Constitutionalism Through the Looking Glass of Latin America

38 Pages Posted: 27 Mar 2006  

Miguel Schor

Drake University Law School

Abstract

The Article is part of a larger work in progress dealing with the problem of constitutionalism in the Americas. It explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government.

The conventional answer to this issue is that the Constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because law is subservient to politics. The conventional answer posits that the cure for the uncertain constitutional environment in Latin America lies in reforming the bits and pieces of democratic governance - the executive, the judiciary, the legislature, and state and local government - so that courts have the independence necessary to effectuate constitutional guarantees.

This Article argues, however, that the conventional view overly emphasizes the role of independent courts in making constitutions work while ignoring the role of the societal practices that make constitutionalism possible. Constitutions become entrenched against political inroads when citizens are willing to mobilize on behalf of the fundamental rules of the game. The key to successful constitutionalism lies not in the separation of law and politics, as the conventional view posits, but rather in the separation of constitutional politics from ordinary politics. Constitutions become entrenched from politics when the citizens share a belief that constitutional change requires a higher degree of consensus than changing an ordinary law. Such beliefs are constructed when broad social movements successfully entrench rights.

The issue of how constitutions become entrenched is an important one throughout the world as new democracies struggle with the problem of creating order. Democracies cannot establish order until constitutions have deep social moorings. The historical experience of Latin America is particularly instructive as it has a long experience with constitutions that lack citizen support or social moorings and the result was dictatorship, rather than republican government. In short, constitutions must be socially constructed if new democracies are to long endure.

Keywords: Comparative constitutional law, constitutional theory, social movements, democratization

Suggested Citation

Schor, Miguel, Constitutionalism Through the Looking Glass of Latin America. Texas International Law Journal, Vol. 41, p. 1, 2006. Available at SSRN: https://ssrn.com/abstract=889468

Miguel Schor (Contact Author)

Drake University Law School ( email )

2621 Carpenter Ave.
Des Moines, IA 50311
United States

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