Untitled

Latin American
Constitutionalism, 1810–2010
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Latin American
Constitutionalism,
1810–2010
The Engine Room of the Constitution
R O B E RTO G A R G A R E L L A
3
3
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Library of Congress Cataloging-in-Publication Data

Gargarella, Roberto, 1964-
Latin American constitutionalism, 1810–2010 :
the engine room of the constitution / Roberto Gargarella.
pages cm.
Includes bibliographical references and index.
ISBN 978–0–19–993796–7 (hardback : alk. paper) 1. Constitutional law–Latin America–
History. 2. Constitutions–Latin America–History. I. Title.
KG548.G38 2013
342.8–dc23
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
CONTENTS
Preface vii
Acknowledgments xi
1. The First Latin American Constitutions (1810‒1850) 1
2. Fusion Constitutionalism: The Liberal-Conservative Compact

in the Second Half of the Nineteenth Century 20
3. The Material Basis of the Constitution 44
4. The Limits Imposed by the Past upon

the New Constitutions 62
5. The Crisis of the Postcolonial Constitutional Model: Positivism
and Revolution at the Beginning of the New Century 84
6. Constitutionalism at the Mid-Twentieth Century
and the Return of the “Social Question” 105
7. Grafting Social Rights onto Hostile Constitutions 132
8. Contemporary Constitutionalism I: Constitutions

in Internal Tension 148
9. Contemporary Constitutionalism II: The “Engine Room”
of the Constitution 172
10. What Have We Learned in 200 Years of Constitutionalism?:
For an Egalitarian Constitutionalism 196
Notes 209
Bibliography 251
Index 269
v
P R E FA C E
Origins. The origin of this book can be found in a double discomfort. Discomfort,
first, with the fact that Latin American constitutionalism has not been the object of
systematic academic and public attention, at least until recently and in spite of its
long and enormously rich history. This initial discomfort would have, as counterpart,
a certain fascination with the amount and quality of the constitutional ideas that
have been discussed and reviewed in the region during these 200 years. At the same
time, the book is motivated by a second discomfort that arises against the very way
in which regional constitutionalism has approached constitutional reforms, particu-
larly in recent decades. And this discomfort is produced mainly by the obsessive atten-
tion given to issues of rights, to the detriment of the organization of power. Latin
American legal activists have thus acted as if the democratization that they promoted
through the expansion of rights were consistent with the concentration of power and
authoritarian centralism that they preserved in the organization of power. In other
words, most new Constitutions have opted to keep the door of the “engine room” of
the Constitution closed. The result of this is that the system of concentrated power
begins to conflict with the social demands generated in the name of constitutional
rights—which ends up implying that a part of the Constitution begins to work against
the success of the second.
The object of this study. In this book we shall examine 200 years of Latin American
constitutionalism (1810‒2010), trying to better understand what has happened in the
field, over the years, and to distill constitutional theory from there.1 This undertaking
involves taking Latin American constitutionalism seriously, with the certainty that
there is a lot to learn from what has been done in the region in legal terms. To state
this does not imply assuming that public life in the region is mainly dependent on
institutional questions and discussions. Quite the opposite: what is meant, against
too common approaches, is that the institutional issue, and particularly as reflected
in the constitutional options of a community, are important enough to merit our
attention, rather than be considered superficial or merely superstructural. In this
respect, the book aims to draw attention to how constitutional theory has ceased to
reflect on issues and ideas central to American public life, which were the object of close
scrutiny many decades ago. Consequently, we shall here review the work of statesmen,
lawyers, and legal thinkers such as Juan Bautista Alberdi, Francisco Bilbao, Simón
Bolívar; Juan Egaña, José González Vigil, Victorino Lastarria, Juan Carlos Mariátegui,
vii
viii Preface
Juan Montalvo, José María Mora, Mariano Otero, Manuel Murillo Toro, José María
Samper, and Domingo Sarmiento, among many others. People like this gave shape to
the foundations of what is still today Latin American constitutional law. This is the
reason why we shall devote a special and particularly close attention to the writings
and speeches of these early thinkers—more than to their successors. This book should
then be seen as an opportunity to become acquainted with these writers and gain a
better understanding of their ideas.
But the point is not simply to pay attention to the rich American constitutional
tradition, recovering the discussion of texts and almost forgotten writers. It is, above
all, to recognize that Latin American constitutionalism has been debating many topics
that, for one reason or another, the prevailing constitutional theory has not taken as
objects of special study. For example, on numerous occasions, Latin Americans won-
dered what to do with the vocation of “importing” foreign law, in the face of the exist-
ing, fragile or too implausible, legal traditions. They were also pioneers concerning the
inclusion of social rights in their Constitution, perhaps after recognizing the levels
of inequalities that characterized their societies. In addition, on numerous opportu-
nities they faced challenges related to the extreme versions of presidentialism that
they adopted. Latin Americans also struggled hard on the issue of religion and State
neutrality. They have repeatedly thought about how to deal with the actual, threat-
ening presence of majoritarian forces, particularly in the face of their concern with
the protection of private property. More recently, regional constitutionalism also was
challenged by the problems of pluralism and multiculturalism. In sum, throughout
history, Latin Americans found themselves under the obligation to deal with numer-
ous original and significant legal and political problems.
All these problems have obliged regional constitutionalism to confront some fun-
damental questions, such as the following: Does it make sense to “import” foreign
law? And would it be possible not to do this? How to proceed in that case? How to
make foreign law compatible with national law and national traditions? How to relate
new and old law? What to do, in order to allow the newly incorporated rights to flour-
ish? What type of protections should property rights receive in such unequal societ-
ies? What to do, in the face of such dominant Executive powers? How to prevent those
powerful Executives from undermining the rest of the institutional structure? And
what do with Constitutions that seemed at the same time committed to contradictory
ideals? This list of relevant questions could continue ad infinitum, and we shall explore
many of them.
Purpose. The project of the book is both descriptive and normative. Descriptively,
the idea is to briefly review 200 years of constitutionalism while normatively the aim is
to rethink regional constitutionalism from an egalitarian perspective. In both aspects,
the project sounds too ambitious, and for that reason we should clarify what the scope
of the book is. In regard to its descriptive aspect, the main purpose is to recognize
the main lines that have distinguished regional constitutionalism since independence
(rather than the impossible goal of giving a more or less accurate picture of all that
happened in constitutional terms in the last two centuries). Against those who may
want to associate regional constitutionalism with chaos, anarchy, ignorance, or pure
imitation, the idea is to explore its richness and also the consistency and evolution
of the main constitutional projects at stake. In regard to its normative aspect, the
P re face ix
main purpose of this work is to provide the readers with some important questions;
a standpoint from which to formulate new questions; and most of all a theoretical
ground from which to begin to imagine some possible answers. The book aims to con-
tribute to an ongoing conversation on a difficult and important topic, which has been
either neglected or the object of fragmented or too parochial studies.
Structure. The book shall be organized around five key historical periods:
1. The first constitutional phase extends from independence to the middle of the
nineteenth century (approximately from 1810 to 1850).
2. The second period begins by the mid-nineteenth century and follows until the
beginning of the twentieth century. We shall consider this the “foundational
period” of Latin American constitutionalism because it was in those years (par-
ticularly between 1850 and 1890) that the main Constitutions of the region were
written (in fact, after 200 years of legal history, the “institutional matrix” of Latin
American constitutionalism is still closely related to the “matrix” that was then
designed). This will be the period of order and progress—the period of consolida-
tion of the postcolonial legal structure.
3. The third period is the period of crisis of postcolonial constitutionalism. We shall
place this period in between the end of the nineteenth century and the beginning
of the twentieth. This period, which was profoundly marked by the presence of
positivist ideas, represents the time of the breakdown of the postcolonial legal
order.
4. The fourth phase is the phase of social constitutionalism. This period—we shall
here assume—begins with the crisis of 1930 and has it peaks at the middle of the
twentieth century (Second World War, import substitutions, and the definitive
entrance of the working class into politics). During this stage numerous constitu-
tional projects will appear, which aimed to recover the “social question” that the
old nineteenth-century Constitutions had forgotten or neglected.
5. The fifth and final period that we will examine will extend from the late twentieth
century to the beginning of the new century. We shall here refer to the “new Latin
American constitutionalism,” and study the latest and significant constitutional
reforms. These reforms, as we shall see, would still expand the social commitments
of the previous Constitutions, although they would keep the old model of concen-
trated political authority basically untouched.
These shall be the five main temporal axes of this study. The descriptive analysis of
each of those parts shall be punctuated by critical reflections related to them. For
instance, the study of the “first” regional constitutionalism shall be followed by a dis-
cussion about the relations established between the “new” and the “old” colonial legal
system; and the examination of the “foundational” Constitutions will be followed by
a reflection on the main philosophical, political, and economic assumptions of the
region’s “founding fathers”—and their influence. Similarly, the crucial incorporation
of social rights into the nineteenth-century Constitutions, in the twentieth century,
will introduce discussions about the issue of legal transplants and constitutional
grafts. Finally, the special emphasis put in the rights section of the Constitution, dur-
ing the last decades, will promote further reflections on the existing relations and ten-
sions between the two different sections of the Constitution.
x Preface
Inequality as a main concern. This study will be marked by some fundamental

insights and concerns, and a common thread. The basic concern of this work has
to do with inequality, which appears to mark all the different spheres of the orga-
nization of power—the social, political, and economic spheres—and which has his-
torically affected some groups more than others (women, indigenous groups, African
Americans, in particular). The main intuition will be that the institutional system had
a significant responsibility in the consolidation of that political, economic, and social
system, which remains, after 200 years of independence, profoundly unequal. Much
of the book revolves around that problem: the limits set by the past, the difficulties in
overcoming them, and the need to continue to address this issue today.
The common thread that runs throughout the book is the inquiry about a different
way of thinking and organizing democratic life. It is the search for a constitutional
conception that substantively differs from the one that became consolidated in the
past, this is to say, the model of “limited political liberties” and “ample economic lib-
erties.” It is the search for a different constitutional model, built around the ideals of
individual autonomy and collective self-government, which were present in the region
from the time of independence. To a large extent, the book is an attempt to cross the
constitutional thought of the region, trying to recognize, retrieve, sophisticate, and
redefine the American political thought of egalitarian roots.
ACKNOWLEDGMENTS
For helping me with this book, I want to give special thanks to my colleagues from
the Iniciativa Latino Americana para el Derecho y la Democracia (ILADD), with
whom I debated these issues; and also to Robert Barros, Marcelo Leiras, Adam
Przeworski, and Julio Saguir, for some excellent discussion sessions in sunny Buenos
Aires. In addition, I want to thank Miguel Godoy and José Arthur Castillo, from the
Universidad de Curitiba; and Pedro Salazar from the UNAM, for their bibliographical
support; and also Vicky Murillo, for organizing a seminar, at Columbia University,
NYC, where I began to think about these issues. I want to also thank Silvina Ramírez,
Maristella Svampa, and Horacio Tarcus, with whom I had an early debate about the
topic, at the CEDINCI, and particularly Miguel Ángel Benedetti, for his friendly, so
careful, and acute reading of a first draft of this book. Also, I want to give my thanks
to the participants of my Seminario de Teoría Constitucional y Filosofía Política, at
the Universidad de Buenos Aires, with whom I had numerous meetings where we
debated Latin American Constitutionalism; to my colleagues at the Universidad Di
Tella in Buenos Aires; to the friends at Christian Michelsen Institute (CMI), from
Bergen; to those who attended presentations of different parts of this book, at the
David Rockefeller Center for Latin American Studies, in Harvard; the Department of
Political Science, at Yale University; the law school of the University of Texas‒Austin;
the faculties of law and political science at the Universidad de Sao Paulo (USP);
the Seminario Latinoamericano (SELA). In addition, I discussed some of the argu-
ments presented in this book at the GIGA Seminar, in Hamburg; at the University of
Frankfurt; at the Universidad de la República, in Uruguay; at the Facultad de Derecho
and the Facultad de Sociología, at the Universidad de Buenos Aires; at the Universidad
Di Tella and at the Universidad de Córdoba. Many thanks to them all. Special thanks
to Joanna Richardson, Alan Moir, Marinka Yossiffon, and Michelle Mangan for their
help in the translation of this book.
R.G
xi
Latin American
Constitutionalism, 1810–2010
1
The First Latin American Constitutions

(1810–1850)
Introduction
An examination of Latin American constitutional history, concentrating particularly
on the foundational nineteenth century, reveals an enormous array of constitutions
that would suggest a situation of constitutional chaos. Since the appearance of the
first, early Constitution of 1811, in Venezuela, and until almost the end of the century,
103 Constitutions were enacted in sixteen countries. Some of these countries, such as
Bolivia or the Dominican Republic, had more than a dozen constitutions during those
years (Loveman 1993, 370). The number is extremely high for a relatively short period,
especially if we consider the nature of the document in question: Constitutions have
the aspiration to remain stable. Even worse than that, Latin America has offered the
image of a continent dominated by authoritarian and capricious caudillos. In agree-
ment with this view, many may want to characterize Latin American constitutions as
another expression of the arbitrary will of ambitious leaders, anxious to leave their
legal imprint in “their” territories.
Fortunately, when we study regional constitutionalism in a little more detail, the
picture that we find is substantially different from the one suggested. It is thus pos-
sible to appreciate a rich variety of legal models in dispute and, above all, the many
valuable constitutional ideas that appeared in the region—ideas from which we can
still learn a great deal. In the following pages, we shall explore and expose the vitality
and richness of the first period of Latin American constitutionalism.1
To Have a Constitution: Why and Against What?

Early Latin American history shows the existence of multiple constitutions, clearly
capable of answering two of the main questions that every Constitution should be able
to answer: first, why a Constitution; and then, a Constitution against what? Or, to state
it more precisely, many of the constitutions that appeared in the region during this
foundational period emerged after the identification of certain basic problems (social,
political, economic), and the conviction that it was possible and also convenient to
employ the existing constitutional energies in order to confront those difficulties.2
1
2 L atin American Constitutionalism, 1810–2010
One fundamental model, which many had in mind at the time of thinking about
how to organize the new societies, was the US constitutional model. This model
suggested that the Constitution could become an exceptional means for confronting
situations of extreme crisis. In other words, it suggested that the basic content of the
Constitution had to be defined according to the peculiar “drama” that motivated its
appearance. To state this does not imply that a Constitution should be only or mainly
moved by short-term goals related to the recent past. Rather, the idea is that a proper
constitutional project should take that recent past seriously.
In the Federalist Papers, James Madison provided a great lesson about how to think
about the Constitution. In fact, in the most significant and influential of his writings,
namely Federalist No. 10, Madison made it clear why the federalist group was writing
a Constitution and against what “drama” they were doing so. Thus, Madison properly
identified the grave problem that seemed to be undermining the basis of the common
organization—a circumstance that, in his opinion, forced all the states to rethink the
basis of the Union. According to the Virginian, the fundamental problem that they
were confronting was the problem of factions. He then defined factions in the fol-
lowing way: “a number of citizens, whether amounting to a majority or a minority of
the whole, who are united and actuated by some common impulse of passion, or of
interest, adverse to the rights of other citizens, or to the permanent and aggregate
interests of the community.”3
This was, for Madison, the origin of the main institutional challenge of the time,
namely, how to avoid the institutional system transforming the self-interested pref-
erences of a few, or the passions of many, into laws. For him, as for many of his col-
leagues, an important answer to this question resided in the federal Constitution:
the Constitution was, in fact, capable of filtering or diluting the growing influence
of factions in American public life. In this way, the Constitution was then recog-
nized as a crucial tool in the fight against the most serious political danger of the
time.
What Madison and many of his colleagues did, in the case of the United States,
finds a clear parallel in what many Latin Americans did in their region. That is to say,
many Latin Americans also tended to identify one or a few crucial public problems,
which the Constitution could help in resolving.4
A first case that may deserve attention, given its early appearance and the influ-
ence that it exercised in vast parts of the region, is that of Haiti. Shortly after
the French Revolution, and inspired by similar ideals, Haiti—then a French col-
ony in the Caribbean area—went through a violent and bloody revolution, which
was between 1791 and 1804. Notably, the revolution was led by black slaves, who
would in the end establish the country´s independence and at the same time abol-
ish slavery. Because of both the social composition and the radicalism of the revolu-
tion, the revolt generated enormous public resistance—in fact, panic—in America
and in the colonial center. As a consequence, the constitutional organization of
Haiti also evolved in a grossly imperfect and traumatic way.5 However, from the
very beginning of the Haitian Revolution, it seemed clear why and against what
Haitians wrote their first constitutions: what they were trying to do was to affirm
the independence of the country and the rights of the free blacks; and they were
doing so against radical evils such as the evil of political dependence and the evil
The First Latin Am erican Constitutions (1810–1850) 3
of personal dependency—more precisely, slavery.6 The emphasis and the anxiety

shown by Haiti’s early constitutional documents made, at least, one point clear:
Haitian people did recognize, with absolute clarity, what the great “drama” of the
time was, and for that reason they directed all their first constitutions (both in
the declaration of rights and in the organization of power) to mainly solve that
problem.
Another interesting case worth examining is the one offered by Simón Bolívar`s
early constitutional work. Bolívar was a crucial figure in the fight for independence
in the entire region, and also someone who was deeply involved in Latin America’s
constitutional life from the very beginning. In this double condition, Bolívar insisted
on claiming that the new nations had to use all their constitutional energies in one
single direction. Latin Americans, he believed, had to put the Constitution at the
service of the fight for independence. The Constitution had to help to consolidate the
triumph that Americans gained, with enormous difficulties, in their armed battles.
For Bolívar, the consolidation of independence was the great political objective of
the time. However, he also believed that the region was still using the Constitution
in the wrong way, as if that main objective were already achieved. In 1813, for exam-
ple, in his well-known “Memorial to the Citizens of New Granada by a Citizen of
Caracas,” he specified that “among the causes that brought about Venezuela’s down-
fall the nature of its constitution ranks first, which, I repeat, was as contrary to
Venezuela’s interests as it was favorable to those of her adversaries.”7
For him, it was clear that the only sensible constitutional response, in the face of
the military crisis that affected the region, was one that reversed what Venezuelans
had done in 1811. This is to say, for him, a reasonable constitutional response to the
crisis required the concentration of authority. Therefore, it was necessary to create an
Executive power endowed with extraordinary military and political faculties, politi-
cally non-responsible and capable of choosing his own successor.
Another early (and perhaps more successful) Latin American constitutional project
that deserves attention was the one advanced by Juan Egaña for Chile. According to
Egaña, the main problem faced by the new independent nations was the problem of
territorial, political, and above all moral dissolution, and the only solution for that
situation of degradation consisted in the concentration of authority in favor of a
shared moral ideal—the Catholic religion. For him, without a common religion, it was
impossible to build a coherent, sustainable, appropriate government.8 He stated that
without religion, thinking specifically about the case of England, one could create “a
nation of merchants, but not of citizens.”9
Still another interesting example is the one that comes from Juan Bautista
Alberdi’s work. His work is interesting for our analysis, both because of the particu-
lar content of his constitutional project and because of the way in which he justified
it. In fact, Alberdi, who was one of the most lucid and influential legal thinkers in
the region, praised the work of the first Latin American constitutional authorities for
reasons similar to the ones that we are here mentioning. For him, those early legal
thinkers had done their work properly. They had been wise enough to reflect upon the
great problems of the post-independence moment, and had correctly detected some
of the main problems they faced, which they tried to confront through the constitu-
tion. In chapter 2 of his most influential book, namely Bases y puntos de partida para la
organización política de la República Argentina, Alberdi described the merits of the “first
constitutional law” in the region in the following way:
All the Constitutions enacted in South America during the war of indepen-
dence were complete expressions of the needs that dominated their time.
That need consisted in putting an end to the political power exercised by
Europe in America, which began during the conquest and continued during
the time of colonialism. . . . Independence and external freedom were the
vital interests that concerned the legislators of the time. They were right:
they understood the needs of their time, and they knew what to do. (Alberdi
1981, 26)10
But for Alberdi, times had changed and it was now necessary to face new problems
and provide new constitutional solutions to them. It was time, then, to finally modify
those initial proposals, according to the new requirements of the region, and to mod-
ify the constitutional responses accordingly. “At that time, what was required was to
consolidate independence through the use of arms; and today we need to ensure that
independence, through the material and moral enhancement of our peoples. The main
goals of that time were political goals: today we need to concern ourselves with the
economic goals” (Alberdi 1981, 123). What was now indispensable, he claimed, was
to take the economic question more seriously, which required, in his view, to populate
the country. He believed that by achieving this goal, the country would guarantee the
desired, necessary economic growth. Of course, he believed that the required change
implied a change in the Constitution, which had to be fundamentally reorganized. For
him, the Constitution had to be oriented at fostering foreign immigration and at the
same time limit the potential excesses of an oppressive, threatening State.
Again, one may subscribe or not to Alberdi’s specific suggestions or his proposed
constitutional remedies. However, what interests us, at this stage, is to highlight his
rich approach to constitutionalism. Alberdi came to tell us that constitutionalism had
to assume a more modest task. Rather than try to define the basics of the national
institutional organization, constitutionalism had to have a more narrow focus: first
of all, it had to recognize what the problems of the time were. In other words, it had
to be first able to identify the main “drama” or “anguish” of the time, the problems
that defined their time. Only then, constitutionalism had to look for adequate legal
answers in the face of those problems.
In the end, all the revised examples illustrate a way of reasoning that characterized a
generation of constitutional thinkers. What seems clear is that many of those early think-
ers took constitutionalism seriously, formulated fundamental questions, and suggested
constitutional formulas that were apt to respond to those fundamental questions.
Two Foundational Ideals, Three Constitutional Models

Once we have identified the main “dramas” of the time, the question becomes how to
confront those dramas with the help of the law. More specifically, what constitutional
answers could one suggest after that process of identification? Historically, we know,
the answers greatly differed, partly because different sectors of society identified dif-
ferent problems, and partly due to the fact that different people suggested different
answers to those problems.
Interestingly, however, when we study Latin America’s constitutional history, we
find neither a chaotic picture (namely, innumerable solutions, going in any direction)
nor a picture that suggests the existence of merely discretionary, arbitrary solutions.
Rather, in the face of some problems or “dramas” commonly identified as such—
say, political dependence, economic crisis, political disorder, social injustice—Latin
Americans suggested a few limited and significant answers. The point is that, in the
end, there were just a few, different, always interesting constitutional responses at
stake.
The well-known Colombian jurist José María Samper began his book Los partidos en
Colombia by describing the existing constitutional disputes in his country. The picture
that he presented for Colombia is well representative of what we find in other coun-
tries in the region. According to his lucid description, what he found in his country
was a dispute between people who defended different comprehensive constitutional
projects. Samper made reference, then, to the existence of four fundamental legal
debates, namely, the debate about “more or less liberty for citizens”; the debate about
“more or less power to the central government” (or about the “expansion of municipal
entities”); the debate about “more or less intervention of the popular masses, through
the use of suffrage, in the government of the country”; and the debate about “more
or less development of the social forces” (Samper 1893, 16). These were, for him, the
main constitutional battles of the time. Colombians were divided in the face of funda-
mental questions related to the scope of individual liberties, democracy, and federal-
ism questions about the worth of concentrating authority or dispersing it with the
help of social organizations.
Most of these debates, we could add, were organized around two basic and
fundamental ideals, which seem to be inescapable in the history of constitutional-
ism. The first of these ideals is that of individual autonomy, and the second, collective
self-government. The choice of these two ideals is not haphazard. They refer to two
basic claims, which occupy a fundamental place in American political discussion since
the time of independence. Of course, the main military battles that appeared in the
region, since independence, were not fought with the idea of “autonomy” written in
the flags of the contenders. However, and just to mention one important example,
they did write in their banners expressions such as “religion or death,” which in the
end clearly referred to the place of individual autonomy in the new nations. That
particular dispute—related to the place of the Church in the organization of the new
societies—was decisive for decades in American public life (and perhaps until today)
and became manifest in multiple debates. For example: How should we think about
the relationship between the State and the Church? How much influence should the
Church have in the writing of education programs? Should different religions and
cults be tolerated, and for what reasons? Should organizations that are hostile to the
interests of the Church be authorized to function? How should we think and what
should we do about the patronato? How should religious authorities be appointed?
Could rights become dependent on the respect of interests of the Church? Finally,
these disputes around the power of the Church only summarize and illustrate the
many conflicts that appeared in the region concerning individual autonomy (dis-
putes about the right to privacy, disputes about freedom of expression or assembly,
and so on).
In similar terms, it is not difficult to recognize the influence exercised by the ideal
of collective self-government in America. It should be enough to state, for example,
that the same independence revolutions were crucially based in the republican vindi-
cation of the right of the locals to govern themselves. Those revolutions were directly
based on a claim of self-government, against the domination of foreign countries—
England, in the case of the United States; Spain, in the case of most Latin American
countries; Portugal, in the case of Brazil. From the early claim of no taxation with-
out representation, presented by the early American colonists against England, the
demand for self-government always occupied a privileged place in the disputes of the
new societies. Perhaps more interestingly, that claim continued to occupy a central
role in the new nations after independence, although in a very peculiar way. In most
cases, in effect, those individuals who had been recruited to the war of independence,
who took part in it, and who offered their lives in it, made the ideal of self-government
their own. And, as the historian Gordon Wood always emphasized in his study of the
American Revolution, they began to use the doctrines that were inculcated in them
against the leaders of the revolution. They demanded a more relevant role for the
people at large in the decision-making process; they asked for more space in politi-
cal participation; and they disputed the political organization that emerged from the
independence.
In conclusion, in America, the presence of these two constitutional ideals, indi-
vidual autonomy and collective self-government, in the foundational years of
constitutionalism seems apparent. Assuming this fact, in what follows we will exam-
ine three different approaches to those ideals, which were present in Latin America
since the independence days:
• A conservative approach, which from the very beginning of the independence

revolution assumed a restrictive view regarding the ideals of both autonomy and
self-government (conservatism, as we shall see, tried to organize the entire con-
stitutional system around one particular conception of the good—usually, a par-
ticular religion—and at the same time assumed a restrictive and elitist approach
regarding the role of the majority will in the organization of public affairs).
• A republican approach, which was directly opposed to the conservative one,
particularly in regard to the value of the ideal of self-government, and which at the
same time tended to see individual autonomy as subordinated to the needs of the
general welfare or the demands of a majoritarian politics.
• A liberal approach, which came to reverse the priorities of the republican one
(liberals, as we shall see, tended to organize the entire constitutional order around
the idea of individual autonomy and respect for individual choices, while showing a
disposition to establish severe restrictions to majority rule in the name of protect-
ing individual autonomy).
In sum, what we find here are three different views, namely, one that vindicated
the ideal of self-government, even at the risk of undermining the ideal of individual
autonomy (republicanism); one that, in contrast to the previous one, appeared to

be ready to sacrifice the ideal of collective self-government, in the name of preserv-
ing individual autonomy (liberalism); and a third view, that was open to challenge
both ideals at the same time, in the name of a comprehensive conception of the good
(conservatism).
This fact alone—the fact that Latin Americans found a few and interesting con-
stitutional answers in the face of their main constitutional “dramas”—is particularly
telling, among other things, because it contrasts with what seems to be, presently, the
only or dominant approach to constitutionalism. According to this approach, consti-
tutionalism includes some basic institutions and arrangements, such as the division of
powers, a system of checks and balances, a system of judicial review, and a bill of rights.
In other words, there do not seem to be many different possible variations regarding
what a Constitution could offer. Against that view, our initial approach suggests that,
from the very beginning, from its foundational moment, Latin American constitu-
tionalism recognized the existence of substantially different forms of responding to
its main, basic questions. One wonders why, at the present time, we tend to ignore
such a plurality of answers: Why do we tend to assume that constitutionalism is only
compatible with a few, rigid, already defined solutions?
In what follows, we shall organize our study around the three constitutional
approaches just mentioned, which we shall present according to the above descrip-
tion. This tripartite distinction, we could add, seems well supported by the history of
constitutionalism11 and accommodates pretty well some shared understandings about
liberalism, conservatism, and majoritarianism.12 Let us examine these different mod-
els in more detail.
The Republican Model: The Project of the “General Will”

The republican or radical model is the one that grew with, and was nourished by, the
independence fight.13 Radicalism is the view that took the cause of self-government as
its own, accompanying the collective demands for independence and self-determination
that appeared in the region during those early years. Radicalism maintained its influence
in Latin American public life since then, and at times (although only exceptionally, as we
shall see) it came to occupy a central role in the region’s public and political discussions.14
This is what happened, for instance, in the mid-nineteenth century, during the period of
social crisis that took place in the region, following the “1848 democratic revolutions” in
Europe. At that time, radicals did not defend the value of self-determination against a
colonial empire, but rather against a dominant class that prevented the expansion of the
political rights of the excluded sectors of society. In Latin America, those claims became
particularly audible in Colombia, Chile, and Peru, among other countries.15
Now, radicalism found serious problems for translating its main proposals into
solid constitutional projects, supported by significant sectors of society. In any case,
we shall here maintain, its influence in the development of constitutionalism in the
region proved decisive. The radical model was the “phantom” against which the other
alternative models developed their views and also the “phantom” that moved the rival
approaches to join forces to develop a common constitutional project.16
In what follows, we shall define republicanism in relation to its two main and
central features, namely its political majoritarianism, and what we shall call (for the
lack of a better term) its moral populism.17
The first of these characteristics, namely political majoritarianism, reveals the
republican view in its most drastic contrast with conservatives’ elitism: Radicals always
relied on the superior authority of popular majorities. What radicalism emphatically
affirms is what conservatives more emphatically rejected, that is to say the right of
majorities to exercise their self-government—the right of the majorities to decide,
by themselves, what rules they wanted to accept in order to organize their life in
common.
Of course, the ideal of self-government acquired, in Latin America, different expres-
sions at different times, and according to different thinkers. Among these views, there
is at least one that seems worth highlighting, given its degree of refinement and preci-
sion. This is the view presented by the Chilean radical Francisco Bilbao. Bilbao lived
a politically active and difficult life, which forced him into one exile after another.
In one of his more remarkable writings, from 1855, entitled El gobierno de la libertad
(written in response to General Castilla’s call for a reform of the dominant conser-
vative 1839 Constitution), Bilbao reflected upon constitutionalism and the role of
majority will in the new society. In that document, he referred to the French Jacobin
Constitution of 1793 as the only one that “deserves to be remembered” and made a
case for direct forms of democracy against those who appeared fundamentally skepti-
cal toward this ideal (Bilbao 2007, 321‒22); he defined the delegation of legislative
powers as a “crime against humanity” (326) and as “slavery disguised as sovereignty”
(“the history of Congresses demonstrates this claim”—he maintained, 322). He also
defended imperative mandates and the right to recall (321‒22): the people had to
choose delegates, which he defined as “agents who depend on the sovereign, subject
to imperative mandate,” with an authority that had to be “revocable,” according to the
will of the sovereign (327).
Clearly, the case of Bilbao is exceptional: There are not many other figures of his
type in the region. However, it is also important not to exaggerate his exceptional-
ism. His views, in the end, only sophisticated and carried to an extreme the proposals
that many other activists of his time also shared. Many of his peers also agreed with
his view that the new societies should not frustrate the emancipatory promises of
the independent revolutions—promises that had given content and legitimacy to the
revolutions.
Although through time the forms acquired by this majoritarian discourse var-
ied, it seems clear that radicals tended to support collectivist, anti-individualist, and
antiauthoritarian alternatives, based on majority rule. In line with this approach, Latin
American radicals always objected to decision-making processes that were exclusion-
ary, vertical, and concentrated in a few hands. We see these convictions expressed not
only, for example, in Francisco Bilbao’s radical critique to the delegation of power but
also in the strong anti-presidentialist proposals defended by the first radicals in New
Granada or Peru (who reacted against the authoritarian militarism of Simón Bolívar).
We also find that radicals consistently defended political federalism and decentraliza-
tion of authority (see, e.g., the work of American anti-federalists; the Mexican liberales
puros; or the radical liberalism in Colombia). Usually, radicals showed a clear preference
for a strict separation of powers because they wanted to eliminate undue interferences
upon the Legislature, and thus ensure the dominance of the majority branch (see,
e.g., the constitutional initiatives maintained, in this respect, by the British radical
Thomas Paine in the United States; in the analysis of the origins and working of “strict
separation”; see also Schmitt 2008, Part II). Other expressions of the same kind of
majoritarianism appear in the campaign led by the Colombian Murillo Toro in favor
of political inclusion and in the early and noted initiatives promoted by the Peruvian
Flora Tristán, in defense of the rights of women and workers.18 In addition, some
radicals advanced a novel and courageous defense of associations (“the need of our
century”),19 as an institutional scheme based on the cooperation of its members (see,
e.g., the writings of Juan Montalvo in Ecuador, or those of the religious Francisco de
Paula González Vigil, in Peru). Radicals also defended an intense State activism and
interventionism, which deeply contrasted with the notions of laissez-faire that were
so popular among the political elite of the time (see, e.g., the brilliant debate between
Murillo Toro and Miguel Samper in Colombia).
The other distinctive feature of political republicanism was its moral populism.
Moral populism implies the extension of the majority principle to the area of morality
and rights. Radicals proposed to organize the political and social life of the community
in agreement with majority rule. For example, describing the view of the Argentine
radicals at the end of the nineteenth century, the historian Pérez Guilhou maintains
that, for them, the definition of “rights” and their content fully depended on what
“the general will” decided in that regard (Pérez Guilhou 1997, 21). Now, in religious
communities, this commitment to majority rule could imply the public defense of
the majority religion. This was, for example, the view advanced by the anti-federalist
Richard Henry Lee against James Madison in 1784, when he claimed that religion
had to become the “guardian of morals” or when he maintained that the State had to
educate its citizens in favor of “virtue and religion” (Storing 1981, 22‒23). However,
it is important to note that this view is not based on the intrinsic value of religion but
rather in its instrumental or contingent value. The association between the State and
religion was defended, then (e.g., according to Lee) as a way of honoring the majority
will. It could also have been defended, as Jacques Rousseau did (in his proposal of a
“civil religion”) describing it as the cement of society; this is to say as an element that
could help keeping fragmented society together (Wolff 1996, 95; Cohen 2010).
In addition, radicals did not conceive private morality as liberals did, namely as a
separate and inexpugnable moral realm, where the State was prevented from using its
force. Republicans rejected this division between the public and private spheres. More
specifically, for them, the distinction between the collective will of the community and
the individual will appeared diluted. Probably the best way to illustrate this point is
through an analysis of the concept of civic virtues, which probably represents the most
important concept in the history of radical republican thought from its origins until
today (Pettit 1997; Skinner 1983). According to the republicans’ view, a self-governed
State requires the presence of an active citizenry; that is to say, citizens that are char-
acterized by certain moral qualities that are considered indispensable for the existence
and preservation of a free community. Without virtuous citizens, without citizens who
are ready to sacrifice themselves in favor of their country—republicans maintain—
society becomes completely vulnerable to the threat of external communities (Sandel
1996). This is why, for republicans, the idea of depoliticization, or political apathy, in
general, was unacceptable, the most dangerous scenario for a free country. This also
explains why radicals rejected the idea of a “neutral” State, and why they defended an
active State, ready to foster certain qualities of character among its members. A good
example in this respect appears in the 1814 Mexican Constitution of Apatzingán,
which employed a Rousseauistic language and explored the implications of an active,
non-neutral State. In article 20, the Constitution asserts the absolute predominance
of the general will over the particular will, calling for the “submission of citizens to the
law,” which is described as “a sacrifice of the particular intelligence to the general will.”
In the same way, in article 41 it defined the obligations of citizens, the importance
of obeying constituted authorities, and made reference to the “voluntary sacrifice of
personal goods and personal life, when the needs [of the country] demanded it.”
Now, what has been said here may wrongly suggest that republicans simply main-
tained a hostile approach to the notion of constitutional rights as inviolable and
unconditional. However, that claim is only partially correct. In fact, republicans had
a rather unorthodox approach to rights, which implied in part to restrict and in part
to expand the traditional approach to rights. Latin American republicans did not con-
centrate their energies in designing a list of entrenched fundamental interests aimed
at protecting and facilitating an individual’s private life. By contrast, they were mainly
focused on ensuring the social and economic conditions that favored an active public
life. In other words, their attention was focused on what we could call the “social ques-
tion,” that is to say, the (usually neglected) social conditions that were required to
make collective self-government possible.
With regard to political rights, we know that republicans played a decisive role in
their discussion, and always favored a more expansive approach regarding these rights.
At a time in which the right to suffrage was being severely restricted, and most of the
population appeared to be deprived of the right to vote (given their socioeconomic
condition, their gender, their race, and their education level), the republican contribu-
tion to the expansion of citizenry was of fundamental importance. In this respect,
few approaches were more influential and articulated than the one advanced by the
Colombian Murillo Toro. Murillo Toro was not only a crucial figure in the defense of
the universal character of suffrage but also its main, and isolated, proponent, at a time
when universal suffrage seemed completely lost, after the first, and failed, experience
with an extended suffrage.
Challenging the critics of universal suffrage, Murillo maintained that the essence of
suffrage was to become more perfect with its use. “If the republic has to be the govern-
ment of all and for all, or even better of every person by himself, and at the same time
it being accepted that the majority is unable to rule for itself, then we should abandon
the democratic system and proclaim a dictatorship” (Murillo Toro 1979, 93).
The other area where the influence of political radicalism was decisive was the one
related to the economic basis of the Constitution. In that respect, there are many
significant initiatives that help us recognize what radicals did in the area. One early
showing of the radical approach was the Reglamento Provisorio de la Provincia Oriental
para el Fomento de la Campaña, promoted by José Artigas. The document fostered the
redistribution of land, but (and this was quite unusual at the time) through progres-
sive and egalitarian criteria. In fact, its main object was to benefit, in the first place,
the most disadvantaged groups of society, including “free blacks,” “indians,” “zambos,”
“native Americans,” “widows with children,” and “creoles” (Petit Muñoz 1956; Sala de
Touron et al. 1978). In this way, the Reglamento adopted an egalitarian attitude toward
disadvantaged groups that at the time were usually ignored, or “integrated” through
force, or directly hit by the dominant political forces (clearly, neither the conservative
nor the liberal tradition seemed well prepared to deal with these groups in a respectful
way, which took into account the way in which State policies had hurt those peoples
during such a long time).20
Although Artigas’s Reglamento was truly exceptional at its time, one could mention
other egalitarian initiatives of the type passed during the nineteenth century. Among
them, one could quote the significant redistributive measures promoted by radical
groups in Mexico since the beginning of the independence (i.e., by the revolution-
ary priests Hidalgo and Morelos) and during the entire century (notably, e.g., during
and after the Constitutional Convention of 1857; see Reyes Heroles 1957; Sayeg Helú
1972; Zarco 1957).
Those examples help us recognize the influence—moderated but not irrelevant, as
some would prefer to say—exercised by American republicanism in the shaping of the
new constitutional order.
The Conservative Model: The Cross and the Sword

The conservative constitutional model could be summarized in the commonly used
phrase “the Cross and the sword”—in the words of religion and order.21 As the
Argentine publicist Félix Frías maintained, “Order under the shadow and protection
of the Cross, that is all my political program.”22 Arguably, this is the most traditional
and rooted constitutional approach in Latin America, one of the two more influential
in the region’s legal history, and the one that found expression in the most stable
Constitutions of the nineteenth century. In fact, the promise of stability was crucial
within the conservative proposal and also one that was particularly important in a
regional context that was distinguished by its instability and continuous changes.
In constitutional terms, the image of “the Cross and the sword” combined the
two main elements of the conservative thought. On the one hand, there is the Cross,
which represented the conviction that the new societies had to be reorganized accord-
ing to a comprehensive moral project (usually, although not necessarily, the project of
the Catholic Church). On the other hand, there is the sword, that is to say, the con-
viction that the use of coercion was necessary for recovering or imposing order—an
order directly linked to that comprehensive project. Many among the first and most
important constitutions that appeared in the region seemed to be clearly in line with
these conservative goals. Think, for example, about constitutions such as those of
Chile 1823 and 1833 (one of the most stable in the history of Latin America); those
of Colombia 1843 and 1886; that of Ecuador 1869; that of México 1843; or that of
Huancayo, Peru, 1839.
In the end, the conservative model implied a commitment with two theoretical
positions of enormous importance in America, namely political elitism and moral
perfectionism.
We could define political elitism in association with two fundamental ideals. On the
one hand, there is an ontological claim, crucial in the history of conservative political
thinking, according to which there exist certain political truths that need to guide and
orient public life. On the other hand, there is an epistemic claim, according to which
not all persons are equally capable of having access to those political truths.
A good example of how to combine both assumptions appeared in Federalist Papers
No. 31, where Alexander Hamilton referred both to a conviction—derived from John
Locke’s analysis—about the existence of “primary truths” and to the fact that not all
individuals were equally capable of having access to those truths.23
Through this approach, Hamilton was mainly doing two things. On the one hand,
he was defining the principles that had to guide the organization of the new institu-
tions. On the other hand, he was making clear that only a small part of the population
had to take part in the discussion about those institutions. In this way, he was trying to
intervene in a discussion that had philosophical overtones but that was mostly politi-
cal. Hamilton tried to advance a sophisticated and laic view about the Constitution,
which continues to have enormous influence in the region nowadays.
In Latin America, a similar and perhaps more extreme view was common among
political conservatives, and particularly among religious conservatives. There are many
other examples, for instance, the case of Bartolomé Herrera, in Peru. Herrera devel-
oped his approach during a long polemic that he maintained with the liberal Benito
Laso around the organization of politics in his country, and the political capacities of
the citizenry. According to Herrera,
The people, that is, the sum of individuals of all ages and conditions, have
neither the capacity nor the right to create laws. Laws are eternal principles
originating in the nature of all things, principles that cannot be clearly per-
ceived except by those who are accustomed to the difficulties of this mental
effort and exercised in the arts of scientific investigation. (Herrera 1929,
131; Basadre 1949)24
Herrera’s viewpoint presented, in that way, one of the most extreme, clerical, elitist
versions of Latin American conservatism. In any case, the importance of that view
moves us to think about the plausibility of the institutional organization proposed by
conservative constitutional thinkers, for Latin America’s new societies.
At this point, what is more important for our purposes is to explore the consti-
tutional implications of the conservative approach. In that respect, the conservative
view mainly suggested the concentration of authority in one territory and one per-
son. In other ways, it defended political centralism and a strong presidentialism. These
basic ideas, which seemed to fit so well in Latin America, found significant external
references in the British monarchical model and also in the Napoleonic Consular
Constitutions of 1799 and 1802, which were so influential in the region.25 At the same
time, these ideas were directly opposed to the goals of consecrating federalism and a
system of checks and balances, which so many liberals of the time defended.
In Latin America, this conservative political model, which combined an extreme
form of centralism with an extreme presidentialism, found different manifestations:
from the theocratic model that appeared in Ecuador with García Moreno; to the
Bolívarian model of a president appointed for life, which even Karl Marx objected to
in severe terms;26 to the isolationist authoritarianism of the Paraguayan “supreme dic-
tators,” such as Gaspar de Francia and Francisco Solano López (Romero 1970); or the
imperial type, as the one that was defended in Brazilian constitutionalism (Calmón
1959, vol. 4; Mendes et al. 2008); or the model of the “Supreme Conservative Power,”
created by the Mexican 1836 Constitution. Moreover, in some exceptional but signifi-
cant occasions, the conservative model adopted the form of a monarchical proposal
(Safford 1985, 360‒61).27
Let us now concentrate our attention on the other pillar of the conservative pro-
posal, namely its moral perfectionism. Moral perfectionism assumes that there exist
certain moral truths about what a good life is and that only a small part of the popu-
lation can recognize what that good life is. This fact, perfectionists assumed, put the
majority of people at the risk of having a corrupt or vicious life. This is why perfection-
ists believe it is important to have an external guidance that ensure that people live a
morally healthy, rather than a degraded, life.
Clearly, these strong moral commitments, normally associated with the Catholic
religion, found prompt constitutional expressions in all of Latin America.28 Typically,
regional constitutionalism proposed the adoption of clauses in favor of an official
religion (thus, in 81 percent of the constitutions enacted during the nineteenth cen-
tury); and in other cases prohibited the public cult of other religions (in 54 percent of
the nineteenth-century constitutions; Loveman 1993). In some extreme cases, such
as in that of Ecuador 1869, the Constitution reserved the condition of citizenship
only to those who professed Catholic faith. On other occasions, such as that of Chile
1823, the Constitution appeared together with a Moral Code that, in more than 600
articles, the State tried to regulate even the more apparently insignificant acts of
private life. The Code, in fact, regulated the relationships between parents and their
children, the mode of celebration of public festivities, the use of alcohol, leisure and
idleness, popular music, national dances; and defined conducts that deserved praise
and repudiation, and so on.
Meanwhile, the very influential Simon Bolívar, from his earliest constitutional
writings, proposed a laic version of Egaña’s Moral Code. In his well-known “Letter of
Jamaica,” he suggested a peculiar division of power that included a new branch—the
Moral Power—aimed at taking care of the education and moral health of the people.
According to Bolívar, this new institution was based in the Athenian Areopago and
its guardians of morals, in the austere practices of the Spartans, and in the Roman
institutions of Censors and domestic tribunals. This fourth branch of power was sup-
posed to become a “source of virtue” and had, as its main object, “the heart of men,
the public spirit, the good habits and the republican morality” (Belaúnde 1967, 184).29
According to the project that Bolívar presented in Angostura, the “Moral Power ” had
to be in charge of the “education of children and national instruction”; had to “purify”
everything that had become “corrupt in the Republic,” and work against “egoism, the
lack of love to the country, idleness, negligence”; it had to signal the “pernicious char-
acter of corruption.”30
The presence of these somehow picturesque initiatives should not prevent us from
recognizing the most important and perdurable influence of constitutional perfec-
tionism. This was not the consecration of moral prohibitions, official religions, or
moral codes, but rather a more indirect influence: the tendency to read or interpret
the entire set of constitutional rights from the perspective of a particular conception
of the good. In fact, conservatives did not consider constitutional rights as fundamen-
tal interests to be unconditionally defended by the State.31 Not surprisingly, many of
them considered that rights had to be protected under the condition of first ensuring
respect to religion. As the Chilean Juan Egaña stated:
It is a mistake to allow all kinds of calumnies and insults, or attacks on the

most sacred and inviolable principles of religion and morality, with the
expectation of punishing its authors later. . . . The sum of evils produced by
freedom of the press in religion, morality, the citizens’ mutual concord and
even the external credit of the nation, is far more grave than the benefits it
creates. (Egaña 1969, 84‒85)
We find a similar approach in Ecuador’s 1869 Constitution, which made the right of
association dependent on the due respect of “religious, morality and public order.”
That was also the approach of conservative constitutionalists in Argentina during
the discussion of the 1853 Constitution. For them, all the rights, including the right
to work or the right to participate in politics, had to be interpreted according to the
needs of religion.32
In sum, this particular conjugation—political elitism, moral perfectionism—came
to give content to the constitutional proposals of conservatism in America since its
foundational moment.
The Liberal Model: Neither Anarchy nor Tyranny

The third important constitutional project in America during the nineteenth century
was the liberal project. It is easier to examine liberalism when one has previously
revised the alternative models with which liberals were then in dialogue. Liberals, in
fact, always tried to become more attractive by showing the significant differences
that separated its own projects from those of its constitutional rivals.
In this work we define the liberal constitutional model through its double com-
mitment to the equilibrium of powers and State’s moral neutrality. The constitutional
implications of this double commitment are apparent. For liberals, the organic part
of the Constitution had to be dedicated to prevent the abuses and excesses that the
two alternative models seemed to authorize. Meanwhile, the dogmatic part of the
Constitution—the Bill of Rights—had to establish firm barriers in defense of an indi-
vidual’s life projects, which the two alternative models, in one way or another, seemed
incapable or unwilling to ensure.
This double commitment, which we shall now study in more detail, was finally
based on a nuclear, primitive, definitive value of the liberal project, which is the value
of individual autonomy. We can associate the idea of individual autonomy with the indi-
viduals’ capacity to choose and carry out their own life projects (Nino 1991). Through
their unrestricted defense of individual autonomy, liberals opposed, first, the moral
perfectionism that conservatives advanced—the conservatives’ vocation to organize
society around the demands of a particular religion. At the same time, and in this way,
the liberals’ defense of individual autonomy directly challenged the republican view,
which seemed open to removing individual will in cases of collision with the general
interest of society.
The most important institutional manifestation of this liberal commitment to free
choice appeared in the proposal for a list of individual, inviolable, and unconditional
rights. As the Chilean liberal Juan V. Lastarria (one of the most important critics of
the Chilean 1833 Constitution) put it,
at the time of sanctioning all these rights . . . the Constitution must do it in

an unconditional manner, as the US Constitution did it; because if it does it
as the rest of the modern Constitutions, by including clauses such as “but
the repression of crimes committed through the use of these freedoms” or
“in the manner defined by the law or a decree,” then the Constitution would
commit the grave mistake of leaving individual and social rights at the mercy
of political power. (Lastarria 1906, 2:271)
The defense of a list of unconditional rights directly contrasted both the conservative
position, which typically made rights dependent on the needs of religion, and the
republican view, which assumed that rights found their limits in the general welfare.
In addition, and through their strong defense of individual autonomy, liberals
manifested their commitment to an individualist view; that is to say, a view that,
methodologically speaking, recognized the primacy of the individual. Individuals were
viewed as the main standpoint from which to think about the organization of society.
At the same time, the liberal view was anti-collectivist and anti-Statist—it defended
spontaneity rather than regulations and controls (Jaramillo Uribe 1964, 50). For lib-
erals, the State had to abdicate both its perfectionist and regulatory ambitions. By
contrast, the State had to simply open the space for the emergence of a “spontaneous”
order, which simply followed from the individuals’ contracts and agreements.33
The previous points are important because they help us recognize what was, at
the time, a foundational assumption of liberalism, namely the idea that the State was
the main threat to individual liberty. In other words, the State was seen as the main
source of oppression, which for that reason had to be limited and contained. This is
why the Colombian jurist José María Samper maintained that
it is necessary to legislate as little as possible, to renounce the mania of reg-

ulation and imitation. In old societies, where interests are complicated and
have deep roots, the regulation of social life is not justifiable, although under-
standable. In new societies, however, which are exuberant and unruly, regula-
tions mean stagnation. Hispanic-Colombian rulers have an obsession about
ruling in a European way, copying their systems, which are not suitable for
the New World. This has produced the most absurd of all contrasts: regula-
tions in a democracy, two ideas that are mutually exclusive. If what we want is
to have stability, liberty, and progress in Hispanic-Colombia what we need is
that public officers adopt the practice of regulating as little as possible, trusting in
the good sense of the people and the logic of freedom; they should make efforts to
simplify situations, suppressing all artificial questions whose only purpose is

our mutual embarrassment. (Samper 1861, 486‒88)
In synchrony with his Colombian colleague, the Argentine jurist Alberdi—as did
many other important thinkers of the time—advocated a politics of laissez-faire.
For Alberdi, the State had to concentrate its efforts in ensuring “security” and also
certain “guarantees of protections”—aspirations that would be later reflected in the
Argentine 1853 Constitution, to which he decisively contributed in writing. The idea
was to establish, first, a list of protected rights and “individual liberties” that acted as
barriers that limited the regulatory anxieties of the State.
Of course, this view, which was particularly concerned with the protection of indi-
vidual liberty and rights, also had significant implications concerning the Constitution’s
scheme of organizing power. An interesting and well-known expression of the liberals’
approach to this issue appears in the (liberal) metaphor of “fighting against tyranny
and anarchy.” This simple idea traveled along the entire American region, over decades,
and represented an excellent summary of the liberal understanding of the division of
powers.
A plausible and rather obvious interpretation of that phrase would suggest that the
idea of “tyranny” referred to the abuses of the Crown—say, the abuses of the British,
Spanish, or Portuguese Crown—upon the American colonies; and/or the abuses of
authoritarian rulers and caudillos in America. In other words, the evil of “tyranny” had
to do with the types of governments usually promoted or defended by conservatives.
Meanwhile, the evil of “anarchy” referred to other kinds of evils, which we may associ-
ate with radicalism: the rebellious activities of Daniel Shays’s troops, in Springfield
against the dominant legal order; the early sack in the market of “Parián,” in Mexico,
after independence; the “social war” led by Juan Boves and the most disadvantaged
groups, in Venezuela 1814; among others. This is to say, the fight against “anarchy”
implied a fight against majority actions that were, according to many, sponsored by
radicalism.
One early and crucial historic event in the development of this liberal view, was
the institutional crisis that exploded in the United States in the years previous to
the Federal Assembly. At that time (approx. 1783‒1786), many local leaders began
to promote the sanction of laws (particularly, “tender-money” laws), which came to
give legal support to the same proposals that before, were advanced through the force
of arms.34 This situation decisively marked the life of the liberal project: most of all,
liberals wanted to avoid the possibility of having laws that were the mere products of
personal ambitions or collective passions. This is why they were so concerned with
redesigning the institutional system: they wanted to avoid, once and forever the
abuses of “one” or “the many.”
The system of checks and balances was their main institutional response against
those risks. On the one hand, the system appeared as an excellent remedy to the
conservative threat in that it promoted the decentralization of powers and defined
strict limits on the Executive’s normative capacities. On the other hand, it also
seemed useful against the republicans’ disposition to transform the legislative power
into an overpowering, sovereign body. For example, the system of mutual internal
controls proposed to divide the legislative body into two chambers and subjected
this body to a complex mechanism of controls and vetoes. Liberals wanted to thus
abandon the old system of “strict separation” of powers, which were promoted by
radicalism.
In Latin America, the liberals’ first constitutional steps were timid and fearful.
Typically, Latin American liberals followed constitutions such as the one of Cadiz
1812, which gave support to a slow withdrawal from the conservative model. This lat-
ter model suggested fewer powers to the Executive, more controls and authority to the
parliamentary body, and more space to individual rights (Breña 2006). Constitutions
such as those of Argentina 1826, Chile 1828, Nueva Granada 1830 or 1832, México
1824, Peru 1823 and 1828, and Uruguay 1830 represent very moderate examples of
such tendencies.35 Later in time, however, liberals in the region would promote more
powerful Constitutions: Constitutions that were more strongly committed to indi-
vidual rights, more emphatic in their defense of federalism and the decentralization
of powers, and firmer in their defense of internal institutional controls.
The previous pages allow us to recognize the variety and richness of the main
constitutional ideas that characterized early Latin American constitutionalism. This
remarkable panorama clearly contrasts with simplistic approaches to the topic, which
concentrate their attention in the frequent legal changes that characterized the region,
or in some of its picturesque features.
* * * *
The Moderating Power in Brazil and Mexico, and

Extraordinary Powers for the Executive
We shall dedicate the following lines to revise two novel proposals—very related—which
appeared in an area where the region offered some of its most innovative proposals: the
organization of the Executive branch (Loveman 1993). In this respect, we shall explore
two variations of the so-called “Moderating Power” (originally created, for different pur-
poses, by Benjamin Constant). We shall focus our attention on two examples, coming from
Brazil and Mexico—the two main countries where the proposal was then adopted.36
Before going into the details of these proposals, it may be worth mentioning that
Constant exercised a significant influence in Latin American Constitutions (or con-
stitutional theory). This influence becomes apparent, for example, in the exchange of
letters that he maintained with political leaders such as Simón Bolívar. As we know,
Bolívar always advocated for a very strong Executive.37 In his mature work, in par-
ticular, he proposed to follow the Napoleonic example through a Constitution that
included a powerful president and a centralized system of government, where all
municipal governments were directly suppressed.38 It was the same Constant who was
then one of the most severe critics of Bolívar.39
More interestingly still, Constant’s influence became apparent in the proposals
for a “Moderating Power,” which were somehow based on his original creation. In
effect, Constant had at one point presented a model of “constitutional monarchy,”
where power was divided into four different branches. According to this proposal, the
“fourth branch” was a “neutral” institution, the Moderating Power, a position that
was reserved to the Monarch, who had the mission of “balancing” the other three and
avoiding their possible excesses.
Constant’s institutional model was thus different from the traditional scheme
advanced by Montesquieu (and the three branches of government), and also different
from the one that was advanced by William Blackstone in England, which included a
Monarch in charge of the Executive position. As anticipated, his model found remark-
able expressions in Latin America, particularly in Brazil and Mexico, countries that
attempted to put into practice the notion of a neutral power.40 It is also true, however,
that many other countries discussed the possibility of developing institutions of the
type.41
In 1824, Brazil (and, in the same era, Portugal) adopted Constant’s proposal as
a kind of synthesis between “liberalism and absolutism” (Mendes et al. 2008, 163).
However, in fact, the model adopted in Brazil included a too powerful emperor, who
had the capacity to dissolve the legislature, the power to select the senators, the power
to suspend judges from their positions, and also to appoint and remove the ministers.
Not surprisingly, then, the system generated resistance among liberals, republicans,
and federalists.42
Meanwhile, in Mexico, the institution of the “Supreme Conservative Power”
appeared in the context of the changes promoted by the conservative reaction, after
a period of pro-federalist reformism, led by General Valentín Gómez Farías. Gómez
Farías’s federalist government generated profound resistance among traditional sec-
tors, including notably the Church and the Army, who worked against the authority of
the president. The anti-federalist resistance was then led by General Antonio López de
Santa Anna, who became the symbol of the return of centralism.
In the end, the centralist forces achieved their objective and put an end to the fed-
eralist experience. The most important institutional innovation that arrived at that
point was the introduction of a “Supreme Conservative Power,” inspired by Constant’s
“neutral” Moderating Power and directed to favor political stability.43
Perhaps not surprisingly, General Santa Anna resisted the presence of the “Supreme
Conservative Power” from the very moment of its creation. He understood that the
new institution was basically directed at limiting his own political capacities (Noriega
1972, 204‒5). The new institution, which many described as a Monarchist proposal
hidden under a republican mask, was composed of five members. Among its func-
tions, the new Power was in charge of declaring void those laws that contradicted the
Constitution (which transformed this institution in one of the earliest expressions of
“judicial review” or constitutional control in the region; Barrón 2001); it could also
declare the physical or moral incapacity of the president to exercise his function, inval-
idate the decisions of the Supreme Court of Justice when it encroached the powers of
the other branches, re-establish the existing powers, in case one of them was dissolved
through force, and arbitrate future constitutional reforms.
One of the main ideologists of the new institution was Francisco Sánchez de Tagle
(although, according to many, he only set in motion an institution that was in fact
designed by another noted conservative, namely Lucas Alamán).44 Sánchez de Tagle
justified the existence of the new power by making reference to the fact that “political
powers have frequently exceeded the limits of their constitutional functions” (Noriega
1972, 216). For that reason, he assumed, it was necessary to create an institution
that appeared as the “center of unity, the oracle of reason and good sense,” capable
of dictating “non-appealable decisions,” which became an “arbiter that ensured that
the different powers remained within their constitutional limits” (217). Sánchez de
Tagle defined this new institution as “a neutral power . . . because it cannot do things
by itself, unless another power forces it to work.” He compared it to a “dam”: like a
dam, the “Supreme Power” had as its mission to “resist” the destructive impulses of
the other forces (217).
The institution began to operate in 1836, and one of its first decisions was the
invalidation of an order coming from the Minister of War (who actually resigned his
position, offended by the intervention of the “Supreme Power”). However, and against
what its creators could have expected, the new branch then began to transfer new
faculties to General Santa Anna, opening in this way the path for the establishment
of a dictatorship.
2
Fusion Constitutionalism
The Liberal-Conservative Compact in the Second Half of the
Nineteenth Century
Introduction
In his work Ideas conservadoras de buena ley, published July 24, 1857, the Argentinian
politician Bartolomé Mitre lucidly examined the political landscape in his country and
in the region. After that exploration, he made reference to the diverse political alli-
ances that had been taking place among different political forces. More significantly,
he paid attention to the reasons that, in his opinion, favored the emergence of those
specific alliances, rather than alternative ones. Mitre’s study still has analytical force,
in both its descriptive and normative aspects.
Let us begin this chapter by revising some passages of his writing, where Mitre
makes reference to the three main political factions that dominated the region—
namely, liberals, conservatives, and radicals.1 In his words: “Among us, and also in all
the other American countries, there have been three main parties that represented
the main tendencies of society, and came to rule the country at one point. The three
parties are the conservative party, the liberal party, and the radical party” (Halperín
Donghi 1980, 183). Mitre characterized these parties in the following way. The con-
servative party, he said, “has been first monarchist, then favorable to the landowners,
immediately then favorable to the proprietors, and in the end it became reduced to
men of influence and good sense, who oscillated between progress and resistance.”
Then he described liberalism as a “reformist” party, responsible for enacting “memo-
rable laws,” defender of “ideas and progress,” and the one that “always rejected the
influence of caudillism.” Finally, he presented the radical party, claiming that it “has
been represented, among us, by the Barbarians. Artigas, Ramírez, Aldao, Rosas, those
were the apostles of the radical party, the party that advocated for an exaggerated
democracy and equality, that downgraded the intelligence to the level of barbarism,
instead of trying to raise the masses to the level of intelligence” (183).
At the end of his work, Mitre made reference to the conservatives’ political errors
and particularly to the erroneous criteria that—until then—had guided their politi-
cal alliances. In his view, conservatives had mistakenly (and obstinately) joined forces
with radical groups, which he found totally unacceptable, but also contrary to the con-
servatives’ interests. It was necessary, in his view, to put an end to that tendency,
20
Fu s ion Constitutionalism 21
and he began working toward the reunion of conservatives and liberals. This was, in
his view, the only political convergence that promised stability and progress for the
country. He stated:
A conservative party cannot exist but under the shadow of the liberal
banner. . . . That is the place, and that is what is lost when conservatives go
together with turbulent and unprincipled factions, which end up engulfing
conservatism and transforming it into an instrument for disorder. This is
what has tended to happen to both conservatives and moderates, when they
do not pay attention to the general interests of the country, and do not rec-
ognize what the spirit of their time is. This is what has tended to happen
when they decide to simply follow their immediate interests or impressions,
or their personal antipathies. (Halperín Donghi 1980, 183‒85)
In the following pages, we shall explore some of the theoretical grounds that explain
both the convergences and divergences between the three main political forces of
the nineteenth century. First, we shall briefly review the elements that induced dis-
agreement between them. Second, we shall study what is perhaps more important,
namely, the reasons that explained their agreements. Finally, we shall focus our study
on one particular political alliance, undoubtedly the most influential of them all (and
also the one that Mitre himself promoted), namely the alliance between liberals and
conservatives.
The Scope of the Differences

In order to recognize the differences that separated liberals from conservatives, conser-
vatives from radicals, and radicals from liberals, we may begin regarding the views of
each of these factions concerning the two foundational values of Latin American con-
stitutionalism. These are collective self-government and individual autonomy—two
values that, as we have seen before, played a crucial role in the region’s public life since
the independence period, and which are profoundly connected to the Constitution’s
main parts. Taking these basic concepts as our starting points, we may now pay atten-
tion to the factors that distanced each of those political views (liberal, conservative,
radical) from each other.
Liberalism and radicalism. As we know, radicals favored the expansion of the political
system and promoted—at least in principle—mass popular participation in public affairs.
Liberals did not share that view, which they found too risky. In their opinion, there would
be sufficient time for an opening of politics, but this was not the right time. This is why,
for example, Juan B. Alberdi proposed to experiment with suffrage “without reducing
it and without suppressing it” in order to “prepare the masses for the future exercise
of direct suffrage” (Alberdi 1981, 160). For him, universal suffrage had to be basically
reserved for the future, not for present times. In addition, liberals and radicals differed
in their views about rights and individual liberties. According to the former, it was nec-
essary to establish a “wall of separation” between the State and the individuals, so as to
ensure a strict respect of individual liberties (i.e., religion). According to the latter, to the
contrary, the very idea of establishing such a barrier was undesirable and also mistaken:
the State could not and should not be neutral regarding the people’s political dispositions
(i.e., their cowardice; their political apathy). For radicals, the State’s indifference concern-
ing the people’s political virtues put the health of the Republic at risk.
Radicalism and conservatism. As we know, profound discrepancies between these
two groups existed. In fact, each of these factions shaped their own political identity
in critical dialogue with the opposite, rival faction. Undoubtedly, the most important
disagreement between conservatism and radicalism appeared in their approach to
the organization of power. In principle, everything that conservatives claimed in this
area was denied by radicals, and vice versa. The political differences between the two
views became apparent in many circumstances, including their discussions about the
scope of the Executive’s powers, extraordinary and emergency powers, veto power,
majoritarianism, federalism, the proper relationship between representatives and
the people, and so on. At the same time, conservatives and radicals differed in their
approach to certain basic rights. Thus, while radicals normally wanted to expand social
guarantees and political rights, conservatives resisted those moves, rejected most dis-
cussions about the “social question,” favored a restrictive approach to political rights,
and—most of all—favored the protection of property rights.
Liberalism and conservatism. As we know, liberals and conservatives engaged in long
and bloody armed confrontations, over decades, all across the region. The tensions
between these two views emerged, at least in part, from their different views about the
organization of power and, more specifically, about the organization of the Executive
branch. According to most liberals, a too powerful Executive put the entire institutional
system under risk. By contrast, conservatives believed that it was indispensable to rely
on a powerful Executive, particularly at that time, when the new nations were—above
all—in search of political order and stability. In addition, liberals and conservatives
differed in relation to the geographical organization of powers: liberals advocated for
the political decentralization of the country, while conservatives defended the opposite
view, that is to say, centralism. Still more significantly, liberals and conservatives split
their positions in connection to issues of individual autonomy and personal rights. In
this respect, and particularly in their approach to the religious question, liberals and
conservatives adopted opposite or antithetic, rather than different views: liberals usu-
ally promoted religious tolerance, while conservatives used to demand the establish-
ment of a particular religious view. The conservatives’ banner “religion or death” gives
expression and content to the intensity of their demands in this respect.
Nothing of what is said in the previous paragraphs, however, denies the existence of
significant spaces of convergence between these different political views. In many cases,
what facilitated the convergence of their distinct views was the common fear, or common
decision to confront the third, excluded political force. In the following section, we shall
focus our attention on these convergences and the reasons that may explain them.
The Scope of the Agreements I: Conservatives and Radicals

Let us begin our exploration of political alliances by examining the junction between
conservatives and radicals. The meeting of these two forces may well be the most
unexpected of all. We have already explored the significant differences that separated
these two views: mainly, for most conservatives, the vast majority of people were sim-
ply unable to participate in politics; while most radicals assumed that mass political
participation was a necessary condition for a legitimate government.
In spite of all this, there is still some room for explaining the convergence between
radicals and conservatives, even at a political level, which was the area where their dif-
ferences seemed most difficult to reconcile.2 In any case, it seems clear that the main
point for agreement between radicals and conservatives resided in their common hos-
tility to liberalism’s demands for individual rights and personal autonomy.
In order to explore this issue in more detail, it may be worth recalling the contours
of the liberal view. We know, in fact, that liberals were inclined to defend a strict sepa-
ration between the State and citizen’s personal values, given the priority they assigned
to the principle of individual autonomy. Among other reasons, liberals advanced that
view because they assumed that nothing was more threatening to individual liberties
than an omnipotent State—the great Leviathan. Given these kinds of assumptions,
liberals advocated for the adoption of strong, unconditional rights. Rights were then
seen as “trump cards,” as the main “bricks” in the “wall of separation” that they pro-
posed to build.
Of course, the liberal idea of a “wall of separation” was born in a particular context,
and in the face of a particular political problem. According to Thomas Jefferson, the
first one who enunciated the metaphor, the idea was to construct a “wall of separa-
tion between the Church and the State.”3 The metaphor was particularly fertile at a
time when many “anti-federalists,” such as Patrick Henry, proposed to establish taxes
in favor of Anglicanism. It was at that moment that Jefferson, and his ally James
Madison, decided to launch a campaign against that initiative. As M. Konvitz put it,
Madison assumed that the removal of “some stones from the new wall of separation
between the church and the state of Virginia could make the entire wall to collapse,
and finally work for the state’s support of one particular church” (Konvitz 1957, 24).
Time went by, but the metaphor of the “wall of separation” continued to be useful
and fruitful in thinking about the limits of justified State action. Liberals continued
to say that the State had to be prevented from using its coercive force and economic
resources in order to impose its favored conception of the good.
It was against that view that radicals and conservatives reacted, in a collabora-
tive effort. Their opposition to liberalism proved to be so important that on repeated
occasions they decided to leave their differences aside and join forces against their
common rival. To extend the same metaphor, we could say that both political groups
proposed to demolish the same wall of separation that liberals had contributed to build-
ing and wanted to preserve. Conservatives repudiated the liberals’ aspiration to dis-
tinguish between the public and the private, which they found offensive toward the
religious sentiments of the majority. Similarly, republicans also opposed the existence
of a wall of separation, assuming that the very presence of that wall implied the idea
of State that was indifferent to political apathy, or unconcerned with society’s lack of
civic virtues (Sandel 1996).
Let us provide some examples of this convergence. In the United States, for
instance, and particularly during the Founding Period, conservatives maintained
that the State’s support of religion was necessary for the preservation of faith.
Radicals tended not to share that particular view. However, in a kind of “overlap-
ping consensus,” and coming from different philosophical assumptions, they occa-
sionally supported some of the conservatives’ institutional responses to liberalism.
Anti-federalist Charles Turner, for example, claimed that “without the prevalence of
Christian piety and morals, the best republican constitution can never save us from
slavery and ruin.” Without those “pious and moral principles,” he believed, “the life
and soul of a republican government and liberty, of which a free Constitution is a
body,” would come under threat (Storing 1981, 23). Like many radicals, he advocated
for the State’s support of a particular religion, either because that particular religion
was the one that the majority of the people embraced or as a way of fostering certain
civic virtues.
In Latin America, we also find some interesting examples of this confluence
between radicals and conservatives. In fact, some of the first constitutions enacted
in the region after independence reflected this mixture that included, on the one
hand, an emphatic radical Rousseauistic language (with references to the right to
self-determination, the sovereignty of the people, the general will, and the inalienable
rights of citizens); and on the other, a centralized and vertical political organization
(that was considered indispensable for preventing “anarchy” following the declara-
tion of independence) and systematic appeals to morality and religion, which were
seen as necessary in order to ensure unity and order. For some, a Constitution such
as that of Apatzingán, 1814, may illustrate the case of a radical-conservative alliance.
However, there are other examples that seem to be more appropriate for illustrating
the point. We can think, for instance, about the early Constitution of Haiti, 1801.
This Constitution was radically favorable to independence and emphatically posi-
tioned against slavery. At the same time, it organized power around the exclusive fig-
ure of the revolutionary leader François-Dominique Toussaint L’Ouverture (who was
appointed as perpetual governor), dedicated entire sections to religion and mores
(titles III and IV of the Constitution), and defined a list of desired virtues and repudi-
ated vices. We find a similar combination of radicalism and conservatism in Haiti’s
1805 Constitution, which rejected slavery in strong terms, defined a list of required
civic virtues (i.e., art. 9), honored the condition of “blackness” (the Constitution
established, in its famous art. 14, that all citizens of the country, regardless of their
skin color, would be called “black”; see Gruner 2010, 275), and set the basis of a
political Empire, to be built around the figure of the main political leader of the time,
namely Jacques Dessalines.
In Paraguay, we find a quite significant example (which would deserve close separate
attention) in José Gaspar Rodríguez de Francia, who ruled his country during almost
thirty years, since 1814. Appointed dictator for life, Francia—El Supremo—fought for
keeping the independence and self-sufficiency of Paraguay. In order to achieve those
goals, he restricted river traffic, banned foreign commerce, and developed harsh poli-
cies against his opponents. At the same time, he abolished the Inquisition, suppressed
all aristocratic privileges, promoted innovative agrarian and educational policies, and
seized the possessions of the Roman Catholic Church. During his long decades in
power, Paraguay became an almost completely isolated country (even though Paraguay
was, during those years, a refuge for political leaders like José Artigas, deserters, and
runaway slaves).
In Argentina, the best expression of that alliance between conservatives and radi-
cals may be found in the government of Juan Manuel de Rosas. A good illustration
of this collaborative work appears in the writings of the republican Pedro de Ángelis,
who was one of Rosas’s main publicists. Like his American counterparts, De Ángelis
proposed the internalization of morals—civic virtue in this case—in order to make
republican government possible. He claimed, “The most interesting part of Licurgo’s
legislation was the one related to the education of Spartans,” which was distinguished
by the “severity of their habits, which frequently replaced the influence of the law”
(De Ángelis 1946, 285). De Ángelis advocated for the typical republican goals, which
included a defense of popular government, the maintenance of public order, and the
fight against corruption and the evil of commerce. In a characteristic paragraph of his
writings, he stated:
If we consider carefully the history of the Carthaginians, we can see that its
constitution can never be firmly established. Agitated by factions and anar-
chy, the government was always the victim of intrigues . . . the commercial
spirit that reigned there completed the ruin of the old institutions, and came
to corrupt public morals entirely, by their violent initiatives, by its many
injustices, its disastrous expeditions, by their wicked wars. (De Ángelis 1946,
284)
Under the inspiration of intellectuals such as De Ángelis, Rosas’s government synthe-

sized well the ambitions of relevant representatives of both the conservative and radi-
cal camp. The historian Jorge Myers referred to this convergence through the formula
order and virtue, which aptly summarizes the normative nucleus of the alliance (Myers
1995).4 Later on, we shall examine other, more contemporary examples of this partic-
ular alliance, including the case of Getulio Vargas’s administration in Brazil. Vargas’s
government, as we shall see, had an authoritarian and rather conservative character,
particularly at its beginning, but was justified through a political discourse that was
both highly critical to liberalism and highly favorable to “substantive democracy” and
the “government of the masses” (dos Santos 2007).
The Scope of the Agreements II: Radicals and Liberals

