Constitutionalism and Democracy in Latin America
New Zealand Association for Comparative Law Yearbook (2015)
15 Pages Posted: 17 Nov 2016 Last revised: 12 Sep 2017
Date Written: 2015
The objective of this short paper is to examine two of the most interesting (and ongoing) developments in Latin American constitutionalism: the doctrine of implicit limits to constitutional reform and the validation of constitutions of 'dubious' legal origins through the theory of constituent power. Particular emphasis will be given to Article 411 of the new Constitution of Bolivia, as it nicely captures both of these developments. The doctrine of implicit limits to constitutional reform provides judges not only with the power to strike down unconstitutional legislation, but also constitutional amendments that are deemed inconsistent with certain fundamental principles or with the constitution as a whole. The theory of constituent power posits that the people possess an extralegal constitution-making power, which may be exercised at any moment and even in violation of the established constitutional order. Although mostly confined to academic discussions since the French Revolution, in Latin America (unlike in the Anglo-American world) constituent power has long been present in constitutional discourse. Nevertheless, the theory has been playing a central role in the rebalancing constitutionalism and democracy that has taken place during the last decades in several countries in the region.
Keywords: Constitutional Law, Latin America, Democracy
JEL Classification: K00, K10
Suggested Citation: Suggested Citation