became not only manifest in the fact that they worked for the preservation of an unequal status quo (Constitutions were in this sense committed to the principle of limited political liberties). Constitutions were also non-neutral or partial in a different way: they decided not to contribute to the promotion of an active citizenry.4

An Expanded Constitutional Compact From the beginning of the twentieth century, the successful alliance for “order and progress” entered into a profound crisis—a crisis that proved insurmountable. Much of what was done at the level of the Constitution, since that time, can be read as an attempt to recover that mythical moment that combined political stability, economic growth, and social discipline. Unfortunately, the social conditions had definitively and dramatically changed, which made it impossible to turn back the clock. In that context, the main response offered by constitutionalism, in order to take into account the substantive changes that had taken place in the region, was to “annex” some claims related to the “social question” to the old liberal-conservative institutional matrix. In that way, constitutionalism tried to show its concern with the conflictive social situation that was distinctive of the time. The old constitutions were reformed accordingly, in an attempt to reflect the new social conditions. The goal was to transform those old Constitutions so as to express, through those legal documents, a perfect synthesis of the claims of liberals, conservatives, and radicals. Some could have said, then, that the region had finally replaced the aged liberal-conservative compact for a new, ecumenical agreement, which included the three historical constitutional projects. However, and in contrast to that view, we have repeatedly mentioned the serious problems that seemed to affect that attempt. On the one hand, the new, ecumenical, “full constitutional alliance” did not properly honor the more traditional and basic ideals of radicalism, neither regarding the organization of powers nor regarding how to deal with the so-called “social question.” On the other hand (but also in relation with the previous point), the “incorporation” of radicalism to the old alliance was done in a clearly objectionable way, in terms of institutional design. To state it briefly: legal reformers left the “engine room” of the Constitution under the custody of the old liberal-conservative alliance, while they delegated the section of rights to the control of some of the existing radical groups. As a result of that distribution of tasks, the region began to produce constitutions that radicalized their internal tensions (typically, one part of the document seemed to be designed so as to work against the other). In addition, those initial decisions resulted in the preservation of an organization of power that seemed still too insensitive to the growing social demands, which promised the emergence of more tensions between the citizenry and the Constitution.

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In any case, it would be unfair to deny the introduction of major changes in the old nineteenth-century constitutional model. The new century brought with it some extraordinary events, ranging from universal suffrage to the entry of the working class in the public arena. Such changes certainly had a significant impact on the old paradigm of “order and progress.” Notably, however, such changes found only a partial translation into the language of the Constitution. The new constitutions recognized those novelties mainly through the incorporation of new socioeconomic rights. In other words, these extraordinary sociopolitical changes did not translate into a new organization of constitutional power. Ultimately, and after many different attempts (which included authoritarian experiences, pacts for governance of more radical ruptures), what remained was a “new” constitutional model, characterized by a robust declaration of rights and a still highly concentrated organization of power. The second great wave of reforms—the one that emerged toward the end of the twentieth century—did not significantly modify this new constitutional model. True, some recent political and economic events had a major impact on the public life of the region—and thus, also, on the existing legal organization. We refer to both the cruel dictatorships that dramatically affected the political and social organization of most Latin American countries and also to the structural adjustment programs that severely affected their economic framework. However, the fact is that—despite the intense constitutional movement that occurred in Latin America in the late twentieth century—the new constitutions that emerged by the end of the century did not radically subvert the dominant constitutional model. Clearly, these new constitutions also made a major effort to incorporate previously ignored demands and to integrate social groups hitherto largely neglected by constitutionalism (from indigenous groups to consumer groups, from gender demands to multicultural demands). Nevertheless, the new Constitutions were kept, in an important sense, identical to what they already were. They continued to assert their democratic and inclusive character through the section on rights, while they kept their hierarchical, top-down aspect concerning the organization of power. In short, as we enter the twenty-first century, we can say that, after 200 years of constitutionalism, the liberal-conservative legacy of the nineteenth century was amended in a significant way, while it was also preserved significantly too.

What Have We Learned in 200 Years of Constitutionalism? The previous notes suggest the existence of serious institutional deficits, which continue to affect the political life of the region. At the same time, they refer to the importance and necessity of constitutional reforms designed to address some of the above difficulties. Of course, to state this does not mean that constitutional reforms are the appropriate means for solving problems that mix political, social, economic, and cultural elements. What we are saying is quite the opposite, namely that such problems cannot be addressed without also resorting to legal changes. Faced with the need to promote legal reforms, there are several considerations to take into account in light of the history we have reviewed and the discussions we have examined in the previous pages. Here we shall briefly summarize some of these considerations, which may be useful for the occasion of launching a constitutional change.

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External and Internal Consistency of the Reform Following Alberdi, we should pay attention to the political and legal context within which reforms are inserted. Reformers should recognize that the context can foster or hinder the desired reforms and should consequently learn to engage with that context. The constitutional history of the region offers good examples of Constitutions that— inappropriately, we might say—proclaimed human rights in situations of serious violation of fundamental rights or incorporated social rights while structural adjustment programs were applied. Of course, reformers can accept the invitation to introduce progressive reforms in contexts that are not particularly favorable (in the hope that the clauses will gain life in the future under different contextual conditions). However, they should also be able to recognize the risks involved in such decisions (i.e., the risk of generating loss of social trust in the law, the risk of unnecessarily creating constitutional tensions), rather than acting as if those risks did not exist (we shall return to this point). Second, the reform should be carried out recognizing that it will not be inserted in a legal vacuum, but rather in a well-established legal context. Recognizing the existence of this legal context does not mean simply taking note of the complexity of the legal world. Rather, reformers should pay attention to the ways in which the past limits the present. In other words, reformers should take into account that the existing legal framework can accommodate or—more commonly—resist the arrival of constitutional novelties. Constitutional reformers, however, often act as if any reform were possible in any legal context. Third, reformers should pay special attention to the internal dynamics of the Constitution. This implies, first, to study the ways in which a reform introduced within one section of the Constitution (say, an expansion of social rights) impacts within the same constitutional section (say, the impact it could have regarding the organization of property). These are cases of what we have called internal impact. And it also implies studying the ways in which the reforms introduced in one particular section of the Constitution (say, in the rights section) have an impact on the other section (relative to the organization of power). These are cases of what we have called crossed impact. Our intuition is that many constitutional reforms are carried out, at present, as if the introduced changes did not have any significant impact on the internal structure of the Constitution. This explains why so many reforms have, for example, bolstered the participatory clauses of the Constitution and at the same time preserved a hierarchical organization of power (crossed impact). The above considerations force us to rethink the kind of reforms that we want to promote, not only from a concern about the formal consistency of the Constitution. We need to rethink the kind of reforms that we undertake, because we do not want to end up undermining the very legal changes we want to materialize: we do not want the “old structure” of the Constitution to block the introduction of new, fundamental reforms. This situation, however, seems to still be a distinctive feature of Latin America, where constitutions show crucial tensions, rather than mere continuities, between the section dedicated to rights and the section that organizes the distribution of powers. Throughout our study we have highlighted one particular problem that seems to characterize the new Latin American constitutionalism: this is the problem of expanding political rights or bolstering social rights while

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at the same time, keeping a centralized, top-down organization of power. We have approached this problem by referring to how the recent reforms kept the door of the “engine room” of the Constitution closed—a problem to which we shall return below.

Radical Reforms, Hyperrationality, and Limited Rationality Profound institutional reforms may require ambitious reforms but, not surprisingly, ambitious reforms may face serious difficulties. First of all, we may reasonably assume that different interest groups, given the amount of vested interests that may be affected, will resist a grand reform: a vast reform usually presents more points of resistance. Other related problems concern the human inability to foresee all the consequences (intended and unintended) that may be derived from a reform of vast dimensions. Jon Elster has made reference to these problems through the concept of hyperrationality, and he also referred to the human difficulties for developing over-ambitious experiments of social engineering (Elster 1989). The objections cited are undoubtedly worthy of consideration, although they also recognize several shortcomings. First, even though it is true that a reform that strikes too many issues at once creates more points of resistance, so is it true that many reforms tend to be frustrated, in practice, because of obstacles coming from the unreformed aspects of the Constitution. Second, reformers need to consider (what we named) the phenomenon of the “dormant clauses.” The idea is that certain clauses of the Constitution may remain inactive for a while, and then gradually gain life or “awaken” as a consequence of changes in the contextual conditions of the Constitution. Third, there is a lesson that we can derive from experiences like those of Bolivia, that is to say, cases that introduced enormously ambitious reforms. That case suggests that reformers may include many provisions that will be displaced or postponed for a while, without completely undermining the reformist project: a reform may have a profound social impact, even in spite of its incomplete application. Moreover, the “working” aspects of the reform may install (or not) the idea that the reform is serious and that additional changes are necessary. The reform may thus contribute to the endogenous formation of preferences conducive to social change. Conversely, one could argue, a minimal reform may generate the idea that the government is not willing to carry out profound changes, and thus discourage the people’s engagement with a process of social transformation.

Motives and Modalities of the Reforms and Their Outcomes Reformers could also take note of the way in which the different motives and modalities of the reform generated different results. First of all, many Latin American Constitutions emerged right after certain significant national “dramas” or “tragedies” and appeared in direct dialogue with those events.5 For example, both during the 1940s and the 1980s, the region produced Constitutions that were a direct reaction to a recent period of authoritarianism.6 Similarly, both after the 1930 world economic crisis and after the application of the programs of structural adjustment (during the 1980s), we find Constitutions that were particularly anxious to provide a “social” response to the recent crises. In sum, the region has a long history of Constitutions that, rather

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than appearing to be detached from reality, or based on abstract ideas, entered into direct dialogue with the immediate past. The content of these Constitutions seems to be directly linked to those initial, basic motivations. By contrast, other constitutions seem to be less related to the profound “dramas” of national history, and more connected, instead, with short-term ambitions—typically, presidential reelection— which has also affected the quality and transcendence of their content. The region’s constitutional discussions have also appeared in very different contexts. In situations of relative political stability and economic growth, such as the one that characterized the second half of the nineteenth century, there was very little constitutional production and discussion. By contrast, constitutional debates and reforms were more typical in contexts of crisis. When the social crisis was more extreme, for example, in contexts that included armed social conflicts, the initiatives for constitutional change were also more extreme (thus, for example, in Mexico 1911 or Mexico 1996). We also find initiatives for profound constitutional reform in the context of profound political crisis (México 1917, Colombia 1991). These differences suggest interesting correlations and pose interesting questions that should be the object of further research in the area. Another topic that deserves exploration relates the different modalities assumed by different constitutional assemblies. One first and obvious starting point could be the following: the most exclusive constitutional assemblies were, not surprisingly, the ones that originated the most exclusive constitutions (typically, those that were written during the first half of the nineteenth century). By contrast, those that were more inclusive were also those that generated the most inclusive Constitutions (typically, those that were written during the last decades of the twentieth century and beginning of the twenty-first century). These initial observations encourage us to think about an interesting correlation between certain “presences” at the Constitutional Assembly and the final constitutional outcomes. To put it differently, Latin America’s constitutional history suggests the existence of a strong correlation between the personal characteristics of the members of the convention and the convention’s particular results. For instance, assemblies that registered an important number of workers among their members have tended to be those that took the problems of labor more seriously; and similarly those that registered more presence of indigenous groups have tended to be more sensitive to the “indigenous question.” Of course, political theory has often reflected on the issue of presence, and what we are suggesting here is simply that the analysis of constitutional conventions may represent a particularly fruitful area for continuing and deepening those reflections.

Localized Reforms We have not only examined the alternative of broad and deep reforms but also explored the possibility of localized, well-directed reforms. Latin America offers many interesting examples of these narrow, seemingly superficial reforms that, ultimately, demonstrated their (limited but not insignificant) transformative capacities. For instance, we made reference to legal changes that came to expand the right to standing and facilitating access to justice. These reforms have been decisive in favoring the entrance of marginalized groups into the legal system. At the same time, these changes—which

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fostered the presence of numerous demands coming from disadvantaged groups— induced additional variations in judicial behavior. Facing numerous demands that they had barely faced before, judges began to adopt innovative, unprecedented decisions. Notably, these formal, procedural, somehow minimal reforms have been quite successful in the most diverse political situations (which normally included profound social inequalities), and the most varied contexts (Colombia or Costa Rica in Latin America, but also in South Africa, India, or Hungary). Even despite their limited nature, these kinds of reforms represent a good example of the way in which a society can get into the “engine room” of constitutionalism and thus operate the levers that organize and distribute political power. We could add something similar regarding other reforms, more directly related to the section of rights, and referred for instance to the recognition of indigenous rights. As we know, these reforms have in certain cases achieved an interesting impact in terms of the identity of groups traditionally disfavored by the law. These references to the virtues of certain “localized” constitutional changes should not be understood as a call for the adoption of minimalist reforms, per se. These are not the changes that an egalitarian movement of institutional change should prioritize. Localized reforms are consistent with refined and unambitious reforms, like in Costa Rica, and also with broad, ample reforms, like in Colombia. And their potency depends, in part, on the type and quality of the institutions that surround them. In the end, one could claim, these reforms face the serious risk of becoming suffocated by the surrounding structures or channeled into canals safely isolated from the rest of society.

Reforms in the “Engine Room” Our conditional defense of ample and profound reform should not be interpreted as a call to maximalism, as if maximalism were attractive per se. Against that view, we have here criticized a tendency that has become distinctive of Latin America concerning what we could call improperly broad reforms. More specifically, we have objected to reforms that were, in many cases, significant in their scope, but much less significant in their content. This was typically the case of reforms that kept the “engine room” of constitutionalism basically untouched. For instance, in our study, we have examined the following remarkable case: the two major social facts of the century, namely the incorporation of workers into politics and the outbreak of multicultural politics, exercised only a limited impact on constitutionalism. Their vibrant presence became reflected through changes in the organization of rights, but not through related changes in the organization of power. This text does not aim to make a defense of broad or maximalist reforms, per se, but rather supports reforms that were significant enough to reach the unreachable, namely, the control room of the Constitution. These (properly broad) constitutional reforms have not distinguished recent Latin American history. By their decision not to modify the engine room of the Constitution, recent reformers have ignored a good deal of accumulated institutional knowledge. First, they seemed to have forgotten what the leaders of the liberal-conservative compact taught us, namely that in order to achieve certain basic objectives in terms of constitutional

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rights (i.e., ensuring special protection to property rights), it was crucial to introduce fundamental changes related to the organization of power. In other words, Latin American “founding fathers” properly recognized the importance of crossed reforms: because they cared about rights, they proposed modifying the distribution of powers. At the same time, contemporary reformers have also not paid sufficient attention to what many radical reformers did in the nineteenth century. These radical leaders also realized that, in order to democratize politics, it was both necessary to change the distribution of resources in general and also to act upon the distribution of property, in particular. That is to say, the old radicals (like the old leaders of the liberal-conservative compact) properly recognized the importance of establishing links between the desired political reforms and the existing structure of property rights—a point we shall explore in the following section.

Material Basis and the “Fuel” of the Constitution In previous pages, we have also insisted on the importance of promoting reforms that took the material and motivational basis of constitutionalism seriously into account. The basic point is that it seems difficult to promote an egalitarian reform in an inegalitarian society, whose members lack the moral dispositions necessary for making the reform their own. Worse still, present constitutions do not challenge but rather accommodate their structure to those inequalities, at the same time that they presuppose the existence of self-interested individuals more than that; egoism seems to be the “fuel” of the Constitution. Undoubtedly, these issues confront us with serious questions about the preconditions of a successful reform: How do we promote egalitarian reforms when lacking basic material and personal resources? How do we obtain those reforms and, particularly, how do we make them stable, without those conditions? And also, these issues confront us, again, with the tension between modest and over-ambitious reforms. In other words: Is it reasonable for a constitutional reform to try to engage with so many difficult questions (both legal and nonlegal)? Should the reform try to reach beyond the text of the Constitution so as to affect its material conditions? The region offers some interesting (although also problematic) antecedents of reforms that attempted to extend their influence far beyond the text of the Constitution. We find interesting illustrations of these cases, for instance, in the constitutional debates that took place in Mexico during the nineteenth century (the debates around the 1857 Constitution); the twentieth century (including, e.g., the agreements of Ayala, promoted by Zapata); and also the twenty-first century (including the agreements of San Andrés, also promoted by the Zapatista movement in Mexico). In all these examples, legal reformers made serious—although invariably unsuccessful—attempts to provoke changes beyond the text of the Constitution. However, the region also offers other examples, such as the one of Bolivia, which suggests a somehow more promising venture. In effect, the 2009 constitutional reform in Bolivia is a good example of a constitutional change that attempted to promote ambitious economic reform, and which, for instance, called into question the institution of large states or latifundios. The reform was, in fact, over-ambitious, but should not be classified as an example of a failed enterprise. One partial conclusion, derived

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from these experiences, could be the following: rather than stating that we should go for over-ambitious reforms, we could say that we should distrust those reforms that include no serious reflection on the human and material conditions on which they are based. Those reforms, which seem to assume the autonomy and self-sufficiency of the law—reforms that do not question the conditions that are necessary for their success—should be defied and questioned.

The Long Road toward Egalitarianism The long march of American constitutionalism can be pictured as a process of slow evolution. This process has occasionally showed innovations of great interest, although it more commonly included rather improvised initiatives, too dependent on (not always interesting) translations of the foreign law.7 Latin American constitutionalism has added layer upon layer of legal sediment, without considering how much each layer worked against the others. For those who still favor its original, double commitment to collective selfgovernment and individual autonomy, contemporary Latin American constitutionalism looks doubly disappointing. On the one hand, Latin American constitutions maintain a concentrated organization of power, pay little attention to the deliberative bodies, and seem to still be too hostile to popular political participation. On the other hand, these Constitutions have extended their statements of rights, over the years, in an unprecedented way, although without providing those rights with a proper institutional support. Constitutions then look deficient not only in terms of self-government but also in terms of individual autonomy. Some groups remain—constitutionally speaking—among the marginalized of the marginalized (groups that were neither favored by the “social” nor by the “multicultural” turn of regional constitutionalism); and some others, like women, still have some of their most basic rights (i.e., reproductive rights) systematically violated (which makes us recall our previous discussions on the issue of “presence”). Moreover, the extensive bills of rights that distinguish many of the regional constitutions seem to derive from the reductionist idea according to which the battle for social justice has to be fought in the Bill of Rights section of the Constitution. Worse and more importantly, that generous list of rights finds one of its major enemies within the same Constitution—mainly, from a concentrated organization of power. Of course, an arbitrary power can do many things and even, eventually, promote the expansion of rights. However (and this is something that we tried to account for in the previous pages), history has given us repeated examples of the contrary situation. Powerful Executives tend to see the strengthening of civil society as a direct menace to their own power and consequently tend to work against the autonomy and empowerment of social movements. Historically, those concentrated powers have felt at home with groups claiming their adhesion to the president’s projects, in the same way they felt threatened every time that those groups showed signs of political independence. Their response has always been the same: they have tried to discipline rebellious groups mainly through money and coercion.

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The political problem in question is not simply limited to the existence of an uncontrolled national Executive. The whole representative system shows a preoccupying difficulty in meeting its most basic promises of inclusion and representation. The worst of it is that the system is not in a position to fulfill those promises, even by getting condoned for its worst sins. Given the above, the objectives of an egalitarian constitutionalism seem, at least in part, apparent. The great “constitutional drama”—the great challenge—facing the region is still the drama of inequality. And the present inequality seems to be well served by the lack of political and economic democratization. This is why an egalitarian project requires taking both political and economic democratization more seriously. An egalitarian project needs to begin by recognizing that political democracy is contradicted by the existing concentration of power, in the same way that economic democracy seems to be contradicted by a situation where a few decide in the name of all. Egalitarianism must recognize that each of these inequalities, moreover, reinforces the other. The lessons of history seem to be sufficient in this respect. Learning from the past, egalitarians should refuse to take inappropriate shortcuts, which have always put them on the wrong path. The path of political democracy, like the path of social justice, has one of its major landmarks—but clearly not its only one—in the Constitution. Egalitarian constitutionalism, therefore, should challenge, rather than further develop, the kind of (economic, social, political) injustices that helped to forge it. In order to reconnect the Constitution with equality, reformers should first enter the “engine room,” which for some reason they have not done yet. Egalitarians need to promote a structural change in the organization of the representative system, which presently seems well prepared to separate, rather than connect, the people from their representatives, favoring the independence and autonomy of the latter. In response, they should promote a different institutional model, designed to link citizens with their representatives and allow a better and more fluid communication between them. Moreover, egalitarianism requires recovering the “social question,” relegated today, warning that such concern is not satisfied from the mere translation of social demands in the language of rights. The drama of social inequality does not deserve to have lawyers and judges as main actors and key players.8 By approaching the “social question” in that way, the critics of the institutional system seemed to put aside their traditional quest for the radicalization and politicization of society, which they had always considered essential to their project. Those radical critics—we should recall—not only used to speak a different language (the language of politics) but also resisted using the most vulgar version of the language of rights.9 In the same way that critics of the system should not abandon their concern for the “social question,” nor should they set aside their old battle for the democratization of power, their anti-presidentialism, or their Rousseauistic critique of the representative system. Even less should they do so simply to embrace positions favorable to the concentration of authority. Unfortunately, however, in recent decades it has become all too common for radical groups to begin to support the creation of powerful presidencies, as if that object could properly serve, rather than undermine, their main political goals. Their old political project, which required the atomization or pulverization of power, became thus diluted—radicals began to consider it impossible, utopian, or simply wrong.10

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The kind of institutional justice that is advocated here surely requires an open and persistent collective dialogue that includes dialogue between authorities, but extends far beyond it. This public dialogue needs to reserve a central, rather than marginal, role for the citizenry, and be encouraged and supported, rather than undermined, by the Constitution. Collective public debate, we assume, is essential to properly address and solve public problems that affect diverse and numerous groups.11 Today, however, collective dialogue is constitutionally relegated or hindered, colonized by money (which is unequally distributed), and largely emptied of content, given the social marginalization of disadvantaged groups. The few interesting initiatives for public dialogue that we do find (i.e., institutional dialogue between judges and politicians) do not arise because of but despite the existing constitutional framework (Gargarella 2011b). In any case, this socially inclusive and deliberative process drives us back to a different way of thinking about democracy. Contrary to what Alberdi once suggested, the approach that is defended here does not see democracy as based on the non-deliberate endorsement of the community, but rather as the result of a long, ongoing, and unsettled collective conversation.

NOTES

Preface 1. We shall understand the term constitutionalism in a narrow sense, as basically referring to the rules that organize powers (typically, the Executive, Legislative, and Judicial branches); and that also put limits upon it, mainly through a list of rights.

Chapter 1 1. Although in what follows I will be mainly thinking about Constitutions (and, particularly, about written Constitutions), the fact is that that approach will also reach projects aimed at reforming the Constitution, were they successful or not and, more ambitiously, comprehensive programs directed at organizing or reorganizing (what John Rawls has named) the “basic structure” of society, this is to say a concept that includes but also clearly goes beyond the idea of a written Constitution (Rawls 1971). 2. Similarly, for Cass Sunstein, Constitutions should be understood as precommitment strategies, used to “protect [society] against the most common problems in their usual political processes. Constitutions should therefore work against a nation’s most threatening tendencies” (Sunstein 1993, 36). 3. The behavior of factions represented, at that time, a decisive and threatening novelty, which affected the political life of numerous states (including, remarkably, the cases of Rhode Island, Vermont, and Pennsylvania), where, according to the description of the “federalist” leaders, numerous groups of “debtors” achieved positions of power, from where they tended to put in crisis the property rights of their opponents (Brown 1955; Schuckers 1978; Wood 1969, 1992). Madison, among many others, considered that the so-called “paper money crisis,” which at that time appeared, had become even more threatening and dangerous as a consequence of its legal manifestations, than as a result of the armed confrontations that it generated. In the end, these armed confrontations (symbolized by the famous “Shays’ Rebellion”) were generally perceived as illegal actions and consequently repressed by the troops of the Confederation (Brown 1970, 1983; Feer 1988; Szatmary 1987; Wood 1966). The real problem, then, was another, and it emerged when the same demands that a few advanced through the use of armed violence (and that were then combated, as illegal actions), began to gain terrain through the use of the law. 4. Of course, society may end up identifying a problem that is not really significant or not the most important one; or then suggest solving the problem through constitutional remedies that were inappropriate. However, these errors would not deny the importance of the task at place. 5. Haitian peasants would say, during those years, that—“Constitution sé papié, bayonet sé fer,” namely the “Constitution is of paper, bayonets are of steel” (Sheller 2000, 69). 6. In particular, see art. 3 of the 1801 Constitution; arts. 2 and 3 of the 1805 Constitution; art. 1 of the 1806 Constitution; arts. 1 and 2 of the 1807 Constitution; art. 1 of the 1816 Constitution. 209

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7. See Bolívar (1950, 1:22). He also stated that the “most grievous error committed by Venezuela in making her start on the political stage was, as none can deny, her fatal adoption of the system of tolerance, a system long condemned as weak and inadequate by every man of common sense, yet tenaciously maintained with an unparalleled blindness to the very end” (1:18). A few years later, in a speech he delivered at the inauguration of the second national Congress of Venezuela, in Angostura, he also stated that “no matter how tempting this magnificent federative system might have appeared, and regardless of its possible effect, the Venezuelans were not prepared to enjoy it immediately upon casting off their chains. We were not prepared for such good, for good, like evil, results in death when it is sudden and excessive. Our moral fiber did not then possess the stability necessary to derive benefits from a wholly representative power; a power so sublime, in fact, that it might more nearly befit a republic of saints” (1:181). 8. In his work Estado social del hombre: Principios filosóficos de la legislación, Egaña stated: “Religion is not only the axis . . . of the people’s morality, but also the axis of the national character, its habits, the respect for civil institutions. . . . In every public act, even the smallest act, religious manners, aimed at recalling the presence of God, should be included” (Silva Castro 1969, 81). 9. Quoted in Collier (1967, 270). See also Donoso (1967, 136–37). 10. Alberdi recognized that those early responses properly addressed another crucial question, namely, “a Constitution against what”? Those Constitutions, he claimed, assumed that “the evils suffered by America derived from their political dependency . . . and this is why they found the remedy to that evil in the separation from Europe’s influence” (Alberdi 1981, 23). 11. One first and relevant historical support to this initial schema comes from the two most crucial events in the history of modern constitutionalism, namely the French and American Revolutions, and their respective Constitutions (Elster 1993). Both revolutions exercised an enormous influence in the entire world, and the two Constitutions marked the development of constitutionalism in the region. The first revolutionary constitutionalism originated in France, came to represent radical, anticonservative constitutionalism, which also found a clear continuity in the writings of radical Anglo-Saxon authors such as Thomas Paine. At the same time, the US Constitution came to symbolize a different, alternative model, which was mainly concerned with the establishment of limits, controls to power, the separation between Church and the State, this is to say what we normally call liberalism. Together with these two approaches, Latin American constitutionalism was greatly influenced by the Spanish legal tradition. Four hundred years of colonization, enforced through force, represented a fundamental basis for the development of this conservative type of constitutionalism. This approach vindicated existing traditions, the enforcement of morals, and an unequal political order. In sum, these three approaches provide us with an important historical basis to defend our tripartite division. 12. See, for example, the way in which these ideas of conservatism, majoritarianism, and liberalism are defined by the International Encyclopedia of Social Sciences (Sills 1968). Conservatism “celebrate[s] inherited patterns of morality and tested institutions, that are skeptical about the efficacy of popular government, that can be counted upon to oppose both the reforming plans of the moderate Left and the deranging schemes of the extreme Left, and that draw their heaviest support from men who have a substantial material and psychological stake in the established order” (3:291); majoritarianism says that “not only may a minority never override a majority but also it can never check a majority: a majority vote is conclusive for the whole group” (9:536); and liberalism maintains different points: One is the dislike for arbitrary authority, complemented by the aim of replacing that authority by other forms of social practice. A second theme is the free expression of individual personality” (9:276). 13. In what follows, we will use, indistinctly, the categories of “republican” and “radical.” 14. In Chile, we find a Radical Party, which was created quite early after the independence revolution; in Colombia, we find common references to the “radicals of the 19th Century” (i.e., Mejía Arango 2007) or even to the “socialist mirage in New Granada” (Gilmore 1956); in Peru, the historian David Sobrevilla maintained that radicalism was the third of the main

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17.

18.

19. 20.

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political options developed in Peru, after the national independence—the first being conservatism; the second, liberalism; and the third, radicalism (Sobrevilla 2009, 21–22); in Mexico it is also common to refer to the “radicals” or “pure liberals” and their participation in the 1857 Constitutional Convention, etc. See, for example, Thomson (2002), and particularly Sobrevilla (2002). I examine the point with more detail in Gargarella (2010). In the following chapters, we shall also examine the evolution of the radical constitutional model since the end of the nineteenth century. This definition is, for example, very similar to the one that is offered by the Peruvian historian David Sobrevilla, when he contrasts radicalism with liberalism and conservatism. For him, “radicalism is the third most important political conception of the time (there are other, less important views), which were developed after the national independence. The first one was conservatism, the second was liberalism, and the third one radicalism. The precursor of radicalism in Peru was Francisco de Paula González Vigil (1792‒1875), and then radicalism arrived to our country in the way developed by the Chilean hero Francisco Bilbao (1823‒1865), who lived exiled in Lima from 1851 to 1856, and an intermediate stay in Guayaquil in 1852 and 1853; then it was assumed by Enrique Alvarado (1835 or 1837 and 1856) and cultivated by Mariano Amézaga (1834‒1883). The peak of radicalism in Peru appeared with Manuel González Prada. Radicalism could be characterized negatively for its anticlericalism, anti-Hispanism, and denunciation of the economic and moral problems confronted by Peru; and positively as an option in the extreme left that was against the bourgeoisie, against capitalism and the nascent imperialism, and in favor of an ample egalitarianism” (Sobrevilla 2009, 21–22). According to the author Carlos Rama, Flora Tristán “was friends with Charles Fourier and . . . Robert Owen”; was defended by the same Karl Marx in The Holy Family against Edgard Bauer’s attacks; and was also a source of inspiration to Friedrich Engels, for his book on the situation of the working class in England (Rama 1977, xxi). Thus, in the words of Juan Montalvo (1984, 28). The same criticisms could be extended to the radical tradition, in general, and in spite of exceptions such as the one of Artigas. Even in an extreme case, like that of the Mexican independence revolution, led by the revolutionary priests Hidalgo and Morelos, and promoted by numerous indigenous people, the results were, in this particular respect, quite frustrating. The advanced, republican, Rousseauistic Apatzingán Constitution of 1814 (one of the most interesting constitutional products of early Latin American radicalism) reserved basically no room to the rights and interests of indigenous groups, in spite of the crucial role played by the latter. Probably few public figures expressed so clearly the constitutional implications of conservatism as the president of Ecuador, Gabriel García Moreno, during the inauguration of Ecuador’s Constitutional Convention. In effect, in his inaugural speech he explicitly admitted that his power would be directed to defend the Catholic creed, and that he would combat all those who wanted to put limits on his “mission.” All his political opponents were thus suddenly transformed into enemies of the nation. As he put it: “the first [goal of my power] will be that of harmonizing our political institutions with our religious beliefs; and the second will be that of investing our public authorities with the forces required to resist the assaults of anarchy” (quoted in Romero 1978, 115). And also: “I belong to the party of the Catholics, this is to say, to the party of Jesus Christ; I am in favor of extraordinary faculties” (see his “Vagancia,” for example, included in “La Religión,” Buenos Aires, 8 de agosto de 1857, and reproduced in Halperín Donghi (1980, 42–43). In a short and revealing paragraph on the topic, he wrote, “In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasoning must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice.” See an analysis of the topic in White (1987).

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24. It is also interesting to study the polemic between Herrera and the brothers José and Pedro Gálvez (see, in particular, the debate between Herrera, as the rector of the ultra-conservative College of San Carlos and Pedro Gálvez, director of the liberal College Nuestra Señora de Guadalupe). See, for example, Leguía (1927 and 1939). 25. Although the conservative model was the most successful of all, in terms of the stability achieved by its Constitutions, this was not precisely the case of the Constitutions most closely inspired by the Napoleonic model, like the ones advanced by Bolívar in Bolivia, Colombia, and Peru, which appeared to be so extreme, particularly with regard to the powers it attributed to the Executive (i.e., appointment for life). 26. Marx´s extremely harsh criticisms against Bolívar appeared in one of the very few pieces that he wrote making reference to Latin America (he also wrote a few lines about the US invasion of Mexico). The critique, which was published in the New York Daily Tribune, was so extreme that he had to clarify the scope of his criticisms in a letter that he wrote to Engels shortly after the publication of his piece on Bolívar. Notably, the article triggered an important polemic in Latin America, among leftist authors and groups, regarding both the accuracy of Marx’s historical analysis and also (and more significantly) the strategy of concentrating powers in order to promote social changes. See, for example, Marx (1958) and Aricó (2010). 27. Notably, some of these proposals were even promoted by liberals, who at one point came to believe that this was the only way out of the profound institutional crisis that followed the independence. These monarchical initiatives appeared briefly in Argentina (1814‒1818); Chile (1818); and with more strength in Mexico, where a European prince was the designed emperor of Mexico between 1864 and 1867 (this modality was also explored in other Latin American countries, without success). In Argentina, Manuel Belgrano, had attempted a different, curious alternative, which consisted of enthroning an Incan descendant. Meanwhile, in Mexico 1812, General Iturbide had proposed the option of a creole monarch, also without success. 28. Many Latin Americans saw religion as an essential component of public life, given its character as the only “moral tie” that kept society together—as defined by the Mexican monarchist José María Gutiérrez Estrada (Fowler 1966, 70). Similarly, the Peruvian priest Bartolomé Herrera stated, “A Nation so scarce in social ties” could not be indifferent regarding the “conservation or destruction of religion” as the moral cement of society (Paz Soldán 1973, 106). 29. It would be composed of two Chambers: the first one would be in charge of publishing statistics that included a list of virtues and vices; and also comparative lists with the names of the more virtuous and distinguished people; while the second Chamber, of Education, would be in charge of the moral and physical education of children until the age of twelve. 30. See, for example, in http://www.analitica.com/bitblio/bolivar/angostura.asp. 31. Moreover, many of them subscribed an organicist and anti-individualist view of society, which contradicted the idea of unconditional individual rights proposed by liberalism. As the conservative Colombian thinker stated, “Society is a moral entity, with its rights and duties, and it is not enough that individuals fulfilled their particular duties . . . because society goes beyond individuals” (Valencia Villa 1992, 235). 32. We find a similar reasoning with Bolívar, in his reaction against what he called the “exaggerated maxims of the rights of men.” In his opinion, it was senseless to think about the rights of men as French people did, this is to say, as intangible and unconditional rights: nothing was more important than the preservation of the social order. 33. This is similar to what Judith Shklar defined as “liberalism of fear” (Shklar 1989, 27–28; Williams 2008, ch. 5). 34. However, and as Gordon Wood maintained, the laws aimed at the confiscation of property, and the tender-laws as well, were not the mere product of the unchecked passions of a few, or the result of an irresponsible and tyrannical magistracy, but rather the expression of perfectly representative legislatures. In his words, “the people’s will, as expressed in their representative legislatures and so much trusted throughout the colonial period, suddenly seemed capricious and arbitrary” as if they acted “under the bias of anger, malice or a thirst

Notes

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36.

37.

38.

39.

40.

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for revenge.” However, “paradoxically as it seemed, it was the very force of the laws of the states, not anarchy or the absence of law, that was vitiating the new republics” (Wood 1969, 405–6). According to Frank Safford, the Constitution of Cadiz would allow Latin Americans to do “essentially the same thing that they were trying to do: to introduce Anglo-French liberal constitutional ideals into a Spanish political structure” (Safford 1985, 362). In his opinion, the Cadiz Constitution also served to strengthen (rather than debilitate) a structure of power that the very first Constitutions of the region (more clearly inspired by radicals ideals) had substantively weaken (ibid.). It is interesting to note how Juan Egaña defended, for the Chilean 1823 Constitution, the institution of the “conservative senate.” For him, it was clear that “there will never be a stable and self-sustaining government if the Republic is left to a popular administration without a permanent and conservative body of notables dedicated to the protection of the Constitution, and to the control of the errors and abuses of a vicious democracy” (quoted in Jaksic and Leiras 1998, 14–15). Bolívar presented his strongest version of presidentialism in 1826, at the Bolivian Constitutional Convention, and he was then clearly inspired by Napoleonic constitutionalism. He then proposed a life-term, non-accountable president. He argued for this idea by stating: “The president of the Republic, in our Constitution, becomes the sun which, fixed in its orbit, imparts life to the universe. This supreme authority must be perpetual, for in non-hierarchical systems, more than in others, a fixed point is needed about which leaders and citizens, men and affairs can revolve. ‘Give me a point where I may stand’, said an ancient sage, ‘and I will move the earth’. For Bolivia this point is the life-term president.” (Bolívar 1951, 598). Those references, in addition, were accompanied by laudatory words toward the new political situation in Haiti. That country had recently appointed (his friend) Alexander Petión as life-term president. For Bolívar, this appointment (which seemingly had been functional to ending a grave period of social tensions) represented a clear demonstration of the worth and importance of a system of concentrated authority at a difficult political time. For Bolívar, the faculties that had to be transferred to the president included those needed to set the Constitution in motion; the capacity to remove the vice president and the ministers at will; the power to command and mobilize the Army; the power to appoint all military officers; the power to concede pensions; the power to suspend public officers at will; and so on. In addition, the president was supposed to receive from Congress all those powers necessary to “the State salvation” in times of extraordinary danger or war. Moreover, the Bolivian Constitution allowed the president to designate his vice president and his successor as well; the President was also authorized to convoke legislative powers when he considered it necessary; and it also declared the President non-responsible for his acts: only his ministers and his vice presidents could be judged, as a consequence of their public actions. Congress, in addition, appeared divided into three, rather than four Chambers, as in the Napoleonic Constitutions: the Chamber of Tribunes, the Senate, and the Chamber of Censors. Another remarkable feature of the Constitution was the incorporation of a fourth branch of power or Electoral Power, which was in part taken from the Napoleonic Constitutions of the year VIII and X; the Constitution of Cadiz and the 1823 Peruvian Constitution. Constant was in effect very critical of many of Bolívar’s proposals. For him, there existed no reason to think that America would fall into a severe crisis if the Executive did not receive unlimited powers. In letters to Bolívar he suggested that dictatorship or despotism were not appropriate solutions if the objective was the promotion of general happiness and liberty. See Aguilar Rivera (2000, 193). According to Negretto, there were numerous Latin American thinkers that, inspired by the work of Constant, tried to create a “neutral power” that was able to keep the other powers within their respective competencies. He mentions, in this respect, the examples of the Chilean Constitution of 1823; the Chamber of Censor created by Bolívar for Bolivia in 1826; and the Supreme Conservative Power that was proposed by Sánchez de Tagle for the 1836 Mexican Constitution. Alberdi, he adds, shared with these thinkers the idea that it was nec-

214

41.

