Schor on Latin America & Constitutionalism
Miguel Schor (Suffolk University Law School) has posted Constitutionalism Through the Looking Glass of Latin America (Texas International Law Journal, Vol. 41, p. 1, 2006) on SSRN. Here is the abstract:
- The Article is part of a larger work in progress dealing with 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 we the people. 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 arise that seek to effectuate 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.