(Anti-Bolívarian Politics)
Let us now concentrate our attention on the convergence between radicals and liber-
als. As we know, these two political views were normally in tension (particularly as a
result of their divergent positions about the organization of power), although occa-
sionally liberals and radicals worked together and forged influential political alliances.
If they found the need to work together, this was normally due to what they perceived
as the excesses of conservatism, either in the area of the organization of power or
regarding individual rights.
On several occasions, liberals and radicals worked together in order to put limits
on governments that embraced a particular religion, or directly assumed the interests
of the Catholic Church as their own. We see this rapprochement between liberal and
radical groups, for instance, in Ecuador, after the birth of García Moreno’s “theocratic,”
repressive, and persecutory State. We also find examples of this reunion in Mexico,
through the work of the liberal-radical group—the so-called liberales puros—trying to
establish checks against the increasing influence and power of the Catholic Church.
As we know, the liberales puros had a decisive influence in the institutional develop-
ment of the country, and then in the enactment of the 1857 Constitution. In Chile
we also find some interesting illustrations of this partnership in the mid-nineteenth
century, when liberals and radicals reacted to the growing influence of conservative
Catholics. This also occurred during the government of José Joaquín Pérez, who pro-
moted increasingly conservative politics.5
Still more common was the reunion between liberal and radicals as an attempt
to resist the authoritarian features developed by conservative governments. We find
clear examples of this situation in New Granada, Venezuela, and Peru, where liberals
and radicals joined efforts in order to resist the authoritarianism of Simon Bolívar—or
its legacy. Another interesting illustration of this case appears in the testimony of
the famed Colombian liberal Ezequiel Rojas. Rojas was the author of an incendiary
pamphlet (unusual for a liberal like him), where he justified the right to resistance,
the disobedience of power, the armed rebellion of society, and even tyrannicide: so
strong were his sentiments against Bolívar’s authoritarianism.6 His is the case of a
liberal who turned radical in the face of an extreme version of conservatism. This is an
example of what Rojas wrote at that time:
Does the commander of the Constitution commit a high-treason crime

against society, when he destroys the Constitution and its legitimate
government? Yes: it is not possible to say no. And does he commit that
crime, when he usurps power and invest himself with absolute powers,
so there is no more law than his own will? Yes: it is not possible to say
no. Should that crime remain unpunished? No: one thousand times no. Is
there a moral and legal obligation to obey the chief of state who usurps
public power and governs without any title and against the law? No: one
thousand times no . . . [Do citizens have] the perfect right to rebel against
that Government, destroy it, punish the usurper and re-establish the
violated institutions? Yes: one thousand times yes: it is not possible to
say no. And, do they commit a crime against the law or against morality,
when they execute that idea? Definitely no. (Restrepo Piedrahita 1997,
1:298)7
Other examples of this alliance between liberals and radicals are the antiauthori-
tarian and anti-Bolívarian Constitutions of Venezuela 1811 and Peru 1823. Also,
the Colombian Constitution of Río Negro was fundamentally organized against the
Executive power.8 The Río Negro Constitution—a Constitution that was the product
of a Constitutional Convention that directly excluded conservative groups—was the
highest point of a long period of collaboration between Colombian liberals and radi-
cals. Not surprisingly, the final product of the Convention was a radically federalist
and strongly anti-presidentialist Constitution.
The Scope of the Agreements III: Liberals and Conservatives

We shall now concentrate our attention on the most important and influential politi-
cal alliance of the time, namely, the one between liberals and conservatives. Given the
significance of this union for the constitutional development of the entire region, we
shall examine the convergence of these two forces in some detail. First, we shall pay
attention to their agreements regarding the organization of power, and then we shall
focus on their agreements concerning the organization of rights.
The organization of power. Liberals and conservatives found many points of conver-
gence concerning how to organize the institutional system, which allowed them to
leave their differences aside. First of all, both liberals and conservatives were severe
critics of political radicalism, which they associated with irrationality and excesses.
The irrationality that they identified in their political rivals’ initiatives appeared,
above all, in the way in which radicals proposed to organize political power.
We can find a good starting point for our discussion in the texts of the main lead-
ers of the influential 1837 Generation, in Argentina. Its associates, who came to wield
enormous influence in the constitutional life of the country, were disenchanted with a
policy heir to the abuses of the Jacobins of the French Revolution.
One of the members of the group, the young Esteban Echeverría, who in this respect
would be closely followed by figures such as Alberdi and Domingo Sarmiento, referred
to the need to end, for once and for all, radicalized demands for more democracy.
Echeverría then distinguished between the sovereignty of reason and the collective will,
and advocated a new way of doing politics, one that would be fundamentally concerned
with honoring reason rather than the collective will of the people. In his main work,
Dogma Socialista—a book that his rival Pedro De Ángelis described as the product of “a
disturbed mind” (De Ángelis 1946, 385), Echeverría clarified the distinction between
the two concepts. He claimed: “The sovereignty of the people is absolute when it has
reason as its norm. Only collective reason is sovereign, and not the collective will. The
will is blind, capricious, irrational: the will only has wants; the reason, instead, exam-
ines, balances, decides.”9 Democracy, he said, was not “the absolute despotism of the
masses or the majorities, but the regime of reason.10 For Echeverría, it was time to
begin the transit from the sovereignty of the people to the sovereignty of reason (Botana
1996). For that purpose, he maintained, it was necessary to put aside the old obsession
with the “general will” to start worrying about making wise choices, capable of raising
the country from a situation of disorder and backwardness. His views reflected, ulti-
mately, the growing distrust of the political elite toward the masses.
Echeverría’s distinction between the sovereignty of the people and the sovereignty
of reason helps us recognize a fundamental gap that existed in most Latin American
countries between two different political camps. This fundamental division separated
those who believed that the independence revolution had to be followed by an expan-
sion of political rights (the extension of suffrage), and those who viewed this alter-
native as fundamentally threatening; those who were open to take the principle of
majority rule seriously, and those who distrusted that principle; those who wanted
to foster popular participation in politics, and those who wanted to prevent it. More
ambitiously, what we find here is a division between those who assumed that public
decisions gained respectability, legitimacy, and impartiality, as a result of a public process

of collective reflection, and those who—opposing this view—considered that isolated
reflection among well-prepared people was a necessary condition for impartiality. This
split marked the political life of the region and was perhaps the most important theo-
retical background in the many institutional discussions of the time concerning the
organization of power.11
Liberals and conservatives came to think that, on the one hand, the increase in the
number of participants in an assembly reduced the quality of its decisions. They found
an inverse correlation between the number of participants in a discussion and the fair-
ness of the decisions. On the other hand, they assumed that the proximity between vot-
ers and elected damaged the possibility of having frank discussions and finally decisions
favorable to the interests of all. That is, for them, there was an inverse correlation between
the proximity of representatives and represented, and the impartiality of the decisions taken.
Rights. There were too many things that separated liberals from conservatives in
relation to individual rights. As we know (and just to revisit our previously used meta-
phor), liberals wanted to build and maintain a “wall of separation” between the State
and the citizens’ beliefs, which conservatives wanted to tear down: for the latter, the
State had to play a decisive role in the enforcement of the “correct” moral values. The
dispute between liberals and conservatives, in this respect, was serious and profound,
and found immediate translation in their thinking about the Constitution. However,
and in spite of this fundamental difference, liberals and conservatives still had many
important points of coincidence in their approach to constitutional rights.
First of all, liberals and conservatives shared a rather restricted view about consti-
tutional rights: both of them tended to focus on civil rights, leaving apart any major
concern regarding social, economic, or cultural rights.12 In contrast with the radical
view, liberals and conservatives proposed the adoption of more austere Constitutions
(that is to say Constitutions that were thinner in their commitment to basic rights).
Constitutions such as those promoted by radicals appeared to them as empty prom-
ises catalogues, a threat to the established order, a promise of intersectoral conflicts,
and therefore a sure path to political instability.
Liberals’ and conservatives’ opposition to the radicals’ view on the “social question”
was an important reason for their working together. However, there were many other
aspects, related to constitutional rights, which induced them to join forces. First of all,
both liberals and conservatives shared a particular concern for the right to property.
In addition, they also favored the protection of minority rights under a very restricted
definition of “minority”—a definition that was limited to the minority of the “rich
and well born.” Moreover, they both advocated an extremely narrow view of politi-
cal rights.13 Their restricted view of political rights implied leaving apart from civil
society large and numerous groups, including, typically, indigenous groups. All these
ideas then found expression in the text of the new constitutions. The historian Frank
Safford, for example, maintains that “distrust of the political capacity of the mass of
the people was reflected in the property qualifications established in almost all of the
centralist constitutions of the 1820s and 1830s” (Safford 1985, 363). In the end, very
commonly, certain basic assumptions about the capacities of the citizenry were then
expressed in specific constitutional clauses related to the organization of power and
the distribution of rights (we will return to this point below).
In Latin America, we find numerous examples of this restrictive view about rights.
Let us consider four examples, coming from four of the most important and influen-
tial Latin American jurists of the nineteenth century, namely the Mexican José María
Luis Mora; the Colombian José María Samper; the Venezuelan Andrés Bello; and the
Argentinian Juan Bautista Alberdi. All of them refused to accept the inclusion of social
or economic rights in the Constitution (no major surprise about that), advocated for
a very narrow approach to political rights, and showed a decisive concern for property
rights, which they considered indispensable for the protection of national interests.
The Mexican Mora, for example, advanced his view on the topic in his Discurso sobre
la necesidad de fijar el derecho de ciudadanìa en la república y hacerlo esencialmente afecto a
la propiedad. There, he expressed his fears, which he shared with many members of his
class, regarding the emergence of new and unexpected demands capable of reaching
“even the lower classes of society.” In his words:
The worst of all evils confronted by our Republic is the one caused by this
dangerous and tragic word [equality], which resulted in the scandalous prod-
igality with which political rights were distributed. . . . If we closely examine
the origins of our disgraces we will find that all of them derived from bad
administrations, and also that these bad administrations resulted from
lethal elections . . . in which political rights were distributed to notoriously
incapable people, who should have never taken part of those electoral pro-
cesses. . . . To put it simply, we need national Congress to define who have the
capacities necessary for exercising citizens’ rights, and to exclude all those who
cannot inspire any confidence at all, namely the non-proprietors. (Mora 1963,
630‒31, emphasis in original)
In that way, Mora explained his profound distrust toward the political capacities of the
people at large. For him, the dispossessed did not deserve political rights, which had
to be reserved only for property owners.
We find a substantially identical approach in some of the writings of the (liberal)
Colombian jurist José María Samper, who in his mature years became one of the draft-
ers of the strongly conservative 1886 Constitution. Samper defined universal suffrage
as “one of the main causes originating our revolutions; the source of elements destruc-
tive of the social order.” In his opinion, the extension of political rights amounted to a
“monstrous contradiction,” which “put the destiny of the Republic in the hand of the
ignorant masses” (Valencia Villa 1992, 141).
Similarly, both Bello and Alberdi—crucial figures in the development of the
liberal-conservative constitutional theory in the region—worked against the extension
of political rights to the majority of the population. They argued that most people were
still not prepared for (or interested in) dealing with the public affairs of the community.
This is why the Chilean 1833 Constitution, in which Bello had a decisive participation,
was so restrictive in the distribution of political rights. Bello’s attitude toward political
rights had another, more interesting manifestation, in the notable Civil Code in which
he deposited his intellectual energies for years. For him, as he put it in 1836, the people
are “less concerned with the conservation of their political liberties, than with the con-
servation of their civil rights” (Jaksic 2001, 212).
Alberdi’s view on the topic was still stronger than that of Bello. In his Sistema
Económico y Rentístico, Alberdi maintained, first, that the reorganization of politics
required the convergence between the two main political groups of the country, and
second, that the convergence between the two demanded a reconsideration of the
place reserved for rights and liberties in the Constitution. Like Bello, Alberdi dis-
tinguished between political liberties and civil liberties. For him, the former, which
mainly included economic liberties, had to be generously distributed among all
individuals, “natives and foreigners.” In contrast, he added, political liberties had to
remain restricted, at least until the majority of the people acquired the requisite politi-
cal capacities (Alberdi 1920, 14:64‒65).
This peculiar approach to rights and liberties, which occupied such a central place
among influential jurists, represented a crucial point of agreement between liber-
als and conservatives, and was complemented by their defense of ample economic
liberties.
Of course, in spite of their fundamental agreements regarding rights, liberals and
conservatives remained separated with regard to numerous other issues. However,
that basic accord helps us understand the depth and stability of the political compact
that they signed.
The Liberal-Conservative Fusion

As we know, liberals and conservatives were political enemies in a majority of Latin
American countries during the first half of the nineteenth century. We may recall, in
this respect, the brutal way in which Chilean conservatives treated their opponents
since the beginning of the Conservative Republic in 1833; the bloody confrontations
between unitarios and federales in Argentina; the Federal War in Venezuela, which also
divided liberals and conservatives; the cruel confrontation between the two groups
in Colombia, which included episodes of Civil War; the battle of the Mexican liberales
puros, in Mexico, against the forces of the conservative Santanistas. Notably, however,
by the mid-nineteenth century, what we begin to find are examples of the opposite,
that is to say, of liberals and conservatives coming together, politically speaking. We
may mention, in this regard, many other examples, including the liberal-conservative
“fusion” in Chile (1857‒73), the 1853 Constitution in Argentina, and also the 1886
Constitution in Colombia, which were written by representatives of both the liberal
and conservative groups. We find similar cases of convergence between these two
groups in Mexico, Venezuela, and Peru. After years of severe disputes, liberals and
conservatives were beginning to join forces and forge an alliance that would remain
intact for decades. What could explain these surprising political developments?
In the preceding pages we have examined the existence of a strong, common theo-
retical basis, which helped us to render such agreements intelligible. In this section
we shall focus on other causes and reasons, more related to history and politics. In
particular, we shall concentrate our attention on the terror caused by the radical revo-
lutions of the mid-nineteenth century.
We may begin this explanation by mentioning that, by 1848, Europe had been
shocked by the “red” revolutions, which demanded the democratization of then still
hierarchical and exclusionary societies. The same wave of political radicalization also
reached the Latin American coasts in different ways (in fact, many Latin American
activists actually took part in those events, and then moved back to their home coun-
tries, where they tried to reproduce them). An important expression of this influence
was the sudden emergence of numerous democratic associations and trade union
associations in Latin America. These groups favored an alliance between workers and
students, for example, an alliance that had had an enormous impact in Europe, in
the origins of the class conflict that exploded in 1848. In Latin America, these new
social movements became particularly relevant—in Chile, for example, through the
emergence of the Sociedad de la Igualdad; Nueva Granada, which the historian Richard
Gilmore identified as a “socialist mirage” exploded; and Peru with growing social ten-
sions fueled by artisans and low-paid workers. Suddenly, Latin America became a ter-
ritory where new forms of political confrontation, class conflict, and social disorder
took place. Property seemed menaced and the old colonial order in a terminal crisis
(see, e.g., Collier 1967; Gilmore 1956; Gootenberg 1993). Undoubtedly, these events
worked in favor of the conservative-liberal reunion.
Writing about the “logic” of the convergence between conservatives and liberal
groups in his country, the well-known Colombian constitutional scholar Valencia Villa
claimed:
[Since 1854] conservatives and liberals began a shifting relationship, which

oscillated between a civil war and an electoral and governmental coalition,
between a National Front and an armed conflict. . . . When they were alone,
when they did not find competition to the right or to the left, or when the
popular movement was under control, the traditional parties fight each other,
even to civil war (the country has gone through eleven armed conflicts of a
bipartisan character, between 1811 and 1957). By contrast, when the two
parties were not alone, when they saw other rival forces coming from outside
the system, or when the popular movement came out of control, then the two
groups joined forces and formed a common front for their survival . . . (there
have been six experiences of a bipartisan coalition of a preventive or restor-
ative nature between 1854 and 1957). (Valencia Villa 1987, 133‒34)
Of course, in order to make our point, we do not need to entirely subscribe to Valencia
Villa’s picture or assume that his analysis was valid for the entire region. However, the
author’s conclusions seem to point in the right direction: the threatening presence of
alternative forces (and in particular grassroots forces) is key to understanding the sud-
den alliance between forces that traditionally “fight each other, even to civil war.”
In countries such as Colombia or Peru, the abrupt convergence between the two
groups was fostered by the emergence of growing social tensions. These tensions,
again, followed the conflicts that took place in Europe in 1848. In Argentina, liberals
and conservatives wanted to put an end to a period characterized by political violence
but also wanted to avert the plebiscitarian features that they associated with Rosas’s
dictatorship.14 In Chile, the union between liberals and conservatives was favored by
the growing authoritarianism of the dominant regime but also provoked by an unex-
pected growth of social unrest.15
The fact is that by the mid-nineteenth century, most countries in the region had
Constitutions that were written by representatives of the liberal and conservative
groups—those old enemies who appeared now as political allies. In the following
pages, we shall explore some of these processes of fusion constitutionalism in more
detail.
Fusion and Constitution

The constitutions adopted as a result of this gradual overlap—sometimes formal,
sometimes implicit—between liberal and conservative ideals were usually successful,
if we evaluate them in terms of stability and compare them with the Constitutions
that preceded them. Most of these constitutions went beyond the twentieth century
and remained more or less unmodified for a while, allowing the rooting of the new
institutions of fusion in the legal traditions of the region.
We find good illustrations of these new types of constitutions in Argentina’s 1853
Constitution (which was drafted by representatives of both liberal and conservative
groups), Mexico’s 1857 Constitution (mainly drafted by a convergence of moderate
liberals, “pure” liberals, and conservatives), and the Peruvian Constitution of 1860
(which synthesized the different constitutional models present in the country in the
previous years).16 Uruguay’s Constitution of 1830, which remained stable until the
late twentieth century, combined a liberal structure, which included a list of individual
rights and a classic system of division of powers, with a strong presidentialist orga-
nization and very restricted political rights. In Chile, we find the clearly conservative
1833 Constitution that regulated the political life of the country during most of the
nineteenth century. However, since the 1850s, and after the pressures of liberalism,
the Constitution began to lose its main conservative features. In this way, even Chile’s
constitutional system became an expression of a conservative-liberal Constitution.
In Colombia, we find a different process that, in part, reverses the one that we find
in Chile. In effect, in the Colombian case we can see that, by the end of the century,
the prevalent radical constitutional model began to lose its strength, to be finally
replaced by a different one, characterized by the inclusion of numerous conservative
institutions.17 In Paraguay, we find the 1870 Constitution, which was clearly inspired
by Argentina’s liberal-conservative 1853 Constitution (even though the Paraguayan
document strengthened some of the more conservative features of the Argentinian
document—in particular, those related to the territorial organization of the coun-
try, given that Paraguayans wanted to consecrate a clearly centralist Constitution)
(Mendonca and Mendonca 2009).
In general terms, which we shall try to specify in more detail below, we could men-
tion the following as the distinctive characteristics of these new fusion constitutions.
They:
• established religious tolerance, without necessarily affirming State neutrality. Most of

the new constitutions resisted the conservative pressures in favor of establishing a
particular religion and replaced that requirement with some alternative formula. On
some occasions, like in Argentina, the liberal-conservative Constitution reserved a
special place for the dominant Catholic faith (e.g., art. 2 of the Constitution, which
ambiguously maintained that the State “supports” the Catholic religion), while at
the same time affirming religious tolerance (art. 14). On other occasions, like in
Mexico 1857 (or, similarly, in Ecuador 1906), the Constitution remained silent on
the subject, which was a way of affirming the impossibility of either group conse-
crating its own viewpoint on the subject. In Chile, the strongly religious profile of
the 1833 Constitution was moderated after some decades, when an interpretative
law (from 1865) opened room for (relative) religious tolerance.
• Defined a system of checks and balances, but one that was partly unbalanced in favor of
the president. Most of the liberal-conservative constitutions favored the traditional
system of division of power, accompanied by a system of checks and balances, in
line with the US constitutional model. However, and as a consequence of the con-
servatives’ pressure, the new Latin American constitutions introduced some sig-
nificant changes with regard to the US’s inspiring example. Typically, they created a
too powerful Executive power, which challenged the structure of equilibriums that
characterized the traditional system of checks and balances. Juan Bautista Alberdi,
for example, explicitly proposed to (partially) leave aside the US model, at least in
this respect, and follow instead the example of the 1833 Chilean Constitution. For
him, the Chilean Constitution demonstrated that there existed a good alternative
in between “the absolute absence of government and a dictatorial government.”
This was, for him, the model of a “constitutional president who can assume the
faculties of a King” when he is confronted by situations of “anarchy” (Alberdi 1981,
181).18
• Established (neither a federalist nor a centralist Constitution but rather) a center-
federalist model. The new liberal-conservative Constitutions emerged after a violent
period of disputes between centralist and federalist groups. This is why, in most
cases, the new liberal-conservative Constitutions did not want to consecrate either
a purely centralist or federalist territorial organization of the country. What they
tended to do, instead, was to adopt mixed or more ambiguous solutions in this
respect (this was so, at least on paper, although, in actual practice, most countries
tended to show a rather centralist profile).
• Rejected the incorporation of either strong social commitments in favor of the disadvan-
taged, or political commitments favoring mass participation in the public sphere. The
new liberal-conservative constitutions became noted not only as a result of their
institutional novelties (i.e., the strengthening of the Executive power) but also
because of the institutions that they rejected or decided not to adopt. Notably,
the liberal-conservative compact was an exclusionary compact, which implied
the displacement of most of the institutional initiatives that radical groups then
proposed. During all those years, in fact, radical groups had advanced numerous
constitutional proposals, which included annual elections, the right to recall, man-
datory rotation, mandatory instructions, and so on. In addition, radical groups had
promoted different reforms aimed at addressing the “social question.” However,
the triumph of the liberal-conservative project implied the rejection of all those
initiatives. The new constitutions, in the end, did not include any significant social
clauses or clauses that tried in some manner to favor popular participation in
politics.
Five Examples: Argentina, Brazil, Chile, Colombia, Mexico

In what follows, we shall explore some examples that illustrate the idea of fusion con-
stitutionalism—constitutions that resulted from a combination of liberalism and con-
servatism. These examples may help us recognize the content, contours, and scope of
this greatly influential version of constitutionalism that grew in the mid-nineteenth
century. We shall first study the examples of Argentina and Mexico, where liberals
and conservatives sat together around the same table of negotiations; and the one
of Chile, which shows a gradual fusion between the liberal and conservative projects.
In addition, we shall pay attention to the formation of a liberal-conservative consti-
tutionalism, in the context of the transition from Empire to the Republic of Brazil.
Finally, we shall also study the example of Colombia, even though it presents some
relevant differences regarding the previous cases.19
Argentina
Argentina’s 1852 Constitutional Convention was the product of a long political pro-
cess.20 The Constitution grew slowly during the long years of Juan Manuel de Rosas’s
dictatorship, and the so-called 37 Generation played a significant role in its creation.
Many of the most noted members of the 37 Generation gathered for some time in the
“Literary Saloon,” until it was closed by Rosas. The group included well-known pub-
lic figures, such as Juan Bautista Alberdi, Esteban Echeverría, Juan María Gutiérrez,
Vicente Fidel López, and Miguel Cané, who produced important political and literary
work, and engaged in numerous public discussions.
By the end of Rosas’s dictatorship, many of the members of the 37 Generation
reflected upon the causes of the political failure of their group—the group of unitarios,
which opposed Rosas—and also about the reasons that made Rosas’s regime so stable.
They basically found two answers to their queries. On the one hand, they came to
the conclusion that their predecessors had not paid sufficient attention to the local
realities, fascinated as they were by the intellectual creations of foreign jurists. On the
other hand, they considered that the early concession of the right to vote to people
with insufficient intellectual preparation had been a mistake and was responsible for
triggering political passions and demands that were impossible to satisfy. The uni-
tario group, they assumed, had made a gross mistake by giving both “the suffrage and
the lance to the proletarians,” and by thus leaving the country “at the mercy of the
masses.”21
After the end of Rosas’s period, Argentina’s national organization became con-
trolled by a group of politicians that was ideologically close to the 37 Generation.
Undoubtedly, their main legal creation would be the 1853 Constitution. Urquiza was
then the main person responsible for the gathering of the Constitutional Convention.
At that time, Urquiza claimed that he aspired to have “a Constitution that made both
anarchy and despotism impossible.” Both “monsters,” he added, “have engulfed us.
One has filled us with blood, and the other with blood and shame.”22
Alberdi’s writings were particularly influential in the drafting of the Constitution,
even though his name was virtually absent from the debates (Ferreyra 2012).23 Like
the US Constitution, the Argentinian text included a division of powers, a system of
checks and balances, a bill of rights, and also showed some openness toward federal-
ism. According to Benjamín Gorostiaga—the delegate who was in charge of defending
the project during the debates—the Argentinian Constitution was modeled according
to the example of the US Constitution, which represented “the only real federation
that existed in the entire world.” The delegates at the Convention followed Alberdi’s
advice, particularly with regard to the organization of the Executive power. Alberdi
had claimed, in this respect, that Argentina’s main document had to “distance itself
from the example of the federal Constitution of the United States” and follow instead
the Chilean model, which provided the president with sufficient powers to make the
Constitution’s defense possible. For him, “time has demonstrated that the Chilean
solution is the only rational solution for republics that were monarchies a short time
ago” (Alberdi 1981, ch. 25).
Alberdi’s preferred constitutional model implied a convergence between the sys-
tem of “checks and balances,” which was the one adopted in the United States, and
the proposal for a “strong Executive,” which was the one that Egaña had suggested
for Chile. As a consequence of this combination, Argentina’s Constitution became a
model example of the liberal-conservative Constitution. The fusion became visible
not only in the section dedicated to the organization of power but also in regard to
the territorial organization of the country: Argentina, as we know, consecrated a
center-federalist system.
In addition, the fusion became apparent also in the discussion about rights and,
particularly, in the Constitution’s references to religion. In fact, during the consti-
tutional debates there was no other issue that concentrated so much attention and
so much energy than the one related to the relationship between the State and the
Church. The disputes over the question were many, and included discussions about
the possibility of declaring Catholicism as the official religion of the country, about the
possibility of reserving most public positions to Catholics, about religion and educa-
tion, and also about the Patronato. These issues basically consumed the Convention’s
scarce ten days of debates. Conservatives were convinced that what they considered
the majoritarian religious faith deserved special constitutional protections (Ibarra
1933; Sánchez Viamonte 1957).
From the beginning of the debates, the most important conservative delegates,
including Pedro Ferré, Manuel Leiva, Manuel Pérez, and Martin Zapata, confronted the
liberal view on the topic. One of the main terrains of the dispute was article 2, which
was directly reserved to deal with the religious question. Delegate Pedro Zenteno, for
example, proposed a strong formula, according to which the Catholic religion would
be considered the “only true religion” and the only one to be protected by the national
government. In its final formulation, however, and after heated debates, the article
offered a more ambiguous formula, which declared that the federal government “sup-
ported” the Catholic faith. In a clear demonstration of the liberal-conservative charac-
ter of the document, the presence of article 2 was “compensated” by article 14 (which
included most individual rights), which declared that all inhabitants had the right to
free exercise of their own faith.24
In addition, and in line with Alberdi’s own ideology, the Constitution did not
include any strong commitment to the “social question,” rejected State interven-
tion in the economy, and subscribed an individualist view of society, as well as
economic liberalism. Taking into account these antecedents, the noted Argentinian
historian Tulio Halperín Donghi defined Alberdi’s program as one of “progressive
authoritarianism—a mixture of political rigor and economic activism.”25
Although the final draft of the Constitution belongs to 1853, Buenos Aires only
ratified the document in 1860, after a series of armed conflicts that ended with Buenos
Aires’s final victory against Urquiza’s forces in Pavon. The Constitution suffered, then,
a modest reform, and after that—and for the first time in its history—the country cel-
ebrated a national election, with the objective of choosing the national president. The
lawyer, politician, and military leader Bartolomé Mitre became, then, the first elected
president of the country. With his government, Argentina inaugurated a period of
liberal reforms, which included a profound legal reorganization promoted by a team
led by Dalmacio Vélez Sarsfield. After Mitre, the nation had three new administra-
tions of a liberal or liberal-conservative character, led by Domingo Sarmiento, Nicolás
Avellaneda, and Julio Argentino Roca, respectively. After years of social distress,
Mitre’s government inaugurated a period of political stability, economic prosperity,
and legal reformism, which, of course, had only a small portion of the country’s popu-
lation as its main beneficiaries.
Brazil
After the sudden—and very late—passage from Empire to Republic, which took place
only in 1889, Brazil suffered many years of instability and uncertainty. The politi-
cal scene was then occupied by many different and influential groups, which had a
hard time trying to reach agreements among them. On the one hand, there were the
landowners—and particularly those connected to coffee plantations—who dominated
politics at a state level, in association with increasingly important political groups,
mainly associated with liberal and republican ideologies (republicans, at the same
time, found inspiration in the then widespread positivist philosophy). On the other
hand, there were the army forces—a group that included some of the “heroes” of the
war against Paraguay, like the noted Deodoro Fonseca and also military officers with
links to the “positivist Church.”26
While representatives of the first group promoted a federalist territorial organiza-
tion, representatives of the army resisted those policies claiming that they put the
national unity under risk. Frequently, military officers defend antiliberal views and
also the creation of a powerful Executive power—some of them even accepted the
establishment of a dictatorship (Fausto 2006, 246).
The fall of the imperial regime was due ultimately to a military coup in 1889 that
ended decades of monarchical rule. The coup was led by Marshal Deodoro Da Fonseca
and supported by both the army and an increasingly powerful coffee-producing bour-
geoisie, which would be clearly favored by the demise of the Empire. The regime change,
moreover, was consistent with a profound change in the economic organization of
Brazil. In effect, by the end of the century, Brazil experienced a drastic transformation
in the foundations of its economy, which changed from being dominated by the export
of cotton and sugar to being controlled by the export of coffee (Halperín Donghi 2007,
273). This shift had huge implications. It involved, first, an extraordinary change in
the geography of power, whose central axis passed from the northeast (predominantly
based on cotton and sugar) to the center-south, controlled by São Paulo and Minas
Gerais—the great coffee producers. The political and economic changes also generated
a significant impact on the social level because they came with the end of slave labor,
which was predominantly used in the traditional agricultural economy.27 In this way,
and much later than most Latin American countries, Brazil began to put an end to this
unacceptable practice. Also, in this way, the link between large landowners and the
imperial administration came to an end.
All these events facilitated the fall of the Empire, although they did not favor a
well-ordered transition—rather, the contrary. The new government, under the com-
mand of Marshal Deodoro, promptly acquired the form of a dictatorship. As a result
of this, different sectors of the government began to see the enactment of a new
Constitution as a key element in the transition to a new political organization. The
new document—they believed—could then provide a more solid and legitimate basis
to the desired liberal Republic.
In order to promote the constitutionalization of the country, the Provisional
Government created a five-member Commission, which would be in charge of draft-
ing the new Constitution. The Commission then presented three different projects.
The first one, the so-called Werneck-Pestana project, established a system of indirect
election for the president and vice president of the country, incorporated the institu-
tion of federal intervention, proposed the creation of a new capital for the country,
and favored a modest federalist organization of the national territory. The second one,
the so-called Américo Brasiliense project, also established the indirect election for the
president and vice president of the country (although in a somewhat different manner
than that of the Werneck-Pestana project), regulated the institution of federal inter-
vention, and proposed a substantive revision with respect to the states’ territorial lim-
its. Finally, the Magalhaes Castro project organized the election of the president and
vice president through municipal chambers, proposed the creation of a new Capital for
the country, affirmed the principle of federal intervention, and explicitly prohibited
contracts that were incompatible with the liberty and independence of individuals
(Arinos 1967, 126‒27). The Commission then revised the three different projects and
summarized them in the only final alternative, which they offered to the Provisional
Government. In this process, the then minister of finance, the influential jurist Rui
Barbosa, appeared as the most salient figure.
What resulted from that process of synthesis was a new Constitution, which would
become known as Brazil’s 1891 Republican Constitution. The new document had
important differences with respect to the previous ones. Among other things, it put
an end to the decisive impact of French and British constitutionalism, which had been
the dominant influence during the Empire. The old model was replaced by a different
one, much closer to the US Constitution: it incorporated the institutions of presiden-
tialism, federalism, judicial review, and individual rights.28 In addition, and through
the new Constitution, Brazil abandoned its traditional constitutional structure, which
incorporated a four-branch organization of power, including the noted Moderating
Power, and replaced it with a more traditional one based on a three-branch division
(da Silva 2010, 79). The Constitution that was then approved, which established a
“federative republic with maximum administrative decentralization” (Calmón 1958,
313), represented a clear convergence between liberal and conservative ideals.
On its liberal side, the Constitution included the prohibition of retroactive laws
and also a much more detailed approach to individual rights.29 In addition, the
Constitution proclaimed the separation between the State and the Church, autho-
rized free interstate commerce, favored federalism (in a way that many considered
exaggerated),30 promoted public instruction, granted powers of judicial review to the
Superior Tribunal, created the mechanism of impeachment, made the president of
the republic responsible for different crimes, and prohibited all those constitutional
reforms that affected the republican and federal character of the national organization
(Fausto 2006).
Meanwhile, on its conservative side, the Constitution incorporated the institutions
of federal intervention and state of siege, and above all favored the creation of a strong
presidentialist system.31 Among other features, the Brazilian Constitution allowed
the Executive to appoint and remove its ministers at will, which put the Brazilian
document in line with most other Latin American presidentialist systems: all of them
reserved more powers for the president than the US presidentialist Constitution.
In political terms, the first years of the Constitution were particularly trouble-
some.32 These unfortunate circumstances favored the strengthening of the more con-
servative features of the Constitution and, in particular, the Executive’s supremacy (at
the time, people referred to the president as a “king without throne”). As A. Wolkmer
maintained, Brazilian constitutionalism became—since then and until today—“the
product of a conciliation-compromise between a modernizing and social authoritari-
anism, and a conservative bourgeois liberalism” (Wolkmer 1989, 35).
Chile
Chile does not offer us an example of a liberal-conservative Constitution, but rather
an illustration of how a conservative Constitution—the one from 1833—together
with a conservative constitutional practice, became gradually “liberalized.” This pro-
cess of slow liberalization was favored by the political ascendance of liberalism and
the growing public presence of the (so-called) 42 Generation. Members of this intel-
lectual group published some important pieces of liberal work, which began to object
to the then solid Constitution of 1833. These works included, notably, José Victorino
Lastarria’s La Constitución Política de la República de Chile comentada, published in 1858
(Oyarzun 1953; Lastarria 1906, 1944), and Carrasco Albano’s wonderful Comentario
sobre la Constitución Política de 1833, which advanced significant criticisms to Chile’s
presidentialist system. During the same period, Melchor de Santiago Concha also pub-
lished an important work advocating for constitutional reform. In this project, the
Chilean legislator proposed the introduction of numerous legal changes, mainly aimed
at restricting the powers of the Executive. He also made reforms in the organization
of the Senate and defended religious tolerance. In those years, some Chilean activists
also created the reformist Club de la Reforma, where many among the country’s main
political liberals began to work together on behalf of a renewal of the Constitution.
The Club included, among others, the noted Lastarria, Manuel Matta, and Domingo
Arteaga.
The year 1857 was crucial in this process of change. At that time, and as a consequence
of a rather minor event (a sacristan’s decision not to follow the rules of the Patronato),
a profound political crisis exploded (Scully 1992). This minor incident expanded into a
movement of social unrest, which showed that part of the population disagreed with
the growing authoritarian features of General Pedro Montt’s administration.33
The conservative party was created in that year, in defense of the interests of the
Church. Its main demands, however, were quite similar to the demands of the liberal
party. Both groups opposed the authoritarianism of the ruling administration and
demanded the adoption of profound political reforms that were capable of limiting
the government. Moreover, both parties favored a certain type of economic liberalism,
defended the passing of an amnesty law in favor of those who participated in the 1851
Civil War, and rejected Antonio Varas as the official candidate for the coming elec-
tions (a candidacy that, in fact, would imply his almost automatic ascendancy to the
presidency of the country). Liberals, in addition, required the call for a Constitutional
Assembly in order to help democratize the country. The liberal program included, at
that time, the expansion of political rights, the prohibition of presidential reelection,
and freedom of the press. In order to support these claims, liberals began to edit the
influential newspaper La Asamblea Constituyente, which was written under the super-
vision of Benjamín Vicuña Mackenna.34
Determined to confront the government’s growing arbitrariness, liberals and con-
servatives joined forces in the so-called la Fusión. Working together, they gained their
first important political victory when the official candidate Varas decided not to run as
a presidential candidate. Varas was then replaced by José Joaquín Pérez, who at least
was not rejected by most members of the liberal-conservative fusion. Shortly after Pérez
came into power in 1861, representatives of the fusion began to collaborate with the
new administration. For liberals, this was the first time they took part in the ruling coali-
tion, after decades in opposition.35 Still more significant for the interests of their party,
Pérez abandoned Montt’s authoritarian methods, which he replaced with a more toler-
ant behavior, particularly in relation to the political opposition and the press. Moreover,
Pérez stayed in power without declaring a state of siege, as was the rule at that time.
He promoted the approval of the amnesty law, which the opposition demanded, and
favored a constitutional reform that put an end to presidential reelection.
Another crucial event of the time was the 1865 parliamentary discussion about
article 5 of the Chilean Constitution. Article 5 was the one that declared Catholicism
as the official religion, with the exclusion of all other faiths. It was the first time that
Chileans had the opportunity to publicly and deeply discuss the scope and limits of the
powers of the Church. Contrary to what most people expected, however, the debate
did not end with a new constitutional amendment, but rather with an “interpreta-
tive law,” which opened some room for religious tolerance, allowing the practice and
(private) teaching of other religions.
Then numerous provisions designed to set new limits on decades of conservative
dominance appeared. They included the end of immediate presidential reelection in
1871, changes in the quorum necessary for the functioning of the legislative chambers
in 1873, new constitutional rights (including of association and peaceful assembly in
a public place without permission), direct election of Senators in 1874, changes in the
process of constitutional reform in 1882, an expansion in the right to vote in 1888,
changes in the way of convening special sessions in 1891, and changes in the forms of
the presidential veto in 1893.
Colombia
In order to better understand the process that concluded with the rather conservative
1886 Colombian Constitution, it is important to focus, first, on the radically liberal
period that preceded its enactment. This process reached its peak with the enact-
ment of the 1863 Constitution. This Constitution (which followed the also liberal
Constitutions of 1853 and 1858) was promoted by General Tomás Mosquera, who
had come into power after a violent victory against the forces of President Mariano
Ospina. In that confrontation, Mosquera represented federalism, while Ospina
appeared to synthesize the values of clericalism and centralism. Mosquera’s adminis-
tration was, from its very beginning, radically anticlerical and federalist. Manifesting
its anticlericalism, Mosquera closed down the existing monasteries and other religious
institutions, expelled the Jesuits from the country and confiscated their goods, and
prohibited religious people from occupying public positions without a previous gov-
ernmental authorization. At the same time, in 1861, and making his federalist views
apparent, Mosquera invited the representatives of the different states to sign a pro-
visional constitutional document, the so-called Pacto de Unión, which would regulate
their relationships until the approval of a new national Constitution. The Pacto was an
extreme expression of the federalism of the time, which recognized no antecedents in
Colombian history.
Shortly afterward, Mosquera convoked a Constitutional Convention in Rio Negro,
which would be in charge of drafting a new and more permanent Constitution. Within
the Convention, there were three main factions and one remarkable absence. The first
faction represented the interests of the army forces and thus also Mosquera’s views,
the second one represented the liberal-radical alliance, and the third one a moder-
ate position between the other two (Rivadeneira Vargas 1978). The noted absence
was that of the conservative group, which was totally excluded from the debates.
Mainly as a consequence of this absence, the Convention approved a strongly liberal/
radical Constitution, in what probably represented the highest point of influence of
liberal ideas in the country.36 Liberals sought to use the new Constitution in order
to undermine the basis of conservatism, and thus the dominance of the Executive
power, the authority of the national government, and the influence of the Catholic
Church. According to Ramón Correa, through the adoption of these decisions the
Convention seemed to impose the Spencerian kind of formula, “the individual against
the State . . . the states against the Nation” (Correa 1937, 295).
Even though the Constitution was in force until 1886, and deeply marked the insti-
tutional structure of the country, many among the liberals who favored it, believed
that liberalism had gone too far, particularly in the way it limited the powers of the
Executive, and in the degree of autonomy that it conceded to the different local states
(Park 1985, 46).
In 1886, the escalation in intra- and inter-state conflicts and the country’s economic
difficulties brought the liberal era to an end. Rafael Nuñez, once a noted liberal intellec-
tual, headed a government of “restoration” designed to end the extreme liberalism of the
period before. The main legal product of the period was the Constitution of 1886, inspired
by the documents of 1830 and especially by that of 1843 (drafted by Jose Eusebio Caro,
father of Miguel Antonio Caro, a key figure in drafting the new document).37
The new Constitution was written by a small and select commission of jurists,
which included one of the most prominent conservative theorists of the time, namely,
Miguel Antonio Caro, and also one of the most noted liberal thinkers of the century,
namely José María Samper. At the same time, the commission excluded all represen-
tatives of the liberal-radical coalition that had ruled the country for years. The con-
servatism of the Constitution was surprising and undoubtedly related to the previous
period of ultra-federalism.38
Its contents appeared as a direct reaction against the liberalism, federalism, and
anticlericalism that characterized the previous period. The new document created a
centralist political system in which the local authorities remained with little autono-
mous power. The new Constitution also established a strong Executive power,39 a brief
declaration of rights,40 limited political rights, and the declaration of the Catholic reli-
gion as the official religion of the country (Barreto 2011).41
In a famous presidential speech (known as his Mensaje del Presidente de la República
al Consejo de Delegados, al reunirse en 11 de noviembre de 1885 para formar la nueva
Constitución), Rafael Núñez put the new Constitution in context and compared it with
previous Colombian constitutions. It became clear from then on that the new presi-
dent was particularly interested in putting the heritage of the liberal period inaugu-
rated in 1853 behind him. In his view:
The 1832 Constitution was centralist and sober in the declaration of supposed
individual guarantees. Public order was conserved, under its auspices, during
eight consecutive years. The 1843 Constitution was still more centralist, and
during the ten years of its duration, there was more effective peace than in the
previous constitutional period. . . . The 1853 Constitution—which was known
as a center-federal Constitution—opened the door to the rebellion that
would explode in the following year. The federalist 1858 Constitution clearly
prepared and facilitated the disastrous rebellion of 1860. . . . We have gone
forward dividing what was non-divisible; and together with the external fron-
tiers, we created nine additional internal frontiers, with nine special Codes,
nine costly hierarchical bureaucracies, nine armies, nine agitations of all
types, almost uninterrupted. . . . After the 1863 Constitution . . . disorder—it
is clear—became the rule. (Antecedentes 1983, 37)
The new Constitution, he added, was coming to “replace anarchy by order” (40).42 The
president also manifested what were going to be, in his opinion, the new Constitution’s
directive principles. He stated, “In the place of a vertiginous and fraudulent suffrage, a
reflective and authentic reflection shall be established . . . the educative system shall be
organized according to the sacred principle of Christian education, which is the alma
mater of civilization in the world” (40).
Mexico
The Ayutla Revolution put an end to General Antonio López de Santa Anna’s long and
influential years in Mexican politics. After the revolution, Ignacio Comonfort became
the president of the republic. Comonfort was a politician of conservative leanings

but also a figure who knew how to balance the different forces vying for power. With
the support of the army and the Church, and through his friendship with the leader
of the rebellion antisantanista, Juan Alvarez, Comonfort provided a resilient bar-
rier capable of containing the pressure from more radical groups. These groups then
struggled to develop a deep reform plan aimed at eliminating the causes of Mexico’s
backwardness, which they identified with the influence of the Church and the army.
Shortly after coming to power, Comonfort called for a Constitutional Convention,
which would be in charge of drafting a new Constitution. Most members of the
Constitutional Convention were moderate liberals, although some of the so-called
“pure” liberals also acceded to important positions. For instance, Ponciano Arriaga
presided at the sessions of the Convention, deputies Francisco Zarco and Isidro Olvera
appeared as secretaries, and other representatives of the group—including Arriaga,
Melchor Ocampo, Olvera, and José Maria Mata—integrated the decisive Constitutional
Commission (Scholes 1967). According to Emilio Rabasa, the Convention’s composi-
tion ratified the supremacy of the moderate sectors among those who participated in
the Ayutla movement.43
At the beginning of the debates, the conservative group—delegates Santos
Degollado, Ricardo García Granados, and Mariano Arizcorreta among them—suggested
that the Convention simply reestablish the old 1824 Constitution. That Constitution
still preserved some prestige and promised fewer risks than the enactment of a new
one. However, this proposal was finally defeated by a small margin of votes.44
The Constitutional Commission presented its final project in June 1856. Shortly
after, in February 1857, the National Congress and President Comonfort declared it
the new Constitution of the country. The final text introduced some interesting novel-
ties. For example, the famous (so-called) Juárez Law (1855) and the Lerdo Law (1856)
were incorporated as integral parts of the Constitution. Among other things, the
Juárez Law limited the military and ecclesiastical fueros, while the Lerdo Law forced
the Church to sell part of its properties. In addition, the new Constitution included a
long list of individual rights, such as freedom of the press, freedom of association, free
transit, freedom of education, and the protection of private papers. The Constitution
also abolished the death penalty.
Two particular constitutional debates (probably the two most important debates of
the Convention) showed the “transactional” character that would distinguish the new
Constitution. The first debate referred to the institution of jury trial and the second
one to religious tolerance. In the first debate, the Convention rejected the initiative
because the majority of delegates considered that the people were still not sufficiently
prepared to take part in such a democratic event. Delegates Ignacio Luis Vallarta and
Arizcorreta became the main critics of the jury trial, in a heated debate that concluded
with a vote of 42 (against) to 40 (for). Meanwhile, in the second debate, liberals man-
aged to ensure religious tolerance rather than conservatives succeeding in imposing
an official religion. What the delegates decided to do in the end—making the transac-
tional character of the Constitution manifest—was to remain silent on the religious
question.
With respect to the organization of power, the Convention also adopted some sig-
nificant (and transactional) decisions. For example, the Constitution did not accept
the concession of extraordinary faculties to the Executive power—faculties that in

the end were replaced by special authorizations, to be given in special cases, and which
could allow the president to restrict certain individual guarantees.45
More interestingly still, some radicals or “pure” liberals tried to use the Convention
in order to introduce some crucial social reforms. However, their initiatives found
significant resistances within the Convention, which finally prevented their being
adopted. Ponciano Arriaga, for example, suggested the incorporation of substantial
changes in the organization of property; and the delegate Castillo Velasco advocated
for the adoption of agrarian reforms, which ensured that everyone, even the dispos-
sessed, became proprietors. The main criticisms against their views came from del-
egate Vallarta, who made an important speech in defense of economic liberalism and
against the State’s intervention in the economy. In his view, since the publication
of Quesnay and Smith’s works, “it is not anymore licit to doubt about these ques-
tions . . . all protections to the industry turn to be ineffectual and fatal. . . . The principle
of competition has proved that any protection to industry is ineffective . . . that the law
cannot interfere in the production . . . that only individual interest, in short, is the one
to create, manage and protect all kinds of industry, because only he has the activity,
vigilance and skill for the production of wealth” (Zarco 1957, 55‒56).46
After the end of the debates, the government accepted the proposed Constitution,
even though there seemed to be a generalized discontent about it. Moderate liberals, for
example, considered that the Constitution had gone too far; “pure” liberals opined that
it had not gone far enough; and corporative groups, such as the army and the Church,
deemed that the majority of the clauses incorporated in the new document were simply
unacceptable. Comonfort’s views were more in line with those who were not at all satis-
fied with the document. So, in spite of the fact that he had already promised respect to
the Constitution (and had been reelected after its enactment47), he led a military coup
against it. After the coup, Comonfort not only suppressed the Constitution but also
shut down Congress and imprisoned some of the most noted members of the oppo-
sition. His decision proved to be tragic for the country and also for his own political
career: he was, indeed, forced to leave power shortly after the coup.
Conclusion
In the preceding pages, we examined the theoretical underpinnings that made possible
the holding of broad agreements among different constitutional projects. In particular,
we focused our study on the liberal-conservative consensus that has prevailed since the
mid-nineteenth century. This agreement, as we know, was crucial to the development of
Latin American constitutionalism. In this chapter, we also explored the content of the
dominant fusion constitutions. Acknowledging what the main constitutions included,
and also what they left out of their texts, it is easier to understand what the new con-
stitutions that would appear in the new century would do. Usually, as we shall see, the
new documents came to “repair” the constitutional problems that they inherited. More
particularly, the new constitutions made a special effort to incorporate some of the
radical/republican commitments found in the old documents, which were simply left
out of the main nineteenth-century constitutional agreements.
3
The Material Basis of the Constitution
Introduction: The Constitution

in a Non-Egalitarian Context
In this and the following chapter we shall concentrate our attention on two particularly
significant aspects of early legal discussions. In this chapter we shall revise the emerg-
ing debates about the material basis of the Constitution—in other words, the personal
and socioeconomic conditions necessary for the development of constitutionalism. In
the next chapter we shall study the intense legal discussions that appeared in relation
to the inherited constitutional structure—how to deal with the past. We shall dedicate
specific attention to these topics given both the remarkable importance they acquired
in the origins of constitutionalism, and the relevance they (still) have for those inter-
ested in the study of constitutions in general.
The first thing to mention about the issue of the material basis of the Constitution
is that, perhaps contrary to our present practice, Latin American “founding fathers”
spent a lot of time and intellectual energy reflecting upon the issue. That is to say, they
did not simply focus their studies on the text of the Constitution (what to include,
what to change), but they also tried to say something about the material conditions
necessary for its success.1 Probably, they felt forced to engage in those discussions
because of the heavy legacy imposed by the colonial past.
In what follows, we shall explore the conflicting views on the topic. Although the
vast majority of the “founding fathers” were critics of the material legacy of the col-
ony, they had different approaches to it. Clearly, the critique of the economic legacy
of the colony—a legacy that was characterized by its profound injustices—was widely
shared within the American political elite. Of course, not all of their members concen-
trated their attention on the same aspects of the crisis. Some of them denounced the
multiple, still dominant injustices, which resulted from decades of exclusionary gov-
ernments that worked against the interests of the most disadvantaged. Some others,
instead, directed their criticisms against a State that, they claimed, had been captured
by a few, for their own benefit.
The main foundation of the first position was simple: the community had to orga-
nize itself in a more egalitarian way because that was what social justice required. The
dominant state of affairs was, in this respect, totally unjustified. It was for that very
reason that different political groups, of radical origin, concentrated their political
energies in the analysis of the material basis of society. For many of them, it was clear
44
The Material B as is of the Constit ution 45
that society had to be re-created from its very foundations, so as to make a different
constitutional life possible. It was necessary to build a different type of society, more
respectful of the needs and interests of the worst off. Republican activists assumed
that re-creation of society required a reconceptualization of the right to property.
As the Colombian Camacho Roldán put it, a republican life required an end to large
property-holdings [by opening the “door of property . . . to the peasants”]. Only in that
way, he claimed, would it be possible to prevent “the creation of a new Feudal class
and . . . the destruction of the Republic” (Camacho Roldán 1923, 293).
Only in a very few cases, like Mexico, did so many members of the political class get
so deeply involved in studying and criticizing the injustices of the dominant economic
system—an economic system that left the majority of Mexicans in situations of indi-
gence. Their main criticisms appeared properly articulated in the 1857 constitutional
debates. A brief review of these criticisms may then be of help, in order to illustrate the
diversity and richness of the arguments at stake. According to some politicians, there
was enough land for all members of society and, for that reason, there was no need to
keep the Constitution committed to those injustices (Castillo Velasco).2 Others criti-
cized the attitudes of the upper classes, which in a context of poverty continued with
the accumulation of property (Arriaga).3 Still others resorted to Christian piety and
claimed that nobody could deny the provision of basic goods (such as water or wood)
to those in need (Olvera).4 Some pointed to the persistence of situations of exploi-
tation and oppression toward the most disadvantaged (Ponciano Arriaga, Olvera).5
Yet others maintained that the unjust organization of property was directly linked
to the existing illegal occupations (Olvera).6 There were also references to the level of
inhumanity that characterized the prevailing social organization (Olvera).7 Still some
others denounced the situation of slavery that affected large masses of poor workers
(Ramírez).8
The other common approach to the problem—the one that was more extended
within the political elite—started with the repudiation of the old conservative, corpo-
ratist, monopolist, authoritarian model that was inherited from the colonial period.
Many of these critics focused their reproaches on the omnipresent State and its regu-
lative anxieties. For them, the State represented the main source of individual oppres-
sion, and for that reason it was important to limit its power and coercive force. That
limitation represented a necessary condition for the expansion of individual liberties.
In line with that view, they deemed an individual’s free initiatives as a safe road to
personal and collective progress. According to Alberdi, for example, private initiatives
were mainly responsible for all the relevant economic advances of society: it was due
to those initiatives that society had exploited mines, built routes, opened channels,
invented technical novelties, and so on (Alberdi 1920, 159). For those reasons, he
concluded, it was indispensable to protect individual initiatives. The State was then
simply seen as a threat to individual freedom. “Private initiatives have done a great
deal, and a great deal of good, as Spencer [stated] . . . [They have] fertilized our soils and
built our cities, discovered and exploited mines, created routes, opened channels.” The
actions of the state, and never those of the individuals, brought poverty to the coun-
try, he claimed (Alberdi 1920, 159). In similar terms, the Peruvian Tejada objected to
the public authority that
pretended to know it all and, for that reason, pretended to decide it all: it
prescribed the selection of raw materials, prohibited certain procedures,
fixed the quality of our products, its form . . . its color. . . . The state was the
merchant who traded tobacco, salt, coffee, sugar, snow, cards, explosives,
paper . . . the exclusive manager of banks, channels, bridges, routes, mines
and everything else. Its regulations . . . defined the laws of offer and supply
while economic law was silent. (in similar terms, see for example Tejada
1947; Quimper 1948; Leguía 1939, 137).9
Now, the fact that different diagnostics and responses in the face of the critical eco-
nomic situation existed does not deny the presence of certain basic, shared agree-
ments concerning the existing relationship between the economy and the Constitution
(which, one could also add, are not easily recognizable in our time).
One shared assumption was that the Constitution had something important to do
in relation to the existing economic difficulties. As Alberdi maintained in his famous
book Bases, it was time for Latin American constitutionalism to initiate a new legal
epoch, where “constitutional law” worked for “the aggrandizement and progress of
the new States” (Alberdi 1981, 25‒26).
Another shared assumption—the one that is more significant for this work—was
related to the conviction that constitutionalism had something to say regarding the
relationship between economic independence and political independence. Let us explore
the assumed links between economic independence and political independence.
Economic Independence and Political Independence in the

Liberal-Conservative Tradition: Tying Rights and Interests
Together
Conservative, liberal, and republican voices all recognized that there existed a strong
connection between economic and political independence. In this section, we shall pay
attention to the liberal-conservative approach to this issue, and shortly after we shall
explore the republican view.
Usually, liberals and conservatives defended what we shall call the independence
thesis, that is to say, the thesis according to which it was necessary to have economic
independence in order to have political independence. During the Founding Period
of Latin American constitutionalism, liberals and conservatives used to defend the
most extreme version of the independence thesis. The main idea was the following: in
contexts that were marked by strong inequalities between proprietors and nonpropri-
etors (or between small and big proprietors), the latter faced enormous difficulties for
acting freely. This result was the consequence of different reasons. According to some,
only those who had property had a direct and strong link with the interests of the
country. Others took into account the extortive capacities of the proprietors, which
made it very difficult for nonproprietors to decide freely. Still others considered that
there was an important correlation between property, wealth, and intellectual capaci-
ties (Wood 1969).
For reasons such as the above, many of the members of the dominant political
elite assumed that only those who were economically independent deserved to enjoy
political rights. In the context of extremely unequal societies, this claim put the insti-
tutional system at the service of the existing social and economic relationships. The
law, in this way, was used to enforce and provide stability to those relationships.
But how could this be done? How could the institutional system be adjusted so
as to honor those initial goals? The solutions that were then imagined were many.
The first and most important was the restriction of political rights to those who, pre-
sumably, enjoyed economic independence. The idea of limiting political rights was
widely shared in the continent among liberals and conservatives. In Argentina’s 1826
Assembly, for example, many proposed the creation of a Senate against those who
had “tried to equalize everything, without recognizing the existing hierarchies,” with-
out ensuring a proper place to those who occupied a special place in the social scale
(Ravignani 1926, 1:293). This was also the view of the liberal Mexican José María
Mora, who maintained that “general Congress has to define the conditions for exer-
cising the rights of citizenship in the entire Republic” and also ensure that “those
who cannot inspire confidence, this is to say nonproprietors, remained excluded from
those rights” (Mora 1963, 630‒31). Mora’s extreme views, in the end, only reflected
what the common assumptions among Mexican political leaders of the time were. For
people like Mora, nonproprietors were not reliable because their will was subject to
manipulations by those who enjoyed a privileged economic situation: it was that very
material condition of economic affluence that ensured political independence. Mora
openly defended that view. For him “only this class of citizens [property-owners]” was
“truly independent and capable of inspiring confidence to the legislator and also to
the mass of the Nation. Their decisions would never be the result of intrigues, nor
be motivated by principles that are foreign to reason and to the natural sentiments
of justice that accompany men in their whole life. By contrast, the destitute, the day
laborer, the debtor cannot be but subject to the bribes of others, when his subsistence,
which is the first need of men, depends precisely on those who have an interest in cor-
rupting him” (529).
Defending a stronger and more conservative view on the subject, Lucas Alamán
went beyond Mora’s concerns and suggested adopting still more extreme institutional
solutions. Alamán was an iron-clad supporter of the idea of economic independence,
assuming that big landowners were the only ones who could contribute to the nation’s
economic growth. It was indispensable, for him, to link rights with interests, democ-
racy with property (Lira 1997, 45). For that reason, on many different opportunities,
Alamán proposed to reserve a specific political room for the big interests, and particu-
larly to the big landowners of his country. He made reference to the “importance of giv-
ing property, and particularly territorial property, which is the more stable and more
intimately linked with the prosperity of the nation, a direct influence in legislation”
(Alamán 2008, 214). In other words, for him, it was clear that the decision-making
process had to ensure a special place to property. In that way, Alamán established a
direct and strong association between democracy and property—the only way, in his
view, to give sense and reality to democracy. In his words, “the only positive quality
that may exist in a democracy, and the only one that can offer us some security for a
moderate exercise of such enormous power, is property” (Alamán 2008, 212).
Alamán’s justification revisited all the most important topics of conservative polit-
ical thought. He stated (and here we shall quote him extensively):
Nobody should think that we are here closing the doors of the legislative
bodies to those who are not property-owners. It has nothing to do with
that . . . but it would also be a mistake to go to the opposite extreme and think
that a low level of education, a limited view of things . . . could authorize
someone to rule . . . the essential character of property . . . resides in inequal-
ity. The big landowners are the object of envy, their presence generates
rapacity in others, and this is why they have to be protected . . . I have tried
to demonstrate that the restrictions established by our Constitutions for
the composition of our legislative bodies are still insufficient, which tells us
about the importance of giving property, and particularly territorial prop-
erty, which is the more stable and more intimately linked with the prosper-
ity of the nation, a direct influence in legislation . . . the division of General
Congress into two Chambers is never enough to fulfill that purpose because
the two only differ by the way in which their members are elected, and for
some accident by their duration in office, but they do not represent essen-
tially different interests so as to ensure that their combination helped to the
production of laws for the general convenience . . . and this is why different
nations have limited the right to suffrage only to property owners . . . These
and other restrictions are always more important when the system changes
from one without popular elections to another where everything is depen-
dent on popular elections, when the people are endowed with that faculty,
when they have no idea about the object of elections, their consequences, or
their importance. In the civil order, more than in the natural order, every-
thing is gradual because the civil is nothing more than the natural order
modified . . . we never see nature acting for sudden motives, but in cases of
earthquakes, and these are occasions of ruin rather than creativity. In order
to avoid this inconvenience and forever save the metaphysical fiction of the
general will, elections have become not direct, and through different gradua-
tions and reelections, the appointment of deputies results from the work of
only a few. (Alamán 1997, 187‒92)10
Even though Alamán’s project was undoubtedly extreme, the fact is that many other
constitutional programs of the time went in a similar direction and at least as far as
his program. One of these cases is that of Simón Bolívar, who advocated adopting
a quasi-monarchical regime both in his famous Carta de Jamaica from 1815 and in
his Discurso de Angostura from 1819. Following the British monarchical example, he
also proposed organizing a corporatist legislature, which ensured the representation
of the most accommodated sectors of society. We find a similar case, for instance,
in the Argentine 1819 Constitution, which was written by the local liberal elite, and
which also reproduced some of the more exclusionary features of the British model,
which were translated into a corporatist organization of society.11 The Argentinean
elite wanted to ensure that all relevant, powerful sections of society found a place in
the constitutional scheme.12
Indirect elections (which came to prevent the most disadvantaged from inter-
fering with the selection of the most important public officers), property quali-
fications, the political exclusion of the illiterate, the establishment of certain
economic conditions as prerequisites for the enjoyment of political rights were just
some of the many different routes explored for guaranteeing the triumph of elitist
constitutionalism.
An Economic Reform for the Political Reform

Before examining the objections to the independence thesis, it is worth pausing
for a moment in order to highlight one important point: all the most lucid
constitutional thinkers in nineteenth-century America recognized that it was
necessary to introduce new reforms that transcended the mere internal, legal
structure of the Constitution so as to ensure the success of the reform. In other
words, they recognized that in order to adequately think and finally act upon the
Constitution, its content, its stability, and its final goals, it was necessary to go far
beyond the mere text of the Constitution.
For instance, in the introduction of the important work Sistema Económico y
Rentístico de la Confederación Argentina, Juan Bautista Alberdi made explicit reference
to the numerous links existing between the Constitution and the national economic
structure. For Alberdi, the Constitution included a “complete system of economic poli-
tics.” Alberdi tried to demonstrate that the success of the Constitution finally depended
on the working of the economic system, which the Constitution itself helped to set in
motion. If one neglected the questions and problems posed by the economic struc-
ture that surrounded the Constitution, one would act irresponsibly, incoherently, with
regard to the desired reform.
In a similar manner, the Mexican jurist Mariano Otero published his well-known
Ensayo sobre el verdadero estado de la cuestión social y política, where he reflected upon
the material basis of constitutionalism. Like Alberdi, Otero was well aware of the need
to transcend the text of the Constitution in order to take the Constitution seriously.
For him, if the problems affecting the Constitution were so intimately linked to the
distribution of property, then solutions to those legal problems could not ignore the
required changes in the distribution of property.
The Colombian politician Murillo Toro also established a clear connection between
legal/constitutional reform and economic reform. For him, it was simply unreason-
able to conceive of one reform without the other. In his words:
Every political reform has to have as its object an economic reform. If we

did the former without the latter, we would not only run the risk of doing
an unfertile work, but also to discredit the reform in the eyes of the peo-
ple . . . political forms are worthless if they do not come together with a radi-
cal reconstruction of the social structure, through taxes and (reforms in the
system of property). What would universal and direct suffrage mean (even if
secret) in a society where the majority had not guaranteed subsistence . . . ?
(Murillo Toro 1979, 70)
In sum, these testimonies allow us to recognize that different influential legal thinkers
of the time, coming from very different extractions, shared fundamental assumptions
regarding the material conditions of constitutionalism. This fact seems remarkable,
particularly when we look at it from the present—in fact, we currently tend to disre-
gard the existing connections between the economic and legal spheres, and act as if
they were separate spheres, completely independent of each other.13 All the quoted
legal thinkers assumed that the project of transforming existing societies required the
promotion of radical, extended, profound transformations in the basic structure of
society. As Mariano Otero put it, “What we need, then, is a general change, and this
change has to begin with a change in the material relations of society because these
same material bases have defined, until today, our situation, and the situation of all
peoples in the world” (quoted in Noriega 1972, 59).
Objections to the Independence Thesis

The grave and exclusionary consequences that followed from the independence the-
sis generated immediate political reactions and responses. Republicans, in general,
challenged those elitist proposals in different ways and advanced radical economic
reforms against them. Herein we shall mention two of the main republican reactions
to the independence thesis.
The first response was to challenge the existing connection between economic indepen-
dence and political independence, by claiming, for instance, that economic dependence
did not necessarily cloud judgment, in the same way that economic independence did
not necessarily illuminate it. Some others, instead, radicalized the republican view
and claimed that if it were true that only economic independence guaranteed political inde-
pendence, then it was necessary to ensure economic independence to all.
Among those who followed the first route, many tried to demonstrate that, in fact,
all individuals (no matter their social position) were dependent on some other. The
question was, then, why deny political rights to only some of them (say, the most
disadvantaged, the poor). Others preferred to challenge the dominant approach to
property, objected to the moral and political qualities of property-owners, and ques-
tioned the anti-republican character of the criticized view. Still others defied the inde-
pendence thesis in a more direct way and maintained that economic independence did
not guarantee political independence, in the same way that economic dependency did
not necessarily imply political dependence.
The Argentinean Manuel Dorrego—one of the few interesting representatives of
Argentinean republicanism—offers an excellent example of these criticisms. In one of
the first important constitutional discussions in the country, Dorrego objected to the
idea of restricting political rights. He then showed the inconsistencies and contradic-
tions that characterized the views of those who advocated for the restrictive position.
In his words:
I find no reason to think that domestic servants lack independence, which

could not be applied to the rest of society. I wonder why . . . employers of
any kind do have the right to vote? . . . Is it not the case that employers of
any condition receive their subsistence from the Government? . . . However,

these employers are not excluded from vote. Why, then, to exclude domes-
tic servants? . . . What results from here is an aristocracy, the worst aristoc-
racy, because it is the aristocracy of money. (In that way) the representative
system is undermined because the representative system is based on equal
rights. (Ravignani 1926, 3:118)
Dorrego accused those who defended the status quo, claiming that in such a way they
put the entire political system in the hands of a small elite (3:118‒19). He wondered:
What kind of independence do we need? . . . Is it the case that the capitalist

does not depend on others? On the contrary, it may be the case that he is
more, rather than less dependent on others . . . What is important is to find
out whether there is a level of coercion that prevents someone from voting
freely. (3:119)
We find a quite similar view in the work of Mariano Otero.14 The Mexican legal thinker
articulated one of the strongest criticisms against the independence thesis. First of
all, Otero objected to the anti-republican character of such thesis (Otero 1967, 1:367).
In addition, he maintained that the solution that many his adversaries advanced was
impossible to apply in actual practice. The idea was—he claimed—“inconvenient”
because every argument directed at limiting the political rights of some people
implied, unavoidably, the exclusion of many others. For him, it was practically impos-
sible to demonstrate that a certain economic level would be correlated to “morality
and independence.” Moreover, he deemed the proposal of defining a certain economic
threshold as a minimum necessary for participating in politics totally impractica-
ble: the threshold would have to vary in different localities and according to differ-
ent professions, which in the end made the whole system “embarrassing, and finally
impossible” (1:362). This is why he proposed adopting a different rule, which implied
conceding citizen’s rights to all Mexicans who had reached the age of 20, who had not
been condemned in a legal process for a defamatory crime, who had an honest means
of living. In such a way, he assumed, the “democratic principle” would be distributed
“in the frankest way” (1:362).
Economic Independence/Political Independence

Probably the most interesting challenge to the independence thesis came from those
who accepted the conservatives’ invitation, but only in order to radicalize their claim.
Many republicans, in fact, took the conservative’s view on the interrelation between
economic independence and political independence to its extreme and proposed to
assume the also extreme consequences of this choice. The idea was the following: if the
conservative claim were true, then it implied that most people could not actually par-
ticipate in politics. Precisely for that reason it was then necessary to radically change
the dominant state of affairs, in order to permit the political participation of popular
majorities. That is to say, it was necessary to “free” the majority of the people from
their situation of economic anguish, rather than simply closing the door of politics in
their face.
A particularly interesting expression of this debate appeared in a dispute about
universal suffrage in Colombia. Manuel Murillo Toro had then led a successful cam-
paign in defense of universal suffrage. However, given that the first elections with uni-
versal suffrage favored the conservative group, many within the liberal-radical camp
objected to the proposed strategy. These critics began to question the use of univer-
sal suffrage, which seemingly allowed property-owners to use its extortive capacities
against the dispossessed, so as to benefit their candidates.
On that occasion, the future Colombian president, Murillo Toro, was one of the
few who kept a firm position in favor of universal suffrage. When most of his peers
seemed to renounce that principle and began to explore new limitations on the
right to vote, Murillo Toro opted for radicalizing his position. He thus maintained
that the political democratization of society had to come together with a process
of economic democratization.15 That is to say, instead of renouncing the defense of
expanding political rights, he claimed that political inclusion—the democratization
of politics—had to be based on the economic democratization of society: a proper
exercise of the right to suffrage required the economic independence of the voters.
The “basic question,” he stated, was “to ensure the purity of the suffrage through
the independence of the voters. We will never obtain independence or education
but by ensuring the independent subsistence of individuals through their liberty
and the security of work” (Murillo Toro 1979, 70). For Murillo Toro, the economy
had to be at the service of politics, so as to ensure the free election of the major-
ity.16 This was also the remarkable conclusion that he achieved in his polemic with
the liberal Miguel Samper. According to him, the notion of “laissez-faire,” which
Samper proclaimed, denied the essential principles of “association and fraternity”
(Murillo Toro 1979, 79). And he stated, “Every portion of land represents an equiva-
lent portion of sovereignty” (79, emphasis added). The message could not be clearer:
political independence had a strong, direct, intrinsic connection with economic
independence.17
The Economy and the Creation of a Politically

Committed Citizenry
Through his committed defense of universal suffrage, Murillo Toro was advanc-
ing a particular idea of liberty, which contrasted with the one that liberals usually
defended. Against the typically liberal idea according to which individuals had to
be “left alone”—a negative approach to liberty—radical/republicans tended to pro-
pose a different notion, based on the idea of non-dependency.18 Murillo Toro was
quite explicit in this respect.19 He stated, “Each person should have guaranteed the
fruits of his labor.” And also: “If a tenth part of society kept the land only for them-
selves,” then the rest would die or “live in absolute dependency.” In such a society,
he concluded, there would be “no political equality” but only “aristocratic domina-
tion” (Murillo Toro 1979, 78‒79). In what follows, we shall explore this different
approach to the idea of liberty and particularly its implications concerning the forg-
ing of character.
One way to begin with this exploration is by stressing the extended character of
this alternative view, which was shared by important participants in the region’s legal
and institutional debate. In this respect, we may refer again to the work of Francisco
Bilbao, particularly to his pamphlet El gobierno de la libertad. Bilbao published that
document in Lima, during his exile in 1855, and there he exposed an articulated
understanding of constitutionalism, which then found expression in his proposal
for a Constitution. Assuming a republican approach to the law, he wrote, in a section
dedicated to “the institution of liberty”: “Every man is free. No man can depend on
another man. The freedom that makes a person sovereign prevents him from violat-
ing or establishing the dependency of another man. Liberty is thus the IDEA that
presides and legislates all other actions” (Bilbao 1886, 1:278; 2007). What Bilbao said
was similar to what is possible to find in the writings of other republican thinkers of
the time, who were also severe critics with the problems derived from oppression or
exploitation. This is, for instance, the case with the Mexican politician and consti-
tutional thinker Ignacio Ramírez. Ramírez was the editor of the satiric newspaper
Don Simplicio, from which he used to engage in polemics with the conservative writer
Lucas Alamán, who expressed his political views in the newspaper El Tiempo. Through
his articles, Ramírez denounced, again and again, the abuses that affected a major-
ity of his contemporaries.20 For Ramírez, the situation of economic dependence that
affected a large part of the population prevented them from enjoying full citizenship.
He then criticized the “wise economists” that worked on the Convention, who had
“proclaimed the sovereignty of the people in vain,” while they deprived the laborers of
the “fruits of their labor, and forced them to consume their own capital.”21
If the dominant economic system generated economic dependency, and economic
dependency alienated people from politics, then a radical politics required the intro-
duction of substantive changes in the organization of the economic structure, so as
to make political changes possible. The introduction of these changes was seen, then,
as a way of integrating the majority of people into politics—ultimately, a way of build-
ing citizenry. This was, perhaps, the most important contribution of republicanism to
those early public discussions: the idea that the basic structure of society was crucial
in the forging of character and could thus contribute to the strengthening of the pub-
lic sphere (Sandel 1996).
The idea of employing the institutional system in order to build better citizens, or
citizens of a certain type, was particularly attractive at a time when the new societ-
ies appeared to confront historical decisions regarding how and where to proceed. In
fact, many of the most important political leaders of the time in America—including
Benjamin Franklin, Thomas Paine and Thomas Jefferson—posed fundamental ques-
tions of these types, concerning how to reorganize the new societies. In particular, all
of them questioned whether it was reasonable to base society on commerce. Against
that alternative, they advocated for an agrarian republic (see, in particular, the “agrar-
ian writings” of both Jefferson and Paine), and they grounded that claim on a clear
concern for the construction of citizenship.
The idea of an agrarian republic—the utopia of “40 acres and a mule”—in countries
that still had plenty of rich unexploited land, promised a world of equality. In that
world, everyone would have enough to live on and also the chance to actively participate
in the decision of the common affairs. By contrast, an economy organized according to
the needs of commerce promised just the opposite, particularly in terms of the forma-
tion of character. A commercial society in fact, promised a group of self-interested,
greedy citizens, interested only in defending their own affairs, who looked at the rest
as potential competitors. This is why so many republicans established a strong link
between commerce, vice, and corruption.22 Contrary to this picture, the production
of manufactures on a small scale appeared to be much more attractive because it was
a horizon that did not seem to come together with the concentration of wealth and
power (Sandel 1996, 144).23
That approach was not at all foreign to Latin American thinkers. There are numer-
ous examples, beginning with José Gervasio Artigas’s Reglamento Provisorio, which
was directed at ensuring a radically egalitarian distribution of land, which would
mainly privilege the rights of the worst-off. Similarly, we can mention the egalitarian
politics promoted by the Sociedad de la Igualdad in Chile or the work of the agrarian
egalitarians in Mexico (e.g., Francisco Severo Maldonado).24 Later on, the remarkable
work of the Peruvian radical José Carlos Mariátegui, who combined radical initiatives
for economic change and institutional proposals favorable to the political inclusion of
marginalized groups, particularly including indigenous groups, also appears.25
* * * *
Discussing State Neutrality: The Endogenous