42.

43.

44.

Notes essary to find a “guardian” for the Constitution, given the impossibility of creating a proper system of equilibrium of powers. The Executive power would have occupied, in his view, the role of the neutral power (Negretto 2001, 14). It is interesting, in this respect, to mention the case of Peru, and some of the initiatives promoted by Manuel Vidaurre, in favor of a “Conservative Power” (Vidaurre 1825, 1827, 1833). Vidaurre suggested, for example, creating “a power capable of subjecting power.” For him, however, it was “evident” that such a power could reside “neither in the other powers, nor in the people in mass” (Vidaurre 1833, 28). However, changes in the Brazilian system would only come sixty years later, when (in 1889), the opposition forces finally obtained a triumph and proclaimed the victory of the Federative Republic (Da Silva 2010, 76–77). Among other measures, Santa Anna promoted a significant constitutional reform to change the 1824 document. The idea was to introduce a new legal order, clearly centralist and favorable to the interests of the Church. What followed then was, first, a group of laws known as the “Seven Laws” of 1836. These laws worked against the express words of the 1824 Constitution (art. 171) and declared that articles referring to the country’s independence, the Catholic religion as the official religion, the freedom of the press, the form of government, and the division of power were non-susceptible of changes. However, under Santa Anna’s pressures, and the influence of the conservative jurist Lucas Alamán, Congress declared itself transformed into a Constitutional Convention and enacted different reformist laws. First, it established the Bases para la nueva Constitución, and sometime later it published the Siete leyes directed at the constitutional reorganization of the country. Through the Bases, Congress created different territorial “departments” that would be under the commands of governors appointed by the Executive. The Bases also recognized the Catholic religion as the only official religion, without tolerance to alternative ones. The Siete Leyes completed this reform program and established the following changes, among others: (a) a novel declaration of rights; (b) a “Supreme Conservative Power” with ample powers; (c) a bicameral Legislative Power; (d) a unipersonal Executive power, indirectly elected for a period of eight years and with the right to be reelected; (e) a new Judicial power; (f) directives for the functioning of this new Judiciary; (g) rules regarding constitutional change. In regard to the organization of rights, the reforms that were then introduced were also significant. On the one hand, the Leyes included a declaration of rights, which was a novelty in Mexico, at the time. On the other hand, the enjoyment of those rights was made dependent on the fulfillment of certain basic duties, which included, among others, the practice of the Catholic religion, the payment of taxes, and the assistance to national authorities. In addition, it must be added that the new laws were particularly restrictive in what regards the conditions for becoming a citizen. Concerning the organization of power, the most important novelty that was then introduced was the already mentioned “Supreme Conservative Power.” In addition, the laws created a Council of Government, which was composed of by members of the clergy, the Army and the most advantaged social sectors. The Council was an advisory body, which worked for the Executive branch. In fact, the other fundamental impulse in defense of a powerful president, during Mexico’s early history, came from Lucas Alamán. Alamán was the great conservative jurist who worked for centralization and the strengthening of the capacities of the Executive. In order to justify his proposals in this respect, Alamán made frequent references to the situations of “anarchy” that characterized the political life of his country. In his opinion, the president used to remain “impotent” in those circumstances, as a consequence of his lack of political instruments with which to respond to the crisis (Alamán 2008, 211). In his writings, Alamán compared the Mexican institutional structure with foreign law—the United States, Cadiz, and France, in particular. It was clear, for him, that the Mexican institutional structure was, in comparative terms, extremely fragile, and that the president—in contrast with what happened in more “advance” countries—lacked appropriate institutional tools for reacting in situations of extreme danger. In Alamán´s words, the Mexican president “accumulates weakness over weakness” and was “infinitely weaker” than the US president. Moreover, Alamán added that the Mexican Executive had all the weaknesses that were typical of elected governments, plus

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all the restrictions that were created for example in Cadiz, after the fear of the King (206–7). The consequence of all those limitations was that the government remained “Unable to [repress] the evil people, [protect] the good and pacific ones, [ensure] order, [consolidate] military discipline, and guarantee to the nation the benefits of living in a society” (ibid.). He then regretted the modifications introduced in France, directed at “authorizing the government [to act] through a terrible military law,” which could be employed when exceptional circumstances required so (ibid.). He asked for the Mexican president the “energy and strength” that he lacked. More specifically, he demanded the provision of special powers to be used “in the not so infrequent cases of public turmoil.” In that way, he concluded, “revolutions would cease to be so frequent and dangerous”: it would then exist “a strong and armed hand with sufficient powers to repress” that turmoil (208). According to some contemporary legal scholars, the extraordinary faculties proposed by Alamán were appropriate, in a context that was characterized by (i) an imperfect separation of powers (given “the disproportionate power of the legislatures” (Aguilar Rivera 2008, 25); (ii) the correlative “structural weakness of the Executive”; (iii) the “remarkable . . . vacuum” that characterized the “liberal constitutional theory” of the time; (iv) the absence of “ample emergency powers,” which instead had been frequently recognized by “republican constitutional theory,” from Roman Antiquity (for instance, through the institution of “dictatorship”) and then in the city-states of Renaissance period, and beyond, at least until “Montesquieu discredited those faculties, by attributing to them the responsibility for the fall of the Roman Republic” (29–31; see also Negretto and Aguilar Rivera 2000). The case is interesting and important, although the arguments of the case remain extremely weak. On the one hand, the reasoning begins with dubious empirical premises (about the strength and weakness of the Mexican institutional system), which seem only directed to support predefined answers (“the disproportionate power of the legislatures”; “the structural weakness of the Executive”). On the other hand, the argument is based on polemic and implausible normative claims, which are not discussed at all (for instance, why would it be obvious that a situation of “anarchy,” if it ever existed, would require a “strong hand” as a remedy? The answer, of course, cannot be that a strong hand is necessary because in the Classic Antiquity some republicans resorted to it).

Chapter 2 1. See also Pérez Guilhou (1997). 2. Radicals, as we know, favored a closer relationship between the representatives and the people; and they also wanted a more active participation of the latter in politics, things that conservatives disfavored. However, under particular circumstances, conservatives came in support of the radicals’ seemingly extreme demands. In order to explain this strange result, we should recall that, at that time, secret suffrage was not the rule; landowners exercised enormous influence upon (their) workers; political information circulated under restricted conditions; social inequality was rampant; the (conservative) Church occupied a central political role in society; and so on. Under those conditions, direct appeals to the people did not necessarily appear as extreme or too radical initiatives. By contrast, suffrage could in that context appear as an interesting means for providing authority to conservative policies that, most of all, lacked political legitimacy. This is what liberals like Bartolomé Mitre objected to. For him, it was clear that “the conservative party has indeed been a powerful ally of [the radical party], and more than once, influential and sensitive men called the barbarians to the cities, and handed political power to them, in exchange of guarantees for their wealth and life, which they then lost” (Halperín Donghi 1980, 184). 3. This is what he manifested in his letter to Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, from January 1, 1802, http://www.usconstitution.net/jeffwall.html. 4. Later in this book, we shall explore other more contemporary examples of this peculiar alliance, including the case of governments such as the one of Getulio Vargas, in Brazil, an interesting twentieth-century example of conservative authoritarianism, justified through rhetoric of “antiliberalism” and substantive democracy (dos Santos 2007).

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5. In Chile, this alliance between radicals and liberals would be repeated, later on, in the face of the so-called “liberal-conservative fusion,” during President Errázuriz’s government, facilitated by friendship that united the president of the country and the radical leader Manuel Antonio Matta. 6. In that pamphlet, Rojas was actually defending an armed insurgency against Bolívar, which had taken place on September 25, 1828. 7. Together with Rojas, we should mention Florentino González, another noted and extreme liberal, who was also described as an activist who defended the assasination of the main political leader of the country (Molina 1987, 97). We could also quote similar diatribes from González Vigil, who argued in powerful ways against the extraordinary powers given to Bolívar (which provoked numerous conflicts first with the Peruvian Church, and then with political authorities). González Vigil became famous as a result of this phrase “I must accuse, I accuse,” which he pronounced in a Parliamentary speech, against the growing authoritarianism of President Gamarra (see, e.g., Cuesta Alonso 2008, 33; Paz Soldán 1973). 8. Peru’s 1823 Constitution was decisively hostile to the Executive power. According to Paz Soldán, all the president’s attributions remained “limited.” The president had neither legislative initiatives nor the capacity to convoke Congress in special occasions. His ministers had to ratify “all commands originated in their respective departments.” In addition, and contrary to the US Constitution, which was its inspiring model, the Peruvian delegates “attempted to limit the authority of Government, weaken the Executive and restrict his powers” while, at the same time, they “strengthened and exaggerated the powers and attributions of Congress” (Paz Soldán 1973, 51). 9. Echeverría (1915, 185). 10. Echeverría assumed that sovereignty was the “greatest and most solemn act of reason of a free people.” Therefore, all those who were unable “to discern between what is right and what is wrong” had to be prevented from taking part in the elections. The “ignorant people,” he believed, had no opinion of their own and were ready to compromise the liberties of the country or accept the suggestions of ill-intentioned people (ibid., 185–86). 11. Those who advanced a more skeptical view in relation to mass intervention in politics made use of a diversity of arguments, which their rivals denied and challenged. There were those who simply took as a starting point an elitist political view, which more or less explicitly denied the basic equal moral dignity of the people. There were also those who—without denying that basic equality—stressed the practical difficulties of debating in numerous assemblies and the consequent need of controlling or limiting massive popular participation. 12. It is not obvious that they maintained that view just because it was the commonsense view, at their time. In this respect we may recall, for example, the speeches of the liberal-radical Ignacio Ramírez, in Mexico 1857, through which he made clear that even at that time the liberal-conservative view was not taken as given (Ramírez objected to the Mexican Constitution because of its lacks of references to the rights of the “children, the orphans,” or the rights of women. He also praised those “old codes” that had learned to protect “women, children, ancient people, all the feeble and poor” (Sayeg Helú 1972, 92). 13. We find a significant antecedent of this view in the US constitutional debates, and particularly in the work of one of its main intellectual leaders, namely James Madison. During the Founding Period, Madison conceived of the Constitution as a fundamental guarantee against the irrational impulses of factions, usually directed against the property rights of the “minority.” In the Federalist No. 10, Madison gave a precise definition of what he understood by the idea of factions. For him, in principle, both majority and minority groups could act as factions. However, in the same paper, and after providing his definition of factions, Madison clarified that the only factions that threatened the constitutional order were majority factions. This was so because “the republican principle” was enough for preventing the danger of a minority faction trying to impose its “sinister” legislative plans. This is why the Constitution amounted, in the end, to a document aimed at preventing the risk of majority factions. 14. As the historian Frank Safford explained, the liberal-conservative elite linked what had happened in Europe, after the emergence of democratic political radicalism, with the

Notes

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16.

17.

18.

19.

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authoritarian and plebiscitarian regime of Juan Manuel de Rosas, which they defeated in the battle of Caseros. The rejection of Rosism was thus transformed into a rejection of the democratic movement. In Safford’s view, the elite strongly rejected Rosas’s regime and were suspicious of the popularity it gained among the lower classes. This explains why the young intellectuals of the River Plate developed a strongly negative view of the democratic revolution that took place in the second half of the nineteenth century. This also explains why Domingo Faustino Sarmiento and Juan Bautista Alberdi, exiled in Chile during the 1840s, maintained that popular sovereignty, in the hands of the ignorant masses, unavoidably ended in a dictatorship (Safford 1985). The convergence between liberals and conservatives that took place in Latin America finds clear parallelisms with what had occurred, some decades before, during the Founding Period, in the United States. In the United States, in effect, the Independence Revolution was followed by a period of democratic enthusiasm that was initially expressed in what was then called a period of “radical constitutionalism” (Wood 1969). Following this democratic movement, some states passed Constitutions that bolstered the place of Congress and promoted a “strict separation” of powers (Vile 1967), in order to favor an institutional regime capable of best expressing the “will of the people.” Madison denounced this model of constitutionalism in his work Vices of the Political System because he considered that it could only produce numerous, changing and unjust laws. The Federal Constitution, in the end, could be seen as a reaction against that period of radical constitutionalism and its institutional legacy. In effect, the new type of Constitution that emerged after the Federal Convention stressed the importance of “internal controls” and a system of “checks and balance,” which challenged the model of the “strict separation” of powers. Liberal and conservative politicians and activists, such as James Madison, Alexander Hamilton, James Wilson, or Governor Morris, worked together in this new Constitution, which tried to put an end to the previous epoch of radicalization. The 1860 Peruvian Constitution could also be characterized as a fusion Constitution. This Constitution, which would remain in force until 1920, came to “moderate” some of the more liberal features of the previous, liberal 1856 document. With this document, the country returned to the traditional bicameral system. Its advocates claimed that the previous organization was “exotic, anomalous, unparalleled and without antecedents in other countries.” The 1860 Peruvian Constitution created a weak Congress, with only biannual sessions. In order to justify this change, the Peruvian delegates alleged—as Madison had done in his work Vices of the Legislative System—that the main problems of Peru’s public life derived from the existence of too many laws (Paz Soldán 1973, 108). In addition, the Constitution suppressed the departmentalization of the country and reestablished the death penalty. More strongly still, the new Constitution eliminated universal suffrage. Repeating the usual arguments on the subject, the delegates maintained that the country was still not well prepared for affording universal political rights, and that the exercise of the right to vote required a high level of culture among voters (111). Suffrage was, since then, regulated by law, a fact that actually allowed the reestablishment of indirect suffrage. The new Colombian 1886 Constitution came to put an end to a long history of liberal and radical-liberal constitutionalism, which was characterized by its hyper-federalist impulses and which lasted more than thirty years. The small Commission of jurists, in charge of drafting of the new Constitution, included the conservative leader Miguel Caro, and the liberal publicist José María Samper, who at the time advocated for a Constitution that combined “conservative and liberal principles in an equitable manner” (Valencia Villa 1992, 101). In any case, the final product of the constituent process was a quite conservative Constitution. In this way, liberals and conservatives were establishing the basis of a peculiar institutional system that, later on, Carlos Nino would characterize as hyper-presidentialist systems (Nino 1997). The conservative Colombian Constitution of 1886 was the most conservative of them all, but it also shared many features in common with the other examples, including a strong

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20.

21. 22. 23.

24.

25.

26. 27. 28.

29.

30.

Notes presidentialist system, a slow openness to religious tolerance, a difficult relationship with federalism (which went from resistance to gradual opening to it), and the absence of any manifest commitment to social rights or political participation. Among the immediate political antecedents, we find the San Nicolas Agreement, which was signed by all the different provinces in Santa Fe, after Rosas’s defeat. At that point, the porteño elite showed its opposition to the Agreement’s main features, which they considered would force Buenos Aires to lose some of the privileges it had enjoyed for decades. For example, representatives of Buenos Aires’ interests did not want to open the city’s rivers to free navigation or share the national rents that they used to spend by themselves. Also, these representatives did not want to hand exceptional powers to General Justo José de Urquiza, the main military leader of the time. As a consequence of these disagreements, the local “Liberal Party” was created in 1852; and shortly after, a rebellion provoked the fall of Buenos Aires’ Governor, Vicente López y Planes, and the rejection of the San Nicolas Agreement by Buenos Aires. In addition, and as a result of all these conflicts, Buenos Aires decided not to send representatives to the Constitutional Convention that was then called. See, for example, Rock (1985, ch. 4). Quoted in Romero (1969, 139). See also Sánchez Viamonte (1957). Romero (1969, 152). Alberdi distributed the first copies of his book “Bases,” which was clearly the Constitution’s main inspiration, in 1852. He sent copies of it to General Urquiza and also to other noted intellectuals of his time, including Bartolomé Mitre, Félix Frías and Santiago Arcos. Urquiza praised the book, claiming that “it could not have been written and published in a better opportunity.” At the same time, however, other works (also related to constitutional matters) were published, including “Argirópolis,” by Domingo F. Sarmiento; “Profesión de fe,” by Bartolomé Mitre; “Cuestiones Argentinas,” by Mariano Fragueiro; and “El problema constitucional,” by Juan Llerena. See, in this respect, Mayer (1973, 531–34); and also Pelliza (1897). Within the Constitutional Convention, many representatives advocated Alberdi’s view. Among them, there were Martín Zapata, Juan Francisco Seguí, Juan Del Campillo, and Alberdi’s friends Gutiérrez and Salustiano Zavalía. The discussion between the two groups continued on numerous other opportunities. For example, they differed regarding article 19 and the issue of privacy (Sampay 1973a); article 32, which specified that the president of the country had to be Catholic; or the obligation to “convert” indigenous groups to Catholicism. Halperín distinguished Alberdi’s political views from those of Louis Napoleon, in which he seemed to have found inspiration, and Domingo Sarmiento, one of his most remarkable political rivals. In his opinion, “Alberdi would remain deaf to the ‘social’ issues that would always be present in Louis Napoleon. . . . For the latter, the benefits generated by a growing economy not only compensated the existing limitations on political liberties but also moderated the social tensions that had become manifest in 1848” (Halperín Donghi 1980, xxxi). Positivists in Brazil worked for the realization of the ideals of “order and progress” that are still written in the Brazilian flag. Owners of coffee plantations tended to replace slaves by European immigrants and locally unemployed people. According to some, it represented “the text of the US Constitution, together with some dispositions coming from the Argentinian and Swiss Constitutions” (Amaro Cavalcanti, cited in da Silva 2010, 79). Although the Constitution expanded political rights, it did not extend them to illiterate people, women, or the very poor. These decisions were heavily criticized by the so-called “Apostolado Positivista,” which considered that there were no good reasons for leaving so many people deprived of their right to vote (Rodrigues 1965, 155–56). Some authors distinguished Brazilian from US federalism, by making reference to the centripetal character of the US model, composed by states that “being separated, looked for their reunion”; which they contrasted to the centrifugal character of the Brazilian system,

Notes

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32.

33.

34.

35. 36.

37. 38.

39.

40.

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composed by more integrated states that looked for their separation, in order to win autonomy (Mendes et al. 2008, 164). Some influential activists (including Rosa e Silva and Nilo Pecanha) objected to presidentialism and called for the adoption of a parliamentary system. In their view, a “free government” had to always include the possibility of making their members accountable (Arinos 1967). Brazil faced at the time dramatic political situations, which included the suppression of Congress and the threat of a dictatorship under the command of Deodoro, a civil war that followed Deodoro’s resignation, a period of oligarchic rule, and the phenomenon of “colonelism,” which emerged during the presidency of Prudente de Morais. Some noted Argentinian liberals, who were then in Chile as exiles, showed a strong support for Montt’s administration. For Sarmiento, for example, Montt’s government guaranteed “public tranquility, authority, good faith and an efficient administration,” this is to say, all the “guarantees” required for foreign investors (particularly, British investors) for making business in the country. See Collier and Sater (1996, 162). See, for example, Donoso (1977). The existing social tensions exploded into a new civil war in 1859. The rebels occupied different parts of the country and obtained some significant victories, for example, in Copiapó. However, the civil war ended with the triumph of the official forces. Among them, there was Victorino Lastarria, a nonorthodox liberal who became the Minister of Finance for a short period. The Convention included, among others, seven presidents of Colombia, namely Tomás Mosquera, Rafael Núñez, Santos Gutiérrez, Aquileo Parra, and also José Hilario López, Salvador Camacho Roldán, and Justo Arosamena. However, important political figures of the time, such as Murillo Toro or Miguel Samper, were not present. Park (1985, 38). Two other, different constitutional projects were then rejected. One of them was written by José María Samper and the other by the extreme conservative Sergio Arboleda. It seems clear, however, that the new constitutional era inaugurated by Núñez’s government was marked by a certain superposition between the liberal and conservative ideologies. Making reference to the long-standing relations between the liberal and conservative parties, the historian Gerardo Molina wrote that the liberal party was nothing else but a “variation of the conservative school” (Molina 1987, 158). In his revision of Manuel Madiedo’s political ideas, Molina synthesized the actual and implicit fusion that took place between liberal and conservative forces. He claimed that “the conservative party recognized a dominant religion until 1843. The liberal party did the same until 1832. The conservative party conceded extraordinary powers to the Executive, through the Constitution of 1821. The same did the liberal party, through the Constitution of 1832. Conservatives promoted a dictatorship, against the dominant legal order, in 1828. The liberal party oppressed Congress in 1830. The conservative party conspired, in 1833 and 1834, against legality. The liberal party worked against the same legality from 1839 to 1842. The conservative party conspired against the loyal government in 1851. Liberals did the same against the legal government, in 1854” (Molina 1987, 159). Articles 76 and 121 reestablished the Executive’s capacity to assume extraordinary faculties. This is also why Rafael Rocha Gutiérrez, a close ally of Murillo Toro, in a lucid criticism of the new Constitution, maintained that it created a “unipersonal power, the power supreme,” a president that cannot be judged or removed, a president that “is as irresponsible as a king,” almost a “sacred person” (Restrepo Piedrahita 2005, 375). At the same time, the Constitution reestablished indirect elections for the most important public positions (president, vice president, senators) and also economic and literacy requirements as prerequisites for acceding to different public positions. The new Constitution also abolished the unlimited freedom of expression that characterized the previous Constitution and established sanctions for those who, through the publication of ideas, affected the honor of other people or disturbed the social order and public tranquility (art. 42). At the same time, the Constitution prohibited the use and possession of guns, which was authorized by the previous document.

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41. The 1886 Constitution rejected all the anticlerical clauses of the 1863 Constitution. It also required all public authorities to respect the Catholic religion as an “element essential to social order” (art. 38). The State assumed as its duty the protection of the Catholic Church, its properties and services. In addition, the new document established that public education had to be organized according to the principles of this particular faith (art. 41). 42. Similarly, the noted intellectual Samper claimed that the previous constitutional order was responsible of originating “anarchy” (given that “disorder found protection in the very letter of the law”) and “arbitrariness” (because government was forced to use its coercive powers in order to avoid chronic insurrections). For him, the delegates of the 1886 Constitutional Convention recognized the “enormity and intensity of the evils faced by the country during the last twenty years and tried to remedy them with firmness” (Samper 1951, 305, 308). 43. The Constitutional Commission, in particular, would be distinguished by the presence of a majority of moderate delegates (Carrillo Prieto 2003, 277–78). 44. Liberals repudiated those arguments by claiming that the latter would give foundation to a return to the colonial regime. They also claimed that the respectability of a norm had little to do with its permanence in time (Rabassa 1991, 144). 45. Some Constitutional delegates also tried to strengthen the authority of the Parliament, as a way of limiting the authority of the president. Thus, they took some initiatives trying to suppress the institution of the Senate, which was considered an oligarchic institution. Another important discussion concerned the direct or indirect character of elections. In particular, many liberals opposed the use of indirect elections for selecting the president of the Republic. 46. And he added: “I do not think that with the principle of freedom of work it will be enough for curing (the evils that we confront); but I believe that that principle will be able to free work from the limits that today constrain it, and that favor abuses from property owners” (Zarco 1957, 56). 47. Comonfort was voted for by a large majority of the people, although radical liberals did not vote for him but rather in favor of the alternative candidate, namely Lerdo de Tejada.

Chapter 3 1. The reasons that may explain this phenomenon are not apparent. Perhaps it had to do with the fact that they saw themselves as taking part in a definite foundational moment, which required such an articulated reflection; perhaps it had to do with the fact that their knowledge was not as fragmented and specialized as it is in our present times. 2. According to Castillo Velasco: “Out of gratitude, public convenience, let us save [indigenous groups] from their present situation, let us provide them with the means they need for their subsistence and illustration” (Zarco 1957, 364). 3. For Arriaga: “Society, with regard to its material organization, is still the same as before: the land is concentrated in a few hands; capital is accumulated by only a few” (ibid., 389). 4. For Olvera: “These lazy people should have been . . . corrected, in attention to religious principles of charity and fraternity . . . but instead they were obliged to work and they punished them as a consequence of their laziness and their vices” (ibid., 692). 5. Arriaga maintained “despotism came together with absolute exploitation, based on the ignorance of the masses. Its material basis was the appropriation of the soil” (ibid., 392). And also: “Society [has been based on] the principle of appropriation, by a few, of the work of other individuals; this is to say on a principle of exploitation of the work of the majority, by the privileged minority” (401). 6. In Olvera’s opinion, “it is enough to compare what the people have with what they had, according to tradition, after the conquest, for concluding that we have had a scandalous usurpation” (ibid., 693). 7. “Property and slavery recognize a common, primitive, origin: inhumanity” (ibid., 691). 8. Ramírez stated, “The most serious charge I have against [the Constitution] is that it preserved day laborers in a state of servitude . . . they are in fact slaves” (Ramírez 1994, 39).

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9. However, one should never forget how much the liberal anti-State, anti-interventionist position depended on State interventionism. In the name of nonintervention, liberals demanded a fabulous activism, which included the State enacting long legal Codes in the areas of property and contract; a State that was tough in disciplining society; a State that contributed in the formation of a working class and took side with the private sector (Halperín Donghi 1975, 359; Aguirre 1944, 55). This is to say, with independence of our evaluation of the substance of their view, what is clear is that liberalism came together with a titanic effort for the reconstruction of society. It completely changed the rules of the game and leveled the field, and always did so in the name of noninterference and individual initiatives. Just to mention a few concrete examples, think about the way the State intervened in order to reorganize the distribution of property in New Granada during the government of liberal José Hilario López; or how it contributed to the concentration of property in Argentina through the law of enfiteusis (during Bernardino Rivadavia’s administration); or how it intervened by putting an end to collective properties in Mexico; or how it changed the labor market when it forced into it indigenous people and former slaves (by denying them any social protection or compensation for the former abuses they suffered); or how the State reacted against the first workers’ organizations in Peru, Chile, or New Granada. 10. Shortly after, and as an advisor of the authoritarian general Paredes, Alamán made his project to organize an elitist, corporatist institutional system visible. In a proposal written in 1834, Alamán suggested the creation of a Senate, which included, among its members, representation of “rustic, urban, industrial, and agricultural property (38 deputies); mining interests (14 deputies); liberal professions (14 deputies); the magistrature (10 deputies); literary professions (14 deputies); manufacturing industries (14 deputies); the public administration (10 deputies); the clergy (20 deputies); and the military (20 deputies).” (see A. Lira’s prologue in Alamán 1997, 53). Mariano Paredes y Arrillaga adopted such a view of the Constitution as his own, radicalizing in that way what General Anastasio Bustamante had done in the 1830s. We find a similar approach to the Constitution in Sánchez de Tagle and his defense of a right to suffrage that was fully dependent on the economic capacities of each person. In his view, large sectors of society were not supposed to take part in politics, including servants, the unemployed, the illiterate, and those who could not demonstrate having an “honest” job. Politics was ultimately reserved for property owners and the professional classes (Noriega 1972, 65; Fowler 1966). 11. Hence, the Constitution established a bicameral legislative system, which in part copied the British system (that tried to ensure the representation of the nobility, the Anglican Church, and the Universities of Oxford and Cambridge). In that sense, the Argentinean conservative Senate tried to establish a wall of separation between the law and the majoritarian power. According to article 10, the Senate would include members of the Army, representatives of the Church, delegates from the different universities, and so on. In addition, the Constitution imposed strict economic conditions for becoming a member of Parliament (art. 11). 12. Even in spite of the resistances that it generated, such an idea remained present in the mind of many conservatives. On many occasions they tried to secure that the “real power” coincided with the institutional order. Delegate Pérez, for example, went back to such proposals during the crucial constitutional debates of 1853 and suggested that representation of “the rich, the industry, the Army, the Church, and all other [fundamental] elements of society” be ensured (Ravignani 1886, 30:429). 13. For instance, our economists (including those of international institutions, such as the World Bank or the IMF) do not pay may much attention to legal issues; our constitutional scholars do not tend to accompany their legal writings with detailed economic reflections, as Alberdi or Otero did; our legal thinkers do not propose economic reforms, together with their proposals for legal reforms, as Thomas Jefferson or Thomas Paine did. Remarkably, in the Latin American context, we find only one recent and significant case of a constitutional reform that came accompanied by a project for economic reform (actually, a referendum regarding the scope of the right to private property): that of Bolivia 2009. 14. Otero was, we know, a liberal politician, close in affection and in ideas to radical leaders such as Melchor Ocampo.

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15. Against those who accused him, by making reference to the bad results of the first open elections, Murillo Toro argued: “We have proclaimed every person’s exclusive right to regulate his own affairs . . . we have assumed as our first dogma a principle according to which every person is the best judge of his own affairs.” And also: “Those who attack universal suffrage maintain that [such a right is only indisputable] when [individuals] have the capacity to exercise that right in a convenient way.” Against that view, he maintained that “the idea of making the right to vote dependent on the person’s capacity is the most arbitrary and vague claim one can hear and would allow more frauds than the ones we have today. In effect, what is the measure of an individual’s capacity to use the suffrage? Nobody can define it . . . there are too many graduations and differences with respect to intellectual capacities that if we wanted to regulate them we would only make things more difficult.” And he concluded claiming that there was no better way to “ensure the political education of the people” than by allowing them to participate in politics through the suffrage: “No people educate themselves in abstract. It is only in practice that the people learn. Suffrage educates people, and the abuses of the clergy and the landowners only accelerate that independence and instruction” (Murillo Toro 1979, 95). 16. This also explains why, when he was Secretary of Finance for General López, he dedicated particular attention to the problem of land and its unequal distribution. According to Gerardo Molina, “Murillo proposed that nobody had more land than the amount necessary for his own subsistence.” For that reason, Murillo did not authorize transfer of lands that surpassed certain limits; or made domain dependent on the cultivation of land. “All this,” Molina concluded, “was too much for the epoch” (Molina 1987, 124). 17. In a similar way, the Ecuadorian liberal José Peralta defended the importance of redistributing property with an argument that was clearly liberal, in its foundations: the right to property was valuable, but valuable for all and not only for a few (El Problema Obrero, quoted in Ortega 2011). 18. This idea is clearly similar to the one that is examined in contemporary republican political philosophy. See, for example, Skinner (1983). 19. For him, the possession of land (the main capital of the time) came hand in hand with political liberty: the “subsistence of the masses” was in that way directly linked to “the preservation of political liberty” (Murillo Toro 1979, 79). Meanwhile, the lack of economic liberty tended to imply lack of personal independence. For that reason, he proposed to prevent the accumulation of lands in a few hands: that decision was indispensable for the preservation of liberty and the prevention of “aristocratic dominance.” 20. Ramírez’s views were exceptional in the way in which he connected that state of affairs, characterized by profound economic injustice, and the situation of vulnerability that affected most of the Mexican people. This is why he insisted on the importance of political emancipation and conceived of constitutionalism as a tool necessary for achieving that goal. In his words, “the real social problem” consisted of “the emancipation of day laborers from capitalists. . . . This is an imperative of justice” (Ramírez 1994, 40). 21. If that did not occur workers would be “unable to exercise their rights as citizens, unable to get educated, unable to educate his family, and thus die in a situation of misery” (ibid., 40– 41). And he concluded by defining the way in which the Constitution could help in achieving this process. It was necessary to write a Constitution that was directed in defense of “the privilege of those who live in misery, the ignorants, the feeble” (41). 22. Pedro De Ángelis, peculiar Italian republican, who worked for Juan Manuel de Rosas in Argentina, made reference to the “commercial spirit . . . which provoked the ruin of the Ancient institutions” and “completely corrupted public morality, as a consequence of their numerous injustices, its disastrous expeditions, its unacceptable wars, its immorality and perfidy” (De Ángelis 1946, 284). 23. For reasons such as these, many of the most important leaders of the anti-federalist movement, like George Mason, from Virginia, rejected the project of concentrating international commerce in the coastal cities. By acting in that way, he claimed, one would end up undermining the civic virtues that were necessary for republican government. Virtue, he stated, required “frugality, probity and a strict morality,” and the proposal of having super-populated commercial cities in the coast contradicted the achievement of those objectives (ibid., 125–26).

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24. Some claimed, for example, that social reformers had misunderstood the way to promote social change: they wrongly believed that “it was possible to destroy the tree of evil by attacking its fruits but leaving its roots untouched” (Noriega 1980, 196). In contrast with this position, it was maintained that “[the only possible way] for restoring the lost social equilibrium and securing the triumph of democracy” was that of redistributing all the national goods” (198–99 25. For instance, in his studies of cooperative economies, in 1928, he claimed that “without cooperators there is no cooperation” and he also highlighted the importance of “community” and trade unionism, in order to make cooperation possible (Mariátegui 2006, 197–99). This is why he concluded stating that “indigenous communities” had the best social and personal conditions for integrating into a cooperative world, which was not the case with respect to “urban and rural workers, who lacked a trade-unionist culture” (199). 26. Contemporary political philosophy has normally examined this issue through an analysis of the discussion between liberals and republicans (Pettit 1997, 2001, 2002; Skinner 1983, 1984, 1990, 1998). 27. See, in this respect, García Villegas discussion of “militant constitutionalism” (García Villegas 2012). 28. As Samuel Williams stated, “the security of the people is derived not from the nice ideal application of checks and balances, and mechanical powers, among the different parts of the government, but from the responsibility, and dependence of each part of the government, over the people” (Vile 1967, 678). 29. To state this does not imply saying that federalists rejected all kinds of external controls, confident as they were in the system of checks and balances. Rather, what they did was to stress the particular importance of these kinds of internal controls. 30. Montalvo’s position connoted a clear egalitarianism, which took him to defend substantive economic changes, which could transform society into a society of small proprietors. For him, in a “proper democracy” the “portions of land” had to be not only equal but also small, “like in Rome.” Those portions of land had to allow each person to “guarantee his own subsistence” (Roig 1984, 138). 31. Montalvo’s view was also interesting in his reading or rights. For him, it was clear that “among the rights that constitute the liberty of the people” none was “more sacred than the right to association.” In his opinion, the liberties of “press, association and discussion” represented the “foundations of the Republic” (Roig 1984, 236).

Chapter 4 1. The same point appeared in the polemic between Burke and Paine, which was originated after the former published his invectives against the French Revolution, in his famous book Reflections on the Revolution in France. Paine replied to that work in his also well-known publication Common Sense. Thomas Paine made the point in the following way: “The error of those who reason by precedents drawn from antiquity, respecting the rights of man, is that they do not go far enough into antiquity. They do not go the whole way. They stop in some of the intermediate stages of an hundred or a thousand years, and produce what was then done, as a rule for the present day. This is no authority at all. If we travel still farther into antiquity, we shall find a direct contrary opinion and practice prevailing; and if antiquity is to be authority, a thousand such authorities may be produced, successively contradicting each other” (Paine 1987, 215). 2. He stated: “It can be properly said that the Argentinian Republic does not have even one lively historical antecedent in the area of national public law. . . . None of the different attempted essays, in constitutional law . . . exercised any significant influence in public opinion.” This is why, he added, “the national or federal public law completely lacks . . . antecedents among us” (Pérez Guilhou 1989, 41). 3. He made reference to a “strong government, such as the one of Chile, which is republican in its forms, but almost monarchical in its substance” (Alberdi 1886, 157).

