Richard Albert (University of Texas at Austin – School of Law; Yale University – Law School; University of Toronto – Faculty of Law; University of Ottawa – Faculty of Law; Universidad Externado de Colombia – Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah – Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University), Juliano Benvindo (University of Brasilia), Milton Jimenez (University of Caldas), & Cristiã¡n Villalonga Torrijo (Pontifical Catholic University of Chile) have posted Constitutional Dismemberment in Latin America (Revista Derecho del Estado N° 52, Mayo – Agosto de 2022) on SSRN. Here is the abstract:
Some constitutional changes are constitutional amendments in name alone. These unusual constitutional changes dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. We should not understand changes on this scale as mere amendments. They are better understood as constitutional dismemberments. These constitutional changes disassemble one or more of the constitution’s elemental parts by altering a fundamental right, a load-bearing structural design, or a core aspect of the identity of the constitution. In this article, we draw from three jurisdictions in Latin America—Brazil, Chile, and Colombia—to illustrate this phenomenon, to expose its variations, and to suggest that it entails serious implications.