Formation of Character
Through their dispute with the liberal approach to liberty, radical/republicans also
confronted the traditional liberal understanding about the State and its role. In
this way, they helped to put into crisis another crucial liberal notion, namely, that
of State neutrality.26 This discussion about neutrality included questions like the fol-
lowing: Should the State try to identify what the qualities of character necessary for
doing politics are? Should the State use its coercive powers to promote or support
the development of certain moral dispositions? Has the State the right to discourage
some types of ideals about the good life?
Through different identities, the idea of neutrality occupied an important place in
the nineteenth-century political and constitutional debates. This was not surprising,
given the weight acquired by the Church and religious ideals in Latin America during
the colonial period. The grave excesses committed by the State, in the name of reli-
gion and against individuals’ personal convictions, made it clear that there was some
sense in the idea of taking the State away from the sphere of the personal. Most people
understood that the State could become a threat for personal liberties. Liberals and
radicals, in particular, coincided in their common rejection of religious perfection-
ism, imposed through the use of the State’s coercive powers. Beyond this basic agree-
ment, as we know, their views tended to differ. Herein, we shall examine their different
approaches to the subject, so as to have a broader picture of the Latin American debate
about neutrality.
First of all, we could recall that, for republicans, the achievement of a self-governed
society required the presence of citizens that were identified with the destiny of their
community. Moreover, in their view, if people were not actively engaged in politics, the
entire self-governing project became under risk. Then, it was necessary to do every-
thing possible in order to promote certain basic civic virtues. Liberals, by contrast,
tended to reject the two premises that guided their adversaries’ reasoning. On the one
hand, they assumed that citizens were fundamentally egotistical and self-centered.
On the other hand, they assumed that people’s basic moral features were fundamen-
tally unchangeable.
For those reasons, republicans and liberals tended to assume a strongly different
view, concerning the role of the State. Synthetically, while republicans suggested put-
ting the entire institutional system at the service of creating a more robust and civically
active citizenry, liberals proposed organizing the institutional system by taking the
dominant motivational qualities (say, self-interest, ambition) as given. Typically, then,
they suggested building the institutional system in relation to human self-interest:
self-interest would then be, for them, the “fuel” that would set the institutional sys-
tem in motion and maintain its functioning. Republicans, by contrast, seemed to put
their attention in what we could call the endogenous formation of character, that is to
say, in the impact that the institutional system had or could have in the forging of
character.
Later on, we shall explore both contrasting views, namely that of republicanism,
which promoted the construction of character through the institutional system (and
also, in particular, through the economic system); and that of liberalism, which tried
to organize the institutional system by taking the dominant motivational characteris-
tics as given. Before doing so, however, we shall pause for an instant to highlight the
importance of this coincidence—the fact that both views conceived of the relation-
ship between character and institutions as central to their institutional projects.
First of all, for both views it seemed clear that the institutional system could open
the door to the people’s intervention in politics, or not; favor collective action, or
not; foster a close relationship between representatives and the citizenry, or not. In
sum, for both radicals and conservatives, it was clear that the institutional system
was always going to be in dialogue with the people’s motivations—either by trying to
change them or by taking them as its main combustible.
From this point we do not want to derive any substantive conclusion regarding State
neutrality. In fact, neutrality may be achieved or defended to different degrees and
may be analyzed at different levels of abstraction. However, the previous discussion
may help us to clarify something that is crucial when comparing different institutional
models. The fact is that all the different constitutional models appear to be commit-
ted to a certain view of the citizen, which they took as their basic anthropological
assumption. Moreover, in one way or another, they always try to foster or discourage
certain features of the people’s character. Liberalism, for example, could in principle
be compatible with any plan of life. However, at the same time, liberalism tends to bet-
ter accommodate certain plans of life over others. Probably, and for reasons that are
easy to understand (for example, the conviction that representatives have to be able
to change their viewpoints once elected or the fear of having an overactive citizenry,
which could affect the stability of a fragile institutional system), liberalism seems to
be more at home with a particular institutional system: one that ensured a strong
separation between the representatives and the people; one that favored apathetic,
rather than activist, citizens. Republicans, instead, always favored a more participa-
tive citizenry and encouraged the cultivation of civic virtues—they wanted to obtain
politically conscious citizens active in the defense of their community’s affairs.27
The Fuel of the Constitution: The Constitution and Personal

Motivations in the Tradition of the Federalist Papers
According to republicans, constitutionalism required the presence of civically active,
economically independent citizens, and the State was required to contribute to the
forging of those virtuous citizens. The republican view of human motivation, however,
differed in significant terms from the liberal one that greatly influenced what would
then become the dominant institutional model. In the dominant model, individuals
appeared to be motivated only or decisively by their self-interest. Given the extraordi-
nary impact achieved by the liberal institutional model, it may be appropriate to exam-
ine it in more detail. In particular, we shall pay special attention to the liberal decision
to “use” self-interest in the construction of the new institutions. For that purpose,
we shall focus our attention on the liberal model, as defended in the Federalist Papers,
which was greatly influential in the shaping of regional liberalism.
The Federalist Papers represent an extraordinary intellectual exercise, through
which some of the main political leaders in the United States, provided a foundation
to the liberal constitutional project. At the core of the federalist project, we find a
view of politics and economics that greatly differed from the one advocated by repub-
licans. While republicans (according to liberals) seemed to start from a utopian view
about citizens, federalists began their institutional analysis with the crudest picture
of human beings. And they took those human motivations as given because they
assumed that it was actually possible to put the most unattractive human motivations
at the service of the common interest. In fact, federalists took as their starting point a
conception of the person that assumed that individuals tended to be motivated either
by their pure self-interest or blinded by their passions—a view of human motivations
like the one that David Hume had presented (White 1987).
In order to find traces of that view in the liberal project, we do not need to look in
some hidden or marginal texts. On the contrary, this view appears as the dominant view
at the very center of Federalist No. 10, which is to say, in the most important Federalist
Paper and also the most important piece that was written in defense of the new institu-
tional system. In Federalist No. 10, at the core of his argument, James Madison described
factions as “a number of citizens, whether amounting to a majority or a minority of the
whole, who are united and actuated by some common impulse of passion, or of interest,
adverse to the rights of other citizens, or to the permanent and aggregate interests of the
community.” That is to say, for Madison there were no alternatives: it was clear that men
were motivated by passions or by self-interest and that, in both cases, human behavior
tended to create serious risks to others’ rights and liberties. In his view, the worst politi-
cal scenario appeared when people got together in large assemblies, because on those
occasions, almost unequivocally, passions tended to take the place of reason. This was
also what Madison wrote in Federalist No. 55, where he stated, “In all very numerous
assemblies, of whatever character composed, passion never fails to wrest the scepter from
reason.” Madison persisted with a similar idea in Federalist No. 58, where he claimed: “In
all legislative assemblies the greater the number composing them may be, the fewer will
be the men who will in fact direct their proceedings. In the first place, the more numerous
an assembly may be, of whatever characters composed, the greater is known to be the
ascendency of passion over reason.” In other words, for him, decisions motivated by pas-
sions were, in principle, irrational decisions. The situation did not improve much when
individuals acted out of egoism—for example, when they tried to improve their economic
situation, or gain more social influence, or more political power.
For both cases (persons or groups acting out of passions or self-interest), the
proposed solution was the same, namely the creation of institutional barriers and
channels capable of accommodating those human impulses. The institutional system
that was then created was aimed at “using” or transforming those evil or threatening
impulses in directions more favorable to the interests of all—sometimes by contain-
ing their effects, sometimes by channeling them.
The logic of this reasoning was particularly important at the time, at least within
the dominant elite. It was, for example, the same logic that appeared in Adam Smith’s
work. In fact, the notion of the invisible hand came to say precisely the same as the
notion of checks and balances in the Federalist Papers; namely that, in order to work,
an adequately established institutional system did not need to rely on the solidarity
or goodwill of any person or group; it was enough to have self-interested people (we
come back to this point below). In both cases, the idea was that, if properly channeled,
self-interest could work for the interest of the rest—selfish behavior, in the end, could
be put at the service of the common good.
Both in the economic sphere and in the sphere of politics, the idea seemed to be
the same: to utilize the institutional system in an efficient way, economizing on virtue.
A proper institutional design did not require from people more than what was reason-
able to expect from them, acting as rational egoists (Ackerman 1984).
Motivations, “Checks and Balances,” and Endogenous Controls

One of the most significant examples of how to channel self-interest through the
institutional system—how to put it at the service of collective welfare—appears
in Federalist No. 51. In that paper, Madison proposed to “use” the representatives’
self-interest for the common good, thus building a system of mutual controls. This is
the purpose of the system of checks and balances. In Madison’s words:
The great security against a gradual concentration of the several powers

in the same department, consists in giving to those who administer each
department the necessary constitutional means and personal motives to
resist encroachments of the others. The provision for defense must in this, as
in all other cases, be made commensurate to the danger of attack. Ambition
must be made to counteract ambition. The interest of the man must be con-
nected with the constitutional rights of the place. It may be a reflection on
human nature, that such devices should be necessary to control the abuses of
government. But what is government itself, but the greatest of all reflections
on human nature? If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal controls on govern-
ment would be necessary.
In this way, Madison made it clear what the fuel of the institutional system would
be: mere personal self-interest. Following Hume, Madison agreed with the idea that
in politics “every man must be supposed to be a knave” (White 1987, 98). Ambition
had to be used to counteract ambition. How? To set in motion a system of mutual
controls his “formula” consisted of combining personal motives with constitutional
means, so as to ensure that the entire structure of controls functioned. All these
efforts, he added, would have been unnecessary if men were angels; that is to say; if
people were always or most of the time well-motivated, aimed at serving the common
interest. However, that did not seem to be the case. According to federalists, it was
unreasonable—it was ultimately wrong—to create institutions under such unrealistic
and over-optimistic assumptions.
The first promise of a proper system of checks and balances was then simply an
armed truce. In effect, the idea was to give each of the contenders (each branch of
power) powerful firearms, which would allow them to resist the potential attacks and
encroachments of the other branches: the president would enjoy veto powers; judges
would have the ability to defy the validity of the laws (an attribution that was consoli-
dated only later); the legislature would enjoy powers of insistence against the presi-
dent and also the power to initiate impeachment processes and so on. The idea was
clear: endowed with “defensive guns,” all the members of the different branches would
feel equally intimidated and would thus tend not to exceed their own powers, fearing
retaliation—gunfire—from the other public agents. Clearly, the reaction—the gun-
fire—would not be the product of the others’ desire to serve society or altruist motiva-
tions or a commitment to protect individual rights; not at all. That response would only
express each person’s desire to serve his own self-interest and thus preserve his own
quota of power. In other words, the egoism of public officers—public officers’ decision
to preserve their positions and powers—would thus serve to avoid the excesses of
other public officers and thus also discourage the rise of those motives.
More significantly, the idea according to which men were not angels had a clear
addressee, namely anti-federalists and republicans, objectors to the Constitution in
general. According to federalists, their rivals wrongly assumed that people acted or
could act basically out of other-regarding, altruist motivations. Through the Federalist
Papers, Madison wanted to show why they were wrong and how much they neglected
the importance of controlling power. Those rivals seemed to assume that individuals,
once in office, would act as angels, offering their best efforts to the common interest.
Madison’s criticisms were, in the end, exaggerated and unjust. It was true, of
course, that many of his opponents did not share the Humean view of human motiva-
tions, which he himself subscribed to. It was also true that many of those opponents
took, as their starting point, a more optimistic view of human beings. At the same
time, it was clear that many of them—even without taking for granted a naïve view
of human motivations—had a great confidence in the transformative capacities of
the institutional system. Some anti-federalists did seem to assume that the institu-
tional system would be capable of transforming human motivations or taking the best
motives from each.
Given the centrality of this debate in the development of America’s institutional
history, it is important to take precise note of the differences that separated federal-
ists from their critics in this respect. First of all, it is not clear, as federalists some-
times suggested, that those critics were completely disinterested in the creation of
public controls and thus naively confident about the civic virtues of the representa-
tives. Many anti-federalists actually advocated for other types of institutional con-
trols. The main division between federalists and anti-federalists did not reside then,
in their different views of human motivation (say, egoism vs. altruism). Rather, they
were fundamentally divided regarding the types of institutional controls that they
wanted to build—namely, either, internal/endogenous controls or external/exogenous
controls.
Madison was clearly aware of this dispute, as we can see, for instance, in the last
line of the paragraph that was above quoted, which read that, if angels were to govern
men, then “neither external nor internal controls on government would be necessary.”
And he advocated for the adoption of a system of internal or endogenous controls,
which would allow each branch of power to restrain or contain the actions of the rest.
In his scheme, exogenous or external controls were fundamentally reduced to one,
namely, the periodical vote.
Anti-federalists, instead, advocated for other, fundamentally different controls,
namely external, exogenous, popular controls. In this case, the universe of controls
began with periodical suffrage, which then extended to a diversity of other mecha-
nisms. These mechanisms could include mandatory instructions, the right to recall,
mandatory rotation, annual elections, and so on. This is why, for anti-federalists, the
ascent of federalists to power offended the type of democracy that they imagined. In
the federalist project, in effect, popular suffrage appeared as the only relevant insti-
tutional bridge between representatives and the represented. In that way, periodical
suffrage assumed an extraordinary responsibility: it was going to be alone in charge
of a difficult and complex mission (expressing and channeling the popular will), which
anti-federalists preferred to distribute among plural institutional mechanisms. The
federalist choice deposited an enormous responsibility in a single instrument and con-
sequently augmented the chances of failure: periodical suffrage, by itself, could rarely
satisfy those increased political anxieties.28
Burned Bridges and How to Reconstruct Them: The Place

of Associations (from Juan Montalvo to González Vigil)
In the previous section, we examined how republicans and anti-federalists objected
to the liberal institutional machine—a machine that used self-interest as its fuel.
While the latter proposed an institutional organization that stressed the impor-
tance of endogenous controls (horizontal controls from one branch of power upon
the other), the former instead stressed the importance of exogenous controls (ver-
tical controls from the citizenry to their representatives). Rather than subscribing
to a naïve conception of society (as many federalists maintained), republicans and

anti-federalists advocated for a different kind of institutional system, based on dif-
ferent assumptions. Instead of simply rejecting all internal controls, or even worse
neglecting the importance of controls altogether, they stressed the importance of
other types of controls on the representatives—popular or external controls.29
The fact is, however, that critics of the (from then on) dominant system of checks
and balances objected to the limits of the federalists’ proposal, which did not seem to
take popular controls seriously. Clearly, the periodical vote represented an extremely
important instrument of vertical, popular political control, which federalists accepted.
The problem was, however, that this mechanism became much less attractive when (1)
all the other “bridges” that connected the representatives and the electorate (manda-
tory instructions, right to recall, etc.) had blown up; and (2) periodical suffrage was
designed in such a way that its potency was finally undermined (for instance, because
the Founders established severe requisites for having access to political rights, such
as economic requirements, literacy, etc., hindered popular participation, established
long political mandates, and spaced elections in time). Under those conditions, the
chances of suffrage becoming an appropriate instrument of communication between
representatives and the people became extremely low. What should be done, then, to
strengthen the power of vote? How can the relationship between representatives and
the people be improved?
Herein, we shall mention only one of the many alternatives offered by the critics of
the system of checks and balances—namely; the creation of democratic associations.
We shall highlight this response because of its importance, its influence, and the fact
that it refers to what is still a highly topical subject.
Associations seemed to have numerous virtues: they had a collectivist character;
they favored a “horizontal” way of doing politics; they contributed to the construction
of a virtuous (civically engaged) citizenship and an egalitarian economy; they favored
the citizens’ more direct intervention in the public life of their community. The asso-
ciational proposal also suggested the level of discomfort that many felt concerning the
dominant institutional system, based on egoist and elitist assumptions.
In nineteenth-century Latin America, the defense of associations became increas-
ingly common, particularly among radical and republican thinkers. We shall illustrate
the importance acquired by associations in the region’s public debates, through three
main examples, based on the views of Juan Montalvo in Ecuador, Victorino Lastarria
in Chile, and Francisco de Paula González Vigil in Peru.
Montalvo was one of the main critics of Gabriel García Moreno’s extreme conserva-
tive, “theological” government. For him, associations were “the need of our century.”
He believed that despotism and anarchy could only be confronted by “the assembly of
men of good will . . . the mutual support of good citizens” (Roig 1984, 233).30 Montalvo
also made clear the collectivist character of his proposal: “Isolation, the separation of
citizens, is the triumph of despotic rulers and their perverse auxiliaries. [However] if
the oppressors see that they must clash against a vast number of closely united men,
they are afraid and retreat” (233). For radicals like him, associations also represented
an interesting way of reversing the effects of many existing practices and institutions
that discouraged civic activism.31 In a well-known speech that he pronounced during
the installation of the association Sociedad Republicana, in Quito 1876, he exposed the
main assumptions of his view. These assumptions included a commitment to majori-

tarianism and to the idea that citizens were equally capable of taking public affairs in
their own hands. Wisdom was not, for him, the “exclusive property of those who have
it: they are only depositaries (of that wisdom) and have the obligation to share it with
their brothers. . . . All great social ideas need to be approved by a numerous and august
body” (232).
During the same epoch, in Chile, Victorino Lastarria considered that associa-
tions constituted “the leverage” for change, a fundamental means for progress, the
“political and social symbol” that reunited “friends of liberty and rational liberty,” and
finally as the “means that more efficaciously can contribute to the organization and
re-organization of American peoples” (Cristi and Ruíz-Tagle 2006, 35). For him, the
key problem of the time was the “triumph of individualism,” which had consecrated
“the principles of egoism and self-interest” with consequences that were extremely
grave for society (34). For Lastarria, as for many other thinkers of his time, the politics
of associations pointed to a completely different political paradigm, called to replace
the dominant one, which he characterized by its individualist features.
The religious figure González Vigil—a great influence within Peruvian politics—
also conceived of associations as an excellent means for “promoting and favoring the
general interest,” particularly in the face of a profoundly flawed institutional system.
For him, the fact that governments looked to associations with distrust was simply
“absurd.” “There is no reason to prohibit or discredit them,” he claimed. In his opinion,
it was “extravagant” and “inconceivable” to prevent citizens from taking “an active
role in politics” (González Vigil 1948, 19‒22). Like Montalvo or Lastarria, Vigil also
understood that the associational alternative required citizens of other types, differ-
ently equipped, differently motivated. And he also assumed that the very presence
of associations could have an endogenous impact in the promotion of the necessary
qualities of character. This was, for him, one of the great advantages of “particular
associations”: through them, people would find the chance to “establish relationships
among them,” they would “get to know each other, deal with each other, love each
other” (19‒22).
4
The Limits Imposed by the Past upon

the New Constitutions
Discussing the Past

Few issues seemed more important in Latin American public debates after the inde-
pendence than the discussion about the place, importance, and interpretation of the
past. The discussion about the past was an obsession among public figures of the time,
who greatly differed in their approach to the issue. For many, it was important to leave
behind the oppressive legacy of the colony, “uprooting” its influences. For others,
what was important was to assert the country’s own “glorious” past, against foreign
influences. Still others wanted to recuperate past experiences, but only those com-
ing from successful foreign examples. They all engaged in dialogue with the past and
battled around how to interpret it, in the face of questions like the following: What
value should be given to the old colonial rules? What were the merits and demerits
of certain crucial events (i.e., the French Revolution)? How should the institutional
developments that had taken place in neighboring countries be evaluated? What were
the limits imposed by the country’s own history on its present political alternatives?
In what follows, we shall pay attention to some of the most important debates
about the past that took place in the region during the nineteenth century. As we
shall see, all the most significant legal and political thinkers of the time got involved,
in one way or another, in those debates. The discussions referred mainly to four key
questions: (1) how to identify the past; (2) how to describe it; (3) how to evaluate it;
and (4) how to act in relation to that legacy. All these discussion, as we shall see, were
profoundly influenced by normative considerations.
Identifying the Past

At the very moment in which they began to discuss how to organize their country’s
postcolonial legal system, Latin Americans recognized that the discussion directly
concerned what to do with their colonial legacy. Most of them tried to demonstrate
that their favored responses were consistent with that legacy and above all respect-
ful of the history and traditions of the country. They all wanted to demonstrate that
their own version of the country’s history represented the best reconstruction of the
national legal history. However, the task was clearly difficult, because the past includes
62
The Limits Imposed by the Pa st 63
too many contradictory facts that are open to too many contradictory interpretations.
This is why, at the same time, we all want to resort to the past in discussions about the
present; while we find it so difficult to agree about how to read that past.1
Here we shall examine two significant examples that illustrate the uses and abuses
of the past in Latin America. The first example refers to the polemic maintained
on the topic by two noted Argentinian intellectuals, namely Juan Bautista Alberdi
and Domingo Sarmiento, and the second one shall take us to study the writings of
Simon Bolívar. All these figures engaged in discussions about the past, defended the
importance of retrieving certain political traditions, and at the same time seemed to
repudiate other alternative traditions. However, they greatly differed regarding which
traditions had to be recuperated and which ones rejected.
The Polemic between Alberdi and Sarmiento: Local Traditions

or Foreign Successful Examples?
We shall begin with the debate between two important Argentinian intellectuals:
the enormously influential jurist Juan Bautista Alberdi and the then president of
the country, Domingo Faustino Sarmiento. Alberdi and Sarmiento were able to agree
on many key issues, including their criticism of the country’s institutional situation,
their trust in institutional change, and their conviction that the past offered crucial
tools for thinking about the present. At this point, their differences began to emerge:
Where was it necessary to look in the search for examples or solutions? For Alberdi,
it was primarily important to focus on the rich local past and, if necessary, to the
experiences coming from neighboring countries (i.e., Chile, his favorite example). By
contrast, Sarmiento proposed to directly ignore all local antecedents, which he consid-
ered vague and insignificant “as characters traced in sand.” For him, it was necessary
to mainly pay attention to successful international experiences—to those experiences
that had “received the sanction of time.”
The polemic between the two grew bitter, and also became more extreme, after the
victory of General Urquiza against the federalist troops of Juan Manuel de Rosas. At
that time, the country began to take the question of enacting a Constitution seriously,
and they both wanted to be heard in that respect.
The debate between the two appeared (mainly, but not only) through five extensive
letters, which they wrote to each other: the five cartas quillotanas, written by Alberdi,
from Quillota, between January and February 1853; and the five letters written, as a
reply, by Sarmiento, which he named Las ciento y una.
The polemic was marked by harsh personal attacks. Characterized by his sharp and
potent plume, Sarmiento did not lose one occasion to object to Alberdi’s academicism,
arrogance, and political ambitions. At the same time, he criticized Alberdi’s choice to
live as an intellectual, in the midst of abstractions, when so many (even himself, who
worked for Urquiza’s army) were getting personally involved in public affairs and even
offering their lives to their country.
Meanwhile, Alberdi responded “from above,” assuming a more equilibrated and
distant position in the debate, as if he were completely uninterested in Sarmiento’s
personal attacks and angry criticisms. Subtly, however, he always tried to humiliate
Sarmiento, knowing how much the latter was affected by his fame and prestige, and
also how much Sarmiento lamented the lack of educational opportunities that he had
suffered in comparison to people like Alberdi.
The topics of their debates were many and different. One of the most important, for
our present analysis, relates to their discussion about the relationship between local
law and foreign law and, more particularly, about the worth of employing “successful”
foreign legal solutions to local problems. Sarmiento developed a radical view on the
topic and proposed to follow US constitutional practice in every aspect. By doing so,
he directly challenged Alberdi’s view, which he properly recognized had become enor-
mously influential in Argentina’s national politics (Alberdi had sent his constitutional
proposal to the triumphant General Urquiza, and it had gained immediate and wide
recognition within the dominant elite).
In his comments on the national Constitution (Comentarios a la Constitución), which
he wrote after the enactment of Argentina’s 1853 Constitution, Sarmiento made a
meticulous comparison between Argentina’s main text and the US Constitution. In
that comparison, he frequently quoted the American jurist Joseph Story, who had
also made an in-depth analysis of the US Constitution (his famous Commentaries on
the Constitution of the United States). Following Story, Sarmiento described the US
Constitution as one that was “already discussed, already fixed, already tried.” It rep-
resented, for him, the model Constitution, the one that had received “the sanction
of time.” It was the Constitution that had passed all necessary exams in “each of its
phrases, each of its clauses, each of its words” (Sarmiento 1926, 4).
Fascinated as he was by the US example, Sarmiento maintained, provocatively, that
the local law lacked any interest whatsoever: there was nothing really relevant, nothing
worth studying, that came from the local experience. Those antecedents, he claimed,
had been “erased from the memory of the peoples, as characters traced in sand.”2 For
him, it was necessary (and possible) to simply import the US model. In his words, for
the “free peoples,” there existed only one “political gospel,” only one “political moral-
ity” to follow, and this was composed of “fixed principles that already acquired the
character of dogma, which cannot be modified in their application, nor altered in their
essence.” The example that he had in mind was “democratic government of the United
States, the ultimate example of the human logic.” With that example available, it was
simply pretentious to “innovate in constitutional law, ignoring the laws that had been
confirmed by experience” (Pérez Guilhou 1989, 46).
In Sarmiento’s view, invocations about “national specificities” or local “originalities”
were only bad pretexts for not doing what was required. “There is only one truth,” he
stated, and that was coming from the best and most successful examples (Sarmiento
1926, 46). His conclusion was that “the peoples have to adapt themselves to the form
of government, and not the form of government to the aptitudes of the peoples” (29).
He proposed a rational-deductive approach to the issue, which deeply contrasted with
Alberdi’s historically based approach.
In another important book—his Estudios sobre la Constitución argentina de
1853—Alberdi responded to Sarmiento with vehemence. He objected to Sarmiento’s
use of the US Constitution for comparative purposes, which he considered a way to “fal-
sify and trivialize the national Constitution.” Against Sarmiento, he claimed that one
should not “ruin the Constitution under the pretext of explaining it” (Alberdi 1886,
149). More significantly, he condemned his colleague for disregarding the existing
national legal antecedents. In his view, people like Story had properly studied the US
law, before commenting on it. This was not, he suggested, the case of Sarmiento, who,
in his opinion, had unjustifiably disregarded the “colonial history, the constitutional
writings of the new regime, the preparatory work of local publicists, the discussions
and motives of the Argentinian legislator” for barely examining the US Constitution
(154).
Also, and challenging Sarmiento’s comparative enterprise, Alberdi maintained
that a contrast with the neighboring case of Chile was much more promising than
one with the United States. This was so, he maintained, because the Argentinian
legal system “resembled one thousand more times to the Chilean system than to
the one of the United S”: both Argentina and Chile were, in the end, ex-Spanish
colonies from South America (Alberdi 1886, 157).3 Heavily influenced by the writ-
ings of Guizot and, most of all, by Savigny (whom he knew through his study of
Lemminier), Alberdi rejected the idea of importing a Constitution like that of the
United States, a country that was so distant from local traditions (Terán 2005).
In his opinion, a proper constitutional law had to be able to recognize and recover
the local realities. As he wrote in the Prefacio al Fragmento Preliminar al Estudio
del Derecho, “men draft the law, they do not create it.” Alberdi assumed that men
could draft the law, but not create it. For him, “Power derives from circumstances;
the constitution does not create power, it only establishes it” (Barros 1997, 293).
Alberdi proposed to think and study the law as a “living phenomenon,” trying to
reach the “spirit of the law.” In his view, the science of law had to be, like physics,
experimental and thus interested in facts rather than abstract doctrines. Law had
to be then examined through the lens of history—a proposal that many found too
conservative in its implications.4
In the end, for Alberdi, constitutionalism was an enterprise that required a persis-
tent process of trial and error, based on the study of local habits and practices, which
contradicted Sarmiento’s reverence for foreign “theorems” that were incompatible
with national realities. This was, for example, what he wrote in the Chilean newspaper
El Comercio de Valparaíso, on July 4, 1848:
What is required in South America is not the study of Constitutions writ-

ten in other countries, but rather the study of the things, the habits, the
means, the capacities of these peoples, which do not resemble those of other
peoples, which have different antecedents and live in different conditions.
This is an experimental study, which needs support from the observation
of life and society in South America. It needs to be more practical than
speculative . . . (or a) scientific doctrine. And then the first point of refer-
ence is that of Chile. Guided more by experience than by abstractions, Chile
has given to its democracy a Constitution that has ensured the country its
peaceful and ordered development. This Constitution is different from all
other Constitutions. . . . It could be a nice point of departure for the study of
Hispanic-American democracy. Its study is more relevant today than ever
before, because these peoples, after being victims of the seductive example
of the United States, seem prepared to start running behind the shining
but confusing example of the French Republic; always going behind what
is inadequate, always practicing plagiarism, without recognizing that this

crime is punished both in history and in the Criminal Law (Barros 1997,
296–7).
Simón Bolívar: Which Local Traditions Should be Recovered?

The case of Bolívar is particularly important because it illustrates a phenomenon that
was very common at his time, namely the political use of the national past in order
to resist the influence of certain imported, foreign institutions. The obvious problem
with this view was that the entire public discussion of the time was (not surprisingly
and unavoidably) dominated by foreign ideas, examples, and institutions. In other
words, it was very difficult then, as it is still difficult today, to find institutional pro-
posals that did not come from abroad; or had not been, in one way or another, shaped
by foreign influences. In the end, what was normally at stake, then, was the repudia-
tion of not all, but only certain, foreign proposals, in the name of alternative, local
ones, which were also based on and influenced by foreign ideas.
Very commonly, those who pushed in favor of this divisive view between local and
foreign institutions were politicians of the conservative type, who feared the diffusion
of radical proposals that questioned the status quo. In their discourses and writings,
they contrasted local history, national sociology, the dominant traditions, the more
established habits, the permanent values, the overriding practices (which they consid-
ered truthful to the realities of the country) with the alternatives that they identified
with their opponents, which they described as full of abstractions, principles, rational-
ist proposals, empty theories, and foreign inventions imported from abroad.
In this respect, Bolívar’s example is particularly telling, given his enormous influ-
ence in Latin American early constitutional debates. Bolívar was, unequivocally, dis-
trustful of foreign principles and theories.5 He appeared as the champion of “local”
initiatives.6 He claimed that a country had to first have the chance to try to affirm
its own local initiatives, and only then, after a long period of transition, could it
start trying foreign, imported institutions. In line with this view, he made frequent
criticisms of the institutional arrangements that prevailed in modern Europe and, in
particular, to those coming from the French revolutionary experience.7 “They do not
want monarchs; they do not want life-tenured presidents; even less aristocrats. Why
then they do not drown themselves in the boisterous and joyful ocean of anarchy?” he
questioned.8
Now, the fact is that Bolívar’s harsh criticisms against imported abstractions seemed
to contradict his own political discourse and also the practice that he advanced, as
an activist engaged in constitutionalism. This is to say, Bolívar’s constitutional views
were also obviously informed by foreign models.
In effect, at an early age, his legal writings appeared to be profoundly marked by
the British model of constitutionalism, which was characterized by a powerful mon-
arch, appointed for life, and political representatives coming from the upper classes.
That influence appeared, clearly, in his well-known Jamaica Letters (1815), where
Bolívar reflected on how to organize the political systems of the new independent
nations. Following the example of Great Britain, he then recommended the adoption
of a strong Executive and a hereditary Senate. In his proposal, the legislative power
was thus divided into two chambers. The first one was to be composed by popular
representatives, and the second one by the elite of those who had fought for the inde-
pendence of the country and their descendants. Members of this political elite had to
receive a special education, which would help to prepare them for their delicate politi-
cal tasks (Belaúnde 1967, 178).
Five years later, in 1819, in his Angostura Discourse, the influence of the British
model in his writings was still dominant. At that time, he proposed accompanying the
Executive with a hereditary Senate, organized according to the model of the British
Chamber of Lords. The political power of the country had to remain, as usual, concen-
trated in a strong Executive power. “There is nothing as dangerous as the weakness of
the Executive power,” he claimed. In line with that view, he proposed that the presi-
dent of the Republic should be appointed for life, and he also suggested making this
position unaccountable.
By 1826, his views were more clearly influenced by the example of France and, more
specifically, by the French Consular Constitution. Following the Napoleonic example,
Bolívar insisted on his preference for an Executive appointed for life and with the power
to choose a successor. In his message to the Bolivian Congress (May 1826), he detailed
the features that, in his opinion, had to characterize the president of the Republic. He
stated:
The president of the Republic, in our Constitution, becomes the sun which,
fixed in its orbit, imparts life to the universe. This supreme authority must
be perpetual, for in non-hierarchical systems, more than in others, a fixed
point is needed about which leaders and citizens, men and affairs can revolve.
“Give me a point where I may stand,” said an ancient sage, “and I will move the
earth.” For Bolivia this point is the life-term president. (Bolívar 1976, 233)
On that occasion, Bolívar incorporated in his constitutional project a fourth branch of

power, named the Electoral Power, which he took from the Napoleonic Constitutions
of the years VIII and X, the Constitution of Cadiz, and the 1823 Peruvian Constitution
(Belaúnde 1967, 237). This new branch was in charge of defining the requirements for
becoming an elector and also responsible for presenting the main candidates for most
public positions.9
In actual practice, then, Bolívar did not appear to be really against the importation
of foreign ideas or institutions, as he declared. Rather, he seemed to be emphatically
against the importation of certain specific foreign influences. Undoubtedly, Bolívar’s
bête noire was the French Revolution and its radicalism, which he had begun to fear
through the close example of the “black revolution” in Haiti in 1791 (a revolution that
was clearly inspired by French egalitarian ideals) and that he found also present in
Juan Boves’s pro-Spanish insurrection in Venezuela.
Bolívar’s critique of French revolutionary thought was a constant in his entire intel-
lectual life. Already in his Memoria dirigida a los ciudadanos de la Nueva Granada por un
caraqueño, o Manifiesto de Cartagena, which he wrote in December 1812, Bolívar dedi-
cated long paragraphs objecting to the supposed teachings of the French revolutionar-
ies. He claimed that the revolutionaries in America had nothing to learn from those
examples: “We have been having philosophers as leaders, philanthropy in the place of
legislation, dialectic rather than tactics, sophists rather than soldiers.” He also criti-
cized what he called the “exaggerated maxims of human rights” that had only served to
“destroy social compacts” and drive the new nations into “anarchy” (Bolívar 1976, 9).
Similarly, in his Jamaica Letters, Bolívar repudiated the idea of a federal system, which
he deemed a “too perfect” solution that demanded “virtues and talents” that were “far
superior to the ones we find among us” (69). Also, in the Angostura Congress (1819), he
made a claim for the moderation of “excessive demands” and faulted “abstract theories”
for promoting the ambition for an “unlimited liberty” (120).
Of course, Bolívar’s invectives against the “exaggerated maxims” and “abstract
theories” that he related to the French Declaration of Human Rights were shared by
a vast generation of politicians and jurists, of conservative origin, in all the American
countries. Among American conservatives, in particular, Bolívar’s reasoning was very
common. They all tended to challenge the importation of foreign theories, but particu-
larly those related to French revolutionary ideas.10 Their strong repudiation of foreign
ideas was thus compatible with the vindication of other authors, more closely linked
to the dominant nationalistic discourse.11 In the end, what happened was no surprise.
There seemed to be too little room for defending fully local ideals or institutions: it
was actually very difficult to propose or discuss political institutions without taking
into account proposals and institutions originated beyond the national borders.
Describing the Past

Having identified a certain aspect or moment of the past to be discussed, the question
is then how to describe that object. In principle, we seem to face again a noncontro-
versial question: we just need a fair description of the selected object. However, the
task immediately reveals itself to be also enormously controversial. The description of
the past requires the selection of facts and figures, and also of particular features or
expressions of those facts and figures. In order to describe the past we need, first of all,
to select what we consider the defining features of that object. Moreover, to properly
describe a certain period of the past we need to start making decisions regarding dif-
ferent and enormously complex causal connections. We need to question, for example:
Is it really the case that the signature of treatise T “provoked” the popular uprising G?
Could it be possibly said that the enactment of document D is “responsible” for the
institutional weaknesses that since then characterized society S? Is it right to say that
the coming to power of popular leader P “determined” the unity of the inhabitants
of country C? To answer these questions, one is required to subscribe causal theories
that are basically impossible to verify. However, we tend to talk and write as if those
causal connections were obvious: our public discourse—like the public political dis-
course that was prevalent decades ago—is heavily based on those descriptions about
the past, which play a decisive role in our task of persuading the rest about the value
of what we affirm.
An interesting and relevant illustration, in this respect, comes again from Simon
Bolívar and his analysis of the 1811 Venezuelan Constitution. The 1811 Constitution
was a particularly significant Constitution, given its pioneering character, its
Rousseauistic terminology, and its anti-presidentialist profile. Bolívar, however, was a

tough opponent of the document from the very beginning. He actually considered the
text to be responsible for many of the worst calamities that affected Venezuela after
the independence. He stated, “Among the causes that provoked the fall of Venezuela,
we should mention, in the first place, the nature of its Constitution, which was so con-
trary to the interests of the country, as it was favorable to the interests of its enemies”
(Bolívar 1976, 14). The claim was obviously exaggerated: the Constitution was basi-
cally not in force, and Venezuela’s woes, at the time, seemed to have little to do with
the law in force. In any event, the example is attractive because it illustrates the role
played by the reconstructions of the past (and thus certain reconstructions of certain
causal connections) in actual political disputes (Bolívar wanted, at the time, to make a
case in favor of the concentration of powers).
Another interesting example comes from Mexico and concerns the rise and fall of
the 1824 Constitution. The Constitution was, again, short-lived, but it played a signifi-
cant role in discussions about present and future politics. For instance, the conserva-
tive jurist Lucas Alamán dedicated five heavy volumes—his famous Disertaciones—to
discussing Mexico’s history. Through that work, Alamán tried to demonstrate the
enormous impact of the past upon the present. And in his reconstruction of Mexico’s
political past, the 1824 Constitution played a central role. For him, that document
was directly responsible for the period of political instability that followed its enact-
ment. He wondered “what caused this situation of permanent turmoil, these continu-
ous revolutions.” His answer was clear: the origins of that tragedy resided in the 1824
Constitution, which inaugurated a period of legal confusion, putting an end to almost
300 years of political order (Noriega 1972, 351‒52). As in the previously examined
example, here we also find a liberal, prestigious Constitution, which was repudiated
by a conservative activist, who tried to present the document as the origin—“as the
main cause” of all national disgraces. Like other conservative thinkers of the time,
Alamán dedicated an important part of his intellectual energies to denouncing the lib-
eral Constitution and proposing a new reading of the legal history of the country. This
was, in fact, the main object of the monumental effort expressed by his five-volume
work: Alamán tried to demonstrate that the liberal heritage of the country required
repudiation, rather than affirmation or continuity.
Of course, we also find (politically speaking) opposite cases of liberal authors try-
ing to demonstrate the pernicious character of conservative, stable, or “successful”
Constitutions. The most interesting case in this respect is probably the one repre-
sented by the Chilean 1833 Constitution. We must recall that the 1833 Constitution
had become the regional symbol of political stability: an actual demonstration that
legal and political stability were possible, even in the midst of serious social difficul-
ties. The Chilean example suggested, for many, that stability only required the adop-
tion of the appropriate legal tools.
The fact is, however, that at least since the mid-nineteenth century, many of the
most lucid liberal intellectuals in Chile began to attack the 1833 Constitution. These
critics tried to show that the Constitution was actually a failed experiment, even
regarding its contribution to stability. Among these critics we find, for example, the
noted liberal intellectual José Victorino Lastarria, who became the most important
objector to the 1833 Constitution. For him, the Constitution had been a failure in a
diversity of aspects, including the one that was most praised by its defenders, namely
its service to peace. In his words:
Is it the case that this politics obtained what it wanted, that it guaranteed
order and tranquility forever, putting an end to revolutions and turmoil, and
making national freedom possible? . . . For us . . . clear adversaries of this way
of doing politics . . . the answer to that question is negative, and we ground
our judgments in facts. (Recall) all the conspiracies and tumults . . . the
revolutions and battles of 1837, 1850, and 1851; and (all the years in which)
our republic has been under state of siege and extraordinary powers . . . which
have demonstrated that neither the revolutions nor the disorders have come
to an end (in the long period in which the Constitution has been in place).
By contrast, what is clear is that it has been necessary to rule without it,
by sacrificing the national liberty in order to perpetuate such an erroneous
politics . . . the dominant restrictive or absolutist politics has been incapable
of maintaining order because that politics itself is a threat to justice . . . the
only possible base to tranquility and progress in human societies! Is it possi-
ble to think, however, that without those measures and those extraordinary
faculties we would have had more disturbances and a more terrible anarchy?
Surely no, because . . . liberal politics and the rule of law are the best means
for achieving order and the more solid guarantees for security and tranquility
(Lastarria 1906, 1:215‒16).12
Another noted liberal, Justo Arteaga Alemparte, reached exactly the same conclusion
as his colleague Lastarria. For Arteaga, it was clear that “all the troubles” that affected
Chile during the years of the 1833 Constitution were “a consequence of that same
Constitution.” For him, the causes of Chile’s stability resided, instead, “in the char-
acter and necessities of its inhabitants, and the conditions of its soil, rather than in
the 1833 Constitution.” Without that Constitution, he concluded, “We would have
had less troubles and more progress” (Arteaga Alemparte 1870, 28‒29). And also “the
Constitution has understood how to provoke turmoil; but it has not been able to pre-
vent or overcome it. To make it responsible for the success of the country is . . . abso-
lutely unjust” (31).13
Ultimately all these examples point in the same direction, that is to say, the pro-
found disagreements that existed in the region regarding the effects of constitution-
alism on the new independent societies. The creation of new institutions seemed to
require, then, a prior agreement regarding how to describe the past, and particularly
regarding the actual impact of constitutionalism on the evolution of the local history.
Evaluating the Past

Analytically speaking, we need to distinguish between the descriptive and evaluative
aspects of a certain phenomenon. Here we are going to concentrate our analysis on
the conflicts originating from different evaluations of the same facts. In our analy-
sis, however, it will become clear what we already suggested, namely, the profound
interrelation that exists between the descriptive and evaluative aspects of a certain
phenomenon.
A good illustration of how a crucial historical example may be the object of opposite
interpretations is the French Revolution and how it was read in the Americas. There
are many facts that explain why discussions about the French Revolution created such
a heated debate in the region. These factors include, among others, the circulation and
impact of French revolutionary texts during the independence wars; the enormous
reputation achieved by the French Declaration of Human Rights; the numerous Latin
American rebellions (sometimes in favor of the Spanish Crown, sometimes against
the colonial domination) that invoked the revolutionary values of liberty, equality,
and fraternity; and the many American public figures who were in direct contact with
French intellectuals and French politics.
The fact is, however, that French political practice was open to too many diverse
readings. According to many Americans, the French Revolution symbolized the fight
for emancipation and freedom; and the texts produced in that context had to be con-
sidered crucial intellectual material, for questioning the dominant political, social, and
economic structures. According to many others, the most important and revealing
aspect of the French Revolution was the Jacobin period of terror and its promises of
chaos, violence, unrestrained passions, and disorganized masses trying to subvert the
traditional order. Both readings were, in the end, possible and reasonable.
If the first of the two readings—the one that vindicated the emancipatory charac-
ter of the French Revolution—turned out to be of crucial importance, at the time of
the independence revolutions of the Americas (think, for example, about the exam-
ples of revolutionary leaders such as Mariano Moreno or Bernardo de Monteagudo),
the latter gained importance right after American independence was achieved. At that
time, anti-French rhetoric became enormously popular, at least among conservative
political thinkers.
We can begin our examination with the testimony of the conservative Colombian
leader Sergio Arboleda, claiming that “all the incidents of our revolution relate to one
principle, which is conducive to one tendency: . . . the idea is the anti-Catholic idea of
the French Revolution; and the tendency is that of destroying the moral sentiment of
our peoples” (Rodríguez Albarracín 1988, 278).
We find a similar approach in the writings of Mariano Ospina Rodríguez and José
Eusebio Caro, who were the main authors of the Colombian 1843 Constitution (a
Constitution that was then considered the most conservative in the history of the
country). In a message that he pronounced before the Colombian Congress in 1842,
where he examined the recent history of the country, Ospina faulted the “doctrines
of the French philosophers” for New Granada’s political crisis. And he considered that
the recent civil war (the so-called “War of the Supremes”) was due to the influence of
the existing “Jacobin tendencies” that prevailed among the political elite and also the
presence of “institutions that favored anarchy” (González González 1997, 176‒77).
Similarly, for the main ideologist of Peruvian conservatism, Bartolomé Herrera,
the key for understanding the evils affecting the political life of his country resided
in the prevalent Rousseauistic ideology. “Both government and citizens have become
slaves of what they call the will of the people, this is to say, government, citizens and
the people have become slaves of the will of demagogues.”14 For Juan Ignacio Gorriti,
one of the most inspired voices among Argentinian conservatives, the refutation of
the French revolutionary ideology was an intellectual priority. Gorriti dedicated a
good deal of his famous Reflexiones to that goal. “Human societies,” he claimed, are
based on “the solid and indestructible natural law,” rather than in abstractions like
a “social compact.”15 We find other similar opinions, for instance, in the writings of
father Francisco de Paula Castañeda (Lewin 1971, 99).
In sum, the point is that many of the most important Latin American conservative
thinkers, reflecting upon the new Constitutions, agreed on taking French revolution-
ary ideology as one of the main targets of their intellectual attacks. For them a neces-
sary connection between those extreme ideologies and the type of social anarchism
and political violence that affected the region seemed to exist. This negative evalu-
ation of revolutionary ideas played a crucial role in the early intellectual debates in
the Americas. For those thinkers, “winning” that evaluative dispute about the past
represented a fundamental condition for ensuring the success of their favored politi-
cal project in the present.
What Should Be Done with the Past? Do We Need

to Eradicate the Past Completely?
The identification, description, and evaluation of the past, promoted by most political
leaders and publicists in the Americas, was mainly aimed at one objective, namely, the
justification and motivation of their present political actions.
Discussions about what to do with the past (fundamentally, discussions about how
to reform the present situation in light of the past) forced new reflections on certain
fundamental issues, including the rhythm or speed of the required changes (should
these reforms be gradual or drastic?); their scope (was it necessary to advance localized
or ample reforms?); and their depth (should those reforms be structural?)
These issues are well illustrated in the debate held in Mexico by Lorenzo Zavala,
who advanced quite extreme views about the past (views that related to the radical
constitutional model), and Lucas Alamán, who, as we know, dedicated his monumen-
tal Historia de México to defending a different interpretation of the history of his coun-
try (Aguilar Rivera 2008).
According to Zavala, it was not acceptable for the new authorities to pact with the
dominant sectors of the Army or the Church, which he identified with the colonial
past. For him, it was imperative to promote “a radical break with the past” rather than
continuing with a process of slow changes, which could only “perpetuate and exacer-
bate the existing tensions and the existing instability.” According to Zavala, Mexico
required “actions of rupture,” which included “the abolition of all the existing privi-
leges” and at the same time guarantees for the “basic individual rights of all Mexicans”
(Fowler 1966, 177).
Lucas Alamán developed a completely opposite view. For him, it was necessary to
accommodate the new political institutions to the old ones and not the other way
around. “Things should be accommodated to the prevailing status quo,” rather than
continue deepening the existing divorce between “the written Constitution and
the real Constitution, between the formal and the inorganic” (Noriega, 1972, 352).
Against the claims of his political rival, Alamán emphasized the existing differences
and incompatibilities between the traditions coming from the United States and those
distinctive of the Mexican Monarchy. For him, it was necessary to go back to the old
practices that had distinguished the political life of the country, rather than continue
looking for foreign examples to imitate.
In polemic with many of his colleagues, the Argentinean Alberdi showed another,
different and provocative approach to the past.16 On the one hand, Alberdi did not
advocate for a simple and comprehensive compact with the past, but rather for a
selective compact that implied both reassuming and leaving apart certain aspects of
the recent history. His favored pact included the incorporation of many distinctive
aspects of what had been Rosas’s oppressive regime, which his colleagues repudi-
ated. At the same time, this openness toward central features of Rosas’s regime
came together with a drastic rejection of other aspects of Argentina’s history. These
aspects included, for example, all the democratic ideals that were present in the
country since the time of the independence revolution. These were the ideals that,
in his view, derived from the old Greek democracy and also from the teachings
of Rousseau, which many of his colleagues admired. For Alberdi, both examples
were equally and seriously unsatisfactory because of their anti-individualism and
the way in which they stressed popular participation in politics. In ancient times,
he claimed, “Human persons counted very little in the face of that sacred, almost
divine authority, which was called the State.” “They,” he continued, “did not know
either the freedom of private life, or freedom of education, or religious freedom”
(Alberdi 1920, 2:149). Similarly, Alberdi criticized Rousseau’s views, which he asso-
ciated with the thought, writings, and practice of Mariano Moreno—the fierce
revolutionary ideologist of Argentina’s Independence. “The Social Contract,” he
stated, “became the catechism of our revolution, thanks to the influence of Doctor
Moreno.” The outcome was a growing process of subordination of the individual to
the State (2:137‒38).17
Now, one of the richest Latin American debates about how to deal with the past
was the one held between the Chilean Victorino Lastarria and the noted jurist Andrés
Bello. Given the importance and fertility of this discussion, we shall herein focus our
attention on that dispute.
Reflecting upon the past, the liberal Chilean Victorino Lastarria wrote a significant
essay on the Spanish colonial legacy, where he referred to the importance of “attacking
the evil from its roots,” in alliance with “disinterested patriots, who actually aspire to
reform the country” (Lastarria 1868, 9). This reform had to be directed to putting an
end to what was, in his opinion, the most significant political problem of the time: the
prevalence of a “repressive political organization.” For him, this repressive system had
characterized “all our governments, all our parties, in the last 38 years.” This was “a
repressive system” that had worked “openly against the goals of the revolution, mak-
ing political reform impossible” (7).
In the face of the existing institutional legacy, Lastarria recommended the adop-
tion of a “radical political reform,” which would preserve all existing individual rights
“without restrictions.” The proposed changes included an electoral reform that
conceded the right to vote only to literate persons;18 a more powerful Legislative
power, organized through a bicameral system; a reorganized Judiciary led by a
Supreme Court; an Executive power with five years’ mandate and without the right
to reelection; and a stronger municipal and provincial organization (Lastarria 1868,
10‒14).
A severe critic of the colonial institutions, Lastarria advocated for the eradication
of that legacy and assumed that the law could play a fundamental role in that task. His
view came to challenge two very common ideas in the area, which were, for him, both
clearly mistaken. On the one hand, he wanted to confront the conservative assump-
tion according to which the habits and manners of the Chileans represented a pow-
erful barrier against any desired change. On the other hand, he wanted to challenge
those who were skeptical about the transformative powers of the law. For Lastarria,
dominant patterns of behavior had, indeed, an impact upon the law, in the same way
that the law had an impact upon human behavior. Both these elements (the law, the
dominant habits) were in the end capable of enriching the other. In Lastarria’s view,
nobody could deny those obvious facts—but those who actually benefited from the
old institutional order.19 In his words:
[There are those who] believe it indispensable . . . to modify the local cus-
toms, assuming that no new arrangement can work unless it finds support
in those customs. This belief is correct with respect to social reforms, but
it is not so regarding political reforms. [This is a kind of concern] that is
usually advanced by conservatives who want to preserve the ancient regime
and poor politicians who are interested in maintaining a political monopoly
that benefits them. However, this view does not acknowledge the recipro-
cal influence that exists between the law and customs. . . . It has been said
that “liberal institutions are born naturally from the customs of a popula-
tion where each individual is used to organize his own life and to discipline
himself, while the customs of free men are not the mere product of liberal
institutions.” The first part of this thesis is obvious, while the second is false.
Free customs produce liberal institutions, in the same way that retrograde,
corrupt, and decayed institutions produce analogous ones. In a similar way,
liberal institutions moderate old customs, and change them, or produce free
customs. This is so, because customs are the product of the beliefs of society
at a certain time, which can change as a consequence of the rectification of
those ideas. And there is no more efficient way to create and impose that
rectification, than through the work of the law: this is the influence of the
law upon the customs (Lastarria 1906, 2:209‒10)
For him, the example of the United States was particularly illuminating in this respect:
it clearly demonstrated the law’s capacities to have an impact on the people’s behavior.
According to Lastarria, if the American colonies had to wait for the adequate function-
ing of schools, or the flourishing of culture in order to become truly democratic repub-
lics, then reforms would still be waiting their time. “The law by itself is enough . . . for
promoting an opinion or creating new customs. . . . We can recognize this fact by
merely looking to the way in which [these new nations] have radically changed their
opinions and customs, after a brief essay with a political reform. . . . What institutions
have done with customs is simply admirable!” (2:210‒11).
The well-known jurist Andrés Bello was, then, one of the first and surely the most
important constitutional thinker in answering Lastarria’s views on the colonial past.
Above all, Bello objected to Lastarria’s philosophical approach to the problem, which
he found improperly lacking historical support (Jaksic 1997, xlv). Bello felt “repug-
nancy” (this was the word he used) for Lastarria’s analysis, particularly in the latter’s
references to the “profoundly degraded” character of the Chileans, or to the lack of
“social virtue” that distinguished Chilean society after so many decades of colonial
life. For Bello, those claims were completely false and had been refuted already by the
numerous “heroic acts” that were carried out by Chileans in all those years. Quoting
Sismondi, he stated:
Those who want to propagate new ideas have fallen in serious mistakes. Being
aware of the kinds of evils they wanted to destroy, they have formed false
ideas about the good they wanted to create. They believed they discovered
principles, when they only had paradoxes. The social science [that human-
ity needs] requires renewed, more serious and more profound studies (Bello
1997, 19:157).
Bello’s disagreements with Lastarria’s main thesis were still more profound. In par-
ticular, he disputed the way in which Lastarria reconstructed and interpreted Chile’s
political life (and, more generally, the political life of the Americas). For him, Lastarria
had adopted a too extreme and radical position against the colonial legacy, which was
useless both to understand the present situation and to begin its reconstruction.
According to Bello, traditions had to be closely studied and finally recovered, rather
than simply rejected. Bello in this way was opposed to those who developed a “phi-
losophy of history” that was, in the end, lacking in basic historical information (Jaksic
1997, xlv). In his view, “the picture that Lastarria is presenting to us about the vices
and abuses of the Spanish colonial regime finds support in undoubtedly authentic
documents. . . . However, it is also clear that the picture is obscured by many shadows”
(Bello 1957, 19:164).20
The intense polemic between Bello and Lastarria also reached Jacinto Chacón.
Chacón was the author of an important book—the Bosquejo histórico de la constitución
del gobierno de Chile durante el primer período de la revolución, where he advanced a
strong defense of Lastarria’s view. In particular, Chacón supported Lastarria in his
idea of approaching the Constitution with the help of abstract theoretical principles.
Not surprisingly, then, Bello decided to charge against Chacón by using the same argu-
ments that he had previously presented against Lastarria. In his view, Chacón com-
mitted the same mistake as his predecessor. Both Chacón and Lastarria appeared to
be blind concerning the most significant aspects of their country’s history. They were
both wrongly propelled by the idea of analyzing the past from a philosophical view-
point, neglecting the centrality of a historical approach.
In the rather naive “progressivism” of the author of the Bosquejo . . . the back-
wardness of local societies is explained by the legacy of Spanish colonialism,
the predominance of the Church, the enormous weight of a static tradition.
If we modify these institutions, inspiring ourselves with the most advanced
countries in the world—principally Anglo-Saxon countries, which are in the

forefront of material progress and political freedom—we will transform the
traditional structure. Imported customs and laws will provide a powerful
panacea. (Jaksic 1997, lvii‒lviii)
The paragraph reflected well what was then at stake: it was a dispute about the past,
which everybody recognized as crucial for thinking and deciding about the future.
In sum, in the previous pages, we examined two opposite positions about how to
deal with the past. On the one hand, we found what came to be the triumphant project
in most of the continent, which we could summarize with the idea of a “compact with
the past.” On the other hand, we found the defeated project, which is the one that
proposed to eliminate the remnants of the past “from its very roots.” Of course, this
division is in part artificial—in the end, it was impossible not to “pact with the past,”
in one or another way, in the same form that the aspiration of eliminating the past
“from it very roots” was obviously excessively ambitious.
Continuity and Rupture in the Mid-Nineteenth Century:

Two Models of Democracy and Constitutionalism
After the consolidation of the independence, disputes about the past acquired a new
character. In effect, by the mid-nineteenth century, the revised polemic regarding how
to deal with the basic rules established during the colonial period had lost most of its
importance. Now the main public debates seemed to be more concentrated on the
future than on the past: the question was now how to ensure the progress of these new
independent nations. However, as we shall see, disputes about progress also required
engaging in reflections about the past. In particular, legal and political thinkers dis-
agreed regarding how to treat the established political and economic order. Had it to
be considered a condition or an obstacle to growth? More specifically, they disagreed
regarding how to accommodate the values of progress and order.
Gradually, this new dispute about the past favored the development of two very
different responses. Supporters of the liberal-conservative agreement subscribed to
a first response that put great emphasis on the idea of continuity. For them, prog-
ress required the preservation of fundamental aspects of the old, established political
and economic order. Consequently, they advised containing the growing demands for
social and economic change through the (transient) restriction of political liberties.
Opponents of the liberal-conservative agreement, instead, subscribed to a different
approach, based on the idea of rupture. For them, progress required abandoning fun-
damental aspects of the established political and economic order. Consequently, they
proposed opening the public space, freeing the political energies that were then con-
tained, which would undoubtedly generate social and economic changes.
Ultimately, these contrasting views referred to the existence of opposite under-
standings of democracy and constitutionalism.21 Proponents of the liberal-conservative
agreement and their rivals disagreed regarding how to organize the structural aspects
of public life in this new, postcolonial era.
Herein, we shall briefly contrast these two opposite and widely shared views, which
have been enormously influential in the region during its “founding period”—the time
when the basic rules of the game were being settled. For didactic reasons, we shall
summarize the first approach with the formula restricted political liberties-plentiful eco-
nomic liberties, and the second one with the alternative formula of expanded political
liberties-restricted economic liberties.
Limited Democracy in Alberdi, Bello, and Samper: The Model

of “Restricted Political Liberties” and “Plentiful Civil Liberties”
In order to reconstruct the first view, we shall base our analysis on the testimonies
of the Argentinean Juan Bautista Alberdi, the Venezuelan Andrés Bello, and the
Colombian José María Samper, three jurists who exercised an enormous influence in
Latin America’s constitutional discussions. We choose them because they came to rep-
resent the most sophisticated intellectual expression of the liberal-conservative way
of thinking about the Constitution.
Alberdi’s position on the topic is, as usual, particularly interesting, and we can
learn about it by reviewing his harsh polemic with Domingo Sarmiento. The idea that
we suggest is the following: even though Alberdi and Sarmiento maintained a heated
dispute on substantive legal and political issues, the fact is that they shared a very
similar view about constitutionalism and democracy.
We find traces of this shared view, for instance, in Alberdi’s first letter from Quillota,
which was written at the beginning of his dispute with Sarmiento. In that letter, Alberdi
illuminated some of the key elements that characterized the liberal-conservative
agreement. And he made use of a concept that was to gain force in the history of Latin
American legal thinking, namely the concept of imperfect liberty. In his words:
It is a crime to continue delaying the enactment of a Constitution: a betrayal

to the Republic. We need to proceed to organize the Republic, no matter the
caudillos, the unitarios, the federalists, and everything that is still included in
our disgraceful Republic: they are all part of the same family. Any exclusion
would affect us all: it would imply division and anarchy. You think that it is
impossible to have a perfect liberty if we also include the bad guys? Well,
then you should know that there is no alternative but to have an imperfect
liberty. . . . That would be the only way of obtaining perfect liberty. If you want
to build up this Hispanic-Argentine ex colony, this is to say this motherland
and not another, then you have to begin with imperfect liberty, like the people
that have to exercise that liberty. You cannot aspire having the liberty of the
North American republics, which our peoples could only obtain after they
have the same wealth, culture, or level of progress than the peoples and men
of New York, Boston, Philadelphia, etc. (Alberdi 1886, 16‒17)
The idea was, then, that the new nations were living in a transitional period, from
disorganized, anarchical political systems to more organized ones—and were going to
live in transition for a while. This is why Alberdi suggested accepting the prevalent and
imperfect conditions of liberty for some time. That would mainly imply an acceptance
of restrictions on political rights.
Another revealing passage of the dispute between Alberdi and Sarmiento concerned
their different views about authority and stability. Notably, the two Argentinian intel-
lectuals had important differences on these subjects but, as Alberdi made clear once
again, their differences could not hide their substantive agreements. As a consequence,
Alberdi repeatedly demonstrated that Sarmiento was contradicting what he himself
had written in previous works, and particularly in Facundo (perhaps Sarmiento’s main
work, which Alberdi admitted to having read with great admiration).22 This is what
Alberdi stated in the third of his Letters from Quillota:
If the caudillo is the necessary and useful expression of the pastoral life, as
it exists nowadays, then in order to put an end to it there is no alternative
(according to the system that was designed in the Facundo) but to put an
end to the desert, the distances, the material isolation, the lack of industrial
development, which have, as a normal and logical consequence, the existence
of the caudillos. This is the reasoned political analysis: the one that begins
from the impartial study of the soil, men, society. . . . [This is against] the poli-
tics of the liberal party that, out of excitement, tried to suddenly suppress
the caudillo system, either by brutally imposing the most advanced institu-
tions from Europe, nineteenth century, or by executing or suppressing the
caudillos. Against the irresponsible exercise of power came the exaggerated
liberty, which tried to replace the despotism of backwardness with the des-
potism of progress: to replace violence with violence. (Alberdi 1886, 60‒61)
In his third Letter from Quillota, Alberdi maintained that one of the main virtues of
the Facundo was its capacity to get into the roots of “Argentina’s [main political] ques-
tion.” In that book, Sarmiento made an inquiry into the construction of authority in
Argentina and reached conclusions that Alberdi now wanted to retrieve. Inspired by
Sarmiento’s own reflections, Alberdi advanced some crucial considerations about the
topic. He stated: “Authority can be neither founded in discussion nor in resistance.
Authority mainly presupposes and requires obedience. . . . Authority is founded in the
non-deliberate approval that a particular nation gives to a pervasive fact. Where you
have deliberation and will, you do not have authority” (Alberdi 1886: 64‒65, emphasis
in original). This is a remarkable definition because it manifests a very peculiar under-
standing of democracy (which, we could add, profoundly contrasts with some of our
more basic shared agreements).23
Alberdi then summarized his view on democracy and the Constitution, which he
assumed derived from ideas that Sarmiento, as most members of his generation, had
reasons to subscribe. He stated, “I do not share [the fanatic and inexperienced posi-
tion] that it is necessary to freely distribute political freedom.” By contrast, he deemed
that “economic freedoms,” including the freedoms to “buy, sell, work, navigate, trade,
travel, and undertake any industry,” had to be distributed unrestrictedly among
“native and foreigners.”24 In other words, Alberdi, who, as we know, always assumed
the temporal limits of Constitutions, considered that his generation had to accept the
idea of living under a system of imperfect liberties, which is to say under a system of
limited democracy. Theirs was not the time of expansive political liberties: political lib-
erties still had to wait until the introduction of new changes in external conditions.
Alberdi’s view on the subject, which in part summarized and in part refined the
existing agreements between liberals and conservatives in Argentina, was similar to
the one that we find in the writings of other legal thinkers of the region during those
years. In particular, Alberdi’s position was substantially similar to the one expressed
by the noted Venezuelan jurist Andrés Bello. Working for the Chilean government in
the drafting of a Civil Code, Bello maintained that the people were less interested in
the preservation of their political liberty than in the preservation of their civil rights.
As a consequence, he believed, governments should not feel in a hurry to distribute
new political rights: it was much more reasonable to concentrate the public energies,
as he himself was doing, in expanding economic liberties and ensuring firm guaran-
tees to property rights.
It is worth noting that Bello’s claim about the people’s main interests was not
merely descriptive. Rather, it had clear normative overtones. In his opinion, “we must
recognize an important truth: that people are less zealous about the conservation of
their political liberties than about the conservation of their civil rights. The ability
to participate in public affairs is infinitely less important than the ability to secure
life. . . . Rare is the man who is so free of selfishness that he will prefer the exercise of
political rights granted by the Constitution, to the care and conservation of his own
interests.” For that reason, “he would be (less) hurt when arbitrarily deprived of the
right to vote than when violently deprived of his property” (Jaksic 2001, 212).
Surprisingly or not, we find an almost identical view in the writings of the
Colombian liberal intellectual José María Samper, who would then become, together
with the conservative intellectual Miguel Antonio Caro, one of the authors of the 1886
Constitution. Samper stated:
The Colombian people wanted a government and an organization capable

of guaranteeing them national unity and peace, a just liberty, dignity, inde-
pendence for their religion and Church . . . a government that recognized
and made effective diverse and necessary public liberties, and limited—
but actual and effective—political and civil rights; capable of suppressing
anarchy and constant disorder, which characterize all our institutions since
1858 . . . which suppressed the constitutional and irresponsible despotism of
our legislative bodies . . . which returned its liberty to the right of suffrage.
(Valencia Villa 1992, 154‒55)
In other words, Samper, like Alberdi and Bello, made an effort to interpret the will of
the sovereign people and concluded that the vast majority of citizens in his country
preferred order and stability (against disorder and anarchy), rather than ambitious
political rights.
It is not by chance that these three great thinkers—Alberdi, Bello, and Samper—
coincided in a common diagnosis at the time of imagining the institutional future of
their own countries. For the three of them, the coming years were going to be necessar-
ily characterized by restricted political rights and ample economic liberties. In actual
practice, that position required the establishment of strong protections to property
rights, which in fact implied the provision of strong protections to the prevalent—and
fundamentally unjust—economic order. In other words, in the context of societies that
were deeply marked by inequalities in the distribution of resources, the entrenchment
of property rights signified the entrenchment of existing injustices.
Clearly, the decision to protect the existing economic order came together with
another important institutional choice, which was the establishment of strong restric-
tions to majoritarian politics. In fact, the three legal thinkers, namely Alberdi, Bello,
and Samper, coincided in presenting these political restrictions as fundamental guar-
antees for the preservation of the social order.25 More specifically, and as a consequence
of those types of assumptions, most Latin American countries established severe
restrictions to political rights.26
Expanded Democracy in Otero, Murillo Toro, and Bilbao: The Model

of “Expanded Political Liberties” and “Limited Property Rights”
In what follows we shall briefly examine the second, alternative understanding of
democracy and constitutionalism, which appeared as a reaction to the dominant,
liberal-conservative model. We shall do so by exploring three versions of this more sub-
stantive approach. The first one, which we shall associate with the Mexican Mariano
Otero, represents a radicalized version of liberalism, particularly concerned with the
expansion of rights; the second one, which we shall associate with the Colombian
Murillo Toro, represents an egalitarian view, which places a special emphasis on the
value of economic equality as a condition for political democracy; and the third one,
which we shall relate to the Chilean Francisco Bilbao, offers the most solid view of
political radicalism, which included an extreme critique of the representative system.
In any case, it should be clear that the differences and tensions between these two
understandings of democracy and the Constitution were present in Latin America at
least since the independence. And also that the differences grew bigger since the con-
solidation of the liberal-conservative order. For the critics of the dominant legal order,
it then became clearer that the idea of having an authoritarian regime adapted to the
new language of constitutionalism, the feasible republic, was not only a bad solution
but also a part of the problem—a cause of political instability and violence, rather than
a proper response to it.
In addition, we need to recognize that the anti-authoritarian and anti-presidentialist
movement that grew in Latin America since the independence years was not merely a
reactive movement, localized in time, but rather an expression of a different under-
standing of politics. Behind the anti-Bolívarian movement that grew during the inde-
pendence period, or the early proposals of the Artiguismo in the River Plate area, or
the initiatives of the Society for Equality in Chile at the mid-nineteenth century, or the
extreme federalism of New Granada’s liberals, or the fight against authoritarianism and
centralism of the Mexican radicals, one can find a different understanding of democ-
racy and constitutionalism, which we summarized in the ideas of expanded political lib-
erties and limited property rights. Let us focus now on our three selected examples.
A member of the Constitutional Convention between 1842 and 1846, Mariano
Otero offered numerous examples of his legal approach, which showed him always to
be a liberal reformist, who was moderate in politics, but at the same time radical in
the defense of liberal principles. Very few Latin American thinkers can exhibit such a
consistent defense of liberal ideals.
In effect, during his short but intense legislative life (he died of cholera at the age
of 33), Otero advanced several initiatives trying to favor the political expression of
the Mexican people. First of all, he proposed a less corrupt, more representative and
inclusive electoral system, which would also be able to ensure the presence of minority
voices. He claimed, “National representation has to offer the image of society, like in a
daguerreotype” (Otero 1967, 26).27 He also defended secularism, proposed a new fed-
eralist model, judicial independence, a jury system, an ample scheme of popular peti-
tions, a different prison system inspired by the teachings of Bentham, the abolition of
the death penalty, and stronger protections to individual rights.28 In fact, Otero is cur-
rently recognized (together with Crescencio Rejón) to be one of the main intellectual
creators of the institution of amparo, which he introduced in his famous voto particular
that he presented at the 1842 Constitutional Convention—a time when he exposed
his opposition to the then dominant centralist and authoritarian Constitution.29
Otero also proposed a different model of judicial review, one of a political character
(which recognized the same antecedents in the Seven Laws of 1836 and then with
the Supreme Conservative Power), and also in the regional context. According to his
proposal, “every state law that was against the Constitution or the general laws shall
be declared null by Congress” (Otero 1967, 335).
These were typically liberal initiatives, but also an expression of the consistency of
his principles. However, Otero made clear that he was ready to go far beyond many of
his colleagues, who used to invoke the formalities of legal liberalism in order to ensure
protection only to members of the elite. Otero’s agenda reached many topics that tran-
scended the traditional liberal position. Those topics included a special concern for
the “material” basis of democracy and, more particularly, the right to property. In his
words, what was needed was “a general change, and that change has to begin from the
material relations of society” (Otero 1967, 59). In that respect, Otero proposed the
creation of a republic of small proprietors, recognizing that big property had “created
despotism in Asia,” “feudalism” in Europe, and the “aristocracies of antiquity” (52‒53).
For that purpose, he proposed the redistribution of property from the Church and
from the Mexican aristocracy, and also the redistribution of all unproductive lands. In
line with that view, he was also one of the few legislators who objected to the idea of
using property as a condition for becoming a member of the Senate.30
Probably the most lucid expression of this second model, characterized by expanded
political liberties and limited property rights, comes from the Colombian politician
Manuel Murillo Toro. We know about Murillo’s ideas both from his actions (Murillo
was president of his country on two occasions and also Minister of Finance), and from
his writings, which include a noted polemic with the Manchesterian liberals that were
then so influential in his country.31
Murillo had the chance to advance some of these economic proposals during his
time as a minister of finance in the government of General López. One important part
of his program consisted in the establishment of significant limits to the accumulation
of land in the same hands. “Territorial property,” he claimed, was the “permanent and
indubitable cause of social inequality, this is to say, of the systematic exploitation of
the big numbers by the small numbers” (Murillo Toro 1979, 72).32 Although he finally
did not manage to fully apply his economic program, Murillo made clear that his radi-
cal proposals were not merely speculative: those egalitarian reforms figured at the
center of his agenda as a public officer.
It is important to acknowledge that, for Murillo, the reorganization of the land
was not only a way of limiting the economic and political dominion of the landowners
but also a necessary requirement for ensuring the actual liberty of voters. In Murillo’s
words: “What is the meaning of universal and direct suffrage . . . in a society where
[most of the voters] have their basic needs unsatisfied and, for that reason, depend
on the will of [a few]?” (Murillo 1979, 69). Hence, Murillo appeared as one of the
few American political thinkers who established a close link between economic equal-
ity and political democracy. Going beyond typically narrow liberals’ concerns, Murillo
Toro considered that “the independence of individuals and their education” could
never be obtained without previously guaranteeing the subsistence of each (70).33
If Otero was the champion of individual liberties, and Murillo Toro the main advo-
cate of economic independence, the Chilean Francisco Bilbao was the activist who pre-
sented the most articulated (and radical) proposal for reforming the political system.
In fact, Bilbao derived from abstract egalitarian principles a complete set of institu-
tional reforms, which began with a Rousseauistic critique of the representative system
and the delegation of authority in general. We shall explore his proposals in some
detail, as a way of approaching one of the most complete and consistent versions of
the egalitarian model.
In his significant work El gobierno de la libertad, which was published in 1855
from his exile in Lima, Bilbao presented a profound proposal for constitutional
change, which was openly inspired by the Jacobin Constitution of 1793 in France.
This Constitution was, in his opinion, the “only one that deserves to be remembered”
(Bilbao 1886, 278).34
From a profound confidence in the benefits of collective action, he also proposed
“the abolition of delegation, the abolition of the presidency, the abolition of the Army,
the suppression of the fueros” (Bilbao 1866, 279). He complained about the charac-
ter of most of the Constitutions of his time: “All Constitutions,” he claimed, “recog-
nize the sovereignty of the people, but they immediately add that, given the practical
impossibility of exercising it [through direct democracy], or the people’s incapacity
to exercise it, the people were obliged to delegate it” (246). Confronting this view, he
wondered: “Do we need to delegate sovereignty? Do we need to delegate our liberty?
If this were true, I would prefer abandoning the idea of sovereignty and affirming the
legitimacy of despotism, rather than deceive the true sovereign, transforming it into
a slave” (246). And he concluded: “To delegate means to transmit, to renounce, to
abdicate sovereignty. . . . He who delegates . . . becomes a machine or a slave. . . . We do
not have the right to delegate our sovereignty. We have the duty to be immediately,
permanently, and directly sovereign” (246). “Delegation,” he proclaimed, “is slavery
disguised as sovereignty” (247).
In accordance with these principles, Bilbao’s proposed Constitution instituted a
peculiar form of political representation. Bilbao wanted to challenge a political system
where representatives “do what they want: legislate, adjudicate, execute, becoming
the true sovereigns” (247). For him, if the people were not given a chance “to dis-
cuss, deliberate and vote what the law should be,” then the whole idea of citizens as
legislators became false. Trying to give sense to the idea of the “sovereignty of the
people,” he proposed a representative system where representatives received manda-
tory instructions from the people and acted as mere “agents” or “commissioners” of
the latter (247).35
A Few Final Comments

At this point, we could derive some comments and conclusions from the previous
pages. In the first place, it seems clear that the dispute about the past played an abso-
lutely crucial role in the “founding period” of Latin American constitutionalism. It
seems remarkable, in that respect, the level of reflection, and also the frequent use
and abuse of arguments about the past. It seems also clear that the importance of
these discussions about the past was related not only to the intrinsic value of that
discussion but also to the actual influence of the past upon the present. Everybody
seemed to be aware of the need to discuss what to do with the received legal legacy. In
addition, it is worth highlighting the difficulties that most activists and legal think-
ers found for advancing in this discussion. Clearly, the topics under discussion were
numerous and difficult, and were related to issues of enormous importance, including
discussions about democracy and the Constitution. In any case, however, the level of
disagreements that remained, after so many years of intense discussion on the topic,
is surprising. Finally, we could mention that many of those original disagreements are
still present in contemporary discussions: contemporary constitutional debates seem
to still be deeply marked by references to the country’s legal traditions and discrepan-
cies about how to recover—and up to what to point—to recover those traditions.
5
The Crisis of the Postcolonial

