Political Support and Structural Constitutional Law

Abstract

The field of comparative constitutional law has paid insufficient attention to judicial decisions on structural issues. This Article seeks to begin the process of constructing a comparative analysis of structural constitutional jurisprudence. Using both theoretical analysis and a case study, it seeks to demonstrate that courts are more likely to be successful in their programs of structural constitutional law when they enjoy support from other political and social actors. This simple point has significant implications for constitutional theory. First, it suggests that the structural safeguards theory long assumed in United States constitutional law may have only limited applicability. Under common conditions, the existence of political safeguards protecting structural values may not render judicial review redundant, but instead may identify the very types of conditions under which courts are most likely to succeed. Second, courts have at least a limited ability to shape their decisions to mobilize support from political institutions or from other actors like the general public. Thus, an important aim of future work should be in identifying techniques and strategies that courts can use to mobilize such support.

Keywords: structural constitutional law, separation of powers, Colombia, Mexico, constitutional theory, structural safeguards of federalism

JEL Classification: K33, K40