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4. According to Pérez Guilhou, Sarmiento tried to show that Alberdi was wrong, as an “ideologist who copied Guizot’s doctrinarism,” which in France served to justify the French monarchy of 1830 to 1848 (Pérez Guilhou 1989, 49). 5. This lack of confidence in foreign influences appeared, first, in his strong criticisms of the 1811 Venezuelan Constitution that was, for him, unduly biased in favor of foreign law. 6. In his famous Cartagena Manifesto, Bolívar maintained that it was necessary that the government “identified the character of present circumstances, of our times, and of those men that surround it” (ibid. 12). There is here a reasonable call for realism, which reappeared every time that Bolívar had to say something about the validity of certain democratic practices and proposals. For example, in his Jamaica Letters, he claimed that “present circumstances . . . have forced us to recognize that representative institutions are not in accordance with our present character, habits, intelligence” (ibid, 67). 7. In his Jamaica Letters, he also maintained that “as far as our compatriots do not acquire the political talents and virtues capable of distinguishing us from our brothers from the North, fully popular regimes will conduct us to the ruin, rather than help us. Unfortunately, it seems clear that the required qualities are completely absent from our population.” (ibid., 67). 8. Quoted in Heise (1978, 149). 9. In theory, this new institution was announced as one that would allow the people to have a more central play in electoral matters. However, in fact, this openness was severely limited by the economic and educational conditions of the participants. 10. At that time, French revolutionary thought symbolized, for many, a road to conflict, chaos, and social dissolution. Those were, according to common criticisms, the obvious consequences that followed from its emergence. The Argentinian caudillo Juan Manuel de Rosas, for example, considered that French ideology had “excited the spirits of the people, provoked the clash of particular interests, propagated immorality and intrigue, dissolving the unity of society (and also threatening to dissolve) the most sacred of all the links that put us together, namely religion” (Romero 1970, 74). 11. In the same way that Bolívar had his own favorite foreign influences in the teachings of British and Napoleonic constitutionalism, other conservative thinkers found support for their claims in the examples of figures such as Edmund Burke, Joseph De Maistre, or Juan Donoso Cortés. In this respect, one should also mention the enormous ideological influence exercised by Jesuits in the entire American continent. 12. For Lastarria, it was clear that the 1833 Constitution had failed in its main purposes, which became apparent given the “amount of conspiracies, revolutions and disturbances that have shocked the country since 1837.” This is why he began to look for an alternative, which he found in the ideal of “ensuring respect to political institutions and protections to the individuals, through justice and the law” (Donoso 1946, 448). 13. For Alemparte, all the “tumults and commotion” that affected Chile “occurred under the imperium of the 1833 Constitution” (Arteaga Alemparte 1870, 28–29). If the Constitution undermined rather than favored the country’s peace and political tranquility, then it was necessary to look for the causes of Chile’s exceptional political stability somewhere else. For Arteaga Alemparte, those causes resided in extra-constitutional factors, such as the “character” and the peculiar “needs” of Chileans; or the “conditions of the soil” (20, 30). The Constitution’s answer, instead, tended to be always the same: the state of siege. Like Lastarria, Arteaga Alemparte maintained that all authoritarian responses had dramatically failed. In his words, “we have had authoritarianism, strong constitutions, brutal governments in all the South American countries.” That history illustrated the hopelessness of the authoritarian solutions. “Repression,” he claimed, was not the solution (33). For that reason, it was necessary to equilibrate powers, ensure a proper balance between liberty and authority, and defend a proper representative system (37). 14. This is what he stated in his famous Te Deum celebrating a new anniversary of Peru’s independence, in the College of San Carlos (1846), where he occupied the main directive position. See Romero (1977, 146 and 138). Peru, Herrera added, “has been the prey of the serious and antisocial mistakes promoted by the French Revolution” (ibid.).

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15. The text comes from Juan Ignacio Gorriti’s Reflexiones sobre las causas morales de las convulsiones interiores de los nuevos estados americanos y examen de los medios eficaces para remediarlas (Chiaramonte (1997, 529). In addition, Gorriti stated, “The philosopher from Genève . . . deduces a false conclusion from a false antecedent” but the “eternal law of nature prohibits man from harming himself, even when he wanted to harm himself” (ibid.). 16. Alberdi, for example, dared to invite Rosas to write an authoritarian Constitution, such as the Chilean one. He claimed: “The destiny of the Argentinian Republic depends on one single person: General Rosas, who has the aptitude for rescuing it. . . . Call for an assembly or a Constitutional Convention. . . . Do what . . . Rivadavia could not do and did not know how to do. If the centralist project is inadmissible, then try with the federalist form. . . . It has been said ‘Constitutions have failed, have been inefficient, have brought anarchy.’ It is added: ‘They are impossible to materialize.’ No. If one speaks in that way, it is because one fails to distinguish between adequate and inadequate constitutions. One then refers to . . . constitutions that have already been tried, while we speak about those that have not been tried, those that are convenient for the country and its situation. Which Constitution is this? You have to study it, if you look for it you will find it, as Chile found it. Imitate that Constitution, which has been clever enough to . . . maintain order. . . . If you believe that strong powers are the key for order and peace, you should know that those powers can be consecrated in the constitution—a constitution that declared those faculties necessary and defined its limits” (Barros 1997, 291–92). 17. Another example of Alberdi’s selective approach to the past appears in his dispute with Domingo Sarmiento and other members of his generation. On the one hand, Alberdi accused them of the improperly radical changes that they promoted; and also criticized their inability to understand the importance of political stability. For him, his colleagues acted irresponsibly when they advocated for changes that did not properly fit with national history. On the other hand, however, Alberdi, the great advocate of a conservative compact with the past, fought for the introduction of extremely radical changes—changes that were properly summarized in his motto “to govern is to populate.” He stated: “This must be the great goal of present Constitutions: they have to help us to . . . provide us with the great practical means that will allow us to rescue independent America from the present situation of darkness and subordination. Those means must figure in the top of our constitutions. In the same way that, before, we placed independence, freedom, religion at the top of our constitutions, today we need to include free immigration, freedom of commerce, roads, industries without regulation . . . as essential means for making those words real” (Alberdi 1981, ch. 10). Alberdi’s call for immigrants was a very peculiar one: he only wanted to promote the arrival of European immigrants, and also European immigrants of a certain type, namely “the excellent laborious men offered by protestant and dissident Europe” (ch. 5). He dedicated chapter 14 of his most influential book, Bases, to highlight the civilizing character of Europe in South America. In sum, Alberdi wanted to directly change the core of Argentina’s population, through the massive immigration of the most cultivated, best prepared immigrants, coming from Europe. That is to say, the same person who became the symbol of (the main advocate of) local law; moderate change (against the radical tendencies advocated by people like Moreno or Sarmiento); respect for traditions (even those that seemed more difficult to accept), was the one who directly proposed to change the blood of the American body, by the importation of European blood. It is difficult to imagine a more radical, extraordinary, and complete change than this. Historian Halperín Donghi claims, in this respect: “Alberdi waited for the economic change that would bring about the new society, and a new politics; which would emerge after the economic change was completed.” For him, Alberdi believed it was “possible to create a working force appropriate for a modern economy, keeping—at the same time—society in a happy ignorance about the modalities of the modern world (and this is why he is so parsimonious regarding the diffusion of popular education). Before asking to ourselves whether this is an admirable ideal, we should find out whether it is feasible” (Halperín Donghi 1980, xxxv). This example does not simply illustrate the common case of a prolific author, who occasionally writes contradictory texts. What is at stake is a different phenomenon, which we have already reviewed, namely the use of the past as a political tool in the daily political disputes.

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18. In his work Derecho Público Constitucional (Lastarria 1906, 1:147–48), Lastarria tried to justify those limits. He stated: “If we want the representative system to produce all the positive consequences that it is capable of producing, then we need to reserve the exercise of the national sovereignty to the most intelligent and more capable citizens, who are able to recognize that importance. We could not, instead, reserve the right to suffrage to those who, as a consequence of their social condition, can offer no guarantees about their good intentions.” 19. The views of José María Samper were, in this point, almost identical to those of Lastarria. In fact, both of them considered that their respective countries were going through a difficult political situation, characterized by the presence of political caudillos and dictatorial regimes; they both assumed that a renewed institutional system could offer a crucial way out from the crisis; and they both deemed that the required solution was a drastic one, which implied an attack to the existing evils from their very roots—only a radical change, they agreed, could make the incorporation and stability of the new institutions possible. Samper made reference to his country’s “supreme necessity” to “annihilate the very causes of its evils,” which required, he claimed, the creation of a “truly Colombian politics.” This new politics implied putting an end to the period of “insurrections, military coups, and dictatorship that had perturbed and deviated” Colombia’s development. It was necessary to “eradicate this cancer of violence, the traditional and artificial antagonisms, from the roots” (Samper 1861, 225). Samper took into consideration “three main (institutional) remedies” in order to escape from the crisis (Lastarria would then insist on a similar approach). He mentioned the establishment of limits to both the Executive and Legislative powers, the democratization of the Army forces, and a reform in the electoral system so as to leave politics in the hands of literate people (230–36). 20. Against Lastarria’s critical approach he stated: “We need to be fair. They did not promote a ferocious tyranny. . . . Their policy was not characterized by . . . surplices or blood . . . but rather by the benign inefficacy of the supreme authority” (Lasterria 1906, 165). 21. In what follows, we shall stress the particular importance of two distinct and in many respects opposite conceptions of democracy and constitutionalism. However, that distinction should not be read as if we were saying that there existed two and only two alternative ways of understanding those concepts. By contrast, we shall only be stressing the particular importance and influence of two relevant and different conceptions of democracy and constitutionalism—the first would be the dominant view within the political elite, which was basically maintained by the proponents of the liberal/conservative agreement, as explored in the previous chapter and the second one would be the one that was mainly subscribed to by its main critics. 22. According to Alberdi, Sarmiento had properly identified, in Facundo, that the phenomenon of caudillism had basic structural components, which all those interested in social change were to seriously consider. Given that many of those structural elements were still present, Alberdi added, then it was not possible to solve the country’s difficulties by merely importing certain legal novelties, as Sarmiento was now claiming. 23. For Alberdi (and for the “old” Sarmiento as well), it seemed apparent that the exercise of authority required the people’s quiescence and subordination. That view, we shall maintain, openly contrasted with the Rousseauistic notion of democracy, which was particularly influential at the time of the revolution, and which was by contrast based on the notion of the people’s sovereignty. 24. For Alberdi, these liberties, which were reserved both to locals and foreigners, were the ones that were “called to populate, enrich, and civilize these countries” different from the “political liberties,” which were only “an instrument of ambition and restlessness” and were neither ambitioned nor required by foreigners who “only come to look for welfare, family, dignity, and peace.” Juan Bautista Alberdi, “Sistema Económico y Rentístico,” in Alberdi (1920, 14:64–65). 25. This way of conceiving public life was basically identical to the Madisonian view that Jennifer Nedelsky describes in her book about property and early constitutionalism in the

Notes

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27.

28.

29.

30.

31.

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United States. For Nedelsky, in Madison’s view, once we recognize that property rights are threatened by democracy, the solution is then either restraining democracy or limiting the efficacy of government. This assumption would explain why, in Madison’s opinion, the existing inequality in the distribution of property had to find a reflection in the inequality of political power: the protection of property required the transference of a disproportionate amount of power to the “few,” so as to allow them to protect themselves against “the many” (Nedelsky 1994, 209). More recently, Adam Przeworski (2010) examines the way in which political equality threatens economic inequality, and also the limits of that threat in actual practice. These limitations were of different nature, ranging from the suppression of existing assemblies (such as the Cabildos), or the inclusion of literacy or economic requirements (as a precondition to vote), to the direct use of force (practices that which were all too common during those years). Restrictions to the political participation of women, slaves, or infants were also very common, like those that affected single people or domestic servants (Ternavasio 2002). On occasions, the place of residence, nationality, and ethnic origin were also taken as reasons for political exclusion. Restrictions were even stronger for active citizens, those who wanted to run for elections. Here, we find limitations according to age, income, property, and capacity, directed at guaranteeing the election of the “noted” people (see, e.g., Sábato 2010; Sábato and Lettieri 2003). Moreover, the establishment of indirect elections was also a way of limiting the political rights of the majority. According to Elías Palti, indirect elections became a means for transforming suffrage into “a mechanism for the selection of the best,” which in fact transformed representative government into an “elective aristocracy” (Palti 2007, 206, emphasis in original). Finally, the non-mandatory character of suffrage and, more significantly, its public or non-secret features also worked against large popular participation in elections: most people were too afraid of exposing their political preferences in public, which opened the space for sanctions coming from their employers or political adversaries (particularly at a time when political violence was extended). In the end, those limitations caused basic political rights to become concentrated, during long decades, in a small minority of the population. According to Hilda Sábato, and for the case of Argentina, only 25 percent of the people in conditions to vote actually voted, which in the end represented less than 5 percent of the total population (Sábato 2010, 40). In his words: “Among us, the imperfections of the electoral system has made our representative system illusory: thanks to that system, minorities have taken the name of majority, and also because of that, congress could not represent the nation itself, with all its different opinions and interests, but rather represented one fraction, leaving the others without legal capacity and influence, and thus pushed them into the revolution” (Otero 1967, 372). In his voto particular, he also included an article making reference to the impossibility of reforming the basic principles of the country, including its independent character, the republican, federal and popular form of government, and the division of power (Otero 1967, 841). His concern with the promotion of the amparo seemed to have come from an unfortunate personal situation that affected him in 1845. At that time, he was irregularly detained and processed, under the accusation of participating in a revolutionary conspiracy with the popular political leader Juan Álvarez. In article 19 of his voto particular, he then wrote that the courts of the federation would give protection to all those inhabitants of the Republic against all kinds of attacks coming from the Executive and Legislative branches, or from the different state authorities (Otero 1967, 336–37). In contradiction with many of the most acclaimed jurists of his time, he claimed: “There are many capable and well-deserved men who could guarantee the stability of the laws and respect to the interests of minorities . . . without being proprietors” (ibid. 350). The change in material relations of society, he assumed, was a necessary component in the dispute in favor of an extended citizenry, which Otero in so many diverse ways supported. It was remarkable, in this respect, the harsh polemic that Murillo maintained with the economist Miguel Samper. In opposition to Samper’s views, the radical leader proposed to limit

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33.

34.

35.

Notes the accumulation of land in the same hands. Murillo, who claimed to “read politics from the economic side,” was convinced that “unless we complete the economic revolution that began with the decentralization law and the establishment of direct taxes,” the Republic would have no possibility of becoming consolidated (Murillo Toro 1979, 69; Bateman 1978). An important example, in some ways parallel to the one that Murillo Toro presented, was the one offered by Mexican radicals in the mid-nineteenth century. One of the most noted cases, in this respect, is that of the Mexican leader Melchor Ocampo, who always defended a strong notion of democracy, which was not so common in his country at his time. Ocampo also defended a peculiar idea about property, which had as a starting point the idea that all the inhabitants of the country were on an equal footing: they were all proprietors of the country that they commonly inhabited (owners of the shared “house”). And to this reason he added another, which was common in his argumentation, namely an argument about trust. It was important, for him to trust that every person would give their best efforts to keep the shared “house” in the best conditions. In his own terms, “they all know something, they are all morally good.” And then he added, “If the people make a mistake, good, this is not a sufficient reason to deprive them from their rights, because they are the owners of the house and they will call for the administration of the house those they found more apt for that purpose” (Ocampo, 1901, 388). Finally, Ocampo also made reference to the dubious moral and political qualities of most of the members of the dominant political elite, which were in his opinion those who took unfair advantage of the unequal distribution of land and who abused the most disadvantaged. The largest properties, for him, were thus deposited “in the worst hands” (Arreola Cortés 1975, 12–13). In a similar vein, Thomas Jefferson claimed: “There are two subjects, indeed, which I shall claim a right to further as long as I breathe; public education, and the sub-division of counties into wards.” Letter to Joseph Cabell, January 31, 1814. See Jefferson (1999, 197). At the same time, in 1853, Marx, in his work on The Jewish Question, had presented the Jacobin Constitution as “the most radical Constitution” http://www.marxists.org/archive/ marx/works/1844/jewish-question/. Bilbao’s proposals, which in all cases derived from a profound egalitarianism, were addressed in many other Latin American countries, even though it is not easy to find authors that delved so far and so deeply as the Chilean intellectual. In Bolivia, the Deputy Lucas Mendoza defended a proposal for mandatory instructions in the following terms: “If a deputy wants to represent the people, then I do not understand why he would want to become independent from the opinion of the people” (Jordán de Albarracín 1978, 125). In Mexico, the Deputy Gamboa considered that indirect elections had to be abolished, because the only ground for them was the fear of the people. Similarly, Peruvian and Mexican liberals defended unicameralism, as a way of avoiding the creation of institutions (such as the Senate) that were capable of suffocating the voice of the majorities.

Chapter 5 1. In studying those intellectual novelties, we shall be able to recognize a remarkable evolution in the development of political ideas, in the region, which included significant continuities with the past. Among those continuities, we should particularly mention the invisible thread that links the “pre-positivist” thought of liberal-conservatives such as Sarmiento, Alberdi, or Echeverría, in the mid-nineteenth century and the “positivist” thought of the end of the century (Zea 1970, 31). The other significant continuity is the one that appears in the area of political, democratic radicalism. 2. Those interested in learning about positivism in that period may find it useful to read the works of Argentine writers such as Carlos Bunge, Florentino Ameghino, or José Ingenieros; the Bolivian writer Alcides Arguedas; the Peruvian writer Francisco García Calderón; and the Brazilian writer Euclides da Cunha, among others. Again, the work of experts such as Zea and Hale represent good starting points in this research. 3. We find an interesting antecedent of this positivist movement in Mexico in the work of Gabino Barreda, who was born in Puebla, and at a young age took part in the fight against

Notes

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5.

6.

7.

8.

9.

10.

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the US invasion of Mexico. Barreda studied medicine in France, where he met Auguste Comte. His positivist views became well-known after a speech he pronounced in 1857—the Oración Cívica—where he made an attempt to reconstruct Mexican history from the viewpoint of positivism. In addition to that, and since 1867, Barreda became in charge of organizing Mexico’s educative system. His motto was of clear Comtean inspiration (“Liberty, Order, Progress”) and expressed his desire to transform the liberal revolutionary movement of 1850 into a new political paradigm. There are clear links between Justo Sierra’s way of thinking and the thinking of Alberdi and the 1837 Generation in South America. They all believed that progress and freedom required order. Social scientist Vicente Palermo aptly described the connections that exist between the way in which Justo Sierra advocated for Porfirio Díaz’s dictatorship and the liberal-conservative formula of “restricted political freedoms, ample economic liberties.” In his view, “Sierra is clearly aware that the key institutional factor of the Porfiriato resides in the doctrinarian distinction between civil and political rights. The analogy with Argentina’s ‘restrictive republic’, which ensured civil rights for all and political rights for only a few, is remarkable” (Palermo 1993, 21). In Cossío Villegas’s words, “Justo Sierra objects to the (1857) Constitution, at the beginning of the Porfiriato; while Emilio Rabasa does the same at the end of the Porfiriato; the former creates the ideology that would provide life to Porfirio Dìaz’ regime, while the latter justifies a posteriori that ideology and, by doing so, he justifies that very regime. Sierra and Rabasa can be deemed, then, the two main pillars which provide historical justification to the Porfiriato. Thanks to the presence of these two talents and these two extraordinary writers, the Porfiriato was kept alive, in spite of all the time that passed, and all the vicissitudes and adversities that worked against it” (Cossío Villegas 1957, 61–62). For Herzog: “Emilio Rabasa thinks historically. His interest in history does not come from an interest in the past, but from his concern for the present. For a jurist, to make history implies recognizing the laws of social change. This is why Rabasa’s historical discourse is not interrupted by the description of mere facts: they go directly to the interpretation of those facts” (Silva Herzog 1990, 292). Páez is presented as “the great Egoist, the Dictator, the Cesar or Cesarión who dominates the egoism of all his rivals, who organizes, disciplines, and founds a despotic State, like Juan Manuel de Rosas, which has become the basis of nationality” (quoted in Pereira Larraín 1980, 285–6). As a follower of Comte and as an active member of the Brazilian Positivist Church, Teixeira Mendes proposed the adoption of a flag that still today represents Brazil. In the center of the flag we still find the positivist words “order and progress.” Barbosa, who was born in Bahia, was a member of the Liberal Party and a Member of Parliament during the time of the Empire. From his position in Parliament, he advocated for the adoption of an electoral reform, the introduction of changes in legal education, the abolition of slavery, and the gradual democratization of the prevailing Monarchy (Barbosa 1921, 359–69). From the direction of the Diario de Noticias, he also worked for the transition toward a more federalist system. With the end of the Empire and the arrival of the Republic—a regime that did not particularly attract his attention—Barbosa occupied different public positions, including that of the Vice-Chief of Government. As the main intellectual responsible of the new system, Barbosa was deemed the proponent of a formalistic, idealistic, and liberal-individualist approach, which was considered totally foreign to the national political and social thought (V. da Silva 2011). In some cases, these movements of dissatisfaction generated reactive expressions that included evolutionary and even racist features. As Funes and Ansaldi put it, many positivist intellectuals (including, among many others, figures such as the Bolivian Alcides Arguedas, the Chilean Francisco de Encina, the Argentinian Carlos Bunge and José Ingenieros, the Venezuelan César Zumeta, or the Brazilian Manoel Bonfim) “showed a particular interest in attributing the region’s difficulties for economic development, to the racial composition of Latin American societies” (Funes and Ansaldi 2004, 454).

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12. In any case, it seems clear that the most significant work of the period—given the influence that it achieved within both the realms of politics and literature—was Ariel, the book written by the Uruguayan José Enrique Rodó. Inspired by Ernest Renan’s Caliban, Rodó’s book vindicated humanism, idealism, spirituality, and non-materialist moods, which he related to Latin America, vis-à-vis the materialism and sensuality that he associated with the Anglo-Saxon world. From his work on, people began to talk about an Arielista generation. 13. By contrast, and according to Alan Angell, there were at least two elements that worked against the expansion of leftist (and particularly Marxist) ideals in Latin America (clearly, together with political repression). The first one was the presence of the other “major belief system in Latin America,” namely Catholicism, with its traditional hostility to Marxism; and the second one being the presence of populist political parties, of nationalist roots (Angell 1994, 170). 14. However, many objected to the liberal tone of many of these initiatives, which included not only (justified) measures in defense of an ample freedom of expression (at a time where it became all too common to criminalize the diffusion of leftist ideas) but also (less justifiable) measures in defense of private property, free trade, or foreign capital (Hale 1986, 429; Palacios 1934). 15. In particular, this was due thanks to the impulse of Alicia Moreau de Justo, a doctor, socialist, feminist, an activist in the defense of human rights, and also spouse of Juan B. Justo. Alicia Moreau promoted a law in favor of women’s suffrage (which was then rejected by a Senate controlled by conservatives) and also other initiatives related to the rights of mothers and pregnant women, and the equality of rights between men and women (Oddone 1934). 16. He stated: “Economic equality . . . this is what we want. Economic equality is not impossible . . . and must be imposed by the force of the revolution” (Recabarren 1979, 126). 17. In Recabarren words: “When the actions by workers and socialists appeared as a threat, the upper classes invented something called democracy, with which they entertain those workers who have problems of understanding. . . . Democracy is the system that tells the people: ‘Here you have your vote, now go and choose your representatives, so they can free you from misery.’ But, at the same time that they concede the right to vote, they corrupt workers, by offering money in exchange for their vote” (Recabarren 1987, 16–17). 18. “The prison system is the worst thing in this country. I do not think I exaggerate when I say that prison is the best ‘practical and professional school’ for . . . crime and vice . . . All crimes and all vices become more perfect thanks to the help of prison” (ibid., 29). 19. “(The people) have learnt that the justice system does not exist, or is an integral part of the . . . oppressive bourgeois system” (ibid., 28). 20. “Society needs to work to correct delinquency, by creating an environment of morality . . . the penal system must be considered already a failure. The penal system may frighten people, but is incapable of correcting people. . . . Society must recognize that . . . the main explanatory factor of delinquency resides in both the moral and material misery that exist among us” (ibid., 31). 21. In González Prada’s words: “When you see how judges are selected, you can understand everything . . . in the end the real and only elector is the president of the Republic: We should consider courts and Parliaments as mere dependencies of the Executive. . . . Almost always, high judicial positions are distributed as rewards for previous services offered to the government. . . . No surprise, then, these men then appear not as instruments of justice, but as tools for power” (González Prada 2009, 172–73). And also: “Nothing expresses better the degradation of society than the relaxation of the judiciary, and the fact that the judiciary became a tool in the service of the rich and the powerful. . . . It is at this point when mafias and camorras become justified.” In angry terms, he claimed that, in those occasions it was better to have individuals execute justice themselves, than a state of hypocrisy, where “some oppress and engulf the other, masking the existing inequalities behind a veil of legality.” Judges, for him, tended to “hide themselves behind the codes, attributing to deficiencies in the law what were, in fact, their own excesses of personal malice.” Magistrates, he concluded, “tend to gain everything without risking anything” (174–75).

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22. “When individuals do not suffer the tyranny of government, they suffer the tyranny of law [written] and sanctioned by the dominant classes. The excessive rigor of punishment in crimes against property reveals who were behind those Codes.” And he quotes Duguit to add that Napoleon’s Code was basically written in order to protect property. Property law, he claimed, had to be to be replaced by a Labor Code (ibid., 316). 23. Mariátegui stated: “Latin America includes more than 100 million inhabitants, and the vast majority of them are indigenous and black people. Moreover, what is their economic situation? The majority of them belong to the class of exploited workers and peasants, and they represent almost the totality of them. This very circumstance would be enough to express the importance of races in Latin America as a revolutionary factor” (Mariátegui 1929, 54). 24. In addition, he maintained that “(all) theses about the indigenous problem that ignore or elude the economic and social character of this problem are sterile theoretical exercises— sometimes only verbal exercises—which are condemned to an absolute discredit. . . . They serve as nothing but for hiding . . . the reality of the problem. The socialist critique uncovers and clarifies this problem and finds the roots of the existing problems in the economy of the country. . . . The indigenous problem begins with our economy. It has its roots in the organization of the land. And every attempt to resolve this problem . . . will be superficial work, as far as the feudalism of the ‘gamonales’ subsist” (Mariátegui 1988, 55). 25. For him, “‘gamonalism’ invalidates every law or ordinance in protection of indigenous groups.” The authority of the Feudal Lord, or big landowner, made the “written law simply impotent.” “Free work is prohibited by the law,” he added, “but free work, and even forced work” were still there. The law could not “prevail against ‘gamonales’. The public officer that wanted to impose it would be sacrificed by the central power” (ibid). 26. Mariátegui’s work has, in this respect, some coincidences and differences with another Peruvian intellectual and politician of the time, namely Haya de la Torre. Haya de la Torre had begun his political activity at the University of San Marcos, as a Member of the Peruvian Federation of Students (Federación de Estudiantes Peruanos, FEP). From that position, he proposed the formation of alliances between workers and students, which would end with the formation of the APRA (Hale 1986, 431–32). Meanwhile, Mariátegui had become a leftist in Italy, where he went to study at a time when Italy was still suffering from Mussolini’s rule. Back in his country, Mariátegui met Haya de la Torre, with whom he maintained a strong political link until 1928, when they broke their alliance, and Mariátegui decided to create the Socialist Peruvian Party. 27. Martì developed a heterodox style that would later characterize activists like socialist Roa García (2010). 28. Flores Magón was arrested in the United States, after writing a pamphlet that made a call to “all the anarchists in the world,” which in the United States was considered subversive, at a time when the country was involved in military activities outside its frontiers. A few years later, Flores Magón died in prison—according to some, as a consequence of the violence he suffered at the hands of the prison’s guards. 29. Within the same group, it is also worth mentioning the Democratic Party in Peru. 30. Both examples illustrate well a tendency that found other interesting examples in the region—notably among them, the case of the great Ecuadorian liberal, Eloy Alfaro. Alfaro, who on two occasions became the president of his country, was a symbol of republicanism. He also became known for his disputes with the Church and the armed confrontation that he promoted with the conservative political forces in Ecuador (Deas 1986, 663–68). 31. The unicato was then the dominant, corrupt, and authoritarian group in the country, commanded by Miguel Juárez Celman. 32. Yrigoyen’s first presidency was also marked by tragic events, derived from the government’s confrontations with socialist, anarchist, and revolutionary groups, which promoted strikes and massive demonstrations during that period. Some references about these events can be found in Godio (1985); Bayer (1968); and Viñas (1958). 33. With respect to the first conflict, namely its confrontation with conservatism, we can say that Yrigoyen made enormous efforts to decrease the influence of conservatism, which, both through legal and illegal means, was still enormously powerful in different Argentine

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36. 37.

38.

39.

40.

41.

Notes provinces. For that purpose, Yrigoyen’s main strategy was the use of the constitutional mechanism of federal intervention, which of course contributed to the strengthening of an already centralized political organization. During his first presidency, Yrigoyen ordered an unprecedented number of interventions (twenty—fifteen of them by decree) (Rock 1986, 431). With respect to the numerous social conflicts that troubled his Presidency, two of them are worth mentioning because of the way in which they expose the worst features of a government with democratic vocation. The first of these conflicts appeared during the so-called Semana Trágica, or tragic week. The conflict had begun with a strike that had been organized by metallurgical workers—a strike that was also a sign of the time of war, and the difficulties faced by local industries trying to survive in that context (namely, without basic imported goods). The second significant conflict began at the Patagonia, in 1920, after a powerful strike promoted by rural workers. Yrigoyen ended both strikes (both very representative of this period of transition) through the vigorous—brutal—use of the coercive powers of the State. Ellauri had studied law in Argentina and was closely in contact with the main political leaders of the neighboring country. Before “Mi conducta . . . ” Battle had published his “Apuntes sobre el Colegiado,” in the same newspaper. There, he proposed the adoption of a nine-member Junta, which provoked a profound division between those who defended and those who opposed the plural alternative. In the end, the two groups began to favor this mixed alternative (Valencia Carmona 1979, 87). In fact, at the very beginning, it was the same Porfiriato that promoted the organization of the opposition forces, in an attempt to expand the basis of its legitimacy. Two of the main social movements that worked against the old political regime were radical peasant movements of indigenous blood: one was led by Pancho Villa, in the North of the country, and the other was led by Emiliano Zapata, in the South. These movements seemed to have clear roots in Mexico’s history, and particularly in the indigenous, rebellious movements mobilized by the religious Hidalgo and Morelos at the time of the independence revolution. According to Rabasa, the project “included some elements of social doctrine,” concerning labor and agrarian rights, but under the general assumption that both issues had to be addressed, in all their details, by the law, rather than the Constitution. The reason that was then presented in order to justify this decision was that, until that time, no other Constitution had addressed these and other basic questions (Rabasa 1995, 156–57). This outcome was, at least in part, unexpected, after so many decades of a long dictatorship. The excuses that were then presented were different and varied. Carranza quoted Tocqueville for stating that Hispanic-American people “fall into anarchy when they get tired of obeying, and into a dictatorship when they get tired of destroying” (ibid., 370). He also made reference to the influences of the French Revolution, in order to repeat another common topic: Latin Americans took from it all the demands, when in fact they were not “actually prepared” for that. He also charged against the 1857 Constitution and its (rather timid) inclination toward parliamentarianism. Such a government, he added, could be understood in England or Spain, and even explained in France, but it was unacceptable in Mexico. Mexico, he claimed, lacked any antecedent for adopting parliamentarianism. In addition, he considered that it was not reasonable to go for a weak type of government (373). In his view, it was necessary, instead, to look for “strong form of governments, capable of maintaining order” in a context that was characterized by “lack of discipline” (371). R. Barragán raises a similar point for Bolivia, in her analysis of the 1938 and 1945 Constitutional Conventions, which introduced social concerns in the text of the Constitution, and that for the first time included many representatives of the working class among their members (in 1938, particularly through the Popular Front, which channeled the participation of many unionized workers (Barragán 2006, 70–71, 92–93). She quotes the 1945 appeal to “the workers, the aborings, the middle class” (102–3). See also Antezana 2003. Other representatives from the working classes included Deputies Andrade, Gracidas, and Cravioto.

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42. He complained about the “academics, the illustrious, the wise, in one word, the jurists.” He claimed that workers were “tired of the perfidy” of the latter, which always came to undermine “public liberties” (Rouaix 1959, 79–80). In a similar vein, Deputy Manjarrez, complaining about the formalities that “made the jurists blind,” emphasized the importance of leaving formalities behind and just pushing to ensure “sufficient Constitutional guarantees for workers” (Carpizo 1982, 96). 43. Phillips, for example, stressed the difficulty of understanding or representing others’ needs—of “jumping the barriers of experience”—“no matter how careful or honest” we are. This should not be understood as an endorsement of the opposite idea, namely that we are incapable of “putting ourselves in others’ shoes” (Phillips 1995).

Chapter 6 1. With this breakdown, the period of British predominance in the region also came to an end. Great Britain’s influence in the region was then replaced by the dominant role of the United States. 2. The first answers oscillated, according to Halperín Donghi (2007), between “constitutional liberalism” and “dictatorship.” However, liberalism failed in its attempt to show “openness . . . to those new sectors.” In fact, liberalism tended to step back, politically, profoundly affected by the criticisms that it received: it seemed clear that liberals found enormous difficulties for providing appropriate answers to the new existing social demands and necessities. In this scenario, and according to the Marxist historian Eric Hobsbawm, European fascism exercised enormous influence in Latin America, particularly in public figures such as Colombian Jorge Eliecer Gaitán (1898‒1948) or the Argentinean Juan Domingo Perón (1895‒1947), and political regimes such as the Estado Novo of the Brazilian Getulio Vargas (1937‒1945) (Hobsbawm 1994, 139). 3. Of course, there were many other debates and legal reforms taking place around the world, more or less at the same time as the Mexican Revolution. One could list, for example, the enactment of the Weimar Constitution of 1919, or the creation of the International Labor Organization (ILO), or the gradual establishment of the welfare state and Keynesian economics. 4. The idea of “social tie” is taken from the work of the Chilean sociologist Norbert Lechner, who aptly described this process in the following way. He stated: “[Situations of ‘social tie’ are those in which] no group or social class has either the economic strength necessary for imposing its own particular interest over the rest or the political strength required for creating a general interest. The oligarchy of landowners is not as powerful as before but still preserves part of its power. So-called ‘middle classes,’ which emerged with the help of the State, appear in the political sphere with unusual force but, lacking a strong economic basis, find it difficult to develop their own social process. The incipient economic bourgeoisie does not find in the import substitution . . . the engine capable of allowing them to re-articulate the social process. This type of industrialization creates a working class, but the presence of foreign control—direct foreign control in the mining sector, more indirect in manufacturing—prevents the development of a national bourgeoisie. The only objective in which all these groups are in agreement is in the exclusion of peasants” (Lechner 2006, 53). The situation, it must be noted, is substantially different from the one that had been prevalent during the nineteenth century. The number of people affected by the existing inequalities was higher than before; the demands of these excluded groups were more intense; and they were also more aware of the injustice of their situation. Society was more politicized and demanding than ever before. However, no group seemed to be capable of imposing its own project on the others. 5. As Judge Boffi Boggero put it, there were “eminently political questions” that were, because of that, excluded from judicial review (Boffi Boggero 1975. 6. http://elpais.com/diario/1990/09/01/cultura/652140001_850215.html. 7. I thank Pedro Salazar for his help with this section. 8. As Jaime Guzmán (the main legal intellectual leader behind Pinochetism) would explicitly recognize, military coups in the twentieth century appeared as a direct reaction to the threat

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9. 10.

11.

12.

13.

14.

15.

16.

17.

18.

Notes perceived by the upper classes from democracy, concerning property rights (Guzmán 1992, 153, 176; Barros 2002). President Arbenz tried to deepen the process of reforms initiated by President Juan José Arévalo and the so-called “October Revolution” (Torres Rivas 1985, 152–53). One could say something similar about the case of Peru and the military coup that was led by Velasco Alvarado in 1968. However, Velasco Alvarado inaugurated a different type of regime of a seemingly different sign. He, for example, promoted an important agrarian reform and also launched a process favoring an expansion in popular political participation. However, it must be noted (and according to what we shall examine below), that this period of political stability came together with numerous cases of presidents who were unable to conclude their mandate, either as a consequence of political impeachments (six cases between 1992 and 2004), or as a consequence of extreme social protests that forced their resignation (as in the cases of Argentina and Bolivia). See, in this respect, Pérez Liñán (2009). During Calderón Guardia’s government, the country promoted some important social reforms, including the elaboration of the Labor Code and the creation of the since then enormously influential Social Security Office. Some decades later, other Constitutions would also reduce the powers of the Executive, in reaction to long periods of political authoritarianism. A case that is worth mentioning, in this respect, is that of Venezuela 1961. This Constitution was passed after the democratic pact that followed the dictatorship of Marcos Pérez Giménez (1952‒58). The Constitution not only established advanced social guarantees (which were adopted in the country during the 1940s) but also defined significant limitations to the presidential powers—typically, the restriction of presidential reelection until ten years after the end of the presidential mandate. Another Constitution that is worth mentioning is that of Peru 1979. That Constitution, which was adopted after two military governments, was the product of a compact between the APRA and the Popular Christian Party. The document introduced some relevant parliamentary features to the political system. For example, it allowed the Chamber of Deputies to censor the Council of Ministers, and at the same time it allowed the Executive to dissolve that Chamber in the case that the latter censored or denied its confidence to three Councils of Ministers. The 1933 Constitution of Peru expanded the social clauses already incorporated in the Constitution of 1920 and established significant limitations to the Executive, who was limited in its capacities, severely dependent on the Council of Ministers, and subject to censorship by Congress, even though he was unable to dissolve Congress and call for new elections, as in other parliamentary regimes. Many decades after, the Constitution of 1979 would limit some of these strong parliamentarian features. According to S. Farber, the Constitution was implemented only in parts, and at the same time had at least two important consequences. On the one hand, it legitimized protest movements against the most varied injustices; and, on the other hand, it generated a spirit of cynicism and disillusion with regard to promises that appeared as merely empty ones (Farber 1976, 97–98). Thus, the Constitution came to symbolize a period when numerous labor and social security laws were enacted (many of them appeared already in 1924); the labor code was created (1931); and unions and strikes were legalized. For instance, from 1941 to 1949, the total number of union members increased more than 40 percent (Drake 1991, 294). It must be noted, however, that in the end the remarkable victory of the Popular Front, which implied the victory of an alliance of radical, socialist, and communist groups of Marxist origin, was not particularly favorable to the advancement of the radicals’ political agenda, and even less to the more leftist and activist groups of the coalition, which ended up being repressed, persecuted, or directly banned from politics (communists, for example, were outlawed and many of its adherents suffered repression by the State’s coercive powers, particularly during the government of President González Videla). According to A. Angell (1991, 331–32), Frei’s government was characterized by the

Notes

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20.