Constitutional Model
Positivism and Revolution at the Beginning of the
New Century
Ruptures and Continuities

A new international order began to emerge from 1880 onward, which allowed most
Latin American countries to strengthen their economies in alliance with foreign econ-
omies and as exporters of primary goods. This was the time of what Halperín Donghi
defined as “a new colonial compact.” This new compact transformed Latin American
economies, which began to export primary goods to the new centers of the industrial
economy and articles of consumption to the metropolitan areas. At the same time,
these peripheral economies began to consume industrial goods produced in the cen-
tral economies (Halperín Donghi 2007, 222). The new economic order replaced the
old “colonial pact” (which Latin American societies had with the Spanish Crown) with
a different one that had England and its satellite countries as the dominant econo-
mies (Halperín Donghi 2007, ch. 4). This new arrangement permitted countries in the
region to accelerate their economic growth, in the same way that it allowed England
to gain an enormous influence in the entire area, mainly through the creation of the
basic infrastructure required for the exportation of primary goods—from railroads, to
sugarcane companies, to meat processing plants, to silos for the cereals (289).
These economic changes had an extraordinary impact on national and international
legal politics, with the appearance and consolidations of (so-called) regimes of “order
and progress.” The new regimes tried to speed up economic growth and, for that pur-
pose, attempted to impose discipline in countries marked by growing social conflicts.
As a consequence, a new type of authoritarian regime emerged; the regimes were the
final product of a strong liberal-conservative alliance (liberals pushing for “progress,”
conservatives pushing for “order”). These alliances were, in most cases, enormously
successful, at least in relation to their goals of “order and progress.” The leaders of
these processes included figures such as General Roca in Argentina, Da Fonseca and
the republicans in Brazil, Núñez in Colombia, Rufino Barrios in Guatemala, Porfirio
Díaz in México, Latorre in Uruguay, and Guzmán Blanco in Venezuela.
84
The Cr isis of the Postcolonial Constitutional Model 85
The period of “order and progress” marked a “before and after” in the history of
Latin America. At the end of this era most Latin American societies were richer, stron-
ger politically, and more integrated geographically. At the same time, these new soci-
eties were politically more active. They were composed of numerous and demanding
middle and lower classes. These new demands were directed toward stronger States,
who seemed still unwilling to change the existing inequalities.
In this chapter we shall study the constitutional impact of this double process,
which included a first phase of ascent and consolidation of the model of “order and
progress” and a second phase of fracture and growing criticism of that same model.
In our examination of the first phase, we shall concentrate our attention on the main
intellectual works produced in support of these regimes of “order and progress,”
regimes that were characterized by their exclusionary legal systems, the concentra-
tion of powers in the Executive, limited political rights, and the extreme use of the
State’s coercive powers. In exploring this intellectual production, we shall pay par-
ticular attention to the growth of “positivism.” As we shall see, “positivism” became,
at one point, the common language among the main public intellectuals of the time.
Most positivists supported, in one way or another, new dominant political and eco-
nomic tendencies, and at the same time they rejected the elements of Jacobinism,
extremism, utopianism, and political radicalism that they associated with their oppo-
nents’ works.
Then, we shall examine some of the alternatives that grew, first as a reaction, and
then as a form of resistance, against the model of “order and progress.” We shall make
reference to three of the main political branches that marked this period: a radical-
ized branch (agrarian, indigenist, socialist); a democratic branch (mainly, for the cases
of Uruguay and Argentina); and finally a revolutionary branch (Mexico) to which we
shall dedicate more space, given its importance and influence in the renovation of the
region’s constitutional life (Halperín Donghi 2007, 325).1
Positivism, Order, and Progress

The type of fusion constitutionalism that was born in Latin America in the
mid-nineteenth century became much stronger by the end of the century and con-
solidated its influence at the very beginning of the twentieth century. What seemed
to be in place was a new historical phase, characterized by political stability and eco-
nomic growth. Then, new governments of an authoritarian character prevailed—
governments that first of all tried to discipline societies that seemed to be every day
more open to conflict. These conflicting societies appeared to disturb what had seemed
to be, at least until then, a peaceful path toward economic development.
In economic terms, Latin American countries had adopted, over decades, extreme
forms of economic liberalism, which were defended through Spencerian arguments
of enormous influence during those years. It was clear, however, that the proclaimed
anti-Statism of the defenders of “law and order” was little more than an ideologi-
cal masquerade: far from promoting State abstentionism, the new governments were
noted for their brutal use of State coercion, which was employed to install and stabi-
lize the basis of the new economic order.
We find an interesting example of this new way of thinking in the testimony of

General Julio Argentino Roca, one of the paradigmatic governors of the period. In
a well-known discourse, pronounced before the national Congress at the time of his
assuming his presidency (October 12, 1880), Roca made clear that his government
would have two main objectives, namely, to strengthen the Army and to improve the
circulation of goods within the country (Halperín Donghi 1980, 437). Roca wanted
to ensure that what was produced in the interior of the country arrived at Buenos
Aires’ harbor without problems—the harbor was Argentina’s main door to the for-
eign world. This is why he reserved such a central role to the Army. The Army had to
“ensure the complete subjection of Indians from Patagonia and Chaco,” freeing those
“vast territories from their traditional enemies” and offering “actual guarantees to life
and property” to those who moved to the interior of the country, in order to exploit
the rich natural resources of Argentina (437). Roca was proud of the repressive place
that his government reserved for the Army. “I want to state it clearly from this high
position, so the entire Republic can hear what I am saying . . . I will employ all the con-
stitutional means at the Executive’s disposal in order to avoid, suffocate and repress
every attempt to question the public order.” He also announced that he would use “all
the repressive power of the Nation” every time that a “subversive movement” tried to
challenge the government or prevent the work of the national authorities (438).
One of the main theoretical defenses of these governments of order and progress
came from positivist thinkers and the notion of a “scientific politics,” which was pro-
moted in Europe by authors such as Henri de Saint-Simon and Augusto Comte (Zea
1970). The positivist ideology proposed a technocratic alternative, through which an
enlightened elite would ensure social peace and lead the way to economic progress,
even through the use of authoritarian means (August Comte, for example, celebrated
the coup of Louise Napoleon, in 1851, in the same way that representatives of his
thought, in Latin America, would celebrate the coming to power of authoritarian gov-
ernments). In what follows, we shall briefly review some of the main expressions of
Latin American positivism. We shall concentrate our survey on a few paradigmatic
cases, including those of Mexico, Venezuela, and Brazil.2
México: Justo Sierra and Emilio Rabasa

The two most important examples of Mexican positivism appear in the work of Justo
Sierra and Emilio Rabasa, which we are going to briefly examine.3
Justo Sierra had been engaged in politics since his youth. At an early age he took
part in a rebel movement against President Sebastián Lerdo de Tejada. During his
youth and not surprisingly given this antecedent, he began to collaborate with Porfirio
Díaz after the latter’s arrival into power. From the newspaper La Libertad, which he
directed, Justo Sierra provided intellectual support to the new administration [which
financed his publication]. Porfirio Díaz was convinced that good “friends” of “strong
governments” had to work hand in hand with public authorities for the diffusion of
the government’s projects or “truths” (Cossío Villegas 1957, 20).
As a representative of positivism, and in his role as main publicist of the Porfiriato,
Justo Sierra, like other members of his generation, began to advocate for economic
progress and social order: “Positive progress,” he claimed, “requires the normal
development of society, this is to say, it requires order” (Cossío Villegas 1957, 27). Two
other requisites seemed to be also indispensable for achieving progress, namely “rail-
roads and population” (28). Also, in his well-known book Evolución Política del Pueblo
Mexicano, Justo Sierra gave some additional details about his views on order, freedom,
and progress. In his words:
A dictatorship led by a progressive man, who at the same time administers

public revenues in an honest and intelligent manner, tends to be clearly
socially beneficial . . . because they ensure peace and work. . . . In theory, they
may be detestable, but theories belong to the history of political thought,
not to political history, which can only generalize scientifically, from facts.
Dictatorship becomes a calamity, instead, when it impairs justice, creates
disorder, and affects peace, which is what happened with the Santanista dic-
tatorship. (Sierra 1940, 251)
The Santanista period appeared, for him, as the main counterexample of his desired
model of progress. Justo Sierra and his allies presented harsh criticisms against the
previous political era and contrasted that example of extreme arbitrariness with the
scientific novelties of the new times. This was also the conclusion that Sierra’s group
presented in the newspaper La Libertad. They stated that new leaders “guided by sci-
ence . . . must repudiate half a Century of revolutions and anarchy, they must reconcile
the parties that are in conflict, and strengthen the government so as to satisfy the
needs of the industrial era” (Hale 1986, 388).4
Emilio Rabasa’s political views were fundamentally similar to those of Justo Sierra
both in their content and in their political orientation. As a noted jurist, he provided
an important service to the justification of Porfirio Díaz’s regime. Rabasa’s legal
defense of the Porfiriato began with a profound critique of the 1857 Constitution.
For him, that important document combined two evils, namely abstraction and uto-
pianism, which he contrasted with the type of oligarchic enlightenment that the
Porfiriato promoted (Rabasa 1912). He believed that those defects explained why the
1857 Constitution became a failed document. In his words:
The 1857 Constitution has never been followed in its attempts to organize
the public powers because, in case of being followed, it would have made
political stability impossible. A government, by contrast—no matter how
good or bad it is—is the first and necessary condition for the [permanence of
society] . . . Juárez, Lerdo de Tejada, General Díaz preferred to ensure (politi-
cal stability) rather than follow the Constitution. And they were right in doing
so . . . [And Porfirio Díaz] was also right . . . when he declared it impossible to
ensure the equilibrium of powers fixed by the Constitution. (Cossío Villegas
1957, 167‒68)
Taking into account these kinds of criticisms, both Sierra and Rabasa proposed, in
the face of the old Constitution, the introduction of new and ample reforms (and
they actually took active part in the introduction of some of those changes). In these
and other aspects, their work became crucial to the consolidation and legitimation of
Porfirio Díaz’s regime: Sierra, at the very beginning of the Porfiriato; Rabasa, at its
very end (Cossío Villegas 1957).5
Rabasa, in particular, played a fundamental role in the process of constitutional
reform. According to Silva Herzog, Rabasa would be the most relevant legal nexus
between the Porfiriato and the revolutionary regime that would follow it and actu-
ally put an end to the Porfiriato. In his words, “Rabasa’s proposal for institutional
change would become the bridge between the Porfiriato and the revolution. The 1917
Constitution is, in this respect, the perfect synthesis: the revolutionary ideology
through the methods of the Porfiriato” (Silva Herzog 1990, 295). Rabasa proposed a
complete program of changes,6 which Silva Herzog summarized in the following way:
Do not rule against nature. . . . Reconstruct the institutional basis of presi-

dentialism, make his election direct so as to strengthen his representative
character, fortify his veto powers, limit his responsibility, weaken Congress
by dividing it into two chambers, limit its capacities by allowing only one
period of sessions. (Silva Herzog 1990, 292)
Most significantly, the proposed reforms included numerous changes directed at

strengthening the capacities and powers of the president. In addition, they incorporated
limitations to the freedom of the press and restrictions in the suffrage (for Rabasa, with-
out such a reform, all other reforms would become useless). Finally, the new Constitution
would incorporate some of his ideas. According to an advocate of Rabasa’s work, the new
document adopted some of his views “related to . . . the veto powers, the appointment of
magistrates, the interpretation of article 14 (about the non-retroactivity of laws), etc.
(which) were crucial for correcting features of (the Constitution) which were not in tune
with reality, and which, after the adoption of Rabasa’s proposed reforms, began to work
in favor of the national progress” (Lascurain 1956, 69).
Venezuela: Vallenilla Lanz

We find another relevant example of the influence of positivism in Latin America
in the well-known work Cesarismo democrático, written by the Venezuelan author
Laureano Vallenilla Lanz (Vallenilla Lanz 1919). Vallenilla Lanz, like his Mexican
colleagues, criticized the extremism and idealism that characterized the writings
of some of his predecessors. He objected to the “abstract principles of Jacobinism,”
which he related to failed Constitutions of improbable duration. At the same time, he
vindicated the role of Venezuelan caudillos who learned to act as Cesar—caudillos that
were able to understand the “psychology of our popular masses” (Hale 1986, 413).
Vallenilla characterized the idea of “democratic Cesarism” by making reference to a
situation where every person is equally subordinated to the country’s main leader (a
situation of “great collective equality,” as he described it). For him, “there is no stable
government without a people backing the government, a people that feel and proceed
like the leader” (Vallenilla Lanz 1919, 203).
In Venezuela, the main political antecedent of that kind of Cesarism was Simon
Bolívar. Vallenilla praised Bolívar, first, because he recognized—better than most of
his peers—that the “right to sovereignty” was nothing but “each country’s right to
rule by itself according to its own tradition, temperament, history” (Vallenilla Lanz
1919, 218). In addition, Bolívar would have properly understood that, in order to rule
in Latin American, the new countries needed a different type of democracy, character-
ized by a strong government—a government that was capable of disciplining society
for the collective benefit. Bolívar’s mistake, if any, would have been his incapacity to
align the masses behind himself. For Vallenilla, Bolívar’s example exercised remark-
able influence over his successors, and particularly over two of them. The first one was
the caudillo José Antonio Páez, who Vallenilla presented as “the only man capable of
containing, through his authority and prestige, the hordes”—the man coming from
the llanos.7 The second was Dictator Juan Vicente Gómez, who ruled Venezuela for
twenty-seven years, between 1908 and 1935. Gómez is described as the “Magistrate
who was necessary for these democracies, because he managed to put in practice
Bolívar’s old apothegm according to which American States require the protection of
paternal governments, capable of curing the wounds of war and despotism” (in Pereira
Larraín 1980, 30).
The case of Vallenilla Lanz recognizes strong parallels with those of the Mexicans
Justo Sierra and Rabasa. Vallenilla Lanz’s work can be mainly read as an attempt to
justify the authoritarian government of General Gómez, with whom he worked dur-
ing several years, as a Member of Parliament, as the president of the Legislature, and
most important of all, as a journalist for the newspaper El Nuevo Diario, from where
he developed a close defense of Gómez´s ferocious dictatorship.
Brazil: The Apostolado Positivista and Rui Barbosa

In Brazil, positivist ideology had Luis Pereira Barreto as one of its first defenders
and propagandists. Pereira Barreto was one of Brazil’s main critics of liberalism and
Catholicism, two doctrines that were enormously influential in his country at the
time. For Barreto, only members of an exclusive elite could accede to the most sophis-
ticated and advanced ideas, which in the end justified why they could rule over the
rest (Paixao 2000). Brazilian positivism achieved a particularly relevant place within
the Brazilian Army and, more specifically, within the Military School of Rio de Janeiro,
particularly through the teachings of a military officer, Benjamín Constant, a follower
of Auguste Comte’s ideas.
Within certain circles, positivism was seen as a Church, as the new religion for
humanity—a cult that even included a temple, where the principles of the new faith
were venerated. Within this more extreme and orthodox version of positivism, the
work of Raimundo Teixeira Mendes8 and his brother-in-law Miguel Lemos was set
apart from the rest. Together, they worked for the proclamation of the republic, the
(gradual) abolition of slavery (Buarque 1972, 290), some inclusive social reforms, and
the separation of Church and State. Those reforms, they assumed, were necessary for
Brazil’s development. Even though they defended the adoption of gradual changes,
they both considered that, on occasion, it was justified to impose those changes “from
above,” even through a military coup. It is not surprising, then, that in the end, both
of them—members of what was called the Apostolado Positivista in Brazil—backed the
instauration of a “republican dictatorship” in their country and provided decisive intel-
lectual support to Benjamin Constant’s armed insurrection in 1889; the insurrection
ended with the proclamation of Brazil as a Republic (Buarque 1972, 293). Mendes and
Lemos offered Constant a complete political program, where they defended laicism,
adopted a concentrated political system, and a weak legislature (which was an attempt
to weaken the power of the fazendeiros—representatives of the coffee interests—in
relation to the interests of the industrial sectors). This is what positivists claimed,
through their program:
Our constitution should combine the most absolute freedom with a prin-
ciple of authority. That combination could be achieved by ensuring: (a) the
perpetual character of the dictatorial function, which should encompass the
judicial power, the legislative, and the power to freely choose a successor,
after the sanction of public opinion is conveniently consulted; (b) the separa-
tion between the Church and the State, the suppression of official education,
but in the case of primary instruction, complete freedom of assembly and
discussion . . . complete professional freedom, the abolition of all scientific,
technical, and industrial privileges; (c) a single assembly . . . composed by
only a few members. (Zea 1964, 103)
After the fall of the monarchy and the arrival of the Republic, General Deodoro da
Fonseca became the president of the country. In his cabinet, positivists played an
important role, occupying the Ministries of War (Constant) and Agriculture (Demétrio
Ribeiro). Positivists also played a significant role in the first discussions about a new
Constitution. For them, it was necessary to call a Constitutional Assembly and to del-
egate the writing of the constitutional draft to a group of experts, who could then
open their proposal to the general public, perhaps through the use of a plebiscite.
In 1890, representatives of the Apostolado presented their main constitutional
project, which was called “Order and Progress in the name of Humanity, the Country
and the Family.” In Title No. III of the same project, positivists made reference to the
importance of leaving the federal government in the hands of a dictator, who would
have the right to designate his successor. The president, they proclaimed, would be
accompanied by four Ministers—the Ministers of War, Finance, Justice, and Foreign
Affairs (quoted in Horbáth and Szabó 2005, 24‒25). In addition, in their constitu-
tional project, positivists incorporated different civil rights (press, opinion, assembly),
which they considered indispensable for avoiding the transformation of the govern-
ment into despotism. And even though their project was not finally accepted, many
of their proposals were incorporated into the Brazilian 1891 Constitution (i.e., the
separation between Church and the State, civil marriage, and a more decentralized
administration, etc.).
The Constitution that was finally approved, however, was in relevant aspects very
different from the one that most orthodox positivists advanced. In fact, the main
intellectual responsible for its text was a noted jurist, namely Rui Barbosa, who can-
not himself be considered a positivist.9
During the constituent process, Barbosa became the person in charge of revising
the (five) different projects presented by the commissions of experts. Barbosa was
also the key person in trying to approach the Constitution by way of the US model
(some people said, at the time, that Barbosa “wrote to Brazil by translating texts from
the United States”). At the same time that he favored the “importation” of US consti-
tutionalism, Barbosa considered that it was impossible to “import” the Swiss model
(which was then seen as a plausible alternative), given Brazil´s territorial immen-
sity, which made the country incomparable with Switzerland. Similarly, Barbosa also
rejected the possibility of following the French model, which many of his compatriots
defended, given that, in his opinion, Brazil needed to become a federalist country. In
the end, the Constitution that he proposed included a presidentialist system, a tripar-
tite division of power, a federalist organization, and a Superior Federal Court, capable
of controlling the political decisions of both the Executive and the Legislative (Arinos
1967).10
The Radical Branch: Agrarism, Indigenism, and Socialism

After having reviewed testimonies from the propagandists of the “order and prog-
ress” system, in what follows we shall begin to study the critical political currents
that appeared in reaction to it. We can start by saying that, at the beginning of the
twentieth century, Latin America recognized the echoes of a radical movement
that it had already known (in a more rudimentary and less effective version) at the
mid-nineteenth century. We must recall that 1848 symbolized, in the entire region,
the example of a powerful radical political movement, which sought collective liber-
ties (at the same time, this movement appeared to have connections with the early
revolutionary movements of 1810). That wave of radicalism found particularly stimu-
lating expressions in the writings of Francisco Bilbao or Santiago Arcos in Chile, in
the work of the reformist anti-Santanista movement in Mexico, and in the activism
of Colombian radicals.
The origins of this new twentieth-century wave of radicalism were not, in the end,
so different from those of the previous century—they recognized similar influences,
both at the internal and external levels. In particular, the radical movement of the
twentieth century was influenced by a renewed radical and leftist political thought.
We can mention, in particular, the growing socialist and anarchist movements that
emerged in Europe and in the United States; and, more generally, the enormous
expansion, in numbers and power, of the working class in the more developed world.
The 1917 Bolshevik Revolution in Russia constituted one of the most paradigmatic
expressions of this movement of reaction against the dominant order (Hobsbawm
1995, ch. 2; Hobsbawm 1998; Angell 1994). There was another external factor that
played an important role in this history, which was the growing influence of the United
States in the region, which also generated strong movements of resistance.
In what relates to the internal context, the new radicalism emerged after a long
period of political conservatism and restrictions on political rights. The conservative
regimes of “order and progress” began to find it increasingly difficult to maintain “the
new colonial compact” (Halperín Donghi 2007).
In addition—and here the parallelisms with 1848 seem to be still more relevant—
the region was going through fundamental changes in relation to its social composi-
tion. The social changes that took place in Latin America at that time found different
sources. In some cases, they had to do with the arrival of (poor and politicized)
European immigrants to the subcontinent; in other cases, these changes related to the
growth of the “local” working class (particularly the urban proletariat in Argentina,
Chile, or Mexico). Moreover, the contextual conditions encouraged these groups to
demand more opportunities for political participation, which the governments of
“order and progress” had systematically resisted.
The dominant political atmosphere became marked by these new demands and a
mounting disenchantment with both the dominant exclusive order and the increas-
ing presence of the United States in local affairs. One interesting area where we find
early signs of discomfort and rupture with the old order is Latin American literature.
There are numerous works that, at the same time, appear as a continuation of the
positivist way of thinking and show the existing fatigue with the dominant state of
affairs. In some of these works we find a confrontation between the utilitarian, “mate-
rialist,” imperialist values that are associated with the US culture and other values
that are more closely in line with the Hispanic—even Catholic—tradition.11 We see
excellent examples of these new movements in the poetry of Rubén Darío and in the
anti-materialist critiques of Paul Groussac.12
At the beginning of the twentieth century, some reactive political currents
emerged, in clear defiance of the old system. On the one hand, we find a democratiz-
ing movement, which works against the dominant political authoritarianism. On the
other hand, we find a more radical movement, which is closely linked to socialist and
agrarian groups (Halperín Donghi 2007, ch. 5). We shall now concentrate our atten-
tion on the latter movement, and later, we shall comment on the former. Finally, we
shall examine the revolutionary—and enormously influential—response that came
from Mexico.
The emergence of a robust socialist/agrarian movement is particularly interesting
when we compare it with the weaknesses that characterized its immediate anteced-
ents. The fact is that “after 1900 their appearance was sudden and forceful in several
countries, sparked by the quickened pace of socio-economic change—the expansion
of export economies and their integration into the international capitalist system,
the modest growth of industry and of an urban work force, and in some regions mas-
sive immigration” (Hale 1986, 428). By 1920, the main expressions of these experi-
ences were “socialism in Argentina and Chile, indigenous agrarianism in Mexico and a
unique ideology in Peru, which included elements of both” (428).
If the Russian Revolution was the main source of inspiration for Americans—an
inspiration that came from Europe—the Mexican Revolution constituted, without
doubt, the main mirror where Latin American critical movements within the region
wanted to look.13 In addition, both the democratizing movement and the social-
ist/agrarian movement found inspiration and support from the emergent student
movement—rebellious and democratic—which began to gain influence in the entire
continent. This reformist student movement achieved particular importance in the
central province of Córdoba, in Argentina 1918 (where it received important sup-
port from the government of President Hipólito Yrigoyen). Demands were then
made “for student representation in university government, the reform of exam-
ination practices and an end to nepotism in the appointment of the professorial
staff ” (Rock 1986, 432). From Córdoba, the reformist student movement grew fast
and spread over other Latin American countries. In fact, many of the most noted
political leaders of the century began their public careers as leaders in the student
movement—and for example, the cases of Fidel Castro, the then leader of the Cuban
Revolution, or the Peruvian Víctor Raúl Haya de la Torre, who would become the
founder of the enormously influential Alianza Popular Revolucionaria Americana
(APRA).
Obviously very critical of the dominant legal order, the new radical Latin American
thought never managed to become the region’s main ideology, and it did not even
become the main alternative to the prevalent way of thinking (also in this respect,
there is a strong parallelism between this radical movement and the one that emerged
in the region in the mid-nineteenth century). However, it must also be said that
this new radicalism achieved an enormous presence in the region—its influence, in
fact, helps us understand the strength acquired by social constitutionalism since the
mid-twentieth century.
In order to better understand the dimension of this new radical paradigm, in what
follows we shall concentrate our attention on some of the main names that were associ-
ated with it, whom we shall highlight given both the importance of their ideas and the
impact that they achieved. We shall refer, in this respect, to three of the main and ini-
tial leaders of Argentina’s socialism (Juan B. Justo, Alicia Moreau de Justo, and Alfredo
Palacios), the Chilean Luis Recabarren, the Peruvians Manuel González Prada and José
Mariátegui, the Cuban José Martí, and the Mexican Ricardo Flores Magón.
The Argentinean Socialist Party was founded in 1894. Its role in Argentinean politics
was significant, particularly because of the influence that it exercised in the renovation
of local legal thought and social legislation. Its founder was the doctor and writer Juan
B. Justo (together with José Ingenieros), who would play a crucial role in this renova-
tion process. According to the philosopher Alejandro Korn, Justo would be the first
Argentine intellectual to go beyond “Alberdian ideology,” to which he added the idea of
social justice (Hale 1986, 429). Justo was the first translator of Marx’s Das Capital to
Spanish, and he founded the socialist newspaper La Vanguardia and was the creator of
the cooperative El Hogar Obrero and also of the Workers Library. He worked as a Deputy
and as a Senator of the country, and as such he promoted numerous relevant legisla-
tive proposals, which included projects for prosecuting gambling and alcoholism. Most
saliently, he worked in the creation of different social initiatives, in association with a
prominent member of the Socialist Party, namely Alfredo Palacios. Many of their ini-
tiatives obtained congressional approval and contributed to the emergence of a robust
social legislation; a social legislation that would be expanded and consolidated during
the years of Peronism in power.14 This renewed social legislation included numerous
initiatives related to women’s rights.15
In Chile, the Workers Socialist Party (Partido Obrero Socialista, POS) was founded
only a few years later, in 1912. In contrast to the Argentinean case, its founder was a
lower-class worker, namely the typographer Luis Emilio Recabarren (Recabarren 1979,
1987; Hall and Spalding 1986). Together with some of his allies, Recabarren promoted
the adoption of numerous legislative measures destined to improve the lives of the
working class. More significantly for our purposes, he also presented a significant
project for a new Constitution—a project through which they proposed the establish-
ment of a “Socialist and Federal Republic in Chile.” According to that recommended
Constitution, the “supreme sovereignty” would reside in the Industrial Assemblies,
the Municipal Government, and the National Assembly. In addition, all citizens—men
or women, national or foreigner, of more than eighteen years of age—were going to
have the right to “take part of the respective assemblies and to cooperate in the social
administration of the Republic” (article 1 of the Constitution). Always an extreme
critic of private property, Recabarren believed that property had to be either abolished
or collectivized. In his projected Constitution, there was only a place for one specific
type of property, namely, “social” property.
Together with his proposition for constitutional reform, Recabarren also advo-
cated for radical economic equality,16 became a stark detractor of the types of democ-
racies that were then emerging in the region,17 and was also an early critic of the use
of State coercion (Recabarren had strong objections to the penal and jail system, in
particular,18 and the judicial system, generally19). Economic equality and a new moral
model, he suggested, were going to be the pillars of the new system.20
More or less at the same time, in Peru, the work of another noted anarchist
appeared, namely Manuel González Prada (2009), who also developed an interesting
and very critical line of thought. In particular, he objected to political representation
through a discourse of clear Rousseauistic resonances. His work seemed to be clearly
in line with predecessors like the noted Flora Tristán or the Chilean Francisco Bilbao
(who had spent many years exiled in Peru). González Prada wondered: “What did
workers obtain by casting their votes . . . ? They could not even choose their master,
because every national election is decided either by force or by fraud. Even though
there are people who continue talking about equality and confraternity, the fact is
that the world is still divided into classes . . . that continue oppressing each other.” It
was clear, for him, who the victims of this process of confrontation were. He stated:
“Workers . . . they are the law, they are justice, they have the numbers,” but, never-
theless, they still “live separated one from each other . . . in front of the homogenous
and compact group of their executioners and their exploiters” (González Prada 2009,
302).
González Prada was very critical toward the law. Like Recabarren, he also denounced
the judicial system and the way in which power interfered with the judges’ activity. In
his opinion, judges were usually the mere tools of dominant power.21 The law was, for
him, the product of the dominant classes, and Parliament a basically useless institu-
tion controlled by strong interests.22
Later, another Peruvian thinker and political activist, José Carlos Mariátegui, car-
ried González Prada’s claims further still and denounced—in an unusually radicalized
way—the political, social, and economic exclusion and exploitation suffered by “indig-
enous groups” and “black” people in his country (Mariátegui 1988, 2006; Sobrevilla
2005).23 Few other Latin American works, such as those of Mariátegui, emphasized
in such a way the problems of indigenous groups, and very few others established a
strong link between the suffering of these groups and the issue of land distribution.24
Mariátegui also maintained a critical dialogue with Peruvian law, which he
denounced not only for being too liberal and individualistic but also because of the
way in which it was applied in practice. The prevalent law was, in his view, modeled
according to the will of the most powerful.25 Mariátegui’s works mixed indigenism
and Marxism, a combination that gained some attraction in Peruvian radical political
thought at the beginning of the century (see, e.g., Mariátegui 2006).26
In Cuba during those years, we find the important writings of José Martí—the
poet, journalist, philosopher, and founder of the Cuban Revolutionary Party. Martì’s
works constituted a significant source of inspiration for radical movements—usually
very critical of the United States—who labored in defense of the island’s autonomy.
Like Mariátegui, Martí also produced a rich, radical, and nationalistic discourse, which
clearly differed from the communist ideology that was gaining importance at the
time. Not an orthodox Marxist like Mariátegui, Martí’s views managed to reach not
only or mainly members of the “radical left” but also members of the “liberal bour-
geoisie” (Angell 1994, 176).27 Austere, hard-working, and a full-time activist, Martí’s
anti-colonial and anti-imperialist discourse became extremely influential in the entire
region, and particularly in Cuba, where he is still considered the main “apostle of
independence.”
In Mexico, the anarchist Ricardo Flores Magón—founder of both the Regeneración
newspaper and the Mexican Liberal Party (Partido Liberal Mexicano, PLM)—also
developed a radical political discourse, focused on the situation of the most disad-
vantaged groups. For him, the only way of overturning the dominant situation of
injustice was through a substantive change in the organization of property (Viñas
1983). Some of Magón’s main political ideas became visible through the famous PLM
program, which he decisively contributed in writing (a program that would become a
fundamental antecedent for the advanced reforms to be included in the Mexican 1917
Constitution). The program proposed to restrict the powers of the Executive, required
limitations in working times (or in the working day), and also demanded the establish-
ment of a minimum salary and nonreligious education. More significantly, the pro-
gram dedicated special attention to the issue of property. In this respect, it demanded
the expropriation of nonproductive land and the creation of an Agricultural Bank
(which would be directed to ease the disadvantaged groups’ access to land). It also
established that the State would “provide lands to those that demand them, with the
only conditions that the land would not be sold and would be dedicated to agricultural
production.” By 1911, the program incorporated a claim for the direct abolition of
the “principle of property,” from which, it affirmed, the powers of the Church and the
State grew. At the time, the PLM considered that the people had the right to “regulate
the production of wealth according to their own needs.”28
The Democratic Branch: Yrigoyenism, Battlism, and the

Experiment of a Collective Executive in Uruguay
In the previous section, we examined some of the main political currents that emerged
in Latin America in reaction to the nineteenth-century model of “modernizing
authoritarianism.” We made reference, then, to a radicalized branch of politics, with
its agrarian, socialist, and Marxist manifestations. Herein, we shall explore a differ-
ent alternative, which also challenged the existing order. This is the democratizing
current, which we shall explore through the experiences of Yrigoyenism in Argentina
and the formation of the Radical Party, and Battlism in Uruguay with the Colorado
Party.29 Both examples, coming from neighboring countries, provide a good illustra-
tion of a political alternative typical of the time, which came to affirm the democratic
order, opened a major space for popular participation in politics, promoted an armed
confrontation with the old conservative model, and stressed a secular profile that gen-
erated acute disputes with the still well-established power of the Church (Lynch 1986,
569).30 Let us focus our attention on these two examples.
A singular and principled leader, Hipólito Yrigoyen, led Argentina’s Radical Party—
the Unión Cívica Radical. The Radical Party was particularly strong among urban and
rural middle classes, and led a crucial political battle for the political democratization
of the country and the moralization of its public life (Romero 2001). As the founder
of the Unión Cívica, Yrigoyen had an active participation in the armed revolts of 1890
(the “90s Revolution,” which were led by Leandro N. Alem, Bartolomé Mitre, and
Aristóbulo del Valle), against the so-called conservative unicato of President Juárez
Celman.31 The popular rebellion was then defeated, but still Celman decided to resign
his position, being replaced by Carlos Pellegrini. The Unión Cívica had finally achieved
one of its main objectives. However, and under the influence of Yrigoyen, the party
continued to seek the introduction of new and additional political changes. Mainly
through electoral abstention and armed revolts, the party wanted to end the extended
practice of electoral fraud.
In 1912, and partly in response to the Radicals’ demands, the then President Roque
Sáenz Peña passed a law establishing mandatory, secret, and universal suffrage. As
a result of this, Yrigoyen was then the first president elected through popular suf-
frage. His first presidency extended from 1916 to 1922;32 and the second from 1928
to 1930, the year in which a military coup inaugurated a long list of military coups that
Argentina would suffer during that century (Alonso 2006; Luna 2005).
Yrigoyen’s government illustrates well the particular political transition that char-
acterized Latin America during that period. On the one hand, Yrigoyen—like other
regional leaders—was fighting against the remnants of the conservative power, which
had dominated the countries for many decades. This fight represented the political
battle against the past. On the other hand, Yrigoyen’s government was constantly
harassed by growing social conflicts, promoted by a working class that was every day
more significant, both in its numbers and in its influence. These social conflicts rep-
resented the types of tensions that would characterize the political life of the new
nations in the future years.33
Let us focus our attention on Uruguay at the beginning of the new century. We
may begin this analysis by saying that at this time, at the beginning of the twentieth
century, the traditional Colorado Party had gone through a fundamental renovation
under the influence of José Battle y Ordóñez. Principally, the party had drastically
changed its social composition: it began to incorporate new sectors coming from the
capital of the country, Montevideo, and also from rural areas close to the capital.
Battle’s government, like Yrigoyen’s, was marked by a secular conception of the pub-
lic life, and—most of all—by its strong policies of State interventionism, directed to
improve the situation of social groups that were, until then, virtually marginalized
from politics. The new administration managed to give expression “to the new social
forces which were emerging in what was no longer a society dominated by the elite,”
thus addressing many of the demands “of the middle and working classes (especially
of Montevideo) against the autocratic labor regimes of both national employers and
foreign investors in Uruguay” (Oddone 1986, 465).
There is at least one other specific aspect of Battlism that may deserve special
attention for the purposes of this work. This is the experience of the plural Executive,
advanced by the new regime. The first Uruguayan Constitution, enacted in 1830, had
promoted the adoption of an individual Executive, as it was common at the time.
However, already at that early stage, constitutional debates were distinguished by
heated discussions about the amount of powers to be transferred to the president
(Bauza 1887; Pivel Devoto 1951, 1956; Ramirez 1967). The noted constitutional
thinker José Ellauri became one of the most important defenders of the chosen
model. As the main ideologist of the Uruguayan Constitution, Ellauri had tried to fol-
low the elitist model of the 1826 Argentinean Constitution. The Argentinean example
included a strongly presidentialist Constitution, which was very difficult to reform,
hostile to parliamentary powers, and strongly restrictive in terms of political and civil
rights.34 With the coming of Battlism, legal thinkers began to imagine alternatives to
this presidentialist alternative.
José Battle y Ordóñez was the first public officer who advocated the transformation
of the single president into a plural Executive. He found inspiration for this alterna-
tive in the Swiss model, which he had learned about in a visit he made to Switzerland
after the end of his first presidency, and which he sponsored as a strategy for alleviat-
ing the expectations and pressures that would fall on his successor, Claudio Williman
(1903‒1907). According to the Swiss model, the government resided in a plural
Executive, whose members rotated in the assumption of the country’s main political
responsibilities. Battle’s scheme represented a reaction to the strong presidentialist
regime established by the 1830 Constitution. It was an attempt to defend public liber-
ties through a strategy that promised, at the same time, to help avoid the phantom
of new dictatorships. Even though his proposition initially met popular resistances,
Battle kept sponsoring it at the Constitutional Assembly, as he himself acknowledged
in a famous article published in the newspaper El Día, under the title “My Behavior
with the Reform.”
Finally, and in spite of the political pressures that pushed against his plan, in 1918
the Assembly decided to accept a middle way in between the existing presidentialist
system and the pure model of the plural Executive. In article 70 of the Constitution
it created a dual Executive and stated that the Executive power resided in the “presi-
dent of the Republic and in the National Administrative Council.”35 The president was
directly elected for four years and was in charge of governing and representing the
nation. The Ministers of Foreign Affairs, Interior, War, and Marine were also under
his direct command. Meanwhile, the National Council had administrative functions
and was in charge of coordinating the Ministries of Instruction, Finance, Industry,
and Planning as well.
The 1934 and 1942 reforms (which were produced in violation of the formal amend-
ment procedures established by the Constitution) maintained a drive against the con-
centration of authority in a single president and tried to strengthen the powers of
Congress. According to these new reforms, every Minister could require every matter
to be put under the study of the Council (which they integrated, together with the pres-
ident). In spite of this, in actual political practice, the new model was virtually unap-
plied. Only in 1952, Battle managed to establish his desired model of a plural Executive,
and thus abandon the old transactional formula of 1917. The government became
fully collective, the figure of the president was substantially diluted, and the National
Council of Government became in charge of the government. The principal political
responsibilities were successively assumed by one of the four members of the Council.
The main function of the president was to coordinate the work of the Council. The
anti-presidential reform was in place for fifteen years, until the enactment of the 1967
Constitution, which reestablished the old system of a single Executive (Sanguinetti and
Pacheco Seré 1971, 122‒32).
The Revolutionary Branch: From the Mexican Revolution,

to Ayala, Aguascalientes, and Querétaro
Mexico’s political revolution represented the most significant expression of discontent
in the face of the dominant system of “order and progress”—a revolution that would
leave the remarkable 1917 Constitution as one of its main legacies. From the begin-
ning, the Mexican resistance movements tried to confront the long decades of Porfirio
Díaz’s rule, namely the Porfiriato. During those years, what prevailed in Mexico was
an authoritarian and progressive government that was at the same time modernizing
and exclusionary. Díaz’s regime had slowly become a dictatorial government, after
four years in which it tried to respect the established legal formalities. The dictator-
ship lasted from 1884 to 1911.
As we know, during those years, Porfirio Díaz was favored by the assistance of
two brilliant legal minds, namely Justo Sierra and Emilio Rabassa. Both of them
had been severe critics of the Mexican 1857 Constitution. For these jurists, the old
1857 Constitution represented the origin of many of the extreme evils that were still
affecting the country. The 1857 Constitution was considered responsible for the grave
period of political instability that affected the country since its enactment. At the
same time, for both of them, Díaz’s regime represented a direct consequence of that
period of instability and also the main solution to it: Díaz was seen as the person who
provided the country with its necessary stability.
By 1910 the Porfiriato was showing its worst face and also clear signals of deca-
dence. This is why the forces in the opposition, for the first time, began to attract some
public attention.36 From the impoverished peasants led by Emiliano Zapata in Morelos
to an ample convergence of groups that were discontent with the dominant regime
in the then prosperous north of the country—from where Pancho Villa arrived after,
large sectors of society began to join forces in a revolutionary movement trying to put
an end to Porfirio Díaz’s dictatorship (Knight 1990a).37
The Revolution also brought conflicts and divisions within the rebel group, which
only began to calm down when Venustiano Carranza, then one of the chiefs of the
rebels, and commander of the so-called Ejército constitutionalista, decided to call a
Constitutional Convention. The Convention of Querétaro was going to be in charge
of setting the legal basis of the new period, through the reform of the old 1857
Constitution.
Two things are worth noting at this stage. First, we should mention that the
Querétaro Convention was the result of a long process of violent political disputes
activated by a situation of extreme economic inequality (particularly in relation to the
property of the land). Second, we should also highlight that the Querétaro Convention
followed at least two significant but finally unsuccessful attempts to introduce consti-
tutional reforms—one in Ayala and the other in Aguascalientes.
The first important attempt to re-think the Constitution, after the Revolution,
appeared with the so-called Plan de la Villa de Ayala or Plan de Ayala. This plan was
signed on November 28, 1911, by a military Zapatista group, which was mainly
composed of peasants. The Ayala document first denounced the risks faced by the
Revolution (the document denounced, in particular, Francisco Madero, who was at the
time the head of the Revolutionary Movement), and then went on to propose diverse
initiatives for agrarian reform. These proposals included the recovery of land that was
improperly appropriated by the leaders of the Porfiriato; the expropriation of the land
that belonged to the main landowners of the country, after compensation (given the
needs that affected “the immense majority of the Mexican people, who . . . suffer the
horrors of misery”); and the nationalization of the goods that belonged to the enemies
of the Plan (Gilly 1994, 97‒98).
The Plan de Ayala was followed by another radical document addressed to the
Mexican people—Al pueblo mexicano—which was also published by the Zapatistas in
August 1914. In that document, the Zapatistas rejected the alternative of a military
government and also discarded all electoral reforms that did not include elements
of social reform. In addition, the document called for an assembly composed of “the
chief of the combatant groups, representatives of the armed people.” The manifest
also vindicated the main principles of the Ayala Plan, that is to say, expropriation,
confiscation, and restitution (156).
Another remarkable document of the time was a programmatic letter, written by
General Manuel Palafox in September 1914, where Palafox vindicated the Zapatista
agrarian revolution and the principles of the Ayala Plan. More specifically, Palafox
called for a meeting composed by “the revolutionaries of the republic,” where the three
main “agrarian principles” of the Ayala Plan received constitutional status: “land res-
titution to those who were dispossessed by evil governments; confiscation of goods to
the enemies of the Ayala Plan; and expropriation for causes of public utility” (157‒58).
Some of these proposals would become law and reality shortly after, for example, in
Cuernavaca, thanks to the initiatives of the Zapatistas who controlled the area.
Even more significantly, there was then the Aguascalientes Convention, which
would become the main antecedent of the Querétaro Convention. Aguascalientes
gathered representatives of the Constitutionalist Army (under the commands of
Venustiano Carranza) and of the North Division (commanded by Pancho Villa). Only
later, representatives of the Zapatista’s South Division would join the meeting and
their presence would dramatically change the direction of the event. One of the main
objectives of the Convention was to end the extreme disputes that divided the differ-
ent factions that battled against Porfirio Díaz’s regime. The meeting generated great
expectations. According to Luis Cabrera (one of the most important jurists of the
time), the Congress wanted to become “bigger than that of 1857.” The Convention
also aspired to become “the first in the history . . . of Mexico” to legislate according to
the actual needs of the Mexican people (165).
After a difficult start, and also after the arrival of the Zapatistas, the Convention
became more active in its role and also made some important statements. Among
them, the delegates vindicated and acclaimed some of the basic points of the Ayala
Plan, defied the power of General Carranza, and proclaimed that “the sovereignty”
resided in “the armed people” (168). However, the Convention concluded shortly
afterward, without having completed its proposed tasks.
With these antecedents in mind, the Querétaro Convention becomes easier
to explain and understand. Undoubtedly, many of the decisions adopted by the
Convention were very advanced socially. However, at the same time it is clear that
this new Convention greatly differed, in its initiatives and its character, from previ-
ous Conventions. One explanation of this result appears in the political and social
composition of the meeting: if the Ayala meeting had been dominated by the radical
Zapatistas and a majority of peasants; and Aguascalientes composed by more diverse
groups (including representatives of Villa’s and Carranza’s factions, military sectors,
and only at the last moment the delegates of the Zapatistas), Querétaro became
mostly—although not only—the expression of the then dominant (and most conser-
vative) political faction, namely the representatives of Carranza’s group and also of
the more accommodated sectors of society (we shall come back to this point later).
The Querétaro Congress was inaugurated on November 21, 1916. Immediately after
its opening, the Congress showed the presence of opposite factions: one of them more
conservative (for instance, the group that included Luis Rojas and Félix Palavicini) and
the other more radical or Jacobin (which included, for instance, Francisco Múgica).
In his important Inaugural Speech at the Constitutional Convention, Carranza
returned to the recurrent topics of regional constitutionalism. He criticized the old
constitutional model for being too idealized and based on “general principles” that
had no actual utility (Rabasa 1986, 196); he claimed that previous legal thinkers had
been unable to adjust constitutional law to “the needs of the Mexican people” (196);
he also referred to the uselessness of the old legal order to ensure the benefits of the
division of power, federalism, and republicanism (197‒98).
Although it was clearly open to the consideration of previously unattended social
issues, the legal program defended by Carranza in Congress was still very distant from
the one that finally became enacted by the Convention.38 Carranza’s project barely men-
tioned the agrarian problem; it (simply) authorized the Legislature to pass laws related to
labor and the progress of the working classes and favored the “frank intervention” of the
State in the economy. In spite of the distrust it showed toward majoritarian politics, the
plan also made room for the inclusion of broader political rights—these expanded rights
were justified through references to “the inferior classes, the ignorant and the oppressed”
that had adopted a leading role during the Revolution (208). In the end, however, the core
of Carranza’s project mainly reproduced the traditional organization of power and thus
strengthened the powers and authority of the Executive branch.39
Revolution and Single-Party System: “Not Only by

Shooting . . . We Sweep Away Tyrannies”
The new Mexican Constitution became known worldwide because of its radical open-
ness to the “social question.” As anticipated, however, the new Constitution reaf-
firmed the old-style hyper-presidentialist system of government and also the “liberal
and individualist model of the 1857 Constitution” (Carpizo 1982, 58). The result
was a “mixed” document, like the ones that would become more typical in the Latin
American context during the mid-twentieth century. This Constitution was “mixed” in
the sense that it combined constitutional models of different inspiration, many times
of opposite characteristics.
The incorporation of the “social question” in the Constitution was not, in the end,
totally surprising, particularly in the context of profound inequalities and intense
social mobilization. However, in the more restricted context of the constitutional
debates, the emergence of the “social question” was in fact unexpected. For instance,
in the Aguascalientes Convention—the crucial antecedent for what would later
become the Querétaro Convention—the voices of marginalized groups were heard
for the first time, particularly in the surroundings of the Convention. One especially
important testimony of the time was that of Paulino Martinez, who asked for “land,
liberty, and justice” because, he added, “not only by shooting . . . we sweep away tyran-
nies” (Sayeg Helú 1974, 3:204).
It was in that context, which included dissident voices clamoring for the consider-
ation of remedies to the existing social difficulties, that the Constitutional Convention
organized a special commission for the study of the “social question.” The Commission
was promptly created and put under the direction of Deputy Rouaix. This group
became in charge of writing the first draft of what would then become the noted social
clauses of the 1917 Mexican Constitution. As Deputy Cravioto stated, the Mexican
Revolution could “proudly claim” to be “the first of the world in creating a Constitution
that included the sacred rights of the workers” (Noriega 1988, 104).
The result was, as we know, remarkable. Just to highlight a few aspects of the
Constitution, one could first mention article 27, which declared that the ownership
of the lands and waters within the boundaries of the national territory were “vested
originally in the Nation.”
Article 27 maintained:
The Nation shall at all times have the right to impose on private property
such limitations as the public interest may demand, as well as the right to
regulate the utilization of natural resources which are susceptible of appro-
priation, in order to conserve them and to ensure a more equitable distribu-
tion of public wealth. With this end in view, necessary measures shall be
taken to divide up large landed estates; to develop small landed holdings
in operation; to create new agricultural centers, with necessary lands and
waters; to encourage agriculture in general and to prevent the destruction of
natural resources, and to protect property from damage to the detriment of
society. Centers of population which at present either have no land or water,
or which do not possess them in sufficient quantities for the needs of their
inhabitants, shall be entitled to grants thereof, which shall be taken from
adjacent properties, the rights of small landed holdings in operation being
respected at all times.
Another crucial clause was article 123, which included wide protections for workers
and recognized the role of trade unions, and also regulated labor relations reaching
very detailed issues, which in a way covered most of the topics that later on would
come to distinguish modern Labor Law. The clause made reference, for example, to
the maximum duration of work, the use of labor of minors, the rights of pregnant
women, the minimum wage, the right to vacation, the right to equal wages, com-
fortable and hygienic conditions of labor, labor accidents, the right to strike and
lockout, arbitrations, dismissals without cause, social security, right to association,
and so on.
According to Rouaix, those two articles were “the outcome of revolutionary radical-
ism . . . which was present in the conscience of all, after the period of bloody confronta-
tions that transformed the Mexican society.” Also, it is worth mentioning article 5,
which referred to the question of personal services and also established limits to labor
contracts.
With the enactment of the 1917 Constitution, Mexico turned a new page and
left behind the old model of “order and progress” advanced by the Porfiriato.
Unfortunately, however, the political context in which the Constitution emerged was
profoundly conflictive. This difficult context included the existence of multiple mili-
tary leaders and caudillos who had taken part in the Revolution and who now sought
a more relevant role in the new political scenario. The country seemed at the same
time threatened by anarchy and by new military rebellions (Mexico suffered many of
these military rebellions in a short time, including those of 1924 with De la Huerta,
1927 with Serrano, and 1929 with the Guerra cristera). All of these events promised
the coming of new periods of political authoritarianism. In addition to all this, the
international context of the reform was particularly complex. This was the time of
the Second World War, the time of the growth of fascism in Europe, and the begin-
ning of the Cold War.
Within that complex situation, in December 1928, General Plutarco Elías Calle
promoted the formation of the National Revolutionary Party (Partido Nacional
Revolucionario, PNR), which would then become the Partido Revolucionario
Institucional (PRI)—the party which would completely dominate the Mexican pub-
lic scene during the entire century. The PNR first appeared as a social reformist
party, which gathered numerous military leaders, as well as workers and peasants.
Most notably, the party took L ázaro Cárdenas to the presidency of the country.
Cárdenas governed Mexico between 1934 and 1940 with a program of a clear
socialist inspiration. His government promoted agrarian reform, experimented
with workers’ control in the railways, and nationalized the oil companies (Angell
1994, 165; Gilly 2001).
Since 1929, and until 2000 (when a representative of the alternative politi-
cal party, the Partido Acción Nacional (PAN), won the national elections), all the
Mexican presidents would emerge from the Revolutionary Party. The Mexican exam-
ple, in this way, summarized many of the main features that would characterize
Latin American politics in the coming decades, including features of authoritari-
anism, reformism and socialism, populism, corporativism, and pacts between the
dominant elites.
* * * *
Mexico 1917: Constitution and Presence

There is one aspect of the constitutional debates so far examined that deserves particular
attention, given its implications for present discussions on pluralist societies and multi-
culturalism. This is the debate about the politics of presence, which emerged, for instance,
from our analysis of the Mexican Constitutional Assembly. It seems clear that the “pres-
ence” of representatives of subordinated groups in and outside that Assembly played
a crucial role in explaining and understanding, for instance, the emergence of debates
on the “social question,” which have not appeared before in any other Latin American
Convention. The debates in Querétaro help us understand that the “presence” of certain
voices and viewpoints constituted a fundamental condition (perhaps neither necessary,
nor sufficient, but in any case fundamental), for arriving at certain legal results—which
more recent constitutional debates, for instance in Bolivia, Colombia, or Ecuador, would
clearly ratify (Pisarello 2011; Uprimny 2006).40 Let us pause for a while and focus on the
Mexican case and the forceful arrival of the “social question” to the Convention.
In their study of the 1917 Constitution, historians always refer to an unexpected,
exceptional speech made by the revolutionary Luis Cabrera, in October 1914, at the
Aguascalientes Convention (which is deemed “the anteroom of the Constitutional
Convention,” Sayeg Helú 1974, 3:197). It was where Cabrera claimed that the “main
necessities” of the country were not political (politics was only a means for doing
something else, he maintained). What the country really needed, he said, was to carry
out social reforms. This is why, he added, the Constitution had to be adjusted “accord-
ing to our needs” (196). The Constitution had to “be in agreement with the blood, the
race and the necessities of the aborigines,” rather than a document “copied from the
French or the U.S. Constitution” (197–8).
Shortly after, on October 27, the debates were interrupted by a “Zapatista delega-
tion,” which again came to stress the importance of moving the Constitution toward
the “social question.” Among these testimonies, we could mention that of Paulino
Martínez, who told the delegates that “the lack of bread and justice were the main
causes that forced the people to resort to an armed uprising” (200). And he added,
“Not all those who launched this movement could properly understand and interpret
the just aspirations of the masses that rebelled in the name of an oppressed and hun-
gry people” (200‒201). He demanded “Land, liberty, and justice,” rather than “presi-
dential armchairs for those of ambition wealth and authority.” He was not looking
for “privileges for a particular social group without political equality and collective
welfare . . . land for all” (204).
There was another, also significant, popular irruption in the constitutional debates.
This one took place in Querétaro when the Convention was about to begin its work. At
that time, an ample and diverse group of people, from the surrounding areas, showed
up. The group, composed of “women, men, and children,” claimed that it wanted to talk
to the delegates. “Those of us who are here now,” claimed the worker Rafael Jiménez
in the name of the crowd, “represent the people of Querétaro, who come to tell you
that we are looking forward to a Constitution that is authentic, real, effective, liberal,
grounded on firm basis, and capable of improving the economic, political, and social
conditions of the Mexican people” (Carpizo 1982, 62).
Among all these sudden social demands, none was more influential than the one
voiced by another worker, Héctor Victoria, a Deputy who represented the state of
Yucatán.41 According to the crucial testimony of Pastor Rouaix—probably the main intel-
lectual responsible for the radical agrarian program included into the Constitution—it
was that very testimony that “made it clear that the Constitution had to face, as a whole,
the workers’ problem” (Rouaix 1959, 15). Victoria complained, at that time, about the
legal initiatives promoted by General Carranza, which he found shallow and incomplete
in their approach to the “social question.” At the same time, Victoria highlighted the
crucial role played by workers in the revolutionary movement (Carpizo 1982, 95‒96).
Victoria began his speech by clarifying his status as a representative of the workers
and complained about the complete absence of that perspective during the first debates
(Rouaix 1959, 79). After saying this, he focused his attention on article 5, which was
about to be discussed, and suggested what should be, in his opinion, the article’s
required content. For him, the article had to regulate a multiplicity of social problems,
including maximum labor hours, minimum salary, women and children’s labor, unsafe
and unhealthy work conditions, compensation, and so on. In addition, he proposed
creating special courts for hearing labor disputes and facilitating negotiations between
employers and workers (80). Victoria had in mind a Constitution that included a very
detailed regulation of work, a claim that the 1917 document would finally satisfy.
Moreover, he encouraged his colleagues to leave all formalities behind and focus instead
on the justice of the Constitution’s content.42 According to Rouaix, Victoria became the
main interpreter of a feeling shared by most members of the Convention.
All these testimonies grab our attention for different reasons. First, they represent
the crucial reintroduction of the “social question” in a Constitutional Convention. In
addition, they let us recognize the detailed radicalism of those demands. Moreover—
and this is what we want to highlight in this section—they allow us to pay attention to
a crucial correlation that existed between the “irruption” of the workers’ voice, before
or during the constitutional debates, and the incorporation of the “social question”
into the Constitution. The Mexican case gives support to an idea that has been the
object of much contemporary academic attention, namely, the importance of presence
in politics (Kymlicka 1995; Phillips 1995).43
Undoubtedly, the diversity of the voices heard at Querétaro’s Convention repre-
sents a central element in the explanation of its results. It incorporated “well known
lawyers, engineers, professors and journalists, together with industrial and agrarian
workers, miners.” This is why so many people, at the time, objected to the Convention
and referred to the “ignorants and barbarians” that composed it, which they con-
trasted to the “culture and refinement” of the members of the 1857 Convention (Sayeg
Helú 1974, 3:245‒46). Deputy Rouaix made a similar point by making reference to a
Convention that, in his opinion, represented the “genuine voice of the Mexican peo-
ple, revolutionary as a whole,” and included numerous representatives who defended
“progressive ideas” and were “committed to the interests of the popular cause.” Most
of them, he added, came “from the middle class or the proletarian class.” It included
“artisans and peasants, local and reputed professionals, and improvised military offi-
cers who obtained their degrees in the battles, all of them completely inexpert in the
Congressional affairs” (Rouaix 1959, 61).
6
Constitutionalism at the Mid-Twentieth

Century and the Return of the
“Social Question”
The Impossibility of Re-creating 1880

In the period we shall examine below (about 1930 to 1980), a decisive event occurred
that would change the political life of the region, namely the incorporation of the
working class into politics. The fact would also have an immense constitutional impact,
which consists of the incorporation of social rights in constitutionalism.
This is the period when the “neocolonial order” finally ended, after a profound cri-
sis that reached its peak with the world economic crisis of 1929/30. In effect, the
world crisis brought abrupt and fundamental changes to the region. The most visible
of them appeared in the economic sphere: at that time it became both more difficult
to continue exporting the primary goods that had been ensuring the economic suc-
cess of the region and to continue importing some of the basic goods required by the
internal market. In that emergency situation, most Latin American societies began to
rethink the role they had reserved to the State. After decades of proclaiming a “neu-
tral” role (not only, but mainly, in the economic realm), the State openly assumed an
interventionist role and decided to gain control of the production and distribution of
resources. The State played its new function in different ways, which included the cre-
ation of Central Banks, the formation of regulatory agencies, the fixation of maximum
prices, and so on.
The history of the region was also deeply marked by the two world wars. In prin-
ciple, and at least in economic terms, the region benefited greatly from these tragic
events. Latin American countries began to play a fundamental role as exporters of
food and other primary goods to the countries most directly involved in the conflict.
At the same time, Latin American economies were forced to change their profile in
ways that would also be decisive in their political development. In effect, most nations
in the region had to start a process of import substitution in order to replace the manu-
factured goods that they used to import from more industrialized countries (countries
that were now involved in the armed conflict). This gradual process of industrializa-
tion contributed to the emergence of a class of industrial workers that would soon
begin to demand a more active role in the public life of their countries.
105
In sum, everything had changed. In economic terms, the emergence of this new
paradigm implied the definitive breakdown of the old formula of “order and progress.”1
In political and social terms, the changes were also dramatic, given the increasing
importance of a more extended suffrage and the growing influence of a more numer-
ous and powerful working class. In legal terms, Latin America would also become dis-
tinguished by this “new and increasingly urgent” factor, namely the growing political
participation of the masses (Halperín Donghi 2007, 379‒80). However, it was not
clear how the law was supposed to react in the face of those novelties.2
One thing seemed to be obvious at the time, namely, that under existing condi-
tions it was impossible to maintain the old and exclusionary order based on an alli-
ance between liberals and conservatives. How could such an order be kept in societies
where the middle classes had gained universal suffrage, where the working class looked
strong and well organized, and where the State had definitively abandoned its old
self-proclaimed “neutral” role?
Of course, for the traditional, dominant sectors, the alternative of definitely aban-
doning the old model of “order and progress” was difficult to accept—that period
represented, for them, a mythical epoch. In fact, during those years, Latin American
countries had gone through a profound economic transformation (that clearly ben-
efited the dominant sectors), which took place under conditions of social peace and
political stability, which seemed totally exceptional in comparison with the region’s
previous history. However, at the beginning of the twentieth century, it seemed impos-
sible for the most favored sectors of society to continue to expand their economic prof-
its in a peaceful manner, particularly in the face of the existing levels of poverty and
inequality. What should be done, then, in order to re-create the old order? How could
the 1880s be re-created when conditions seemed to have varied so significantly?
At the level of the Constitution, the example of Mexico 1917 appeared, then,
to be an attractive “solution.” Of course, what looked attractive from the Mexican
example was not the period of profound crisis and armed violence that preceded the
Constitution, but rather the legal response that followed the crisis. In fact (as fre-
quently happens in similar circumstances), many attributed some responsibility for
the period of political stability that followed its enactment to the 1917 Constitution.
At least, it was true that the Constitution offered a new and original version of the
social compact by integrating some renewed social demands in the basis of the tradi-
tional liberal-conservative agreement.
Inspired by the Mexican example, the leaders of the liberal-conservative compact
in different Latin American countries recognized that it was not only possible but also
necessary to expand the limits of the traditional constitutional compact. Accordingly,
they also began to claim that the new Constitutions had to accommodate the social
demands that had been previously excluded from the old, prevailing constitutional
documents. In other words, they recognized that it was now necessary to somehow
incorporate the third model of constitutionalism that had been marginalized from
previous constitutional discussions. This would be one of their more fundamental
concessions aimed at calming down the existing levels of social discomfort.3
In this way, Latin American Constitutions began, one after the other, to add these
new social concerns to the old, existing legal matrix, which notably was not sup-
pressed or significantly changed. Subsequently, the new, twentieth-century type of
C on stit utionali sm at the Mid -Twe nti e th C e nt ur y 107
constitutionalism became distinguished by socially committed Constitutions, a feature

that found expression in a renewed organization of rights, but also by Constitutions
that remained too conservative and restrictive with regard to the organization of
power.
In constitutional terms, the emergence of social rights represented the most sig-
nificant novelty that came with the new century. However, it would in no way be the
only one: the changes that took place in the region during the twentieth century were
numerous and so were also the responses that came from constitutionalism. In this
chapter, we shall examine a few of these legal responses, which we shall select accord-
ing to their importance and influence. We shall concentrate our attention on five main
alternatives, namely the following:
(1) The Authoritarian Alternative. This response, normally promoted by the local Army
forces, appeared time and again in the region. This was, of course, the most direct
and brutal form of reinstalling the old 1880s project of “order and progress.” We
shall briefly examine this very common response and also some of its most imme-
diate consequences.
(2) The Reformist Alternative. This response mainly emerged in the first decades of
the twentieth century, commonly as a reaction to the previous wave of authori-
tarian governments. In some (but not all) of the cases, this alternative response
included Constitutions that explored an unusual path within the region’s history,
one that combined the introduction of social rights with moderated forms of
presidentialism.
(3) The Populist Alternative. This response was particularly important in Argentina
with Juan Perón and in Brazil with Getulio Vargas. In this case, the proposal was
to ensure economic development and social peace through a compact between
opposing social classes—usually through political arrangements between employ-
ers and employees, which were celebrated under the auspices of the State.
(4) The Democratic-Exclusionary Alternative. This type of response appeared in countries
such as Colombia and Venezuela, where members of the dominant political elite
decided to get together after years of extreme violence to try to find a way out of a
political crisis that included extreme violence. Usually, they tried to ensure politi-
cal stability by distributing political resources and positions among the members
of the elite and also by fostering peaceful economic development through a new
social compact from which leftist and rebellious political forces were excluded.
(5) The Socialist Alternative. This exceptional response appeared in a few countries, which
included at different periods Cuba, Chile, or Nicaragua. The idea was, in this case, to
reverse the conditions prevalent during the 1880s—to literally turn them upside
down—in order to ensure the triumph of the most disadvantaged social sectors.
The Authoritarian Alternative

The usual formula of “limited political liberties” and “ample economic liberties” (which
came to prevail during nineteenth century Latin American politics) achieved its peak at
the beginning of the 1880s. However, in the twentieth century, the political, economic,
and social conditions that made that situation possible had dramatically changed and
demanded the introduction of radical changes into the dominant context.
In political terms, universal suffrage had made its appearance, which also provoked
a profound change on the social and economic scene. One crucial question was then:
How was it going to be possible to maintain universal suffrage, social peace, and politi-
cal stability together, in a context that was still characterized by profound inequalities?
(Przeworski 2010). In addition, would it be possible to maintain the level of growth
and the social discipline that had characterized the long period of “order and progress”
under these new conditions?
In those conditions of “social tie” and growing political demands,4 the first and
most persistent reaction from the dominant sectors took the form of an authoritar-
ian response. In the context of more stable democracies, the authoritarian response
normally implied the use of powers of emergency and emergency measures, which
came to establish severe limitations on personal liberties. In the most extreme (but
not uncommon) cases, the authoritarian rejoinder implied military coups that put an
abrupt end to democracy.
Typically, the first kind of authoritarian response was channeled through the fig-
ure of state of siege, which allowed democratically elected and legitimate governments
to adopt restrictive measures with regard to individual rights. Very commonly, the
state of siege became aggravated in two ways. On the one hand, those situations of
emergency were, time and again, extended in time: the seemingly exceptional emer-
gency measures became, after some time, a regular, normal state of affairs. On the
other hand, there was the emergence of the political questions doctrine. According to
this doctrine, which tribunals frequently adopted in their decisions, certain topics—
typically, those measures implemented by a certain government in the context of a
state of siege—had to be considered essentially political in character and thus free
from judicial scrutiny.5
Mexico offered a second (and unique) authoritarian response to the crisis of the
old paradigm. Here, we find that the Revolutionary Party (PRI) that emerged after
the fall of Porfirio Díaz soon became hegemonic, occupying the entire political space.
In fact, until the end of the twentieth century, the PRI virtually functioned as the
single national party. In 1936, and thanks to Lázaro Cárdenas’s efforts, the party cre-
ated a new branch, namely the Confederation of Mexican Workers (Confederación de
Trabajadores de México, CTM). Even so, in 1938, the party constituted the National
Confederation of Peasants (Confederación Nacional Campesina, CNC); in 1943 it cre-
ated the National Confederation of Popular Organizations (Confederación Nacional de
Organizaciones Populares, CNOP, which included, for example, the national bureau-
cracies); and in 1946 the military branch of the party appeared.
The characterization of Mexico’s political regime as authoritarian may be not really
polemical (the writer Mario Vargas Llosa called it “the perfect dictatorship”),6 although
it requires certain clarifications. As Peter Smith aptly put it:
Most observers stressed the “authoritarian” qualities of the regime, but even
this characterization would be subject to qualification. Mexico has had a
pragmatic and moderate authoritarian regime, not the zealously repressive
kind that emerged in the Southern Cone during the 1960s and the 1970s;
an inclusionary system, given to co-optation and incorporation rather than

exclusion or annihilation; an institutional system, not a personalistic instru-
ment; and a civilian leadership, not a military government. Whatever else
might be said, the Mexican regime has confronted and apparently resolved
one of the most intractable problems for non-democratic systems, the issue
of elite renewal and executive succession. It is an authoritarian system, but
one with many differences. (Smith 1990, 93)
By the middle of the century, Mexico’s system was able to show some significant
achievements, which not many other countries in the region could match. These
achievements included significant rates of economic growth and industrial develop-
ment, which were combined with a remarkable level of political stability (Smith 1990;
Knight 1990b). The system was also able to show some important results with regard
to the “social question,” including the promotion of agrarian reforms, the creation
of the Mexican Social Security Institute (the Instituto Mexicano del Seguro Social,
during the administration of Manual Ávila Camacho in the 1940s), and the launch-
ing of the Institute of Security and Social Services for State Workers (the Instituto de
Seguridad y Servicios Sociales para los Trabajadores del Estado, created by President
Adolfo López Mateos in 1959).
In addition, during these decades the national university (Universidad Nacional
Autónoma de México, UNAM) gained autonomy and also accomplished a massive
expansion at all levels. These facts are worth mentioning particularly if we take into
account that by the mid-1960s students took the lead in the opposition to the PRI’s
policies. At that time, students expressed their dissatisfaction with the PRI’s way of
doing politics and the growing repressive features of the government (mainly during
the presidency of Gustavo Díaz Ordaz). In association with workers and the urban poor,
students protested in demand for substantive political, social, and educational reforms.
Their protests achieved its peak in the sinister “night of Tlateloco” (October 2, 1968),
when the government—anxious to put an end to the opposition’s demonstrations—
killed dozens of students (the massacre occurred just a few days before the celebration
of the Olympics in Mexico). The massacre of Tlateloco marked the beginning of the end
of the PRI’s hegemony. The disastrous event was followed by a prolonged political crisis
and a wave of successive constitutional, legal, political, and social reforms, which began
in 1977. Successive reforms included the constitutionalization of the right of informa-
tion, the right to have socially useful work, the right to housing, and the right to a clean
environment. These reforms also inaugurated Mexico’s transition to democracy.7
Now, the most important, extreme, and common authoritarian response to the
crisis of the old paradigm was the one that involved military coups. This was the
main way in which dominant sectors tried to resist the growing social demands, now
institutionally expressed by popular suffrage. Suffrage was then directly suppressed
through the use of force.
The military coup alternative became the most common response of conserva-
tive sectors that seemed unwilling to accept any significant change in the dominant
distributive (political, economic, and social) order. According to the available data,
Latin America registered more than 170 military coups during the twentieth century
(Przeworski 2011).
Not surprisingly, then, military coups in the twentieth century somehow repro-
duced the main features of the typical nineteenth-century conservative policies. That
is to say, they tended to impose elitist political systems characterized by a concen-
trated Executive power, territorial centralization, limited political and social rights,
and forms of moral perfectionism backed by the State’s coercive apparatus. In these
regimes, the State tended to enforce religion, repress social protests, prosecute dis-
sidents, and also censor all alternative ideas.8
In Latin America, the first important wave of military coups appeared at the begin-
ning of the century in the context of the “Great Depression.” In Argentina, President
Yrigoyen was removed from power in 1930. In Brazil, in October of the same year,
General Augusto Tasso Fragoso replaced President Washington Luis and thus pre-
vented elected President Julio Prestes from assuming his mandate (Tasso Fragoso
would then hand power to Getulio Vargas). In Uruguay, then President Gabriel Terra
established a dictatorial regime on March 21, 1933, after dissolving the existing legis-
lative institutions and also the National Administrative Council (his new government
would then be characterized for its anti-liberal and anti-leftist conservatism). At that
time also, Peru inaugurated a long period of military governments, which had begun
with dictator Augusto Leguía. In Venezuela, dictator Juan Vicente Gómez, who had
been in power since 1908, remained in it until his death, which occurred in 1935.
By the mid-1940s, the pendulum moved to the contrary side—the side of democ-
racy—together with the end of the Second World War and the final defeat of the
Nazi-Fascist axis. Since 1939, Peru has been under a democratic government; the
same has happened in Uruguay since 1942, Brazil and Venezuela since 1945, and
Argentina since 1946. However, the tensions that were then escalating between the
United States and the Soviet Union, and the coming of the so-called “Cold War,”
also exercised a profound impact on the region. A good illustration of this is that, in
1947, the Communist Party was made illegal in Brazil, and the same thing occurred
in Chile, Colombia, Costa Rica, and Peru in 1948, and in Venezuela in 1950 (Hartlyn
and Valenzuela 1994, 139).
The period of democratic reemergence turned out to be extremely brief. By the
end of the decade, the pendulum had moved once again, toward military coups and
authoritarianism. Manuel Odría overthrew President José Luis Bustamente y Rivero
in Peru in 1958. In Venezuela, Rómulo Gallegos was removed by a military coup led
by Carlos Chalbaud in 1948. Simultaneously, Laureano Gómez promoted a coup in
Colombia against Constitutional President Mariano Ospina. José Linhares, President
of the Supreme Federal Court in Brazil, led a transition period in his country, after
1945, following the violent removal from power of President Getulio Vargas. In 1955,
Juan Perón was displaced from power in Argentina through a military coup. Sometime
before this, in 1954, the president of Guatemala, Jacobo Arbenz (accused of being a
“communist”), had been dismissed from democratic power by a military coup that
was promoted by the US government;9 and in 1952, Fulgencio Batista had led a (sec-
ond) military coup, which allowed him to return to the presidency of Cuba. The wave
of military coups even reached Costa Rica (a country that proved to be more resis-
tant to authoritarianism than its neighboring countries), after a period of Civil Wars
(1948‒49) (although after this event the country inaugurated a long period of demo-
cratic stability, which would be absolutely exceptional in the region).
Things began to change again in the mid-twentieth century, when there was an
almost simultaneous fall of many dictatorial regimes, including those of Rojas Pinilla
in Colombia, Odría in Peru, and Pérez Jiménez in Venezuela between 1957 and 1958.
In 1959, most Latin American countries—including Argentina, Brazil, Colombia,
Costa Rica, Chile, Peru, Uruguay, and Venezuela—were living under democratic rule,
which was completely unusual.
Finally, there was a new and important wave of dictatorial regimes that began in
the early 1960s, in good part after (and in reaction to) the Cuban Revolution (and
also the 1952 Revolution in Bolivia). Fidel Castro’s coming to power, in particular,
contributed to the emergence of different guerilla movements in the region, which
unleashed an anticommunist fever in America. The United States led and financed
an economic response to this revolutionary wave—the so-called Alliance for Progress.
The idea was to prevent the expansion of communism on the continent. At the same
time, they promoted and supported the emergence of anticommunist regimes in the
region, which in most cases took the form of authoritarian governments. This was the
case, for example, of the dictatorship of Castelo Branco in Brazil (1964), Juan Carlos
Onganía and, later on, Jorge Rafael Videla in Argentina (1966 and 1976, respectively),
and Augusto Pinochet in Chile (Pinochet overthrew Salvador Allende’s socialist gov-
ernment in 1973). This wave inaugurated a new type of military coup in the region and
a new type of military regime in Latin America: instead of merely deposing a demo-
cratically elected government, the new regimes came to establish a new and substan-
tially different political order (Hartlyn and Valenzuela 1994, 142; and for the cases of
Argentina and Brazil, see O’ Donnell 1982).10
Only at the beginning of the 1980s would democratic government become domi-
nant again in the entire region, finally inaugurating a new period of democratic stabil-
ity that still exists today.11
The Reformist Alternative

In the first decades of the twentieth century, and as a direct consequence of the
regimes of force at the beginning of the century, Latin America came to know some
reformist experiences, sometimes expressed through a new type of hybrid constitu-
tionalism. The most interesting cases within these experiments, which could be called
“social-democratic” cases, included Constitutions that combined new social clauses
(in line with those adopted by the Mexican Constitution) with rich and diverse forms
of attenuated presidentialism—something that was both remarkable and unusual in
the region’s history.
Some of the Constitutions that may be classified within this reformist alterna-
tive included, for instance: votes of no confidence to the ministers of government
(Guatemala 1945, i.e., art. 146 and following; Costa Rica 1949, i.e., arts. 121‒27);
a prime minister and a council of government that could lose the legislative confi-
dence and thus be forced to resign (Cuba 1940, i.e., arts. 164 and following); and even
legislative votes of no confidence combined with the Executive’s capacity to dissolve
Congress (Uruguay 1942, i.e., arts. 136 and following). Let us examine some of these
examples in some more detail.
We can begin this exploration with the interesting case of the 1945 Constitution
of Guatemala. This Constitution was the result of a civic and military revolutionary
movement, which included workers and students. It can be said that its main target
was the military dictatorship of General Federico Ponce Valdés. Drafted and enacted
during the presidency of the intellectual Juan José Arévalo, the Constitution intro-
duced numerous social clauses, in accordance with the new regional constitutionalism.
Inspired by the example of the Spanish Republican Constitution of 1931, the 1945
document opened its text by making reference to the country as a “republic of work-
ers.” The Constitution also recognized diverse social rights and guarantees (including
minimum wage, paid vacations, new rights for women and minors), legalized trade
unions, established the social character of property, and declared that the indigenous
question was of public interest.
At the same time, the new constitutional text organized a somewhat moderated
presidentialist system, through an important reduction of the presidential powers.
Like other Constitutions that emerged after a period of prolonged dictatorship (i.e.,
the Mexican 1917 Constitution), the 1945 Constitution consecrated the principles
of alternation in power and non-reelection. At the same time, the Constitution pro-
vided more powers to the ministers and created a Council of Ministers that would
be under the supervision of Congress. Congress was also authorized to pass votes of
no-confidence against the ministers (who in that way were obliged to resign from their
positions).
In the case of the Constitution of Costa Rica, 1949, we can also recognize those
dual features, which on the one side implied the incorporation of social clauses and
on the other brought a certain moderation of the presidentialist system. The new
Constitution appeared after the 1948 Civil War, as a product of a broad package of
reforms sponsored by provisional President José Figueres. The 1949 text also incorpo-
rated numerous social clauses, which thus provided constitutional status to the social
reforms promoted during the government of Rafael Calderón Guardia.12 At the same
time, the Constitution represented a strong reaction against the type of presidential-
ism that had dominated the country (and the region) for decades. Notably, the reform
process came together with the direct abolition of the Army, an initiative that was
totally exceptional and has undoubtedly been very influential in the country’s political
development since then. At the same time, the new Constitution showed its hostil-
ity toward presidentialism and the concentration of powers, through an expansion of
the powers of Congress. In 1949, Costa Rica adopted a unicameral Congress (whose
members could not be reelected), endowed with the capacity to censor the Executive’s
ministers.13
Other constitutions that were created during this same period, and that also
expressed this double commitment to social rights and moderated presidential-
ism, were the Brazilian 1946 Constitution, the Cuban Constitution of 1940, and the
Constitution of Uruguay 1934—we have already made reference to this Constitution
and in general to the Battlista experiment and its remarkable exploration of an
Ejecutivo Colegiado.14
The 1946 Brazilian Constitution incorporated numerous social clauses, follow-
ing the example of the two previous Constitutions, which were created during Getulio
Vargas’s regime. Among other clauses, the 1946 Constitution included, for example, the
institution of minimum salary; it established the social function of property and made
reference to the workers’ right to participate in the profits of companies. In addition, the
Constitution recognized the right to strike, which had not been previously adopted in
any Brazilian Constitution (Villa 2011, 88). According to Afonso Arinos de Melo Franco,
the Brazilian 1946 Constitution was also characterized by “the common vice that affects
all those Constitutions that appear after long periods of dictatorship,” namely the obses-
sive, concerned aim of avoiding the excesses of the previous regime (quoted in Limongi
2008, 28). The point of this criticism was to suggest that the Constitution created a weak
presidential system. This was clearly not the case: the fact that the Constitution did not
create a strong presidency does not necessarily mean that it created a weak one. However,
since that time that statement has become a common assumption. According to some
analysts, the combination of presidentialism and a proportional electoral system (such
as the one that was then created) necessarily resulted in a weak democracy with a fragile
president—doomed to fall prey to the opposition in Congress (Furtado 1965).
The 1940 Cuban Constitution also incorporated many interesting novelties
related to social constitutionalism: minimum salary, social security, public educa-
tion, protection of family and culture, and so on. The Constitution also insisted on
the notion of collective rights and proposed different measures directed at reform-
ing property. In addition, the Constitution created a Court of Constitutional and
Social Guarantees, which acted under the supervision of the Supreme Court. The
1940 document also incorporated certain “semi-presidentialist” elements: for
instance, the president was assisted by a Council of Ministers, whose members were
responsible before Congress, which could force the former to abandon their position
in government. However, in actual practice none of these “parliamentary elements”
became really effective.15
As in the previous cases, the 1934 Constitution of Uruguay also incorporated social
rights: it made reference to the rights of the family, the right to education, maternity
rights, the right to work, and the right to social security. In addition, this Constitution
extended suffrage to women, who were until then denied that right. Moreover, the
1934 document experimented with a kind of parliamentary regime: ministers were
responsible before Congress, and Congress had the power to censor them (which only
happened once, in 1969). Meanwhile, the Executive had the capacity to dissolve the
legislative chambers and call for new legislative elections.
Another Constitution that appeared during those years was the important
Constitution of Bolivia, 1938, which did not change the political system in an interest-
ing way, but introduced social constitutionalism in Bolivia, and which was promoted by
Colonel German Busch Becerra, after the serious armed conflict known as the Guerra del
Chaco. This Constitution, enacted by a Convention that, for the first time, included rep-
resentatives from the working class, together with that of 1945, which was promoted
by the military government of Gualberto Villarroel, advanced social constitutionalism
in the country and, in particular, defined limits to the right of property, which became a
conditional right, marked by its “social function” (Barragán 2006, 70‒71). Later on, and
after some political and legal regressive periods, the Constitution of 1961 readopted
and expanded some of the social commitments assumed in the previously mentioned
constitutions. The new Constitution added, in particular, new considerations about
agrarian reform, gratuitous education, and the nationalization of mines.
Having reached this point, we shall make reference to the Chilean case, which
occupies a peculiar place within this section dedicated to the reformist constitutional
alternative. The case of Chile clearly connects with some of the previously presented
experiences, particularly if we pay attention to the gradual introduction of interesting
social legislation. However, it also differs from them, particularly because of the lim-
its that (in 1925) it introduced to the then well-developed parliamentarian practice,
which was totally exceptional within the region.
The exploration of the Chilean case may well begin with a reference to the impor-
tant Constitution of 1925, which some have presented as an “expression of social
constitutionalism, and in this respect closer to the European Constitutions that
emerged between the wars, than to those that were written after the [Second World]
war” (Pisarello 2011, 151). The Constitution was enacted in 1925, during President
Alessandri’s administration, and remained in effect for almost five decades.
In truth, the 1925 Constitution was only moderately “social” (it fundamentally
included one article—art. 10—that was clearly dedicated to the “social question,”
making vague references to “work,” “property,” and “public health”). However, it is
also true that this constitutional document proved amenable to the existing social
legislation. More significantly, the Constitution was functional to the organization
of workers and the development of a mixed economy characterized by state inter-
ventionism, import substitution, and welfare measures.16 These developments were
characteristic of the years of the Popular Front, and particularly of President Aguirre
Cerda’s administration. Member of the Radical Party, Aguirre Cerda had run for the
presidential elections of 1939 (which he won) as the candidate of the Popular Front.
His government “placed greater emphasis on state intervention, industrialization and
the needs of labor” (Drake 1991, 290).17 This welfare activism, backed by the mod-
est 1925 Constitution, regained life in the second half of the twentieth century, par-
ticularly after the social-democratically oriented Christian Democratic Party, presided
over by Eduardo Frei, won the national elections in 1964 (Angell 1991).18
The welfarist policies enforced in Chile during this period did not come together
with a constitutional moderation of the Executive’s powers—as happened in the cases
of Costa Rica, Guatemala, or Uruguay, which we just explored—but rather with an
increase in the presidential faculties. This was so, at least in part, as a consequence
of a Chilean peculiarity, the period of the so-called “parliamentary republic,” which
lasted from 1891 and the defeat of President Juan Manuel Balmaceda in the Civil
War to 1925, and the enactment of the new Constitution. The victory of the congres-
sional forces in the Civil War resulted in a period where politics was organized around
Congress. Since then, presidents have been forced to form their cabinets in ways that
reflected the changing legislative majorities, although at the same time (and contrary
to what happens in truly parliamentary republics) they lacked the power to dissolve
Congress and seek a renewed mandate (Blakemore 1986, 522). In the end, the tra-
ditional oligarchy continued dominating public life (523), corruption persisted, and
politics—subject to permanent negotiations within a small elite in Congress—lost
social respect.
Some of these reasons explain the emergence of the 1925 Constitution, one that
was seen as “a reaction—in form at least—to the indecisive years” of the parliamen-
tary republic (Blakemore 1986, 545). Crucially, the Constitution came to restore
presidential authority, although it did only in part. On the one hand, the president was
now going to be elected through direct, rather than indirect, elections; would serve for
six, rather than for five years; and ministers would be accountable to the president,
rather than Congress. On the other hand, however, the president was not immedi-
ately re-eligible, and elections became subject to closer scrutiny by a new tribunal.
Moreover, the Constitution allowed the final election of the president by Congress for
those (rather common) occasions when no candidate obtained the majority of votes
in the presidential election. The Constitution was abrogated in 1973 with the arrival
of General Pinochet’s military coup against President Allende.
The Populist Alternative

In this section, we shall examine two experiences of fundamental importance in the
region, as alternative responses to the grave crisis at the beginning of the century.
These were the experiences of Brazil and Argentina. Both countries’ responses to the
crisis shared some basic features, typical of the World War and import-substitution
period, such as the following: nationalism, the defense of a strong “interventionist”
regulatory State, an anti-leftist policy, the consecration of a single politician as the
nation’s leader, a particular appeal to the mobilized masses and industrial workers,
and the attempt to sit down together—at the same bargaining table—the main inter-
ests of the country, including the local business class, the trade union leaders, and
representatives of the State. Summed up, these features conform to what many people
still characterize as “populist” regimes.19
In what follows we shall explore, in particular, the connections that were then
established between these experiences—Varguism in Brazil, Peronism in Argentina—
with constitutionalism. More specifically, we shall pay attention to the singular way
in which these experiments promoted the incorporation of social rights into the old
Constitutions.
Social Rights and Varguism in Brazil

As anticipated, one significant example about how constitutionalism changed in the
mid-twentieth century, in order to acquire a more social character, is that of Brazil.
To examine this case, we can go back to the so-called First Republic, which came to its
end in 1930 after a Revolution that was promoted by a liberal alliance led by powerful
sectors coming from Minas Gerais. The Mineiros sectors considered that the Paulistas,
who represented the coffee interests, had broken the pact that existed between the
two groups, which had allowed them to share political power. Their agreement was
broken (the Mineiros assumed) when the Paulistas decided to promote Julio Prestes
as a presidential candidate. Faced with this possibility, the Mineiros sponsored an
armed rebellion that ended with Getulio Vargas as the head of a provisional new gov-
ernment. In spite of its early promises, which included the political reorganization of
the country and the promotion of substantial institutional changes, Vargas’s govern-
ment soon transformed into a dictatorship. Vargas only agreed to call a Constitutional
Assembly after three years, and only as a consequence of an armed insurrection that
took place in São Paulo—the so-called “constitutionalist revolution of 1932.” This civil
war became the “main armed conflict in Brazil’s 20th Century” and mobilized more
than 150,000 combatants (Villa 2010, 38).
The process of legal and constitutional reform promoted by Varguism in Brazil was
inspired by European authoritarian regimes, partly in response to the 1932 civil war
and partly due to the growing conflicts generated by the numerous worker strikes of
the time, which were usually organized by foreign workers (Villa 2011, 53). At that
juncture, there was “no more space for liberals,” as the noted writer and former deputy
Gilberto Amado once said (49). The military regime launched then a period of “xeno-
phobic nationalism” (52), which included numerous measures against foreign work-
ers (and even eugenicist initiatives, aimed at “improving the race” and the “mental
health” of the population, and fighting against those who “poisoned” social life, as
indicated by art. 138 of the 1934 Constitution). These initiatives were strengthened
by presidential decrees, which both restricted the incorporation of foreign workers
and forced the expulsion of many of them, who were then associated with “economic
disorder” and “social insecurity” (53).
The government promoted the mass inclusion of workers in politics and also favored
the organization of labor through the creation of trade unions. The State was then more
economically active than ever before. At the same time, Vargas’s regime showed a strong
disdain toward institutional forms, which it accompanied with an active anticommu-
nist drive. An expression of its attitude toward institutions is the fact that Vargas’s
dictatorship worked “during seven years without the support of any Constitution,
with the prohibition of all political parties, the dissolution of all legislative bodies, and
the replacement of all state governors by agents who worked for Vargas” (Halperín
Donghi 2007, 381). Meanwhile, the achievements of the government’s anticommunist
drive became apparent with the bloody repression against the forces of the communist
leader Luis Carlos Prestes, who in 1935 commanded an important rebellion movement
against the dominant regime.
Vargas’s constitutional legacy was very rich. During his years in government, Vargas
promoted the enactment of two Constitutions. The first one, the 1934 Constitution,
was the more innovative of the two and also represented a significant rupture with
the traditional Brazilian political-constitutional structure (Bercovici 2009). The sec-
ond one, which was sanctioned in 1937, accompanied the creation of the Estado Novo
and decisively contributed to the strengthening of the powers of the Executive. Again,
social constitutionalism was coming hand in hand with the creation of a strongly pres-
identialist regime.20
The 1934 Constitution was mainly inspired by the Constitution of Weimar. The
document was originally drafted by the so-called Itamaratí Commission, which gath-
ered many noted Brazilian legal and political thinkers.21 Among other members, the
Commission included Afranio Melo Franco, Carlos Maximiliano, José Américo de
Almeida, Temístocles Cavalcanti, and, perhaps most significantly, Joao Mangabeira.22
The Commission, first, and then the Convention worked in isolation in a context of
almost complete absence of popular participation.23
From its very composition, the Constitutional Convention tried to reflect the
different economic interests and also the demands of the different political elites
existing in the country. As a consequence, the Convention included representatives

of the Paulistas interests and local oligarchies, and an ample forty-member group
of so-called “classist Deputies” (which included eighteen employees, seventeen
employers, three members of the liberal professions, and two public officers), which
would have the decisive voice in issues concerning social and economic rights. The
Convention also included two socialist representatives, namely Zoroastro Gouveia
and Lacerda Werneck.24 The project coming from Itamaratí was then examined in
the Constitutional Assembly, where a special commission discussed more than one
thousand modifications to it.
The 1934 Constitution was characterized by two main notes, namely its strong cor-
poratist character (Lima Lopes 2008, 361), and its decision to take the “social question”
seriously (V. da Silva 2011, 69).25 The final text incorporated many of the basic features
that characterized the previous Constitution, including federalism (the Convention
rejected the excessively centralist orientation of the Itamaratí project), presidential-
ism, and republicanism. At the same time, the new Constitution incorporated some
important novelties: it strengthened the capacities of the Union; transferred more
powers to the Executive; replaced the more traditional bicameralism by a different
one (where the Senate acted as a collaborator of the Chamber of Deputies, thus also
abandoning the unicameral proposal advanced by the Itamaratí Commission); created
Electoral Justice; and organized forms of corporatist representation (art. 23 estab-
lished that the Chamber of Deputies would include representatives of the people at
large, but also representatives of professional interests related to industry, commerce,
transport, liberal professions, and public officers).
Concerning the rights section of the Constitution, the new document significantly
expanded the traditional list of legal rights. On the one hand, the new Constitution
extended political rights, for instance, through the establishment of secret ballot and
the recognition of women’s suffrage. On the other, it included two new sections, previ-
ously nonexistent, one which referred to social and economic order (Title IV), and the
other (Title V, Chap. I) to the family, culture, and education (J. da Silva 2010, 81‒82;
Reiner 1982; Mendes et al. 2008, 167‒68; Wolkmer 1989). Articles 120, 121, and 122
were also decisive in the shaping of a new social policy. Among other things, the social
clauses prohibited the establishment of different payment for the same work and
established minimum salary, eight hours as maximum working hours, paid vacations,
medical and sanitary assistance to workers, and so on. The Constitution also made
reference—for the first time in the country’s constitutional history—to the indig-
enous groups that inhabited Brazil.
However, after three years of only partial application of the Constitution, President
Vargas himself abandoned its enforcement. Vargas justified his decision through a
speech that was transmitted nationwide on November 10, 1937. On that occasion
he claimed that the Constitution presented “manifest and lamentable failures,” par-
ticularly as a result of the influences that it had received from “liberalism and the
representative system.” For Vargas, the Constitution was thus incapable of properly
confronting the new realities posed by a “world crisis.” More significantly perhaps,
Vargas believed that the 1934 Constitution had not provided him with the powers
that he needed in those times of crisis (Mendes et al. 2008, 168).
In the same way that the 1934 Constitution emerged in dialogue with (if not in
direct reaction to) the political ascension of Luis Prestes, the civil war of 1932, and an
increasing level of conflict with the workers, the 1937 Constitution appeared as a clear
response to the communist insurrection of November 1935. This popular uprising
was again commanded by Luis Carlos Prestes, who, taking advantage of the existing
climate of social unrest, tried to carry out the revolution that he had been unable or
unwilling to promote in 1930.
Vargas managed to contain the leftist insurrection and, immediately afterward,
launched numerous measures against the rebels. In fact, from that moment, the
national legislation—and then the Constitution itself—became clearly marked by an
anticommunist and authoritarian character. First of all, Vargas announced the state
of war, which was followed by a declaration of state of siege and the detention of
more than 7,000 people. Soon afterward, he created a National Commission for the
Repression of Communism and a National Security Court, which would be in charge
of prosecuting the enemies of the government (there would be more than 4,000 peo-
ple under trial during the period). Finally, in 1937, the government enacted a new
Constitution.
The 1937 Constitution was also known as the “Polish Letter,” given the inspiration
it found in the authoritarian Constitution of Poland, 1935 (the Constitution was also
inspired by Portugal’s 1933 Novo Estado). The Constitution was characterized by the
way in which it strengthened the powers of the president and also by its “centralizing
and antifederalist character” (Lima Lopes 2008, 362). It maintained the majority of
the social clauses included in the previous one except the right to strike, which it con-
sidered “anti-social” (art. 139) (see Bercovici 2008, 389, 399).
The main ideologist behind its text was Francisco Campos, who had worked as
the Minister of Justice during Vargas’s dictatorship. Campos was also known as the
Brazilian Carl Schmitt (dos Santos 2007). The jurist seemed unsympathetic to democ-
racy and openly resistant to liberal constitutionalism, an ideology that, in his opin-
ion, “made government impossible” (Villa 2011, 65). Notably, in his work Estado
Nacional, Campos developed his views on the topic and stated: “The political regime
of the masses is a dictatorship. . . . People always ask for their own Caesar” (Bercovici
2008, 390; Campos 1937). Together with other noted jurists, such as Oliveira Viana
(who at one point even defended racist and eugenicist policies) or the influential
Alberto Torres (author of significant works, such as O Problema Nacional Brasileiro and
Organizacao Nacional), Campos advanced a legal approach that defended the concen-
tration of power with arguments in favor of a “substantive” and plebiscitary democracy
(dos Santos 2007). Their views represented a renewed approach to constitutional-
ism, which wanted to leave behind the legacy of the 1891 Constitution. This reactive
approach was characterized by its antiliberal, anti-idealistic, and anti-democratic fea-
tures (V. da Silva 2011).
The new Constitution opened up with a preamble that referred to the danger of
a “communist infiltration” and the need to respond with “radical and permanent
measures.” For the first time in Brazilian legal history, the Constitution included the
death penalty, created mechanisms of censorship, and put severe limits on the rights
of freedom of expression and freedom of assembly. At the same time, it transferred
extraordinary powers to the Executive, which included the capacity to declare the
state of emergency or the state of war at will (without previous consultation with
the Legislative, according to art. 166). At the same time, and in order to strengthen
the legislative role of the president, the Constitution established that the Executive
would be also part of the Legislative power and granted to it the faculty of federal
intervention.
In reality, the 1937 Constitution was used as an excuse to dissolve the Legislative
powers in the entire country. The pretext was that it was necessary to reorganize the
whole institutional system. For that purpose, the Constitution established that the
nation would first have a plebiscite (in order to legitimize the new legal order) and
then hold elections. But those initiatives did not prosper and Vargas ended up ruling
at will, almost without any institutional controls. As a consequence, the Constitution
was never applied, and the regime became “a pure and simple dictatorship” (V. da Silva
2011, 71). A few years later, in 1946, a new Constitution was sanctioned. Enacted
after the defeat of the Axis in the Second World War (an event that put Vargas’s regime
at risk), the new document returned to the basis of the 1934 Constitution and repro-
duced many of its main aspects. In 1950, Vargas returned to the presidency of the
country, although this time through the democratic vote. His government, character-
ized by its nationalism, lasted until 1954, when he committed suicide.
Social Rights and Peronism in Argentina

General Juan Domingo Perón had been one of the key figures during the government
of General Farrell, who had come to power in 1943 through a military coup. At that
time, Perón became the Secretary of Labor—a position from which he strengthened
his contacts with the trade unions and promoted numerous labor laws, which favored
the interests of the working class and the labor movement. Those circumstances
made Perón enormously popular. Not surprisingly then, in 1946, and through dem-
ocratic elections, he became the president of the country. During his government,
Perón strengthened the social reforms that he had initiated as Secretary of Labor. The
reforms were benefited by a favorable economic context. The coming of the Second
World War had forced Argentina to deepen its economic process of import substitu-
tion and allowed it to increase its gains through the export of primary goods. It was
in those circumstances of profound economic, political, and social change that Perón
also promoted a significant constitutional reform.
Arturo Sampay was then one of the most influential legal thinkers in Peronism and
the decisive intellectual figure behind the Peronist 1949 Constitution. Sampay was
also a harsh critic of the old 1853 Constitution, which he described as an unacceptably
liberal document, improperly favorable to laissez-faire as a consequence of the influ-
ence of Alberdi’s ideological preferences. According to Sampay, the new Constitution
had to abandon the “[absurd] modern mistakes of autonomy and naturalism in eco-
nomic sciences” (Sampay 1944, 81).
President Perón made reference to similar ideas in the speech he presented before
the Constitutional Assembly on March 11, 1949. At that opportunity, he maintained
that neither the organization of the State nor the writing of the Constitution should
again fall into the hands of “conservatives and liberals.” He also claimed that the
State’s functions had to be profoundly changed—the State could not continue being
the mere organizer of the market and society (Perón 2008, 18). For him, it was time
to leave behind a period characterized by an improper legal practice, which included
an infringed Constitution, laws that were violated or made according to the interests
of the enemies of the nation, “citizens who were deprived of their most basic civil
rights, workers who were at the mercy of those who abused them in complicity with
the ruling government.” It was time to move from a “liberal democracy” to a “social
democracy” by ensuring three basic and fundamental goals: “a socially just, economi-
cally independent and politically sovereign Nation” (13, 19). The president particularly
insisted on the importance of guaranteeing that the “economically disadvantaged”
were “protected from the egoism, prepotency and exploitation of the economically
strong” (Sampay 1975, 478; Perón 2008).
In the end, the 1949 Constitution included features such as the following:
(1) A new understanding of human behavior, which (as in Vargas’s Brazil) aimed to
challenge the selfish liberalism associated with the original Constitution. In the
“Majority Report,” which was presented at the Constitutional Convention, and
which was written by the Commission that revised the 1853 Constitution, Arturo
Sampay objected to the old “liberal philosophical anthropology.” The liberal view,
he claimed, was based on an “angelic conception of men, derived from the liberal-
ism of Descartes and Rousseau,” which proposed to free individuals from “exter-
nal restrictions” so as to allow them to act according to their “free will” and their
“innate goodness.” Against the liberal view (which, he added, produced a “lamen-
table sociological reality” based on “the concentration of wealth in a few hands”),
he proposed embracing a different, anti-individualist view, based on the interven-
tion of the State in the economy and directed at achieving the “common good.”26
(2) A renewed philosophy, based on the teachings of Aristotle and Saint Thomas. This
philosophy was clearly influenced by the Vatican’s Social Doctrine and the value
of “social justice” (which was interpreted according to the views of the Catholic
Church).27 In line with these theoretical principles, Sampay criticized the old
Constitution and proposed the adoption of a new jurisprudence that recognized
“Christianism” as “the law of the country.”28 The presence of this philosophy helps
to explain the particular content of the social clauses of the new Constitution,
which included a new reading of the right to property and its “social function” and
an unprecedented list of social rights (with the remarkable omission of the right
to strike).29 At the same time, the 1949 Constitution included numerous clauses
in defense of economic nationalism. In this way, and for example, it incorporated
the significant article 40,30 which would remain as the symbol of this new nation-
alist conception.31
(3) A strong commitment to Christian morality, which explained the clearly perfec-
tionist features of the new Constitution. This view was manifested, for example,
in the notion of the “Christian family,” which the Constitution defined as rep-
resenting the essence of the new society.32 For that reason, the Report added,
the constitutional reform would be mainly directed at “providing support and
strengthening the family, conceived of as the primary social nucleus.”33 For the
new Constitution, society was going to be treated “not as a mere collection of
individuals, but rather as a congregation of families.” The new document aimed to
work for “the consolidation of the spiritual and moral principles” that it assumed
were necessary for living together.
(4) A political conception organized around the personality of the leader.34 Notably, the
Majority Report reserved a special section for justifying the importance of con-
centrating power in the Executive. According to it, “historical experience dem-
onstrates that the weakness of the Executive and the atomization of power in
Parliament open the path to totalitarianism, which can be seen as a reaction
against the political system’s incapacity to act, in a moment where it was impor-
tant to have a strong State intervening in the economic, social, and cultural
domains” (489‒90).
Both the example of Perón in Argentina and Vargas in Brazil became enormously sig-
nificant in the history of Latin American constitutionalism. They represented a new
and in certain ways “successful” way of combining a novel commitment to social rights
with a more traditional commitment to centralized political authority.
The Alternative of an Exclusionary Compact

In this section we shall examine a new alternative response to the social crisis of the
beginning of the century, which was based on an exclusionary political compact. We
could characterize these compacts because of what they usually included (an agree-
ment between the dominant political forces), what they usually excluded (leftist polit-
ical forces), and what they mainly came to prevent (extreme uses of State violence
and also the radicalization of society). This alternative response to the crisis repre-
sented the most explicit attempt to re-edit the old liberal-conservative compact of
the nineteenth century. As in the old example, the new compact wanted to favor rapid
economic growth and at the same time contain social conflict. For dominant sectors,
the decision to go for this (exclusionary) agreement implied the recognition that the
authoritarian response, which they had explored on other occasions, was no longer
satisfactory.
In what follows, we shall concentrate our attention on the two most significant
exclusionary compacts that were celebrated in Latin America during the first part of
the twentieth century.35 These are the compacts of Punto Fijo in Venezuela and the
one of the Frente Nacional in Colombia.36
The Punto Fijo Compact in Venezuela

The Venezuelan compact of Punto Fijo came after the end of Marcos Pérez Jiménez’s
cruel dictatorship. Its main objective was to prevent the installation of a new military
regime.37 In that context, the main leaders of the dominant political parties, namely
the Alianza Democrática (AD), the Social-Christian Party or Comité de Organización
Política Electoral Independiente (COPEI), and the Unión Republicana Democrática
(URD), got together in New York, with the goal of reorganizing the public life of the
country. In the meeting there were present, among others, Rómulo Betancourt, Jóvito
Villalba, and Rafael Caldera, who were at that time living in exile in the United States. In
their first important agreement, which became known as the “Pact of New York,” they
decided to work together for the introduction of substantive political changes. Some
time later, October 31, 1958, the leaders signed the Pacto de Punto Fijo, from which
they excluded the Venezuelan Communist Party (Partido Comunista de Venezuela,
PCV). The decision was, from a certain viewpoint, surprising, given that the PCV had
taken a decisive role in the fight against Pérez Jiménez’s dictatorship.
Through this contract, the signatories agreed to join forces in favor of three main
issues: (1) presenting a common minimum program; (2) respecting the electoral pro-
cess (that is to say, not to resort to coercive means in order to resist the electoral
results); and (3) creating a coalition government where none of the three parties con-
trolled the Executive branch by itself.
Shortly after the signing of the compact, Venezuela held national elections
(December 1958), where Rómulo Betancourt was elected president of the country.
Two years after, the URD abandoned the coalition, which allowed for the creation of
a virtually two-party political system. In this way, and thanks to their political agree-
ment, the AD and the COPEI shared power and distributed political positions between
them during the following decades and until 1993 (in actual practice, until 1999, when
Hugo Chávez came to power).
During this period, the main political forces enacted a new constitutional docu-
ment, namely the 1961 Constitution. This new legal document would be in force for
thirty-eight years, thus becoming the most stable Constitution in Venezuela’s con-
temporary history. Sanctioned during Rómulo Betancourt’s government, the new
Constitution was only abrogated in 1999, after a national referendum. Throughout its
life it received two important modifications: the first one in 1973 was an Amendment
that prevented the former dictator Marcos Pérez Jiménez from running for president;
and the second one, in 1983, introduced some significant changes in the electoral
system.
Partly based on the 1947 Constitution (which was abrogated by Pérez Jiménez
in 1953), the 1961 document established a presidentialist system with no immedi-
ate reelection (although it permitted the president’s reelection after two periods).
It also authorized the president’s impeachment by the Supreme Court (which actu-
ally occurred in 1993, against President Carlos Andrés Pérez). The Constitution also
expanded the president’s power to intervene in economic matters (these powers would
be augmented even more shortly after, through reforms that allowed the State to get
control to the main natural resources). At the same time, the new constitutional docu-
ment strengthened its profile in favor of welfare (for instance, through expansion of
the existing list of social rights).
In addition, the Constitution reserved significant legislative powers to the presi-
dent (particularly through the use of legislative decrees), although it also established
some new legislative controls over the Executive. Among these controls, we may
highlight the Senate’s capacity to evaluate the president’s main appointments in the
Army or in the Foreign Service. Moreover, the Legislative was allowed to supervise
some key presidential decisions, such as those of sending military forces abroad
or the launching of expropriations. The presence of these particular constitutional
features favored the idea that Venezuela enjoyed a system of “mixed presidential-
ism” (we must also remember, e.g., the Legislative’s capacity to censor and remove
ministers, which appeared in Venezuela as early as 1864). Most of these controlling

faculties, however, would disappear in 1999 with the arrival of a new Constitution.
By that time, the existing political system, which had in fact favored the concentra-
tion of powers in the hands of certain political oligarchies, was basically dissolved.
This was so, particularly, after two crucial political conflicts that took place during
Carlos Andrés Pérez’s last presidency: the so-called “Caracazo” (a set of violent social
protests that took place mainly in the Capital, after the president announced a new
economic adjustment, which was followed by hundreds of deaths after armed repres-
sion); and two attempts at a military coup, which took place in 1992, before President
Pérez was forced to step down from power. According to some commentators, the
process of popular mobilizations that reached its highest point with the “Caracazo”
“put an end to the Constitution of 1961, which had been the product of the Punto
Fijo pact” (Pisarello 2010, 191‒92).
The National Front in Colombia

In the case of Colombia, the history of the exclusionary compact also began with
a cruel dictatorship, which was led by General Gustavo Rojas Pinilla. Trying to put
an end to this extreme version of authoritarianism, leaders of the political oppo-
sition began to get together and proposed the construction of a Frente Nacional,
or National Front. The main figures behind the agreement were the conservative
leader Laureano Gómez and the liberal Alberto Lleras Camargo, who was also the
head of his party. One of the foundational meetings of the Front was celebrated
in Benidorm, Spain. At that reunion, the opposition leaders recognized their own
responsibility in the prevailing situation of political crisis and began to imagine
a way out from authoritarianism. As in the Venezuelan case, they also proposed
a political mechanism that would allow the opposition forces to share power and
political responsibilities in the coming years. One crucial objective of the compact
was to avoid the opening of a new cycle of political violence. Shortly after this first
accord, a new agreement was signed in the city of Sitges. On this occasion, the lead-
ers of the opposition decided to distribute power between their parties during the
coming years. In addition, they decided to call for a plebiscite in order to provide
the new compact with a broader base of popular legitimacy. Thus, when Dictator
Rojas Pinilla finally abandoned power, a military Junta took his place, and ruled the
country until August 1958. After this transitional period, the government convoked
a national plebiscite, as agreed.
Most of all, the compact between liberals and conservatives came to ensure peace
and political stability. For that purpose, two main and crucial solutions were pro-
posed: “parity” and “alternation.” Parity implied the equal participation of each of the
parties in governmental functions. Meanwhile, alternation referred to their succes-
sive access to the presidency of the Republic. The idea was that during a period of
twelve years, the Liberal and Conservative parties would alternate in the presidency,
in a way that implied two periods of government for each of the parties. As a con-
sequence of the compact, Alberto Lleras Camargo was elected as the first president
of the National Front. After him, there followed Guillermo León Valencia in 1962,
Carlos Lleras Restrepo in 1966, and Misael Pastrana Borrero in 1970. As anticipated,
the Front excluded political forces from the Left—that is to say, it excluded not only
revolutionary groups but also reformist political options. As one author maintained,
the compact between the dominant forces consecrated in the end “the doctrine of the
shared hegemony, the parity between liberalism and conservatism, and the total nega-
tion of the electoral and political rights of those who were not affiliated to the official
parties” (García 1977, 210).
The 1957 plebiscite was approved by more than 90 percent of the voters. It estab-
lished the principle of alternation between the two main parties for a period of
twelve years, and defined that the first elections would be held in 1958. Another
constitutional change, which took place in 1958, extended the alternation pact for
a total of sixteen years (that is to say, until 1974). It also established that the first
presidency would be occupied by a liberal, rather than a conservative politician, as
initially established. In 1968, the government of Lleras Restrepo promoted new
constitutional changes, which anticipated the end of the old compact. Although the
novel constitutional change was mainly directed at economic matters (the figure of
“economic emergency” was then created, which gave the president additional eco-
nomic powers in times of crisis), it also introduced some modifications with regard to
the National Front agreement. Mainly, the reform opened some room for the inter-
vention of minoritarian groups in politics and tried to guarantee that the party that
came second in the elections, after the end of the agreement, also obtained an “equi-
table” participation in government. The idea was to preserve the “spirit” of “shared
government” after that ending.
How should the working of the exclusionary agreement be evaluated? It is true
that the agreement brought political stability to a country deeply marked by politi-
cal violence and instability. However, it is also true that the compact brought with it
significant problems. According to a Colombian thinker, the National Front compact
provoked feelings of exclusion and apathy in vast sectors of the population. Electoral
abstention, for instance, rose to around 50 percent during those years (Gutiérrez
2007, 107‒9). Similarly, the historian Halperín Donghi claimed that the compact
came to “freeze . . . the Colombian political life under the control of the liberal and con-
servative oligarchies,” which would occur in the following sixteen years. In his opinion,
the alliance, which at first “was seen as an instrument for the broadening of the politi-
cal realm and the democratization of society,” became then “an instrument working
just in the opposite direction,” this is to say for the consolidation of an elite compact
(Halperín Donghi 2007, 419).
The Socialist Alternative

In this section we shall make brief reference to two remarkable expressions of the
socialist response, which appeared in Latin America during the mid-twentieth
century. The first of these expressions has to do with the triumph of the Cuban
Revolution (January 1, 1959), led by Fidel Castro, which put an end to the dictatorial
regime of Fulgencio Batista. The second is the one that appeared after the surprising
triumph of the socialist leader Salvador Allende in the presidential elections of Chile
in 1970.
Constitution and Socialism in Cuba after the Revolution

The Cuban Revolution took place in a context of political extremism and social effer-
vescence throughout Latin America and the Caribbean. First of all, it was in those
years that the United States exported the politics of “McCarthyism” and “anticom-
munism” to the entire region, which normally implied the adoption of dire political
measures against the Left. Second, also in those years, the United States promoted a
military intervention in Guatemala, designing and executing a military coup (1954)
against the government of Jacobo Arbenz, which created some additional tensions in
the region. Arbenz was accused of developing a radical program of agrarian reform,
and the United States feared that Guatemala would become a territorial basis for the
operation of the Soviet Union in the region. The pressures of the United States in the
area thus increased, particularly in Central America and the Caribbean. Moreover, it
was also at that time when the Bolivian Revolution of 1952—“the most extraordinary
event in the entire history of the country,” according to Zavaleta Mercado—took place
(Zavaleta Mercado 1984, 99).38 The Bolivian insurrection seemed to demonstrate that
in order to achieve a successful revolutionary movement, an ample social coalition
was required—one that incorporated different social sectors and different ideologies,
rather than simply extreme expression of the radical Left (Angell 1994, 195).39
In such a context, the triumph of the Cuban Revolution appeared as yet another
remarkable event, which immediately provoked a political commotion in the region.
Even though there are numerous aspects of the Revolution deserving a close analysis,
in this section we shall mainly concentrate our attention on the relationship between
the Cuban Revolution and constitutionalism.
The first constitutional norm that prevailed in Cuba during the socialist era was the
one of 1959, which would be in force until the enactment of the 1976 Constitution.
The 1959 Constitution challenged the constitutional precedents of 1901, 1934, and
1940, which had opened the door to attenuated versions of presidentialism. The 1901
Constitution, which seemed to be inspired by the liberal US Constitution, adopted the
traditional political organization based on the notion of “checks and balances”—but with
some changes, such as the concession of some additional powers to the president. That
Constitution also became famous for the inclusion of the so-called Platt Amendment,
which was incorporated to its text in February 1901.40 During more than three decades,
the Amendment was used for “establishing and expanding the hegemony of the United
States in Cuba,” and thus became a “visible symbol and a provocative expression of U.S.
ascendancy” (Pérez Jr. 1986, 336, 338). The 1934 Constitution, instead, created a differ-
ent Executive power that was based on a president and a Council of Ministers.
By contrast, the 1940 Constitution was inspired by the Spanish 1931 Constitution
and the Weimar Constitution. It was also defended by Fidel Castro before the tri-
umph of the Revolution, in well-known texts such as La historia me absolverá and the
Manifiesto de la Sierra. The Constitution appeared to be one of the most interesting
consequences of the 1933 Cuban Revolution, by which General Machado was thrown
out of power (Castro 1957). Considered to be “one of the more liberal and progressive
Constitutions ever written in America,” the 1940 Constitution “was an attempt to
establish both in history and on paper what the 1833 Revolution had not managed to
implement in practice” (Farber 1976, 94, 96).
With the instauration of the new revolutionary socialist regime, however, the prev-
alent constitutional organization suffered radical changes. According to an early com-
mentator, the new regime made an attempt at transforming “aristocratic democracy”
into a “Rousseauistic” democracy (Frondizi 1961: 154‒55). In constitutional terms,
however, what Cubans wanted was different: they wanted to make a transition from
the traditional system of separation of powers to a different one, based on the idea of the
“unity of power.” Socialist constitutional theory, it was said, was incompatible with the
idea of the separation of powers (Azcuy 2010, 214).
In February 1959, the government introduced fundamental modifications in the
organization of power (which would be very much in line with those that would come to
distinguish Latin America’s radicalism in the twentieth century). Above all, the govern-
ment concentrated powers in the Executive branch as a way of ensuring the imposition
of social changes “from above.” The arguments in support of this extreme concentration
of power were many, including the need to establish the “dictatorship of the proletariat”
(thus initiating the transition to socialism) and the need to resist the menaces coming
from external threats.
In part, the new Constitution reproduced the organization of powers already estab-
lished in the 1940 Constitution, through the creation of a presidential structure com-
posed of the Executive power and the Council of Ministers. However, the Constitution
also introduced some important changes to the traditional structure. Now, “Congress
was suppressed and the Legislative power appeared in the hands of a Council of
Ministers, which in fact strengthened the powers of the president, who was in charge
of appointing those ministers” (Valencia Carmona 1979, 91). Actual practice, in addi-
tion, made this situation still more extreme because Fidel Castro became in charge
of the exercise of the Executive functions: he appeared as “the Commander in Chief,
the First Minister, the First Secretary of the Revolutionary Organizations (ORI), and
the main popular leader” (Valdés Paz 2009, 109). In less than three years, the new
regime replaced the entire Army Forces for new ones, created a new institutional sys-
tem, changed the composition of the State bureaucracy almost completely, organized
popular masses for the defense of the Revolution, nationalized the economy, displaced
the old dominant economic power, and created a new media system (123‒24). The
Revolution thus consecrated a system of extreme concentration of power and gave
form to a single-party system (124).41
The 1976 Constitution, which received the support of a popular referendum, intro-
duced some changes in the original constitutional organization and put the system
more in line with the Soviet 1936 Constitution. In particular, the new document
stressed the role of the Communist Party, organized a planned economy, and estab-
lished free health services and education. In addition, the new Constitution created a
Council of State, a Council of Government (which belonged to the Executive branch),
and a National Assembly of Popular Power (a legislative institution).
The 1976 Constitution deserves special attention for different reasons. For exam-
ple, this is the first American Constitution that explicitly adhered to the socialist creed
(art. 1 maintains that Cuba is a “socialist state of workers”). The Constitution also
declared to be guided by the ideas of Marx, Engels, Lenin, and also Latin American
independence leaders such as José Martí (Preamble). In addition, the Constitution
organized an economic system based on the collective ownership of the means of
production (art. 14 reads: “In the Republic of Cuba rules the socialist system of econ-
omy based on the people’s socialist ownership of the fundamental means of produc-
tion and on the abolition of the exploitation of man by man”), and defined for the
State an active and non-neutral role in the areas of Culture and Education (Chapter
V of the Constitution). Regarding the organization of power, the Constitution also
included some uncommon features, such as the right to recall most public officers
(according to art. 68, for example, “those elected must render an account of their work
and may be revoked at any time”).
Constitution and Socialism in Chile after Allende’s Victory

The experience of government of the Unidad Popular in Chile was very different from
the one of Castro in Cuba. Allende became the president of the country after a process
of transparent elections, where he obtained 36 percent of the total votes. The election
was also scrutinized by different external organizations (coming particularly from the
United States, which was involved in the “Cold War” and was closely following the
political evolution of the region after the Cuban Revolution).
The opposition parties began to act as if each step of the new administration
implied a direct or indirect defiance to basic individual (and particularly property)
rights. In fact, and as a consequence of the political tensions generated by the election,
Allende was forced to sign a Statute for Constitutional Guarantees, before assuming
government. The opposition obliged Allende to do this as a precondition for providing
him with the congressional authorization that he needed in order to become officially
appointed as the head of government. Congress had to choose the president between
the two parties that obtained the majority of votes in the election. The tradition indi-
cated that Congress had to simply accept the first majority, but the apprehension
generated by the Unidad Popular moved them to challenge the traditional procedure.
Allende finally accepted signing the Statute of Guarantees, through which he commit-
ted himself to preserving basic liberties and rights. The Statute imposed strict obliga-
tions upon the new government, particularly with respect to the rights of freedom of
expression, assembly, and education. In addition, the government committed itself
to compensating proprietors in case of expropriations (which were included in the
party’s electoral program).
Allende managed, at least at the very beginning of his mandate, to advance some
important measures, including those concerning the nationalization of copper, the
nationalization of private companies, and an agrarian reform. In addition, and in
order to provide these initiatives with a broader legal support, Allende promoted a
constitutional reform, in 1971, which was concentrated in article 10 of the document.
The reform came in support of the government’s main economic initiatives. Among
other things, it cleared the way for agrarian reform and declared that natural resources
belonged to the State. In addition, it made it easier for the State to afford its economic
obligations after nationalizing or expropriating private companies.42
Allende had a difficult relationship with the legal world during his entire man-
date. Ultimately, these tensions were another important expression of the heated
legal, academic, and political debates that characterized the region, particularly after
the Cuban Revolution.43 The fact is, however, that the Supreme Court led one of the
most severe institutional disputes with Allende’s presidency. The conflict between the
Executive and the Court became manifested in a strong exchange of discourses and
letters between the two. On May 26, 1973, the Court wrote a letter to the president,
maintaining that:
This Supreme Court feels obliged to address (the president, once again,
given) the illicit attitude of the administrative authority, which consists of
illegally interfering with judicial affairs, and also in putting obstacles to the
police when the latter is trying to fulfill its obligations, following the com-
mands of the Criminal Courts. . . . [These] attitudes not only put the rule of
law in crisis, but also suggest the imminent or peremptory breakdown of the
nation’s legality.
In a speech that followed immediately after the Court’s letter, Allende tried to reaf-
firm his authority and stated: “In times of revolution, the political power has the
right to decide whether judicial decisions correspond, or not, to the high aims and
historical needs for transforming society, which must take absolute priority. As a con-
sequence, the Executive has the right to decide whether he enforces the judicial deci-
sions or not.” Later on, in a letter published on August 23, 1973, the Court expressed
its disagreement with the president, maintaining that it was its duty to respond to
the Executive, given that the president insisted on “distorting the law, exaggerating
the transcendence of the administrative task and undermining the judicial function.”
Undoubtedly, the conflict with the superior tribunal severely affected the respectabil-
ity and authority of the president, particularly within politically influential groups.
The relationship between the Executive and Congress was also extremely tense.
Congress was implacable in relation to many of Allende’s most important measures.
For example, Chile had, at the time, a well-established practice of legislative delega-
tion from Congress to the Executive (a practice that had become the rule during the
governments of Carlos Ibáñez and Eduardo Frei). In spite of it, however, the opposi-
tion consistently denounced Allende’s government for exceeding its legal capacities,
and at the same time established limitations to its capacities to decide (Cristi and Ruiz
Tagle 2006, 127). In June 1973, for example, Congress sanctioned a constitutional
reform (the so-called “Hamilton-Fuentealba” reform), which strictly limited the gov-
ernment’s capacities to carry out expropriations.
Undoubtedly, the peak of the legislative actions against the president appeared in
August 1973, when the Chamber of Deputies published an “Agreement” whereby it
denounced the “grave breakdown of the constitutional order and the legality in the
republic.” According to the legislative majority, the government “had not incurred in
isolated defilements of the Constitution and the law, but rather in a systematic prac-
tice of violations.” The president, it added, “has ignored and encroached on the attri-
butions of the other branches of power, usually through the violation of the existing
constitutional guarantees . . . and the creation of parallel, illegitimate powers.”44
Allende responded to this legislative declaration by claiming that the Agreement
ignored and finally denied the very existence of the Constitution. However, the end
of the government was already defined, and on September 11, 1973, a military coup
commanded by General Augusto Pinochet put an end to the unique experience of a
socialist government elected through popular suffrage. Tragically, President Allende

decided to end his life while the military coup was taking place.45
The examples of Cuba and Chile became the mirrors in which all leftist movements
in the region have found inspiration since the mid-twentieth century. The Cuban
Revolution showed that it was actually possible to organize the political and economic
life of a country in a way that defied traditional arrangements. The initial, inspiring
promise of Cuba, however, became more opaque after the passing of time, as a con-
sequence of external political pressures, internal economic crises, and also the abuses
committed by the ruling elite. Meanwhile, the socialist government in Chile helped to
confirm the severe limits faced by the socialist alternative, in the context of internal
and external political hostility.46
* * * *
The Left and the Constitution: A Fundamental Change

in Democratic Radicalism
The role of radical groups in the new century varied, from time to time, and from
country to country. What is clear, in any case, is that the old ideas, now renewed and
more extreme, had become for the first time attractive to large social sectors and were
capable of seriously challenging the dominant political order. The Latin American Left
had, then, its first participation in electoral politics through different socialist parties.
In addition to these socialist parties, in the new century there also emerged different
activist groups, including some linked to anarchism, communism, pacifism, or indi-
genism that vehemently irrupted in the social and political scene.
There were, of course, important lines of continuity between the old nineteenth-
century radicalism and its renewed, twentieth-century version. Most significantly, the
old and new versions of radicalism shared some egalitarian ideals, their decision to
serve the interests of the most disadvantaged, a certain confidence in majoritarian
politics, a preference for more direct forms of democracy, an animosity both against
conservatism and liberalism, a willingness to fight for the expansion of political rights,
and a common concern for the so-called “social question.”
In addition, the radical Left maintained an interest in changing the established
“rules of the game,” which explains why it always showed a critical attitude toward
constitutionalism. Gradually, however, the Left began to adopt a more skeptical view
of the law and finally broke relationships with it. There are many reasons capable of
(at least partially) elucidating this sad outcome. Perhaps the Left considered, after
so many bad experiences, that dominant groups only appealed to a democratic and
legalistic rhetoric in order to mask the use of brute violence against their political
representatives. Perhaps leftist activists recognized that the law was only or mainly
at the service of maintaining existing inequalities. Perhaps the Left simply subscribed
to the traditional leftist doctrines that treated the law as a mere superstructural
epiphenomenon, which depended on structural and fundamental economic rela-
tionships.47 Clearly, this view became extended in the entire region when Marxism
became more influential as a political ideology, and particularly after the triumph of
the Cuban Revolution. In those years, for example, leftist authors referred to consti-
tutional clauses as “mechanisms . . . of the juridical supra-structure” (Escasena 1984,
129), stated that the Constitution merely “ratified the existing economic and political
relations” (Peraza Chapeau 1986, 184), described its content as the mere “reflect[ion
of . . . ] the socioeconomic reality” of the country (Fernández-Rubio Legrá 1985, 53‒54,
emphasis added), or as a mere mirror of reality (Palacios Barrera 1988). Some others
made a distinction between “the formal constitution” (the text) and the “real constitu-
tion” (the material, external reality) (Alvarez Tabio 1985, 13).48
The fact is that, through most of the twentieth century, the political Left and
the law became decoupled and ended up operating in different realms. The situation
remained basically the same for a long time, at least until the end of the century,
when, after a long period of atrocious dictatorships, the Left began to rearticulate
its links with constitutionalism and human rights. Thus, by the end of the twentieth
century, and after decades of suspicion against the law, the Left opened itself again to
constitutionalism.
This final alteration came to complement some other, rather curious developments
in the radical and leftist approach to the law, which took place in the last decades of
the twentieth century. First of all, the Left (or at least an important part of it) seemed
to have substantially abandoned (or substantially modified) its long-standing concern
with the “social question.” Oddly, perhaps, the Left seemed to have learned to speak
the liberal language of rights. (We shall come back to this point in the following chap-
ter.) This was now the language that the same Left spoke when it had to say something
about the social needs of the poorest, or the social protections required by the most
disadvantaged. The Left found itself demanding the inclusion of new and more ample
social rights in the Constitution, which it had never done before, at least in that fun-
damentally formalistic way. The notion of social rights seemed to have taken the place
of its traditionally more complex and substantive approach to the “social question.”
In this way, also, the Left favored the judicialization of problems that were funda-
mentally political and also contributed to the individualization of conflicts that were
fundamentally collective.
The changes in the Left’s approach to constitutionalism were still more serious
than the ones just described. In effect, and according to what we examined in pre-
vious pages, the radicals’ traditional view suffered from additional and substantive
changes (not only in its approach to rights but also in its approach to the organization
of power). The unequivocally anti-presidentialist, democratic, and federalist concep-
tion had muted now into a completely different (almost opposite) one. In effect, while
in the nineteenth century radicals had (almost) always fought for the democratization
of power, by the end of the twentieth century many radicals and leftists began to
advocate for (or at least tolerate) the concentration of power in the Executive branch.
In this way, radicals seemed to subscribe to the traditional conservative claim concern-
ing the institutional system.
Of course, to state this does not imply that the profile of the new constitutions
that shone in the first half of the twentieth century (constitutions that were very
strong regarding social rights and conservative in the organization of power) was due
mainly to the pressures of the Left. Quite the contrary, cases such as Perón (faced with
a radicalization of the Left, according to Waisman 1987) and Vargas (who confronted
Luis Prestes’s forcers), and the conservative compacts of Colombia and Venezuela
(covenants that were exclusive of the Left) refer to a new constitutionalism with some
social rhetoric, but decidedly anti-leftist in reality.
It is not clear why the Left changed its traditional view, particularly concerning
the organization of power, so profoundly and in such a short time. The changes may
have been the product of multiple, different factors, including ignorance, lack of inter-
est, and also the disgraceful fact that many of its more lucid minds became victims
of prosecution and violence—which actually prevented the Left from deepening its
analysis of the institutional system. On other occasions, the Left’s defense of the cen-
tralization of power seemed to merely respond to a certain “division of labor” with the
dominant political forces. The Left seemed to have concentrated its attention on the
social aspects of the Constitution—its Bill of Rights and the expansion of its social
rights, in particular—while dominant forces would have kept control of the design
or redesign of the “organic” part of the document. In addition, examples such as the
Cuban Revolution seemed to teach that the concentration of powers was a necessary
precondition for setting in motion the types of changes required by the Revolution
(Azcuy 2010, 284, 290).49 (Examples such as the case of Cuba, in which the polemic
had been renewed about whether or not it was necessary to concentrate power in
order to promote social change. In the past, Marx had been against that alternative
and had harsh criticism of the leader Simon Bolivar.) For Marx, Bolívar represented
another disgraceful example of Bonapartism).50 Moreover, some contemporary theo-
rists have maintained this point, asserting that the concentration of power was neces-
sary, on occasion, to make possible the breaking of the net of interests that prevented
the expansion of popular power (Unger 1987; Nino 1993).51
In any case, we should add, the Left tended to ignore the lessons taught by its
ancestors, who, with good reason, had always warned of the risks derived from the
concentration of authority in one or a few. In that way, they claimed, the main respon-
sibilities for social change became dependent on the goodwill or good disposition of
a small (and normally unchecked) minority. Curiously, by the end of the twentieth
century, the strong radical view maintained during most of the nineteenth century by
radical activists seemed to have changed completely—it looked like liberalism, con-
cerning the Bill of Rights; and it looked like conservatism, concerning the organiza-
tion of powers.
7
Grafting Social Rights onto Hostile

Constitutions
Introduction: The Old and the New Law

An old metaphor used to understand legal reforms describes current law as a large and
tranquil lake, and legal reforms as leaves that fall onto that lake. These reforms, like
leaves, rest atop the existing law (the peaceful lake) and seem, at first, to be alien to it.
For a long time, the new law and the old seem like distinct bodies and each maintains
its own identity. Similarly, the leaves float on the lake, unharmed, as though they have
not realized their contact with the lake. However, time passes and, little by little, the
makeup of the new law changes—the leaves give in—and the interior architecture of
the reform begins to lose strength. Little by little, reforms that seemed like foreign
bodies to the old law begin to modify their texture to resemble that of the law on
which they rest. Time passes and the reforms, like damp leaves, no longer appear to be
distinct bodies. Now, the old law and the new, just like the lake and the fallen leaves,
create one body.
However, are these images really appropriate for thinking about the links that are
created, slowly, between old and new laws? The noted conservative jurist Andrés Bello,
enormously influential in the region, seemed to conceive of the relationships between
the new and the old law, according to similar lines and images. He refused to see the
community’s laws as clear expressions of the “habits and sentiments of the peoples”
(Bello 1997 19:166‒67). By contrast, he believed that the most common situation
was rather an opposite one, which implied a mixture between the community’s norms
and aspirations, and the norms and aspirations of other communities. The slow pro-
cess of mixture between the local and the foreign law tended to reproduce the process
described in the metaphor of the leaves and the lake. He said:
The ideas of a people get incorporated to the ideas of another people; and los-
ing one and the other their purity, what was at the beginning a mere aggre-
gate of discordant parts becomes, little by little, an homogeneous whole,
which will resemble in different parts to its particular origins, and which
from another viewpoint will present new forms. From the clash of these
diverse ideas will emerge an outcome, which will resemble more or less one
of its particular components, according to the intensity of the received influ-
ences, and the circumstances that favored them, respectively. (19:166‒67)
132
Grafting Social R ights onto Hostile Constitutions 133
Again, what we find here is a situation where—as in the metaphor—different materi-

als, coming from different places, begin to interact until they constitute a new, inte-
grated element, different from its original parts, and which is not the mere aggregate
of its original parts.
A cursory look at this metaphor suggests a more-or-less quick and nonconfronta-
tional adaptation between the established body and the newly arrived one. The meta-
phor suggests it is just a matter of time until the process ends happily, with the smooth
integration of one part with the other, after both have given in and abandoned their
initial resistance. However enticing this view may be of the way links form between
current and new laws, a critical look at the process suggests different results.
In effect, it is important to note that the metaphorical image suggests a relation-
ship in which the old law, as a dominant body, establishes a clear role of predominance
over the body that arrives. This does not imply that reforms do not, like the fallen
leaves, have some impact on the current law. Nor does it refute the more interesting
observation that the mass of reforms can generate significant change in the long run,
much like a multitude of leaves can have a significant impact on the lake upon which
they fall. Nonetheless, nothing that has been said should prevent us from highlighting
the unequal character of the link established between the dominant body and the one
resting on it. It is the latter that suffers the greater impact—radically greater—and
that, shortly, adopts the former’s structure. It is this special weight of the greater body,
older and more vigorous, that I wish to emphasize. In other words, the metaphor does
not refer to a relationship between equals, but to the collision of two unequal forces,
where the weaker of the two will suffer the main impact.
More than that, the metaphor under examination requires us to go a little further
in our reflections. The example in question actually suggests that, after some time, the
new, incorporated body ends up virtually disintegrated (unless this is a continuous
process, where one leave falls after the other, which may end up substantially affecting
the nature of the lake). In this more common, case it would be a misunderstanding to
talk about a process of mutual integration, rather than of a different process, where
the dominant body ends ups imposing its dominion upon the newly arrived body.
This idea, in fact, is present in Andrés Bello’s reflection on the topic. Bello assumed
that “from the clash of these diverse ideas will emerge a resultant, which will resem-
ble more or less one of its particular components, according to the intensity of the
received influences, and the circumstances that favored them, respectively.”
In the following pages, we shall focus on this process of unequal legal integra-
tion where, in principle, all indications suggest that existing legal practices tend
to impose their force on new ones. To do this, we shall consider perhaps the most
important example, in terms of mixture of different legal traditions, that is offered by
the Latin American region: the incorporation of social rights into the framework of
Constitutions that were hostile to the social demands creating those rights.1
Three Questions for Constitutional Theory

The operation of “constitutional grafting”—in this case, the attempt to incorporate a
radical social profile into a liberal-conservative model—creates significant questions
for constitutional theory. In the face of these complexities we shall explore three ques-
tions of the many that are possible.
(1) The first refers to a question regarding the internal influence of a particular con-
stitutional graft. Our starting point, in this case, will be the following insight in
order to ensure a successful reform, we need to pay particular attention to the
ways in which that reform may affect the same modified constitutional structure.
That is to say, we should not only focus our attention on the ways in which the new
Constitution impacts upon the “external world” (i.e., the way in which the intro-
duction of new rights expands the scope of personal liberties) but also explore
how changes introduced in one part of the Constitution affect other parts of it.
For example, we will explore how an extension in the list of enumerated rights
may provoke changes in the structure of government, say, by actually transferring
more powers to the Judiciary; or how a change in the organization of power—
say, the introduction of a new Judiciary body, like a Constitutional Court—may
change that same organization of power, for example, by reducing the actual
capacities of the existing Supreme Court. We shall make reference to these cases
through the notions of crossed impact and internal impact of the reforms.
(2) The second question that we shall examine will take us to reflect upon problems of
constitutional translation. Our main question, in this case, shall be the following:
When we reform the existing Constitution—which belongs to a certain model of
constitutionalism (say, a conservative Constitution that concentrates the author-
ity in the Executive)—by introducing institutions that are characteristic of a dif-
ferent constitutional model (say, a typically liberal institution, aimed at restricting
the powers of the Executive), what should we do in order to “translate” the new
institution into the “language” of the old constitutional order? Our concern is
that most constitutional reforms are carried out as if we had only one, single,
constitutional “language”—as if the exercise of “constitutional translation” were
unnecessary. In this way, we tend to minimize or underestimate the particular
efforts required for ensuring a successful graft.
(3) Finally, our third question shall be related to the problem of the dormant clauses.
In this case, we will be thinking about the introduction of new institutions that
(beforehand) we knew would have serious difficulties for being set into motion
(i.e., a new set of so-called “aspirational” rights). How should a sensitive reform
proceed in this situation? Should we bet on these novelties (say, new social rights),
hoping for a change of external circumstances? Should we abandon that initiative
so as not to transform the Constitution into “mere poetry”?
In what follows, we will examine each of these cases in more detail.
On the Possibilities of a Successful Constitutional Graft:

Internal Impact, Crossed Impact
The first question that we shall deal with leads us to look at the influence of con-
stitutional reforms within the internal dynamic and organization of the reformed
Constitution. The topic has particular importance given that, remarkably, at the time
of reflecting upon and evaluating the impact of a particular constitutional reform, we

tend to merely focus on the “state of the word” “outside” the Constitution. That is to
say, we tend not to pay attention to the meaning of that reform in relation to the same
constitutional structure.
There are at least two types of influences that it makes sense to distinguish and
examine, given that all Constitutions contain two parts: a dogmatic one that includes
a declaration of rights and an organic one that divides and organizes power. On the
one hand, it is logical to focus attention on the way the reform inserted in a certain
section of the Constitution impacts the internal structure of that same section. This is
the “internal impact.” On the other hand, it makes sense to explore the way in which
the reform inserted in a certain section of the Constitution (for example, a reform
in the area of rights or a reform in the area of the organization of power) impacts
the other section. This is the “crossed impact.” In what follows we shall be mainly
concerned with the impact that reforms in the rights sections tend to have over the
section dedicated to the organization of power.
Having said this, let us think about the internal impact of reforms—that is, the
way in which a reform to one section impacts the internal structure of that same con-
stitutional section. As an example, think of the introduction of a constitutional court
or magistracy council within Constitutions already endowed with a designated judicial
organization under the authority of a supreme court. When reflecting on this type
of reform and evaluating its efficacy, it is not enough to pay attention to the way in
which the new institution is organized or how it works. That is, it is not enough to ask
important questions such as whether it will be adequately staffed or financed. It is also
particularly important to ask how the new judicial institution will interact with the
other constitutional institutions that comprise the extant framework.
Certain questions, in particular, turn out to be particularly revealing and promis-
ing in this respect. For example, what institution previously carried out the functions
that the new institution—call it X—will now carry out? What institution will have
its operative capacity or decisional authority affected by X’s arrival? These inquiries
are important in principle, much beyond what practice may reveal their answer to be.
The point is that when it comes time to promote a reform in the organic part of the
Constitution, the main resistance to newly arrived institution X can come from within
the existing constitutional structure. That is to say, it is foreseeable that the organic
reform may be affected by resistance from an existing entity or individual—for exam-
ple, from a public official—that is directly impacted by the introduction of the change
in question. It is not unforeseeable, in this sense, that the more institutions and public
servants are affected by the change, the greater resistance the newly adopted institu-
tion will have to face.
A good illustration of this phenomenon can be found in the example of the
so-called “train wreck” in Colombia, which pitted the old Colombian Supreme Court
against the Constitutional Court introduced by the Constitution of 1991.2 Both insti-
tutions maintained for years a relationship of rivalry and tension, which started with
the birth of the latter and which has yielded persistent disputes over power, as well as
a noxious competition between the two courts (Cepeda 2007; Uprimny et al. 2006).
A similar example is offered by Argentina and the tensions that have arisen between
the old Supreme Court and the Magistracy Council, which was introduced by the 1994
constitutional reform (Garro 2007). Beyond the design problems of each of these
institutions and the fact that conflicts might have been minimized had their compe-
tencies been more clearly delineated, the truth is that the types of conflict that have
resulted were foreseeable from the moment contemplation of the new institutions
began. This is true even though events clearly suggest that such conflicts were not
actually foreseen. The failure to anticipate these conflicts suggests how little attention
is paid to what we called the internal impact of reforms.
Another interesting case of internal impact would relate to tensions at the inte-
rior of the section of rights of the Constitution and after the introduction of certain
novelties in the area. Imagine, for example, the case of a Constitution that incorpo-
rates new indigenous, multicultural, collective or group rights, and the possible ten-
sions that these kinds of moves generate regarding the more traditional structure of
individual rights. Here we may find significant difficulties for accommodating certain
new or renewed commitments with the collective rights of an indigenous group, and
the desired respect to the individual rights of the members of that same indigenous
group (a problem that Will Kymlicka examines through the categories of “internal
restrictions” and “external protections”; Kymlicka 1995). Similarly, we could think
about tensions originating between the strong social commitments assumed by the
new Constitutions and their more ancient or traditional clauses establishing strong
protections to property rights.3
Of course, like situations not only help us understand the tensions that appear when
a certain reform is put in place but also explain the difficulties that exist for introducing
constitutional or legislative changes of a certain type. In spite of its obvious character, we
tend not to think sufficiently about the way in which existing powers tend to block the
production of changes that may put in question their own practical capacities. Typically,
the Executive power will tend to block all those constitutional or infra-constitutional
changes promised by the Constitution, but capable of reducing the powers of the presi-
dency. This is, for instance, what happened in Bolivia, where the president severely
undermined the popular right to participate in the selection of judges (incorporated
in the 2009 Bolivian Constitution; see Veizaga Ovando 2010, 67; Quiroz and Lecoña
2012, 220‒45) by forcing the electorate to choose candidates coming only from a list
previously agreed upon by the president’s majoritarian party (Albarracín Sánchez 2011;
Asbun 2011). For those cases, we may foresee that the Executive will use his or her
legislative and veto powers against the threatening initiatives. Similarly, Congress will
tend to block the enforcement or implementation of those reforms capable of reduc-
ing or somehow challenging its own authority. This is, for example, what Demian Zayat
explains in the case of Argentina (Zayat 2011, studying the difficulties for implementing
the participatory clauses included in the 1994 Constitution). Not surprisingly, some of
the most significant or interesting reforms that appeared in the Latin American context,
in recent times, have been either the result of an explosive political context (as in the
case of Colombia 1991, see Lemaitre 2009), or a certain negligence on the part of legisla-
tors (as in the case of Costa Rica and the introduction of the Sala IV; see Wilson 2010).
We shall now discuss the crossed impact of reforms in the area of rights on the
organization of power. The impact of these reforms can vary based on many factors,
for example, if the reform in question is more or less comprehensive, if it operates on a
more or less consolidated structure, or if it can transcend the text of the Constitution.
One way to begin thinking about the possible impact of these constitutional reforms
is to pay attention to a series of persistent reflections that were carried out about the
subject, now years ago, by Argentine jurist Carlos Santiago Nino.4 Nino was interested
in calling attention to the paradoxical reality that followed the then-habitual modifica-
tions of Latin American Constitutions—modifications that were destined to expand
the list of existing rights in order to annex new social rights. The Argentine jurist
detected a problem in these reforms, which were unquestionably made by groups that
were more advanced or progressive and more favorable to social change. The prob-
lem had to do specifically with the crossed impact of these changes—in this case, the
impact of the introduction of these new social rights on the organization of power.5
For Nino, it was clear that, upon the incorporation of new social rights, progressive
forces would fall into a paradoxical position. Contrary to what these forces hoped,
by acting in this way they transferred additional powers to the judicial branch6—the
branch furthest from electoral or popular control and, in Jeffersonian terms, the least
republican of the branches (Jefferson 1999).
In the face of this paradox, Nino questioned the rationality and appropriateness of
introducing new social rights aimed at strengthening the power of the people and the
capacity for action and decision by society’s most marginalized groups. Was this the
hoped-for result of the constitutional reform? Or was it that they, in reality, threat-
ened to undermine even further the power of disadvantaged groups?7 It can be said
that the doubts raised by Nino revealed, above all, the lack of reflection by many con-
stitutional activists motivated to defend the rights and interests of those who are
worse off.
Of course, Nino may or may not have been right in calling into question the ulti-
mate progressive character of the expansion of social rights. Perhaps, in certain con-
texts (i.e., in the face of a radically corrupt legislative branch), it could make sense to
strengthen the judiciary in this way. Most importantly, it could make sense to include
such rights at a constitutional level given what that can symbolize as a gesture oriented
at the “empowerment” of the most forgotten or downtrodden groups (independent
of what this recognition might mean in terms of the distribution of constitutional
power). However, of interest now is what reflection about the case does to encourage
us to think about the analysis of constitutional reforms. Through his inquiries, Nino
helps us see that the traditional reforms carried out in the dogmatic section do much
more than expand the existing list of rights. Whether intended or not, this type of
reform is not neutral on the subject of the organization of power. As such, and in order
to evaluate its impact, we need to look beyond the boundaries of the demarcated sec-
tion on rights, asking ourselves about the impact of the reform on the distribution of
power among the different branches of government.
In the case examined here—that of social rights—the idea would be that today,
given the mode in which we think about rights and act in relation to them, making
the rights section any more robust would imply, in principle, a transfer of power to
the judicial branch.8 This would not require the judicial power to take active measures
in the implementation of these rights to flex its muscles before the political branches
of government. The inactivity of a majority of judges in this respect does not deny the
existence of their potential to put such rights in practice, something that in fact has
occurred.9 Judges may enforce rights unexpectedly in the face of any demand.
In any case, the previous reflection may be useful to call our attention to a more
general point, related to the deficit that tends to distinguish contemporary approaches
to the subject (Nino’s analysis being one significant exception). More specifically: at
the present time, those who propose a constitutional graft tend not to think about
the internal impact and crossed impact of the reform that they want. In the particu-
lar case of social rights, we tend to miss, first of all, a crucial reflection regarding the
internal impact of that desired reform. In other words, how are these new rights going
to modify or affect the existing structure of rights? (How are the new rights going to
impact upon the old ones?) More to the point: What are the implications of incorpo-
rating a long list of social rights regarding the existing rights that, seemingly, legal
reformers want to preserve (i.e., the right to property, contracts, and legal security,
in general)? In the same way, we miss a reflection regarding the crossed impact of
that reform. In that sense, we not only need to think about the way in which the new
rights will expand or limit the existing organization of power (Nino was interested in
this case, and in particular in the influence of the new rights regarding the capacities
of the Judiciary) but also about the way in which the existing or possible organization
of power will help or prevent the development of those new rights.
Remarkably, all those difficulties and limits that seem to characterize contemporary
reflections on constitutional grafts radically contrast with the reflections that were
typical among the “founding fathers” of Latin American constitutionalism. In effect,
members of Argentina’s 37 generation or the main Mexican intellectuals, at the time
of the Porfiriato showed a lucid approach to constitutionalism, when they defended
their basic proposal of “limited political liberties—ample civil (economic) liberties.” In
effect, at the time of advancing those reforms, intellectuals such as Alberdi and Justo
Sierra appeared to be well aware of the types of problems here examined. They all prop-
erly recognized that, in order to ensure full protection to certain rights (in their case,
particularly, the right to property), nothing was more important than regulating in a
certain way the organization of power (in their case, through the limitation of political
rights). In sum, they adequately realized that the best way of ensuring certain changes
in the area of basic rights was by ensuring certain changes in the area of the organization of
power. In such a way, their reasoning was—directly and mainly—concentrated on the
impact (in this case, on the crossed impact) of their constitutional proposals, some-
thing that contemporary reformers tend to neglect or forget.
At this point, the provisional conclusion that we can present would be the fol-
lowing: at the time of reflecting upon the probabilities of “success” of a particular
constitutional reform, and evaluating its possible impact, we need to pay particular
attention to the way in which the reform impacts the very structure of the modified
Constitution. Most probably, those reforms will affect the distribution of power orga-
nized by the same Constitution, which will tend to generate resistance to the reform,
coming “from within.” As a result of this—in spite of the capacities of the public offi-
cers who will occupy the newly created institutions and also in spite of the authority
or budgetary capacities of those institutions—we will need to carefully examine the
way in which the new institutions will tend to “land” within the existing organization
of power.
As a consequence of this type of analysis, it is possible that a certain constitutional
reform may not be desirable given the redistribution of power it will generate within
the constitutional structure, or given that it could be carried out in another way con-
sidering the foreseeable internal tensions that a new institution will cause.
Convergences and Tensions between Different Constitutional Models