21.

22.

23.

24.

25.

26.

27.

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nationalization of copper, an agrarian reform, the organization of the popular sectors, and generally for its programs for addressing the problems of poverty. We shall define in that way the polemic notion of “populism,” this is to say by employing a definition based on the addition of certain particular characteristics, which we will assume distinguished the organization of society in a specific time of history (for a similar approach to the concept of populism, see Vilas 1998 and Vilas 2004). In this way, we shall not be taking into account other possible definitions of the term, such as the one used by Ernesto Laclau, who related the concept with a discursive phenomenon based on the appeal to the “people,” in antagonism with the dominant ideology (see Laclau 1978 and 2001). The dispute around the term is vast, rich, and also tiring. It is possible to find an interesting analysis of the topic (for example, in Aboy Carlés 2002, 2005, 2010; Aboy Carlés et al. 2005; or De Ipola and Portantiero 1989). The Constitution’s lack of impact in the political life of the country must also be noted. This result was clearly linked to the presence of a too strong Executive, who was prepared to rule independently of what the Constitution said. In any case, the 1934 Constitution appeared to be fundamentally directed to “constitutionalize the main measures that the Provisional Government of Getulio Vargas had already adopted” (Bercovici 2008, 382; Bercovici 2009). The Commission combined figures of a fascist origin, nationalists, militarists; with other figures, more closely related to the Left, such as the jurist Joao Mangabeira; or defenders of a strong social State, like Oswaldo Aranha or José Américo; and also young brilliant activists, such as Themístocles Cavalcanti (see, e.g., Marinho 1982). Mangabeira was one of the members who inaugurated the Commission’s sessions. Mangabeira’s work is of fundamental importance not only for explaining the main social aspects of the document but also for understanding the place left for professional representation, which Mangabeira promoted. There were four fundamental topics that were then discussed: centralization, regionalization, the need or not to federalize the country, the organization of the judiciary (Wolkmer 1989, 74–75). There was also a remarkable proposal, inspired by the 1931 Spanish legal order, of including a unicameral legislature, which then implied the suppression of the Senate, and its replacement by a “Superior Council of the Republic.” During the debates, Gouveia denounced the “dictatorial Government,” “the contradiction and Machiavellism” of government and also of the “dictatorship of money, the dictatorship imposed by capitalists” (Wolkmer 1989, 112). See also these forms of corporatist representation in the Constitutions of Ecuador 1929 and 1945, for example. The 1945 Constitution included representatives of workers, merchants, peasants, industrial leaders, the army, journalism, academic and scientific societies, etc. The 1945 Constitution not only maintains but enlarges these initial forms of corporatist representation (Grijalva 2012, 150–53). This expansion of functional representatives includes even the novelty of indigenous leaders. The number of special representatives would be reduced in the Constitutions of 1946 (promoted by the dictatorship of President Velasco Ibarra) and 1967. As a result of this new paradigm, different corporative initiatives appeared in Argentina, including for instance the enactment of the 1951 Constitution, in the Province of Chaco (then, Province Juan Perón), which in art. 33 created a Legislative composed in part by representatives of professional associations. Thanks to Miguel Benedetti and Pablo Cattaneo for raising this point. Sampay locates the origins of the notion of “social justice” that he uses in the similar term that appears in the Encyclical “Quadragesimo Anno,” presented by Pope Pío XI. According to his interpretation of the document, “the notion of common good, or the good of the collective, implies that the State has to facilitate and guarantee that individuals do what is good.” However, he added, “in order to fulfill good actions in life, this is to say, in order to live a virtuous life, one also needs material elements,” which obliged the State to secure that “every member of the community fulfills his mission and lives according to his place, and participates in the well-being, the prosperity, and culture, according to his contributions to

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the common good” (Sampay 1975, 500). 28. In his work Las Constituciones de la Argentina, Sampay presented, as crucial antecedents of the social view of the Constitution, which he himself contributed to promoting, some dissident opinions written by Judge Juan B. Terán, a former member of the Argentinean Court, who demonstrated having an “anti-individualist” view, which Sampay linked to “Savigny’s historical school” and “reformist socialism.” He quoted, in particular, the Judge’s opinion in the case Saltamartini v. Cía. de Tranvías La Nacional, from September 1936, where Terán made clear the central place that he reserved for religion in all his decisions. The judge then exposed the three main principles that guided his work, which Sampay summarized in the following way: “Given the Catholic spirit of the Argentine Constitution, which in this aspect is clearly different from that of the United States, ‘Christianism is the law of the country,’ so the inhabitants of Argentina are under the protection of this doctrine, which gives priority to the divine and natural rights of human beings; (2) political power can dictate retroactive norms, when it is necessary in order to advance distributive justice, whose finality is to favor the general good; (3) one cannot apply commutative justice to the work of human beings, given its content and moral transcendence. Commutative justice is about the exchange of goods between individuals” (Sampay 1975, 70–71). Later on, Sampay vindicated the work of “the wise jurist Tomás D. Casares,” who, at the time when the 1949 Constitution was in force and as a member of the Supreme Court, returned to the dissident opinions of Terán, and in a fundamental case declared that “the state of emergency, which is aimed at transitorily imposing the authority of the State upon economic and social powers, is gradually being replaced by a new order about the social body, the distribution of property and the general regime of the economy” (Martín y Cía. v. José Silvestre Erazzo, September 1947). 29. In what regards the omission of the right to strike, it is worth reading the discussion that was then held between Arturo Sampay and Pedro Ramella. The discussion can be read, for example, in Vanossi (2005). Ramella, a jurist of Peronist origin challenged Sampay’s argument on the topic, according to which the right to strike was a “natural right” and “as a result of that” could not become a “positive right.” According to Ramella, if it was a “natural right” then “precisely for that reason” it had to figure in the Constitution as a positive right. He also rejected the argument according to which strikes could be assimilated to “wars,” as the Italian jurist Carnelutti had once maintained. For him, strikes could represent an “expression of force” but that was not in contradiction with its “legal character” (ibid., 13–14). 30. The article generated resistance from the President Perón himself, who also objected in this aspect to the work of Sampay (see Sampay 1999). 31. Article 40 maintained that the exploitation of wealth had to be directed to the well-being of the people, according to principles of social justice. It also fostered State intervention in the economy, in defense of general interests, and established that the State itself was in charge of public services that, under no circumstances, could be “sold or transferred for their exploitation.” 32. Summarizing the contents of the “dogmatic” part of the Constitution, Sampay mentioned, in the first place, the need to “restore the natural order of society, by strengthening the family, which we do not consider a secondary task of the State but rather as a policy that makes the future possible, because the reconstruction of our civilization, which is in a state of crisis, must be conceived in relation to the place of the family, which must be considered its fundamental, basic unit” (Sampay 1975, 508). 33. For instance, and according to the “Majority Report” at the Constitutional Convention, the “legal individualism” of the previous constitutional order was responsible for “the destruction of the working-class family” by establishing salaries that prevented the worker from satisfying “the needs of his wife and children” and by forcing women “to go to the factory, thus disregarding the moral education and health of the children” (Sampay 1975, 495–96). 34. In this respect, the new legal view recovered the principles that characterized conservative caudillism of the nineteenth century; namely, concentration of political authority, geographical concentration of power, political verticalism, nationalism, and a constant appeal to the masses.

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35. Some analysts have presented Bolivia’s modern political situation also as the product of exclusionary democratic compacts. See, e.g., Martínez Dalmau (2009). 36. It is also worth mentioning that the exclusionary compacts appeared, in both cases, during the period of “Cold War” between the United States and the Soviet Union, which was then reflected in the political exclusion of forces at the Left of the political spectrum. 37. In fact, during those years there were at least two serious attempts at a military coup. The first one was led by the Minister of Defense Jesús María Castro León, and the second one by José Ely Mendoza and Juan de Dios Moncada Vidal. 38. The “revolution” brought back into power the Movimiento Nacionalista Revolucionario (MNR), which had won the elections of 1951 but had been forced out of it by the Army. 39. The Bolivian rebellion, it must be remembered, would also have an important legal expression, through the enactment of the 1961 Constitution, during the presidency of Víctor Paz Estensoro. This Constitution not only recovered some of the crucial social developments of the 1938 and 1945 Constitutions but also gave suffrage to the illiterate, defined a new agrarian system, established free and mandatory education, and the nationalization of the mines, according to the goals of the 1952 movement. 40. The Amendment was annexed to the Constitution after pressures coming from the United States, and particularly through the demands of Senator Orville Platt. As a result of the Amendment, the United States was authorized to intervene in internal Cuban affairs in order to protect its independency. In this respect, it authorized the United States to acquire bases on the Cuban coast (like the Guantanamo Base and the Isle of Pinos). 41. In a later paper, the author would advocate for the adoption of a less bureaucratized, more decentralized and rational institutional order, capable of fostering political participation and popular representation in politics (Valdés Paz 2009, 212). 42. According to the jurist Sampay, the Chilean reform was inspired by the Argentinean 1949 reform (and particularly by the reform of art. 40 of that Constitution). He also linked the reform in Chile with those of Argentina, and in particular with Colombia 1936, Mexico 1960, and Uruguay 1967 (Sampay 1973b, 179–82). 43. An interesting manifestation of these tensions in Chile, during the 1970s, appears in the work of the well-known jurist Eduardo Novoa Monreal. Some of his more interesting works (which were published shortly before Allende’s coming to power), were directed to criticize the organization of the Chilean Judiciary. Novoa Monreal denounced and condemned the existence of a “classist justice” in the country (Novoa Monreal 1970a, 1970b). He explored diverse factors provoking that unjust situation and, at the same time, he pointed to the fact that the Judiciary had always managed to remain untouched by the reformist processes that were taking place in the country (Novoa Monreal 1970a, 108). In addition, the jurist highlighted the responsibility of the same judicial branch in the construction of the prevailing situation of injustice. In particular, Novoa Monreal demonstrated that the Supreme Court had become “an unconditional defender of the political, economic and social status quo” and also that the members of the Supreme Court had “links and connections with the most conservative sections of Chilean society, and normally belong to those sectors” (Novoa Monreal 1970a, 117–18). See also Correa Sutil, stating that Novoa Monreal’s criticisms to the judiciary amounted to “one of the most important attacks received by the Supreme Court in its entire history” (Correa Sutil 1993, 95). 44. http://es.wikisource.org/wiki/Grave_Quebrantamiento_del_Orden_Constitucional_y_ Legal_De_La_Rep%C3%BAblica_del_Gobierno_Socialista_representado_por_Salvador_ Allende.”> 45. A group of jurists who defended the military coup, led by Jaime Guzmán, made an appeal to the notion of original constituent power, to the theories of Carl Schmitt and Juan Donoso Cortés, and the doctrine of Spanish jurists such as Luis Sánchez Agesta or Luis Legaz Lacambra, in order to look for legitimacy and legal support for the military dictatorship (Cristi and Ruiz Tagle 2006, 128). 46. During the 1970s, and particularly in Central America, there appeared many other experiences that came close to socialism—being the examples of Nicaragua, El Salvador, and Guatemala the most relevant among them. In the three cases, the leftist groups tried to

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48.

49. 50.

51.

Notes advance their project through guerrilla groups, constituted by multi-classist and multiethnic groups, which incorporated militants coming from diverse ideologies (which mixed nationalists, anti-Americans, leftist-Marxists, defenders of the Theology of Liberation). Also, in the three cases we find a military leader that—like in Cuba—tried to mobilize the population, defying an established power that behaved in an authoritarian and exploitative manner (Angell 1994, 212). Among these movements, only one became triumphant, which was the Frente Sandinista de Liberación Nacional, in Nicaragua. The Frente managed to defeat the extremist authoritarian regime led by Dictator Anastasio Somoza. The Nicaraguan experience was not like the Cuban Revolution, in the sense that it did not appear as a phenomenon that could be exported beyond Central America (213). However, what happened in Nicaragua did have some impact in El Salvador, where the revolutionary movement almost managed to seize power. Nevertheless, in the end the revolutionary forces lead by the Frente Farabundo Martí para la Liberación Nacional (FMLN) could not defeat a dominant elite, which appeared to be stronger than the one that was in control of Nicaragua. According to the Cuban professor Hugo Azcuy, after the Cuban Revolution, “the law did not appear anymore as an interesting discipline—one that generated academic curiosity.” By contrast, the law “was only studied in order to criticize its classist roots” (Azcuy 2010, 291). Not surprisingly, in 1962 only sixty-three people graduated from the Law School, and simply none in 1965. After the Revolution “the slow and complicated legal procedures” recalled “the institutions and forms of the bourgeois society” rather than the procedures that were required for the new period of rapid changes and urgent needs to fulfill (Azcuy 2010, 290). Moreover, it was not only the case that the Cuban population began to develop an “antielectoral feeling” against the previous regime but also that it found unprecedented opportunities for political participation after the triumph of the Revolution (281). However, some years after having made this claim, the Cuban professor Azcuy would denounce a political system that he would find “paternalistic” and “vertical” (ibid., 308). Marx’s critique of Bolívar generated intense polemics among theorists from the Left in Latin America. For them, the critique was a product of Marx’s political prejudices, his resistance to accept the “autonomy of politics,” and his lack of openness regarding new, local, or regional ways of doing politics (see Aricó 2010). In the context of our previous analysis, however, we subscribe Marx’s objections to Bonapartism, in general, and to Bolívar, in particular: the left should repudiate rather than celebrate the concentration of powers as a means for promoting social change. The goal of the democratization of powers should not (could not) be achieved through the shortcut of the concentration of powers. This was, for example, the view famously held by the Brazilian Celso Furtado, in his analysis of Brazil’s 1946 Constitution. For him, the country was in the hands of local oligarchies, which were also in control of Congress. The president, then, had to be allowed to gain sufficient powers to overcome those oligarchies, thus ensuring the country’s main objective, namely economic development, something that, he believed, the Constitution was not allowing (Furtado 1965; Limongi 2008). Thanks to Cicero Araujo for raising this point.

Chapter 7 1. Another very difficult case of “constitutional grafting” relates to the indigenous question, which we shall examine later. 2. See Lamprea (2010, 16) referring to conflict between the Supreme Court and the Constitutional Court as a “train-wreck” or “Choque de trenes”. 3. Thanks to Mauricio García Villegas for raising this point. See also García Villegas (2012). 4. Personal conversations with Carlos Santiago Nino, Director, Center for International Studies, Buenos Aires, Argentina, during years. The comments throughout this section are based primarily on these dialogues. Also, thanks Gustavo Maurino for some conversations on the topic.

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5. According to Carlos Nino: “In studying both existing constitutions and the ideal constitution, it becomes apparent that there is a possibility that substantive claims which are a priori valid may conflict with the results of legitimate procedures. In other words, rights recognized as belonging to the liberal dimension of constitutionalism may conflict with the results of democratic procedures that constitute the participatory dimension of constitutionalism.” (Nino 1997, 12). 6. As Jeremy Waldron maintained in a recent work about social rights, the introduction of these social commitments in the form of rights is a quite obvious way “to skew the question, decisively, toward the judiciary rather than the legislative or executive branches” (Waldron 2010a, 28). Normally, the “administration or application” of rights is delegated to the judicial branch. 7. Notably, Nino also suggested a drastic undermining of the presidential powers, in order to make possible the introduction of other reforms, aimed at expanding popular participation in politics (Nino 1993). 8. According to Nino, because “the democratic process cannot be the last resort for the protection of individual rights, since the main function of rights is to contain majoritarian decisions,” mechanisms such as judicial review exist “outside the political process to protect those rights” (Nino 1996, 196). Also, M. Ballard explains that Brazil’s 1988 Constitution “grants novel individual and social rights and strengthens the judiciary’s capacity to protect these rights,” but that this, combined with other factors, allows “socially oriented judges to impair the government’s efforts to embed Brazil more firmly in the global economy” (Ballard 1999, 234). 9. For Etchichury, Argentinian “judges can . . . exercise their constitutional review powers to enforce social right.” He provides, as an example, a 2000 decision upholding a lower court order that the national government “grant timely and appropriate medical treatment” Etchichury (2006, 110–11). 10. In any case, it must be said that the final profile of the Constitution was not only the result of the government’s initiatives (say, its decision to keep the concentration of powers) but also (to a good deal) the consequence of the negotiations that took place between the government and the (“Media Luna”) opposition (this is to say, the opposition groups coming from the richest areas of the country, which threatened to force the country’s secession). Thanks to Salvador Schavelzon for a conversation upon this point. 11. Levitsky and Murillo (2012) maintain that “the coexistence of socioeconomic inequality and political equality often creates a disjuncture between formal rule-writers elected and politically equal citizens and powerful socioeconomic actors who are not necessarily represented in the formal political system.” This disjuncture helps to explain, at least in part, why we tend to find Constitutions with a progressive language that is not usually reflected in actual constitutional practice. In addition, their view makes more explicit what we are here objecting to when we object to the idea of using the “liberal language of rights.” 12. See, for example, Tixeira (1991); Doria (1953). 13. The discussion in this respect has been very intense. See, for example, the valuable work on social rights by Abramovich and Courtis (2002); Balkin (1997); Baxi (1980); Bhagwati (1985); Bork (1979); Courtis (2006); Craven (1995); Eide, Krause, and Rosas (1994); Epp (1998); Forbath (2001); Gauri and Brinks (2009, 2012); Henkin (1990); Holmes and Sunstein (1999); Hunt (1996); King (2012); Langa (1997); Michelman (1969, 1972, 1973); Sager (1994); Sajo (1995); Scottt and Macklem (1992); Schwartz (1995); Tushnet (1974, 2002). For the Mexican case, referring to the gradual “activation” of the “latent” clauses of the 1917 Mexican Constitution, see Awapara 2010, who also uses a terminology that is akin to the one that we are here using. 14. See, for example, Deutsche Welle http://www.dw-world.de/dw/article/0,,4654145,00.html. Discussing the same objection, Lawrence Whitehead quotes Jamer Bryce “lapidary phrase,” where he maintained that “the constitutions did not suit the facts, and the facts had to prevail against the constitutions, sometimes against their letter, usually against their spirit” (Whitehead 2012, 124).

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15. Here, we take this statement as a fact characterizing Latin America’s constitutional life. See, for instance, Gargarella et al. (2006); and also Abramovich and Courtis (2002); or Courtis (2006). 16. See, for example, Dulitzky (1988). 17. For Courtis, the “widespread ratification of international human rights treaties” is one of two important developments in the field of human rights enforcement (Courtis 2006, 169). 18. For Javier Couso, “progressive Latin American jurists turned a critical eye, both on themselves as a disciplinary community, as well as on the other central actors in the legal drama” (Couso 2006, 61). 19. José Reinaldo de Lima Lopes, for example, describes the use of the class action suit in Brazil against mostly private providers of health and education services (Lima Lopes 2006, 185). 20. Judge Posner has called the US Constitution “a charter of negative rather than positive liberties. . . . The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.” Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (emphasis added). See also Bork (1979); Edelman (1987). 21. According to Kim Lane Sheppele, “Aspirational Constitutionalism refers to a process of constitution building (a process that includes both drafting and interpretation by multiple actors) in which constitutional decision makers understand what they are doing in terms of goals that they want to achieve and aspirations that they want to live up to. It is a fundamentally forward-looking viewpoint.” (Lane Sheppele 2003, 299).

Chapter 8 1. The new proposed Constitution was then subject to popular contestation through a plebiscite, which was celebrated in conditions of restricted-political participation and severely undermined the legitimacy of the Constitution. 2. Large meetings were subject to previous governmental authorization; political parties were restricted (only the official party, namely the National Renovating Alliance [Alianza para la Renovación Nacional, ARENA], and an opposition party, the Brazilian Democratic Movement, (Movimento Democratico Brasileiro, MDB), were allowed to function as such); direct suffrage was directly suppressed in the main cities for security reasons. In 1969, a provisional military junta introduced a profound amendment of the Constitution, which strengthened the repressive character of the previous document. For example, it introduced the institution of the death penalty, suppressed habeas corpus, created new military courts, and opened the door to new repressive laws, such as the Law of National Security, or another that came to regulate the press. 3. It must be remembered that a national plebiscite, in 1993, would reaffirm the presidential character of the system (over the parliamentary or monarchical alternatives). 4. In any case, for many, the new 1988 Constitution appeared as the “ground zero” of a “new legal history” (Barroso and Barcellos 2005, 273). The 1998 document was thus deemed an “unprecedented catalogue of fundamental rights,” particularly taking into account the recent legal history of the country, which was characterized by the “arbitrariness and violence exercised by the State” and a “long history” of inequalities (Vilhena Vieira 2006, 11; Peixinho et al. 2006). 5. This phenomenon should be studied together with other related (if not directly derived) political pathologies, such as the development of undemocratic regimes at the sub-national level. See, for example, Gervasoni (2010); Giraudy (2010). See also Calvo and Abal Medina (2001). 6. The extended character of the violations of human rights was related to many different factors, but one particularly important among them was the existence of the so-called National Security Doctrine. The doctrine had emerged during the time of the Cold War, by the initiative of the United States (the United States actually trained the main military leaders of the

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region in the School of the Americas—many of these officers would then occupy positions of powers in the coming military governments). According to the doctrine, the Army forces had to change the direction of their efforts: they had to begin focusing their work on issues of national security, trying to prevent the growing and expansion of leftist ideologies. One significant consequence of this influence was a new disposition, common in many different new military governments, to use the coercive powers of the State against their own population, in the name of a war against communism. This was the case, for example, of Videla’s government in Argentina, Banzer in Bolivia, Pinochet in Chile, Turbay Ayala in Colombia, Somoza in Nicaragua, Stroessner in Paraguay, or Bordaberry in Uruguay. 7. Now, if the objections to the hyper-presidentialist system began to lose force, this was also due to other, theoretical reasons. In the first place, we could mention the diminished faith in the theoretical agreements of the 1980s. In effect, numerous academics began to challenge what had seemed to be “revealed truths” of the anti-presidentialist movement. In particular, many of them challenged the alleged link between hyper-presidentialism and democratic instability. It was not anymore obvious, as it seemed to be at one point, that both terms were correlative (the discussion can be found, for example, in Cheibub and Limongi 2002; Eaton 2000; Linz and Valenzuela 1994; Nino1987, 1992a; O’ Donnell 1994; Przeworski, Alvarez, et al. 2000; Riggs 1987; Samuels and Eaton 2002; Shugart and Carey 1992; Shugart and Mainwaring 1997; Unger 1987). Some of these new studies maintained that the then common assertions that presidentialism tended to suffer cyclical crisis that provoked the breakdown of democracy were not empirically sound (i.e., Shugart and Carey 1992); or that the real causes of the instability of presidentialism resided in some other place (Shugart and Mainwaring 1997; discussing some of this literature see, e.g., Alegre 2009). 8. A first look at the prevalent organization of these Constitutions’ bill of rights allows us to recognize the dimension of this phenomenon. According to a recent study by Gargarella, Filippini, and Cavana (2011), present Latin American Constitutions guarantee the protection of: (1) The environment (Argentina art. 41; Bolivia art. 33; Brazil art. 22; Chile art. 19 inc. 8; Colombia art. 79; Costa Rica art. 50; Ecuador art. 14; El Salvador art. 117; Guatemala art. 97; Honduras art. 143; Mexico art. 4; Nicaragua art. 60; Panama art. 118; Paraguay art. 7; Peru art. 2; Dominican Republic art. 66; Uruguay art. 47; Venezuela art. 117). (2) Culture (Argentina art.75 inc. 22; Bolivia arts. 21, 30; Brazil art. 23; Chile art. 19 inc. 10; Colombia art. 70; Costa Rica art. 77 and following; Ecuador art. 21; El Salvador art. 53; Guatemala art. 57; Honduras art. 151; Mexico art. 4; Nicaragua art. 58; Panama art. 80; Paraguay art. 73; Peru art. 2; Dominican Republic art. 64; Venezuela art. 101). (3) Health (Argentina art. 75 inc. 22; Bolivia art. 18; Brazil art. 6; Chile art. 19 inc. 10; Colombia art. 49; Costa Rica art. 46; Ecuador art. 32; El Salvador art. 1; Guatemala art. 93; Honduras art. 145; Mexico art. 4; Nicaragua art. 59; Panama art. 109; Paraguay art. 68; Peru art. 7; Dominican Republic art. 61; Venezuela art. 83). (4) Education (Argentina art. 75 inc. 22; Bolivia art. 17; Brazil art. 6; Chile art. 19 inc. 9; Colombia art. 67; Costa Rica art. 77 and following; Ecuador art. 27; El Salvador art. 53; Guatemala art. 71; Honduras art. 153; Mexico art. 3; Nicaragua art. 58; Panama art. 91; Paraguay art. 73; Peru art. 13; Dominican Republic art. 63; Uruguay arts.70, 71; Venezuela art. 102). (5) Food (Argentina art.75 inc. 22; Bolivia art. 16; Brazil art. 6; Colombia art. 44; Costa Rica art. 82; Ecuador art. 13; Guatemala art. 99; Honduras art. 123; Mexico art. 4; Nicaragua art. 63; Panama art. 56; Paraguay art. 57; Dominican Republic art. 54; Uruguay art. 56; Venezuela art. 305). (6) Housing (Argentina art. 75 inc. 22; Bolivia art. 19; Brazil art. 6; Colombia art. 51; Costa Rica art. 65; Ecuador art. 30; El Salvador art. 119; Guatemala art. 118; Honduras art. 178; Mexico art. 4; Nicaragua art. 64; Panama art. 117; Paraguay art. 100; Dominican Republic art. 59; Uruguay art. 45; Venezuela art. 82). (7) Work (Argentina art. 14; Bolivia art. 46; Brazil art. 6; Chile art. 19 inc. 16; Colombia art. 25; Costa Rica art. 56; Ecuador art. 33; El Salvador art. 2; Guatemala art. 101; Honduras

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art. 127; Mexico art. 123; Nicaragua art. 80; Panama art. 64; Paraguay art. 86; Peru art. 22; Dominican Republic art. 62; Uruguay art. 7; Venezuela art. 87). (8) Clothing (Argentina 75 inc. 22; Brazil art. 7; Costa Rica art. 82; Ecuador art. 66). In addition, these new Constitutions tend to (9) Promote gender equality (Argentina art. 37; Bolivia arts. 11, 15, 26; Colombia art. 40; Costa Rica art. 95; Ecuador art. 65; Nicaragua art. 48; Paraguay art. 48; Dominican Republic art. 39; Venezuela art. 88). (10) Affirm the existence of a pluri- or multicultural state or national identity (Bolivia, Colombia, Ecuador, Paraguay, art. 1 in all cases; Mexico art. 2; Nicaragua art. 5; Peru art. 2 inc. 19; Venezuela art. 6). (11) Recognize the right to affirmative action (Argentina art. 75 inc. 23; Bolivia art. 71; Colombia art. 13; Ecuador art. 65; Mexico art. 2 inc. b; Nicaragua arts. 48, 56, 62; Paraguay art. 46; Dominican Republic art. 39, 58; Venezuela art. 21). (12) Include mechanisms of participatory democracy (Argentina art. 39; Bolivia art. 162; Brazil art. 14; Colombia art. 155; Costa Rica art. 123; Ecuador art. 103; Guatemala art. 277; Honduras art. 5; Nicaragua art. 140; Panama arts. 238, 314; Paraguay art. 123; Peru art. 107; Dominican Republic art. 97; Uruguay art. 79 ; Venezuela art. 70). (13) Create the institution of an open or popular Town Council (Bolivia art. 11; Colombia art. 103; Ecuador art. 100; Panama art. 151; Dominican Republic art. 30; Venezuela art. 70). (14) Accept forms of popular controls upon public policies (Bolivia art. 241; Brazil arts.10, 194, 198, 204; Colombia arts. 103, 270; Ecuador art. 100; Guatemala art. 98; Mexico art. 26; Nicaragua arts. 138, 196; Panama art. 233). (15) Create the institution of referendum or popular consultation (Argentina art. 40; Bolivia art. 11; Brazil art. 14; Colombia arts. 103, 374; Costa Rica art. 105; Ecuador art. 104; Guatemala art. 173; Honduras art. 5; Mexico art. 26; Nicaragua art. 2 ; Panama arts. 238, 313, 325; Paraguay arts. 121,122; Peru arts. 32, 176; Dominican Republic arts. 203, 210, 272; Uruguay arts. 79, 331; Venezuela arts. 71, 73). (16) Include the right to recall (Bolivia art. 240; Colombia art. 103; Ecuador art. 105; Panama art. 151; Dominican Republic art. 30; Venezuela art. 72), and (17) Give constitutional or supra legal status to international human rights treaties (Argentina art. 75 inc. 22; Bolivia art. 256; Brazil art. 5; Colombia art. 93; Costa Rica art. 7; Ecuador art. 417; El Salvador art. 144; Guatemala art. 46; Honduras art. 18; Paraguay art. 141; Peru art. 56; Dominican Republic art. 74; Venezuela art. 23). 9. There would be 192 in the history of the region, and 102 in the twentieth century. 10. According to his analysis, restrictive cycles concerning presidential powers (like the one that began in 1978) are followed by others of the opposite direction, where reelection is facilitated (like in the cycle that began in 1993). 11. According to Negretto, these rules that concern presidential reelection and the terms of its mandate have been the most unstable in the history of the region (ibid.). In another recent article, he also admits that there have been other reforms, which tend to be in tension with the former ones. 12. Of course, we have to recognize that, on occasions, self-interested and short-run reforms may include other, more interesting changes, in order to make them more generally acceptable (Uprimny 2011). 13. In a more recent work, Cheibub et al. (2012) have emphasized that “the concentration of law-making authority in the executive” appears as “a trend that has occurred over time in many political systems, but one that . . . has been especially pronounced in Latin America” (which implies, in their opinion, “a major departure from the Montesquiean conception of separated powers”). See Cheibub & al (2012, 94). 14. And this image seems consistent with another, which refers not to the goals and commitments but to the way in which the actual Constitutions were created. The image is that of two groups specialized in and working at the same time in different sections of the document. One group working in the area of rights, and the other in the organization of power,

Notes

15.

16.

17.

18.

19. 20.

21.

22.

23.

24. 25.

26.

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but without entering in dialogue between them (which seems to be in line with an impressionistic approach to the reforms, which suggests that progressive jurists worked in the first mentioned area, and other jurists, more closely aligned with and obedient to those in power, worked in the organization of the institutional machinery). As the noted Peruvian radical once said, in his critique to liberalism: “It is a very poor approach to liberalism the one that wants to separate the social and religious question from the political affairs . . . one cannot simply distinguish the social from the religious, political and moral spheres” (Sobrevilla 2009, 161–62). Also, see Molina (1987, 124). In the end, what appears here is the old topic of the existing tensions between democracy and rights. Of course, we would like these tensions to disappear, but the fact is that they are and will always be with us. Negretto wants to explain the character of these reforms by making reference to the “double nature” of the Constitutions. On the one hand, they work as “structures of government” and on the other as “structures of power.” In other words, Constitutions would always combine both concerns about the quality and efficiency of the democratic regime; and the concerns of the “different political parties regarding the impact that different Constitutional choices would have with respect to the individual and collective interests of those who design them” (Negretto 2011b, 1804). The author presents this explanation as a “two-level” one, which would be different from alternative and more traditional readings about actions and decisions of the kind (i.e., economic explanations, based on the idea that constitutional design pursues cooperative results; and also explanations based on distributive theories, favored by political scientists, which study these changes in relation to their impact for winning elections and influence (1792). As another analyst put it, these new Constitutions would have arrived to break with the “elitist and exclusionary regimes, coming from the past.” The evidence would be the emergence of “inclusive constituent processes” and the incorporation of new mechanisms capable of correcting the worst evils of representative democracy, such as “the right to recall or other forms of participatory and communitarian democracy” (Pisarello 2011, 193). In a similar sense, see Criado 2011; de Cabo 2011; Palacios Romero 2011). Of course, these claims require a more detailed empirical analysis. In any case, we need to provide a more careful study concerning the type of rights that were created in each opportunity (one could imagine, for example, that post-authoritarian regimes will be mainly concerned with the consecration and protection of basic human rights such as physical integrity). Madison’s “iron law” seems to find clear support in common sense, in our knowledge about history, and also in basic assumptions about political psychology—the materials that Madison usually employed in defense of his views. And here we do not mention other problems related, for example, to the ways in which to aggregate those votes, or the way to read and interpret the meaning of those accumulated votes. What we here defend is, instead, a different alternative, which is finally based on the old radical constitutional tradition and finally on a view of expanded democracy. We shall come back to this point later. Reflections on these internal contradictions have been benefited by a conversation with Catalina Botero. Someone could say that those tensions could and should be solved with the help of a better interpretative theory. However, we need to acknowledge, first, that any Constitution is open to substantially different, and at the same time reasonable, interpretations (Waldron 1999); and second, that there are too many and contradictory interpretative theories (Sunstein and Vermeule 2003). The conclusion is that these Constitutions in internal tension tend to both nourish and promote reasonably and at the same time opposite readings of the Constitution. In effect, while the democratic commitment pushes for solving all the relevant public problems through majority rule, the commitment with rights insists on the idea that

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27.

28.

29.

30. 31. 32.

33.

Notes many of those basic public problems (as far as they touch individual rights, as it tends to be the case) should not be open to majority rule. More strongly, the idea is that rights should be considered “trumps” against the demands of occasional majorities (Dworkin 1977). We should recall, at this point, Carl Schmitt’s reflections about the Weimar Constitution, the liberal and democratic principles that it contained, and how to interpret them (see, e.g., Schmitt 1884, 2008). According to the analyst López Restrepo, for example, “the diverse interests that were represented in the Constitutional Assembly produced a document that was much more democratic than the previous Constitution. However, and concerning its economic aspects, the Constitution was ambiguous . . . it came to emphasize the responsibilities and capacities of the State, but at the same time to promote the participation of the private sector in areas that were previously forbidden to it, like the provision of public services.” The Constitution thus created a “social State,” promoted “economic interventionism,” gave constitutional status to different “social and economic rights” that had never achieved that status before, but at the same time it favored the participation of the private sector in new areas, promoted the “independency of the Central Bank,” and rejected all kinds of “monopolies,” according to the preferences of the “neo-liberal sectors” (López Restrepo 1994, 29). According to Rossi and Filippini, who focused their attention about social rights and international law, the changes undergone by tribunals includes activities such as the following: they have (1) applied specific norms contained in human rights treaties; (2) used international norms as guidelines for interpreting internal law; (3) used international norms to complement internal law; (4) considered the interpretations of international organisms for the protection of human rights in order to define the extent of state obligations and the content of rights recognized in treaties and declarations; (5) considered concepts and interpretations made by international organs to molding the constitutional hermeneutic; and (6) applied decisions by international judicial or quasi-judicial organisms in deciding individual cases (Rossi and Filippini 2010, 195–96). “Simón, Julio y otros,” June, 14, 2005. Corte Interamericana de Derechos Humanos http://www.corteidh.or.cr/docs/casos/articulos/seriec_221_Esp1.pdf. One could, for example, support annulling the auto-amnesty law dictated by the Argentine military before stepping down (using a critique similar to the one proposed by the philosopher Carlos Nino at the time, and later adopted in the actions of the Argentine Congress, when they declared the nullity of this law) or the invalidity of the auto-amnesty proposed by the Peruvian president Alberto Fujimori, after illegitimately upholding his position of power (an auto-amnesty objected to by the Inter-American Court in the aforementioned case Barrios Altos). Some authors have said that critiques like those presented in the preceding paragraphs are irrelevant; the only thing that matters is that the process of decision or judgment be beyond reproach (Luban 2004). Nevertheless, even when faced with impeccable, “champagne-quality,” procedure, the more important question, the one about the authority of the law, is still very much in play in these cases: “the procedure of the trial has been perfect . . . but who are you to judge me?” Duff (2008). As I see it, the international community in general, and the Latin American juridical elite in particular, should make efforts to refrain from falling into new forms of unjustifiable extreme positivism or “ideological positivism” like those that existed in the worst periods of the regional political life. Subscribing to a dogmatic reading of the law (such as the former positivism or ideological neo-positivism) is always objectionable.

Chapter 9 1. The great “drama” that seemed to mark the story of the new Constitution, that of 2008, was another, related instead to one of the most important “institutional tragedies” of the previous years, namely, instances of presidential impeachment that went “against the rules” by implementing questionable impeachment trials, contested on the grounds of both form and

Notes

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3.