In the preceding pages we have examined different ways in which a constitutional
reform tends to impact the underlying constitutional structure that is itself under-
going reform. However, the examples we held up as related to particular constitu-
tional reforms—the introduction of a magistracy council, the expansion of the list
of rights—can and should be made more general. This is thanks to the knowledge we
have accumulated in relation to the existence of different constitutional models.
In effect, we have already made reference to different models of constitutional
organization, which we called—following the language of the era—conservative,
radical, and liberal. We know that in the constitutional history of the Americas
there have been Constitutions of a conservative tone (i.e., Chile 1823, Chile 1833,
Colombia 1843, Ecuador 1869), a radical tone (i.e., Pennsylvania 1776, Apatzingán
1814), and a liberal tone (Colombia 1853, Colombia 1863). Additionally, we have paid
attention to Constitutions of “fusion” (of particular relevance are liberal-conservative
Constitutions such as those of Argentina 1853, Mexico 1857, and Paraguay 1870).
Here we should consider briefly the likelihood of success of constitutional reforms
oriented at modifying the structure of the existing constitutional model. Clearly, the
case of reforms that introduced social rights in the old Constitutions of the Americas
is especially interesting in this sense. Here we speak of the introduction of reforms to
the liberal-conservative constitutional model that were originally excluded from said
compact; that is, the introduction of radical or republican reforms. The question can
be discussed in a more general sense. Specifically, what possibility is there of success-
ful reform when the aim is to modify, in this way, the constitutional structure in force?
More precisely, what possibility is there of successfully grafting institutions belonging
to a certain constitutional tradition into a constitutional body organized according to
the parameters of a different or opposing tradition?
One possible way to begin the aforementioned reflection would be to examine
some of the facts that we know regarding the different constitutional traditions in the
region. So far we have referenced conservative, radical, and liberal constitutional mod-
els. The first, as we know, can be defined by its combination of political elitism and
moral perfectionism (the model that in Latin America signified power concentration
in the executive and religious imposition). The radical model can be characterized—in
sharp contrast with the conservative model—as a Rousseauistic model distinguished
by political majoritarianism. The liberal model—which sought to mediate between the
other two models—stands out for its defense of a balanced political system (versus
the excesses of strong presidents and concentrated majorities) and its assertion of the
religious neutrality of the state.
Taking this panorama into account, it is possible to recognize the existence of
areas of partial convergence and conflict among the different models. We have known
of such agreements and disagreements throughout our study of history, but we are
able to anticipate and explain them by paying attention to the areas of conflict and
existing tensions between these various schemes. The intersections range from the
common anti-majoritarianism of liberals and conservatives, to the shared rejection of

liberal neutrality on the part of conservatives and radicals; they include the habitual
resistance that liberals and radicals jointly presented when faced with the religious
authoritarianism so common in Latin America.
In short, the possibility of a successful transplant is increased when the institu-
tions being introduced are part of the constitutional model in force (i.e., institutions
with a liberal character over a constitutional scheme in force that is also liberal). For
example, one might introduce a new comptroller’s office, say, “Auditor General of the
Nation” or “Tribunal of Accounting,” within an existing checks and balances scheme.
The likelihood of success is also increased when the institutions that are introduced
form a part of a distinct constitutional model, but in areas where both models are
compatible. This could occur, for example, with the introduction of liberal reforms
that tend to limit the power of controlling authorities within a conservative insti-
tutional scheme, when the reforms are seen as clearly hostile to a radical political
majoritarianism. To illustrate this by example, one might examine a case where the
judiciary is given the power to conduct constitutional review and to invalidate laws
deemed unconstitutional, an option considered typically counter-majoritarian. Such a
constitutional change could be well received both by a liberal constitutionalism and a
conservative one, if both are suspicious of legislative power and especially if the con-
servative suspects the government may have a particular influence in the nomination
of members of the highest court.
Meanwhile, the most difficult grafts would occur in connection with efforts to
merge institutions belonging to different constitutional models in areas where they
tend to conflict. We would talk, in this case, about mixed constitutions, that is to say,
Constitutions that combine institutions coming from different constitutional models
and, more specifically here, about peculiar mixed constitutions, that combine institu-
tions that are in direct tension. This is the situation that was reported, for example, by
Lucas Alamán about the Constitution of 1824, which was seen as an imperfect attempt
to amalgamate the constitutions of the United States, Cadiz, and revolutionary France
(Alamán 2008, 201; Aguilar Rivera 2008, 21). This is also the situation that, accord-
ing to some, characterized the pioneering Mexican Constitution of 1917—the first to
explicitly make a compromise between conservative liberalism and social rights. The
jurist Emilio Rabasa described it, justly, as “a document with two well defined parts:
the liberal and the social, or more precisely that of political juridical liberalism and
that of economic social liberalism” (Rabasa 1986, 97). This was the case because the
constitutional project adopted the tone of the domineering General Carranza, who
tried to combine the liberal “political philosophy of the 1857 [Constitution]” with new
elements of social content demanded by the growing influence of marginal sectors
that participated in the social revolution that was taking place.
Introducing social rights into a liberal-conservative scheme would be the typical,
contemporary example of the phenomenon described above, given that social constitu-
tionalism was expressly rejected by both liberals and conservatives during constitutional
conventions in the nineteenth century. Moreover, social constitutionalism requires an
institutional framework that challenges the current order and is characterized by insti-
tutions more responsive to popular demand. An institution of this sort is a far cry from
the models that either liberals or conservatives would be willing to support.
Another example of interest to Latin America would be institutions designed to

emphasize mechanisms for direct democracy within a constitutional model hostile
to civic participation. Once again, here we can anticipate tensions will run high as a
result of attempting to combine institutions whose aspirations are contradictory in
principle. Moreover, we might predict for such cases that the president in power will
boycott or undermine those attempting to implement reforms that would affect the
president’s authority (we will soon examine some examples in this respect). This is
why, for example, the Bolivian intellectual Raúl Prada pointed to the strong contra-
dictions that seem to affect the new Bolivian Constitution. For him, the new docu-
ment works against colonization, but at the same time preserves colonial features, for
example, in the organization of the State. It declares that the State is plurinational,
communitarian, and autonomic, but it maintains a political geography that resembles
the one coming from colonial times, and preserves institutions and powers that are
eminently liberal in character. It incorporates institutions for popular participation
and social control, looking for a new relationship between the State and society, but
at the same time maintains institutional forms and a representative system that is
clearly liberal. It combines, in the end, institutions of a communitarian and participa-
tory democracy, with others that come from the old representative democracy (inter-
view in Svampa et al. 2010, 186).10
Ultimately, recognizing the existence of differing constitutional traditions and
analyzing their areas of connection and tension can be helpful when attempting to
discern whether a given right will transplant successfully.
Translations between Different Constitutional Models

The second of the problems we shall examine—a problem typical of the method used
when attempting to incorporate social rights into Latin American constitutions—is
the one related to issues of what we can call “translation.” To examine this type of
issue, we can begin with the understanding mentioned above: that it is not easy to
accomplish “blending” between different constitutional models. Nonetheless, as we
have pointed out, said blends are facilitated in areas where different models intersect.
For example, conservative and liberal Constitutions often have countermajoritarian
leanings, and this makes them in many ways compatible. Additionally, this suggests
that a number of institutional arrangements can be well supported by both constitu-
tional structures.
The translation problem appears with more intensity when we attempt to recon-
cile institutions associated with areas where the models in play conflict. For example,
liberals and conservatives have celebrated relatively successful constitutional pacts
(successful, at least, in terms of the stability they have reached). We also know that
there are many areas of accord between the two models, and that these areas have
made it possible for those pacts to enjoy success. For instance, the two models share
a common commitment to a list of restricted rights, with an emphasis on the protec-
tion of property rights, and an institutional scheme with a countermajoritarian out-
line. Nevertheless, liberals and conservatives disagree profoundly in other respects.
For example, they differ sharply regarding what powers they consider it necessary
to transfer to the Executive branch. The conservatives consistently supported an
extreme concentration of political power, while the liberals commonly fought against
this, certain that such a concentration threatened their entire constitutional struc-
ture. Here we have a grave problem in translation. In the case of a majority of Latin
American countries, the issue was whether one could incorporate the fundamental
conservative demand for a greater concentration of power within the liberal, US-type
constitutional scheme that was being adopted, and its system of checks and balances.
This was a great translation problem and it was resolved, in most cases, by “unbalanc-
ing the checks and balances” through the ceding of additional powers to the executive
branch. These powers converted the Executive into a primus inter pares. In principle,
this peculiar graft was very problematic—a poorly made translation—and, according
to some (though we do not insist upon it here), it came to be a cause of the frailty that
accompanied the system from that moment. This ceding of power to the Executive
became the Achilles’ heel of a scheme that was, in terms of stability, generally success-
ful (see, e.g., Linz and Stepan 1978; Linz and Valenzuela 1994; Nino 1997).
Having said this, we can return to the example cited in the prior section, referring
to the introduction of social rights. We have here another case, more serious in appear-
ance, of a failed blending between schemes. To begin this analysis, it is worth noting
that many of the essential compromises of a particular constitutional model are often
interrelated; that is, they need each other (for this reason we speak about models in
general terms). Schematically, we could say that the following are found within the
fundamental building blocks of the radical model: (1) a political organization that is
open and responsive to participation by the people; (2) a rather egalitarian economic
structure; and (3) citizens endowed with “civic virtue,” which in this case means, pri-
marily, that they are motivated to actively participate in politics. These pieces were
linked together and mutually dependent on one another. The objective was collective
self-government, and this required a virtuous citizenry. To this end, political institu-
tions were created that were open to and encouraged political participation. At the
same time, radicals proposed to organize the economy in a way that encouraged the
generation of collectivist behaviors and discouraged purely self-interested behavior.
The absence of any of the pieces threatened to put the entire structure at risk. For
example, if the general scheme was maintained, but the political framework was such
that it closed off participation by the people, the institutional scheme would invite
social unrest, and thus plunge the entire system into crisis. Similarly, if the institu-
tions remained open to and supportive of participation by the people, but within a
context of profound inequality, they risked undermining the entire participatory pro-
cess that they otherwise attempted to encourage. Those most affected by the existence
of inequality, in this context, would have great difficulty dedicating their energies to
politics instead of ensuring their immediate subsistence.
The problem that arises upon the constitutional incorporation of social rights is
in the same vein as the problems mentioned above. For any of the radicals who advo-
cated higher social engagement in the constitutional order in the nineteenth century,
what was done in the twentieth century—namely, the inclusion of a list of social
rights in liberal-conservative constitutions—would be seen as uninteresting, if not
simply offensive. For those who felt as Artigas of the Banda Oriental did, or, better
yet, as Ponciano Arriaga, the president of Mexico’s 1857 Constitutional Convention
did—that the Constitution ought to be “the law of the land” (which is to say that
constitutional reform should be accompanied by a profound reform that redistrib-

uted land ownership)—the mere incorporation of a list of social rights would have
sounded nothing short of ridiculous. What relevance would said list of written rights
have when the aforementioned men were working toward bringing about socioeco-
nomic changes which included, but at the same time largely transcended, the drafting
of a Constitution?
The difficulties inherent to this operation (the introduction of social demands from
radicals into Constitutions that were not sympathetic to them) were many. Primarily,
such modest constitutional reforms were not accompanied by additional measures
that were capable of sustaining the radicals’ old claims. This is not to say that the
liberal-conservative leadership should have transformed its Constitution into a radical
one; nor that they should have assumed that giving in to radical demands was necessary
before they could give life to a radical scheme. Neither does it suggest that the pieces of
one constitutional model must all fit together in only one fashion, nor that they cannot
arrange themselves in different ways, or with other pieces, if they are to take on a life
of their own. Instead, the point is that each constitutional model incorporates a certain
internal logic that is far from arbitrary. Keeping this in mind, the radicals might reason-
ably argue, it was difficult to sustain the social reforms that they had proposed at the
time, if at that moment they did not count on a mobilized society ready to defend the
strong measures of change promoted. The Constitution—they might add—was capable
of modestly collaborating in said task; nonetheless, it happened that those in charge of
the reform had not taken any conclusive steps in that direction. Just the opposite.
Indeed, it is almost impossible to imagine any success for the radical reconstruction
proposals that were presented, when, ever since the new constitutional conventions,
not only had the social mobilization required by the reforms not been encouraged, but
concentrated power remained and was supported by the political and social elite hos-
tile to the progress of radical initiatives. In institutional terms: was it conceivable, just
to take an example, that the judiciary would be the vanguard in the social battle over
expanded social rights, when it operated within a framework where the citizenry’s
access to the courts was extremely closed off ? It is difficult to imagine a less favorable
institutional context for the flourishing of this feature of social content.
The last point that will be made regarding the failure in principle of this graft-
ing operation (perhaps the most important point of all) has to do with the way in
which the liberal-conservative leadership decided to incorporate the social demands
that radicals had been advocating for decades. The method chosen was to translate
these potent, vigorous, radical social demands into the liberal language of rights
(Atria 2004; Gargarella 2004).11 In this manner, the radicals’ demands, which largely
exceeded the constitutional text, were reduced to an especially limited constitutional
formula. Transformed into social rights, the demands were now tightly bound, practi-
cally immobile, and they sat within a narrow, stifling mold that had almost nothing in
common with the pattern the radicals, in their time, had used to make sense of, and
give permanence to, their political and constitutional demands.
What was left in the end was such a weak attempt at constitutional change that
some might even call it a mere act of demagoguery or hypocrisy, that is to say, a way
of committing through a series of actions known to be difficult to undertake due to
innate shortcomings.
Dormant Clauses
The bleak outlook described in the previous pages calls for an important clarification,
however, that could be very useful when we reflect on a more general concept that
encompasses the Constitution, rights, and legal reforms: the concept of “dormant
clauses.” To briefly summarize: in the previous pages we determined that it is important
to take into account the ways of carrying out constitutional reforms. Constitutional
reforms commonly involve modification of a text that establishes long-lasting insti-
tutions. Existing institutions or constitutional practices will not be expected to be
neutral in the face of new institutional additions. They can aid or, more commonly,
resist the arrival of such changes, if the implemented reforms are not taken seriously.
Of course, there is no magic formula that will allow us to predict what must be or must
not be done in such situations, but criteria exist that allow us to anticipate when a
certain reform is off to the wrong start. The special example of social rights illustrates
the material difficulties (and political irresponsibilities) that tend to accompany the
difficult process of constitutional reconversion.
In the end, we are talking about a case of an addition that was considered failed at
the outset. Such affirmation is supported by a long-standing consensus that pointed
to the many decades during which social rights fell into a constitutional slumber,
cast aside in the desks of judges throughout all of Latin America who considered
those rights as not directly operative. Within modern legal thinking, the problem is
well-known: once and again, and during decades, judges opted for considering the
new social rights as nonenforceable or mere programmatic rights, in contrast to tradi-
tional first-generation rights, which were normally subject to judicial enforcement.12
In other words, social rights were seen as political objectives to be promoted through
law, by the political branches, rather than as traditional rights under the custody of
tribunals.13
A situation like the one described can help strengthen a common position that tells
us that these new constitutions, as generous as they might be regarding the rights
they affirm, turn out to be “pure poetry”—text that is disengaged in its application
in real life.14 Moreover, for some, the inclusion of such clauses at a constitutional
level is a negative decision for the existence of the constitutional text given that the
repeated—if not impossible—failure to meet those social mandates ends up under-
mining the authority and legitimacy of the Constitution (Rosenkrantz 2003). Could
it be that the incorporation of such social clauses was an error? Could it be that Latin
Americans erred in their overwhelming alignment with the cause of constitutionaliza-
tion of social rights?
The first doubts in the face of these questions arise when we note that toward the
end of the twentieth century, those legally relegated social rights began to awaken from
their slumber. The same judges who, time and time again, had opposed recognizing
judicial suits to enforce or implement these constitutionalized social rights began to
open their doors and deem acceptable suits they had previously rejected.15 This striking
and notable situation begs us to ask an additional question: Why had social rights, after
lying dormant for such a long time, slowly awakened almost half a century later?
The explanations for these changes are diverse: the growing internationalization
of the law;16 the increasing weight of exigent international human rights treaties;17
the development of a complex and dense dogmatic reflection on this subject mat-
ter (critical of the status quo);18 the emergence of larger suits, channeled outside the
political entities, disfavored by a disappointing practice;19 and the implementation of
legal reforms (in particular, clauses pertaining to legal standing) destined to facilitate
access of the most disadvantaged to the tribunals. All of these elements, among oth-
ers, combined to provide structure to a changing reality, where social rights no longer
necessarily appeared as second-rate rights.
In the face of this new context, judges began recognizing that they had before
them diverse alternatives not limited to the dichotomy that had dominated until then:
enforcing or not enforcing a right (i.e., a suit for access to housing). Judges could opt
to give orders to the other branches, making it clear that the other branches were
violating the Constitution and suggesting different options that could be considered;
they could request public hearings to collectively discuss how to resolve situations of
complex litigation; they could define time frames in which the political power ought
to find solutions to all the problems under review, among other remedies (Fabre 2000;
Gloppen 2006).
And here again, an important fact worth noting arises. The countries that appear
to fall the furthest behind in this slow march toward public recognition of social rights
appear to be those that, for one reason or another, more strongly resisted the incor-
poration of those social demands into the bodies of their constitutions. Examples
that stand out include the austere Chilean Constitution, and most notably the United
States, whose Constitution is completely silent on the subject of social rights and has
been described as a truly “negative” Constitution.20
One wonders how irrational that initial proposition was, decades ago, to incorpo-
rate rights into a Constitution that did not appear amenable to the novelties being
added. Is it not appropriate to speak of a failed graft? Is it that, contrary to what I
suggested just a few paragraphs ago, the constitutionalization of social rights ended
up being a victorious strategy in the long term?
The answer, one could say, is nuanced. In light of everything, it is clear that those
involved in a constitutional reform like the one described (defending the incorpora-
tion of social rights into the Constitution) became involved for very diverse and at
times contradictory reasons. Without a doubt, there were constituents who under-
took the task with the goal of easing what they saw as a growing social conflict; oth-
ers did so thinking textual changes would never produce practical results; others
participated due to mere hypocrisy or populism. At the same time, there were par-
ticipants who believed in what they were doing and trusted the collective strength
of the constitutional changes. Whatever the rationales, one could say that a consti-
tutional modification like the one mentioned took place, for the most part, with a
certain irresponsibility, considering the magnitude of the purpose sought. Of course,
it was not easy to foresee all the implications resulting from the type of reform pro-
posed. Meanwhile, it was clear that a sufficient level of intellectual reflection had been
achieved that could have helped avoid problems like the ones that resulted from the
reforms in this case.
But what is there to say about the dormant clauses mentioned? First of all, let
us clarify that today is not the era of consolidated social rights; instead, it is the
beginning of a phase where, typically, more judges are open to the idea of hearing
suits to implement social rights (or at the very least not automatically determined to
discard nonenforceable rights).
With that said, it would be worth referencing some general points that are par-
ticularly important in the discussion of constitutional reform. First of all, it makes
sense to recognize that, beyond what has been pointed out, some reforms can be
worth the struggle, even when the initial response to the reforms is not favorable.
That is because such a gamble could result in a sense of constitutional duty adopted
by the community—a duty that is, symbolically, far from a minor legal change.
Some have begun to speak, in that sense, of an aspirational constitutionalism as a
way to account for this different way of thinking about the constitutional question:
a Constitution should not be seen as just a catalog of rights and duties but also as a
tool to signal the utopia or ideal sought to be reached (Sunstein 2004; Lane Sheppele
2003).21
Second, the incorporation of certain ambitious constitutional clauses could
be a safe bet on the future, in pursuit of a change in current sociopolitical condi-
tions that block the development or the consolidation of the new commitments.
Moreover, it could be an intelligent way of intervening in time, starting to create
the conditions for turning diverse coalitions into dominant ones. In this way, the
modified Constitution could serve to enact changes in the incentive structure of the
principal actors involved in the relevant reform. For example, by recognizing that
their demands are backed by constitutional sources, certain individuals could begin
working together in pursuit of their rights or certain groups could begin to mobilize
socially for the same.
We could make a final point in favor of the gamble for certain “dormant clauses”—
that is to say, the gamble in introducing new constitutional clauses that, it would
appear, are not in a condition to prosper and develop in the short term. What is at
play here is none other than what appears to have been locked into the whole idea
of “universal rights” from their origins (Brown 1991). Perhaps, at the time when
universal rights were first adopted, some people invoked them with the sole pur-
pose of advancing their own interests, without comprehending the effect on others,
or in any case, focused primarily on securing benefits for themselves. Those who
insist—but not in a selfish manner—on the importance of universal rights do so
backed by the consensus that usually surrounds the idea that this “has to do with
a demand for something that we all deserve” (who could oppose such a claim?). It
could be, as usual, that not everyone is in the same position to take advantage of
the benefit sought in the moment that request is granted. It could be that some
individuals benefit much more than others, even when the benefit is characterized
as universal. However, the law tends to get its revenge in such situations. It tends to
be the case that, as time goes on, original social conditions vary substantively, and
those who were not initially in a position to take advantage of what others enjoyed
are suddenly positioned to demand their share. Ultimately, the gamble on clauses
that, in principle, could turn out to be dormant clauses is not rare and is certainly
not irrational. Instead, it is all too common and is deeply entrenched in the history
of modern rights.
A Few Final Comments

Clearly, none of what was said in the last section—referring to the value that incor-
porating “dormant clauses” may have—completely dissolves objections like the ones
examined above. It could be preferable to have a Constitution that is more austere
than baroque or unnecessarily overloaded. Someone could suggest that it makes
sense not to demand too much of the Constitution, so as not to generate undue risk of
loss of authority within it. Nothing justifies, above all, the degree of irresponsibility,
ignorance, or disengagement displayed by many who participated in constitutional
reform. In addition, what was said in defense of the inclusion of “dormant clauses”
in the Constitution does not imply the adoption of a naively optimist position. In the
end, it is neither obvious that the desired changes will take place at one point, nor
clearly acceptable to go for changes that, in the best case, will take place after long
years—even less, when so deemed fundamental rights are at stake. Despite all that,
the things that have been pointed out here could be useful to show that the gamble on
clauses that we know will not take effect immediately could be a very rational and rea-
sonable bet. The (partially successful) history of social rights in Latin America offers a
good lesson from which constitutionalism, beyond the region, may learn something.
Finally, what happened in Latin America with social rights can be seen as a nice way to
show confidence in the future and, above all, confidence in the remarkable power that
the nucleus of constitutional rights holds: there are rights that come to life after some
time, like leaves that once again look like leaves, when the water that appeared to be
drowning them has subsided.
One final and important comment would be the following: The entry of work-
ers into politics, and of social rights into Constitutions, mark a before and after in
the political and legal history of the region. In particular, we should emphasize how
much the new Constitutions differed from previous ones, and destabilized the old
liberal-conservative scheme. However, we should also highlight the following fact: the
intense demands of workers came into the Constitution through the introduction of
changes in the section of rights, but not through changes in the organization of power.
The organization of powers remained basically immune to that fundamental novelty.
This fact clearly signaled the limits of the significant ongoing reforms.
8
Contemporary Constitutionalism I
Constitutions in Internal Tension
Introduction
In the late twentieth century, Latin America was severely impacted by two crucial historical
events. The first was the political crisis of the 1970s and the grave human rights abuses
committed during those years by dictatorial and authoritarian governments. The second
was the social and economic crisis that followed the application of structural adjustment
programs during the 1990s. Taking into account these events, in this chapter we shall
study those constitutions that were direct reactions to the authoritarianism of the 1970s
(constitutions that attempted to replace the unjust constitutional order imposed by the
dictatorships); constitutions that, in an attempt to prevent the repetition of those tragic
events, either introduced changes in the organization of powers or created new legal bar-
riers against potential violations of human rights; Constitutions that set the stage for
the application of “structural adjustment” programs during the 1990s; and finally con-
stitutions that were reactions to the severe social crisis provoked by these so-called “neo-
liberal” programs of economic change. After this descriptive approach we shall critically
examine the main constitutional initiatives adopted during this period.
On balance, we shall maintain that the new constitutions that were drafted in the
last decades did not dramatically change the main structure of the constitutions that
appeared following the 1917 Mexican Constitution. In general terms, the new consti-
tutions strengthened the social commitments of the former ones. At the same time,
they left the traditional vertical organization of power almost untouched.
Dictatorship, Human Rights, and Hyper-presidentialism:

Brazil 1988, Chile 1980
The influence of the last wave of Latin American dictatorships in the development of
new constitutional ideas, texts, and discussions seems undeniable. Dictatorships had
both a direct and indirect impact on the progress of regional constitutionalism, as the
examples of Chile and Brazil shall help us illustrate.
Chile lived under a dictatorial regime starting in 1973, the year when a military coup
ended Salvador Allende’s presidency. The dictatorial regime, commanded by General
148
Consti tuti ons in Inte rnal Tension 149
Augusto Pinochet, promoted a radical reorganization of society, which included the

adoption of a new Constitution that took the place of the Constitution of 1925. With
that purpose, Pinochet promptly designed a new commission—the so-called Ortúzar
Commission—in charge of setting the bases of the new Constitution. The final draft
of the document, however, was completed in 1980.1
The new Constitution, which reflected the impoverished and paternalistic concep-
tion of democracy of the Chilean Armed Forces, transcended Pinochet’s government,
and thus remained as the national Constitution even after the return of democracy.
This situation imposed a heavy burden upon the newly elected democratic regime. In
effect, after the democratic elections of 1989, the democratic community had to make
enormous efforts to overcome the numerous legal limitations imposed by the dicta-
torial document—the so-called authoritarian enclaves created by the Constitution in
force. Those enclaves included the institutions of life-tenured Senators (which allowed
Pinochet to be part of the Senate during the democratic period) and of “designated
Senators” (which allowed members of the coercive forces to be part of the Senate), a
National Security Congress, an extremely exclusionary electoral system (which made
it very difficult for minoritarian forces to participate in electoral politics); and the
requirement of qualified majorities in order to change basic aspects of the institu-
tional system (e.g., education, the organization of Congress, and the regulation of the
Army).
Very slowly, and through successive constitutional reforms, the new democratic
governments began to leave behind these authoritarian legacies. The most important
of these legal reforms took place during Ricardo Lagos’s government. Among other
significant reforms, the modifications included the following: limitations on the insti-
tution of “states of exception” (1989), changes in the organization of the provinces
(1991), a reduction from eight to six years of the presidential term (1994), changes in
the modes of judicial appointments (1997), changes in the working of the Judiciary
and the organization of the second term of the presidential election (1999), changes
in the mechanisms for constitutional reform (2000), the introduction of guaranteed
free education (2003), the end of life-tenured and designated Senators, a reduction
of the presidential term to four years, the granting of presidential power to remove
the head of the armed forces and the director of the police, changes in the National
Security Council (2005), and changes in the electoral system (2009).
Brazilian constitutionalism in the post-dictatorial period shared several elements
in common with the Chilean experience. In this case, too, a newly elected democratic
government was required to deal with the legacy of an authoritarian Constitution sanc-
tioned by a dictatorial government. The Constitution at stake was that of 1967, which
was enacted during the military government of General Humberto Castelo Branco.
The 1967 Constitution (amended in 1969) imposed severe limitations on the federal
organization of the country and the political and civil liberties of the population.2
For that reason, shortly after the recovery of democracy, Brazilians wrote a new
Constitution that tried to repair the worst consequences of its predecessor. The demo-
cratic 1988 Constitution prohibited the use of torture, reestablished direct and secret
suffrage, laid the foundation for the reorganization of democratic electoral compe-
tition, penalized the restriction of civil liberties, adopted antidiscriminatory mea-
sures, promoted political participation through plebiscites and referenda, expanded
municipal autonomy and federalism, established protections for indigenous lands,

and included a long list of social rights and guarantees.
This Constitution also maintained a strong presidential system that was very much
in line with the reforms introduced in the executive branch by the same dictatorship.3
This strong presidential system was perhaps a reaction to the “trauma” of the 1946
Constitution that, according to many, created too weak a presidency. In sum, the dem-
ocratic Constitution modified the previous one with respect to organization of rights
but did not fundamentally change the organization of powers established by the dic-
tatorship in the 1967 Constitution (Limongi 2008).4
We have just examined two significant illustrations of how democratic constitu-
tionalism directly reacted to the kind of Constitution that had emerged during dicta-
torship in an attempt to overcome that improper and unjust juridical legacy. In what
follows, we will focus on a more indirect constitutional reaction to the dictatorial past.
We will study, in this respect, initiatives directed at remedying the causes that (seem-
ingly) provoked the emergence of authoritarian regimes.
Attempting to understand the structural causes of the authoritarian phenomenon,
many Latin American scholars began to focus their attention on the pattern of political
instability that characterized the public life of the region during the entire century. One
of their conclusions was that the Constitution was not completely independent from the
generation of that pattern of instability. In particular, many of them agreed in pointing to
(what they named) the hyper-presidentialist character of the constitutions as conducive
to instability. Consequently, they suggested that the elimination of hyper-presidentialism
could reduce the levels of instability, and thus reduce the risk of a return to authoritari-
anism. This was the first time in a long period that activists and scholars from different
countries and origins agreed on criticizing a central aspect of the dominant organization
of power (Nino 1987; Linz and Stepan 1978; Linz and Valenzuela 1994). Their agreement
was exceptional and also particularly attractive: it was the first time, after long decades,
that public figures recognized (as old legal scholars had previously done) that in order to
guarantee certain basic rights (now, human rights) it was first necessary to modify the
structure of power in a certain way (now, limiting the powers of the Executive).
According to Carlos Nino, for example, “the diagnosis of the time was that a crucial,
although not the only factor, explanation for the fragility of (the institutional system)
was a presidential system that had grown excessively” (Nino 1992b, 38). For him, as for
many others, it was clear that in a hyper-presidentialist regime, the president concen-
trated too much power, too many responsibilities, and too may expectations in his/her
own figure during a fixed term.5 As a consequence, any sudden change in the people’s
attitudes toward the president, any sudden fall in his/her popularity, or any significant
crisis tended to put the entire political system under stress. A political or economic crisis
became thus transformed into a systemic crisis. Even worse, given the lack of “escape
valves” in the system, the “ejection” of the president tends to appear as the only way
to evade the crisis. Given these assumptions, the parliamentary alternative appeared
as an interesting option to presidentialism in the different way in which it distributed
political power and, most significantly, the “escape valves” (principally, a change of the
Prime Minister) offered by the system (Ackerman 2000; Linz and Valenzuela 1994).
Unfortunately, after gaining so much attention among academic circles, these theoreti-
cal reflections were promptly abandoned (we shall come back to this point below).
In the same way that Latin American constitutionalism tended to resist these
anti-presidentialist initiatives, it opened its doors to other rights-based reforms. These
changes implied giving special, sometimes constitutional, status to different human
rights treaties that the countries had signed during the last four or five decades. These
treaties were in part a response to the massive violations of human rights committed
by dictatorial governments (Sikkink 2012; Acuña and Smulovitz 1996). Argentina,
Brazil, Bolivia, Colombia, Costa Rica, Chile, and El Salvador were among the many
countries that tried to ensure more protections for the rights affected by the recent
authoritarian governments. The legal response was, in this case, more immediate and
extended across many different countries. This response was perhaps not surprising
given the extended character of the atrocities committed by the military governments
in these countries.6
The decision to provide a special legal status to diverse human rights treaties cre-
ated interesting results. In part, these initiatives reaffirmed the reconciliation of cer-
tain parts of the political Left with the issue of rights and constitutionalism, which
they had frequently resisted. In addition, the new legal status many of these constitu-
tions granted to human rights had an interesting effect on conservatives. More specif-
ically, after these changes in the texts of the Constitution, many conservative judges
began to consider more seriously arguments based on the value of human rights.
“Neoliberal” Programs, Social Crisis, and Presidential Authority

In the previous section, we explored the way in which the legacy of the dictatorships
influenced Latin American law. In this section, we will explore the impact on con-
stitutionalism of so-called programs of structural adjustment. By structural adjust-
ment programs, we mean the harsh economic policies applied in the region during the
1980s. These were monetary policies that usually implied a drastic reduction of pub-
lic expenditures and the elimination of social programs. These adjustment programs
were originally promoted in Great Britain under the direction of Margaret Thatcher
and in the United States during the presidency of Ronald Reagan (Etchmendy 2012;
Cavarozzi et al. 2002; Svampa 2005).
The impact of these policies of structural adjustment on constitutionalism was
enormous. More directly, the launch of these programs usually required the introduc-
tion of legal and even constitutional changes directed at facilitating the application of
economic initiatives. More indirectly, the social crisis generated by the application of
those programs also brought with them significant constitutional consequences. Here
we will focus our attention on two of those consequences. First, we will explore the
way in which the social crisis generated by the application of those economic adjust-
ments generated claims for the reestablishment of a “strong” presidential authority.
Second, we will explore the way in which those social crises helped the emergence of
new constitutional initiatives of a clear social and political character.
The direct constitutional impact of these adjustment programs included a large
number of constitutional reforms aimed at facilitating the economic initiatives.
Constitutional scholar Gerardo Pisarello, for example, refers to the thirty-five amend-
ments to the 1988 Brazilian Constitution that were promoted by former president
Fernando Henrique Cardoso (amendments that came to facilitate the privatization

process); the reform of article 58 in the Colombian Constitution of 1991 (which
was promoted by the conservative government of Andrés Pastrana, in order to pro-
vide more guarantees to foreign investment); the modification of article 27 of the
Mexican Constitution (which came to put limits to initiatives for the distribution of
land); the Peruvian constitutional reform in 1993 (which was advanced by President
Fujimori—after his auto-golpe—and directed at eliminating many of the social com-
mitments assumed by the 1979 Constitution); and the guarantees given to the value
of the money in Argentina through the constitutional reform elaborated by Carlos
Menem (Pisarello 2011, 186‒87). Similarly, one could mention the many different
initiatives for judicial reform promoted by the World Bank and other financial mul-
tilateral institutions during the 1980s, which were mainly directed at providing a
more stable framework to the new types of economic transactions that dominated the
period (Domingo and Sieder 2001).
This first period of economic reforms was immediately followed by an era charac-
terized by a profound and extended social crisis. In effect, the economic changes of the
era brought with them growing levels of unemployment that were not compensated
by the existence of a solid safety net. The first consequence of the crisis was that mil-
lions of people suddenly found themselves in a situation of complete abandonment,
without means to ensure their own subsistence and the subsistence of their family.
The State, which for the previous forty years had guaranteed work and social protec-
tions for vast sectors of the population, was now shrinking. Most of its most valuable
assets were sold in nontransparent and hasty transactions. Not surprisingly, then,
Latin America began to experience a process of social mobilization demanding the
social protections that many constitutions still promised.
Social protests and counter-institutional uprisings exploded in the entire region,
from South to the North, East to West. They included, for example, the insurrection
of the Zapatistas of the Ejército Zapatista de Liberación Nacional (EZLN) in Mexico
(which began in January 1994, one year after Mexico’s signature of its free trade agree-
ment with the United States); the “wars” of “water” (2000) and “gas” (2003) in Bolivia,
directed against the privatization of basic sections of the national economy; the occu-
pations of land promoted by the Landless Movement (Movimento dos Trabalhadores
Sem Terra, MST) in Brazil; the taking of lands in Santiago de Chile; the “invasions” of
property in Lima, Peru; the emergence of the piqueteros movement in Argentina; and
also numerous acts of violence against the exploitation of mineral resources in differ-
ent parts of the region. It is interesting to recognize, in any case, that these profound
social crises did not result in the breakdown of the new democracies in the way other
crises had in previous years.
The conclusions that many derived from those events were, in a certain way, para-
doxical. On the one hand, many people considered that Latin Americans finally had
learned to deal with these critical events in a proper democratic way—in other words,
that they no longer needed to resort to military coups. On the other hand, many
people began to ask for the recovery or strengthening of presidential authority in
the face of the “authority vacuum” or “political chaos” that seemed to affect so many
countries in the region after the crisis. In the end, the same institutional crisis that
could have served to illustrate a new failure of the presidentialist system for dealing
with situations of social crisis contributed to the opposite goal: the vindication of the
strong presidential authority.
This conclusion was, at least in part, hasty and exaggerated. It may be true that the
region had learned the lessons of extreme violence and seemed now more resistant
to the temptation of authoritarian alternatives. However, this fact did not deny that
the institutional system was partly responsible for the production of the crisis and
not well prepared to process and channel the crisis in a nondramatic and more insti-
tutional way.7
In effect, the crises that dominated the region after the end of the 1990s did not end
with the classical military coups of the previous decades, but still provoked a profound
institutional crisis that was accompanied by vast processes of social mobilization and
collective distress. The combination of the economic crisis with these processes of
popular protest generated serious consequences that included the fall of President
Color de Mello in Brazil in 1992 and Carlos Andrés Pérez in Venezuela in 1993 (both
of whom lost their positions through impeachment processes), the removal of Abdala
Bucaram in Ecuador in 1997 (who lost his position after being, surprisingly, declared
mentally unable to led the country), the resignation of Raúl Cubas in Paraguay in 1999
(who resigned after an impeachment process was set in motion), and the dismissal
of Alberto Fujimori in Peru (Fujimori decided to escape from the country in the year
2000 when he was about to be tried in an impeachment process, although he then suf-
fered arrest in his country). Ernesto Samper in Colombia in 1996 and Luis González
Macchi in Ecuador in 2001 were also subject to impeachment processes, although they
were finally absolved. Other dramatic situations, including those of Lucio Gutiérrez
in Ecuador (Gutiérrez left the presidency of the country in 2005), Fernando de la Rúa
in Argentina (his immediate successors were forced to resign, one after the other, as
a consequence of the profound social crisis of 2001), González Sánchez de Losada and
Carlos Mesa in Bolivia in 2003 and 2005, respectively (both of them were obliged to
resign after extended periods of social protest). In other words, the region was radi-
cally affected by a social crisis that reached the very top of the institutional system.
In sum, situations of radical political, economic, and social crisis, as described, did
not contribute—as many could have expected—to the introduction of changes in
regards to the organization of the presidential system, but rather to initiatives aimed
at strengthening the presidential authority. However, those extreme situations of cri-
sis did promote the introduction of other kinds of constitutional changes directed at
social commitments. We shall explore these initiatives in the following section.
From the “Neoliberal” Crisis to Social Constitutionalism:

The Case of the Mexican Reform of 2011
Some of the most relevant socio-legal reforms of the last few decades—including those
of Colombia, Bolivia, Ecuador, Venezuela, and Mexico—followed the economic crises
of the 1990s. In Colombia, initiatives for constitutional reform came shortly after a
profound crisis that peaked with the occupation of the Supreme Court building by
the guerrilla forces of the M-19. That event signaled the highest point of a crisis that
included an exhausted state that seemed unable to take control of vast sections of the
country and the presence of guerrilla groups, paramilitary groups, and drug trafficking
groups. These groups disputed the state’s control of the national territory. In Bolivia,
popular rebellions forced President Sánchez de Losada to propose a new Constitution
in 1994 that was more inclusive and socially committed than the former ones, par-
ticularly in relation to the rights of indigenous groups. Some time later, President
Carlos Mesa was forced to convoke a Constitutional Assembly, which resulted in the
coming to power of Evo Morales and the sanction of the new Bolivian Constitution.
In Ecuador, the process of constitutional reform was also prompted by the new social
crisis. As Gerardo Pisarello put it, “The obstinate defense of policies of economic and
financial adjustment provoked a persistent resistance mainly coming from indigenous
groups and urban movements, which in the end forced the removal of three govern-
ments, namely those of Abdalá Bucaram (1952‒ ) in 1997, Jamil Mahuad (1949‒ )
in 2000, and Lucio Gutiérrez (1957‒ ) in 2005” and paved the way to the election of
Rafael Correa in 2006 (Pisarello 2011, 192). In Venezuela, too, the constituent process
promoted by President Hugo Chávez also followed a succession of popular uprisings.
These movements began after the launch of a profound adjustment program and the
repressive measures that followed its application. The crisis culminated in the so-called
Caracazo, an extreme social revolt that symbolized the end of the “old order” that
had begun with the compact of Punto Fijo (Martínez Dalmau 2009; Pisarello 2011;
Svampa et al. 2010; Viciano Pastor and Martìnez Dalmau 2011).
Another relevant case is Mexico. In June 2011, Mexico concluded a long period
of constitutional reforms directed at enhancing the constitutional status of human
rights agreements (see, in general, Carbonell and Salazar 2011). The causes that
explain these changes resided in factors that were similar to the ones that we have
examined in the previous paragraphs. In effect, Mexico’s recent history was also
characterized by grave and massive violations of human rights, economic programs
of structural market-oriented reforms, and sometimes violent social reactions to the
application of those programs. Mexico had not gone through the drama of a dictator-
ship, but it had during long decades lived under the ruling of a single, dominant, hege-
monic party, which was also responsible for massive human rights violations. These
violations included cases of abuse and torture by the police and also cases of electoral
abuses that in the end seriously undermined the legitimacy of the social and politi-
cal order (Saltalamacchia and Covarrubias 2011, 15). Moreover, Mexico suffered from
extreme political violence—there were numerous and serious cases, in this respect,
which gathered enormous internal and international attention. These cases included
the murder of Luis Donaldo Colosio, candidate of the main party, the PRI, to the presi-
dency of the country; and also that of José Francisco Ruiz Massieu, General Secretary
of the PRI. The aforementioned political and legal context became even more complex
as a consequence of the unexpected, radical social uprising of January 1994, led by
the Zapatista movement. In that context, the dominant political elite found it very
difficult to continue delaying the adoption of significant legal changes (17).
Facing this difficult situation, Mexican political authorities began to promote slow
but also persistent legal reforms. According to some, these reforms began as more
“defensive” reforms and then became more “active” or aggressive. The proposed
reforms were diverse, and they included, for instance, an invitation to the International
Commission of Human Rights in 1996 (this was the first time that Mexico invited the
Commission to evaluate the human rights situation in the country) and the signa-
ture of the Rome Statute (16‒21). More interesting for our purposes, and following
a gradual process of political aperture, the legal reforms began to gain constitutional
status.
The new constitutional changes included those concerning access to information,
changes protecting personal data, antidiscriminatory norms, the constitutionaliza-
tion of social rights (such as the right to health, housing, nourishment, and a clean
and healthy environment), the provision of special protections to specific vulnerable
groups (from minors to indigenous groups), and even the prohibition of the death
penalty (a survey of these reforms in Salazar 2012).
The most important and substantive reforms were introduced in 2012, with new
and very significant constitutional modifications. These new changes included a fresh
and strong constitutional aperture to the International Human Rights Law (including
the decision to follow principles of international law such as the interpretation pro
personae or the principle of progressivity in the application of social rights), a more
active commitment to the effective protection of human rights (including the obli-
gation of the state to investigate, sanction, and repair human rights violations), the
prohibition of sexual discrimination, the constitutionalization of the right to politi-
cal asylum, the establishment of strong limitations on the arbitrary expulsion of for-
eigners, the transfer from the Supreme Court to the National Commission of Human
Rights of the capacity to conduct investigations in cases of grave violations of rights,
and so on. (Carbonell 2011).
Notably, this reform came at the same time that the country was going through a
profound humanitarian crisis as a consequence of the so-called “war against drugs,”
led by the government through the armed forces. According to some commenta-
tors, this was a period of “exacerbated violence” and “illegality” on the “part of the
armed forces” (which provoked, among other things, six condemnatory decisions by
the Inter-American Court of Human Rights). This growing contradiction between
Constitutions that are increasingly more generous and constitutional practices that
are increasingly more unjust must be highlighted.
The fact is that, by the end of the century, the entire region offered extremely
strong constitutions, at least with regard to the social, economic, and cultural rights
that they included.8
Power and Rights in the New Constitutionalism

The analysis presented in the previous pages allows us to recognize the importance and
variety of the changes incorporated by Latin American constitutional law in the last
decades. The question we now pose is what the proper assessment of those changes
is. The answer is not clear, although we do have numerous analyses that may help us
reach a conclusion.
For example, according to the Argentine researcher Gabriel Negretto (2009, 2011a),
between 1978 and 2008 Latin America created fifteen constitutions.9 During that
period, ten countries modified their rules for presidential reelection—rules that, in
total, were modified sixteen times (on nine occasions in order to make the clauses for
reelection more flexible; and in seven cases for restricting that possibility).10 In twelve
countries of the region, the presidential powers have been augmented, and only in six
were they restricted (Negretto 2011a).11 Trying to provide a general picture of what
was done in the period, the author also suggests that some of these measures were
aimed at “concentrating power in the hands of the president,” while others came to
strengthen the controlling powers of Congress and the Judiciary (Negretto 2011b).
In another comparative examination of the same reforms, Rodrigo Uprimny begins
by mentioning some of the common features that characterized these changes. In his
opinion, the new Constitutions tended to re-elaborate their sections related to rights:
they provided special protections to “traditionally discriminated groups,” became more
open to the international human rights law, recognized the multicultural character of
the new societies, abandoned certain previous religious commitments, and so on. In
addition, Uprimny examines what the Constitutions did concerning the organization
of power.12 In that respect, he mentions that the new documents “preserved enormous
powers in the hands of the executive” and generally tended to “accept the possibility
of immediate re-election.” However he also believes that through these changes the
Constitutions also introduced “important efforts for limiting the presidential powers”
(Uprimny 2011, 10).
Another commentator, Gerardo Pisarello, first distinguishes between reforms that
came at a time of “conservative reflux” (at the beginning of the 1990s, for instance, the
reforms promoted by Fujimori in Peru or Menem in Argentina, but not the Colombian
1991 Constitution) and those that came after the processes of “structural adjust-
ment” (including those of Bolivia, Ecuador, and Venezuela). In his opinion, the first
types of reforms tended to strengthen the presidential authority and tried to open the
Constitution to “privatization or monetarist policies” while at the same time includ-
ing new “protections of rights, according to international law.” The latter changes, he
maintains, tended to be of a different type. He actually classifies them as belonging to
the “radical democratic constitutional tradition” (Pisarello 2010, 193). For him, these
latter reforms tended to promote “more political participation” and the protection of
“collectives in situations of exclusion.” Also, he believes that these new changes gener-
ally came to challenge the neoliberal policies applied in previous years, particularly
through the promotion of a more active economic state (195‒96).
The previous analyses are in general consistent, in one important respect, with
the conclusions of a significant comparative work called Comparative Constitutional
Project (see also Cheibub et al. 2011; Elkins et al. 2010, commented by Hartlyn
2011). According to the conclusions of that work, the latest reforms have kept
the matrix of concentrated political authority basically intact. The authors of the
report also maintain that in recent years there has been in the region an “increase
in the clauses transferring legislative powers to the executive branch” (Cheibub
et al. 2011, 1718).13 This result, they believe, represents one of the main aspects
where most recent reforms tend to converge. These recent studies maintain that
the latest reforms have shaped a particular, Latin American model of presidential-
ism, which consists of a president with ample legislative powers and also ample
emergency powers (1730).
In sum, we can say that one of the main features of the recent reforms has been
the preservation of a distinctively presidentialist organization of power based on the
concentration of functions in the hands of the president. A second feature of these

reforms concerns the changes that they introduced in relation to the rights section of
the Constitution. In this respect, we could say that the recent changes clearly strength-
ened their previous commitments regarding individual and collective rights. In the
following section, we shall critically reflect upon this phenomenon, which suggests the
existence of internally contradictory constitutions.
More Presidentialism and More Rights:

A Contradictory Relationship?
The description we presented in the previous pages refers to a Constitution that works
with two different velocities and two somehow opposite purposes. We thus find, on
the one hand, a Constitution that is anxious to ensure the imposition of order; and,
on the other, a Constitution that is concerned with ensuring that each step is taken
in agreement with the full acceptance of guarantees and rights. On the one hand, a
Constitution that affects democracy through the preservation of a vertical and cen-
tralized organization of powers; and, on the other, a Constitution that aims at democ-
ratizing society through the distribution of new rights and the expansion of the more
traditional rights, typically, political rights.14 Why did Latin American constituents
opt for such a design that seems to take the internal constitutional tensions to the
extreme? Why, for example, did they try to disperse power through the distribution
of rights, while concentrating powers through the organization of powers? Is it simply
that they did not realize they were creating the conditions for future institutional con-
flicts? In what follows, we shall explore three possible responses to these questions.
Autonomy and Indifference

Perhaps Latin Americans chose to design their institutions in the way they did because
they did not think that in that way they were going to favor the emergence of con-
flicts of any kind. In other words, they did not imagine that they would be creating
constitutional tensions because they assumed the existence of two completely sepa-
rated spheres—one related to the organization of power and one related to the orga-
nization of rights. According to this view, constitutional thinkers would have acted
as if the different sections of the Constitution were autonomous. The idea would be
that each section of the Constitution has its own rules and its own internal logic,
which are independent from the others. Another related assumption would refer to
the self-operative character of the different constitutional clauses. The idea would be,
in this case, that by merely incorporating certain rights in the Constitution, these
articles would slowly tend to gain life, becoming more operative.
However, these views seem to be too simplistic. Against what liberalism has usually
suggested (“liberalism as the art of separation,” according to Michael Walzer’s (1984)
famous claim), the Constitution should not be seen as being composed of autonomous
components, but rather components that are related and interdependent.15 For exam-
ple: if rights are barriers or limits to power, then the inclusion of more rights (or an
expansive interpretation of those rights) may imply more limits. In other words, these
rights may limit the scope of action for existing powers.16 The argument that constitu-
tional clauses are self-operative also falls short. That view tends to be contradicted by
well-grounded criteria that suggest the opposite: in the end, every new clause comes
to life in a particular political, institutional, and legal context, which may be hospi-
table or hostile to the constitutional novelties that suddenly begin to ask for a place.
(In previous pages, for example, we have studied the way in which the enforcement of
social rights was systematically blocked for several decades, by a judicial organization
that was not very receptive to these new rights.)
A more sophisticated version of the former argument would maintain that the
different sections of the Constitution are indeed interrelated, but in a peaceful, non-
problematic way. In other words, the idea would be that in usual circumstances there
exists a relation of relative indifference between the two sections of the Constitution.
Finally, one could claim that in the history of Latin America we have seen governments
of a very different type coexisting with Constitutions that became more generous in
terms of rights. This coexistence would suggest that the machinery of powers would be
totally compatible with diverse and changing organizations of the bill of rights section
of the Constitution. Surely, these kinds of experiences may have contributed to the
extended idea about the relationship of “indifference” between the different spheres
of the Constitution. The question is, however, whether that rather simplistic approach
resists a more detailed analysis. Herein, we have supported (and we shall continue sup-
porting) a different understanding that says that the image of “peaceful coexistence”
hides, on occasion, the political branches’ failure to comply with their obligations; or is
blind to the implications of having a president hindering the implementation of social
rights; or unduly ignores the meaning of having a Congress that indefinitely delays its
duty to help implement the participatory clauses of the Constitution.
Compensation
A second approach would say that the project of strengthening presidentialism
while expanding rights allowed Latin Americans to reestablish a certain constitu-
tional equilibrium. That movement would have thus favored an inter-sectional com-
pensation, which would have permitted the internal balance of the Constitution to
be kept. This approach would suggest that the different sections of the Constitution
were neither autonomous nor self-operative, nor indifferent. Rather, there would
be a relationship of dialogue between the two spheres, which in this particular case
would have permitted compensation of the unbalanced situation with the organiza-
tion of powers. The latest reforms would have thus promoted compensation rather
than contradiction.
This is the conclusion that, some could say, derives from the majority of the com-
parative studies presented in this chapter. For example, Uprimny (2011) or Pisarello
(2010) clearly maintain that, on balance, the new Constitutions augmented the pow-
ers of the executive and allowed presidential reelection, but at the same time strength-
ened their social and inclusionary aspects.
Gabriel Negretto refers to the seemingly “inconsistent institutions” that characterize
some of the new Constitutions (Negretto 2011b, 1792, emphasis added).17 However,
he emphasizes that “contemporary trends in electoral rule changes have . . . not all
favored Executive power concentration” (Hartlyn 2011, 1980). In this respect, he

mentions the “growing congressional power over cabinets,” the “growth in political
decentralization,” the “greater judicial independence from the executive,” and refers to
the “introduced elements of direct democracy” incorporated in the new constitutions,
including “in some countries the popular recall of presidents” (Hartlyn 2011). This is
to say, in the latest reforms, the growing presidential powers would have been some-
how “compensated” by the emergence of numerous counterbalancing tendencies.
In sum, it is possible to infer from the previous analyses that the recent reforms
both strengthened and limited the powers of the Executive. In effect, while certain
constitutional clauses would have transferred more powers to the executive branch,
other changes would have compensated that move by expanding the capacities of the
people to control and make their representatives accountable. According to Hartlyn
and Luna, “comparing formal executive powers found at the beginning of the coun-
tries’ most recent democratic period (or enacted in the Constitution which ushered in
that period) with current formal powers (as of 2006), we find that the overall trend
has been one of slight movement toward declining executive powers” (Hartlyn and
Luna 2007, 6). The cause of this decline would be “the emergence of greater [potential]
constraints on presidential power concentration in other [non-legislative] areas” (6).
This is similar to what Pisarello maintains in his analysis, when he claims that the
“neo-presidential” system promoted by the latest reforms have been in the end “miti-
gated by other mechanisms of control, such as the right to recall, a kind of popular
motion of censure, which has already been used in the cases of Venezuela and Bolivia”
(Pisarello 2011, 194).
Now, the “compensatory” view that is proposed by the above-examined studies
seems questionable for diverse reasons. First of all, those studies assume an egalitar-
ian relationship between the different spheres of the Constitution, thus ignoring the
dimension of “power” that is present. In effect, the constitutional section dedicated to
the organization of powers could be properly considered as the one that includes the
“engine” of the Constitution. For that very reason, one might conclude, the reforms
included in one or the other section should not be judged as if they had a similar
impact or transformative capacity: the “engine” is located in only one of those sec-
tions and—one may expect—exercises a special influence on the functioning of the
entire Constitution. Second, and in connection with our first point, we should say
that the previous studies seem not to take the dynamic aspect of the Constitution seri-
ously. Rather, they seem to adopt a rather static reading of the document. When we
take into account this dynamic aspect, we recognize that the relevant question, after a
reform process, is not one about what the reformers did or attempted to do, but rather
one about what we could expect to happen, given the existing distribution of powers,
when the adopted reform is set in motion. Usually, the established powers (say, a dom-
inant Executive power or the existing judicial organization) have special capacities
for fostering or hindering (for activating or deactivating) the novel reforms. Finally,
the mentioned works seem not to properly consider, in their analysis, the importance
of context and history. When one takes into account these historical and contextual
variables, one immediately recognizes that in Latin America the Executive became
the primus inter pares within the organization of power and thus appears in a position
of privilege within the constitutional structure. The Executive has, on the one hand,
institutional tools that favor its predominance over the other branches. On the other
hand, since its creation, the Executive obtained additional institutional powers as a
result of different para-constitutional practices and decisions. All of these special pow-
ers have contributed to undermining the authority of Congress. They have also trans-
formed the judiciary into a usually fragile, politically dependent institution (Domingo
and Sieder 2001; Gloppen 2010; Prillaman 2000). The president has become capable
of exercising its dominion in relation to the other branches of power.
Necessity
Finally, we will mention another, more optimistic approach, which considers that
the new reforms have been not only substantively appropriate but also necessary,
in order to ensure a proper respect for rights. According to some proponents of this
view, these new Constitutions would have come to articulate “the lost (or never recov-
ered) relationship between sovereignty and the government” (Viciano and Martínez
Dalmau 2011, 20). Against what we have so far suggested, the idea would be that the
recent reforms would have actually “activated,” rather than dishonored, the renewed
social aspects of the Constitution. This is why scholars talk about the different “forms
of democratic participation” created by the Colombian 1991 Constitution, refer to
the system of “participation within democracy” designed by the Ecuadorian 1998
Constitution, or study the model of participatory democracy established in the recent
constitutional documents of Venezuela and Bolivia (21).18
Such views seem close to affirming that a system of concentrated authority is a nec-
essary condition for making a politics of rights possible. As one researcher has recently
argued, historically, “the consolidation of social rights” in the region always appeared
in contexts characterized by “the concentration of power in the hands of the execu-
tive, accompanied by parliamentary hegemony, rather than in contexts of weak presi-
dencies and pluralism within the legislatures” (Etchemendy 2012).
In the face of these views, one could make the following introductory point: indeed,
the type of hyper-presidentialism that has become dominant in the region is, in prin-
ciple, compatible with the most diverse outcomes in terms of constitutional rights.
Hyper-presidential regimes may promote the constitutional endorsement of those
rights. They may ensure their full or partial respect. They may promote the systematic
violation of those rights. As a result, and at least prima facie, we do not have reasons
to affirm either that hyper-presidentialism implies, per se, the disrespect of constitu-
tional rights or that it is inconsistent with their promotion.19
Having said this, we should add that through this work we have advanced
the following arguments, which could contribute to undermining the idea that
hyper-presidentialism is a precondition—or even a good basis—for a strong politics
of rights.
First, Latin America’s history offers significant evidence supporting the existence
of a correlation between more liberal regimes—those that were more resistant to
authoritarianism and the concentration of power—and the expansion of rights. This
tended to occur in the region after the end of military dictatorships and the coming
to power of democratic regimes. Very commonly, these new democratic governments
offered more “moderated” versions of presidentialism, which came together with
stronger protection of rights and a particular concern for human rights. This outcome
challenges, in principle, the above-suggested idea that maintains that a strong ver-
sion of presidentialism is a necessary condition for the “creation” and protection of
fundamental rights.20
Second, those who defend the existence of a correlation between strong versions
of presidentialism and the creation of rights should tell us something more about the
trajectory of those governments and those rights. Many authoritarian regimes both
enforced and limited certain rights (i.e., social rights); and other governments cre-
ated certain rights (again, social rights) while at the same time limited other different
kinds of rights (think, for example, about the cases of Perón and Vargas, who both
promoted the creation of new constitutional social rights and severely challenged or
undermined individual rights).
Third, our previous claims coincide with one of the basic “iron laws” of constitu-
tionalism once advanced by James Madison. This law referred to the risks derived
from unbalancing the system of “checks and balances.” For Madison, as for many of
his contemporaries, if one of the branches of power became more powerful than the
others, then the more powerful branch tended to undermine the authority of the oth-
ers, and thus became a threatening force or a source of abuses.21 We have here main-
tained that contemporary Latin American history represents a good illustration of the
risks of opting for an institutional design of those characteristics. In effect, in Latin
America the Executive became the primus inter pares and gradually began to erode the
authority of the other branches. The consequences of this “law” for the purposes of
our present analysis are also significant. On the one hand, one could predict that an
Executive with greater powers and lesser controls would become an even more seri-
ous threat to fundamental rights. On the other one hand, one could also anticipate
that the Executive would tend to block all those initiatives capable of “empowering”
the citizenry (or other branches of power) or capable of questioning his or her own
authority. In this and in previous chapters we have also made reference to the ways in
which nonegalitarian contexts tended to aggravate those evils.
In addition, we have strengthened our arguments through further reflections on
constitutional theory. We have made reference, for example, to the problems gener-
ated by the implementation of constitutional transplants and “grafts.” We have said,
in that respect, that it was difficult to introduce significant changes in the old “insti-
tutional matrix” by merely adding to it new (social) articles that suppose and call for a
different institutional organization. We have thus made reference to the way in which
the “old” legal organization tended to restrict the possibilities of the “new” ones to
grow and flourish in the proper, desired way. In direct connection with the previous
comments, we insisted on the importance of thinking about the crossed impact of the
reforms on the different sections of the Constitution. We have thus emphasized that
the different sections of the Constitutions tend to enter in dialogue with themselves,
and that the strongest and more established section of the Constitution—the one
related to the organization of power—tended to resist the introduction of “threaten-
ing” changes in the opposite section.
Finally, we could mention that the opposing view—the one that connects
hyper-presidentialism with the protection of rights—hides the fact that Latin American
hyper-presidentialism did not only come together with the constitutionalization of
social rights but also with the dismantling of the welfare state and the undermining
of social rights. We can think, in this respect, about the cases of Menem in Argentina,
Fujimori in Peru, or Collor de Melo in Brazil, among others.
In sum, hyper-presidentialism is, according to our view, consistent with the cre-
ation and enforcement of new rights but at the same time consistent with the
non-application and undermining of those rights. Moreover, we suggested that
hyper-presidentialism tends to normally work against rights—particularly when the
enforcement of certain rights contributes to the empowerment of social sectors that
can challenge the authority of those in power.
* * * *
Madison vs. Schmitt: The Schimittian Argument

for Hyper-Presidentialism: A Critique
In this section we are going to explore a renewed argument in defense of the con-
centration of powers, and certain forms of hyper-presidentialism, that is based on
old Schmittian ideas. The renewed version of this argument is also based on a direct,
explicit rejection of Madisonian ideas such as the ones expressed in previous pages
(see, e.g., Aguilar Rivera and Negretto 2000). These arguments, which favor a certain
concentration of powers in the hands of the executive, take as their starting point the
fact that there have been substantive political changes in the last few decades which
demand a different approach to the old Madisonian system of “checks and balances.”
In our time, it is said, the Madisonian approach has lost part of its meaning and sense,
given that the main axis of institutional power has been (fortunately) displaced to the
executive branch. This change has been required in order to confront the urgencies
that characterize contemporary societies: only the Executive power would offer the
speed and action demanded by present politics.
At the same time, the argument follows, traditional controlling powers in the
hands of Congress and the judiciary have become weaker as a consequence of two
main factors. On the one hand, most countries have chosen to promote delegations of
legislative authority to the president. On the other, the Executive began to expand its
own capacities through new emergency powers. Usually, these changes appeared after
periods of crisis such as the ones that have been distinctive of the last decades (from
economic and financial crises, which favored the Executive’s intervention in economic
affairs, to security crises, which have resulted in the enactment of new antiterrorist
laws in the entire region, from the United States to Argentina, Ecuador, or Chile).
For defenders of this approach, the reasons explaining or justifying these de iure
and de facto delegations of authority to the Executive would be apparent. First, both
Congress and the Judiciary suffer from an information deficit that would hinder their
capacity to intervene in situations of crisis. Second, both branches are affected by
operative problems that would also affect their reactive capacities. These operative
problems would principally include collective action and coordination problems. In
sum, the idea would be that both Congress and the Judiciary face severe obstacles for
acting with the knowledge, speed, and capacity that present circumstances require
(Posner and Vermeule 2010, 215).
What has usually emerged in these contexts is the creation of “imperial presiden-
cies” with an ample and growing capacity to act at will (Ackerman 2010). According
to the defenders of this model (and this is a crucial point in their argumentation),
there is nothing to fear from the emergence of this new panorama. According to this
Schmittian view, the “panic” generated by a powerful Executive derives from the typi-
cal “liberal legalism” that confuses the lack of formal, legal controls upon the president
with the absence of controls altogether (Posner and Vermeule 2010, 4). Contrary to
what liberals claim, Schmittians maintain that presidents in our time would actually
be subject to significant political controls that would take the place of traditional legal
controls. These political checks would include, for instance, those that allow the sov-
ereign people to prevent the reelection of the president, if they wish. They would also
include other informal checks facilitated by the “revolution in communications” that
characterize present democracies (i.e., the Internet). These new controls would make
it costless and easier for the public to criticize and check their authorities (209).
The lesson to be learned from this analysis would be that the time has come to
abandon the Madisonian paradigm of “checks and balances” so as to accept the force
of the Schmittian model. According to this view, “the rapidity of change in the policy-
making environment and the institutional incapacity of legislators and courts to sup-
ply the necessary policy adjustments make executive governance inevitable” (Posner
and Vermeule 2010, 16; Schmitt 1994, 2008).
The problems with this view are numerous, and here we shall only mention a few.
In descriptive terms, this approach affirms the importance of popular, more informal
control of the Executive, in comparison with the traditional legal controls proposed by
“liberal legalism.” Now, this conclusion seems to be based on an overestimation of the
people’s chances to control power, and an underestimation of the Executive’s capaci-
ties to overcome all limits to its authority. On the one hand, these new defenders
of hyper-presidentialism suddenly abandon the radical skepticism that characterizes
their approach to legislative and judicial controls when they turn to examine popu-
lar controls. In effect, when they refer to popular formal and informal checks, they
transform this skeptical view into a very optimistic attitude. As we have seen, in their
analysis of legislative and judicial controls they seemed eager to mention the serious
information, coordination, and collective problems that affected the controlling capac-
ities of the two branches. In their analysis of popular controls, instead, those problems
seem to be basically absent. As a consequence, defenders of the Schmittian view claim,
without much nuance, that popular controls work pretty well. Common sense, how-
ever, suggests that the citizens have even more serious information, coordination, and
collective action problems than the Congress and the Judiciary together.
On the other hand, the previous analysis overestimates the controlling powers of
the citizenry by emphasizing the (retrospective) character of suffrage, and particularly
its power to prevent or sanction the excesses of the Executive. The fact is, however,
that suffrage is an extremely limited tool, particularly if we consider its capacity for
making the government accountable. Above all, this is so because the citizenry may
want to give multiple and different orders or messages through the vote, but they have
only one chance to express all those different messages. These messages may grow in
number, after some time, and develop in different, perhaps opposite directions. (For
example, someone may want to “punish” the Executive for what it did with respect to
X, but at the same time “reward” the president because of its policy Z). Each person has
only one vote, every few years, which can hardly help citizens to express their view in
any topic. It may be difficult to transmit their multiple agreements and disagreements
on so many different areas. In sum, given the enormous limitations that characterize
the right to suffrage, one could say that even the strongest controlling mechanism in
the hands of the people is too limited for ensuring that purpose.22
In addition, defenders of a strong Executive underestimate the president’s capaci-
ties to evade controls and undermine the authority of those willing to restrict its pow-
ers. These capacities of the president seem to be even more significant in unequal
societies, such as most of Latin American. Think, for example, about the Executive’s
influence upon the judiciary (i.e., the influence it has in the appointment, removal,
or displacement of judges; or in the pressures that it exercises against hostile judicial
decisions); or in the way it imposes its authority or blocks the functioning of Congress;
in the development of the doctrine of “political questions”; or in the successive effects
of federal intervention; or in the emergency powers it enjoys, and the emergency deci-
sion that it takes; or in its capacity to issue necessity-decrees, and so on (Nino 1990,
1265; Nino 1996). All these powers refer to the Executive’s exceptional capacities for
imposing its own authority, in most circumstances, which also runs against the (new
version of the old) Schmittian argument. In the end, this analysis helps us recognize
the importance of limiting the development of “imperial presidencies” and restrain-
ing their capacities, which is to say, that we do not have good reasons for “accepting”
existing practices, “reconciling” with the dominant institutional structure, or “making
peace” with it (Posner and Vermeule 2010, 209).
Most of the arguments we advanced against the Schmittian position challenge its
descriptive assumptions. However, we should note that there are also many normative
arguments against that view. It may suffice to say that the president’s attractive capaci-
ties for dealing with emergency situations or circumstances of crisis may mask numer-
ous other problems relating to political, epistemic, and moral questions. To mention a
few, we could state that hyper-presidentialism (1) tends to facilitate the work of pow-
erful interest groups (which find it much easier to exert pressure on one person than
over a large group—a problem that, of course, tends to be much more significant in
profoundly unequal societies); (2) increases the risks of mistake (given the absence of
voices and mechanisms capable of forcing the Executive to think through its decisions
twice); and (3) eases the path to the commission of grave human rights abuses (this
is so, again, because of the absence of mechanisms of “check” and “alert” regarding
the unconditional rights and interests of minority groups). As Jeremy Waldron main-
tained, the “enhanced power” of the president may not only work for certain valuable
goals (say, increased security) but also in the opposite direction: “diminishing liberty
might also diminish security against the state, even as it enhances security against
terrorism” (Waldron 2010b, 26).
Having said this, we should insist on at least one point: the critique that we are here
presenting against hyper-presidentialism in no way implies a defense of parliamen-
tarianism, as if this were the only alternative to presidentialism. Parliamentarianism
does not appear as a viable alternative, according to the principles that we have here
defended (even less when we take into account the actual functioning of Congresses
in Latin America). At the same time, our critique does not imply a defense of the new
role acquired by certain judiciaries in the region, in the last decades (even less when
we recognize the elitist character that is still distinctive of Latin America’s judicial
organization).23
“Mixed” Constitutions, Reform, and Contradiction:

Is Consistency a Value?
In this chapter, we have studied different cases of Constitutions that seemed to
strengthen their internal contradictions, given the way in which they organized their
different parts. Even though in what follows we shall concentrate our attention on
those tensions, which we shall call internal contradictions, it may be useful to refer,
first, to what we shall call external contradictions.
Juan Bautista Alberdi can be seen as a precursor in the analysis of external con-
tradictions or, in other words, the analysis of the consistency of the law as a whole.
For that purpose, Alberdi typically studied the relationship that existed between the
Constitution and the different laws actually in force. This is what Alberdi said in chap-
ter 18 of the Bases:
[The task ahead is not limited] to declaring the right to private property
inviolable, but rather it must guarantee the reform of all the civil laws and
all the colonial regulations which remain in force, [and which] in spite of the
republic, make this right illusory and nominal. With a republican constitu-
tional law and an administrative colonial and monarchial law, South America
seizes with one hand that which it promises with the other: liberty on its
surface and slavery in its depths. (Alberdi 1981)
The most recent constitutional reforms in the region offer many interesting (and
also worrisome) examples, in that respect. For instance, we have seen the case of
Constitutions that were particularly strong in terms of the social rights that they incor-
porated, even though (or perhaps, because) they appeared at the time when extremely
antisocial neoliberal programs were applied. The cases of Brazil and Colombia were
particularly telling in this respect. Both constitutions strengthened their social com-
mitments at the very same time when numerous other, market-oriented laws, were
approved. As we know, one of the main consequences of these programs was a sudden
and dramatic growth in poverty and in the levels of unemployment. Another parallel
case is that of Mexico 2012. In this case, we find a significant contradiction between
what was done at the level of the Constitution and what was promoted in the actual
legal practice. As we know, Mexicans promoted an avant-garde reform in terms of the
incorporation of international human rights treaties and norms; while at the same
time developing a policy characterized by grave violations of human rights, carried out
in the name of a “war against drug-traffic.”
Alberdi’s concerns, related to the external contradictions of constitutionalism,

can be perfectly extended to the internal level of the Constitution. For instance, we
may find constitutions that provide strong protections of private property while, at
the same time, establishing bold social commitments with regard to social rights. In
this case, we also find the risk of “seizing with one hand what is promised with the
other”—as Alberdi denounced. Given the importance of the topic, in what follows
we shall concentrate our attention on these internal contradictions, assuming that
what we said in this respect would also be meaningful, in the end, with regard to the
external contradictions.24
More specifically, we shall here refer to those Constitutions that improperly “mix”
institutions belonging to different constitutional models. The “mixture” would be
“improper” if it implied the combination of institutions coming from opposite mod-
els, in aspects where these models are in tension. This would be, for instance, the case
of a Constitution that combined a firm commitment to property rights (like most
liberal Constitutions do) with a strong concern for the “social question” (like what
radical Constitutions did). Or, to mention another example, this would be the case of
a Constitution that at the same time established an exclusionary political system (like
the one promoted by the liberal-conservative compact) and promoted an inclusive and
participatory democracy (like the one that radicals wanted to advance).25
Also as an introductory note, we should mention that these contradictions tend
to radicalize other tensions that seem inherent to any Constitution. In effect, all
modern Constitutions seem to be the expression of a double commitment to the
values of democracy and rights that are, in principle, in tension (Elster and Slagstad
1993). That contradiction is expressed in the establishment of a section dedicated to
the organization of powers and the section dedicated to the organization of rights.
There—in that double commitment—resides the “main and fundamental constitu-
tional contradiction.”26 The existence of this first and fundamental tension defines,
from the very beginning, the character of all constitutions.
These kinds of initial tensions tend to become immediately extended to the rest
of the constitutional structure. Those tensions, however, can be moderated, diluted,
or aggravated in accordance with the way in which we structure the rest of the
Constitution. The tensions tend to be aggravated with Constitutions that “mix” differ-
ent institutional models in aspects where they are in tension.
Internal contradictions can be of diverse kinds. We may find, for example,
inter-sectional contradictions, that is to say, contradictions between the section of
rights and the section dedicated to the organization of powers. This would be the case,
for instance, of a Constitution that wanted to promote political participation at the
same time that it established firm protections to property rights; or a Constitution
that appeared too generous in terms of social rights and at the same time strongly
exclusionary in political terms.
There would also be intra-sectional contradictions, that is to say, contradictions that
appear in the same section of the Constitution. These contradictions would appear, for
instance, in a Constitution that at the same time expressed a strong commitment to civil
rights (and mainly to the right of property) and at the same time included a very gener-
ous list of social, cultural, and economic rights (a situation that became all too common
in Latin America, particularly since the enactment of the 1917 Mexican Constitution).
The question would then be how to conceive of and evaluate the decision to draft this
kind of Constitution. One could consider the decision correct, in that it allows either
commitment to prevail, depending on the relationship of the forces that dominate at
any time: in situations of social fervor, the Constitution appears as capable of summon-
ing the most advanced initiatives. Something similar occurs in situations where these
social demands ebb. Nevertheless, if this were the answer, it would be an unsightly one,
insofar as there are thought to be better ways of safeguarding constitutional neutrality.
For example, other solutions could include establishing a greater level of generality in
constitutional language, remaining silent on these questions, or proving their com-
patibility with different economic programs. In this sense, one could revisit Thomas
Paine’s criticisms of constitutions that established systems of intervention and mutual
control between the powers: these Constitutions ended up, in his opinion, being con-
fused constitutions that prevented the citizens from having clear access to their mean-
ing and orientation. In Common Sense, he wrote, “But the Constitution of England is so
exceedingly complex, that the nation may suffer for years together without being able
to discover in which part the fault lies” (Paine 1987, 69).
On the other hand, it does not seem certain, actually, that the situation we
described ends up being realistically descriptive: a Constitution with contradictory
promises can be simultaneously activated, in both directions, by the simple fact that
any Constitution includes majoritarian institutions (which are, in principle, more
sensitive to changes in the majority’s humors) and counter-majoritarian institutions
(that can, in principle resist the majorities).27
One could claim, in addition, that in pluralist societies it is particularly important
to have constitutions that acknowledge and express the existing diversity of values. By
contrast, in pluralist societies we should neither expect to have, nor demand, mono-
lithic constitutions (that is to say, Constitutions that are organized around one single
value or set of values related to one particular conception of the good). This argument,
however, is substantially flawed. The fact is that there are different ways to accommo-
date different principles and express society’s pluralism. For instance, the principle of
tolerance may be a nice way to accommodate the demands of Muslims, Atheists, and
Protestants. And that constitutional response is very different from another where
the Constitution, at the same time, takes sides with a particular religion and also
affirms the principle of state neutrality (something like this is what we find, in fact,
in Argentina’s Constitution, and the contradiction that it established between arts. 2
and 14 of its text). In a similar way, a Constitution may show respect to different eco-
nomic views by simply accepting the possibility that different governments—say, one
socialist and one conservative—rule the country. However, this attitude is very differ-
ent from another one, where the Constitution appears, at the same time, committed
to the principles of free market and committed to the adoption of strong programs of
social coverage to all (we find something like this in Colombia’s 1991 Constitution).28
In sum, there are different ways of honoring the principles of a pluralist and tolerant
state, which do not require the creation of a contradictory text, which at the same time
affirms and denies a certain commitment.
Now, given the extent and depth of the contradictions already discussed, why, ulti-
mately, should we need a more consistent Constitution, if regardless, we will remain
stuck in the context of irresolvable inconsistencies?
These kinds of questions are very important, but, we can say, they too are suscep-
tible to a common, decisive answer. Constitutional consistency is valuable, but not,
as Paine believed, because of the relatively minor (though not irrelevant) fact that
through it we have a more clear and orderly law.
Consistency is important in as much as it favors the predictability of the law, and,
thereby the rule of law. To the contrary, the greater the risk of contradictory solutions
to our conflicts, and the greater the risk of expecting constitutional contradictions,
the less certainty the law will have. This would lead to fewer reasons for individu-
als to obey or place their trust in the rule of law. (Although, of course, this does not
imply that a Constitution cannot be consistent though it is applied contradictorily,
in the same way in which it can be internally inconsistent and applied in a consistent
manner.)
In any event, the principal value of consistency, as we understand it, is not this—
but rather something related to it, and that refers us to our obligation to treat all
people as equals. This, and none other, is the principal commitment that we under-
take when we draft a “democratic and rights based” Constitution, that is to say, when
we affirm the value of a pact among equals. The mere fact of drafting a Constitution
already implies, in this way, taking sides in favor of equal treatment. In other words,
it is a question—to borrow the words of legal philosopher Ronald Dworkin—of treat-
ing everyone with equal consideration and respect. This equal consideration vanishes
when, today, we condemn someone facing circumstances similar to those that led us,
yesterday, to free another (this would convey to all that this person’s liberty once had
a certain scope that we now deny). In this way, when as judges yesterday, we allowed
an individual possessing drugs for personal use to go free, we conveyed to all other
citizens that the constitutional commitment to freedom incorporates the idea that
each individual is master of choosing and freely developing the way of life that he/she
prefers. This conclusion is contradicted, however, if today we allow another individual
to be convicted when she is found in possession of a similar quantity of drugs. In this
case, the law would be acting at will, in accordance with the impulse of the moment,
and in this way would be treating each individual in a substantially different way. It
would be treating one of them as if she had less intrinsic value or less equal dignity
than any another.
Ultimately, as Dworkin would say, it is a question of the law making a single per-
sistent effort at integrity, directed toward speaking to the people with one voice, thereby
making it clear that, in every case, the state does not act arbitrarily, or capriciously, but
rather tries to establish rules and principles that are applicable to everyone equally:
that everyone’s actions and decisions are important and that they are all equally
important (Dworkin 1977; 2011, ch. 6).
International Human Rights Law vs. Internal Law

An extraordinary transformation, peculiar to recent decades and intimately connected
to new developments in constitutionalism, is related to the “arrival” of international
human rights law. Nowadays, countries in the region recognize the existence of inter-
national laws because there are international tribunals that can pose challenges to
the decisions made by the internal political and judicial authorities. Of course, it can
be said that, in the relevant sense, international law always existed. Nonetheless, it is
also true that the issue has undergone a “before” and an “after” in connection with the
most recent modifications introduced at the highest levels of regional law. And, over
the course of many decades, local law somehow always managed to relegate interna-
tional law to a specific corner. This involved, in the best cases, treaties signed between
a country and other countries that could not contradict internal constitutional order.
With these types of formulas, international law was “pasteurized” and deprived, ulti-
mately, of all ability to challenge internal law.
Toward the end of the century, nevertheless, things began to change. The reasons
for this change, which could be called the “process of the globalization of law,” are
many. We are particularly interested in those dealing with the law itself. On one hand,
the law seems ever more open to the use of norms and decisions derived from inter-
national law. Judges are inspired as never before to cite and apply international law in
their sentences. Meanwhile, they adopt standards established by international organ-
isms, follow criteria set by international tribunals, or supervise the implementation
of international norms in local administration.29
This phenomenon of stronger judicial commitment to the norms and directives of
international law seems to be driven by a new political attitude toward the interna-
tional order. On one hand, it happened that during the last decades, many regional
countries decided to incorporate international law into their domestic systems, usu-
ally according it privileged status. In some countries, such as Argentina and Bolivia,
human rights treaties were explicitly awarded the status of constitutional laws. In
other cases, such as Costa Rica or El Salvador, these treaties were awarded supra-legal
status (Rossi and Filippini 2010). In any case, ways of incorporating international
human rights law have been quite varied. Some constitutions, like those of Peru and
Colombia, included interpretive clauses in their texts that incorporated specific refer-
ences to international law. Others, like Brazil, refer to the existence of non-enumerated
rights, among which are those related to principles and treaties to which Brazil is
party. That of Guatemala makes reference to international human rights law by estab-
lishing guidelines for the country’s foreign policy. That of Chile assigns special duties
in the area of human rights with which all state organs must comply (these and other
alternatives of incorporation, in Dulitzky 1998).
The fact is that in Latin America in the last decades, events of great importance
have unfolded involving international human rights law; in some cases these served to
forge a new direction for public life in the region. Surely, the most strident case in the
area was that which led to the overseas prosecution of General Augusto Pinochet, and
which soon led to expanding Chilean criminal prosecution to include those respon-
sible for massive human rights violations. Until that time, those responsible for the
abuses had benefited from the legal approach on the part of the justice system that
wound up being dogmatic and positivist (in the worst sense of the word), in addi-
tion to being conservative. The Chilean Supreme Court provided a dramatic example
of this. Trying to respond to strong critiques about its meager protection of human
rights during the Pinochet regime, the Court held that it ought to concern itself with
the “strict” application of the (current) law (the law of the regime) (Correa Sutil 1993,
91). What is certain is that the appearance of the Pinochet case was explosive for
regional law, so that in a short time, many other cases began to appear. All of these
cases can, without a doubt, be traced back to Pinochet. Among the resonant cases that
can be mentioned is the Inter-American Court of Human Rights case Barrios Altos v.
Peru from March 2001, in which the Court invalidated the amnesty granted by the
Peruvian government of Alberto Fujimori to the participants in the so-called “Barrios
Altos Massacre,” and the Argentine Supreme Court decision in Simón,30 in which the
Argentine Court, following the Inter-American Court’s decision in Barrios Altos, invali-
dated the laws (passed democratically in Argentina) pardoning crimes against human-
ity. More recently, in April 2011, an Uruguayan congressional decision set aside the
amnesty passed in Uruguay on Crimes Against Humanity that had been twice ratified,
in separate plebiscites, by the Uruguayan people.
The growing stature of international standards and decisions made by international
tribunals and organisms adds a healthy complexity to Latin American law. Moreover,
this occurrence brings with it serious legitimacy problems. In effect, we should not
forget that the international norms invoked often refer to principles with imprecise
content that we have no clear way of identifying (typically this occurs where there
are repeated invocations of ius cogens, which holds great weight in international law).
And more importantly, decisions are made by international organisms with flimsy
democratic credentials (a particularly important case is the Inter-American Court of
Human Rights). The common, underlying criticisms laid against these tribunals—
their place on the democratic stage and the counter-majoritarian character of their
decisions (Bickel 1962)—is played out most vividly in these cases. Further still, we
could consider how the judges of these tribunals are chosen, their incredibly weak con-
nection to the citizens of Latin America, and the minuscule possibilities for citizens to
be able to engage them in dialogue or to challenge their decisions.
One particularly important case for this discussion is that of Gelman (in the case
of Gelman v. Uruguay, Sentence: February 24, 2011), decided by the Inter-American
Court of Human Rights.31 In it, the court was asked, among other things, to evaluate
the validity of the Law of Expiration (of punitive actions by the State), sanctioned in
Uruguay and by which established the expiration of “punitive prosecution of crimes
committed through March 1st 1985 by military and police officials and personnel
equipped as military for political purposes, during the discharge of their duties and in
actions ordered by the commanders during the de facto period.” Remarkably, the law
was backed by the Uruguayan citizens, who were called to give voice on the matter in
two plebiscites. Nonetheless, in its decision, the Inter-American Court held the law in
question to be incompatible with the American Convention of Human Rights, that the
“protection of Human Rights” constitutes an “insurmountable limit to majority rule”
and that the Uruguayan plebiscites did not endow the contested law with “legitimacy
as regards International Law.” Amnesties such as that of Uruguay were actionable,
“not because of a formal question, such as their origin, but rather (due to their) mate-
rial aspect.” As a result of this, the Uruguayan State was obliged, therefore, to investi-
gate and eventually sanction the serious violations of Human Rights committed in its
territory during the period of the dictatorship in power in the 1970s.
The problems posed by the Inter-American Court verdict are manifold, but here, we
can object above all to the way that the ruling cast aside—in a few lines and without
further explanation—decisions that had been made according to strongly democratic
procedure in Uruguay (that said, fully recognizing the need to critically examine the
democratic authority of any specific plebiscite), the Court’s lack of commitment to
any consideration about the more or less democratic origins of the norms in ques-
tion,32 the simplistic way that it justifies the use of penal coercion, and the lack of
reflection regarding the conditions of democratic legitimacy of its own decisions (that
is, the authority of the tribunal with fragile democratic credentials versus, as in this
case, democratically robust decisions). In any case, the interest here lies in how this
example dramatically and radically reveals the possible tensions between democratic
values and constitutionalism.33
This does not in any way imply completely denying authority to international
organisms with some degree of democratic legitimacy, less yet when the law challenged
is one that has been approved and put into effect by nondemocratic regimes (such as
the dictatorships in Argentina or Chile) or very weakly democratic regimes (such as
Peru under Alberto Fujimori after the Peruvian Congress was shut down). The ques-
tion, in any event, provokes us to include these critical new issues of law in the demo-
cratic conversation that considers that affected citizens should play principal roles.
9
Contemporary Constitutionalism II
The “Engine Room” of the Constitution
A Brief Introduction
In the previous chapter, we examined the most recent constitutional reforms adopted
in Latin America. We have seen the importance of these reforms in terms of their
rhythm or speed, and also in relation to their profundity and scope. These reforms were
complex, rather than simple: on the one hand, they tended to maintain or strengthen
the powers of the president; while, on the other hand, they insisted on the inclusion of
a robust list of social, political, and cultural rights, which promised more opportunities
for popular controls upon the structure of power. In our analysis of those reforms, we
maintained that these changes should not be read as if they affected independent and
autonomous areas of the Constitution. By contrast, we claimed that, once in motion,
those reforms tended to strengthen (or not to significantly affect) the authority of the
Executive; and also that such an unbalanced structure of powers tended to put the
rest of the reforms at risk. It seems clear that a powerful president, acting rationally,
would tend to resist all attempts to undermine his or her authority, coming from a
more autonomous or empowered citizenry.
In this chapter, we shall illustrate the referred dynamic (centralization of authority
vs. expansion of rights) with some examples coming from the new Latin American
constitutionalism. Particularly (but not exclusively), we shall focus our attention
on the example of the introduction of indigenous rights in the new Constitutions.
Through our analysis, we shall examine a characteristic that has become distinctive of
the new constitutionalism, namely the reformers’ unwillingness or difficulties of get-
ting into the “engine room” of the Constitution. Finally, we shall explore some modest
attempts directed at introducing reforms in the “engine room.”
Presidentialism vs. Rights: Ecuador, Venezuela, and Mexico

There are numerous examples that illustrate, in actual practice, the difficulties coming
from constitutions that want to promote popular participation and expand political
rights, while, at the same time, organizing power in a centralized and vertical way.
In what follows, we shall examine these tensions through examples coming from
Ecuador, Venezuela, and Mexico.
172
The “Eng ine R oom” of the Constitution 173
Ecuador
The case of Ecuador is particularly interesting in this regard. Although its last reforms
were incorporated during a period dominated by a surge of anti-presidentialism, the
Constitution did not direct its principal efforts toward limiting or tempering presi-
dential powers—rather the contrary.1 Regarding presidential faculties, with good
reason it has been said, in one of the most interesting works written to analyze the
new Constitution, that the 2008 text not only fails to reduce “the excessive presiden-
tial power consecrated by the constitution of 1998, but rather increases it, and cor-
respondingly diminishes the faculties of the legislature” (above all in the naming of
functionaries) (Oyarte Martínez 2009, 45).2 At present, the president exerts special
functions over judicial issues (granting pardons for common crimes). Independent
institutions, such as the central bank, have lost their capacity to set exchange, credit,
and monetary policy. Moreover, the president has gained legislative faculties that no
longer derive from delegation by the legislature or that formerly belonged jointly to
both powers. The president, in effect, issues implementing regulations, both delegated
and autonomous (art. 147), can propose legislation and constitutional amendments
and reforms (arts. 134 and 442), can qualify projects of law about economic issues
as “urgent,” and in the face of legislative omission can implement these projects as a
decree-laws (art. 140). Further still, the president can object to laws approved by the
national assembly either for reasons of opportuneness or vices of unconstitutionality
(arts. 138, 139, 438).
According to some, these additional faculties conceded to the president can be
seen as equilibrated, ultimately, by a series of controls and alternative institutions.
On one hand, the legislative assembly can demand the fall of the Executive by calling
early elections for both powers—the Assembly and the Executive (this right emerges
from the sudden death clause and is parallel to the Executive’s same right, with equal
consequences, arts. 130, 148). On the other hand, we find a number of participatory
mechanisms. Also notably, the Ecuadorian Constitution tries to defy the traditional
“tripartite” organization of powers by including additional State functions, as “new
branches” of power: the electoral function and the one related to popular participa-
tion, on which we shall concentrate our attention (Grijalva 2012, 33). By means of
this latter creation, all the organisms of control are coordinated and various forms
of popular participation are promoted (including the people’s faculty of revoking a
mandate or binding instructions, even the very Constitution, and it can revoke the
mandates of those who fail to comply with its will.)3
In any case, the evolving constitutional practice showed the limits of some of the
expectations created by the letter of the Constitution. This was so not only because
the strengthened presidential system ended up blocking the evolution of other
reforms favorable to political participation but also because of the way in which the
hyper-presidentialist dynamic contributed to the same expansion of the presidential
powers. This expansion in the presidential powers was thus produced, for example,
through the removal of Deputies from the opposition or the removal of all the members
of the Constitutional Court by pro-governmental legislators (Torres 2009, 432–34).
According to what was anticipated, in addition, these participatory clauses
were undermined by an Executive power that, in actual practice, opposed the
democratization of power that those clauses were supposed to bring about. In effect,
and according to what we maintained in the previous chapter, it was not at all clear
that the strengthening of the presidential powers could be in fact compensated or
counterbalanced through the emergence of more controls or more participatory insti-
tutions. We have here claimed that the two different parts of the Constitution were in
tension, and that the section related to the organization of powers exercised a power-
ful influence upon the other. Not surprisingly, in this as in other parallel cases, we find
a weak performance of the new participatory clauses.4
The immediate practice that followed the ratification of the Constitution reaffirmed
every one of the aforementioned suspicions. In a wholly unsurprising manner, it was
the very president of the Republic who limited popular participation by discourag-
ing the civic organization fomented by the Constitution or by directly vetoing legisla-
tive initiatives designed to implement the institutions created during the Montecristi
debates.5 The testimony of key personages of the convention, such as Alberto Acosta,
who was president and principal ideologist of the new Constitution, simply confirmed
what was already known: the presidential practice that followed the drafting of the
Constitution, did not help to strengthen and activate its participative clauses, but
rather limited them.6
Similarly, the “fourth state function” can and has been subjected to resounding
criticism for limiting or directly diluting, rather than ensuring and promoting, the
citizens’ participation (which was constrained by a series of bureaucratic state mecha-
nisms). With regard to this it is said that “the attempted participation, the supposed
power of the people, are not designed to be exercised by the society, but rather to be
assumed as a function of the State; the society does not control public activity, but is
substituted by State’s institutionalism” (Aguilar Andrade 2009, 97).
One important example of this appears in the referendum of 2011, promoted by
President Correa. According to the Constitution, referendums may address consti-
tutional issues, as long as they don’t alter the fundamental structure of the State,
its character and constitutive elements, restrict rights and guarantees, or modify the
due process of constitutional reform (art. 441). Nevertheless, one of the principal
objectives of this convocation was to effect participative mechanisms set out by the
Constitution that were intended to guarantee civil intervention in naming judges.7
Beginning with an extraordinarily complex question,8 the Executive ended up sup-
pressing these complex mechanisms of popular participation and thereby ensuring
that the naming of judges would remain, fundamentally, under the control of the rul-
ing party.9
In the postscript of his book on the 2008 Constitution, the Ecuadorian jurist
Ramiro Ávila examines the serious problems that came after the popular consulta-
tion. He thus refers to restrictions to “the liberty of movement, the presumption of
innocence, the right to be judged in a reasonable time by impartial and independent
judges,” among others. For him, the reform gravely impaired many of the most signifi-
cant rights that were recognized in Montecristi (Ávila Santamaría 2011, 305).10
Another Ecuadorian professor, Julio Echeverría, arrives at a similar conclusion,
which is also consistent with the main point that we here present. For him, the new
Constitution has to be seen as one “advanced from the perspective of the rights it
incorporates, but at the same time retarded with regard to its organic part” (Echeverría
2008, 33). For him, “the constitutional improvements” that the text presents go hand
in hand with different problems and disfunctions included in relation to the organiza-
tion of powers. These problems, he claims, affect in the end the institutional structure
in charge of putting in motion the “public policies required” for the implementation
of the new rights (34).
Venezuela
The case of Venezuela also offers an important example of the point we are trying to
advance here: once again we find a broad text in terms of popular participation, but
one which preserves the Executive branch’s extensive powers and scope for action. For
example, article 72 of the Constitution states that:
All of the popularly elected positions and magistracies are revocable. After
one half of the term for which a functionary is elected, no less than twenty
percent of the registered voters of the corresponding district may solicit a
call for referendum to revoke the mandate.
In addition, the Constitution attempts to re-create the Bolívarian constitutional ideas,

through the creation of an institution called “Citizens power,” which is very similar to
the one that Bolívar created under the name “Moral Power”—one of his more polemi-
cal constitutional inventions—which is to “prevent, investigate and sanction those
facts that affect the public ethics and the morality of the administration” (art. 274).
Making reference to the different constitutional novelties created in Venezuela
in the area of popular participation, the Spanish constitutional scholar Antonio de
Cabo maintains that the Venezuelan Constitution has a “radical-democratic, perhaps
Rousseauistic heart, which is expressed in the prevalence of different modalities of
participative democracy” (de Cabo 2007, 40; Pisarello 2010, 194).
Now, this significant openness to citizens’ participation in politics seems to be
severely contradicted by the significant expansion in the presidential powers. In fact,
the new 1999 Constitution not only extends the presidential mandate from five to six
years but also allows its immediate reelection. In addition, the Constitution suppresses
some of the parliamentary controls over the president included in the previous 1961
Constitution (for instance, those related to military appointments), undermining the
“semi-presidentialist” character of the political system, which for so long seemed to
distinguish the Venezuelan democracy. At the same time, the Constitution expands
the legislative powers of the president by augmenting his capacity to act through
legislative-decrees. While, according to the 1961 Constitution the president could
only dictate legislative-decrees in limited circumstances (economic, financial), the
new Constitution allows Congress to authorize the intervention of the Executive in all
other areas. The new Constitution also changes the relationships between Congress
and the Executive. On the one hand, it makes the conditions for parliamentary
removal of the ministers easier (following a legal tradition of the country, which goes
back to 1864), but, on the other hand, it allows the president to dissolve the legislative
assembly in some exceptional cases. More seriously, the Constitution establishes dif-
ferent modalities of “state of exception” (arts. 337 to 339), which included the “state
of alarm,” in situations of natural catastrophes, for example, the “state of economic

emergency” and the “state of internal commotion.” In all these cases, the Executive is
authorized to restrict constitutional guarantees.
As in the case of Ecuador, the legal practice that has since then developed, expressed
the actual limits of the reformist project. These problems appeared not only in the
area that is more relevant for our present analysis (the one related to participatory
and social rights), but also, unexpectedly, in the area of the organization of powers.
That is to say, in Venezuela, as in Ecuador, the strengthened hyper-presidential system
worked for the strengthening of that same hyper-presidential system. We find illus-
trations of this practice, for instance, in the Amendment No. 1, from February 2009,
which modified five articles of the 1999 Constitution (arts. 160, 162, 174, 192, 230):
the Amendment came to allow the immediate and indefinite reelection of all posi-
tions subject to popular election. In addition, this process of concentration of power
came together with a continuous attempt to undermine the authority of the differ-
ent controlling institutions, which gradually all fell under the Executive’s dominion.
A remarkable illustration of this situation appears in the insistent calls made by the
president of the Venezuelan Supreme Court in favor of the concentration of powers—
she directly proposed to abandon the old system of “checks and balances” in favor of a
new institutional system organized around the idea of the “unity of power.”11
But let us now concentrate our attention on the reforms that are more relevant for
us, namely those related to the introduction of new constitutional rights. As an intro-
ductory note, we could first mention the following: when the opposition party tried
to instigate a revocation of the mandate of the president in office, it met with extraor-
dinary difficulties that cast doubt on the opportunity that the Constitution seemed
to offer. First, the electoral and judicial authorities began to hinder the possibility of
carrying out the referendum that had been executed. Before the first attempt to do so,
the Supreme Court of Justice ruled to deny authorization of the process, arguing that,
before commencing the referendum the directory of the CNE, the National Electoral
Commission, needed to be replaced, its members having only provisionally occupied
their posts. Then, once the CNE was seated, the court invalidated a second campaign to
gather signatures, alleging that it had been conducted before the president completed
one half of his mandate. A third campaign, convened in 2004, was not immediately
approved because the electoral authorities maintained that some of the signatures
might have been forged. This accusation was followed by the scandalous publication of
the so-called Tascón List, in which Luis Tascón, a representative from the ruling party,
decided to leak, via Internet, the names of all the signatories since the first campaign.
Under the guise of ensuring the transparency of the convocational process, this event
actually posed a serious threat for those who had decided to accept the call to political
participation (Pérez Flores et al. 2010; Miguel et al. 2009). In any event, the previous
story illustrates the very real difficulties that can strangle participative clauses in the
context of reinforced hyper-presidentialism.
In Pérez Flores et al. (2010, 89 and following) another good example is revealed that
illustrates the same phenomenon already described but reproduced on the municipal
level. The case related to article 70 of the Constitution, which included everything
imaginable among the means for “participation and protagonism by the people.” The
article in question says:
Participation and involvement of people in the exercise of their sovereignty

in political affairs can be manifested by: voting to fill public offices, refer-
endum, consultation of public opinion, mandate revocation, legislative,
constitutional and constituent initiative, open forums and meetings of
citizens whose decisions shall be binding among others; and in social and
economic affairs: citizen service organs, self-management, co-management,
cooperatives in all forms, including those of a financial nature, savings funds,
community enterprises, and other forms of association guided by the values
of mutual cooperation and solidarity. (art. 70)
In June 2009, following article 70, which concedes binding status to local assem-
blies, a vote took place—with 99 percent approval—on a project intending to build
a civic center and to revitalize the area around the municipal market. Nevertheless,
the municipality was controlled by the opposition, and the outcome of the issue ran
against the government’s intentions. It resulted in the mobilization of the National
Guard, dependent on the National Executive, that ended up occupying the land on
which these projects were to be carried out. Once again the participatory initiatives,
backed by the Constitution, found their decisive limits in the strongly vertical national
political organization.
Of course, the previous examples are only illustrative of the ample and profound
tensions that have appeared in contemporary Venezuela between the country`s pro-
claimed desire to expand rights and its actual practice of bolstering presidential pow-
ers. These tensions may be exemplified through numerous illustrations, including the
emphatic affirmation by the Organization of American States (OAS) of its “deep con-
cern over the deterioration of the situation of the right to freedom of expression” in
the country;12 Venezuela’s (and Ecuador’s) proposals for limiting the abilities of the
OAS’ Special Rapporteur on Freedom of Expression;13 and Venezuela’s more recent
and radical decision to denounce the American Convention on Human Rights.14
Mexico
The third and last collection of examples that we shall examine relates to the case of
Mexico, even though this example differs, in relevant ways, from the previous two. In
effect, the example does not derive from a Constitution that is actually in place, and
which is then impaired by its internal organization (usually, problems connected with
the concentration of powers in the hands of the Executive). Moreover, the cases that
we are going to examine (which emerged by the mid-1990s) did not arise in times
of extended preoccupations with the new “human-rights agenda” (as the cases of
Ecuador or Venezuela did), but rather during the period of political hegemony of the
PRI (which may explain some of the differences that we may find regarding the previ-
ous cases).15 In any event, the cases shall help us illustrate how strongly the dominant
institutional organization can resist the rights-based demands of strong, and unjustly
marginalized, minority groups.
What we shall study in Mexico is a group of para-constitutional agreements, derived
from the so-called Acuerdos de San Andrés, which came to introduce more inclusive con-
stitutional reforms, but which were finally not implemented because of restrictions
deriving from the existing concentrated powers. The Acuerdos were mainly directed at
incorporating new indigenous rights. However, like in the other two cases, the agree-
ments were resisted and undermined from the very first moment by an institutional
system that seemed to be well prepared to reject them. In the end, the demands and
promises of democratic participation and inclusion suffered from the presence of a
concentrated and vertical political organization.
The Acuerdos de San Andrés Larraínzar (Chiapas) were signed in 1996 between
the Mexican government and the Zapatista Army for National Liberation (Ejército
Zapatista de Liberación Nacional, EZLN), some years after the unexpected Zapatista
uprising of 1994. The agreements followed a long and arduous process of negotiations
between the two parts—a process that combined armed confrontations and demo-
cratic dialogue—and had a constitutional reform as their primary object. The reform
would have as its main object the satisfaction of traditional claims coming from indig-
enous groups. The Zapatistas received advice from different representatives from the
civil society and initiated a process of debates on the constitutional reforms with
representatives of their community. The most important demand that appeared was
one in favor of indigenous autonomy. Other demands included claims for a “profound
reform of the State,” a “reorientation of the political economy,” and a “reinvigoration
of the social expenditures” (Díaz-Polanco 1997, 189). Representatives of Zapatism
maintained that “without a profound and consensual reform of the political and con-
stitutional framework,” the claim for autonomy would become senseless.
One of the main products of these difficult negotiations was the creation of the
Commission for the Pacification and Concord of the Congress of the Union (Comisión
de Concordia y Pacificación, COCOPA). The Commission was formed by representa-
tives of the two chambers of the National Congress and representatives of the local
Congress. After some time, the COCOPA presented a project for constitutional reform
directed to guarantee basic social and political rights for the indigenous population,
and thus ensure them a place within the national political structure. However, the
conflicts that emerged in the relationship between the indigenous community and
the State were so significant that they ended up frustrating the whole bargaining
process.
The problems at stake were diverse and began at a very early stage. From the very
beginning, it seemed clear that the national government wanted to challenge the main
indigenous demands, as expressed in the original Acuerdos. The same COCOPA initia-
tive appeared as a downgraded version of what the Zapatistas had required in the first
stage. The project was accepted by the Zapatistas as a showing of goodwill toward the
government. However, as the expert Díaz-Polanco maintained, “In each of the following
phases of the negotiation” the government appeared “pressing towards the bottom,”
trying to empty the Zapatistas’ demands (Díaz-Polanco 1997, 228). (In this respect,
the process seemed to reproduce the same dynamic that had taken place at the begin-
ning of the twentieth century, after the revolutionary movement—the process that we
described as the road from Ayala to Aguascalientes.)
The attacks against the indigenous demands—particularly those directed against
their claims for more autonomy—grew after some time, when the three branches began
to act in concert against the agreements. The Legislative branch, for example, defied
the reformist proposal by challenging the representative character of their authors.
More significantly, the Supreme Court rejected more than 300,000 constitutional
controversies, which had been presented by different indigenous municipalities (the
municipalities were questioning the process for constitutional reform, which seemed
to contradict some of the most basic indigenous demands). Against those claims, the
Court maintained that it had no faculty to judge the constitutionality of the reforms
of the Constitution proposed by the Legislative Power (see, e.g., http://www.cedoz
.org/site/content.php?doc=414&cat=6). In the end, the Zapatistas decided that, after
years of showing their goodwill and disposition toward the State, they were only
receiving disrespect as a response and consequently decided to abandon the negotia-
tion. The bargaining process was considered a failure and a mistake.16
In the end, the Mexican case seemed to ratify what we had already explored in
the previous cases, that is to say, that the dominant institutional matrix has enough
capacity to block reformist initiatives directed at expanding the political and social
rights of disadvantaged groups.
From the “Social Question” to the “Indigenous Question”:

The Fact of Subordination and the Need of Going beyond
the Politics of Integration
In the previous pages, we concentrated our attention on the existing tensions between
a highly centralized organization of power and the promises for an expansion of politi-
cal rights and social inclusion made by different contemporary governments. In what
follows, we shall focus our study more directly on one of the areas—the one related
to indigenous rights—that in the last decades became one of the most promising and
innovative areas of Latin American constitutionalism. The particular study of what the
new Latin American constitutions did regarding indigenous rights—and the difficul-
ties that followed from those decisions—will allow us to have a better understanding
of the issue that we have been here studying, namely the existing tensions between
the goal of expanding certain specific rights and the decision to keep a concentrated
organization of powers basically untouched.
A first thing to highlight, in this respect, is the centrality acquired by the “indig-
enous question” in Latin American constitutionalism from the late twentieth century
and until today. All the new constitutions appeared to be enthusiastic and generous
regarding the inclusion of “new” indigenous rights. In fact, one could say that if the
first wave of constitutional reforms in the twentieth century was distinguished by its
emphasis on the “social question,” this second wave (with all its variants) was particu-
larly marked by the “indigenous question.” For the first time, Latin American consti-
tutionalism made the decision to seriously face a problem that it had postponed time
and again. In the same way that fusion constitutionalism at the end of the nineteenth
century decided to incorporate the social question into their texts, now the “mixed
constitutionalism” at the end of the twentieth century incorporated the “indigenous
question,” which previous Constitutions had abandoned. It was a way to recover the
most relegated constitutional topic—a way to find a place for those who were excluded
among the excluded.
Now, the constitutional decision to pay attention to the “indigenous question”

faces significant problems, given the nature and complexity of that question. First
of all, it was the question of how to incorporate those renewed concerns into the
Constitution: What should be done? How should we proceed with that incorporation?
In other words, how are we to carry out a successful graft, taking into consideration
the difficult previous experiences with constitutional transplants and grafts? More
specifically, how are we to do it, considering the tensions usually created between
these reformist impulses and the desire for order that typically characterizes concen-
trated political regimes?
Second, there is what we called the problem of translation. Briefly stated: Is it right
to “translate” such vigorous, important, and diverse claims (claims related to language,
land, culture, etc.) into the liberal language of rights? Such a legalistic response—call
it the legal rights response to structural social problems—is problematic, for different
reasons: the idea of rights tends to simplify what is normally too complex; it represents
an attempt to solve problems that are mainly non-juridical through juridical means; it
is an invitation to judicialize problems that mainly require non-judicial, political, and
cultural solutions (not to mention the problems related to judicial biases); it is a way
to individualize problems that are mainly collective; and it runs the risk of expropriat-
ing the control of these decisions from the same affected communities that it wants
to benefit.
At the same time, there is the problem of making the demands, interests, and needs
of the indigenous communities compatible with the demands, interests, and needs of
the “dominant” communities. The point seems particularly important given that many
constitutions have happily included numerous aboriginal rights, without giving much
consideration to the types of conflicts that they were thus creating with other existing
rights.17 To be sure, to take the rights of indigenous groups seriously implies not only
to “tolerate” the “exoticism” of certain foreign cultural claims, but mainly to assume
the different serious costs required to ensure a multilingual education, guarantee the
provision of health services, and so on. First of all, rights have economic costs that
need to be assumed by the State (Holmes and Sunstein 1999). These significant costs
demand that constitutional scholars begin thinking about (what we called) the mate-
rial conditions of constitutionalism (the Bolivian 2009 Constitution is an interesting
example in this respect). In addition, respect for religion and traditions may imply
the concession of vast territories to indigenous communities or the noneconomic
exploitation of mines or lands that are under their control (which in contemporary
Latin America has become one of the most important sources of conflicts between
established societies and indigenous peoples). Moreover, the tolerance of “alterna-
tive dispute resolutions” may imply the need to accept different forms of violence or
coercion (whipping, as in Guatemala; cruel and unusual punishments, as in Bolivia;
and the rondas campesinas, as in Peru; Sieder 2004; Yrigoyen Fajardo 2002), which the
dominant system of formal justice has usually resisted. How should we solve, then,
the questions posed by the emerging tensions between the rights and interests of
indigenous groups and the rights and interests of the rest of the population?
Then there is the problem of what to do regarding the previous, massive violation of
indigenous rights committed by the State—violations of rights that normally extend
their influence to the present. How should our society react to the fact of subjugation,
that is to say, the fact that the State used, for so long, its coercive powers, in a sys-
tematic way, in order to subject these indigenous communities to its authority? How
should our society react to the fact of exploitation, that is to say, the fact that the
State took unfair advantage of the members of these groups for so long?18 Those situ-
ations of massive violations of rights call for the concession of special rights to spe-
cific groups, which has always been resisted both by liberal and conservative groups
(although there are some significant exceptions, such as the ones that we find in the
pioneer works of Dworkin 1985 and Fiss 1976).
The proposal for recovering the “indigenous question” for constitutional law
faces another problem, which is the lack of a strong constitutional tradition in its
support.19 Of course, Latin American history is full of histories of indigenous mobili-
zations and rebellions, but the fact is that indigenous claims never found real atten-
tion on the part of legal scholars. Indeed, there were some isolated efforts within the
radical legal tradition in support of indigenous demands (including, for example, the
Reglamento Provisorio of José Artigas and, much more recently, the work of authors
like Mariátegui). However, legal thinkers’ attitudes toward those demands oscillated
between disinterest and “patronage” (we have made reference, for example, to the fact
that the remarkable armed rebellion led by indigenous groups in early Mexico ended
with the Constitution of Apatzingán, 1914, which directly ignored the “indigenous
question”). Worse still, the type of economics that dominated radical political think-
ing in the twentieth century did not contribute to the advancement of the indigenous
cause: economic questions always took precedence over the “indigenous question.”20
After this general, theoretical introduction, in what follows we shall first describe
the most recent constitutional innovations in the area, and then we shall critically
examine them.
Indigenous Rights in the New Constitutions

By the end of the twentieth century, the constitutionalization of indigenous rights
found a decisive moment in Nicaragua, after the conflict that confronted the Sandinista
government with the indigenous group of the Miskitos in 1987.21 The Nicaraguan
Constitution begins with a preamble that evokes “the fight of our indigenous anteces-
sors.” Also, in article 5, it makes reference to indigenous peoples’ rights to “maintain
and develop their identity and culture” and also mentions their right to maintain,
exploit, and enjoy the fruits of their communal properties. More interestingly still,
the Constitution refers to a “regime of autonomy” (regulated in chapter II of the doc-
ument) for those communities of the Atlantic Coast. The Guatemalan Constitution
reserved section III of its text to indigenous communities and made reference to the
respect of indigenous language, habits, and traditions (art. 66). It also included pro-
tections to their lands and agrarian cooperatives (arts. 67and 68), and references to
their right not to be discriminated against (art. 69). The Constitution of Brazil 1988
also showed some openness toward the “indigenous question,” and it included, in par-
ticular, special protections reserved for indigenous groups, in chapter VIII of the text.
These pioneer cases were then followed by the Convenio 169, which was enacted by the
International Labor Organization (ILO). The advent of this covenant, which became
the main international instrument in support of demands by indigenous groups, sub-

stantially changed the legal discussion on the subject. The agreement included clauses
guaranteeing respect for the culture, way of life, and institutions of the indigenous
peoples. It also made reference to the right to effect consultation with these peoples,
in the case of public legislation that could put their main interests at risk.
After the enactment of the Convenio 169, a new wave of Constitutions emerged,
and basically all of them took the “indigenous question” seriously. The new documents
included complete lists of indigenous rights in their texts and adopted views favor-
able to legal pluralism. Among these new Constitutions, we could mention those of
Colombia, 1991; Mexico and Paraguay, 1992; Argentina and Bolivia, 1994; Ecuador,
1996 (and 1998); and Venezuela, 1999. These documents defined the State as multi-
cultural or pluricultural (as in the cases of Colombia, Peru, Bolivia, Ecuador), guaran-
teed the right to cultural diversity (Colombia, Peru), and/or proclaimed the equality
of cultures (Colombia, Venezuela). In this way, these new Constitutions challenged
the inherited monocultural model, which had predominated in the region since the
nineteenth century (Yrigoyen Fajardo 2011, 132).
This new wave of constitutions was followed by another international event of
crucial, foundational character. This was the Declaration of Rights of the Indigenous
Peoples, which was enacted by the United Nations in 2007. The Declaration gave a
detailed account of the individual and collective rights of indigenous peoples and estab-
lished basic, minimal standards that all the different States promised to respect. It also
made reference to issues such as cultural identity, education, employment, and lan-
guage. It also guaranteed the indigenous peoples’ right to be different and also referred
to their right to economic, social, and cultural development. The UN document was
then followed by a new set of constitutions, which would be the more advanced in the
area. These Constitutions include those of Ecuador 2008 and Bolivia 2009.22
Given that the constitutions of Bolivia and Ecuador summarize the region’s best
efforts in favor of indigenous rights, we shall briefly explore the content of these new
Constitutions. First of all, and only to highlight some of the main efforts introduced
by the Bolivian Constitution in the area, we could mention that the 2009 document:
• Declares the country to be a plurinational State, affirming from the beginning of the
text the principle of pluralism in all areas (art. 1).
• Considers the languages of ethnic minorities to be official languages, and decrees
that each government department shall communicate in at least two languages
(art. 5).
• Defines notions related to a “good life” (buen vivir or sumak kawsay) invoked by
indigenous peoples, as basic moral principles (art. 8).
• Includes, within the form of government, the one defined communally by the
native nations and peoples (art. 11).
• Considers, included among the basic rights, those related to self-determination of
the peoples, the preservation of the environment, and cultural heritage (Title II).
• Promises a “decolonizing” education (art. 78).
• Organizes original rural indigenous jurisdiction (art. 190).
• Recognizes, within the organizational territory, the original rural native territories
(art. 272).
• Consecrates, within the economic organization of the State, all forms of communi-
tarian organization, establishes the State’s obligation to control strategic sectors of
economy (art. 307), and declares natural resources to be the property of the people
(art. 348).
Meanwhile, the Ecuadorian Constitution:
• Recognizes the plurinational, intercultural identity of the country (art. 1).

• Recognizes the indigenous peoples’ right to use their own language (art. 2).
• Recognizes the right to “good life” or buen vivir or sumak kawsay (art. 14).
• Recognizes diversity of “collective rights,” which include the right to “maintain the
possession of lands of ancestral territories.” It also makes references to the use,
administration, and conservation of the renewable natural resources found in their
lands; and also to the right to previous consultation before projects for the exploi-
tation and commercialization of non-renewable resources (art. 51).
• Recognizes the right to collective property of land (art. 60).
• Recognizes the rights of “nature” (art. 71).23
• Recognizes the indigenous communities’ rights to develop jurisdictional functions,
according to their traditions (art. 171).24
These initiatives illustrate some of the most important measures promoted by the
new Latin American constitutionalism in defense of indigenous rights. The obvious
problem, however, is that these important proposals were also the most conflictive,
given their capacity to question the existing organization and distribution of powers.
In the following section, we shall explore some of these tensions with more details.
Concentrating Political Powers While Expanding

Indigenous Rights
Legal recognitions such as the ones mentioned in the preceding section were some-
times the result of pressure and mobilization of native peoples. In many cases, however,
those pressures and mobilizations were triggered by the same appearance of the legal
reform—particularly in issues related to land use and exploitation of natural resources
(Giraudo 2008; Lillo 2003). These demands exploded into conflicts involving the indig-
enous communities and the states in question, and even national and international
companies. This is what happened, for example, in the confrontation that took place
in Nicaragua between the Mayagnas and Korean companies that were involved with
deforestation and wood harvesting; the conflicts that arose between the Huaorani,
Secoya, and the Cofán, in Ecuador, against North American oil companies; the disputes
that pitted the Mapuce in Argentina and Chile against companies engaged in above—
ground mining; the confrontations provoked by various indigenous communities in
Peru related to petroleum, water, or natural gas extraction; and the fiery territorial
demands of the U’wa community, in Colombia, against petroleum companies (Ariza
2009; Rodríguez Garavito et al. 2005; Ramírez 2006; Svampa and Antonelli 2009).
In this context, tensions were commonly generated between the generosity of some
constitutional clauses inviting participation, consultation, and decisions by native
groups, and the already existent mechanisms of political decision. Usually, as we know,
these mechanisms deferred to the authority of an Executive power who might have
been interested—and often was—in more aggressive and undeliberated exploitation
of natural resources. This was especially the case, given the extraordinarily large, quick
returns promised by the more or less indiscriminate exploitation.
The indigenous groups asked the governments in power to take seriously the respec-
tive constitutional clauses that they had trivialized (i.e., assuming that “referendum”
could be satisfied by merely communicating with the populations involved) or directly
ignored. (Let us recall that, in the case of Ecuador, the alliance between various indig-
enous/ecological groups and the government would break, as a result of which, during
the Montecristi constitutional convention, the two sides would face off on the issue:
for the former, the constitution ought to incorporate an explicit clause, conditioning
the exploitation of basic resources, water, and mines, on the consent of the indigenous
communities, while the government felt that it was sufficient to poll these groups;
Ramírez Gallegos 2010, 95.) In some more extreme cases, like that of the U’wa com-
munity, the tensions reached the point of adjudication of the conflict; the adjudication
ended up involving the highest political and judicial strata of the country, including
the Constitutional Court. When examined, the results of this politico-judicial process
are ambiguous; they include delayed judicial decisions (some favorable, others not) on
the indigenous demands, following waves of mobilization and demobilization by the
U’wa after each judicial intervention (Rodríguez Garavito and Arenas 2005).
What these processes seem to teach, at a more general level, seems clear, and
clearly related to the intuition that we have been exploring along these pages. The idea
is that a serious commitment to popular participation requires a direct and special
attention to the existing distribution of powers, as defined in the organic part of the
Constitution. It seems necessary, then, for those who are sincerely committed to the
promotion of changes favorable to popular political participation and social inclusion
(in this case, of indigenous groups), to pay particular attention to what is done and
what is not done in relation to the organic section of the Constitution.
In addition, the previous considerations call our attention, again, to the problems of
what we called “mixed constitutions,” that is to say, constitutions that assume contra-
dictory moral, political, or juridical commitments, radicalizing their (say, natural) inter-
nal tensions. As Yrigoyen Fajardo maintained, “The adoption of multiculturalism and
indigenous rights in the 1990s came hand in hand with other constitutional reforms
aimed at facilitating the implementation of neoliberal politics, at a time marked by
globalization. These changes included a contraction in the role of the State and in the
enforcement of social rights, the flexibilization of markets and the opening to transna-
tional corporations, as it happened in Bolivia and Peru” (Yrigoyen Fajardo 2011, 129).
For her, “the simultaneous adoption of neoliberal policies and indigenous rights … had
as a consequence the actual neutralization of the new conquered rights” (129).
Of course, some people may celebrate the coming of these “mixed Constitutions” as
an expression of a commitment to “do all that is actually possible.” Some others may
see the constitutions’ ambiguities as a virtue, which would be compatible with a future
“awakening” of the rights at stake. However, we know these responses face significant
problems. This is so, first, because in societies deeply marked by profound inequalities,
one should expect that those in power acted, in principle, in ways consistent with the
preservation of those unjust inequalities. Second, those ambiguities always allow some
public officers, typically, some judges, to take measures against indigenous groups,
invoking the text of the Constitution. And, we should add, one has to expect this situ-
ation to frequently happen, particularly in contexts such as the Latin American, which
is still so deeply marked by unjust inequalities. Finally, one has reasons to resist those
kinds of bargaining, taking into account that we are dealing with some fundamental
interests that require unconditional respect, rather than mere haggling.
That said—and this should also be emphasized—we must recognize that the incor-
poration of these rights into the Constitution appear to have had some significant
positive impact, particularly in relation to those very disadvantaged that were the sub-
ject of those clauses. In effect, for groups who were traditionally ignored or harmed by
the law, the fact of recognition—the fact of being recognized by the dominant legal
rules, from one moment to the other—has been always important: indigenous peo-
ples had finally become visible, as a group, and somehow recognized in their dignity.
This recognition not only helped to activate new forms of legal and social combats
for their rights but also helped them to rebuild and strengthen their group identity
(see, e.g., http://www.cels.org.ar/common/documentos/informe_2005_cap:15.pdf;
and also Groesman Wagmaister 2005). This point, which requires further study and
closer attention, allows us to have a more comprehensive and also a more optimistic
understanding about the capacities of the law to interact with the actual people and
also contribute to change existing social practices.25
The “Engine Room” of the Constitution

Examples such as the ones that we reviewed in the previous pages make it clear how
important, but also how limited, the task of those who got involved in processes of
constitutional reform was. Legal reforms could not or did not want to go as far as
they could have gone, in order to ensure that those reforms had the transformative
character that they (so declared) wanted them to have. To state this does not deny
the value of what has been achieved in the region, in constitutional terms, in recent
years. Many of these reform processes managed to advance the interests of the most
disadvantaged, at least on the books. However, it seems also clear that the reforms
were, in the best case, very limited in their scope and achievements. And one of the
main reasons that explain this conclusion is the fact that the reforms seemed to have
concentrated their energies in the section of rights, without taking into account the
impact that the organization of power tends to have upon those very rights that were
then (extra) protected. Notably, legal reformers concentrated most of their energies in
the creation of new rights, leaving the organization of powers basically untouched. As
Raúl Prada, one of the main members of the Bolivian Constitutional Assembly, stated,
the Convention did not manage to confront “the main problems affecting the interests
of the people,” although it did produce important changes “in what concerns the area
of constitutional rights” (Prada as quoted in Svampa 2010). By acting in this way, legal
reforms maintained the closed “doors of the engine room” of the Constitution: the core
of the democratic machinery was not changed, the engine of the Constitution did not
become the main object of their attention, as if their mission concluded with their work
on the rights section; as if the main controls could only be touched by the closest allies
of those in power.
It is interesting to contrast this remarkable omission, typical of recent reformers,
with what their old intercessors used to do when engaged in a process of constitu-
tional change. In effect, the engineers of the liberal-conservative compact showed no
doubts about what they were required to do in order to ensure the life of their most
cherished rights—say, basically, the right to property. For them, it seemed totally
clear that in order to guarantee these types of rights, the first thing to do was to get
into the “engine room” and introduce some necessary modifications at the outset.
Typically, then, they proposed the restriction of political liberties in order to ensure
the enjoyment of broader economic freedoms. This was, for example, Alberdi’s main
constitutional lesson for his time: it was necessary to temporarily tie the hands of the
majority so as to ensure protection for certain basic economic rights.
By doing so, they showed that they were totally aware of the importance of crossed
reforms, this is to say, they were positive about the need to introduce changes in the
organization of power, in order to achieve certain results in the opposite section. More
particularly, they were clearly aware of the priority that the “organization of powers”
section of the Constitution deserved, in order to achieve substantive results regarding
fundamental rights. Above all, they seemed to have no doubts about the meaning of
having a strong Executive for achieving the changes they wanted (i.e., regarding the
preservation of existing property rights).
The “mistake” committed by those who wanted to promote social reforms with the
help of the Constitution, but without effectively touching the “engine room” of the
document, appears clearly in an extraordinary paragraph written by Arturo Sampay.
It is important to recall that Sampay was the main (Peronist) jurist who worked on
the writing of the 1949 Argentine Constitution. That Constitution, we know, incor-
porated a profound social commitment manifested in a long and innovative list of
social rights. However, in an article that the same Sampay published some years later
(in 1973, in his book Constitución y pueblo, which belonged to his more radicalized
period), the jurist challenged part of his previous initiatives. In a strong expression
of self-criticism, Sampay mentioned that the Constitution had been affected by one
grave omission, which in the end condoned the entire text to death. The omission
consisted, precisely, in its lack of courage for (what we here called) opening the door
of the “engine room.” In his words, the Constitution did not make the organization of
powers consistent with the new social impulses that it had incorporated in the text
through the Bill of Rights section of the document. This is what he said:
The Constitutional reform of 1949 was not properly conducive to the pre-
dominance of the people, by favoring the exercise of political power by the
popular sectors. This was due, first, to the faith that the triumphant popular
sectors had in the charismatic leadership of Perón. Secondly, this was due to
the same vigilant attitude of Perón, who made everything possible to pre-
vent the popular sectors from achieving an actual power that could impair
the power of the legal government. These facts helped the government to
stay in power until the time that the oligarchical sectors, in accordance with
the armed forces, decided to put an end to his government. That was, then,
the Achilles’ heel of the reform. And this explains why the Constitution, like
Achilles, died at an early stage, by his enemy: it was vulnerable precisely in
the most significant part, that is to say, in that part that had to provide for
its support. (Sampay 1973b, 122)
In other words, with unusual virtue, Sampay recognized the fatal mistake that he
and other members of his generation committed, by not paying sufficient attention
to what he himself described as the Achilles’ heel of the Constitution. Social reform-
ers like Sampay should learn from him that important lesson: in order to introduce
social changes in the Constitution, one needs to primarily affect the organization of
power.26
Modest but Significant Breaks: Costa Rica’s Chamber IV, 1989,

Colombia’s Constitutional Court, 1991, and Modifications to
Procedures for Granting Standing in the Courts
What reforms related to the “engine room” of the Constitution should be propelled?
Recent regional history suggests some answers that speak to the conflicts generated
from the attempt to foster an ever more democratic society and the inclinations of
governments in power to hold the vertical and self-contained institutional order in
place.
The fact that the disadvantaged powers are the very ones that have been deserted
midway along the path toward the realization of these envisioned reforms makes the
work needed to fulfill them especially difficult—a task which, moreover, requires the
uniting of extraordinary efforts for it to be completed.
As difficult as it may be to navigate this path and as urgent as it is that we do so,
we would do well to recall that the true history of Latin American constitutionalism
reveals that not all regional judicial life has played out in all-or-nothing maximalist
reforms. On the contrary, and in contrast to what we might think, recent history has
shown the relative “success” of reforms that are, apparently, modest in scope and
innocuous in content.27 In what follows, let us dwell a moment on the impact achieved
by certain procedural reforms directed toward the conditions for access to the justice
system by the poorest sectors of the population. The example of these reforms will
serve to illustrate, simply, that entry into the “engine room” of constitutionalism can
recognize different forms and searches. The cases we will take into account are basi-
cally two: those that took place in Costa Rica and Colombia at the end of the twentieth
century.28
Undoubtedly, both as a consequence of their content and their scope, these reforms
would not be the ones that a radical egalitarian politics would foster in the event of
change. In any case, those reforms—which, at the very least, do not seem incompat-
ible with an egalitarian program—may illustrate a modest, but still significant, way of
introducing some changes in the “engine room” of the Constitution.
Both cases deserve a previous comment: in the case of Colombia, the constitu-
tional reform was passed in the context of a radical political crisis (although it is not
clear that the judicial reform that we shall study was passed with clear conscience of
its consequences, which may explain in part the success of the reform, perhaps better
than the crisis itself). We must recall that Colombia was trying to put an end to the
long and tragic period of La Violencia. It had just been hit by the massacre of guerrilla
members of the M-19 who had entered the Supreme Court’s building (a massacre
that was carried out by the national armed forces) and was also (and at the same
time) fighting against the forces of drug dealers that controlled part of the country
(Lemaitre 2009). In the case of Costa Rica, the reform under study—the introduc-
tion of the famed Sala IV—was carried out by legislators that did not seem to under-
stand the profound potential consequences of the change they were implementing.
According to Bruce Wilson, possibly the most knowledgeable political scientist in the
study of the Court, “interviews with leading actors in the debate over the new court
reveal that many deputies failed to grasp the potential significance of the court they
were creating” (Wilson 2010, 67).29 (Do these facts suggest that the only success-
ful significant reforms are those that are done without real consciousness of their
implications?)
In Costa Rica, no one seemed to anticipate, at all, the changes that would take place
in the high court’s operation from then on. In effect, during the last fifty years, the
court had received only a few cases (155) dealing with constitutional questions. Apart
from that, the court record, until that time, had been always marked by strong defer-
ence to political power (Wilson 2005). Hence, when the decision was made to annex
a special Chamber dealing with constitutional issues—the Constitutional Chamber,
or Chamber IV—to the high court, no one paid very much attention. As might be
expected, only the members of the Court then seated on the bench showed any resis-
tance to the creation of the new Chamber.
In Costa Rica, the parliamentary discussion about the constitutional amendment
that would modify the organization of the Judicial Power took place without major
polemics or snags.
Nevertheless, the reforms in question include some other details that ended up
playing a decisive role in explaining what followed: hyperactive, socially conscious,
and politically defiant behavior on the part of the new Chamber. Conspicuous among
the reforms that occurred is the extraordinary expansion granted in the legitimacy of
standing before the court; this was accompanied by a break in the strict procedural
formalism that had characterized Court appearances up to this point. Similarly, we
can add the fact that every person was granted standing to appear in Chamber IV,
without needing to resort to legal representation, without needing to pay any fee, and
without having to stick to pre-established rules and arguments. A claim could be filed
at any time of the day, in any language, without any age requirements for the claimant,
and could be written in any medium (Wilson 2010).
The results of these changes were swift and extraordinary. In the first year of opera-
tion, 1990, the tribunal received 2,000 cases, increasing to 6,000 in 1996, 13,000 in
2002, and more than 17,000 in 2008. There were 200,000 cases over the first nineteen
years of operation, almost all, currently, related to seeking injunctions (“amparos”)
(Wilson 68). Otherwise, we should note, this incremental dynamic was favored in the
very operation of Chamber IV, which proved itself not only able to deal with the sheer
number of cases but also to do so in a short time.
The situation described has several strong parallels, and at least one significant
difference, with what occurred at the highest level of the Judicial Power of Colombia,
in the 1991 constitutional reform. The difference is that this Constitution was the
product of a broad and heterogeneous group of representatives (which included fig-
ures from the political right, ex-guerrillas from the M-19 group, indigenous peoples,
and religious minorities) working together over the course of six months (García
Villegas 2001, 14). The Constitution seemed to be, finally, the product of a broad con-
sensus, rather than a carta de batalla, or winner´s document, according to the famed
expression of Valencia Villa (Lemaitre 2009, 124). This fact of plural representation
would also explain, for example, how a profusion of social rights incorporated into the
Constitution arrived hand in hand with explicit constitutional declarations in defense
of the free market (thus creating a typical “mixed Constitution”).30
In any case, the fact is that in Colombia, as in Costa Rica, the creation of a new
judicial organ—here a Constitutional Court to be positioned alongside the already
extant Supreme Court—also failed to generate serious preoccupations or resistance,
except, as in Costa Rica, on the part of the magistrates then seated, who feared see-
ing their powers curtailed. Politically, the new Court was not perceived as a threat in
the context of a country where the tribunals were characterized by a long tradition of
independence while displaying deference to political power. Nevertheless, and as can
be seen in the Costa Rican example, the tribunal showed immediate signs of strength,
activism, social calling, and defiance, which surprised even its own creators (Bonilla
and Iturralde 2005; Cepeda 1997; Gaviria Díaz 2002; Lemaitre Ripoll 2009; Rodríguez
Peñaranda 2005; Uprimny et al. 2006).
And although, yet again, it is not easy to determine an explanation for this note-
worthy development in the Court, since its creation some apparently modest proce-
dural reforms seem to hold part of the answer. In Colombia, as in Costa Rica, judicial
reform incorporated drastic changes of procedural issues—especially, for example,
through the acción de tutela,31 which grants any person recourse to the justice system
without any formal experience, without the necessity of incurring economic costs,
without the requirement of hiring a lawyer, and without having to demonstrate the
concrete interest of the claim being sued. This is to say, it is a maximal expansion, not
easily matched, in terms of access to the courts.
The results of the adoption of this mechanism were as explosive in Colombia as in
Costa Rica. The new Court decided 236 cases in 1992, its first year of operation, and
ten years later it averaged well above 1,100 (an increase of almost 500 percent). In
the matter of tutelage, the Court received some 8,000 amparos in its first year, and in
2001, this number reached 133,273 (the figure had increased some sixteenfold). The
number of average annual decisions by the Constitutional Court ended up also being
sixteen times higher than those of the Supreme Court before the arrival of the new
tribunal.32
Finally, what happened in Costa Rica and Colombia—then later, more modestly,
in Argentina and Brazil—was no more than the repetition of a phenomenon that had
already occurred in far more distant and unexpected places, such as Hungary, India,
and South Africa. Relatively minor changes in the law of standing, together with drastic
reductions of the formal requirements customary in judicial proceedings, tended to

produce radical changes in the relationship between individuals and the judicial sys-
tem. These changes translated into an unequivocally significant rise of litigation rates
and at the same time, notably, altered the behavior of the tribunals. Beset by an exces-
sive burden of claims from the least advantaged sectors, who thanks to the aforemen-
tioned changes had access to opportunities for judicial redress—the tribunals tended
to demonstrate greater acceptance toward questions connected with social and eco-
nomic rights (Gloppen et al. 2010). In the case of the Colombian Court, contrary to
the practice of a majority of similar tribunals, the new judicial organ would mostly
end up resolving social rights cases. In fact, the great majority of cases resolved by
the tribunal between 1992 and 2005 (55 percent) were related to social rights (while
the remainder were related to civil or political rights), and more importantly, in 66
percent of the cases, the magistracy inclined toward ruling in favor of protecting the
rights solicited by the claimant (García Villegas and Saffón 2005, 18).
Ultimately, in both Costa Rica and Colombia, we find ourselves looking at low-
profile, localized, well-directed reforms that understand the importance of and scope
for effectiveness, by producing serious modifications to the “engine room” of the
Constitution.
What has been said so far should not be understood, however, as if the examples
of Costa Rica and Colombia illustrated the only or main existing ways for advancing
social reformism in Latin America at the present time. These reforms tend to show
strong limitations in actual practice, particularly when the basic structure of political
power remains untouched, as tends to be the case, and the organization and composi-
tion of the judiciary maintains its elitist bias. On the one hand, this double limitation
hinders the citizen’s capacity to actively participate in the reformist process, pushing
for more significant changes, and contributing to their stability in time. On the other
hand, in that way, judges tend to face severe difficulties for advancing changes in polit-
ically sensitive areas. Worse still, under present conditions, judges tend to feel more
proximity with the interests and rights of certain groups—particularly middle and
upper classes—rather than others (Sajo 2008; Maestad et al. 2011); and the citizenry
finds scarce possibilities for controlling public officers and making them accountable.
Social Protest in Latin America

The situation so far described refers to an institutional system that became too restric-
tive, even regarding its modest original ambitions. The system seems also too closely
linked to a too narrow conception of democracy, which is in conflict with basic and
widely shared intuitions and convictions (i.e., intuitions related to the equal dignity of
all, with independence of each person’s gender, race, or level of education). Those facts
explain, at least in part, a growing social discomfort with the institutional system (a
general discomfort that may be, of course, compatible with occasional enthusiasms
with one or another political leader or institution). The crisis says something about
the vitality that characterizes public life in most Latin American countries—vitality
that is usually expressed through intense and extended social mobilizations and social
protests. These protests became particularly intense after periods of severe economic
adjustments (i.e., during the 1990s), which ended with high levels of unemployment,
and the attempt of constructing a “minimal State.” The protests emerged—perhaps
surprisingly, perhaps not—after a period of weakening of trade unions (a distinctive
note of the end of the twentieth century); an increase in the levels of social inequality
(which generated social irritation); and during a time of democratic stability (stability
that installed the idea that solutions to the crisis could not be found, as usual, beyond
the limits of the democratic system). In addition, this was a time of growing social
distrust of traditional political parties, and a growing certainty that public offices and
public officers were not willing or well prepared to recognize, attend, or process the
existing popular demands.
The referred protests included those that exploded in 2001 in Argentina, pro-
moted by the piqueteros (usually unemployed people who blocked the national roads
to call the public attention to their demands, following the adjustment programs of
the 1990s); the consistent and powerful protests in defense of their right to land,
promoted by the movement of the Sim Terra (MST) in Brazil; the “wars” for water
and gas in Bolivia, during 2000 and 2005; the “invasions” produced in Peru or the
takings of land that were done in Chile on private or public land; the protests of the
young students, pingüinos, in Chile; the fights lrd by the mapuches in the Patagonia of
Argentina, and in the south of Chile, in defense of indigenous rights; the numerous
environmental disputes, particularly against mining companies, which appeared in
the entire region in the last decades; and so on. All these protests, in addition, received
strong popular support and gained social legitimacy, even in the cases of their most
extreme expressions.33
Of course, such results—produced in different moments, in different countries,
with different intensity—deserve a separate analysis, which we cannot afford in the
context of this chapter. However, there are some general reflections that may be
appropriate to mention at this point, because they may be relevant for this work.
Constitutional rights. First of all, protests such as the ones that we examined
in previous pages force us to pay attention to the existence of grave violations of
rights—particularly social rights—that are daily produced in the region. In addi-
tion, those demands refer to violations of rights that have a constitutional sta-
tus. Governments get involved in the violation of these rights, first, through their
actions, which in many cases implied the advancement of adjustment programs that
cause high levels of unemployment, which may from one day to the other affect
millions of people. In addition, these governments are responsible for their omis-
sions, which may for instance imply leaving the new unemployed without any atten-
tion and social protection. (Still worse, in many cases, these programs of structural
adjustment included privatization processes that were carried out with high levels
of corruption.)
The law and illegality. According to some, these protests express the anti-legal
behavior of the protesters—in other words, their disposition to constantly challenge
the law. However, one could also reasonably read these events in a different way: rather
than focusing on individuals who irresponsibly challenge the law, one could call the
attention to the way in which the law became more restrictive and exclusive concern-
ing the disadvantaged. In a certain way, one could say that the law became every day
more severe; that the criminal law gained too much space within contemporary legal
disputes; and that the place of liberty became increasingly reduced: the law illegalized
numerous conducts that could otherwise be seen as simply reasonable—conducts
that one could even consider an homage to the law, done for the most disadvantaged
people who live in extremely harsh conditions and who, in spite of their sufferings,
stand up to denounce the injustice that they suffer. Consequently, one could say that
the increasing number of illegalities produced in contemporary Latin America has
more to do with a law that became more restrictive than with a citizenry that became
more anxious to defy legality. Presently, even innocent actions of defiance to the law
became grave violations of the criminal law, which helps us to put the entire legal
system into question.
The absence of “voice.” The recent wave of social protests, in Latin America, sug-
gests the existence of some crucial problems such as the absence of “voice” affect-
ing large segments of the population. It is this reason that seems to explain the
modality of many of these reforms, for example, blocking national roads, producing
public “scandals,” burning down public buildings, and so on. Some people just need
to express their views in public, letting the rest of the population recognize their
sufferings. They desperately need to make their claims “visible” to make their voices
audible. And—it seems clear—they want to make their voice audible because they
want to denounce (at least on many occasions) the existence of a grave violation of
rights.34
Criminal law and inequality. A final point to mention refers to the criminal law and
its place in situations of social conflict. The question would be: How should the State
use its coercive powers in circumstances of unjust inequality? In order to answer this
question, we should remember that the problem of justifying coercion is, and has
always been, central in political philosophy (Rawls 1971). This problem becomes even
more serious when what is involved is the use of penal coercion, given that penal coer-
cion involves the most extreme forms of authorized State violence. And this difficulty
becomes even more serious when what is at stake is not just penal coercion, but rather
penal coercion that is used in the context of unjust inequalities. In these cases, the risk
of abuse from the State apparatus so as to preserve those inequalities seems particu-
larly high. Or, to be more precise, in these circumstances, the most advantaged may
feel tempted to use the State apparatus under their control, for the goal of preserving
the structures of inequality that benefit them. And the risk is much bigger because of
the absence of “voice” that in such situations affects the least advantaged—in the end,
we would maintain, the diversity of voices is a fundamental component of an impar-
tial law (Duff 1998, 2001, 2004; Duff and Garland 1994; Gargarella 2011a; Murphy
1973; Von Hirsch 1976).
* * * *
Bolivia: The Material Conditions of the Constitution

As we have already explored, among the Constitutions that took the “indigenous ques-
tion” seriously, the Bolivian Constitution occupies a significant place. Two features are
particularly salient. In the first place, the Constitution identifies a fundamental social
problem or “drama,” which is the situation of marginalization and subjugation that
affected the indigenous peoples over the centuries. In the second place, like few other
documents of the kind, the Constitution deals with the important issue of what we
here called the material basis of the law.
With regard to the first issue, we could mention that the Bolivian Constitution
contrasts with many of the other documents advanced in the region in the same
period, which appeared to be more clearly motivated by short-time purposes.
Against that common tendency, the Bolivian document seems to be the result of
a crucial question, namely: What can the Constitution do to help solve one of the
main “tragedies” confronted by this country? What is still more important, the
Constitution identifies as the main “tragedy” one that clearly occupies a central
place in its public life.
Of course, to state this does not say anything about the ability of the representa-
tives in the Convention to choose the best institutional means in the face of the identi-
fied problem or about the ability of citizens and public officers to then deal with those
issues in a proper way. It seems clear, in addition, that the Constitution is affected by
numerous shortcomings. Someone could say that the Constitution suffers, in fact,
from voluntarism; that it is too long, unnecessarily meticulous, and exaggeratedly
aspirational. In addition, it could be said that the Constitution is founded on oppo-
site and contradictory theoretical views, which are, on occasion, simply implausible.
However, and in spite of all that, it seems also clear that the Constitution is creative
and innovative, and that it explores areas and solutions that other constitutions have
not even touched.
We have already mentioned some of the innovations incorporated by the
Constitution in its attempt to deal with the problem of indigenous marginalization.
In what follows, then, we shall make reference to some of the steps that were taken in
order to deal with the material basis of constitutionalism.
The issue of the material basis occupied an important place along the entire reform-
ist process. In its special interest for dealing with socioeconomic matters, the Bolivian
Constitution related to a few other documents of the time, such as the Venezuelan
new Constitution (which dedicates one entire section of the document—Title VI—to
the “Socio-economic system” and declares to be openly against monopolies, oligopo-
lies, and cartels (art. 13)); or the Ecuadorian Constitution (which also favors a “social”
economic system, based on the value of “solidarity,” and which also opens its text to
different forms of economic organization).
In order to deal with the issue of the material basis, the new Constitution designed
a multiplicity of measures. We have already mentioned some of them, related to the
use of the natural resources and the role of the State, so in what follows we shall focus
our attention on the way it approached property and property rights.
In principle, the Constitution recognizes two forms of property: private, and col-
lective or communal. The second is acknowledged by article 394, which refers to the
recognition and protection granted to property in territory of “native indigenous
farmers, intercultural native communities,” and “rural communities.” This property
is declared “indivisible, illimitable, inexpropriable, inalienable, and irreversible” (art.
394). Additionally, in article 395, the Constitution points out a criterion for the dis-
tribution of fiscal lands: they should go to the indigenous groups, rural groups, native
communities, Afro-Bolivians, landless rural communities, or those with insufficient
property, thereby implying that these lands be used so that their “sustainable exploi-
tation” would be ensured and that they would be used to guarantee the subsistence
and well-being of their holders.
Nevertheless, the most conspicuous novelty incorporated into the Constitution
was the one relating to the great estates—latifundios. In one of the most polemical
measures adopted, the Constitution decided to prohibit these large estates, a decision
that met with extraordinary resistance. To overcome this impasse, the framers pro-
posed two principal ways out. One was by deeming the measure to be non-retroactive;
that is to say, it would be applicable only to future properties seeking to establish
themselves as large estates. The other was by determining maximum legal limits on
property through a referendum ratifying or repealing the proposal.
This referendum took place on January 25, 2009, on the same day that the
Constitution was submitted for popular ratification. On this occasion, the population
was asked if they would approve article 398 of the Constitution, which would define
a large estate on the basis of four possibilities or possible forms: (1) unproductive
land holding; (2) land not serving a social function; (3) exploitation of land employing
systems of servitude, slavery, or semi-slavery in labor relations; and (4) property in
excess of the maximum area of 5,000 hectares. The text of article 398 was approved
by 78 percent of the vote.
All the mentioned initiatives refer to a very peculiar constituent process—perhaps
the only one in the region that dared to put seriously in question the liberal-conservative
matrix. However, it must also be noted that this Constitution, which appears quite
defiant in its text, represents in fact the result of an arduous and extremely conflictive
bargaining process, which forced the moderation of its content. In this respect, there
seems to be an interesting parallelism between what this Constitution came to repre-
sent at the beginning of the twenty-first century, and what the Mexican Constitution
represented at the beginning of the twentieth century.
In effect, the Constitution approved in Oruro suffered numerous changes from
what was its original, proposed text (we have already mentioned some of these
changes related to large states). The changes were introduced by the Writing
Committee first, and by a new, ad hoc Constitutional Congress, which was also
created, ex nihilo, in order to revise the work of the original Assembly. In total,
144 articles of the approved Constitution were revised and finally changed in this
peculiar manner. According to the lucid analysis of Boaventura de Sousa Santos,
all the modifications introduced were “of a conservative character” and implied
“severe loss for the indigenous, popular, peasant movement” (Santos 2010, 75). The
reforms included, according to Santos, the following: “the number of special indig-
enous circumscriptions (was reduced); the agrarian reform was blocked through the
non-retroactivity imposed to the norm; the indigenous communitarian justice was
limited and confined to the indigenous in their territories and between them; the
composition of the Pluri-National Constitutional Tribunal was altered (the Tribunal
now requires all their members to have a Eurocentric academic legal education, and
only a few of them need to be acquainted of the indigenous rights)” (75).
These final modifications tell us something about the limits of the Bolivian reform-
ist project, in particular, but also something about the limits of reformism in Latin
America, more generally. Among other things, those limits point to the persistence
of an institutional matrix that is strongly hostile to the production of changes; to the
tensions that seem to be inherent to such institutional structure; to the disjuncture
that seems to exist between a mobilized citizenry and their representatives (in this
respect, see Levitsky and Murillo 2012). Finally, what we are facing is the way in which
the past still influences and limits the present.
10
What Have We Learned in 200 Years

of Constitutionalism?
For an Egalitarian Constitutionalism
The Double Demand for Equality: Collective

Self-Government; Individual Autonomy
Studying Latin American constitutional law during the mid-nineteenth century, Juan
Bautista Alberdi distinguished between “two essentially different periods . . . one that
began in 1810 and ended with the war of independence against Spain, and the other that
began the time of the war of independence and continues to the present day.” (Alberdi
1981, 21). Alberdi wanted to reflect upon the “spirit” of the “new constitutional law in
South America,” given that the dominant constitutional law seemed to “express needs
of a previous time” in America, and, as a result of that, was ignorant of the “needs of the
present.” (61).
The exercise in constitutional law that he was proposing was descriptive of what he
and many of his colleagues had actually been doing in the region during those years.
The same Alberdi, in his work Bases, had carefully examined the evolution of constitu-
tionalism in America. As we know, this task was not merely descriptive, as suggested
by the author, but creative and normative: it actually moved him to define a program
for future action. Taking into account his work and his suggestions, we could make
an imaginary exercise and ask ourselves the basic Alberdian questions, that is to say:
What are the constitutional needs of our time? What is the main legal “drama” of the
present time? How could the Constitution react in the face of that “drama”?
In previous pages we suggested at least one possible answer. We maintained that
the main “drama” confronted by the entire region, since its independence, was the
“drama” of inequality. And we also made two additional claims: first, we said that a
situation of unjust inequality represented an obvious disvalue; and second, we main-
tained that, since the early days of the Independence Revolution, Americans proposed
a robust and rich ideal of equality, which is in need of further reflections. The egalitar-
ian ideal seemed to include two main parts, which were the following:
(1) On the one hand, there was a demand for collective self-government, that is to
say, a demand for the right of all and each person to intervene in the decision of
basic issues related to public affairs.
196
W hat Have We Learned in 200 Years of Consti tuti onalism 197
(2) On the other hand, there was a strong claim in defense of individual autonomy,
which at the time appeared to be asphyxiated by a type of moral perfectionism
imposed during centuries by the Spanish Crown.
Of course, we are not claiming that all the revolutionary leaders believed in those
ideals, and even less suggesting that those ideals are presently valuable because some
revolutionary leaders, in the past, promoted them. What we do claim, instead, is that
the double ideal of collective self-government and individual autonomy occupied a
central place in the self-justificatory discourse of the revolutionary movement in
America, and that such choice can be explained and justified because of the indepen-
dent value of both those ideals.
In addition, we claimed that both egalitarian ideals were deeply dishonored after
the revolution.
(1) Conservatives tended to seriously offend both ideals. On the one hand, they
subscribed to an elitist view that led them to resist the demands for collective
self-government. On the other hand, they endorsed a moral perfectionist view,
which moved them to defy the claims for an expansion of individual autonomy.
(2) Radicals, for their part, defended the ideal of collective self-government, which
they adopted as the core of their political view. However, they tended to do so by
displacing or neglecting the value of individual autonomy, which they often left at
the mercy of the majority will.
(3) In a certain way, liberals reversed the radicals’ approach. What they tried to do
was to ensure the protection of individual autonomy through the use of the State
apparatus. However, in order to do so, they usually accepted sacrificing the ideal
of collective self-government (typically, through the acceptance and promotion of
counter-majoritarian institutional devices).
After this analysis, there is at least one important issue to be addressed, which is
related to a fundamental absence—what is absent is a conception that subscribed and
maintained both ideals, consistently, at the same time. In effect, conservatism chal-
lenged both ideals at the same time, while the other two views—namely radicalism
and liberalism—adhered to one of them, but challenged or neglected the other. So,
what is lacking is a view that vigorously advocated for both ideals consistently. What
explains this result, given the centrality of both ideals since the early years of inde-
pendence? Why is it that we do not find significant political forces pushing for both
ideals? What explains, in the end, this remarkable absence? At this point, we have to
leave these questions open and concentrate our attention, rather, on Latin America’s
actual institutional legacy and its implications.
The Forge of the Liberal-Conservative Alliance and Its Legacy

By the mid-nineteenth century, liberals and conservatives began to work together
on a new constitutional project, which would synthesize their demands. On the one
hand, this compact reflected the growing social discomfort toward the elitism and the
abuses typical of conservatism. On the other hand, it expressed the difficulties liberals
always had for making their own political project stable.1 Surprisingly or not, and in
the face of its own limitations, liberalism systematically looked for help in conserva-
tive forces. This choice also implied liberals’ decision not to explore another, differ-
ent and risky alternative, which was that of opening itself to majoritarian politics.2
Liberalism seemed to care less, however, about what both the empirical evidence and
history seemed to suggest, namely that their option for conservatism always proved
successful at the beginning and in the short term, but also always revealed itself as a
tragic option in the mid and long run.
At the same time, this alliance revealed the existing affinities between the liberal
and conservative projects. In particular, they coincided on two fundamental ques-
tions. First, they both wanted to keep certain crucial aspects of the country’s economic
organization untouched—most of all, they both wanted to prevent “abuses” concern-
ing the right to property (typically, the politics of expropriation). In addition, liberals
and conservatives wanted to prevent the growth of a threatening political alternative,
which they identified with the majoritarian/radical-democratic project.
The liberal-conservative compact forged, at that moment, the basic matrix of
Latin American constitutionalism, which we summarized with the formula of limited
political liberties and ample civic (economic) liberties. That model, it is worth remember-
ing, expressed a too restrictive conception of democracy, which according to Alberdi
required the citizenry’s undeliberated assent of what political authorities decided. The
basic institutional structure that was then created proved enormously successful, at
least with regard to two fundamental issues: (1) the diffusion that it achieved, and
(2) the stability that it gained. In the end, and after 150 years of its creation, the main
constitutional structure of the region appears to be basically the same.
At the same time, that basic structure appeared to be very problematic, concern-
ing its design; and also profoundly unattractive, concerning the egalitarian ideals that
were present in the region since its independence. With regard to the first issue, it
should be enough to mention some of the, for want of a better term, “descriptive” fail-
ures of the system: since its creation, the institutional design appeared to be unable
to express the existing social complexity. The risk was that the institutional system
left significant parts of society unrepresented and numerous viewpoints unattended
(Nedelsky 1994). The basic institutional structure, we claim, was based on a primitive
and too simple image of society. Society was assumed to be divided into two basic
groups, which were conceived of as internally homogeneous and with interests that
were stable over time (Gargarella 1998b).This picture became even more distortive
with the passage of time: the old institutions, like an old suit, became even tighter,
and thus excessively restrictive of society’s movements. As a consequence, they tend
to limit, rather than facilitate, the expression of the present social diversity.3
With regard to the original egalitarian ideals, the institutional design proved to
be unattractive in different ways. On the one hand, the created institutional struc-
ture prevented the actual political inclusion of large sections of society, at least dur-
ing long decades. On the other hand, that institutional structure did not ensure the
ample guarantees in terms of individual autonomy that it had promised. In addition,
and invoking the need to defend economic liberties, the institutional system provided
extraordinary protections to existing economic inequalities (inequalities that were,
in the end, a result of an intense State “activism”—an activism that was rhetorically
repudiated at the time). In that way, it favored the consolidation of an extremely unfair
distribution of resources. Thus, the Constitution offered all the necessary guarantees
for the preservation of the economic status quo and, at the same time, it severely
limited the possibilities of politically resisting that situation. Ultimately, the origi-
nal constitutional structure came to serve the consolidation of grave and unjustified
existing inequalities.
The lack of neutrality of those Constitutions became not only manifest in the fact
that they worked for the preservation of an unequal status quo (Constitutions were in
this sense committed to the principle of limited political liberties). Constitutions were
also non-neutral or partial in a different way: they decided not to contribute to the
promotion of an active citizenry.4
An Expanded Constitutional Compact

From the beginning of the twentieth century, the successful alliance for “order and
progress” entered into a profound crisis—a crisis that proved insurmountable. Much
of what was done at the level of the Constitution, since that time, can be read as an
attempt to recover that mythical moment that combined political stability, economic
growth, and social discipline. Unfortunately, the social conditions had definitively and
dramatically changed, which made it impossible to turn back the clock. In that con-
text, the main response offered by constitutionalism, in order to take into account the
substantive changes that had taken place in the region, was to “annex” some claims
related to the “social question” to the old liberal-conservative institutional matrix. In
that way, constitutionalism tried to show its concern with the conflictive social situa-
tion that was distinctive of the time. The old constitutions were reformed accordingly,
in an attempt to reflect the new social conditions. The goal was to transform those old
Constitutions so as to express, through those legal documents, a perfect synthesis of
the claims of liberals, conservatives, and radicals. Some could have said, then, that the
region had finally replaced the aged liberal-conservative compact for a new, ecumeni-
cal agreement, which included the three historical constitutional projects.
However, and in contrast to that view, we have repeatedly mentioned the serious
problems that seemed to affect that attempt. On the one hand, the new, ecumenical,
“full constitutional alliance” did not properly honor the more traditional and basic ide-
als of radicalism, neither regarding the organization of powers nor regarding how to
deal with the so-called “social question.” On the other hand (but also in relation with
the previous point), the “incorporation” of radicalism to the old alliance was done in
a clearly objectionable way, in terms of institutional design. To state it briefly: legal
reformers left the “engine room” of the Constitution under the custody of the old
liberal-conservative alliance, while they delegated the section of rights to the control
of some of the existing radical groups. As a result of that distribution of tasks, the
region began to produce constitutions that radicalized their internal tensions (typi-
cally, one part of the document seemed to be designed so as to work against the other).
In addition, those initial decisions resulted in the preservation of an organization of
power that seemed still too insensitive to the growing social demands, which prom-
ised the emergence of more tensions between the citizenry and the Constitution.
In any case, it would be unfair to deny the introduction of major changes in the
old nineteenth-century constitutional model. The new century brought with it some
extraordinary events, ranging from universal suffrage to the entry of the working
class in the public arena. Such changes certainly had a significant impact on the old
paradigm of “order and progress.” Notably, however, such changes found only a partial
translation into the language of the Constitution. The new constitutions recognized
those novelties mainly through the incorporation of new socioeconomic rights. In
other words, these extraordinary sociopolitical changes did not translate into a new
organization of constitutional power. Ultimately, and after many different attempts
(which included authoritarian experiences, pacts for governance of more radical rup-
tures), what remained was a “new” constitutional model, characterized by a robust
declaration of rights and a still highly concentrated organization of power.
The second great wave of reforms—the one that emerged toward the end of the
twentieth century—did not significantly modify this new constitutional model. True,
some recent political and economic events had a major impact on the public life of
the region—and thus, also, on the existing legal organization. We refer to both the
cruel dictatorships that dramatically affected the political and social organization of
most Latin American countries and also to the structural adjustment programs that
severely affected their economic framework. However, the fact is that—despite the
intense constitutional movement that occurred in Latin America in the late twentieth
century—the new constitutions that emerged by the end of the century did not radi-
cally subvert the dominant constitutional model. Clearly, these new constitutions also
made a major effort to incorporate previously ignored demands and to integrate social
groups hitherto largely neglected by constitutionalism (from indigenous groups to con-
sumer groups, from gender demands to multicultural demands). Nevertheless, the new
Constitutions were kept, in an important sense, identical to what they already were.
They continued to assert their democratic and inclusive character through the section
on rights, while they kept their hierarchical, top-down aspect concerning the organiza-
tion of power. In short, as we enter the twenty-first century, we can say that, after 200
years of constitutionalism, the liberal-conservative legacy of the nineteenth century
was amended in a significant way, while it was also preserved significantly too.
What Have We Learned in 200 Years of Constitutionalism?