4.

5.

6.

7.

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substance. Hence, it can be said that “in many ways, the 2007‒2008 convention focused on the idea of avoiding irregular impeachment trials by means of the a declaration of cessation of the president of the Republic, an event which took place on three occasions since 1997” (this explains one the principal innovations contributed by the 2008 Constitution: the institution of “muerte cruzada” between the executive and legislative powers, “sudden death,” in which the Executive has the power to dissolve the Legislature and vice-versa). And also, that “the constitution greatly strengthens the functions of presidentialism . . . the planning of development, a central part of defining public policy . . . appears to be . . . the prerogative and exclusive responsibility of the Executive, without any participation of the political representation, and having limited functions of societal participation in defining priorities and policy orientations . . . society reduces its participation to the limited function of observation and control” (Echeverría 2009, 16; Ávila Santamaría 2009; Gargarella 2008). Nevertheless, facing these possibilities, it bears saying in the first place, that the sudden death escape clause can only be used once; it is a dramatic extreme, requiring an enormous percentage of votes (two-thirds of the Assembly members), and it involves the “death” of the posts of its own promoters. A personal anecdote may serve to support these intuitions. While the constitutional debates were underway in Montecristi, Ecuador, I was invited to lecture about the citizens’ rights of participation in light of the many reforms that had been put forward during the convention. Examining the framework of the proposed reforms, I argued that the valuable concern for expanding political and participatory rights for the citizens should lead the framers to act in a way different from what they had done; that is, they should have first reformed the organic part of the Constitution, in which the bases of powers were established and which reaffirmed the traditional hyper-presidential character of the Ecuadorian political system. The constituents with whom I spoke, nonetheless, seemed divided between two responses: either that these reforms were not possible or that they would not be necessary for concretizing the types of initiatives that had been proposed. Unfortunately, according to my knowledge, time did not prove them right. See, for example, in particular, the presidential veto of the Organic Law of Citizen Participation. Asamblea Nacional del Gobierno de Ecuador (http://www.asambleanacional.gov.ec/201003252802/noticias/boletines/pleno-se-allano-al-veto-presidencial-aseis-articulos-y-la-disposicion-transitoria-de-la-ley-de-participacion-ciudadana.html). For Acosta, the most worrisome conflict of the post-constitutional phase occurs, exactly, as he warns between “what was written in the new Constitution of Montecristi, with great popular participation, and what Correa’s government is doing, which was also supported by the Constitution.” In this sense, no issue appears more serious to him than the fact that “the conditions for a broad and active participation by the social movements” were not created (http://crucesinbarreras.blogspot.com/2011/01/entrevista-ecuatoriano-alberto-acost a.html; or also http://www.rebelion.org/noticia.php?id=91644). Acosta refers, especially, to some of the principal law projects discussed since then that had scant popular participation; these included “the mining law . . . the food sovereignty law” or “the law project on water.” In particular, Acosta seems surprised that “those who drafted the new constitution don’t take what they themselves ratified into account, let alone the government,” especially in areas directly related to popular participation (such as, e.g., the election of members to the Commission of Citizen Participation and Social Control, which, according to Acosta, was very irregularly managed) (http://www.ciudadaniainformada.com/noticias-politica-ecuador0/ noticias-politica-ecuador/browse/66/ir_a/politica/article//alberto-acosta-convoca-alos-ciudadanos-a-hacer-que-se-respete-la-constitucion.html?tx_ttnews[calendarYear]=200 8&cHash=644813ba86). The process intended to make popular participation possible is complex. It deals with an intervention which is achieved based on the “function of transparency and social and electoral control” set out by the new Constitution. This “function of transparency and control” designates, by means of oversight committees, the members of the organisms of

246

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9.

10.

11. 12. 13. 14. 15. 16.

17.

18.

Notes control and those of the judicial function, which in turn, arranges the designation of judges. Question No. 4: Do you agree with substituting the current Plenary Council of the Judiciary with a Judiciary Council of Transition composed of three designated members, one by the Executive branch, one by the Legislative branch, and one by the department of Transparency and Social Control, so that during the unextendable term of 18 months, it will exercise the powers of the Judiciary Council and restructure the Judicial branch, amending the Constitution as established by annex 4? Annex 4 proposed by the Executive proposes a text that would replace article 20 of the transitional regimen, and which introduces the following into the Constitution. Art. 20—Dissolves the current Plenary Council of the Judiciary, and in its place, creates a Council of the Transitional Judiciary, formed by three designated delegates and their respective alternates: one for the president of the Republic, one for the National Assembly, and one for the department of Transparency and Social Control. All the delegates and their alternates will be subject to impeachment trial. The transitional Judiciary Council will have all the powers established by the Constitution, as well as those designated by the Organic Code of the Judicial branch and will exercise their functions over an unextendable period of 18 months. There were many occasions on which the implementation of participative measures stipulated in the Constitution was blocked by the government (see, for instance, the example of pre-legislative plebiscites required for laws that could impact the use of natural resources, or what was stipulated for the composition of members of the Judiciary Council, in the constitutional regimen of transition and later in practice) or the implementation was delayed, so that relevant areas of the Constitution that sought to facilitate popular participation remained untapped (see, for instance, the non-implementation at a local level of the “empty chair” mechanisms). Ávila also refers to two more general and important topics. On the one hand, he mentions that “direct democracy should never be used in order to restrict rights” (Ávila Santamaría 2011, 305); and, on the other hand, he lucidly affirms that “garantismo (the strict respect of basic and procedural rights) does not get along very well with presidentialism” (ibid.). In reference to those claims, however, one could mention that rights should not be assumed as self-defined or transparent with regard to their meaning and implications (in this sense, rights are not and should not be taken as independent from democracy, see Waldron 1999). Ávila also mentions that “presidentialism can be considered a legitimate system if and only if it contributed to the promotion and protection of rights” (ibid., 300). This claim, however, minimizes the problem at stake: the tension between rights and democracy is and will always be in place and tends to be always aggravated in systems of concentrated authority. Personal interview with Pedro Salazar, November 2012. The same point can be found in Salazar 2010. Organization of American States (OAS) http://www.oas.org/en/iachr/expression/ showarticle.asp?artID=800&lID=1. Knight Center, University of Texas http://knightcenter.utexas.edu/blog/ecuador-venezuela -propose-limiting-abilities-rapporteur-freedom-expression. Organization of American States (OAS) http://www.oas.org/en/iachr/media_center/ PReleases/2012/117.asp. I owe this objection to Pedro Salazar. According to an expert in indigenous law, Silvina Ramírez, the lack of respect toward the Acuerdos de San Andrés has marked, since then, the relationship between the State and the indigenous peoples, creating “more resistance and lack of confidence towards each measure of government” (Ramírez 2012). See also Sámano, Durand Alcántara, and Gómez González (2000). Obviously, this observation does not aim to suggest that these rights should not be included in the new Constitutions, but rather to highlight the superficial way in which many of these rights were incorporated into the old Constitutions. In the same way that the coming of the “social question” forced constitutional scholars to think more carefully about the relationship between law and social change, the coming of

Notes

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20.

21.

22.

23.

24. 25.

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the “indigenous question” force constitutional scholars to confront serious questions, concerning the basic foundations of the nation-state. It became necessary then to think about the possibility of making different peoples live together, when they did not share a common language, a common way of solving disputes, or a common culture. According to researcher Raquel Yrigoyen Fajardo, constitutional law has historically offered three main responses to the “indigenous question,” namely: (1) “assimilation or attempts to convert Indians to citizens . . . so as to prevent their violent uprising”; (2) “civilization and Christianization . . . of those deemed ‘savage,’ so as to favor the broadening of the agricultural frontiers”; and (3) “offensive or defensive wars against the Indian nations . . . in order to annex their territories to the State” (Yrigoyen Fajardo 2011, 126). Carlos Vilas, for example, refers to the “general deficit of Marxist and revolutionary thinking in this terrain,” which he found “even more acute in Latin America, in spite of the fact that is the continent with a larger indigenous community” (Vilas 1988, 51). In that way, he attempts to explain the difficulties shown by the Sandinista triumphant revolution, in the 1980s, to deal with the rights of the indigenous groups situated in the Atlantic coast of the country. For him, the revolution tended to dismiss the importance of those forms of social organization. All the problems belonging to those communities appeared, for the leaders of the revolution, as problems “subordinated to the general problem of economic backwardness” (Vilas 1988, 51; and also 1992). However, there was a first movement in that direction in the Guatemalan Constitution of 1985, which made reference to the rights that peoples and communities had to their cultural identity. Among other relevant constitutional provisions—provisions that had their fundamental predecessors in Convention 169 of the International Labour Organization 1989— some of the following can be cited: (1) the Constitutions of Argentina (art. 75.17), Bolivia (arts. 30–6 and 394 III), Ecuador (art. 57.4), Nicaragua (art. 5°), Panama (art. 123), Paraguay (art. 64), Peru (arts. 88 and 89), and Venezuela (art. 119), recognized the right of indigenous peoples to the property of the land that they had traditionally inhabited. Those of Bolivia (arts. 30.17 and 171.1), Brazil (art. 231.2), Mexico (art 2. A. VI), and Nicaragua (arts. 89 and 180), consecrated the rights of use and enjoyment of natural resources to the indigenous peoples; (2) those of Argentina (art. 75.17), Bolivia (arts. 30.16 and 402), Colombia (art. 330), and Ecuador (art. 57.6), affirmed their right to participate in the exploitation of specific natural resources; (3) finally, and maybe most interestingly for the purposes of our discussion, some Constitutions established the right of consultation regarding natural resources for the indigenous peoples. In the case of Bolivia, for nonrenewable natural resources (art. 30.15), in Brazil, for hydraulic and mining resources (art 231.3), in Ecuador, for natural, nonrenewable resources (art 57.7), and in Venezuela, for all the existing natural resources in native habitats (art. 120) (Aguilar et al. 2010). The idea that “nature” has rights (which appears in the Constitution of Ecuador) and the references to the right to buen vivir (both in the Constitutions of Ecuador and Bolivia) provoked widespread debates and also numerous criticisms. There are obviously many problems with the former idea, and some risks of perfectionism, associated with the latter. However, these clauses should be read in their best light, as attempts to set limits to the “unrestrained mercantilization of Nature” (Acosta 2009a, 22); affirm basic human values that go beyond cost-benefit approaches to economic development; and vindicate ancient aboriginal traditions (Melo 2009, 56). For this debate, see, in general, Acosta (2008); Acosta (2009a); Acosta and Martínez (2009); Andrade et al. (2009); Gudynas (2009); Melo (2009); Grijalva (2012). A critical approach to the topic—one that is particularly interested in radicalizing the “multicultural” aspects of the Constitution—may be found in the work of Julio Trujillo (2010). Bolivian law registered at least two important and relevant antecedents of constitutional change. The first one had to do with the reform of August 1994, which took place under the presidency of Gonzalo Sánchez de Lozada. Through that reform, Bolivia was recognized as a “multiethnic and pluricultural” State and the rights of indigenous groups were expanded. At the same time, the reform authorized one presidential reelection and included changes in the electoral system. It created some new institutions such as the Constitutional Court and

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27.

28. 29.

30.

31.

32. 33.

34.

Notes the Ombudsman. The second antecedent comes from 2004, during the presidency of Carlos Mesa. The reform followed the so-called “wars” of “gas” and “water,” which took place under the government of Sánchez de Lozada. The reform incorporated the possibility of calling a new Constitutional Assembly, according to the insistent demands of the indigenous movement. Other reforms, which took place in the year 2005 were directed at defining the modality of presidential succession, after President Carlos Mesa resigned from his position. This is not to deny the importance of interpreting the Constitution in another way, this is by recognizing the mutual dependence between the different spheres of the Constitution, as Judge Ciro Angarita once mentioned, in a decision of the Colombian Constitutional Court (T-406, 1992). Very possibly the same nonthreatening character of these changes is what explains the achievement of these reforms, but there is no pressing need to dwell on this question or resolve it. Aside from this, the initial low profile of the promoted reforms does not explain the endurance that these changes have demonstrated over time. Another significant case would be that of the electoral reform in Mexico, 2007‒8. See, for example, Córdova and Salazar (2008); Woldenberg et al. (2011). Wilson also points to the fact that most legislators passing the reform would not “suffer” the consequences of its implementation: according to statistics, “the average number of freshmen deputies was approximately 80 percent from the 1950s through the 1990s, increasing to 88 percent in the 2006‒2010 Congress” (Wilson, n. 8, p. 184). Article 333, for example, states that “The state, by means of the law, will prevent impediments to or restrictions of economic freedom and will curb or control any abuses caused by individuals or enterprises due to their dominant position in the national marketplace.” Although tutelage represents the most well-known and influential of the new procedures for grievance created by the reform, it is not the only one; it is accompanied by a popular claim, collective claim, and a noncompliance claim. These figures are taken from Cepeda (2004). A recent study confirms the remarkable and surprising social support gained by most of these popular expressions, which included the occupation of land and blockade of roads (Lodola 2011). At the same time, these facts help us reflect upon other legal topics and questions, of equal relevance. Among them: How should we conceive of the right of freedom of expression, given the fact that ample sectors of society seem to lack political “voice” for communicating their demands or for engaging in a dialogue with their representatives? Is it reasonable to maintain, still, that the only way of violating expressive rights is through actions, such as censorship? And how should we evaluate the expressive content of nonverbal discourses (i.e., throwing a stone to a political representative; blocking the roads)? Should those acts deserve protection, as a consequence of their illocutionary aspects? And what forums should be considered as “public forums,” which deserve special protection? Only streets and parks, as the traditional doctrine maintains, or also other spaces, perhaps in private hands, but that presently can replace the old, traditional public forums—such as a shopping center or a train station?

Chapter 10 1. One can think, for example, about the brief experiences of Rivadavia’s government, in Argentina, before the ascendance of General Rosas, who would stay in power during decades; or about the fragility of Venezuelan liberalism, in contrast with the long-lasting government of General Páez; or about the exceptional interregnum of liberalism, in Peru, in the midst of militarism and authoritarianism; or about the long Santanista regime, in Mexico, in comparison with the weaknesses of liberalism. 2. The majoritarian option seemed to imply irreparable costs—particularly with regard to private property. In addition, the advantages promised by an alliance with majoritarian groups seemed too volatile. In the end, liberals assumed, the support of the masses could endure

Notes

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4.

5.

6.

7. 8.

9.

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some months, even a few years, but that support could also disappear immediately with the arrival of the first winds of political change. The problems affecting the original institutional design were numerous, also including some awkward assumptions concerning human motivations (which were basically linked with passions and self-interest); or a problematic understanding about the system’s dynamic (James Madison summarized this view in the idea of counteracting “ambition with ambition,” which would end up promoting political confrontation, stalemate, or agreements within the dominant elite). Ultimately, the moral project of the Constitution does not only become reflected in what it says (directly or indirectly) in its clauses about “religion,” or “good behavior” (which are the typical and more obvious moral clauses of the Constitution). The Constitution’s moral project also appears in the type of citizen that the Constitution fosters or not, through its basic rules, the social relationships that it promotes, and the way in which it conceives of the links between persons (Nedelsky 1994, 275). This is also one of the conclusions reached by R. Barragán, reviewing more than a century of constitutional reforms in Bolivia. For her, basically all the conventions that were called between 1825 and 1971 (the period covered by her study) appeared “in critical moments, in terms of political crisis and internal fragmentation” (Barragán 2006, 69). For example, she added, “The Congress of 1839 appeared after the failure of the Peru-Bolivian Confederation . . . that implied confrontations with Peru, Argentina and Chile”; or the one that emerged “after the presidential period of Melgarejo and his measures against indigenous communities”; or the one that was celebrated in 1899, which came after the “federal Revolution and a civil war” (69–70). In the first case, some of those initiatives found translation in constitutional texts that somehow limited the powers of the Executive power (i.e., Uruguay 1942, Guatemala 1945). In the second case, however, the new Constitutions did not tend to reflect those initiatives, particularly as a consequence of economic crises that moved different constitutional thinkers to defend, once again, the creation of a strong Executive authority. By stating this, we are not intending to object to the importation of foreign examples. Rather, as we said, there are no “uncontaminated,” purely local institutional initiatives. In carrying out this process of change, it is thus important that constitutional activists learn to put aside much of what has been done by legal reformers in recent years. Just to recall a crucial example, within the Latin American history of social rights, think about the passage from the Ayala Convention, in Mexico, to the Querétaro Convention. In the first case, social reformers advanced radical claims for expropriation, nationalization, and agrarian reform. In Querétaro, those extreme claims were translated into the language of social rights. In this way, radicals transformed a dispute that was primarily political and social, in a specific language, the language of rights, which no longer made a call to political confrontations, but rather to judicial intervention. That resistance is what we find, for instance, in a Zapatista Manifesto “To the Mexican People” (which was published in 1914, shortly before the enactment of the Mexican Social Constitution), when the leaders of the peasants’ movement stated that the peasantry had not engaged in a revolt “simply in order to conquest the illusory political rights that are incapable of feeding the people, but rather to obtain a piece of land, which will ensure it food and freedom” (Gilly 1994, 156). Instead of pushing for the political revitalization of society, radicals concentrated their energies into legal-types of disputes, which in the end were channeled into the tribunals. Through the first change—the one that took them to defend the constitutionalization of social rights—these critics modified their original views in ways that approached the liberal constitutional project. Meanwhile, through the second transformation—the one that took them to abandon their claims for the atomization of power—they adopted a posture that was typical of conservatism. In addition, see Levitsky and Murillo (2012) arguing that reforms that are a result of more consultation and debate tend to be more stable and politically sustainable.

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BIBLIOGRAPHY

Aboy Carlés, G. (2002). “Repensando el populismo.” Revista Política y Gestión, n. 5, Buenos Aires. Aboy Carlés, G. (2005). “Populismo y democracia en la Argentina contemporánea: Entre el hegemonismo y la refundación.” Estudios Sociales, Revista universitaria semestral, año XV, n. 27, primer semestre. Aboy Carlés, G. (2010). “Populismo, regeneracionismo y democracia” Postdata 15 (1): 1–15, Buenos Aires. Aboy Carlés, G., et al. (2005). “Debate sobre el populismo.” Jornada “La política, qué problema,” 13 octubre 2005, Buenos Aires: Instituto de Desarrollo Humano, Universidad General Sarmiento. Abramovich, V., and Courtis, C. (2002). Los derechos sociales como derechos exigibles. Barcelona: Trotta. Abregú, M., and Courtis, C., comp. (1998). La aplicación de los tratados internacionales sobre derechos humanos por los tribunales locales. Buenos Aires: Del Puerto-PNUD. Ackerman, B. (1984). “Storrs Lectures: Discovering the Constitution.” Yale Law Journal 93: 1013–72. Ackerman, B. (2000). “The New Separation of Powers.” Harvard Law Review 113: 634–42. Ackerman, B. (2010). The Decline and Fall of the American Republic. Cambridge, MA: Harvard University Press. Acosta, A. (2008). “El Buen Vivir: Una oportunidad para construir.” Ecuador debate, 75, Quito, 33–48. Acosta, A. (2009a). “Los grandes cambios requieren de esfuerzos audaces,” in A. Acosta and E. Martínez, Derechos de la naturaleza: El futuro es ahora. Quito: Ediciones Abya-Yala. Acosta A. (2009b). “La participación se conquista con la lucha, si es preciso en las calles.” http:// www.rebelion.org/noticia.php?id=91644. Acosta, A. (2011). http://crucesinbarreras.blogspot.com/2011/01/entrevista-ecuatoriano-albertoacosta.html. Acosta, A., and Martínez, E. (2009). Derechos de la naturaleza: El futuro es ahora. Quito: Ediciones Abya-Yala. Acuña, C., and Smulovitz, C. (1996). “Adjusting the Armed Forces to Democracy: Successes, Failures and Ambiguities in the Southern Cone,” in E. Jelin and E. Herschberg, Constructing Democracy: Human Rights, Citizenship and Society in Latin America. Boulder, CO: Palgrave. Aguilar Andrade, J. P. (2009). “La cuarta función del Estado: Análisis de una ficción,” in S. Andrade et al., eds., La nueva Constitución del Ecuador. Quito: Universidad Andina Simón Bolívar. Aguilar, G., LaFosse, S., Rojas, H., and Steward, R. (2010). “Análisis Comparado del Reconocimiento Constitucional de los Pueblos Indígenas en América Latina.” SSRC, Conflict Prevention and Peace Forum. Aguilar Rivera, J. A. (2000). En pos de la quimera: Reflexiones sobre el experimento constitucional atlántico. México: Fondo de Cultura Económica. Aguilar Rivera, J. A. (2008). “Alamán en el período de Bustamante,” in J. A. Rivera, ed., Lucas Alamán, Examen Imparcial de la Administración de Bustamante. México: Conaculta. Aguirre, I. (1944). Rafael Núñez. Bogotá: Librería Siglo XXI.

251

252

Bibliography

Alamán, L. (1997). Los imprescindibles. México: Mazatlán. Alamán, L. (2008). Lucas Alamán, Examen Imparcial de la Administración de Bustamante, ed. J. A. Aguilar Rivera. México: Conaculta. Albarracín Sánchez, W. 2011. “Nuevos magistrados, nueva justicia?” Nueva Crónica y Buen Gobierno, n. 85 (May), 8. Alberdi, J. B. (1886). Obras completas de Juan Bautista Alberdi. Buenos Aires: Imprenta La Tribuna Nacional. Alberdi, J. B. (1920). Obras Selectas, ed. Joaquín V. González. Buenos Aires: La Facultad. Alberdi, J. B. (1929). Estudios sobre la Constitución Argentina. Buenos Aires: El Ateneo. Alberdi, J. B. (1981). Bases y puntos de partida para la organización política de la República Argentina. Buenos Aires: Plus Ultra. Alegre, M. (2009). “Democracy without Presidents.” http://www.law.yale.edu/documents/pdf/ Democracy_without_Presidents.pdf. Alonso, P. (2006). Between Revolution and the Ballot Box: The Origins of the Argentine Radical Party in the 1890s. Cambridge: Cambridge University Press. Alvarez Tabio, F. (1985). Comentarios a la Constitución Socialista. La Habana: Editorial de las Ciencias Sociales. Andrade, S., Grijalva, A., and Storini, C., eds. (2009). La nueva Constitución del Ecuador. Quito: Universidad Andina Simón Bolívar. Angell, A. (1991). “Chile since 1958,” in L. Bethell, ed., The Cambridge History of Latin America, 8:311–82. Cambridge: Cambridge University Press. Angell, A. (1994). “The Left in Latin America since c. 1920,” in L. Bethell, ed., The Cambridge History of Latin America, 6/ii: 163–233. Cambridge: Cambridge University Press. Antecedentes de la Constitución de Colombia de 1886 (1983). Complemento a la Historia Extensa de Colombia, vol. VIII. Bogotá: Plaza y Janés. Antezana, E. (2003). Práctica y teoría de la asamblea constituyente. La Paz: Cima. Aricó, J. (2010). Marx y América Latina. Buenos Aires: Fondo de Cultura Económica. Arinos de Melo Franco, A. (1967). Curso de Direito Constitucional Brasileiro. Rio de Janeiro: Forense. Ariza, L. (2009). Derecho, saber e identidad indígena. Bogotá: Siglo del Hombre. Arreola Cortés, R. (1975). Melchor Ocampo: Textos Políticos. México: Secretaría de Educación Pública. Arteaga Alemparte, J. (1870). La reforma. Santiago de Chile: Imprenta La Libertad. Asbun, J. (2011). “Independencia judicial y partidos politicos.” Nueva Crónica y Buen Gobierno, n. 85 (May), 9. Atria, F. (2004). “Existen derechos sociales?” Discusiones, DOXA, n. 4, Alicante. 15–59. Ávila Santamaría, R., ed. (2009). Desafíos constitucionales: La Constitución ecuatoriana del 2008 en perspectiva. Tribunal Constitucional del Ecuador. Ávila Santamaría, R., ed. (2011). El neoconstitucionalismo transformador: El estado y el derecho en la Constitución de 2008. Quito: Universidad Andina Simón Bolívar. Awapara, O. (2010). “Despacio se llega lejos: Cambio institucional, instituciones latentes y el caso de la Presidencia del Consejo de Ministros.” Apuntes 67 (2): 5–36. Azcuy, H. (2010). Análisis de la Constitución Cubana y otros ensayos. La Habana: Instituto Cubano de Investigación: Ruth Casa Editorial. Badaró Mattos, M. (2008). “O governo Joao Goulart: Novos rumos da producao historiográfica.” Revista Brasileira de Historia 28 (55): 245–63. Balkin, J. (1997). “Agreements with Hell and Other Objects of Our Faith.” Fordham Law Review 65: 1703. Ballard, M. “The Clash Between Local Courts and Global Economics: The Politics of Judicial Reform in Brazil,” Berkeley Journal of International Law. 17: 230, 234. Barbosa, R. (1921). Queda do Imperio, vol. I. Rio de Janeiro: Livraria Castilho. Barbosa, R. (1939). Conferencias y discursos, Buenos Aires: Biblioteca de autores brasileños. Barragán, R. (2006). Asambleas constituyentes (1825‒1971). La Paz: Muela del Diablo Editores. Barreto, A. (2011). Venturas y desventuras de la Regeneración. Bogotá: Ediciones Uniandes. Barrón, L. (2001). “Liberales y conservadores: Republicanismo e ideas republicanas en el siglo xix en América Latina.” Manuscrito presentado en Latin American Studies Association, Washington, D.C.

Bibliography

253

Barros, C. (1997). Alberdi periodista en Chile. Buenos Aires: Imprenta Verlap. Barros, R. (2002). Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution. Cambridge and New York: Cambridge University Press. Barroso, R., and Barcellos, A. (2005). “O Comenco da Historia: A Nova Interpretacao Constitucional e o Papel dos Principios no Direito Brasileiro,” in V. Afonso da Silva, org., Interpretacao Constitucional. São Paulo: Malheiros Editores. Basadre, J. (1949). Historia de la República del Perú. Lima: Editorial Cultura Antártica. Bateman, A. (1978). Manuel Murillo Toro. Bogotá: Academia Colombiana de Historia. Bauza, F. (1887). Estudios constitucionales. Montevideo: Editorial de la Librería Nacional. Baxi, I. (1980). The Indian Supreme Court and Politics. Lucknow: Eastern Book Company. Belaúnde, V. (1967). Bolívar and the Political Thought of the Spanish American Revolution. New York: Octagon Books. Bello, A. (1997). Selected Writings, ed. I. Jaksic. Oxford: Oxford University Press. Bercovici, G. (2008). “Tentativa de instituiçâo da democracia de massas no Brasil: Instabilidade constitucional e directos sociais na era Vargas (1930‒1960),” in História do direito em perspectiva: Do Antigo Regime à Modernidad. Curitiba: Juruá Editora. Bercovici, G. (2009). “Estado Intervencionista e Constituição Social no Brasil: O Silêncio Ensurdecedor de um Diálogo entre Ausentes,” in Cláudio Pereira de Souza Neto, Daniel Sarmento, Gustavo Binenbojm, Org., Vinte Anos da Constituição Federal de 1988, 725–38. Rio de Janeiro: Lumen Juris. Bergallo, P. (2011). “Courts and Social Change: Lessons from the Struggle to Universalize Access to HIV/AIDS Treatment in Argentina.” Texas Law Review 89(7): 1611–42. Bhagwati, P. (1985). “Judicial Activism and Public Interest Litigation.” Columbia Journal of Transnational Law 23: 561. Bickel, A. (1962). The Least Dangerous Branch. New Haven, CT: Yale University Press. Bilbao, F. (1886). Obras completas, ed. M. Bilbao, vol. I. Buenos Aires: Imprenta de Buenos Aires. Bilbao, F. (2007). “El gobierno de la libertad,” in Francisco Bilbao, 1823‒1865. Santiago de Chile: Editorial Cuarto Propio. Blakemore, H. (1986). “Chile from the War of the Pacific to the World of Depression, 1880‒1930,” in L. Bethell, ed., The Cambridge History of Latin America, 5:499–552. Cambridge: Cambridge University Press. Boffi Boggero, L. (1975). Tres centenarios de la Corte Suprema. Buenos Aires: Ediciones Pizarro. Bolívar, S. (1819). Discurso de Angostura. http://www.analitica.com/bitblio/bolivar/angostura.asp. Bolívar, S. (1950). Bolívar: Obras Completas, 3 vols. La Habana: Editorial Lex. Bolívar, S. (1976). Doctrina del Libertador. Caracas: Biblioteca Ayacucho. Bonilla, D., and Iturralde, M. (2005). Hacia un nuevo derecho constitucional. Bogotá: Universidad de Los Andes. Bork, R. (1979). “The Impossibility of Finding Welfare Rights in the Constitution.” Washington University Law Quarterly 695. Bossano, G. (1959). Evolución del derecho constitucional ecuatoriano. Quito: Talleres Eloy Alfaro. Botana, N. (1996). “La transformación del credo constitucional.” Estudios Sociales, Universidad Nacional del Litoral, 23–48. Breña, R. (2006). El primer liberalismo español y los procesos de emancipación de América, 1808‒1824. México: El Colegio de México. Brinks, D., and Forbath, W. (2011). “Commentary: Social and Economic Rights in Latin America: Constitutional Courts and the Prospects for Pro-poor Interventions.” Texas Law Review 89(7): 1943–56. Brown, R. (1955). Middle-Class Democracy and the Revolution in Massachusetts. Ithaca, NY: Cornell University Press. Brown, R. (1970). Revolutionary Politics in Massachusetts: The Boston Committee of Correspondence and the Towns, 1772‒1774. Cambridge, MA: Harvard University Press. Brown, R. (1983). “Shays’s Rebellion and its Aftermath: A View from Springfield, Massachusetts, 1787.” William and Mary Quarterly 40(4): 598–615. Brown, W. (1991). “Rights and Losses,” in W. Brown, States of Injury: Power and Freedom in Late Modernity. Princeton, NJ: Princeton University Press.

254

Bibliography

Buarque, S. (1972). Historia Geral da Civilizacao Brasileira. O Brasil Monárquico. Do Imperio a República. Sao Paulo: Difusao Europeia do Livro. Calmón, P. (1958). Historia da Civilizacao Brasileira. São Paulo: Companhia Editora Nacional. Calmón, P. (1959). Historia de Brasil, vols. 4‒5. Río de Janeiro: BR J Olympio. Calvo, E., and Abal Medina, J. (2001). El federalismo electoral argentino. Buenos Aires: INAP. Camacho Roldán, S. (1923). Memorias. Bogotá: Librería Colombiana. Campos, F. (1937). O Estado Nacional. Rio de Janeiro: Imprensa nacional. Carbonell, M. (2011). “La reforma constitucional en materia de derechos humanos: Principales novedades.” http://www.miguelcarbonell.com/articulos/novedades.shtml. Carbonell, M., and Salazar, P., coords. (2011). La reforma constitucional de derechos humanos: Un nuevo paradigma. México: Universidad Nacional Autónoma de México. Carpizo, J. (1982). La Constitución mexicana de 1917. México: Universidad Nacional Autónoma de México. Carrillo Prieto, I. (2003). “Nuestros días y los de la Constitución de 1857,” in P. Galeana, comp., México y sus constituciones, 271–83. México: Fondo de Cultura Económica. Castro, F., et al. (1957). “Manifiesto de la Sierra.” http://es.scribd.com/doc/37311105/1957M-26-7-Sierra-Manifesto-Fidel-Castro-Felipe-Pazos-Raul-Chibas. Cavarozzi, M., and Abal Medina, J., comps. (2002). El asedio a la política: Los partidos latinoamericanos en la era neoliberal. Rosario: Homo Sapiens. CEDOZ, Centro de Documentación sobre Zapatismo. http://www.cedoz.or. CELS (2005). “La incidencia del derecho a la participación política en los reclamos territoriales indígenas.” http://www.cels.org.ar/common/documentos/informe_2005_cap_15.pdf. Cepeda, M. (1997). Los derechos fundamentales en la Constitución de 1991. Bogotá: Temis. Cepeda, M. (2004). “Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constituional Court.” Washington University Global Studies Law Review 3: 259. Cepeda, M. (2007). Polémicas Constitucionales. Bogotá: Legis. Cheibub, J., and Limongi, F. (2002). “Modes of Government Formation and the Survival of Democratic Regimes: Presidentialism and Parliamentarism Reconsidered.” Annual Review of Political Science 5: 151–79. Cheibub, J. C., Elkins, Z., and Ginsburg, T. (2011). “Latin American Presidentialism in Comparative and Historical Perspective.” Texas Law Review 89(7): 1701–41. Cheibub, J. C., Elkins, Z., and Ginsburg, T. (2012). “Still the Land of Presidentialism? Executives and the Latin American Constitution,” in D. Nolte and A. Schilling-Vacaflor, eds., New Constitutionalism in Latin America. Burlington, VT: Ashgate. Chiaramonte, J. C. (1977). Ciudades, provincias, Estados: Orígenes de la Nación Argentina. Buenos Aires: Ariel. Cohen, J. (2010). Rousseau: A Free Community of Equals. Oxford: Oxford University Press. Collier, S. (1967). Ideas and Politics of Chilean Independence. Cambridge: Cambridge University Press. Collier, S., and Sater, W. (1996). A History of Chile, 1808‒1994. Cambridge: Cambridge University Press. Córdova, L., and Salazar, P. (2008). Estudios sobre la Reforma Electoral 2007. México: Tribunal Electoral del Poder Judicial de la Federación. Correa, R. (1937). La Convención de Río Negro. Bogotá: Imprenta Nacional. Correa Sutil, J. (1993). “The Judiciary and the Political System in Chile: The Dilemmas of Judicial Independence during the Transition to Democracy,” in Irwin Stotzky, ed., Transition to Democracy in Latin America: The Role of the Judiciary. Boulder, CO: Westview Press. Cossío Villegas, D. (1957). La Constitución de 1857 y sus críticos. México: Fondo de Cultura Económica. Cossío Villegas, J. (2001). Cambio social y cambio jurídico. México: ITAM. Courtis, C. (2006). “Judicial Enforcement of Social Rights: Perspectives from Latin America,” in R. Gargarella et al., eds., Courts and Social Transformation in New Democracies. London: Ashgate. Couso, J. (2004). “The Politics of Judicial Review in Chile in the Era of Democratic Transition, 1990‒2002,” in S. Gloppen et al., eds., Democratization and the Judiciary. London: Ashgate.

Bibliography

255

Couso, J. (2006). “The Changing Role of Law and Courts in Latin America,” in R. Gargarella et al., eds., Courts and Social Transformation in New Democracies. London: Ashgate. Craven, M. (1995). The International Covenant on Economic, Social, and Cultural Rights. Oxford: Clarendon Press. Criado, M. (2011). “El sistema de gobierno en las nuevas constituciones andinas: Distribución horizontal del poder en el régimen constitucional de Venezuela y Ecuador.” Revista general de derecho público comparado 9: 1–44. Cristi, R., and Ruiz-Tagle, P. (2006). La República en Chile: Teoría y Práctica del Constitucionalismo Republicano. Santiago: LOM Ediciones. Da Silva, J. A. (1992). “Presidencialismo e parlamentarismo no Brasil,” in Estudios doctrinales, 139, IV Congreso Iberoamericano de Derecho Constitucional, Instituto de Investigaciones Jurídicas, UNAM México, 643–75. Da Silva, J. A. (2010). Curso de Dereito Constitucional Positivo. Brasil: Malheiros Editores. Da Silva, V.A. (2011a). “Ideas e institucois constitutionais do século xx no Brasil,” in D. Valadés et al, (eds.), Ideas e instituciones constitucionales en el siglo XX. México: Siglo. Da Silva, V. A. (2011b). O constitucionalismo brasileiro: Evolucao institucional. São Paulo: Malheiros editores. De Ángelis, P. (1946). Acusación y Defensa de Rosas. Buenos Aires: Editorial La Facultad. Deas, M. (1986). “Colombia, Ecuador and Venezuela, c. 1880‒1930,” in L. Bethell, ed., The Cambridge History of Latin America, 5:641–84. Cambridge: Cambridge University Press. de Cabo, A. (2007). “Las transformaciones institucionales,” in J. Torres López, coord., Venezuela a contracorriente. Barcelona: Icaria. de Cabo, A. (2011). “Los mecanismos de democracia participativa en el nuevo constitucionalismo latinoamericano.” Revista general de derecho público comparado 9: 1–40. De Ipola, E., and Portantiero, J. C. (1989). “Lo nacional popular y los populismos realmente existentes,” in E. de Ipola, Investigaciones Políticas. Buenos Aires: Nueva Visión. Díaz-Polanco, H. (1997). La rebelión zapatista y la autonomía. México: Siglo XXI. Documentos de la Conformación Institucional Argentina, 1782‒1972 (1972). Buenos Aires: Poder Ejecutivo Nacional, Ministerio del Interior. Domingo, P., and Sieder, R. (2001). Rule of Law in Latin America. London: Institute of Latin American Studies. Donoso, R. [1946] (1967). Las ideas políticas en Chile. Santiago: Facultad de Filosofía y Educación. Donoso, R. (1977). Vicuña Mackenna, su vida, sus escritos y su tiempo. Santiago de Chile: Editorial Francisco de Aguirre. Doria, A. de Sampaio (1953). Direito Constitucional. São Paulo: Editora Nacional. Dos Santos, R. (2007). “Francisco Campos e os Fundamentos do Constitucionalismo Antiliberal no Brasil.” Rio de Janeiro, Dados, vol. 50, n. 2, 281–323. Drake, P. (1991). “Chile, 1930‒58,” in L. Bethell, ed., The Cambridge History of Latin America, 8: 269–310. Cambridge: Cambridge University Press. Duff, A. (1998). “Law, Language and Community: Some Preconditions of Criminal Liability.” Oxford Journal of Legal Studies 18: 189–206. Duff, A. (2001). Punishment, Communication, and Community. Oxford: Oxford University Press. Duff, A. (2004). “I Might be Guilty, But You Can’t Try Me: Estoppel and Other Bars to Trial.” Ohio State Journal of Criminal Law 1: 245. Duff, A. (2008). “Authority and Responsibility in International Criminal Law,” in S. Besson and J. Tasioulas, eds., Philosophy of International Law. Oxford: Oxford University Press. Duff, A., and Garland, D. (1994). A Reader on Punishment. Oxford: Oxford University Press. Dulitzky, A. (1998). “La aplicación de los tratados sobre derechos humanos por los tribunales locales: Un estudio comparado,” in M. Abregú and C. Courtis, comp., La aplicación de los tratados internacionales sobre derechos humanos por los tribunales locales. Buenos Aires: Del PuertoPNUD. Dworkin, R. (1977). Taking Rights Seriously. Cambridge, MA: Harvard University Press. Dworkin, R. (1985). A Matter of Principle. Cambridge, MA: Harvard University Press. Dworkin, R. (1996). Freedom’s Law. Cambridge, MA: Harvard University Press.

256

Bibliography

Dworkin, R. (2011). Justice for Hedgehogs. Cambridge, MA: Harvard University Press. Eaton, K. (2000). “Parliamentarism versus Presidentialism in the Policy Arena.” Comparative Politics vol. 32, no. 3: 355–76. Echeverría, E. (1915). Dogma socialista de la Asociación de Mayo. Buenos Aires: Librería La Facultad. Echeverría, J. (2008). “Plenos poderes y democracia en el proceso constituyente ecuatoriano,” in J. Echeverría and C. Montúfar, eds., Plenos poderes y transformación constitucional. Quito: Ediciones Abya-Yala. Echeverría, J. (2009). “El Estado en la Nueva Constitución,” in S. Andrade et al., eds., La nueva Constitución del Ecuador. Quito: Universidad Andina Simón Bolívar. Edelman, P. (1987). “The Next Century of Our Constitution: Rethinking Our Duty to the Poor.” Hastings Law Journal 39(1): 23. Egaña, J. (1969). Juan Egaña: Antología, ed. Por Raúl Silva Castro. Santiago de Chile: Andrés Bello. Eide, A., Krause, C., and Rosas, A., eds. (1994). Economic, Social and Cultural: A Textbook. Alphen aan den, The Netherlands: Kluver. Elkins, Z., Ginsburg, T., and Melton, J. (2010). “The Comparative Constitutions Project: A CrossNational Historical Database of Written Constitutions.” http://www.comparativeconstitutionsproject.org/data.htm. Elster, J. (1989). Salomonic Judgements. Cambridge: Cambridge University Press. Elster, J. (1993). “Constitutional Bootstrapping in Paris and Philadelphia.” Cardozo Law Review 14: 549–76. Elster, J. (2000a). Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints. Cambridge: Cambridge University Press. Elster, J. (2000b). “Arguing and Bargaining in Two Constituent Assemblies.” University of Pennsylvania Journal of Constitutional Law 2: 345. Elster, J., and Slagstad, R., eds. (1993). Constitutionalism and Democracy. Cambridge: Cambridge University Press. Epp, C. (1998). The Rights Revolution. Chicago: University of Chicago Press. Epstein, D. (1984). The Political Theory of the Federalist. Chicago: University of Chicago Press. Escasena, J. (1984). La evolución de la legalidad en Cuba. La Habana: Editorial de Ciencias Sociales. Etchemendy, S. (2011). Models of Economic Liberalization: Business, Workers, and Compensation in Latin America, Spain, and Portugal. Cambridge: Cambridge University Press. Etchemendy, S. (2012). “Las contradicciones del progresismo liberal,” Le Monde Diplomatique, Buenos Aires, Abril, n. 154. http://www.eldiplo.org/154-el-subsuelo-en-disputa/las-contradiccionesdel-progresismo-liberal?token=andnID=1. Etchichury, H. (2006). “Argentina: Social Rights, Thorny Country: Judicial Review of Economic Policies Sponsored by the IFIs.” American University International Law Review 22 (1): 101‒125. Fabre, C. (2000). Social Rights under the Constitution: Government and the Decent Life. Oxford: Oxford University Press. Farber, S. (1976). Revolution and Reaction in Cuba, 1933‒1960. Middletown, CT: Wesleyan University Press. Farrand, M., ed. (1937). The Records of the Federal Convention of 1787. New Haven, CT: Yale University Press. Fausto, B. (2006). Historia do Brasil. São Paulo: Universidade de São Paulo. Feer, R. (1988). Shays’s Rebellion. New York: Garland. Fernández-Rubio Legrá, A. (1985). El Proceso de Institucionalización de la Revolución Cubana. La Habana: Editorial de Ciencias Sociales de la Habana. Ferreres Comella, V. (2009). Constitutional Courts and Democratic Values. New Haven, CT: Yale University Press. Ferreyra, Raúl (2012). “1852. Orígenes. Sobre las Bases de Juan Bautista Alberdi y la Constitución federal, en el tiempo.” Contextos. Defensoría del pueblo de la Ciudad de Buenos Aires,1(3): 54 Fiss, O. (1976). “Groups and the Equal Protection Clause.” Philosophy and Public Affairs 5(2): 107–177. Forbath, W. (2001). “Constitutional Welfare Rights: A History, Critique and Reconstruction.” Fordham Law Review 69: 1821–27.

Bibliography

257

Fowler, W. (1966). Mexico in the Age of Proposals, 1821‒1853. Westport: Connecticut: Greenwood Press. Freeman, M. (1980). Burke and the Critique of Political Radicalism. Oxford: Blackwell Publishers. Frondizi, S. (1961). La revolución cubana. Montevideo: Editorial Ciencias Políticas. Furtado, C. (1965). “Obstáculos políticos ao crescimento económico no Brasil.” Revista Civilizacao Brasileira, n. 1, 129–45. García, A. (1977). “Colombia: Medio siglo de historia contemporánea,” in P. González Casanova, coord., América Latina. Historia de medio siglo, 1:178–230. México: Siglo XXI. García Moreno, G. (1887). Escritos y discursos de Gabriel García Moreno. Quito: Imprenta del Clero. García-Villegas, M. (2001). “Law as Hope: Constitutions, Courts and Social Change in Latin America.” Manuscrito presentado en el seminario “Modernities, the New Constitution and Constitution-Making Powers,” May 22–4 (2001), in la Universidad Nacional de Colombia. García Villegas, M. (2012). “Constitucionalismo aspiracional: Derecho y cambio social en América Latina,” manuscrito. García Villegas, M., and Saffón, M. (2005). “Is There Hope in Judicial Activism in Social Rights? Assesing the Dimension of Judicial Activism in Social Rights in Colombia,” working paper, Bogotá: Dejusticia. Gargarella, R. (1996). La justicia frente al gobierno. Barcelona: Ariel. Gargarella, R. (1998a). “Il ruolo dei giudici di fronte al ‘terreno proibito.’ ” Ragion Pratica, n. 10, Génova, 65–73. Gargarella, R. (1998b). “Fill Representation, Deliberation, and Impartiality,” in J. Elster, ed., Deliberative Democracy. Cambridge: Cambridge University Press. Gargarella, R. (1999). Derecho y grupos desaventajados, Buenos Aires: Gedisa. Gargarella, R.,(2004). “Derecho y disociación: Un comentario a «¿Existen derechos sociales?», de Fernando Atria,” Discusiones, DOXA, n. 4, Alicante. XX Gargarella, R. (2008). “Cambiar la letra, cambiar el mundo.” Ecuador debate, 75, Quito, 93–96. Gargarella, R. (2010). The Legal Foundations of Inequality. Cambridge: Cambridge University Press. Gargarella, R. (2011a). “Penal Coercion in Contexts of Social Injustice.” Criminal Law and Philosophy 5(1): 21–38. Gargarella, R. (2011b). “Dialogic Justice in the Enforcement of Social Rights,” in S. Gloppen and A. Yamin, Litigating Health Rights. Cambridge, MA: Harvard University Press. Gargarella, R., Domingo, P., and Roux, T., eds. (2006). Courts and Social Transformation in New Democracies. London: Ashgate. Gargarella R., Filippini, L., and Cavana, A. (2011). Recientes reformas constitucionales en América Latina. Reporte UNDP. Garro, A. (2007). “Judicial Review of Constitutionality in Argentina: Background Notes and Constitutional Provisions” Duquesne Law Revue: 409–429. Gauri, V., and Brinks, D. (2009). Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. Cambridge: Cambridge University Press. Gauri, V., and Brinks, D. (2012). “Human Rights as Demands for Communicative Action.” Journal of Political Philosophy 44(4): 485–503. Gaviria Díaz, C. (2002). Sentencias: Herejías constitucionales. Bogotá: Fondo de Cultura Económica. Gervasoni, C. (2010). “A Rentier Theory of Subnational Regimes.” World Politics 62(2): 302–40. Gilly, A. (1994). La revolución interrumpida. México: Ediciones Era. Gilly, A. (2001). El cardenismo: Una utopía Mexicana. México: Ediciones Era. Gilmore, R. (1956). “Nueva Granada’s Socialist Mirage.” Hispanic American Historical Review 36(2): 190‒210. Giraudo, L., ed. (2008). Derechos, costumbres y jurisdicciones indígenas en la América Latina contemporánea. Madrid: Centro de Estudios Políticos y Constitucionales. Giraudy, A. (2010). “Varieties of Subnational Undemocratic Regimes: Evidence for Argentina and Mexico.” Studies in Comparative International Development. http://scholar.harvard.edu/ agiraudy/files/giraudy_scid–10.1007_s12116-012-9117-4.pdf. Gloppen, S. (2006). “Analyzing the Role of Courts in Social Transformation,” in R. Gargarella et al., eds., Courts and Social Transformation in New Democracies. London: Ashgate.

258

Bibliography

Gloppen, S., Wilson, B., et al. (2010). Courts and Power in Latin America and Africa. London: Palgrave. González González, F. (1997). Para leer la política. Bogotá: Política Colombiana, CINEP. González Prada, M. (2009). Manuel González Prada: Textos Esenciales, ed. D. Sobrevilla. Lima: Fondo Editorial del Congreso del Perú. González Vigil, F. (1948). Importancia de las Asociaciones: Importancia de la Eduación Popular. Lima: Ediciones Hora del Hombre. Gootenberg, P. (1993). “Imagining Development: Economic Ideas in Peru’s ‘Fictious Prosperity’ of Guano, 1840‒1880,” in J. Love and N. Jacobsen, eds., Guiding the Invisible Hand: Economic Liberalism and the State in Latin America History. New York: Praeger. Grijalva, A. (2012). Constitucionalismo en Ecuador. Quito: Corte Constitucional. Groesman Wagmaister, F. (2005). Democracia y minorías: Formalismos y realidades de los derechos indígenas en la Argentina presente, Tesis de Licenciatura, Universidad de San Andrés, no publicada, on file con el autor. Grüner, E. (2010). La oscuridad y las luces. Buenos Aires: Edhasa. Grzymala-Busse, A. (2011). “Time Will Tell? Temporality and the Analysis of Causal Mechanisms and Processes.” Comparative Political Studies 23(2): 147–69. Gudynas, E. (2009). “Derechos de la naturaleza y políticas ambientales,” in A. Acosta and E. Martínez, eds., Derechos de la naturaleza: El futuro es ahora, 39–50. Quito: Ediciones AbyaYala. Gutiérrez, Francisco (2007). ¿Lo que el viento se llevó? Los partidos políticos y la democracia en Colombia 1958‒2002. Bogotá, Colombia: Editorial Norma. Guzmán, J. (1992). Escritos Personales. Santiago de Chile: Editorial Universitaria. Habermas, J. (1996). Between Facts and Norms: Contributions to a Discourse Theory on Law and Democracy. Cambridge, MA: MIT Press. Hale, Ch. (1986). “Political and Social Ideas in Latin America, 1870‒1930,” in L. Bethell, ed., The Cambridge History of Latin America, 4:367–442. Cambridge: Cambridge University Press. Hall, M., and Spalding, H. (1986). “The Urban Working Class and Early Latin American Labour Movement, 1880‒1930,” in L. Bethell, ed., The Cambridge History of Latin America, 4:325–66. Cambridge: Cambridge University Press. Halperín Donghi, T. (1980). Proyecto y Construcción de una Nación. Caracas: Biblioteca Ayacucho. Halperín Donghi, T. (2007). Historia Contemporánea de América Latina. Alianza: Buenos Aires. Hartlyn, J. (2011). “Commentary: Constitutional Structure in Latin America.” Texas Law Review 89(7): 1977–83. Hartlyn, J., and Luna, J. P. (2007). “Constitutional Reform in Latin America: Intentions and Outcomes,” paper presented at LASA, Montreal, Canada. Hartlyn, J., and Valenzuela, A. (1994). “Democracy in Latin America since 1930,” in L. Bethell, ed., The Cambridge History of Latin America, 6/ii:99–162. Cambridge: Cambridge University Press. Heise González, J. (1978). Años de formación y aprendizaje políticos, 1810–1833. Santiago de Chile: Editorial Universitaria. Henkin, L. (1990). The Age of Rights. New York: Columbia University Press. Herrera, B. (1929). Escritos y discursos. Lima: Librería Francesa. Hobsbawm, E. (1994). Historia del siglo xx. Buenos Aires: Grijalbo Mondadori. Hobsbawm, E. (1995). Age of Extremes. London: Little, Brown and Co. Hobsbawm, E. (1998). La era del Imperio, 1875‒1914. Buenos Aires: Grijalbo Mondadori. Holmes, S. (1993). “Precommitment and the Paradox of Democracy,” in Jon Elster and Rune Slagstad, eds., Constitutionalism and Democracy. Cambridge: Cambridge University Press. Holmes, S., and Sunstein, C. (1999). The Cost of Rights. New York: W. W. Norton. Horbáth, G., and Szabó, S. (2005). “El positivismo en Brasil y México,” Tzintzun, Revista de Estudios Históricos, Universidad Michoacana, México, 9–32. Hunt, P. (1996). Reclaiming Social Rights. Sidney: Darmouth. Ibarra, E. (1933). Congreso constituyente de 1852. Buenos Aires: Editorial E. Frigerio e hijos. Jaksic, A. (2001). Andrés Bello: La pasión por el orden. Santiago de Chile: Editorial Universitaria. Jaksic, I. (1997). “Preface,” in Andrés Bello: Selected Writings. Oxford: Oxford University Press.

Bibliography

259

Jaramillo Uribe, J. (1964). El pensamiento colombiano en el siglo xix. Bogotá: Editorial Temis. Jefferson. Thomas. Political Writings, Cambridge: Cambridge University Press, 1999. Jordán de Albarracín, B. (1978). Documentos para la historia del derecho constitucional boliviano. La Paz: Talleres Gráficos San Antonio. King, J. (2012). Judging Social Rights. Cambridge: Cambridge University Press. Knight, A. (1990a). The Mexican Revolution, 2 vols. Lincoln, Nebraska: University of Nebraska Press. Knight, A. (1990b). “Mexico, 1930‒46,” in L. Bethell, ed., The Cambridge History of Latin America, 7: 3–82. Cambridge: Cambridge University Press. Konvitz, M. (1957). Fundamental Liberties of a Free People, Ithaca: Cornell Uuniversity Press. Kramer, L. (2004). The People Themselves: Popular Constitutionalism and Judicial Review. Stanford, CA: Stanford Law Review. Kramer, L. (2007). “The Interest of the Man: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy.” Valparaíso University Law Review 41: 697. Kymlicka, W. (1995). The Rights of Minority Cultures. Oxford: Oxford University Press. Laclau, E. (1978). “Hacia una teoría del populismo,” in E. Laclau, Política e ideología en la teoría marxista. Madrid: Siglo XXI. Laclau, E. (2001). “Prefacio a G. Aboy Carlés,” in G. Aboy Carlés, ed., Las dos fronteras de la democracia argentina. Rosario: Homo Sapiens. Lamprea, E. (2010). When Accountability Meets Independence: A Case Study of the Colombian Constitutional Court’s Nominations. Global Jurist 1(1): 1934‒2640. Lane Sheppele, K. (2003). “ International Journal of Constitutional Law. 1(2): 296‒324. Langa, P. (1997). “The Role of the Constitutional Court in the Enforcement and Protection of Human Rights in South Africa.” St. Louis University Law Journal 41: 1259. Langford, M. (2008). Social Rights Jurisprudence: Emerging Trends in International and Comparative Law. Cambridge: Cambridge University Press. Lascurain, A. (1956). Influencia de Don Emilio Rabasa: en la de stitución de 1917 . . . ferences here and in text to make sure they are correct.pies availabe.al intro and short intro bconstitución de 1917. Univ. De Mexico. Lastarria, J. V. (1868). La reforma política. Santiago de Chile: Imprenta de la Libertad. Lastarria, J. V. (1906). Estudios políticos y constitucionales, vols. 1 and 2. Santiago de Chile: Imprenta, Litografía y Encuadernación Barcelona. Lastarria, J. V. (1944). Lastarria, prólogo y selección de E. Délano. México: Ediciones de la Secretaría de Educación Pública. Leguía, J. (1927). Elogio de don José Gálvez. Lima: Imprenta Garcilaso. Leguía, J. (1939). Estudios históricos. Santiago de Chile: Biblioteca América. Lemaitre Ripoll, J. (2009). El derecho como conjuro: Fetichismo legal, violencia y movimientos sociales. Bogotá: Siglo del Hombre Editores. Levitsky, S., and Murillo, M. (2012). “Building Institutions on Weak Foundations: Lessons from Latin America.” Paper presented at the conference “Guillermo O’ Donnell and the Study of Democracy,” in Buenos Aires, March 26‒27. Lewin, B. (1971). Mariano Moreno, su ideología y su pasión. Buenos Aires: Ed. Libera. Lillo, R. (2003). Resolución de conflictos en el derecho mapuche. Temuco: Universidad Católica de Temuco. Lima Lopes, J. (2006). “Brazilian Courts and Social Rights,” in R. Gargarella et al., eds. Courts and Social Transformation in new Democracies, London: Ashgate. Lima Lopes, J. (2008). O Direito na Historia. São Paulo: Editorial Atlas. Limongi, F. (2008). “O Poder Executivo na Constituicao de 1988,” in R.Oliven et al., org., A Constituicao de 1988, 23–56. São Paulo: Editora Hucitec. Linz, I. (1967). Historia do Positivismo no Brasil. São Paulo: Companhia Editora Nacional. Linz, J., and Stepan, A. (1978). The Breakdown of Democratic Regimes. Baltimore: Johns Hopkins University Press. Linz, J., and Valenzuela, A. (1994). The Failure of Presidential Democracy. Baltimore: Johns Hopkins University Press.

260

Bibliography

Lira, A. (1997). “Lucas Alamán y la organización política de México,” in Lucas Alamán, A. Lira, ed. México: Ediciones Cal y Arena. Lodola, G. (2011). “Cultura política de la democracia en Argentina, 2010: Consolidación democrática en las Américas en tiempos difíciles.” LAPOP, Vanderbilt University. López Restrepo, Andrés (1994). El cambio de modelo de desarrollo de la economía colombiana. Revista Análisis Político (21). http://bibliotecavirtual.clacso.org.ar/ar/libros/colombia/assets/ own/analisis%20politico%2021.pdf. Loveman, B. (1993). The Constitution of Tyranny: Regimes of Exception in Spanish America. Pittsburgh: University of Pittsburgh Press. Luban, D. (2004). “A Theory of Crimes against Humanity.” Yale Journal of International Law 29: 85. Luna, F. (2005). Félix Luna. Buenos Aires: Sudamericana. Lynch, J. (1986). “The Catholic Church in Latin America, 1830‒1930,” in L. Bethell, ed., The Cambridge History of Latin America, 4:527–596. Cambridge: Cambridge University Press. Macpherson, C. B. (1962). Burke. Oxford: Oxford University Press. Mæstad, O., Rakner, L., and Motta Ferraz, O. (2011). “Assessing the Impact of Health Rights Litigation: A Comparative Analysis of Argentina, Brazil, Colombia, Costa Rica, India and South Africa,” in S. Gloppen and A. Yamin, eds., Litigating Health Rights. Cambridge, MA: Harvard University Press. Manin, B. (1997). The Principles of Representative Government. Cambridge: Cambridge University Press. Mariátegui, J. C. (1988). Siete ensayos de interpretación de la realidad peruana. Lima: Biblioteca Amauta. Mariátegui, J. C. (2006). Ideología y política. Caracas: Ministerio de Comunicación. Marinho, J. (1982). “Joao Mangabeira, constitucionalista,” in L. Reiner et al., eds., Joao Mangabeira na UnB. Brasilia: Editora Universidade de Brasilia. Martínez Dalmau, R. (2009). “Heterodoxia y dificultades en el proceso constituyente boliviano (2006‒2009),” in W. Ortíz Jiménez et al., eds., Refundación del Estado Nacional: Procesos constituyentes y populares en América Latin. Quito: Centro Andino de Acción Popular. Marx, K. (1858). “Bolívar y Ponte.” The New American Encyclopaedia, Vol. 3 http://www.marxists. org/archive/marx/works/1858/01/bolivar.htm. Mejía Arango, L. (2007). Historia política del radicalismo del siglo XIX. Universidad del Externado de Colombia. Melo, M. (2009). “Los derechos de la naturaleza en la nueva Constitución ecuatoriana,” in A. Acosta and E. Martínez, eds., Derechos de la naturaleza: El futuro es ahora. Quito: Ediciones AbyaYala. Mendes, G., et al. (2008). Curso de Direito Constitucional. San Pablo: Editora Saraiva. Mendonca, J. C., and Mendonca, D. (2009). Breve historia del constitucionalismo paraguayo. Asunción: Centro de Estudios Constitucionales. Michelman, F. (1969). “The Supreme Court, 1968 Term—Foreword: On Protecting the Poor through the Fourteenth Amendment.” Harvard Law Review 83: 7. Michelman, F. (1972). “Poverty, Economic Equality, and the Equal Protection Clause.” 1972 Supreme Court Review 41. Michelman, F. (1973). “In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice.” University of Pennsylvania Law Review 121: 962. Miguel, E., Hsieh, C., Ortega D., and Rodríguez, R. (2009). “The Price of Political Opposition: Evidence from Venezuela’s Mainsanta.” NBER Working Paper. http://www.nber.org/papers/ w14923 . Molina, G. (1970). Las ideas liberales en Colombia. Bogotá: Ediciones Tercer Mundo. Molina, G. (1987). Las ideas socialistas en Colombia. Bogotá: Ediciones Tercer Mundo. Montalvo, J. (1984). Selections from Juan Montalvo, ed. by MacDonald Spindler, F. and Cook Books. Tempe: Center for Latin American Studies, Arizona State University. Mora, J. M. (1963). Obras sueltas. México: Porrúa. Motta Ferraz, O. (2011). “Harming the Poor through Social Rights Litigation: Lessons from Brazil.” Texas Law Review 89(7): 1643–68. Murilo de Carvalho, J. (1995). La formación de las almas. Buenos Aires: Univ. de Quilmes. Murillo Toro, M. (1979). Obras Selectas. Bogotá: Centro Andino de Acción Popular.

Bibliography

261

Murphy, J. (1973). “Marxism and Retribution.” Philosophy and Public Affairs 2: 217–43. Myers, J. (1995). Orden y virtud: el discurso republicano en el régimen rosista. Buenos Aires: Universidad Nacional de Quilmes. Nedelsky, J. (1994). Private Property and the Limits of American Constitutionalism. Chicago: University of Chicago Press. Negretto, G. (2001). “Los dilemas del republicanismo liberal en América Latina.” México: CIDE. Negretto, G. (2009). “Paradojas de la Reforma Constitucional en América Latina.” Journal of Democracy en español, 1(1): 38–54. Negretto, G. (2011a). “La reforma política en América Latina.” Desarrollo Económico, 198:197–221. Negretto, G. (2011b). “Shifting Constitutional Designs in Latin America: A Two-Level Explanation.” Texas Law Journal 89(7): 1777–1806. Negretto, G., and Aguilar Rivera, J. A. (2000). “Liberalism and Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship.” Cardozo Law Review 21(5‒6): 1797–1823. Nino, C., ed. (1987). Presidencialismo vs. Parlamentarismo. Buenos Aires: Consejo para la Consolidación de la Democracia. Nino, C. (1990). “El presidencialismo y la justificación, estabilidad y eficiencia de la democracia.” Propuesta y Control, n. 13, 1263. Nino, C. (1991). The Ethics of Human Rights. Oxford: Oxford University Press. Nino, C. (1992a). Fundamentos de derecho constitucional. Buenos Aires: Astrea. Nino, C. (1992b). “Qué reforma constitucional?” Propuesta y control 21: 37–59. Nino, C. (1993). “Transition to Democracy, Corporatism and Presidentialism with Special Reference to Latin America,” in D. Greenberg, S. Katz, B. Oliveiro, and S. Wheatley, eds., Constitutionalism and Democracy: Transitions in the Contemporary World. Oxford: Oxford University Press. Nino, C. (1996). “Hyperpresidentialism and Constitutional Reform in Argentina,” in A. Liphart and C. Waisman, eds., Institutional Design in New Democracies. New York: Westview Press. Nino, C. (1997). The Constitution of Deliberative Democracy. New Haven, CT: Yale University Press. Nolte, D., and Schilling-Vacaflor, A., eds. (2012). New Constitutionalism in Latin America. Burlington, VT: Ashgate. Noriega, A. (1972). El pensamiento conservador y el conservadurismo mexicano. México: Universidad Nacional Autónoma. Noriega, A. (1988). Los derechos sociales creación de la Revolución de 1910 y de la Constitución de 1917. México: Universidad Nacional Autónoma de México. Novoa Monreal, E. (1970a). “¿Justicia de clase?” Mensaje, vol. xix, marzo‒abril, n. 187, 108–119. Novoa Monreal, E. (1970b). “Justicia de clase: respuesta que nada explica.” Mensaje, vol. xix, mayo, n. 188, 192. Ocampo, M. (1901). Obras completas, vols. 1 and 2. México: F. Vázquez Editor. Oddone, J. (1934). Historia del socialismo argentino. Buenos Aires: Talleres Gráficos La Vanguardia. Oddone, J. (1986). “The Formation of Modern Uruguay, 1870‒1930,” in L. Bethell, ed., The Cambridge History of Latin America, 5:453–74. Cambridge: Cambridge University Press. O’ Donnell, G. (1977). “Corporativism and the Question about the State,” in J. Malloy ed., Authoritarianism and Corporatism in Latin America. Pittsburg: University of Pittsburg Press. O’Donnell, G. (1982). El Estado burocrático-autoritario. Buenos Aires: Editorial Belgrano. O’Donnell, G. (1994). “Delegative Democracy?” Journal of Democracy 5: 55–69. O’Donnell, G. (2010). Democracia, agencia estado: Teoría con intención comparativa. Buenos Aires: Prometeo. Ortega, G. (2011). Vida y obra de José Peralta. http://www.afese.com/img/revistas/revista40/ artGermanOrtega.pdf. Otero, M. (1967). Obras, ed. J. Reyes Heroles. México: Editorial Porrúa. Oyarte Martínez, R. (2009). “Relaciones Ejecutivo-Legislativo,” in S. Andrade et al., eds., La nueva Constitución del Ecuador. Quito: Universidad Andina Simón Bolívar. Oyarzun L. (1953). El pensamiento de Lastarria. Santiago de Chile: Editorial Jurírica de Chile. Pagliai, L. (2005). La gran polémica nacional: Cartas Quillotanas. Las Ciento y Una. Buenos Aires: Editorial Leviatán. Paine, T. (1987). The Thomas Paine Reader. London: Penguin Books. Paixao, C. (2000). “O Positivismo Ilustrado no Brasil.” Trilhas, Belém, 1 (2): 56–65.

262

Bibliography

Palacios, A. (1934). El socialismo argentino y las reformas penales. Buenos Aires: Colección Claridad. Palacios Barrera, H. (1988). “La Revolución Cubana en el Espejo de su Constitución.” Manuscrito, Buenos Aires. Palacios Romero, F. (2011). “El mito de la separación del poder judicial en el constitucionalismo clásico y la nueva configuración participativa en Latinoamérica (En torno a una aporía del constitucionalismo clásico: Quis custodiet ipsos custodes?).” Revista general de derecho público comparado, 9, 1–49. Palermo, V. (1993). “Liberales hispanoamericanos del siglo pasado: Entre el progresismo y la conciencia desdichada. Juan Bautista Alberdi y Justo Sierra.” CEDES, Buenos Aires. Palti, E. (2007). El tiempo de la política: El siglo xix reconsiderado. Buenos Aires: Siglo XXI. Park, J. (1985). Rafael Núñez and the Politics of Colombian Regionalism, 1863‒1886. Baton Rouge: Louisiana State University Press. Paz Soldán, J. (1973). Derecho constitucional peruano. Lima: Ediciones Librería Studium. Peixinho, M., Guerra, I., and Filho, F., eds. (2006). Os Princípios da Constituicao de 1988. Río de Janeiro: Lumen Juris Editora. Peraza Chapeau, J. (1986). “Consideraciones en torno al concepto de Constitución.” Revista Jurídica, n. 13, año IV, 184–97. Pereira Larraín, T. (1980). El pensamiento de una generación de historiadores hispanoamericanos: Alberto Edwards, Ernesto Quesada y Laureno Vallenilla. Santiago: Universidad Católica de Chile. Pérez Jr., L. (1986). Cuba under the Platt Amendment, 1902‒1934. Pittsburgh: University of Pittsburgh Press. Pérez Flores, F., Cunha Filho, C., and Coelho, A. (2010). “Participación ampliada y reforma del Estado. Mecanismos constitucionales de democracia participativa en Bolivia, Ecuador y Venezuela.” bibliotecavirtual.clacso.org.ar/ar/libros/osal/osal27/09Perez.pdf. Pérez Guilhou, D. (1989). Sarmiento y la Constitución. Mendoza: Banco de Crédito Argentino. Pérez Guilhou, D. (1997). Liberales, radicales y conservadores: Convención Constituyente de Buenos Aires 1870‒1873. Buenos Aires: Plus Ultra. Pérez Liñán, A. (2009). Juicio político al presidente y nueva inestabilidad política en América Latina. México: Fondo de Cultura Económica. Perón, J. D. (2008). “Discurso del General Juan Domingo Perón ante la Asamblea Constituyente Reformadora, 27 de enero de 1949,” in Constitución de la Nación Argentina sancionada por la Convención Nacional Constituyente. Buenos Aires: Instituto Nacional Juan Domingo Perón. Petit Muñoz, E. (1956). Artigas y su ideario a través de seis series documentales. Montevideo: Universidad de la República Oriental del Uruguay. Pettit, P. (1997). Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press. Pettit, P. (2001). A Theory of Freedom: From the Psychology to the Politics of Agency. Cambridge: Polity Press. Pettit, P. (2002). “Keeping Republican Freedom Simple: On a Difference with Quentin Skinner.” Political Theory 30(3): 66–82. Phillips, A. (1995). The Politics of Presence. Oxford: Oxford University Press. Pisarello, G. (2010). “El nuevo constitucionalismo latinoamericano y la constitución venezolana de 1999: balance de una década.” http://www.sinpermiso.info/articulos/ficheros/venezuela. pdf. Pisarello, G. (2011). Un largo termidor: Historia y crítica del constitucionalismo antidemocrático. Quito: Corte Constitucional del Ecuador. Pivel Devoto, J. (1951). Las ideas políticas de Bernardo P. Berro. Montevideo: Impresora L.I.G.U. Pivel Devoto, J. (1956). Historia de los partidos y de las ideas políticas en el Uruguay, vol. 2. Montevideo: Editorial Río de la Plata. Poletti, R. (2010). Constituicoes Brasileiras, vol. 3, 1934. Brasilia: Senado Federal, Centro de Estudios Estratégicos. Posner, E., and Vermeule, A. (2010). The Executive Unbound: After the Madisonian Republic. Oxford: Oxford University Press. Prillaman, W. (2000). The Judiciary and Democratic Decay in Latin America. New York: Praeger. Privitellio, L., and Romero, L. A. (2000). Grandes discursos de la historia argentina. Buenos Aires: Aguilar.

Bibliography

263

Przeworski , A. (2010). Qué esperar de la democracia? Buenos Aires: Siglo XXI. English version: Democracy and the Limits of Self-Government. Cambridge: Cambridge University Press, 2010. Przeworski, A., Alvarez, M., et al. (2000). Democracy and Development. Cambridge: Cambridge University Press. Przeworski, A., et al. (2011). PIPE. Political Institutions and Political Events Data Set. Department of Politics, New York University. Químper, J. (1948). El principio de la libertad. Lima: Ediciones Hora del Hombre. Quiroz, C., and Lecoña, J. (2012). Constitución Política del Estado. La Paz: Sigla Editores. Rabasa, E. (1912). La dictadura: Estudio sobre la organización política de México. México: Revista de Revistas. Rabasa, E. (1986). El pensamiento político y social del Constituyente de 1916‒1917. México: IIJUNAM. Rabasa, E. (1991). “Historia de las Constituciones mexicanas,” in J. L. Soberanes Fernández, El Derecho en México: Una visión de conjunto, vol. 1. México: Universidad Nacional Autónoma de México. Rabasa, E. (1995). “El pensamiento constitucional de Venustiano Carranza “Análisis de su mensaje del 1º de diciembre de 1916 al presentar el proyecto de Constitución.” Anuario Mexicano de Historia del Derecho, n. 7, 151–62. Rama, C., comp. (1977). Utopismo Socialista, 1830‒1893. Caracas: Biblioteca Ayacucho. Ramírez, I. (1994). Ensayos. México: Universidad Nacional Autónoma de México. Ramírez, J. (1967). Dos ensayos constitucionales. Montevideo: Impresora Uruguaya. Ramírez, S. (2006). La guerra silenciosa: Despojo y resistencia de los pueblos indígenas. Buenos Aires: Capital Intelectual. Ramírez Gallegos, F. (2010). “Desencuentros, convercencias, polarización (y viceversa): El gobierno ecuatoriano y los movimientos sociales.” Nueva Sociedad 227: 83–101. Ravignani, E. (1926). Historia Constitucional de la República Argentina, 3 vols. Buenos Aires: Talleres Jacobo Peuser. Rawls, J. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press. Rawls, J. (1991). Political Liberalism. New York: Columbia University Press. Recabarren, L. (1979). Luis Emilio Recabarren: Selección de Obras. Santiago de Chile: Ediciones La Pobla. Recabarren, L. (1987). Escritos de prensa. Santiago de Chile: Terranova Editores. Reiner, L., et al., eds. (1982). Joao Mangabeira na UnB. Brasilia: Editora Universidade de Brasilia. Restrepo Piedrahita, C. (1997‒2005). Documentos para la historia del constitucionalismo colombiano, 6 vols. Bogotá: Universidad Externado de Colombia. Reyes Heroles, J. (1957). El liberalismo mexicano. México: Universidad Nacional de México. Riggs, F. (1987). “El presidencialismo en los Estados Unidos,” in C. Nino, ed., Presidencialismo vs. Parlamentarismo. Buenos Aires: Consejo para la Consolidación de la Democracia. Rivadeneira Vargas, A. (1978). Historia Constitucional de Colombia. Bogotá: Editorial Horizontes. Roa García, R. (2010). El santo derecho a la herejía, ed. J. C. Guanche. La Habana: Ruth Casa Editorial. Rock, D. (1986). “Argentina from the First World War to the Revolution of 1930,” in L. Bethell, ed., The Cambridge History of Latin America, 5:419–452. Cambridge: Cambridge University Press. Rodrigues, J. H. (1965). Conciliacao e Reforma no Brasil. Rio de Janeiro: Editora Civilizacao Brasileira. Rodríguez Albarracín, E. (1988). “El socialismo,” in La Filosofía en Colombia: historia de las ideas. Germán Marquínez Argote et al, eds. Bogotá: Editorial El Búho. Rodríguez-Garavito, C. (2011). “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America.” Texas Law Review 89(7): 1669–98. Rodríguez Garavito, C., and Arenas, L. (2005). “The Struggle of the U’wa People in Colombia,” in C. Rodríguez Garavito and B. Sousa Santos, eds., Law and Globalization from Below. Cambridge: Cambridge University Press. Rodríguez Garavito, C., and Sousa Santos, B., eds. (2005). Law and Globalization from Below. Cambridge: Cambridge University Press. Rodríguez Peñaranda, M. (2005). Minorías, acción pública de inconstitucionalidad y democracia deliberative. Bogotá: Universidad Externado de Colombia.

264

Bibliography

Roig, A. (1984). El pensamiento social de Montalvo. Quito: Editorial Tercer Mundo. Romero, J. L. (1970). El pensamiento político de la derecha latinoamericana. Buenos Aires: Piados. Romero, J. L. (2001). Las ideas políticas en Argentina. Buenos Aires: FCE. Romero, J. L., and Romero, A., eds. (1977). Pensamiento político de la emancipación. Caracas: Biblioteca Ayacucho. Rosenkrantz, C. (2003). “La Pobreza, la Ley y la Constitución,” in El Derecho como Objeto de Transformación. Buenos Aires: Editorial del Puerto. Rossi, J., and Filippini, L. (2010). “El derecho internacional en la justiciabilidad de los derechos sociales,” in P. Arcidiácono et al., eds., Derechos sociales: Justicia, política y economía en América Latina. Bogotá: Siglo del Hombre-Universidad de Los Andes. Rossiter, C. (1982). Conservatism in America. Cambridge, MA: Harvard University Press. Rouaix, P. (1959). Génesis de los artículos 27 y 123 de la Constitución política de 1917. México: Biblioteca del Instituto Nacional de Estdudios Históricos de la Revolución Mexicana. Sábato, H. (2010). Pueblo y política: La construcción de la Argentina moderna. Buenos Aires: Capital Intelectual. Sábato, H., and Lettieri, A., comps. (2003). La vida política en la Argentina del siglo XIX. Armas, votos y voces. Buenos Aires: Fondo de Cultura Económica. Safford, F. (1985). “Politics, Ideology and Society in Post-Independence Spanish America,” in Leslie Bethell, ed., The Cambridge History of Latin America, 3:347–421. Cambridge: Cambridge University Press. Sager, L. (1994). “Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law.” Northwestern University Law Review 88: 410. Sajo, A. (1995). “Reading the Invisible Constitution: Judicial Review in Hungary.” Oxford Journal of Legal Studies 15: 253. Sajo, A. (2008). “Social Rights as Middle-Class Entitlements in Hungary: The Role of the Constitutional Court,” in R. Gargarella et al., eds., Courts and Social Transformation in New Democracies. London: Ashgate. Sala de Touron, N., and Rodríguez, J. (1978). Artigas y su revolución agraria, 1811‒1820. México: Siglo XXI. Salazar, P. (2010). “Chávez: Los tres poderes soy yo.” Revista Nexos, 1/3/2010. http://www.nexos. com.mx/?Article=73044andP=leerarticulo. Salazar, P. (2012). “Camino a la democracia constitucional en México.” México, Isonomía, en prensa. Saltalamacchia, N., and Covarrubias, A. (2011). “La dimensión internacional de la reforma de derechos humanos. Antecedentes históricos,” in M. Carbonell and P. Salazar, coords., La reforma constitucional de derechos humanos: Un nuevo paradigma. México: Universidad Nacional Autónoma de México. Sámano, M., Durand Alcántara, C., and Gómez González, G. (2000). “Los acuerdos de San Andrés Larraínzar en el contexto de la Declaración de los Derechos de los Pueblos Americanos.” Ponencia presentada en las X Jornadas Lascasianas celebradas en Antigua, Guatemala. Sampay, A. (1944). La filosofía del iluminismo y la Constitución Argentina de 1853. Buenos Aires: Depalma. Sampay, A. (1973a). La filosofía jurídica del artículo 19 de la Constitución Nacional. Buenos Aires: Cooperadora de Derecho y Ciencias Sociales. Sampay, A. (1973b). Constitución y pueblo. Buenos Aires: Cuenca Ediciones. Sampay, A. (1975). Las Constituciones de la Argentina, 1810‒1972. Buenos Aires: EUDEBA . Sampay, A. (1999). La Constitución democrática. Buenos Argentina: Ciudad Argentina. Samper, J. M. (1861). Ensayo sobre las revoluciones políticas y la condición social de las repúblicas colombianas. París: Imprenta de E. Thunot. Samper, J. (1893). Los partidos en Colombia. Bogotá: Imprenta Echeverría Hermanos. Samper, J. M. (1951). Derecho público interno de Colombia: Comentario científico de la Constitución de 1886, 2 vols. Bogotá: Biblioteca Popular de Cultura Colombiana. Samuels, D., and Eaton, K. (2002). “Presidentialism And, Or, and Versus Parliamentarism: The State of the Literature and an Agenda for Future Research.” Paper presented at the Conference on Consequences of Political Institutions in Democracy, Duke University, Abril.

Bibliography

265

Sánchez Viamonte, C. (1957). El pensamiento liberal argentino en el siglo xx. Buenos Aires: Editorial Gure. Sandel, M. (1996). Democracy’s Discontent: America in Search of a Public Philosophy. Cambridge, MA: Harvard University Press. Sanguinetti, J., and Pacheco Seré, A. (1971). La nueva Constitución. Montevideo: Editorial Alfa. Santos, B. (2010). Refundación del Estado en América Latina: Perspectivas desde una epistemología del Sur. Lima: Instituto Internacional de Derecho y Sociedad. Sarmiento, D. (1926). Comentarios de la Constitución de la Confederación Argentina. Buenos Aires: Sociedad de Abogados Editores. Sayeg Helú, J. (1974). El constitucionalismo social mexicano, 3 vols. México: Edición de Cultura y Ciencia Política. Schmitt, C. (1994). The Crisis of Parliamentary Democracy. Cambridge, MA: MIT Press. Schmitt, C. (2008). Constitutional Theory. Durham, NC: Duke University Press. Scholes, W. (1967). Mexican Politics during the Juarez Regime. Columbia, Missouri: The University of Missouri. Schuckers, J. W. (1978). A Brief Account of the Finances and Paper Money of the Revolutionary War. Philadelphia: John Campbell and Son. Schwartz, H. (1995). “Do Economic and Social Rights Belong in a Constitution?” American University Journal of International 10: 1233. Scottt, C., and Macklem, P. (1992). “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution.” University of Pennsylvania Law Review 1(141): 1–148. Scully, T. (1992). Rethinking the Center: Party Politics in 19th and 20th Century Chile. Stanford, CA: Stanford University Press. Sheller, M. (2000). Democracy after Slavery: Black Publics and Peasant Radicalism in Haiti and Jamaica. Miami: University Press of Florida. Sheppele, L. (2003). “ International Journal of Constitutional Law 1(2): 296–324. Shklar, J. (1989). “The Liberalism of Fear,” in N. Rosenblum, ed., Liberalism and the Moral Life. Cambridge: Cambridge University Press. Shugart, M., and Carey, J. (1992). Presidents and Assemblies, Constitutional Design and Electoral Dynamics. Cambridge: Cambridge University Press. Shugart, M., and Mainwaring, S. (1997). “Presidentialism and Democracy in Latin America: Rethinking the Tems of the Debate,” in M. Shugart and S. Mainwaring, eds., Presidentialism and Democracy in Latin America. Cambridge: Cambridge University Press. Sieder, R. (2004). “Renegotiating Law and Order: Judicial Reform and Citizens Responses in Post-war Guatemala,” in S. Gloppen et al., eds., Democratization and the Judiciary. London: Frank Cass. Sierra, J. (1940). Evolución política del pueblo mexicano. México: Fondo de Cultura Económica. Sierra, L. (2012). “Supermajority Legislative Requirements and the Constitutional Court in Chile.” Working Paper, SELA, Mexico. Sikkink, K. (2012). The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. New York: Norton and Company. Sills, D., ed. (1968). International Encyclopedia of Social Sciences. New York: Macmillan. Silva Castro, R. (1969). Juan Egaña: Antología. Santiago de Chile: Editora Andrés Bello. Silva Herzog, J. (1990). “Rabasa,” in La Constitución mexicana de 1918: Ideólogos, el núcleo fundador y otros constituyentes. México: UNAM. Skinner, Q. (1983). “Machiavelli on the Maintenance of Liberty.” Politics 18: 3–15. Skinner, Q. (1984). “The Idea of Negative Liberty: Philosophical and Historical Perspectives,” in Richard Rorty, J. B. Schneewind, and Quentin Skinner, comps., Philosophy in History. Cambridge: Cambridge University Press. Skinner, Q. (1990). “The Republican Ideal of Political Liberty,” in G. Bock, Q. Skinner, M. Viroli, eds., Machiavelli and Republicanism. Cambridge: Cambridge University Press. Skinner, Q. (1998). Liberty before Liberalism. Cambridge: Cambridge University Press. Smith, P. (1990). “Mexico since 1946,” in L. Bethell, ed., The Cambridge History of Latin America, 7:83–160. Cambridge: Cambridge University Press.

266

Bibliography

Sobrevilla, D. (2005). El marxismo de Mariátegui y su aplicación a los 7 ensayos. Lima: Biblioteca Universidad de Lima. Sobrevilla, D. (2009). “Introducción,” in D. Sobrevilla, ed., Manuel González Prada: Textos Esenciales. Lima: Fondo Editorial del Congreso del Perú. Sobrevilla, N. (2002). “The Influence of the European 1848 Revolutions in Perú,” in G. Thomson, ed., The European Revolutions of 1848 and the Americas. London: Institute for the Study of the Americas. Storing, H. (1981). What the Anti-Federalists Were For. Chicago: University of Chicago Press. Sunstein, C. (2004). The Second Bill of Rights. New York: Basic Books. Sunstein, C., and Vermeule, A. (2003). “Interpretation and Institutions.” Michigan Law Review 101: 885. Svampa, M. (2005). La Sociedad Excluyente: La Argentina Bajo El Signo del Neoliberalismo. Madrid: Taurus. Svampa, M. (2008). Cambio de época: Movimientos sociales y poder politico. Buenos Aires: Siglo XXI. Svampa, M., and Antonelli, M., (2009). Minería transnacional, narrativas del desarrollo y resistencias sociales. Buenos Aires: Biblos. Svampa, M., Stefanoni, P., and Fornillo, B. (2010). Debatir Bolivia: Perspectivas de un proyecto de descolonización. Montevideo: Taurus. Szatmary, D. (1987). “Shays’ Rebellion in Springfield,” in M. Kaufman, ed., Shays’ Rebellion: Selected Essays. Westfield, MA: Institute for Massachusetts Studies, Westfield State College. Tejeda, J. (1947). Libertad de la Industria. Lima: Ed. Hora del Hombre. Terán, O., ed. (2005). “Introducción,” in J. B. Alberdi, Política y sociedad en Argentina. Caracas: Biblioteca Ayacucho. Ternavasio, M. (2002). La revolución del voto: Política y elecciones en Buennos Aires, 1810‒1852. Buenos Aires: Siglo XXI. Thomson, G., ed. (2002). The European Revolutions of 1848 and the Americas. London: Institute for the Study of the Americas. Tixeira, J. (1991). Curso de Direito Constitucional. Rio de Janeiro: Forense Universitária. Torres, L. (2009). “El presidencialismo constituyente y el Estado Constitucional de Montecristi,” in S. Andrade et al., eds., La nueva Constitución del Ecuador, 429–50. Quito: Universidad Andina Simón Bolívar. Torres Rivas, E. (1985). “Guatemala: Medio Siglo de Historia Política,” in P. González Casanova, ed., América Latina: Historia de Medio Siglo, 2:139–73. Bogotá: Siglo XXI. Trujillo, J. (2010). Confederación de Nacionalidades Indígenas del Ecuador. http://www.conaie. org/noticias-antiguas/156-el-estado-plurinacional-de-la-utopia-a-la-realidad. Tushnet, M. (1974). “ . . . And Only Wealth Will Buy You Justice: Some Notes on the Supreme Court. 1972 Term.” 1974 Wisconsin Law Review 177. Tushnet, M. (2002). “State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations.” Chicago Journal of International Law 3: 435. Tushnet, M. (2009). “Précis: The Rights Revolution in the Twentieth Century.” Israel Law Review 42:3. Unger, R. (1987). “El sistema de gobierno que le conviene a Brasil,” in Presidencialismo vs. Parlamentarismo. Carlos Nino, ed. Consejo para la Consolidación de la Democracia, Buenos Aires, 57–68. Unger, R. (1996). What Should Legal Analysis Become? London: Verso. Uprimny, R. (2006). “Legitimidad y conveniencia del control constitucional a la economía,” in R. Uprimny, C. Rodríguez, and M. García, 147–200. ¿Justicia para todos? sistema judicial, derechos sociales y democracia en Colombia. Bogotá, Colombia: Grupo Editorial Norma. Uprimny, R. (2011). “The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges.” Texas Law Review 89(7): 1587–1610. Uprimny, R., Rodríguez, C., and García, M. (2006). Justicia para todos? Sistema judicial, derechos sociales y democracia en Colombia. Bogotá: Norma. Valdés Paz, J. (2009). El espacio y el límite: Estudios sobre el sistema político cubano. Instituto Cubano de Investigación: Ruth Casa Editorial. Valencia Carmona, S. (1979). El poder ejecutivo latínoamericano. México: Universidad Nacional Autónoma, Instituto de Investigaciones Jurídicas.

Bibliography

267

Valencia Villa, A. (1992). El pensamiento constitucional de Miguel Antonio Caro. Bogotá: Instituto Caro y Cuervo. Valencia Villa, H. (1987). Cartas de batalla: Una crítica del constitucionalismo colombiano. Bogotá: Universidad Nacional de Colombia. Vallenilla Lanz, L. (1919). Cesarismo democrático: Estudios sobre las bases sociológicas de la Constitución de Venezuela. Caracas: Monte Ávila Editores Latinoamericana. Vanossi, J. (2005). “La Constitución Nacional de 1949.” Comunicación presentada en la Academia Nacional de Ciencias Morales y Políticas, el 9 de noviembre de 2005. Veizaga Ovando, J. (2010). Diccionario constitucional boliviano. Cochabamba: Grupo Editorial Kipus. Viciano Pastor, R., and R. Martínez Dalmau (2009). “Los procesos constituyentes latinoamericanos y el nuevo paradigma constitucional,” manuscrito no publicado, Universidad de Valencia. Viciano Pastor, R., and R. Martínez Dalmau (2011). “El nuevo constitucionalismo latinoamericano: Fundamentos para una construcción doctrinal.” Revista General de Derecho Público Comparado 9: 1–24. Vidaurre, M. (1825). “Manifiesto segundo del ciudadano Manuel de Vidaurre, en que publica el modo con que se han condiucido los jueces, con el fin de hacer que resulte culpable, y contiene una segunda representación al soberano congreso.” Lima: Imprenta Republicana de J. Concha. Vidaurre, M. (1827). “Discurso sobre Imprentas y Libelos.” Lima: Imprenta Republicana de J. Concha. Vidaurre, M. (1833). “Proyecto de reforma de la Constitución peruana, en cuanto al poder judicial.” Lima: Imprenta de J. M. Masías. Vilas, C. (1988). “Multietnicidad y autonomía: La costa atlántica de Nicaragua.” Nueva Sociedad, n. 98, 50–59. Vilas, C. (1992). Estado, clase y etnicidad: La costa atlántica de Nicaragua. México: Fondo de Cultura Económica. Vilas, C. (1998). “El populismo latinoamericano: Un enfoque structural.” Desarrollo Económico, 28 (111): 323–352. Vilas, C. (2004). “Populismos reciclados o neoliberalismo a secas? El mito del neopopulismo latinoamericano.” Estudios Sociales, Revista Universitaria Semestral, año XIV, n. 26, Univ. Nacional del Litoral, Santa Fe. Vile, M. (1967). Constitutionalism and the Separation of Powers. Oxford: Clarendon Press. Vilhena Vieira, O. (2006). Direitos fundamentais. São Paulo: Malheiros Editores. Villa, M. (2010). A Revolucao de 1932: Constitucao e Ciudadania. São Paulo: Imprensa oficial. Villa, M. (2011). A Historia das Constitucioes brasileiras. São Paulo: Texto editors. Viñas, D. (1983). Anarquistas en América Latina. Buenos Aires: Paradiso. Von Hirsch, A. (1976). Doing Justice. New York: Hill and Wang. Waisman, C. (1987). Reversal of Development in Argentina: Postwar Counterrevolutionary Policies and their Political Consequences. Princeton, NJ: Princeton University Press. Waldron, J. (1999). Law and Disagreement. Oxford: Oxford University Press. Waldron, J. (2010a). “Socioeconomic Rights and Theories of Justice,” unpublished manuscript, New York University. Waldron, J. (2010b). Torture, Terror and Trade-Offs. Oxford: Oxford University Press. Walzer, M. (1984). “Liberalism and the Art of Separation.” Political Theory 12(3): 315–30. White, M. (1987). Philosophy, The Federalist, and the Constitution. Oxford: Oxford University Press. Whitehead, L. (2012). “Latin American Constitutionalism: Historical Development and Distinctive Traits,” in D. Nolte and A. Schilling-Vacaflor, eds., New Constitutionalism in Latin America, 123‒42. Burlington: Ashgate. Williams, B. (2008). “The Liberalism of Fear,” in B. Williams, In the Beginning was the Deed. Princeton, NJ: Princeton University Press. Wilson, B. (2005). “Changing Dynamics: The Political Impact of Costa Rica’s Constitutional Court,” in R. Sieder et al., eds., The Judicialization of Politics in Latin America, 47–66. New York: Palgrave. Wilson, B. (2010). “Explaining the Rise of Accountability Functions of Costa Rica’s Constitutional Court,” in S. Gloppen et al., eds., Courts and Power in Latin America and Africa. New York: Palgrave.

268

Bibliography

Woldenberg, J., Salazar, P., and Becerra, R. (2011). La mecánica del cambio politico en México. Mexico: Cía. Editora Angema. Wolff, J. (1996). An Introduction to Political Philosophy. Oxford: Oxford University Press. Wolkmer, A. (1989). Constitucionalismo e Direitos Sociais no Brasil. San Pablo: Editora Académica. Wood, G. (1966). “A Note on Mobs in the American Revolution.” William and Mary Quarterly 23(4): 635–42. Wood, G. (1969). The Creation of the American Republic 1776‒1787. New York: W. W. Norton and Company. Wood, G. (1992). The Radicalism of the American Revolution. New York: Alfred Knopf. Wright, E. O. (2010). Envisioning Real Utopias. New York: Verso. Yrigoyen Fajardo, R. (2002). “Hacia un reconocimiento pleno de las rondas campesinas y el pluralismo legal.” Revista Alpanchis, n. 59‒60, edición especial, vol. 1, Sicuani, Cusco: Instituto de Pastoral Andina, 31–81. Yrigoyen Fajardo, R., ed. (2010). Pueblos indígenas: Constituciones y reformas políticas en América Latina. Lima: Editorial Gráfica Kuatro. Yrigoyen Fajardo, R. (2011). “El horizonte del constitucionalismo pluralista: del multiculturalismo a la descolonización,” in C. Garavito, comp., El derecho en América Latina: Un mapa para el pensamiento jurídico del siglo xxi. Buenos Aires: Siglo xxi. Zarco, F. (1957). Historia del Congreso Constitucional de 1857. México: Instituto Nacional de Estudios Históricos. Zavala, L. (1966). Obras. México: Editorial Porrúa. Zavaleta Mercado, R. (1984). “Consideraciones generales sobre la historia de Bolivia, 1932–1971,” in P. González Casanova, ed., América Latina: Historia de Medio Siglo, 1:74–178. Bogotá: Siglo XXI. Zayat, D. (2011). “Mecanismos semidirectos de participación,” in R. Gargarella, ed., La Constitución en el nuevo siglo. Buenos Aires: Siglo XXI. Zea, L. (1970). The Latin American Mind. Norman: University of Oklahoma Press. Zea, L. (1964). “Romanticismo y positivismo en Brasil.” Diánoia, vol. 10, n. 10, 93–105.

INDEX

Acosta, Alberto, 174, 245n 6 Acuerdos de San Andrés, 177–78, 246n16 AD. See Alianza Democrática (AD) Agesta, Luis Sánchez, 237n45 “Agirópolis” (Sarmiento), 218n23 Agrarian republic, 54 Aguascalientes Convention, Mexico, 99, 101, 103 Aguilar Rivera, José Antonio, 72, 140, 176, 227 n. 39, 229 n. 44 Alamán, Lucas Executive power, 18 Historia de México, 72 on independence, economic and political, 46–49 influence of, 214n43 on Mexican Constitution of 1824, 69, 140 past, new institutions and, 72–73 Ramírez, Ignacio and, 53 Albano, Carrasco, 38 Alberdi, Juan Bautista Bases y puntos de partida para la organización politica de la República Argentina, 3–4, 165, 218n23, 252 on caudillo, 78 checks and balances system, fusion constitutionalism, 33 Constitutional project, 3–4 1837 Generation and, 34 Estudios sobre la Constitución Argentina de 1 853, 64 immigrants, call for, 225n17 Letters from Quillota, 78 on liberal model, 16 mixed constitutions and, 165–66 non-egalitarian context, constitution in, 45–46 past, uses of in new constitutions, 63 on authority, exercise of, 225n23 democracy, limited, 77–80 local traditions versus foreign successful examples, 63–66 Rosas, Juan Manual de and, 73, 225n16 on political rights, 29–30

pre-positivist thought, 228n1 on reforms, 201 Sistema Económico y Rentístíco de la Confederación Argentina, 30, 49 on sovereignty, 217n14 suffrage and, 21 writings, influence of, 34–36 Alem, Leandro N., 96 Alessandri, Jorge, 114 Alfaro, Eloy, 231n30 Alianza Democrática (AD), 121, 122 Alianza Popular Revolucionaria Americana (APRA), 93, 231n26, 234n13 Allende, Salvador, 111, 124, 127–29, 148 Alvarado, Enrique, 211n17 Alvarado Velasco, Juan, 234n10 Alvarez, Juan, 42 Amado, Gilberto, 116 Ameghino, Florentino, 228n2 American Convention of Human Rights, 170 American Revolution, 210n11 taxation without representation, 6 Amézaga, Mariano, 211n17 Anarchy, liberal model as fighting against, 16 Angarita, Ciro, 248n26 Angell, Alan, 230n13, 235n18 Angostura Discourse (Bolívar), 67, 68 Anti-Bolivarian politics, 25–26 Anti-collectivist nature of liberal model, 15 anti-individualist view of society, 212n31 Anti-Statist nature of liberal model, 15 Apatzingán constitution. See Mexico Apostolado Positivista, Brazil, 89–91, 218n29 APRA. See Alianza Popular Revolucianaria Americana (APRA) “Apuntes sobre el Colegiado” (Battle), 232n35 Aranha, Oswaldo, 235n21 Arbenz, Jacobo, 110, 125, 234n9 Arboleda, Sergio, 219n37 Arcos, Santiagio, 218n23 Areopago, 13 Arévalo, Juan José, 112

269

270 Argentina auto-amnesty law, 244n32 conservative-radical alliance, 25 Constitutional Convention of 1852, 34 Constitutional reform of 1994, 135–36 Constitution of 1819, 48–49 Constitution of 1853, 32, 64 Constitution of 1949, 119–20 article 40, 236n31 Majority Report, 121, 236n33 reforms and, 186–87 1837 Generation, 27, 34, 138, 229n4 enfiteusis, 221n9 fusion constitutionalism, 32, 34–36 “Literary Saloon,” 34 National Administrative Power, 110 1926 Assembly, 47 past, uses of in new constitutions, 223n2 Peronism, 115, 119–21 piqueteros, 191 positivism, 86 radicalism, 93 San Nicolas Agreement, 218n20 social rights, 119–21 Unión Civica Radical, 96 voting, 227n26 Argentinian Socialist Party, 93 “Argirópolis” (Sarmiento), 218n23 Arguedas, Alcides, 228n2, 229n11 Ariel (Rodó), 230n12 Arosamena, Justo, 219n36 Arriaga, Ponciano, 42–43, 142 on accumulation of property, 45 on exploitation, 220n5 on material organization, 220n3 Arteaga Alemparte, Justo, 70, 224n13 Artgeaga, Domingo, 38 Artigas, José, 10–11, 24, 181 Associations, 59–61 Authoritarian alternative, 107–11 landowners, 233n4 middle classes, 233n4 military coup alternative, 109 state of siege and, 108 working class, 233n4 Auto-amnesty law, Argentina, 244n32 Autonomy, 157–58 individual, 5, 196–97 Ávila, Ramiro, 174, 246n10 Ayala Convention, Mexico, 249n8 Ayala document (Plan de Ayala), 99–100 Ayutla Revolution, Mexico, 41 Azcuy, Hugo, 238nn47 and 49 Balmaceda, Juan Manuel, 114 Barbosa, Rui, 89–91, 229n8 Barragán, R., 232n40 Barreda, Gabino, 228–29n3 Barreto, Luis Pereira, 89

Index Barrigán, R., 249n5 Barrios Altos v. Peru, 170 Bases para la nueva Constitución, 165, 214n43, 218n23 Bases y puntos de partida para la organización politica de la República Argentina (Alberdi), 3–4l, 165, 218n23, 252 “Basic structure” of society, 209n1 Batista, Fulgencio, 110 Battle y Ordóñez, José, 96–97, 232n35 Battlism, 95–98 Bauer, Edgard, 211n18 Becerra, Busch, 113 Belgrano, Manuel, 212n27 Bello, Andrés on democracy, limited, 77–80 eradication of past, 73, 75, 226n20 hostile constitutions, grafting social rights onto, 132–33 on political liberty and past, 79 on political rights, 29–30 Bergallo, P., 253 Betancourt, Rómulo, 122 Bilbao, Francisco El gobierno de la libertad, 53 politically committed citizenry, economy and creation of, 52–54 radicalism and, 94, 211n17 reforms, call for, 8–9 Bill of rights, guarantees, 241–42n8 Boggero, Boffi, 233n5 Bolívar, Simón Angostura Discourse, 67, 68 anti-Bolivarian politics and, 25–26 Bolivian Congress, 67 Cartagena Manifesto, 224n6 Cesarism, 88–89 Congress of Venezuela speech, 210n7 Constant, Benjamin, correspondence, 17 independence, fight for, 3 Jamaica Letters, 13, 66–68, 224n7 local traditions versus foreign successful examples, 63–66 Marx, Karl, criticisms by, 13, 131, 212n26, 238n50 “Memorial to the Citizens of New Granada by a Citizen of Caracas,” 3, 67 militarism of, 8 recovery of local traditions, 66–68 on “rights of men,” 212n32 Venezuelan Constitution of 1811, analysis of, 68–69 Bolivia Constitutional Assembly, 154 Constitutional Conventions, 232n40 Constitution of 1938, 113 Constitution of 1994, 154 Constitution of 2009, 136, 182–83 contradictions in Constitution, 141 indigenous question, 192–95, 247–48n25

Index Peru-Bolivian Confederation, 249n5 Pluri-National Constitutional Tribunal, 194 Bolivian Congress, 67 Bolivian National Assembly, 185 Bolivian Revolution of 1952, 125, 237n39 Bolshevik Revolution (1917), 91, 92 Bonfim, Manuel, 229n11 Bonilla, Daniel, 189 Borrero, Misael Pastrana, 123 Botana, Natalio, 253 Botero, Catalina, 243n24 Boves, Juan, 16 Branco, Humberto Castelo, 111, 149 Brazil Américo Brasiliense project, 37 Apostolado Positivista, 89–91, 218n29 civil war, 219n32 coffee plantations, 218n27 conservativism, 25, 215n4 Constitutional Convention, 116–17 Constitution of 1934, 116, 118 Constitution of 1937, 118 Constitution of 1946, 112–13, 150, 238n51 Constitution of 1967, 149–50 Constitution of 1988, 151–52, 181, 240n4 Executive power, 17–19 fusion constitutionalism, 36–38 internal tension, constitutions in (1988), 148–51 Magalhaes Castro project, 37 mixed constitutions, 165 National Commission for the Repression of Communism, 118 National Renovating Alliance, 240n2 National Security Council, 149 National Security Court, 118 order and progress regimes, 36, 89–91, 218n26 positivism, 36, 89–91, 218n26 Provisional Government, 37 Republican Constitution of 1891, 37 slavery, 37, 89 Superior Tribunal, 38 Brazilian Democratic Movement, 240n2 Brazilian Positivist Church, 229n8 Bryce, James, 239n14 Bucaram, Abdalá, 153, 154 Bunge, Carlos, 228n2, 229n11 Burke, Edmund, 223n1, 224n11 Bustamante, Anastasio, 221n10 Bustamante y Rivero, José Luis, 110 Cabell, Joseph, 228n33 Cabrera, Luis, 103 Cadiz Constitution, 17, 67, 140, 213nn35 and 38, 215n44 Caldera, Rafael, 122 Calderón Guardia, Rafael, 112, 234n12 Calderón, Francisco García, 228n2 Calle, Plutarco Elias, 102 Camacho, Manual Ávila, 109

271

Camargo, Alberto Lleras, 123 Campillo, Juan Del, 218n23 Campos, Francisco, 118 Cané, Miguel, 34 “Caracazo,” Venezuela, 123 Carbonell, M., 254 Cárdenas, Lázaro, 102 Cardoso, Fernando Henrique, 152 Carnelutti, Francesco, 236n29 Caro, José Eusebio, 40, 71 Caro, Miguel Antonio, 40–41, 79, 217n32 Carranza, Venustiano, 98–100, 104, 232n39 Cartagena Manifesto (Bolívar), 224n6 Casares, Tomás D., 236n28 Caseros, battle of, 217n14 Castañeda, Francisco de Paula, 72 Castro, Fidel, 93, 111, 124–26 Catholic Church. See also Catholicism anti-Bolivarian politics and, 25–26 fusion constitutionalism and, 35 and moral perfectionism, 13 Populist alternative and, 120 Catholicism Ecuador, 13 fusion constitutionalism and, 33 as moral ideal, 3 Caudillo, 77–78, 88, 236n34 Cavalcanti, Temistocles, 116, 235n116 Celman, Miguel Juárez, 96, 231n31 Center-federalist model, fusion constitutionalism, 33 Cerda, Aguirre, 114 Cesarism, 88–89, 229n7 Cesarismo democrático (Vallenilla Lanz), 88 Chacón, Jacinto, 75 Chalbaud, Carlos, 110 Chamber of Censor, 213–14n40 Character, formation of and state neutrality, 54–56 Chávez, Hugo, 154 Checks and balances, system of, 16–17, 57–59, 163 fusion constitutionalism, 33 Cheibub, J. C., 254 Chile anti-Bolivarian politics and, 215n5 Armed Forces, 149 article 5 of Constitution, 39 associations, 60–61 Club de la Reforma, 38 Constitutional project, 3 Constitution of 1823, 213–14n40, 213n36 Constitution of 1833, 32, 33, 38, 69–70, 224n12 Constitution of 1857, 26 Constitution of 1925, 114–15, 235n20 Executive power, 114 fusion constitutionalism, 38–39 internal tension, constitutions in (1980), 148–51 liberal-conservative fusion, 30–31

272

Index

Chile (Cont.) past, uses of in new constitutions, 63, 65, 223n3 Popular Front, 114, 234n17 prison system, 230n18 radicalism, 93–94, 210–11n14 Radical Party, 210–11n14, 211n17 socialism after Allende’s victory, 127–29 Sociedad de la Igualdad, 31, 54 Unidad Popular, 127 Workers Socialist Party, 93–94 Christian Democratic Party, 114 Christianity, radicalism and, 24 Christian morality, Populist alternative and, 120 Church, place of in societies, 5–6 Citizenry, politically committed, 52–54 “Citizens Power,” Venezuela, 175 Civil rights, fusion constitutionalism and, 28 Club de la Reforma, Chile, 38 CNC. See Confederation of Peasants (CNC) CNOP. See National Confederation of Popular Organizations (CNOP) Coffee plantations, Brazil, 218n27 Cold War, 102, 127, 237n36, 240–41n6 Collective Executive, Uruguay, 95–98 Collective self-government, 5–6, 196–97 Collor de Melo, Fernando, 162 Colombia Constitutional Court of 1991, 187–90 Constitutional model, 5 Constitution of 1832, 41, 219n38 Constitution of 1843, 71 Constitution of 1863, 220n41 Constitution of 1886, 29, 40, 217–18n19, 217n32, 220n41 Constitution of 1991, 135, 152, 167 Executive power, 40 freedom of expression, abolition of, 219n40 fusion constitutionalism, 40–41 liberal-conservative fusion, 30, 31 mixed constitutions, 165 National Front, 123–24 Pacto de Unión, 40 Rio Negro Constitutional Convention, 26, 40 La Violencia period, 188 Colombian Congress of 1842, 71 Color de Mello, President, 153 Colosio, Luis Donald, 154 Comentario sobre la Constitución Politica de 1833 (Albano), 38 Commentaries on the Constitution of the United States (Story), 64 Commission for the Pacification and Concord of the Congress of the Union (COCOPA), Mexico, 178 Common Sense (Paine), 223n1 Communism, 110 National Commission for the Repression of Communism, Brazil, 118 Community, organization of, 44–45

Comonfort, Ignacio, 41–43, 220n47 Comparative Constitutional Project, 156 Compensation, 158–60 Comte, August, 86, 89, 229n8 Confederation of Mexican Workers (CTM), 108 Confederation of Peasants (CNC), 108 Confiscation of property, liberal model and, 212–13n34 Conservative model, 1810–1850 Constitutions, 11–14. See also Conservativism anti-individualist view of society, 212n31 conservative model, 6–7, 11–14, 210n12 liberal model, 6–7, 14–17 morality and, 210n12 moral perfectionism, 11–13 organicist view of society, 212n31 overview, 6–7 political centralism, 12 political elitism, 11–12 republicanism and, 6–11, 211n17 strong presidentialism, 12 Conservativism egalitarian constitutionalism and, 197 fusion constitutionalism. See also Fusion constitutionalism liberal-conservative fusion, 30–32 liberalism and, 22 liberals and, scope of agreements, 27–30 liberals, differences, 21–22 Mitre, Bartolomé on, 20 radicalism and, 22 radicals, differences, 22–25 independence, economic and political, 46–49 organization of power, 27–28 rights, 28–29 Consistency, 168 Constant, Benjamin, 17–18, 89–90, 213n39 Las Constituciones de la Argentina (Sampay), 236n28 La Constitución Politica de la República de Chile (Lastarria), 38 Constitutional compact, expanded, 199–200 Constitutionalism social constitutionalism, 153–57 Constitutional rights, 241–42n8 social protest and, 191 Constitutional translation, problems of, 134, 141–43 Constitutions, hostile, 132–47 constitutional theory, questions for, 133–46 constitutional theory, questions for dormant clause, 134, 144–46 constitutional translation, problems of, 134, 141–43 crossed impact, 134–39 internal impact, 134–39 internal influence of graft, 134 constitutional translation, problems of, 134, 141–43 crossed impact, 134–39

Index different models, convergences and tensions between, 139–41 dormant clause, 134, 144–46 internal impact, 134–39 internal influence of graft, 134 mixed constitutions, 140 successful graft, possibility of, 134–39 Contemporary constitutionalism “engine room” of constitution, 172–95 internal tension, constitutions in, 148–71 Continuities past, uses of in new constitutions, 76–77 postcolonial constitutional model, 84–85 Convenio 169, 181–82, 247n22 Cooperative economies, 223n25 COPEI. See Politica Electoral Independiente (COPEI) Correa, Rafael, 154, 174 Correa, Ramón, 40 Cortés, Juan Donoso, 224n11, 237n45 Costa Rica Chamber IV (1989), 187–90 Constitution of 1949, 112 Courtis, C., 240n17 Couso, Javier, 240n18 Criminal law, inequality and, 192 “Cross and the sword” image, 11–14 Crossed impact, 134–39 Crossed reforms, 186, 205 CTM. See Confederation of Mexican Workers (CTM) Cuba. See also Cuban Revolution Constitution of 1934, 125 Constitution of 1940, 112–13, 126 Constitution of 1959, 125 Constitution of 1961, 237n39 Constitution of 1976, 126–27 Court of Constitutional and Social Guarantees, 113 Movimiento Nacionalista Revolucionario (MNR), 237n38 radicalism, 95 socialism, post-revolution, 125–27 Cuban Revolution, 93, 111, 129, 130, 238n46 Cubas, Raúl, 153 “Cuestiones Argentinas” (Fragueiro), 218n23 Cunha, Euclides da, 228n2 Darío, Rubén, 92 Das Capital (Marx), 93 De Ángelis, Pedro, 25, 27, 222n22 Declaration of Rights of the Indigenous Peoples, 182 de Cabo, Antonio, 175 De La Huerta, Adolfo, 102 de la Rúa, Fernando, 153 Deodora Da Fonseca, Marshal Manuel, 36, 219n32 Derecho Público Constitucional (Lastarria), 226n18 El Dia, 97 Dictatorship, 148–51

273

Dodge, Nehemiah, 215n3 Domingo, Pilar, 166, 174 Donghi, Tulio Halperín, 36, 84, 124, 218n25, 233n2 Don Simplicio, 53 Dormant clause egalitarian constitutionalism, 202 hostile constitutions, grafting social rights onto, 134, 144–46 Dorrego, Manuel, 50–51 Dworkin, Ronald, 168 Echeverría, Esteban, 27–28, 34, 174–75, 216n10, 228n1 Economic independence interrelation with political independence, 51–52 liberal-conservative tradition, 46–49 Economic reforms, 49–50, 152 Economy, creation of politically committed citizenry and, 52–54 Ecuador Catholicism, 13 Constitutional Convention, 211n21 Constitutional reform, 154 Constitution of 2008, 173, 244–45n1 popular participation, 174, 245–46n7, 246n9 sudden death escape clause, 245n3 Constitutions of 1929 and 1945, 235n25 Constitutions of 1996 and 1998, 182–83, 247n23 Executive power, 173–74, 245n2 “fourth state function,” 174 Montecristi constitutional debates, 245nn4 and 6 Organic Law of Citizen Participation, 245n5 Plenary Council of the Judiciary, 246n8 presidentialism vs. rights, 173–75 Egalitarian constitutionalism, 196–208 collective self-government, 196–97 constitutional compact, expanded, 199–200 dormant clauses and, 202 Executive power and, 206, 249n6 indigenous question and, 203 individual autonomy, 196–97 liberal-conservative alliance and, 197–99 process leading toward, 206–8 reforms, 200–206 “engine room,” reforms in, 204–5 external consistency of, 201–2 “fuel” of constitution, 205–6 hyperrationality, 202 internal consistency of, 201–2 limited rationality, 202 localized reforms, 203–4 material basis, 205–6 motives and modalities of, 202–3 outcome of, 202–3 radical reforms, 202 social question and, 199, 207

274

Index

Egaña, Juan Chilean 1823 Constitution and, 213n36 Constitutional project, 3 Estado social del hombre, 210n8 fusion constitutionalism and, 35 moral code, 13–14 1814 Mexican Constitution of Apatzingán. See Mexico 1837 Generation. See Argentina Ejército Zapatista de Liberación Nacional (EZLN), 152 Electoral Power, 67 Ellauri, José, 97, 232n34 Encina, Francisco de, 229n11 Encyclical “Quadragesimo Anno,” 235–36n27 Endogenous controls, 57–59 Enfiteusis, Argentina, 221n9 “Engine room” of constitution, 172–95 Equilibrate power, liberal model’s commitment to, 14 Errázuriz, President, 216n5 Estado Nacional (Campos), 118 Estado Novo (Vargas), 116, 233n2 Estensoro, Victor Paz, 237n39 Estrada, Jose Maria Guitiérrez, 212n28 Estudios sobre la Constitución Argentina de 1853 (Alberdi), 64 Etchichury, H., 239n9 Europe fascism, 102 “red” revolution, 30–31 Evolucion Politica del Pueblo Mexicano (Sierra), 87 Exclusionary compact alternative, social question, 107, 121–24 National Front, Colombia, 123–24 Executive power, 17–19 Chile, 114 Colombia, 40 compensation and, 159–60 Ecuador, 173–74, 245n2 egalitarian constitutionalism and, 206, 249n6 hyper-presidentialism and, 162–63 Mexico, 177 scope of, 22 Venezuela, 175–76, 234n13 Exploitation, 220n5 External contradictions, 165–66 EZLN. See Ejécito Zapatista de Liberación Nacional (EZLN) Factions, 2, 209n3 Facundo (Sarmiento), 78, 225n22 Fajardo, Raquel Yrigoyen, 247n19 Farber, S., 234n15 Farrell, Edelmiro Julión, 119 Fascism, 102 Federalist Papers (Madison), 56–59 checks and balances in, 57 No. 10, 2, 56, 216n13 No. 31, 12 No. 51, 57 No. 55, 57

No. 58, 57 Ferré, Pedro, 35 First Latin American Constitutions (1810–1850), 1–19 Flores, Pérez, 176–77 FMLN. See Frente Farabundo Marti para la Liberacón Nacional (FMLN) Fonseca, Deodoro da, 90 Foreign examples, local traditions versus, 63–66 “Founding fathers,” non-egalitarian context of constitution in, 44 Fourier, Charles, 211n18 Fragoso, Augusto Tasso, 110 Fragueiro, Maríano, 218n23 France. See also French Revolution Jacobin Constitution of 1793, 82, 228n34 Francia, José Gaspar Rodriguez de, 13, 24 Franco, Afranio Melo, 116 Franklin, Benjamin, 53 Freedom of expression, 248n34 abolition of, Colombia, 219n40 Frei, Eduardo, 114 French Declaration of Human Rights, 68 French Revolution, 210n11 Common Sense (Paine)-, 223n1 influences of, 232n39 past, uses of in new constitutions, 71, 224n10 Reflections on the Revolution in France (Burke), 223n1 Frente Farabundo Marti para la Liberación Nacional (FMLN), 238n46 Frente Sandinista de Liberación Nacional, 238n46 Frías, Félix, 11 Fujimori, Alberto, 152, 153, 162, 171 Furtado, Celso, 238n51 Fusion constitutionalism, 20–43, 85. See also specific countries Catholic Church and, 35 Catholic faith and, 33 center-federalist model, 33 checks and balances system, 33 civil rights, 28 conservatives liberals and, scope of agreements, 27–30 examples, 34–43. See also Argentina; Brazil; Chile; Colombia; Mexico Founding Period, 23–24, 216n13 liberal-conservative fusion, 30–32 liberals conservatives and, scope of agreements, 27–30 radicals and, scope of agreements, 25–26 liberals and conservatives, scope of differences between, 21–22 organization of power, 27–28 radicals liberals and, scope of agreements, 25–26 radicals and conservatives, scope of differences between, 22–25 Gaitán, Jorge Eliecer, 233n2 Gallegos, Rómulo, 110

Index Gálvez, José, 212n24 Gálvez, Pedro, 212n24 Gamarra, Agustín, 216n7 Gamboa, Deputy, 228n35 “Gamonalism,” 231n25 García-Villegas, 189, 190, 223n28, 238n3 Gelman v. Uruguay, 170 Gilmore, Richard, 31 Giménez, Marcos Pérez, 234n13 Globalization of law, 168 Gloppen, Siri, 159, 174, 204 El gobierno de la libertad (Bilbao), 53 Gómez Farías, Valentin, 18 Gómez, Juan Vicente, 89, 110, 229n7 Gómez, Laureano, 110 González, Florentino, 216n7 González Prada, Manuel, 94, 230n21, 231n22 Gorostiaga, Benjamin, 35 Gorriti, Juan Ignacio, 72, 225n15 Gouveia, Zoroastro, 117, 235n24 Great Britain, model of constitutionalism, 66–67 Great Depression, 110 Groussac, Paul, 92 Guatemala Constitution of 1985, 181, 247n21 socialism, 237–38n46 Guerra del Chaco, 113 Guilhou, Pérez, 9, 224n4 Guitiérrez, Juan María, 34, 218n23 Guitiérrez, Lucio, 154 Guitiérrez, Rafael Rocha, 219n39 Guitiérrez, Santos, 219n36 Guzmán, Jaime, 233–34n8, 237n45 Haiti Constitution of 1805, 24 slavery, 2, 24 Haitian Revolution (1791–1804), 2–3 Hamilton, Alexander, 12, 211n23 Hartlyn, Johnatan, 124, 125, 156, 173 Haya de la Torre, Raúl, 93 Henry, Patrick, 23 Herrera, Bartolomé, 12, 71–72, 212n24, 224n14 Herzog, Silva, 88, 229n6 Hispanic-Americans, 232n39 Historia de México (Alamán), 72 Hobsbawm, Eric, 233n2 El Hogar Obrero, 93 The Holy Family (Marx), 211n18 Hostile constitutions. See Constitutions, hostile Human behavior, understanding of, 120 Human rights, 148–51 international human rights law vs. internal law, 168–71 Hume, David, 58 Hyper-presidentialism, 148–51, 241n7 Schmittian argument for, 162–65 Hyperrationality, 202

275

Ideas conservadoras de buena ley (Mitre), 20–21 Illegality, law and, 191–92 ILO. See International Labor Organization (ILO) IMF, 221n13 Immigrants, call for by Alberdi, 225n17 Imperfect liberty, 77 Import substitution, 105 Inconsistent institutions, 159 Independence economic and political, 46–49, 51–52 objections to, 50–51 Indigenous question, 179–81, 246–47n18 Bolivia, 192–95 centrality of, 179 Declaration of Rights of the Indigenous Peoples, 182 egalitarian constitutionalism and, 203 gas and water wars, 248n25 land rights, 183 material condition of constitutions, 192–95 Mexico, 247n18 mixed constitutions and, 179, 184–85 natural resources, 183 “nature,” rights of, 247n23 new constitutions, indigenous rights in, 181–83 political powers, expansion of indigenous rights and, 183–85 responses to, 247n19 translation and, 180 Individual autonomy, 5–6, 196–97 liberal model’s commitment to, 14–15 Ingenieros, José, 228n2, 229n11 Injunctions, 188–89 Instability. democratic, 241n7 Institute of Security and Social Services for State Workers, Mexico, 109 Inter-American Court of Human Rights, 155, 170–71 Internal contradictions, 166, 243n24 Internal impact, hostile constitutions, 134–39 Internal law vs. international human rights law, 168–71 International Human Rights Law, 155 International Labor Organization (ILO), 233n3 Convenio 169, 181–82, 247n22 Inter-sectional contradictions, 166 Iron law (Madison), 161, 243n21 Itamaratí Commission, 116, 235n21 Jacobin Constitution of 1793, 82, 228n34 Jamaica Letters (Bolívar), 13, 66–68, 224n7 Jefferson, Thomas, 23, 53, 221n13 Cabell, Joseph, letter to, 228n33 The Jewish Question (Marx), 228n34 Jíminéz, Marcos Pérez, 111, 121, 122 Juárez Law (1855), Mexico, 42

276

Index

Justo, Alicia Moreau de, 93, 230n15 Justo, Juan B, 93, 230n15 Keynesian economics, 233n3 Konvitz, M., 23 Korn, Alejandro, 93 Lacambra, Luís Legaz, 237n45 Laclau, Ernesto, 235n19 Lagos, Ricardo, 149 Landless Movement, 152 Landowners, 222n19 authoritarian alternative, social question, 233n4 Land use, indigenous rights and, 183 Lastarria, José Victoríno associations, 60–61 La Constitución Politica de la República de Chile, 38 Derecho Público Constitucional, 226n18 as liberal, 219n35 past, uses of in new constitutions, 69–70, 224n12 eradication of past, 73–74 Lee, Richard Henry, 9 The Left, constitutions and, 129–31 “Legal individualism,” 236n33 Leguia, Augusto, 110 Lemaitre, J., 136, 188, 189 Lemos, Miguel, 89 Lenchner, Norbert, 233n4 León, Jesús María Castro, 237n37 Lerdo de Tejada, Sebastián, 86–87 Lerdo Law (1856), Mexico, 42 Letters from Quillota (Alberdi), 78 Levitsky, Steve, 209, 253, 263 “Liberalism of fear,” 212n33 Liberal legalism, 163 Liberal model, 1810–1850 Constitutions, 14–17. Liberals and liberalism anarchy, as fighting against, 16 anti-collectivist nature of, 15 anti-Statist nature of, 15 checks and balances, system of, 16–17 confiscation of property and, 212–13n34 definition of liberalism, 210n12 equilibrate power, commitment to, 14 individual autonomy, commitment to, 14–15 “liberalism of fear,” 212n33 moral neutrality, commitment to, 14 overview, 6–7 tyranny, as fighting against, 16 Liberals and liberalism. See also Liberal model, 1810–1850 Constitutions anti-Bolivarian politics, 25–26 conservatives and, scope of agreements, 27–30 organization of power, 27–28 rights, 28–29 conservatives, differences, 21–22 independence, economic and political, 46–49

liberal-conservative alliance, egalitarian constitutionalism and, 197–99 liberal-conservative fusion, 30–32 presidentialism and rights, relationship, 157, 243n5 radicalism and, 21–22 radicals and, scope of agreements, 25–26 La Libertad, 86 Lima Lopez, José Reinaldo, 240n19 Limits. See New constitutions, limits imposed by past Limongi, F., 259 Linhares, José, 110 Llerena, Juan, 218n23 Local traditions versus foreign examples, 63–66 Locke, John, 12 López de Santa Anna, Antonio, 41 López, Francisco Solano, 13 López, General, 81 López, José Hilario, 219n36, 221n9 López, Vicente Fidel, 34 López y Planes, Vicente, 218n20 Los partidos en Colombia (Samper), 5 L’Ouverture, François-Dominique Toussaínt, 24 Loveman, Brian, 15, 27, 31 Luis, Washington, 110 Macchi Luis González, 153 Mackenna, Benjamin Vicuña, 39 Madiedo, Manuel, 219n38 Madison, James anti-federalists and, 9 Federalist Papers, 57–59 checks and balances in, 57 No. 10, 2, 56, 216n13 No. 31, 12 No. 51, 57 No. 55, 57 No. 58, 57 hyper-presidentialism and, 162–65 institutional design and, 249n3 iron law, 161, 243n21 “paper money crisis” and, 209n3 on public life, 226–27n25 U.S. constitutional debates, 216n13 Vices of the Political System, 217nn15 and 16 “wall of separation” and, 23 Magalhaes Castro project, Brazil, 37 Magón, Flores, 95, 231n28 Mahuad, Jamil, 154 Maistre, Joseph De, 224n11 Majoritarianism, 8 defined, 210n12 Majority rule, radicalism and, 8 Maldonado, Francisco Severo, 54 Mangabeira, Joao, 116, 235nn21 and 22 Manifiesto de la Sierra, 125 Mariátegui, José Carlos, 54, 94, 231nn23–26 Marti, José, 95, 231n27

Index Martinez, Paulino, 103 Marx, Karl, 228n34 Bolívar, Simón, criticisms of, 13, 131, 212n26, 238n50 Das Capital, 93 The Holy Family, 211n18 Mason, George, 222n23 Massieu, José Francisco Ruiz, 154 Mata, José María, 42 Mateos, Adolfo López, 109 Material basis of Constitution, 44–61 associations, 59–61 character, formation of, 54–56 economic independence interrelation with political independence, 51–52 liberal-conservative tradition, 46–49 endogenous controls, 57–59 motivations, 57–59 neutrality of state, 54–56 non-egalitarian context, constitution in, 44–46 political independence, liberal-conservative tradition, 46–49 politically committed citizenry, economy and creation of, 52–54 political reform, economic reform for, 49–50 republicanism, 54–56 Matta, Manuel Antonio, 38, 216n5 Maximiliano, Carlos, 116 McCarthyism, 125 Melgarejo, Mariano, 249n5 “Memorial to the Citizens of New Granada by a Citizen of Caracas” (Bolívar), 3, 67 Mendes, Raimundo Teixeira, 89–90, 229n8 Mendoza, José Ely, 237n37 Mendoza, Lucas, 228n35 Menem, Carlos, 152, 162 Mercato, Zavaleta, 125 Mesa, Carlos, 153, 154, 248n25 Mexican Constitutional Assembly, 103 Mexican Liberal Party (PLM), 95 Mexican Monarchy, 73 Mexican Revolution, 92, 98–100, 233n3 Mexican Social Security Institute, 109 Mexico. See also Mexican Revolution Aguascalientes Convention, 99, 101, 103 Ayala Convention, 249n8 Ayala document (Plan de Ayala), 99–100 Ayutla Revolution, 41 Commission for the Pacification and Concord of the Congress of the Union (COCOPA), 178 Commission of Human Rights (1996), 155 Confederation of Mexican Workers (CTM), 108 Confederation of Peasants (CNC), 108 Constitutional Commission project (1856), 42 Constitutional Convention, 42, 81 Constitutional reforms (2011), 154–55 Constitution of 1824, 69, 140 Constitution of 1857, 32, 33, 87, 98, 100–102, 104, 142, 205

277

Constitution of 1917, 95, 101–104, 106, 112, 148, 166–67 article 5, 102, 104 article 27, 101, 152 article 123, 101–2 Council of Ministers, 112 1814 Mexican Constitution of Apatzingán, 10, 24, 181, 211n20 electoral reform, 2007–8, 248n28 Executive power, 17–19, 177 expanded democracy, 80–83 indigenous question, 247n18 Institute of Security and Social Services for State Workers, 109 Juárez Law (1855), 42 Lerdo Law (1856), 42 M-19, 154, 189 Mexican Liberal Party (PLM), 95 mixed constitutions, 165 National Confederation of Popular Organizations (CNOP), 108 National Revolutionary Party, 102 non-egalitarian context, constitution in, 45, 221n9 order and progress regimes, 86–88, 228–29n3 Partido Acción Nacional, 102 Porfirio Díaz regime, 86–88, 98–99, 229n5 positivism, 86–88, 228–29n3 presidentialism vs. rights, 177–79 Querétaro Convention, 98–101, 103, 104, 249n8 radicalism, 92, 95 reform of 2011, 153–57 Revolutionary Party (PRI), 108, 177 Santanista period, 87 social question, 246–47n18 “Supreme Conservative Power,” 18 Supreme Court, 178–79 Tlateloco massacre, 109 Universidad Nacional Autónoma de México (UNAM), 109 Zapatistas Army for National Liberation, 99, 103, 152, 178, 249n9 Minority, defined, 28 Miskitos, 181 Mitre, Bartolomé, 20–21, 215n2, 218n23 Mixed constitutions, 140, 165–68 indigenous question and, 179, 184–85 MNR. See Movimiento Nacionalista Revolucionario (MNR) Molina, Gerardo, 219n38, 222n16 Monreal, Eduardo Novoa, 237n43 Montalvo, Juan, 9, 59–61, 61 Montecristi constitutional debates, Ecuador, 245nn4 and 6 Montt, Pedro, 39, 219n33 Morais, Prudente de, 219n32 Mora, José María Luis, 29, 46–49 Morales, Evo, 154

278 Morality, republican model and, 9 Moral neutrality, liberal model’s commitment to, 14 Moral perfectionism, 11–13 Moral populism, 8, 9 Moreno, Gabriel Garcia, 12, 60, 73, 211n21 Mosquera, Tomás, 40 Motivations, 57–59 Motta Ferraz, O., 260 Movimiento Nacionalista Revolucionario (MNR), 237n38 Multicultural politics, 204 Murillo, Manuel Toro, 219nn36 and 39 economic independence, interrelation with political independence, 51–52 on expanded democracy, 80–83 on land possession, 222n19 majoritarianism, 9 politically committed citizenry, economy and creation of, 52–54 political reform, economic reform for, 49 right of individual to regulate own affairs, 222n15 suffrage and, 10, 52 Murillo, Victoria, 209, 253, 263 Myers, Jorge, 25 Napoleonic Constitutions of the year VIII and X, 67, 213n38 Napoleonic Consular Constitutions of 1799 and 1802, 12 Napoleon, Louis, 86, 218n25 Napoleon’s Code, 231n22 National Commission for the Repression of Communism, Brazil, 118 National Commission of Human Rights, 155 National Confederation of Popular Organizations (CNOP), 108 National Electoral Commission, Venezuela, 176 National Front, Colombia, 123–24 National Renovating Alliance, Brazil, 240n2 National Revolutionary Party, Mexico, 102 National Security Doctrine, 240–41n6 Natural resources, indigenous rights and, 183 Nedelsky, Jennifer, 226–27n25 Negretto, Gabriel, 155–56, 159, 213–14n40, 242n11, 243n17 Nelson, Stephen S., 215n3 “Neoliberal” programs, 151–53 Neutrality of state, 54–56 New colonial compact, 84 Nicaragua, article 5 of constitution, 181 Nineteenth century. See First Latin American Constitutions (1810–1850); Fusion constitutionalism Nino, Carlos Santiago, 137–38, 150, 217n18, 239nn5 and 7–8 Non-egalitarian context, constitution in, 44–46 Nuñez, Rafael, 40, 41, 219n36

Index Ocampo, Melchor, 42, 221n14, 228n32 O’Donnell, Guillermo, 125, 255, 273, 275 Odría Manuel, 110 Old colonial compact, 84 Olvera, 45, 220nn4 and 6 Onganía, Juan Carlos, 111 O Problema Nacional Brasileiro (Torres), 118 Ordaz, Gustavo Díaz, 109 Order and progress regimes, 84–91 Brazil, 36, 89–91, 218n26 “Order and Progress in the Name of Humanity, the Country and the Family,” 90 breakdown of, 106 Mexico, 86–88, 228–29n3 postcolonial constitutional model, 85–91 pre-positivist thought, 228n1 Venezuela, 88–89 Organicist view of society, 212n31 Organic Law of Citizen Participation, Ecuador, 245n5 Organizacao Nacional (Torres), 118 Ortúzar Commission, 149 Ospina, Mariano, 40 Ospina Rodríguez, Mariano, 71, 110 Otero, Mariano, 49–51, 80–83, 221n14, 227nn28 and 29 Owen, Robert, 211n18 Pacto de Unión, Colombia, 40 “Pact of New York,” 122 Páez, José Antonio, 89, 229n7, 248n1 Paine, Thomas, 9, 53, 167, 210n11, 221n13 Common Sense, 223n1 Palacios, Alfredo, 93 Palafox, Manuel, 99 Palmero, Vicente, 229n4 PAN. See Partido Accián Nacional “Paper money crisis,” 209n3 Paraguay Constitution of 1870, 32 independence of, 24 Paredes y Arrillaga, Mariano, 221n10 Parra, Aquileo, 219n36 Partido Acción Nacional, 102 Past limits imposed by. See New constitutions, limits imposed by past new constitutions and. See Past, uses of in new constitutions Pastrana, Andrés, 152 Past, uses of in new constitutions continuity, model of, 76–77 democracy, limited, 77–80 describing the past, 68–70 on eradication of past, 72–76 evaluating the past, 70–72 local traditions versus foreign successful examples, 63–66

Index recovery of local traditions, 66–68 property rights, limited, 80–83 Patronato, 35 Pellegrini, Carlos, 96 Peña, Roque Sáenz, 96 Peralta, José, 222n17 Pérez, Carlos Andrés, 122–23, 153 Pérez, José Joaquin, 39 Pérez, Manuel, 35 Peronism, 115, 119–21, 130 Perón, Juan Domingo, 110, 115, 119–21, 236n30 Peru Barrios Altos v. Peru, 170 conservativism, 71 Constitutional reform, 1993, 152 Constitution of 1823, 26, 27, 67, 213n38, 216n8 Constitution of 1860, 32, 217n16 Constitution of 1933, 234n14 Executive power, 216n7 liberal-conservative fusion, 31 radicalism, 94, 211n17 Peru-Bolivian Confederation, 249n5 Petión, Alexander, 213n37 Pinilla, Rojas, 111 Pinochet, Augusto, 111, 149, 169–70 Pio XI, 235–36n27 Piqueteros, 191 Pisarello, Gerardo, 151, 154, 156, 159 Platt Amendment, 125, 237n40 Platt, Orville, 237n40 PLM. See Mexican Liberal Party (PLM) Pluri-National Constitutional Tribunal, Bolivia, 194 Politica Electoral Independiente (COPEI), 121, 122 Political centralism, 12 Political elitism, 11–12 Political equality, 239n11 Political independence interrelation with economic independence, 51–52 liberal-conservative tradition, 46–49 Political liberties, expanded, 80–83 Politically committed citizenry, economy and creation of, 52–54 Political majoritarianism, 8 defined, 210n12 Political powers, expansion of indigenous rights and, 183–85 Political reform, economic reform for, 49–50 Popular Christian Party, 234n13 Popular Front, Chile, 114, 234n17 Populist alternative, social question, 115–21 Argentina, social rights and Peronism, 115, 119–21 Christian morality, commitment to, 120–21 human behavior, understanding of, 120 Peronism, 115, 119–21 social justice and, 235–36n27 social rights, 115–19 Varguism, 115–19

279

working classes, 116 Porfirio Díaz regime, Mexico, 86–88, 98–99, 229n5, 232n36 Portugal, self-government, 6 Positivism Brazil, 36, 89–91, 218n26 Mexico, 86–88, 228–29n3 postcolonial constitutional model, 85–91 pre-positivist thought, 228n1 progress and, 86–88 Venezuela, 88–89 Postcolonial constitutional model, 84–104 Battlism, 95–98 democratic branch, 95–98 new colonial compact, 84 old colonial compact, 84 order and progress regimes, 84–91 positivism, 85–91 Brazil, 89–91 Mexico, 86–88, 228–29n3 pre-positivist thought, 228n1 Venezuela, 88–89 radicalism, 91–95 revolutions, 98–100 single-party system and, 100–102 rupture, 84–85 Uruguay, Collective Executive, 95–98 Yrigoyenism, 95–98 Prada, Manuel González, 211n17 Prada, Raúl, 141, 185–86 Presidential authority, 151–53 Presidentialism and rights, relationship, 157–62. See also Presidentialism vs. rights autonomy, 157–58 compensation, 158–60 concentrated authority, system for, 160 indifference, 157–58 iron law (Madison), 161, 243n21 liberalism and, 157, 243n5 necessity, 160–62 relative indifference, 158 Presidentialism vs. rights, 172–79 Ecuador, 173–75 Mexico, 177–79 Venezuela, 175–77 Prestes, Julio, 110, 115 Prestes, Luis Carlos, 116, 118, 130 PRI. See Revolutionary Party (PRI) Primary truths, 12, 211n23 Prison system, Chile, 230n18 “El problema constitucional” (Llerena), 218n23 “Profesión de fe” (Mitre), 218n23 Progress. See also Order and progress positivism and, 86–88 Property accumulation of, 45 confiscation of property, 212–13n34 rights, 47, 166 limited, 80–83

280 Przeworski, Adam, 227n25 Punto Fijo compact, 121–23, 154 Querétaro Convention, 98–101, 103, 104, 249n8 Quito Sociedad Republicana, 61 Rabasa, Emilio, 86–88, 98, 140, 229nn5 and 6, 232n38 Radical model, 7, 139, 142. See also Radicals and radicalism; Republican model, 1810–1850 Constitutions Radicals and radicalism alternative models and, 7 anti-Bolivarian politics, 25–26 Argentina, 93 Chile, 93–94, 210–11n14 Christianity and, 24 conservatives, differences, 22–25 Cuba, 95 egalitarian constitutionalism and, 197 1848, 91 “gamonalism,” 231n25 influence of, 7 liberalism and, 21–22 liberals and, scope of agreements, 25–26 majority rule and, 8 Mexico, 92, 95 Mitre, Bartolomé on, 20 Peru, 94 postcolonial constitutional model, 91–95 working class, 92 Rama, Carlos, 211n18 Ramella, Pedro, 236n29 Ramírez, Ignacio charges against Constitution, 220n8 Don Simplicio, 53 politically committed citizenry, economy and creation of, 52–54 on slavery, 45 speeches of, 216n12 Ramírez, Silvina, 246n16 Rawls, John, 209n1 Reagan, Ronald, 151 Reasons for having Constitution, 1–4 Recabarren, Luis Emilio, 93–94, 230nn16–18 “Red” revolution, Europe, 30–31 Reflexiones (Gorriti), 72, 225n15 Reformist alternative, social question, 111–15. See also Reforms social democratic cases, 111 Reforms, 200–206 crossed reforms, 186, 205 egalitarian constitutionalism and, 200–206 external consistency of reform, 201–2 hyperrationality, 202 internal consistency of reform, 201–2 limited rationality, 202 localized reforms, 203–4

Index outcome of reforms, 202–3 radical reforms, 202 “engine room” of constitution and, 185–87 internal impact, 201 legal context of, 201 political reform, economic reform for, 49–50 radical, 202 standing in courts, procedures for granting, 187–90 Venezuela, 176 Reglamento Provisorio de la Provincia Oriental (Artigas), 10–11, 181 Rejón, Crescencio, 81 Religious influence, conservative model, 11–14 Religious tolerance, establishment of, 32–33 Republicanism, 54–56 Republican model, 1810–1850 Constitutions. See also Radical model conservativism and, 211n17 definition of republicanism, 8 “general will,” as project of, 7–11 morality and, 9 moral populism and, 8, 9 overview, 6–7 radicalism and, 8–9, 211n17 radical model. See Radicals and radicalism Restrepo, Carlos Lleras, 123 Restrepo, López, 244n28 Restrictions and limits, new constitutions. See New constitutions, limits imposed by past Revolutionary Party (PRI), Mexico, 108, 177 Revolutions. See also American Revolution; Bolshevik Revolution (1917); Cuban Revolution; French Revolution; Mexican Revolution postcolonial constitutional model, 98–100 single-party system and, 100–102 Ribeiro, Demétrio, 90 Rights internal tension, constitutions in, 155–57 presidentialism and rights, relationship, 157–62 Rio Negro Constitutional Convention (Colombia), 26, 40 Rivadavia, Bernardino, 221n9, 248n1 Robbins, Ephraim, 215n3 Roca, Julio Argentino, 86 Rodó, José Enrique, 230n12 Rodriguez, Garavito, César, 263 Rojas, Ezequiel, 26, 216n5 Rojas Pinilla, Gustavo, 123 Roldán, Salvador Camacho, 45, 219n36 Rome Statute, 155 Rosas, Juan Manual de, 222n22 Alberdi, Juan Bautista and, 73, 225n16 conservative-radical alliance and, 25 defeat of, 218n20 1837 Generation and, 34 French Revolutionary thought and, 224n10

Index liberal-conservative fusion and, 31, 216–17n14, 248n1 local traditions versus foreign successful examples, 63 Rouaix, Pastor, 102, 104 Rousseau, Jacques, 9, 73 Russia, Bolshevik Revolution (1917), 91, 92 Sábato, Hilda, 227n26 Safford, Frank, 28, 213n35, 216–17n14 Saint, Simon, Henri de, 86 Salazar, Pedro, 264 Saltamartini v. Cia. de Tranvias La Nacional, 236n28 Sampay, Arturo, 119, 186–87, 235–36nn27–29 and 32, 237n42 Samper, José María on “anarchy,” 220n42 Constitutional projects, 41, 219n37 Constitution of 1886 and, 217n32 on “laissez-faire,” 52 on liberal model, 15–16 Los partidos en Colombia, 5 past, uses of in new constitutions, 226n19 democracy, expanded, 227–28n31 democracy, limited, 77–80 protests and, 153 rights, restrictive view, 29 Samper, Miguel, 219n36 Sánchez de Losada, González, 153, 154, 248n25 Sánchez de Tagle, Francisco, 18, 214–15n44 San Nicolas Agreement, Argentina, 218n20 Santa Anna, Antonio López de, 18, 214n43 Santanistas, 30 Santiago Concha, Melchor de, 38 Säo Paulo, constitutional revolution of 1932, 116 Sarmiento, Domingo Faustino “Agirópolis,” 218n23, 219n33 past, uses of in new constitutions on authority, exercise of, 225n23 democracy, limited, 77 eradication of past and, 225n17 Facundo, 78, 225n22 local traditions versus foreign successful examples, 63–66 pre-positivist thought, 228n1 sovereignty of, 217n14 “Savigny’s historical school,” 236n28 Schmitt, Carl, 118, 237n45, 244n27 Schmittian argument for hyper-presidentialism, 162–65 Seguí, Juan Francisco, 218n23 Self-government, collective, 196–97 Self-interest, 56, 59 Serrano, José, 102 “Seven Laws” of 1836, 83, 214n43 “Shays” Rebellion, 209n3 Sheppele, Kim Lane, 240n21 Shklar, Judith, 212n33

281

Sieder, Rachel, 166, 174, 194 Sierra, Justo, 86–88, 98, 229nn4 and 5 Silva, Rosa e, 219n31 Single-party system, revolutions and, 100–102 Sistema Económico y Rentístíco (Bello), 30 Sistema Económico y Rentístíco de la Confederación Argentina (Alberdi), 49 Slavery, 227n26 Brazil, 37, 89 Haiti, 2, 24 Smith, Peter, 108–9 Sobrevilla, David, 211n17 Social-Christian Party, 121 Social commitments, fusion constitutionalism and, 33 Social crisis, 151–53 Social Doctrine (Vatican), 120 Socialist alternative, social question, 107, 124–29 Chile, socialism after Allende’s victory, 127–29 Cuba, post-revolution, 125–27 Social justice, 235–36n27 Social protest, 152, 190–92 constitutional rights and, 191 criminal law, inequality and, 192 illegality, law and, 191–92 “voice,” absence of, 192 Social question, 179–81, 246–47n18 authoritarian alternative, 107–11 constitutional liberalism, 233n2 Cuba, post-revolution, 125–27 democratic-exclusionary alternative, 107 egalitarian constitutionalism and, 199, 207 exclusionary compact alternative, 107, 121–24 the Left, constitutions and, 129–31 liberal-conservative compact, 106 liberalism, 233n2 masses, political participation of, 106 order and progress regimes, breakdown of, 106 Peronism, 115, 119–21 social rights, 115–19 “social tie,” 108, 233n4 translation and, 180 Varguism, 115–19 Social reform, 223n24 Social rights, hostile constitutions and. See Hostile constitutions, grafting social rights onto “Social tie,” 108, 233n4 Sociedad de la Igualdad, Chile, 54 Sociedad Republicana, 61 Soldán, Paz, 216n8 Sousa Santos, Boaventura de, 194 Sovereignty of reason, 27 Sovereignty of the people, 27, 216n10 Soviet Union, Constitution of 1935, 126–27 Spanish Constitution of 1931, 125 Standing in courts, procedures for granting, 187–90 State neutrality, 54–56 States of siege, 233n5 Story, Joseph, 64

282

Index

Strong presidentialism, 12 Structural adjustment programs (1990s), 148 Suffrage, 10, 21 controls and, 59 educational value of, 222n15 periodical, 60 secret suffrage, 215n2 universal, 29, 52, 96, 108 women’s, 117 Sunstein, Cass, 209n2 “Supreme Conservative Power,” 18–19 Svampa, M., 266 Tagle, Sanchez de, 221n10 Tejada, J., 45–46 Terán, Juan B., 236n28 Terra, Gabriel, 110 Thatcher, Margaret, 151 El Tiempo, 53 Tlateloco massacre, 109 Tocqueville, Alexis de, 232n39 Tore, Haya de la, 231n26 Torres, Oliveira Viana Alberto, 118 Tristán, Flora, 9, 94, 211n18 Turner, Charles, 24 Tutelage, 189, 248n31 Tyranny, liberal model as fighting against, 16 UNAM. See Universidad Nacional Autonóa de México (UNAM) Unidad Popular, Chile, 127 Unión Republicana Democrática (URD), 121 United Nations, Declaration of Rights of the Indigenous Peoples, 182 United States Constitution, 103, 140 Universal suffrage. See Suffrage Universidad Nacional Autónoma de México (UNAM), 109 Uprimny, Rodrigo, 103, 135, 156, 158, 189, 240n14 URD. See Unión Republicana Democrática (URD) Urquiza, Justo José de, 63, 218nn20 and 23 Uruguay Collective Executive, 95–98 Constitution of 1830, 32 Constitution of 1934, 112–13, 235n15 Gelman v. Uruguay, 170 Valdés, Federico Ponce, 112 Valencia, Guillermo León, 123 Vallarta, Luis, 42 Vallenilla Lanz, Laureano, 88–89 Vallerroel, Gualberto, 113 Varas, Antonio, 39 Vargas, Getulio, 115–19, 130 authoritarianism, 215n4 conservatives and radicals, alliance between, 25 Constitution of 1946 and, 112–13 Estado Novo, 116, 233n2 overthrow of, 110

suicide of, 119 Varguism, 115–19 Vatican, Social Doctrine, 120 Velasco, Castillo, 43, 220n2 Venezuela Alianza Democrática (AD), 121, 122 article 70 of Constitution, 177 article 72 of Constitution, 175 Bolívar, Simón, Congress of Venezuela speech, 210n7 “Caracazo,” 123 “Citizens Power,” 175 Constitution of 1811, 1, 26, 68–69, 224n5 Constitution of 1947, 122 Constitution of 1961, 175 Constitution of 1999, 176 Executive power, 175–76, 234n13 National Electoral Commission, 176 1957 plebiscite, 124 order and progress regimes, 88–89 Politica Electoral Independiente (COPEI), 121, 122 positivism, 88–89 presidentialism vs. rights, 175–77 Punto Fijo compact, 121–23, 154 reforms, 176 Social-Christian Party, 121 Supreme Court of Justice, 176 Unión Republicana Democrática (URD), 121 Venezuelan Communist Party, 122 Vices of the Political System (Madison), 217nn15 and 16 Victoria, Héctor, 104 Vidal, Juan de Díos, 237n37 Vidaurre, Manuel, 214n41 Videla, Rafael, 111 Vigil, Francisco de Paula González, 9, 59–61, 211n17, 216n7 Vilas, Carlos, 247n20 Vilhena, Vieira, Oscar, 267 Villaba, Jóvito, 122 Villa, Pancho, 98–100, 232n37 Villa, Valencia, 31, 189 La Violencia period, Colombia, 188 Waldron, Jeremy, 164, 239n6 “Wall of separation,” church and state, 23 Walzer, Michael, 157 “War of the Supremes,” 71 Weimar Constitution of 1919, 116, 125, 233n3, 244n27 Werneck-Pestana project, Brazil, 37 Whitehead, Lawrence, 239n14 Williams, Samuel, 223n28 Williman, Claudio, 97 Wolkmer, A., 38 Women, political rights, 227n26 Wood, Gordon, 6, 212–13n34 Workers and working classes politics, incorporation into, 204

Index Populist alternative, social question, 116 radicalism, 92 rights, exercise of, 222n21 social question (mid-twentieth century), 233n4 World Bank, 152, 221n13 World economic crisis of 1929/30, 105, 202 World Wars I and II, 105, 119

283

Yrigoyen, Hipólito, 92, 96, 110, 231–32nn32 and 33 Yrigoyenism, 95–98 Zapata, Martin, 35, 98, 218n23 Zapatistas Army for National Liberation, Mexico, 99, 103, 152, 178, 249n9 Zavala, Lorenzo, 72 Zavalía, Salustiano, 218n23