The previous notes suggest the existence of serious institutional deficits, which con-
tinue to affect the political life of the region. At the same time, they refer to the impor-
tance and necessity of constitutional reforms designed to address some of the above
difficulties. Of course, to state this does not mean that constitutional reforms are the
appropriate means for solving problems that mix political, social, economic, and cul-
tural elements. What we are saying is quite the opposite, namely that such problems
cannot be addressed without also resorting to legal changes.
Faced with the need to promote legal reforms, there are several considerations to
take into account in light of the history we have reviewed and the discussions we have
examined in the previous pages. Here we shall briefly summarize some of these consid-
erations, which may be useful for the occasion of launching a constitutional change.
External and Internal Consistency of the Reform

Following Alberdi, we should pay attention to the political and legal context within
which reforms are inserted. Reformers should recognize that the context can foster or
hinder the desired reforms and should consequently learn to engage with that context.
The constitutional history of the region offers good examples of Constitutions that—
inappropriately, we might say—proclaimed human rights in situations of serious viola-
tion of fundamental rights or incorporated social rights while structural adjustment
programs were applied. Of course, reformers can accept the invitation to introduce
progressive reforms in contexts that are not particularly favorable (in the hope that
the clauses will gain life in the future under different contextual conditions). However,
they should also be able to recognize the risks involved in such decisions (i.e., the risk
of generating loss of social trust in the law, the risk of unnecessarily creating consti-
tutional tensions), rather than acting as if those risks did not exist (we shall return to
this point).
Second, the reform should be carried out recognizing that it will not be inserted
in a legal vacuum, but rather in a well-established legal context. Recognizing the exis-
tence of this legal context does not mean simply taking note of the complexity of
the legal world. Rather, reformers should pay attention to the ways in which the past
limits the present. In other words, reformers should take into account that the exist-
ing legal framework can accommodate or—more commonly—resist the arrival of
constitutional novelties. Constitutional reformers, however, often act as if any reform
were possible in any legal context.
Third, reformers should pay special attention to the internal dynamics of the
Constitution. This implies, first, to study the ways in which a reform introduced within
one section of the Constitution (say, an expansion of social rights) impacts within the
same constitutional section (say, the impact it could have regarding the organization
of property). These are cases of what we have called internal impact. And it also implies
studying the ways in which the reforms introduced in one particular section of the
Constitution (say, in the rights section) have an impact on the other section (relative
to the organization of power). These are cases of what we have called crossed impact.
Our intuition is that many constitutional reforms are carried out, at present, as if the
introduced changes did not have any significant impact on the internal structure of
the Constitution. This explains why so many reforms have, for example, bolstered the
participatory clauses of the Constitution and at the same time preserved a hierarchical
organization of power (crossed impact). The above considerations force us to rethink
the kind of reforms that we want to promote, not only from a concern about the for-
mal consistency of the Constitution. We need to rethink the kind of reforms that we
undertake, because we do not want to end up undermining the very legal changes we
want to materialize: we do not want the “old structure” of the Constitution to block
the introduction of new, fundamental reforms. This situation, however, seems to still
be a distinctive feature of Latin America, where constitutions show crucial tensions,
rather than mere continuities, between the section dedicated to rights and the section
that organizes the distribution of powers. Throughout our study we have highlighted one
particular problem that seems to characterize the new Latin American constitutional-
ism: this is the problem of expanding political rights or bolstering social rights while
at the same time, keeping a centralized, top-down organization of power. We have

approached this problem by referring to how the recent reforms kept the door of the
“engine room” of the Constitution closed—a problem to which we shall return below.
Radical Reforms, Hyperrationality, and Limited Rationality

Profound institutional reforms may require ambitious reforms but, not surpris-
ingly, ambitious reforms may face serious difficulties. First of all, we may reasonably
assume that different interest groups, given the amount of vested interests that may
be affected, will resist a grand reform: a vast reform usually presents more points
of resistance. Other related problems concern the human inability to foresee all the
consequences (intended and unintended) that may be derived from a reform of vast
dimensions. Jon Elster has made reference to these problems through the concept
of hyperrationality, and he also referred to the human difficulties for developing
over-ambitious experiments of social engineering (Elster 1989).
The objections cited are undoubtedly worthy of consideration, although they also
recognize several shortcomings. First, even though it is true that a reform that strikes
too many issues at once creates more points of resistance, so is it true that many
reforms tend to be frustrated, in practice, because of obstacles coming from the unre-
formed aspects of the Constitution. Second, reformers need to consider (what we
named) the phenomenon of the “dormant clauses.” The idea is that certain clauses
of the Constitution may remain inactive for a while, and then gradually gain life or
“awaken” as a consequence of changes in the contextual conditions of the Constitution.
Third, there is a lesson that we can derive from experiences like those of Bolivia, that
is to say, cases that introduced enormously ambitious reforms. That case suggests that
reformers may include many provisions that will be displaced or postponed for a while,
without completely undermining the reformist project: a reform may have a profound
social impact, even in spite of its incomplete application. Moreover, the “working”
aspects of the reform may install (or not) the idea that the reform is serious and that
additional changes are necessary. The reform may thus contribute to the endogenous
formation of preferences conducive to social change. Conversely, one could argue, a
minimal reform may generate the idea that the government is not willing to carry
out profound changes, and thus discourage the people’s engagement with a process of
social transformation.
Motives and Modalities of the Reforms and Their Outcomes

Reformers could also take note of the way in which the different motives and modali-
ties of the reform generated different results. First of all, many Latin American
Constitutions emerged right after certain significant national “dramas” or “tragedies”
and appeared in direct dialogue with those events.5 For example, both during the 1940s
and the 1980s, the region produced Constitutions that were a direct reaction to a recent
period of authoritarianism.6 Similarly, both after the 1930 world economic crisis and
after the application of the programs of structural adjustment (during the 1980s),
we find Constitutions that were particularly anxious to provide a “social” response to
the recent crises. In sum, the region has a long history of Constitutions that, rather
than appearing to be detached from reality, or based on abstract ideas, entered into
direct dialogue with the immediate past. The content of these Constitutions seems
to be directly linked to those initial, basic motivations. By contrast, other constitu-
tions seem to be less related to the profound “dramas” of national history, and more
connected, instead, with short-term ambitions—typically, presidential reelection—
which has also affected the quality and transcendence of their content.
The region’s constitutional discussions have also appeared in very different con-
texts. In situations of relative political stability and economic growth, such as the one
that characterized the second half of the nineteenth century, there was very little con-
stitutional production and discussion. By contrast, constitutional debates and reforms
were more typical in contexts of crisis. When the social crisis was more extreme, for
example, in contexts that included armed social conflicts, the initiatives for constitu-
tional change were also more extreme (thus, for example, in Mexico 1911 or Mexico
1996). We also find initiatives for profound constitutional reform in the context of
profound political crisis (México 1917, Colombia 1991). These differences suggest
interesting correlations and pose interesting questions that should be the object of
further research in the area.
Another topic that deserves exploration relates the different modalities assumed
by different constitutional assemblies. One first and obvious starting point could be
the following: the most exclusive constitutional assemblies were, not surprisingly, the
ones that originated the most exclusive constitutions (typically, those that were writ-
ten during the first half of the nineteenth century). By contrast, those that were more
inclusive were also those that generated the most inclusive Constitutions (typically,
those that were written during the last decades of the twentieth century and begin-
ning of the twenty-first century). These initial observations encourage us to think
about an interesting correlation between certain “presences” at the Constitutional
Assembly and the final constitutional outcomes. To put it differently, Latin America’s
constitutional history suggests the existence of a strong correlation between the per-
sonal characteristics of the members of the convention and the convention’s particu-
lar results. For instance, assemblies that registered an important number of workers
among their members have tended to be those that took the problems of labor more
seriously; and similarly those that registered more presence of indigenous groups
have tended to be more sensitive to the “indigenous question.” Of course, political
theory has often reflected on the issue of presence, and what we are suggesting here
is simply that the analysis of constitutional conventions may represent a particularly
fruitful area for continuing and deepening those reflections.
Localized Reforms
We have not only examined the alternative of broad and deep reforms but also explored
the possibility of localized, well-directed reforms. Latin America offers many interest-
ing examples of these narrow, seemingly superficial reforms that, ultimately, demon-
strated their (limited but not insignificant) transformative capacities. For instance,
we made reference to legal changes that came to expand the right to standing and
facilitating access to justice. These reforms have been decisive in favoring the entrance
of marginalized groups into the legal system. At the same time, these changes—which
fostered the presence of numerous demands coming from disadvantaged groups—

induced additional variations in judicial behavior. Facing numerous demands that
they had barely faced before, judges began to adopt innovative, unprecedented deci-
sions. Notably, these formal, procedural, somehow minimal reforms have been quite
successful in the most diverse political situations (which normally included profound
social inequalities), and the most varied contexts (Colombia or Costa Rica in Latin
America, but also in South Africa, India, or Hungary). Even despite their limited
nature, these kinds of reforms represent a good example of the way in which a society
can get into the “engine room” of constitutionalism and thus operate the levers that
organize and distribute political power. We could add something similar regarding
other reforms, more directly related to the section of rights, and referred for instance
to the recognition of indigenous rights. As we know, these reforms have in certain
cases achieved an interesting impact in terms of the identity of groups traditionally
disfavored by the law.
These references to the virtues of certain “localized” constitutional changes should
not be understood as a call for the adoption of minimalist reforms, per se. These are
not the changes that an egalitarian movement of institutional change should priori-
tize. Localized reforms are consistent with refined and unambitious reforms, like in
Costa Rica, and also with broad, ample reforms, like in Colombia. And their potency
depends, in part, on the type and quality of the institutions that surround them. In
the end, one could claim, these reforms face the serious risk of becoming suffocated
by the surrounding structures or channeled into canals safely isolated from the rest
of society.
Reforms in the “Engine Room”

Our conditional defense of ample and profound reform should not be interpreted as a
call to maximalism, as if maximalism were attractive per se. Against that view, we have
here criticized a tendency that has become distinctive of Latin America concerning
what we could call improperly broad reforms. More specifically, we have objected to
reforms that were, in many cases, significant in their scope, but much less significant
in their content. This was typically the case of reforms that kept the “engine room” of
constitutionalism basically untouched. For instance, in our study, we have examined
the following remarkable case: the two major social facts of the century, namely the
incorporation of workers into politics and the outbreak of multicultural politics, exercised
only a limited impact on constitutionalism. Their vibrant presence became reflected
through changes in the organization of rights, but not through related changes in the
organization of power.
This text does not aim to make a defense of broad or maximalist reforms, per se,
but rather supports reforms that were significant enough to reach the unreachable,
namely, the control room of the Constitution. These (properly broad) constitutional
reforms have not distinguished recent Latin American history.
By their decision not to modify the engine room of the Constitution, recent reform-
ers have ignored a good deal of accumulated institutional knowledge. First, they
seemed to have forgotten what the leaders of the liberal-conservative compact taught
us, namely that in order to achieve certain basic objectives in terms of constitutional
rights (i.e., ensuring special protection to property rights), it was crucial to introduce
fundamental changes related to the organization of power. In other words, Latin
American “founding fathers” properly recognized the importance of crossed reforms:
because they cared about rights, they proposed modifying the distribution of powers.
At the same time, contemporary reformers have also not paid sufficient atten-
tion to what many radical reformers did in the nineteenth century. These radical
leaders also realized that, in order to democratize politics, it was both necessary to
change the distribution of resources in general and also to act upon the distribution
of property, in particular. That is to say, the old radicals (like the old leaders of the
liberal-conservative compact) properly recognized the importance of establishing
links between the desired political reforms and the existing structure of property
rights—a point we shall explore in the following section.
Material Basis and the “Fuel” of the Constitution

In previous pages, we have also insisted on the importance of promoting reforms
that took the material and motivational basis of constitutionalism seriously into
account. The basic point is that it seems difficult to promote an egalitarian reform
in an inegalitarian society, whose members lack the moral dispositions necessary for
making the reform their own. Worse still, present constitutions do not challenge but
rather accommodate their structure to those inequalities, at the same time that they
presuppose the existence of self-interested individuals more than that; egoism seems
to be the “fuel” of the Constitution. Undoubtedly, these issues confront us with seri-
ous questions about the preconditions of a successful reform: How do we promote
egalitarian reforms when lacking basic material and personal resources? How do we
obtain those reforms and, particularly, how do we make them stable, without those
conditions? And also, these issues confront us, again, with the tension between mod-
est and over-ambitious reforms. In other words: Is it reasonable for a constitutional
reform to try to engage with so many difficult questions (both legal and nonlegal)?
Should the reform try to reach beyond the text of the Constitution so as to affect its
material conditions?
The region offers some interesting (although also problematic) antecedents of
reforms that attempted to extend their influence far beyond the text of the Constitution.
We find interesting illustrations of these cases, for instance, in the constitutional
debates that took place in Mexico during the nineteenth century (the debates around
the 1857 Constitution); the twentieth century (including, e.g., the agreements of Ayala,
promoted by Zapata); and also the twenty-first century (including the agreements of
San Andrés, also promoted by the Zapatista movement in Mexico). In all these exam-
ples, legal reformers made serious—although invariably unsuccessful—attempts to
provoke changes beyond the text of the Constitution.
However, the region also offers other examples, such as the one of Bolivia, which
suggests a somehow more promising venture. In effect, the 2009 constitutional reform
in Bolivia is a good example of a constitutional change that attempted to promote
ambitious economic reform, and which, for instance, called into question the institu-
tion of large states or latifundios. The reform was, in fact, over-ambitious, but should
not be classified as an example of a failed enterprise. One partial conclusion, derived
from these experiences, could be the following: rather than stating that we should go
for over-ambitious reforms, we could say that we should distrust those reforms that
include no serious reflection on the human and material conditions on which they
are based. Those reforms, which seem to assume the autonomy and self-sufficiency
of the law—reforms that do not question the conditions that are necessary for their
success—should be defied and questioned.
The Long Road toward Egalitarianism

The long march of American constitutionalism can be pictured as a process of slow evo-
lution. This process has occasionally showed innovations of great interest, although it
more commonly included rather improvised initiatives, too dependent on (not always
interesting) translations of the foreign law.7 Latin American constitutionalism has
added layer upon layer of legal sediment, without considering how much each layer
worked against the others.
For those who still favor its original, double commitment to collective self-
government and individual autonomy, contemporary Latin American constitution-
alism looks doubly disappointing. On the one hand, Latin American constitutions
maintain a concentrated organization of power, pay little attention to the deliberative
bodies, and seem to still be too hostile to popular political participation. On the other
hand, these Constitutions have extended their statements of rights, over the years, in
an unprecedented way, although without providing those rights with a proper institu-
tional support. Constitutions then look deficient not only in terms of self-government
but also in terms of individual autonomy. Some groups remain—constitutionally
speaking—among the marginalized of the marginalized (groups that were neither
favored by the “social” nor by the “multicultural” turn of regional constitutionalism);
and some others, like women, still have some of their most basic rights (i.e., reproduc-
tive rights) systematically violated (which makes us recall our previous discussions on
the issue of “presence”).
Moreover, the extensive bills of rights that distinguish many of the regional con-
stitutions seem to derive from the reductionist idea according to which the battle
for social justice has to be fought in the Bill of Rights section of the Constitution.
Worse and more importantly, that generous list of rights finds one of its major
enemies within the same Constitution—mainly, from a concentrated organization
of power.
Of course, an arbitrary power can do many things and even, eventually, promote
the expansion of rights. However (and this is something that we tried to account for
in the previous pages), history has given us repeated examples of the contrary situ-
ation. Powerful Executives tend to see the strengthening of civil society as a direct
menace to their own power and consequently tend to work against the autonomy and
empowerment of social movements. Historically, those concentrated powers have felt
at home with groups claiming their adhesion to the president’s projects, in the same
way they felt threatened every time that those groups showed signs of political inde-
pendence. Their response has always been the same: they have tried to discipline rebel-
lious groups mainly through money and coercion.
The political problem in question is not simply limited to the existence of an uncon-
trolled national Executive. The whole representative system shows a preoccupying dif-
ficulty in meeting its most basic promises of inclusion and representation. The worst
of it is that the system is not in a position to fulfill those promises, even by getting
condoned for its worst sins.
Given the above, the objectives of an egalitarian constitutionalism seem, at least
in part, apparent. The great “constitutional drama”—the great challenge—facing
the region is still the drama of inequality. And the present inequality seems to be
well served by the lack of political and economic democratization. This is why an
egalitarian project requires taking both political and economic democratization more
seriously. An egalitarian project needs to begin by recognizing that political democ-
racy is contradicted by the existing concentration of power, in the same way that
economic democracy seems to be contradicted by a situation where a few decide in
the name of all. Egalitarianism must recognize that each of these inequalities, more-
over, reinforces the other. The lessons of history seem to be sufficient in this respect.
Learning from the past, egalitarians should refuse to take inappropriate shortcuts,
which have always put them on the wrong path.
The path of political democracy, like the path of social justice, has one of its major
landmarks—but clearly not its only one—in the Constitution. Egalitarian constitu-
tionalism, therefore, should challenge, rather than further develop, the kind of (eco-
nomic, social, political) injustices that helped to forge it. In order to reconnect the
Constitution with equality, reformers should first enter the “engine room,” which for
some reason they have not done yet. Egalitarians need to promote a structural change
in the organization of the representative system, which presently seems well prepared
to separate, rather than connect, the people from their representatives, favoring the
independence and autonomy of the latter. In response, they should promote a differ-
ent institutional model, designed to link citizens with their representatives and allow
a better and more fluid communication between them.
Moreover, egalitarianism requires recovering the “social question,” relegated today,
warning that such concern is not satisfied from the mere translation of social demands
in the language of rights. The drama of social inequality does not deserve to have law-
yers and judges as main actors and key players.8 By approaching the “social question”
in that way, the critics of the institutional system seemed to put aside their traditional
quest for the radicalization and politicization of society, which they had always con-
sidered essential to their project. Those radical critics—we should recall—not only
used to speak a different language (the language of politics) but also resisted using the
most vulgar version of the language of rights.9
In the same way that critics of the system should not abandon their concern for the
“social question,” nor should they set aside their old battle for the democratization of
power, their anti-presidentialism, or their Rousseauistic critique of the representative
system. Even less should they do so simply to embrace positions favorable to the con-
centration of authority. Unfortunately, however, in recent decades it has become all too
common for radical groups to begin to support the creation of powerful presidencies, as if
that object could properly serve, rather than undermine, their main political goals. Their
old political project, which required the atomization or pulverization of power, became
thus diluted—radicals began to consider it impossible, utopian, or simply wrong.10
The kind of institutional justice that is advocated here surely requires an open and
persistent collective dialogue that includes dialogue between authorities, but extends
far beyond it. This public dialogue needs to reserve a central, rather than marginal, role
for the citizenry, and be encouraged and supported, rather than undermined, by the
Constitution. Collective public debate, we assume, is essential to properly address and
solve public problems that affect diverse and numerous groups.11 Today, however, col-
lective dialogue is constitutionally relegated or hindered, colonized by money (which
is unequally distributed), and largely emptied of content, given the social marginal-
ization of disadvantaged groups. The few interesting initiatives for public dialogue
that we do find (i.e., institutional dialogue between judges and politicians) do not
arise because of but despite the existing constitutional framework (Gargarella 2011b).
In any case, this socially inclusive and deliberative process drives us back to a differ-
ent way of thinking about democracy. Contrary to what Alberdi once suggested, the
approach that is defended here does not see democracy as based on the non-deliberate
endorsement of the community, but rather as the result of a long, ongoing, and unset-
tled collective conversation.
NOTES
Preface
1. We shall understand the term constitutionalism in a narrow sense, as basically referring to
the rules that organize powers (typically, the Executive, Legislative, and Judicial branches);
and that also put limits upon it, mainly through a list of rights.
Chapter 1
1. Although in what follows I will be mainly thinking about Constitutions (and, particularly,
about written Constitutions), the fact is that that approach will also reach projects aimed
at reforming the Constitution, were they successful or not and, more ambitiously, compre-
hensive programs directed at organizing or reorganizing (what John Rawls has named) the
“basic structure” of society, this is to say a concept that includes but also clearly goes beyond
the idea of a written Constitution (Rawls 1971).
2. Similarly, for Cass Sunstein, Constitutions should be understood as precommitment strate-
gies, used to “protect [society] against the most common problems in their usual political
processes. Constitutions should therefore work against a nation’s most threatening tenden-
cies” (Sunstein 1993, 36).
3. The behavior of factions represented, at that time, a decisive and threatening novelty, which
affected the political life of numerous states (including, remarkably, the cases of Rhode
Island, Vermont, and Pennsylvania), where, according to the description of the “federal-
ist” leaders, numerous groups of “debtors” achieved positions of power, from where they
tended to put in crisis the property rights of their opponents (Brown 1955; Schuckers 1978;
Wood 1969, 1992). Madison, among many others, considered that the so-called “paper
money crisis,” which at that time appeared, had become even more threatening and danger-
ous as a consequence of its legal manifestations, than as a result of the armed confronta-
tions that it generated. In the end, these armed confrontations (symbolized by the famous
“Shays’ Rebellion”) were generally perceived as illegal actions and consequently repressed
by the troops of the Confederation (Brown 1970, 1983; Feer 1988; Szatmary 1987; Wood
1966). The real problem, then, was another, and it emerged when the same demands that
a few advanced through the use of armed violence (and that were then combated, as illegal
actions), began to gain terrain through the use of the law.
4. Of course, society may end up identifying a problem that is not really significant or not the
most important one; or then suggest solving the problem through constitutional remedies that
were inappropriate. However, these errors would not deny the importance of the task at place.
5. Haitian peasants would say, during those years, that—“Constitution sé papié, bayonet sé
fer,” namely the “Constitution is of paper, bayonets are of steel” (Sheller 2000, 69).
6. In particular, see art. 3 of the 1801 Constitution; arts. 2 and 3 of the 1805 Constitution;
art. 1 of the 1806 Constitution; arts. 1 and 2 of the 1807 Constitution; art. 1 of the 1816
Constitution.
209
210 Notes
7. See Bolívar (1950, 1:22). He also stated that the “most grievous error committed by
Venezuela in making her start on the political stage was, as none can deny, her fatal adop-
tion of the system of tolerance, a system long condemned as weak and inadequate by every
man of common sense, yet tenaciously maintained with an unparalleled blindness to the
very end” (1:18). A few years later, in a speech he delivered at the inauguration of the second
national Congress of Venezuela, in Angostura, he also stated that “no matter how tempt-
ing this magnificent federative system might have appeared, and regardless of its possible
effect, the Venezuelans were not prepared to enjoy it immediately upon casting off their
chains. We were not prepared for such good, for good, like evil, results in death when it is
sudden and excessive. Our moral fiber did not then possess the stability necessary to derive
benefits from a wholly representative power; a power so sublime, in fact, that it might more
nearly befit a republic of saints” (1:181).
8. In his work Estado social del hombre: Principios filosóficos de la legislación, Egaña stated:
“Religion is not only the axis . . . of the people’s morality, but also the axis of the national
character, its habits, the respect for civil institutions. . . . In every public act, even the small-
est act, religious manners, aimed at recalling the presence of God, should be included” (Silva
Castro 1969, 81).
9. Quoted in Collier (1967, 270). See also Donoso (1967, 136–37).
10. Alberdi recognized that those early responses properly addressed another crucial question,
namely, “a Constitution against what”? Those Constitutions, he claimed, assumed that “the
evils suffered by America derived from their political dependency . . . and this is why they
found the remedy to that evil in the separation from Europe’s influence” (Alberdi 1981,
23).
11. One first and relevant historical support to this initial schema comes from the two most
crucial events in the history of modern constitutionalism, namely the French and American
Revolutions, and their respective Constitutions (Elster 1993). Both revolutions exercised an
enormous influence in the entire world, and the two Constitutions marked the development
of constitutionalism in the region. The first revolutionary constitutionalism originated in
France, came to represent radical, anticonservative constitutionalism, which also found a
clear continuity in the writings of radical Anglo-Saxon authors such as Thomas Paine. At
the same time, the US Constitution came to symbolize a different, alternative model, which
was mainly concerned with the establishment of limits, controls to power, the separation
between Church and the State, this is to say what we normally call liberalism. Together with
these two approaches, Latin American constitutionalism was greatly influenced by the Span-
ish legal tradition. Four hundred years of colonization, enforced through force, represented
a fundamental basis for the development of this conservative type of constitutionalism.
This approach vindicated existing traditions, the enforcement of morals, and an unequal
political order. In sum, these three approaches provide us with an important historical basis
to defend our tripartite division.
12. See, for example, the way in which these ideas of conservatism, majoritarianism, and liberal-
ism are defined by the International Encyclopedia of Social Sciences (Sills 1968). Conservatism
“celebrate[s] inherited patterns of morality and tested institutions, that are skeptical about
the efficacy of popular government, that can be counted upon to oppose both the reforming
plans of the moderate Left and the deranging schemes of the extreme Left, and that draw
their heaviest support from men who have a substantial material and psychological stake
in the established order” (3:291); majoritarianism says that “not only may a minority never
override a majority but also it can never check a majority: a majority vote is conclusive for
the whole group” (9:536); and liberalism maintains different points: One is the dislike for
arbitrary authority, complemented by the aim of replacing that authority by other forms of
social practice. A second theme is the free expression of individual personality” (9:276).
13. In what follows, we will use, indistinctly, the categories of “republican” and “radical.”
14. In Chile, we find a Radical Party, which was created quite early after the independence revo-
lution; in Colombia, we find common references to the “radicals of the 19th Century” (i.e.,
Mejía Arango 2007) or even to the “socialist mirage in New Granada” (Gilmore 1956); in
Peru, the historian David Sobrevilla maintained that radicalism was the third of the main
Notes 211
political options developed in Peru, after the national independence—the first being con-
servatism; the second, liberalism; and the third, radicalism (Sobrevilla 2009, 21–22); in
Mexico it is also common to refer to the “radicals” or “pure liberals” and their participation
in the 1857 Constitutional Convention, etc.
15. See, for example, Thomson (2002), and particularly Sobrevilla (2002).
16. I examine the point with more detail in Gargarella (2010). In the following chapters, we
shall also examine the evolution of the radical constitutional model since the end of the
nineteenth century.
17. This definition is, for example, very similar to the one that is offered by the Peruvian his-
torian David Sobrevilla, when he contrasts radicalism with liberalism and conservatism.
For him, “radicalism is the third most important political conception of the time (there
are other, less important views), which were developed after the national independence.
The first one was conservatism, the second was liberalism, and the third one radicalism. The
precursor of radicalism in Peru was Francisco de Paula González Vigil (1792‒1875), and then
radicalism arrived to our country in the way developed by the Chilean hero Francisco Bilbao
(1823‒1865), who lived exiled in Lima from 1851 to 1856, and an intermediate stay in
Guayaquil in 1852 and 1853; then it was assumed by Enrique Alvarado (1835 or 1837 and
1856) and cultivated by Mariano Amézaga (1834‒1883). The peak of radicalism in Peru
appeared with Manuel González Prada. Radicalism could be characterized negatively for its
anticlericalism, anti-Hispanism, and denunciation of the economic and moral problems
confronted by Peru; and positively as an option in the extreme left that was against the
bourgeoisie, against capitalism and the nascent imperialism, and in favor of an ample egali-
tarianism” (Sobrevilla 2009, 21–22).
18. According to the author Carlos Rama, Flora Tristán “was friends with Charles Fourier
and . . . Robert Owen”; was defended by the same Karl Marx in The Holy Family against Ed-
gard Bauer’s attacks; and was also a source of inspiration to Friedrich Engels, for his book on
the situation of the working class in England (Rama 1977, xxi).
19. Thus, in the words of Juan Montalvo (1984, 28).
20. The same criticisms could be extended to the radical tradition, in general, and in spite of
exceptions such as the one of Artigas. Even in an extreme case, like that of the Mexican
independence revolution, led by the revolutionary priests Hidalgo and Morelos, and pro-
moted by numerous indigenous people, the results were, in this particular respect, quite
frustrating. The advanced, republican, Rousseauistic Apatzingán Constitution of 1814 (one
of the most interesting constitutional products of early Latin American radicalism) reserved
basically no room to the rights and interests of indigenous groups, in spite of the crucial role
played by the latter.
21. Probably few public figures expressed so clearly the constitutional implications of conser-
vatism as the president of Ecuador, Gabriel García Moreno, during the inauguration of Ec-
uador’s Constitutional Convention. In effect, in his inaugural speech he explicitly admitted
that his power would be directed to defend the Catholic creed, and that he would combat all
those who wanted to put limits on his “mission.” All his political opponents were thus sud-
denly transformed into enemies of the nation. As he put it: “the first [goal of my power] will
be that of harmonizing our political institutions with our religious beliefs; and the second
will be that of investing our public authorities with the forces required to resist the assaults
of anarchy” (quoted in Romero 1978, 115).
22. And also: “I belong to the party of the Catholics, this is to say, to the party of Jesus Christ;
I am in favor of extraordinary faculties” (see his “Vagancia,” for example, included in “La
Religión,” Buenos Aires, 8 de agosto de 1857, and reproduced in Halperín Donghi (1980,
42–43).
23. In a short and revealing paragraph on the topic, he wrote, “In disquisitions of every kind,
there are certain primary truths, or first principles, upon which all subsequent reasoning
must depend. These contain an internal evidence which, antecedent to all reflection or combi-
nation, commands the assent of the mind. Where it produces not this effect, it must proceed
either from some defect or disorder in the organs of perception, or from the influence of
some strong interest, or passion, or prejudice.” See an analysis of the topic in White (1987).
212 Notes
24. It is also interesting to study the polemic between Herrera and the brothers José and Pedro
Gálvez (see, in particular, the debate between Herrera, as the rector of the ultra-conservative
College of San Carlos and Pedro Gálvez, director of the liberal College Nuestra Señora de
Guadalupe). See, for example, Leguía (1927 and 1939).
25. Although the conservative model was the most successful of all, in terms of the stability
achieved by its Constitutions, this was not precisely the case of the Constitutions most
closely inspired by the Napoleonic model, like the ones advanced by Bolívar in Bolivia, Co-
lombia, and Peru, which appeared to be so extreme, particularly with regard to the powers it
attributed to the Executive (i.e., appointment for life).
26. Marx´s extremely harsh criticisms against Bolívar appeared in one of the very few pieces
that he wrote making reference to Latin America (he also wrote a few lines about the US
invasion of Mexico). The critique, which was published in the New York Daily Tribune, was
so extreme that he had to clarify the scope of his criticisms in a letter that he wrote to
Engels shortly after the publication of his piece on Bolívar. Notably, the article triggered
an important polemic in Latin America, among leftist authors and groups, regarding both
the accuracy of Marx’s historical analysis and also (and more significantly) the strategy of
concentrating powers in order to promote social changes. See, for example, Marx (1958) and
Aricó (2010).
27. Notably, some of these proposals were even promoted by liberals, who at one point came to
believe that this was the only way out of the profound institutional crisis that followed the
independence. These monarchical initiatives appeared briefly in Argentina (1814‒1818);
Chile (1818); and with more strength in Mexico, where a European prince was the designed
emperor of Mexico between 1864 and 1867 (this modality was also explored in other Latin
American countries, without success). In Argentina, Manuel Belgrano, had attempted a dif-
ferent, curious alternative, which consisted of enthroning an Incan descendant. Meanwhile,
in Mexico 1812, General Iturbide had proposed the option of a creole monarch, also without
success.
28. Many Latin Americans saw religion as an essential component of public life, given its
character as the only “moral tie” that kept society together—as defined by the Mexican
monarchist José María Gutiérrez Estrada (Fowler 1966, 70). Similarly, the Peruvian priest
Bartolomé Herrera stated, “A Nation so scarce in social ties” could not be indifferent regard-
ing the “conservation or destruction of religion” as the moral cement of society (Paz Soldán
1973, 106).
29. It would be composed of two Chambers: the first one would be in charge of publishing statis-
tics that included a list of virtues and vices; and also comparative lists with the names of the
more virtuous and distinguished people; while the second Chamber, of Education, would be
in charge of the moral and physical education of children until the age of twelve.
30. See, for example, in http://www.analitica.com/bitblio/bolivar/angostura.asp.
31. Moreover, many of them subscribed an organicist and anti-individualist view of society, which
contradicted the idea of unconditional individual rights proposed by liberalism. As the con-
servative Colombian thinker stated, “Society is a moral entity, with its rights and duties,
and it is not enough that individuals fulfilled their particular duties . . . because society goes
beyond individuals” (Valencia Villa 1992, 235).
32. We find a similar reasoning with Bolívar, in his reaction against what he called the “exagger-
ated maxims of the rights of men.” In his opinion, it was senseless to think about the rights
of men as French people did, this is to say, as intangible and unconditional rights: nothing
was more important than the preservation of the social order.
33. This is similar to what Judith Shklar defined as “liberalism of fear” (Shklar 1989, 27–28;
Williams 2008, ch. 5).
34. However, and as Gordon Wood maintained, the laws aimed at the confiscation of property,
and the tender-laws as well, were not the mere product of the unchecked passions of a few,
or the result of an irresponsible and tyrannical magistracy, but rather the expression of
perfectly representative legislatures. In his words, “the people’s will, as expressed in their
representative legislatures and so much trusted throughout the colonial period, suddenly
seemed capricious and arbitrary” as if they acted “under the bias of anger, malice or a thirst
Notes 213
for revenge.” However, “paradoxically as it seemed, it was the very force of the laws of the
states, not anarchy or the absence of law, that was vitiating the new republics” (Wood 1969,
405–6).
35. According to Frank Safford, the Constitution of Cadiz would allow Latin Americans to do
“essentially the same thing that they were trying to do: to introduce Anglo-French liberal
constitutional ideals into a Spanish political structure” (Safford 1985, 362). In his opin-
ion, the Cadiz Constitution also served to strengthen (rather than debilitate) a structure
of power that the very first Constitutions of the region (more clearly inspired by radicals
ideals) had substantively weaken (ibid.).
36. It is interesting to note how Juan Egaña defended, for the Chilean 1823 Constitution, the
institution of the “conservative senate.” For him, it was clear that “there will never be a
stable and self-sustaining government if the Republic is left to a popular administration
without a permanent and conservative body of notables dedicated to the protection of the
Constitution, and to the control of the errors and abuses of a vicious democracy” (quoted in
Jaksic and Leiras 1998, 14–15).
37. Bolívar presented his strongest version of presidentialism in 1826, at the Bolivian Con-
stitutional Convention, and he was then clearly inspired by Napoleonic constitutionalism.
He then proposed a life-term, non-accountable president. He argued for this idea by stat-
ing: “The president of the Republic, in our Constitution, becomes the sun which, fixed in
its orbit, imparts life to the universe. This supreme authority must be perpetual, for in
non-hierarchical systems, more than in others, a fixed point is needed about which lead-
ers and citizens, men and affairs can revolve. ‘Give me a point where I may stand’, said an
ancient sage, ‘and I will move the earth’. For Bolivia this point is the life-term president.”
(Bolívar 1951, 598). Those references, in addition, were accompanied by laudatory words
toward the new political situation in Haiti. That country had recently appointed (his friend)
Alexander Petión as life-term president. For Bolívar, this appointment (which seemingly
had been functional to ending a grave period of social tensions) represented a clear dem-
onstration of the worth and importance of a system of concentrated authority at a difficult
political time. For Bolívar, the faculties that had to be transferred to the president included
those needed to set the Constitution in motion; the capacity to remove the vice president
and the ministers at will; the power to command and mobilize the Army; the power to ap-
point all military officers; the power to concede pensions; the power to suspend public of-
ficers at will; and so on. In addition, the president was supposed to receive from Congress
all those powers necessary to “the State salvation” in times of extraordinary danger or war.
Moreover, the Bolivian Constitution allowed the president to designate his vice president
and his successor as well; the President was also authorized to convoke legislative powers
when he considered it necessary; and it also declared the President non-responsible for his
acts: only his ministers and his vice presidents could be judged, as a consequence of their
public actions.
38. Congress, in addition, appeared divided into three, rather than four Chambers, as in the Na-
poleonic Constitutions: the Chamber of Tribunes, the Senate, and the Chamber of Censors.
Another remarkable feature of the Constitution was the incorporation of a fourth branch of
power or Electoral Power, which was in part taken from the Napoleonic Constitutions of the
year VIII and X; the Constitution of Cadiz and the 1823 Peruvian Constitution.
39. Constant was in effect very critical of many of Bolívar’s proposals. For him, there existed no
reason to think that America would fall into a severe crisis if the Executive did not receive
unlimited powers. In letters to Bolívar he suggested that dictatorship or despotism were not
appropriate solutions if the objective was the promotion of general happiness and liberty.
See Aguilar Rivera (2000, 193).
40. According to Negretto, there were numerous Latin American thinkers that, inspired by the
work of Constant, tried to create a “neutral power” that was able to keep the other powers
within their respective competencies. He mentions, in this respect, the examples of the
Chilean Constitution of 1823; the Chamber of Censor created by Bolívar for Bolivia in 1826;
and the Supreme Conservative Power that was proposed by Sánchez de Tagle for the 1836
Mexican Constitution. Alberdi, he adds, shared with these thinkers the idea that it was nec-
214 Notes
essary to find a “guardian” for the Constitution, given the impossibility of creating a proper
system of equilibrium of powers. The Executive power would have occupied, in his view, the
role of the neutral power (Negretto 2001, 14).
41. It is interesting, in this respect, to mention the case of Peru, and some of the initiatives
promoted by Manuel Vidaurre, in favor of a “Conservative Power” (Vidaurre 1825, 1827,
1833). Vidaurre suggested, for example, creating “a power capable of subjecting power.” For
him, however, it was “evident” that such a power could reside “neither in the other powers,
nor in the people in mass” (Vidaurre 1833, 28).
42. However, changes in the Brazilian system would only come sixty years later, when (in 1889),
the opposition forces finally obtained a triumph and proclaimed the victory of the Federa-
tive Republic (Da Silva 2010, 76–77).
43. Among other measures, Santa Anna promoted a significant constitutional reform to change
the 1824 document. The idea was to introduce a new legal order, clearly centralist and favor-
able to the interests of the Church. What followed then was, first, a group of laws known as
the “Seven Laws” of 1836. These laws worked against the express words of the 1824 Con-
stitution (art. 171) and declared that articles referring to the country’s independence, the
Catholic religion as the official religion, the freedom of the press, the form of government,
and the division of power were non-susceptible of changes. However, under Santa Anna’s
pressures, and the influence of the conservative jurist Lucas Alamán, Congress declared it-
self transformed into a Constitutional Convention and enacted different reformist laws.
First, it established the Bases para la nueva Constitución, and sometime later it published the
Siete leyes directed at the constitutional reorganization of the country. Through the Bases,
Congress created different territorial “departments” that would be under the commands of
governors appointed by the Executive. The Bases also recognized the Catholic religion as the
only official religion, without tolerance to alternative ones. The Siete Leyes completed this
reform program and established the following changes, among others: (a) a novel declara-
tion of rights; (b) a “Supreme Conservative Power” with ample powers; (c) a bicameral Legis-
lative Power; (d) a unipersonal Executive power, indirectly elected for a period of eight years
and with the right to be reelected; (e) a new Judicial power; (f) directives for the functioning
of this new Judiciary; (g) rules regarding constitutional change. In regard to the organiza-
tion of rights, the reforms that were then introduced were also significant. On the one hand,
the Leyes included a declaration of rights, which was a novelty in Mexico, at the time. On
the other hand, the enjoyment of those rights was made dependent on the fulfillment of
certain basic duties, which included, among others, the practice of the Catholic religion, the
payment of taxes, and the assistance to national authorities. In addition, it must be added
that the new laws were particularly restrictive in what regards the conditions for becoming
a citizen. Concerning the organization of power, the most important novelty that was then
introduced was the already mentioned “Supreme Conservative Power.” In addition, the laws
created a Council of Government, which was composed of by members of the clergy, the
Army and the most advantaged social sectors. The Council was an advisory body, which
worked for the Executive branch.
44. In fact, the other fundamental impulse in defense of a powerful president, during Mexico’s
early history, came from Lucas Alamán. Alamán was the great conservative jurist who worked
for centralization and the strengthening of the capacities of the Executive. In order to justify
his proposals in this respect, Alamán made frequent references to the situations of “anarchy”
that characterized the political life of his country. In his opinion, the president used to re-
main “impotent” in those circumstances, as a consequence of his lack of political instruments
with which to respond to the crisis (Alamán 2008, 211). In his writings, Alamán compared
the Mexican institutional structure with foreign law—the United States, Cadiz, and France,
in particular. It was clear, for him, that the Mexican institutional structure was, in compara-
tive terms, extremely fragile, and that the president—in contrast with what happened in
more “advance” countries—lacked appropriate institutional tools for reacting in situations
of extreme danger. In Alamán´s words, the Mexican president “accumulates weakness over
weakness” and was “infinitely weaker” than the US president. Moreover, Alamán added that
the Mexican Executive had all the weaknesses that were typical of elected governments, plus
Notes 215
all the restrictions that were created for example in Cadiz, after the fear of the King (206–7).
The consequence of all those limitations was that the government remained “Unable to [re-
press] the evil people, [protect] the good and pacific ones, [ensure] order, [consolidate] mili-
tary discipline, and guarantee to the nation the benefits of living in a society” (ibid.). He then
regretted the modifications introduced in France, directed at “authorizing the government
[to act] through a terrible military law,” which could be employed when exceptional circum-
stances required so (ibid.). He asked for the Mexican president the “energy and strength”
that he lacked. More specifically, he demanded the provision of special powers to be used
“in the not so infrequent cases of public turmoil.” In that way, he concluded, “revolutions
would cease to be so frequent and dangerous”: it would then exist “a strong and armed hand
with sufficient powers to repress” that turmoil (208). According to some contemporary le-
gal scholars, the extraordinary faculties proposed by Alamán were appropriate, in a context
that was characterized by (i) an imperfect separation of powers (given “the disproportionate
power of the legislatures” (Aguilar Rivera 2008, 25); (ii) the correlative “structural weakness
of the Executive”; (iii) the “remarkable . . . vacuum” that characterized the “liberal constitu-
tional theory” of the time; (iv) the absence of “ample emergency powers,” which instead had
been frequently recognized by “republican constitutional theory,” from Roman Antiquity (for
instance, through the institution of “dictatorship”) and then in the city-states of Renaissance
period, and beyond, at least until “Montesquieu discredited those faculties, by attributing
to them the responsibility for the fall of the Roman Republic” (29–31; see also Negretto and
Aguilar Rivera 2000). The case is interesting and important, although the arguments of the
case remain extremely weak. On the one hand, the reasoning begins with dubious empiri-
cal premises (about the strength and weakness of the Mexican institutional system), which
seem only directed to support predefined answers (“the disproportionate power of the leg-
islatures”; “the structural weakness of the Executive”). On the other hand, the argument is
based on polemic and implausible normative claims, which are not discussed at all (for in-
stance, why would it be obvious that a situation of “anarchy,” if it ever existed, would require
a “strong hand” as a remedy? The answer, of course, cannot be that a strong hand is necessary
because in the Classic Antiquity some republicans resorted to it).
Chapter 2
1. See also Pérez Guilhou (1997).
2. Radicals, as we know, favored a closer relationship between the representatives and the
people; and they also wanted a more active participation of the latter in politics, things that
conservatives disfavored. However, under particular circumstances, conservatives came in
support of the radicals’ seemingly extreme demands. In order to explain this strange result,
we should recall that, at that time, secret suffrage was not the rule; landowners exercised
enormous influence upon (their) workers; political information circulated under restricted
conditions; social inequality was rampant; the (conservative) Church occupied a central
political role in society; and so on. Under those conditions, direct appeals to the people did
not necessarily appear as extreme or too radical initiatives. By contrast, suffrage could in
that context appear as an interesting means for providing authority to conservative poli-
cies that, most of all, lacked political legitimacy. This is what liberals like Bartolomé Mitre
objected to. For him, it was clear that “the conservative party has indeed been a powerful
ally of [the radical party], and more than once, influential and sensitive men called the bar-
barians to the cities, and handed political power to them, in exchange of guarantees for their
wealth and life, which they then lost” (Halperín Donghi 1980, 184).
3. This is what he manifested in his letter to Nehemiah Dodge, Ephraim Robbins, and Stephen
S. Nelson, from January 1, 1802, http://www.usconstitution.net/jeffwall.html.
4. Later in this book, we shall explore other more contemporary examples of this peculiar
alliance, including the case of governments such as the one of Getulio Vargas, in Brazil, an
interesting twentieth-century example of conservative authoritarianism, justified through
rhetoric of “antiliberalism” and substantive democracy (dos Santos 2007).
216 Notes
5. In Chile, this alliance between radicals and liberals would be repeated, later on, in the face of
the so-called “liberal-conservative fusion,” during President Errázuriz’s government, facili-
tated by friendship that united the president of the country and the radical leader Manuel
Antonio Matta.
6. In that pamphlet, Rojas was actually defending an armed insurgency against Bolívar, which
had taken place on September 25, 1828.
7. Together with Rojas, we should mention Florentino González, another noted and extreme
liberal, who was also described as an activist who defended the assasination of the main
political leader of the country (Molina 1987, 97). We could also quote similar diatribes from
González Vigil, who argued in powerful ways against the extraordinary powers given to
Bolívar (which provoked numerous conflicts first with the Peruvian Church, and then with
political authorities). González Vigil became famous as a result of this phrase “I must accuse,
I accuse,” which he pronounced in a Parliamentary speech, against the growing authoritari-
anism of President Gamarra (see, e.g., Cuesta Alonso 2008, 33; Paz Soldán 1973).
8. Peru’s 1823 Constitution was decisively hostile to the Executive power. According to Paz
Soldán, all the president’s attributions remained “limited.”
The president had neither legislative initiatives nor the capacity to convoke Congress in
special occasions. His ministers had to ratify “all commands originated in their respective
departments.” In addition, and contrary to the US Constitution, which was its inspiring
model, the Peruvian delegates “attempted to limit the authority of Government, weaken the
Executive and restrict his powers” while, at the same time, they “strengthened and exagger-
ated the powers and attributions of Congress” (Paz Soldán 1973, 51).
9. Echeverría (1915, 185).
10. Echeverría assumed that sovereignty was the “greatest and most solemn act of reason of
a free people.” Therefore, all those who were unable “to discern between what is right and
what is wrong” had to be prevented from taking part in the elections. The “ignorant people,”
he believed, had no opinion of their own and were ready to compromise the liberties of the
country or accept the suggestions of ill-intentioned people (ibid., 185–86).
11. Those who advanced a more skeptical view in relation to mass intervention in politics made
use of a diversity of arguments, which their rivals denied and challenged. There were those
who simply took as a starting point an elitist political view, which more or less explicitly
denied the basic equal moral dignity of the people. There were also those who—without
denying that basic equality—stressed the practical difficulties of debating in numerous as-
semblies and the consequent need of controlling or limiting massive popular participation.
12. It is not obvious that they maintained that view just because it was the commonsense view,
at their time. In this respect we may recall, for example, the speeches of the liberal-radical
Ignacio Ramírez, in Mexico 1857, through which he made clear that even at that time the
liberal-conservative view was not taken as given (Ramírez objected to the Mexican Consti-
tution because of its lacks of references to the rights of the “children, the orphans,” or the
rights of women. He also praised those “old codes” that had learned to protect “women,
children, ancient people, all the feeble and poor” (Sayeg Helú 1972, 92).
13. We find a significant antecedent of this view in the US constitutional debates, and par-
ticularly in the work of one of its main intellectual leaders, namely James Madison. During
the Founding Period, Madison conceived of the Constitution as a fundamental guarantee
against the irrational impulses of factions, usually directed against the property rights of
the “minority.” In the Federalist No. 10, Madison gave a precise definition of what he under-
stood by the idea of factions. For him, in principle, both majority and minority groups could
act as factions. However, in the same paper, and after providing his definition of factions,
Madison clarified that the only factions that threatened the constitutional order were ma-
jority factions. This was so because “the republican principle” was enough for preventing the
danger of a minority faction trying to impose its “sinister” legislative plans. This is why the
Constitution amounted, in the end, to a document aimed at preventing the risk of majority
factions.
14. As the historian Frank Safford explained, the liberal-conservative elite linked what had
happened in Europe, after the emergence of democratic political radicalism, with the
Notes 217
authoritarian and plebiscitarian regime of Juan Manuel de Rosas, which they defeated in
the battle of Caseros. The rejection of Rosism was thus transformed into a rejection of the
democratic movement. In Safford’s view, the elite strongly rejected Rosas’s regime and were
suspicious of the popularity it gained among the lower classes. This explains why the young
intellectuals of the River Plate developed a strongly negative view of the democratic revolu-
tion that took place in the second half of the nineteenth century. This also explains why
Domingo Faustino Sarmiento and Juan Bautista Alberdi, exiled in Chile during the 1840s,
maintained that popular sovereignty, in the hands of the ignorant masses, unavoidably
ended in a dictatorship (Safford 1985).
15. The convergence between liberals and conservatives that took place in Latin America finds
clear parallelisms with what had occurred, some decades before, during the Founding Pe-
riod, in the United States. In the United States, in effect, the Independence Revolution was
followed by a period of democratic enthusiasm that was initially expressed in what was then
called a period of “radical constitutionalism” (Wood 1969). Following this democratic move-
ment, some states passed Constitutions that bolstered the place of Congress and promoted
a “strict separation” of powers (Vile 1967), in order to favor an institutional regime capable
of best expressing the “will of the people.” Madison denounced this model of constitutional-
ism in his work Vices of the Political System because he considered that it could only produce
numerous, changing and unjust laws. The Federal Constitution, in the end, could be seen
as a reaction against that period of radical constitutionalism and its institutional legacy. In
effect, the new type of Constitution that emerged after the Federal Convention stressed the
importance of “internal controls” and a system of “checks and balance,” which challenged
the model of the “strict separation” of powers. Liberal and conservative politicians and ac-
tivists, such as James Madison, Alexander Hamilton, James Wilson, or Governor Morris,
worked together in this new Constitution, which tried to put an end to the previous epoch
of radicalization.
16. The 1860 Peruvian Constitution could also be characterized as a fusion Constitution. This
Constitution, which would remain in force until 1920, came to “moderate” some of the
more liberal features of the previous, liberal 1856 document. With this document, the
country returned to the traditional bicameral system. Its advocates claimed that the pre-
vious organization was “exotic, anomalous, unparalleled and without antecedents in other
countries.” The 1860 Peruvian Constitution created a weak Congress, with only biannual
sessions. In order to justify this change, the Peruvian delegates alleged—as Madison had
done in his work Vices of the Legislative System—that the main problems of Peru’s public
life derived from the existence of too many laws (Paz Soldán 1973, 108). In addition, the
Constitution suppressed the departmentalization of the country and reestablished the
death penalty. More strongly still, the new Constitution eliminated universal suffrage.
Repeating the usual arguments on the subject, the delegates maintained that the country
was still not well prepared for affording universal political rights, and that the exercise
of the right to vote required a high level of culture among voters (111). Suffrage was,
since then, regulated by law, a fact that actually allowed the reestablishment of indirect
suffrage.
17. The new Colombian 1886 Constitution came to put an end to a long history of liberal and
radical-liberal constitutionalism, which was characterized by its hyper-federalist impulses
and which lasted more than thirty years. The small Commission of jurists, in charge of draft-
ing of the new Constitution, included the conservative leader Miguel Caro, and the liberal
publicist José María Samper, who at the time advocated for a Constitution that combined
“conservative and liberal principles in an equitable manner” (Valencia Villa 1992, 101). In
any case, the final product of the constituent process was a quite conservative Constitu-
tion.
18. In this way, liberals and conservatives were establishing the basis of a peculiar institutional
system that, later on, Carlos Nino would characterize as hyper-presidentialist systems (Nino
1997).
19. The conservative Colombian Constitution of 1886 was the most conservative of them all,
but it also shared many features in common with the other examples, including a strong
218 Notes
presidentialist system, a slow openness to religious tolerance, a difficult relationship with

federalism (which went from resistance to gradual opening to it), and the absence of any
manifest commitment to social rights or political participation.
20. Among the immediate political antecedents, we find the San Nicolas Agreement, which was
signed by all the different provinces in Santa Fe, after Rosas’s defeat. At that point, the
porteño elite showed its opposition to the Agreement’s main features, which they consid-
ered would force Buenos Aires to lose some of the privileges it had enjoyed for decades. For
example, representatives of Buenos Aires’ interests did not want to open the city’s rivers
to free navigation or share the national rents that they used to spend by themselves. Also,
these representatives did not want to hand exceptional powers to General Justo José de
Urquiza, the main military leader of the time. As a consequence of these disagreements, the
local “Liberal Party” was created in 1852; and shortly after, a rebellion provoked the fall of
Buenos Aires’ Governor, Vicente López y Planes, and the rejection of the San Nicolas Agree-
ment by Buenos Aires. In addition, and as a result of all these conflicts, Buenos Aires decided
not to send representatives to the Constitutional Convention that was then called. See, for
example, Rock (1985, ch. 4).
21. Quoted in Romero (1969, 139). See also Sánchez Viamonte (1957).
22. Romero (1969, 152).
23. Alberdi distributed the first copies of his book “Bases,” which was clearly the Constitution’s
main inspiration, in 1852. He sent copies of it to General Urquiza and also to other noted
intellectuals of his time, including Bartolomé Mitre, Félix Frías and Santiago Arcos. Urquiza
praised the book, claiming that “it could not have been written and published in a better
opportunity.” At the same time, however, other works (also related to constitutional mat-
ters) were published, including “Argirópolis,” by Domingo F. Sarmiento; “Profesión de fe,”
by Bartolomé Mitre; “Cuestiones Argentinas,” by Mariano Fragueiro; and “El problema con-
stitucional,” by Juan Llerena. See, in this respect, Mayer (1973, 531–34); and also Pelliza
(1897). Within the Constitutional Convention, many representatives advocated Alberdi’s
view. Among them, there were Martín Zapata, Juan Francisco Seguí, Juan Del Campillo, and
Alberdi’s friends Gutiérrez and Salustiano Zavalía.
24. The discussion between the two groups continued on numerous other opportunities. For
example, they differed regarding article 19 and the issue of privacy (Sampay 1973a); article
32, which specified that the president of the country had to be Catholic; or the obligation to
“convert” indigenous groups to Catholicism.
25. Halperín distinguished Alberdi’s political views from those of Louis Napoleon, in which he
seemed to have found inspiration, and Domingo Sarmiento, one of his most remarkable
political rivals. In his opinion, “Alberdi would remain deaf to the ‘social’ issues that would
always be present in Louis Napoleon. . . . For the latter, the benefits generated by a grow-
ing economy not only compensated the existing limitations on political liberties but also
moderated the social tensions that had become manifest in 1848” (Halperín Donghi 1980,
xxxi).
26. Positivists in Brazil worked for the realization of the ideals of “order and progress” that are
still written in the Brazilian flag.
27. Owners of coffee plantations tended to replace slaves by European immigrants and locally
unemployed people.
28. According to some, it represented “the text of the US Constitution, together with some dis-
positions coming from the Argentinian and Swiss Constitutions” (Amaro Cavalcanti, cited
in da Silva 2010, 79).
29. Although the Constitution expanded political rights, it did not extend them to illiterate
people, women, or the very poor. These decisions were heavily criticized by the so-called
“Apostolado Positivista,” which considered that there were no good reasons for leaving so
many people deprived of their right to vote (Rodrigues 1965, 155–56).
30. Some authors distinguished Brazilian from US federalism, by making reference to the cen-
tripetal character of the US model, composed by states that “being separated, looked for
their reunion”; which they contrasted to the centrifugal character of the Brazilian system,
Notes 219
composed by more integrated states that looked for their separation, in order to win
autonomy (Mendes et al. 2008, 164).
31. Some influential activists (including Rosa e Silva and Nilo Pecanha) objected to presidential-
ism and called for the adoption of a parliamentary system. In their view, a “free govern-
ment” had to always include the possibility of making their members accountable (Arinos
1967).
32. Brazil faced at the time dramatic political situations, which included the suppression of
Congress and the threat of a dictatorship under the command of Deodoro, a civil war that
followed Deodoro’s resignation, a period of oligarchic rule, and the phenomenon of “colonel-
ism,” which emerged during the presidency of Prudente de Morais.
33. Some noted Argentinian liberals, who were then in Chile as exiles, showed a strong support
for Montt’s administration. For Sarmiento, for example, Montt’s government guaranteed
“public tranquility, authority, good faith and an efficient administration,” this is to say, all
the “guarantees” required for foreign investors (particularly, British investors) for making
business in the country. See Collier and Sater (1996, 162).
34. See, for example, Donoso (1977). The existing social tensions exploded into a new civil war
in 1859. The rebels occupied different parts of the country and obtained some significant
victories, for example, in Copiapó. However, the civil war ended with the triumph of the of-
ficial forces.
35. Among them, there was Victorino Lastarria, a nonorthodox liberal who became the Minis-
ter of Finance for a short period.
36. The Convention included, among others, seven presidents of Colombia, namely Tomás Mos-
quera, Rafael Núñez, Santos Gutiérrez, Aquileo Parra, and also José Hilario López, Salvador
Camacho Roldán, and Justo Arosamena. However, important political figures of the time,
such as Murillo Toro or Miguel Samper, were not present. Park (1985, 38).
37. Two other, different constitutional projects were then rejected. One of them was written by
José María Samper and the other by the extreme conservative Sergio Arboleda.
38. It seems clear, however, that the new constitutional era inaugurated by Núñez’s government
was marked by a certain superposition between the liberal and conservative ideologies. Mak-
ing reference to the long-standing relations between the liberal and conservative parties, the
historian Gerardo Molina wrote that the liberal party was nothing else but a “variation of
the conservative school” (Molina 1987, 158). In his revision of Manuel Madiedo’s political
ideas, Molina synthesized the actual and implicit fusion that took place between liberal and
conservative forces. He claimed that “the conservative party recognized a dominant religion
until 1843. The liberal party did the same until 1832. The conservative party conceded extraor-
dinary powers to the Executive, through the Constitution of 1821. The same did the liberal
party, through the Constitution of 1832. Conservatives promoted a dictatorship, against the
dominant legal order, in 1828. The liberal party oppressed Congress in 1830. The conservative
party conspired, in 1833 and 1834, against legality. The liberal party worked against the same
legality from 1839 to 1842. The conservative party conspired against the loyal government in
1851. Liberals did the same against the legal government, in 1854” (Molina 1987, 159).
39. Articles 76 and 121 reestablished the Executive’s capacity to assume extraordinary faculties.
This is also why Rafael Rocha Gutiérrez, a close ally of Murillo Toro, in a lucid criticism of the
new Constitution, maintained that it created a “unipersonal power, the power supreme,” a
president that cannot be judged or removed, a president that “is as irresponsible as a king,”
almost a “sacred person” (Restrepo Piedrahita 2005, 375). At the same time, the Constitu-
tion reestablished indirect elections for the most important public positions (president, vice
president, senators) and also economic and literacy requirements as prerequisites for acced-
ing to different public positions.
40. The new Constitution also abolished the unlimited freedom of expression that characterized
the previous Constitution and established sanctions for those who, through the publication
of ideas, affected the honor of other people or disturbed the social order and public tranquil-
ity (art. 42). At the same time, the Constitution prohibited the use and possession of guns,
which was authorized by the previous document.
220 Notes
41. The 1886 Constitution rejected all the anticlerical clauses of the 1863 Constitution. It also
required all public authorities to respect the Catholic religion as an “element essential to
social order” (art. 38). The State assumed as its duty the protection of the Catholic Church,
its properties and services. In addition, the new document established that public education
had to be organized according to the principles of this particular faith (art. 41).
42. Similarly, the noted intellectual Samper claimed that the previous constitutional order
was responsible of originating “anarchy” (given that “disorder found protection in the
very letter of the law”) and “arbitrariness” (because government was forced to use its
coercive powers in order to avoid chronic insurrections). For him, the delegates of the
1886 Constitutional Convention recognized the “enormity and intensity of the evils faced
by the country during the last twenty years and tried to remedy them with firmness”
(Samper 1951, 305, 308).
43. The Constitutional Commission, in particular, would be distinguished by the presence of a
majority of moderate delegates (Carrillo Prieto 2003, 277–78).
44. Liberals repudiated those arguments by claiming that the latter would give foundation to a
return to the colonial regime. They also claimed that the respectability of a norm had little
to do with its permanence in time (Rabassa 1991, 144).
45. Some Constitutional delegates also tried to strengthen the authority of the Parliament, as
a way of limiting the authority of the president. Thus, they took some initiatives trying
to suppress the institution of the Senate, which was considered an oligarchic institution.
Another important discussion concerned the direct or indirect character of elections. In
particular, many liberals opposed the use of indirect elections for selecting the president of
the Republic.
46. And he added: “I do not think that with the principle of freedom of work it will be enough for
curing (the evils that we confront); but I believe that that principle will be able to free work
from the limits that today constrain it, and that favor abuses from property owners” (Zarco
1957, 56).
47. Comonfort was voted for by a large majority of the people, although radical liberals did not
vote for him but rather in favor of the alternative candidate, namely Lerdo de Tejada.
Chapter 3
1. The reasons that may explain this phenomenon are not apparent. Perhaps it had to do with
the fact that they saw themselves as taking part in a definite foundational moment, which
required such an articulated reflection; perhaps it had to do with the fact that their knowl-
edge was not as fragmented and specialized as it is in our present times.
2. According to Castillo Velasco: “Out of gratitude, public convenience, let us save [indigenous
groups] from their present situation, let us provide them with the means they need for their
subsistence and illustration” (Zarco 1957, 364).
3. For Arriaga: “Society, with regard to its material organization, is still the same as before: the
land is concentrated in a few hands; capital is accumulated by only a few” (ibid., 389).
4. For Olvera: “These lazy people should have been . . . corrected, in attention to religious prin-
ciples of charity and fraternity . . . but instead they were obliged to work and they punished
them as a consequence of their laziness and their vices” (ibid., 692).
5. Arriaga maintained “despotism came together with absolute exploitation, based on the
ignorance of the masses. Its material basis was the appropriation of the soil” (ibid., 392).
And also: “Society [has been based on] the principle of appropriation, by a few, of the work
of other individuals; this is to say on a principle of exploitation of the work of the majority,
by the privileged minority” (401).
6. In Olvera’s opinion, “it is enough to compare what the people have with what they had,
according to tradition, after the conquest, for concluding that we have had a scandalous
usurpation” (ibid., 693).
7. “Property and slavery recognize a common, primitive, origin: inhumanity” (ibid., 691).
8. Ramírez stated, “The most serious charge I have against [the Constitution] is that it pre-
served day laborers in a state of servitude . . . they are in fact slaves” (Ramírez 1994, 39).
Notes 221
9. However, one should never forget how much the liberal anti-State, anti-interventionist
position depended on State interventionism. In the name of nonintervention, liber-
als demanded a fabulous activism, which included the State enacting long legal Codes in
the areas of property and contract; a State that was tough in disciplining society; a State
that contributed in the formation of a working class and took side with the private sector
(Halperín Donghi 1975, 359; Aguirre 1944, 55). This is to say, with independence of our
evaluation of the substance of their view, what is clear is that liberalism came together with
a titanic effort for the reconstruction of society. It completely changed the rules of the game
and leveled the field, and always did so in the name of noninterference and individual initia-
tives. Just to mention a few concrete examples, think about the way the State intervened
in order to reorganize the distribution of property in New Granada during the government
of liberal José Hilario López; or how it contributed to the concentration of property in
Argentina through the law of enfiteusis (during Bernardino Rivadavia’s administration); or
how it intervened by putting an end to collective properties in Mexico; or how it changed the
labor market when it forced into it indigenous people and former slaves (by denying them
any social protection or compensation for the former abuses they suffered); or how the State
reacted against the first workers’ organizations in Peru, Chile, or New Granada.
10. Shortly after, and as an advisor of the authoritarian general Paredes, Alamán made his proj-
ect to organize an elitist, corporatist institutional system visible. In a proposal written in
1834, Alamán suggested the creation of a Senate, which included, among its members, rep-
resentation of “rustic, urban, industrial, and agricultural property (38 deputies); mining
interests (14 deputies); liberal professions (14 deputies); the magistrature (10 deputies);
literary professions (14 deputies); manufacturing industries (14 deputies); the public ad-
ministration (10 deputies); the clergy (20 deputies); and the military (20 deputies).” (see A.
Lira’s prologue in Alamán 1997, 53). Mariano Paredes y Arrillaga adopted such a view of the
Constitution as his own, radicalizing in that way what General Anastasio Bustamante had
done in the 1830s. We find a similar approach to the Constitution in Sánchez de Tagle and
his defense of a right to suffrage that was fully dependent on the economic capacities of each
person. In his view, large sectors of society were not supposed to take part in politics, includ-
ing servants, the unemployed, the illiterate, and those who could not demonstrate having
an “honest” job. Politics was ultimately reserved for property owners and the professional
classes (Noriega 1972, 65; Fowler 1966).
11. Hence, the Constitution established a bicameral legislative system, which in part copied the
British system (that tried to ensure the representation of the nobility, the Anglican Church,
and the Universities of Oxford and Cambridge). In that sense, the Argentinean conservative
Senate tried to establish a wall of separation between the law and the majoritarian power.
According to article 10, the Senate would include members of the Army, representatives of
the Church, delegates from the different universities, and so on. In addition, the Constitu-
tion imposed strict economic conditions for becoming a member of Parliament (art. 11).
12. Even in spite of the resistances that it generated, such an idea remained present in the mind
of many conservatives. On many occasions they tried to secure that the “real power” coin-
cided with the institutional order. Delegate Pérez, for example, went back to such proposals
during the crucial constitutional debates of 1853 and suggested that representation of “the
rich, the industry, the Army, the Church, and all other [fundamental] elements of society”
be ensured (Ravignani 1886, 30:429).
13. For instance, our economists (including those of international institutions, such as the
World Bank or the IMF) do not pay may much attention to legal issues; our constitutional
scholars do not tend to accompany their legal writings with detailed economic reflections,
as Alberdi or Otero did; our legal thinkers do not propose economic reforms, together with
their proposals for legal reforms, as Thomas Jefferson or Thomas Paine did. Remarkably, in
the Latin American context, we find only one recent and significant case of a constitutional
reform that came accompanied by a project for economic reform (actually, a referendum
regarding the scope of the right to private property): that of Bolivia 2009.
14. Otero was, we know, a liberal politician, close in affection and in ideas to radical leaders such
as Melchor Ocampo.
222 Notes
15. Against those who accused him, by making reference to the bad results of the first open elec-
tions, Murillo Toro argued: “We have proclaimed every person’s exclusive right to regulate his
own affairs . . . we have assumed as our first dogma a principle according to which every person
is the best judge of his own affairs.” And also: “Those who attack universal suffrage maintain
that [such a right is only indisputable] when [individuals] have the capacity to exercise that
right in a convenient way.” Against that view, he maintained that “the idea of making the right
to vote dependent on the person’s capacity is the most arbitrary and vague claim one can
hear and would allow more frauds than the ones we have today. In effect, what is the measure
of an individual’s capacity to use the suffrage? Nobody can define it . . . there are too many
graduations and differences with respect to intellectual capacities that if we wanted to regulate
them we would only make things more difficult.” And he concluded claiming that there was no
better way to “ensure the political education of the people” than by allowing them to partici-
pate in politics through the suffrage: “No people educate themselves in abstract. It is only in
practice that the people learn. Suffrage educates people, and the abuses of the clergy and the
landowners only accelerate that independence and instruction” (Murillo Toro 1979, 95).
16. This also explains why, when he was Secretary of Finance for General López, he dedicated
particular attention to the problem of land and its unequal distribution. According to Ge-
rardo Molina, “Murillo proposed that nobody had more land than the amount necessary
for his own subsistence.” For that reason, Murillo did not authorize transfer of lands that
surpassed certain limits; or made domain dependent on the cultivation of land. “All this,”
Molina concluded, “was too much for the epoch” (Molina 1987, 124).
17. In a similar way, the Ecuadorian liberal José Peralta defended the importance of redistrib-
uting property with an argument that was clearly liberal, in its foundations: the right to
property was valuable, but valuable for all and not only for a few (El Problema Obrero, quoted
in Ortega 2011).
18. This idea is clearly similar to the one that is examined in contemporary republican political
philosophy. See, for example, Skinner (1983).
19. For him, the possession of land (the main capital of the time) came hand in hand with politi-
cal liberty: the “subsistence of the masses” was in that way directly linked to “the preserva-
tion of political liberty” (Murillo Toro 1979, 79). Meanwhile, the lack of economic liberty
tended to imply lack of personal independence. For that reason, he proposed to prevent the
accumulation of lands in a few hands: that decision was indispensable for the preservation
of liberty and the prevention of “aristocratic dominance.”
20. Ramírez’s views were exceptional in the way in which he connected that state of affairs,
characterized by profound economic injustice, and the situation of vulnerability that af-
fected most of the Mexican people. This is why he insisted on the importance of political
emancipation and conceived of constitutionalism as a tool necessary for achieving that goal.
In his words, “the real social problem” consisted of “the emancipation of day laborers from
capitalists. . . . This is an imperative of justice” (Ramírez 1994, 40).
21. If that did not occur workers would be “unable to exercise their rights as citizens, unable to
get educated, unable to educate his family, and thus die in a situation of misery” (ibid., 40–
41). And he concluded by defining the way in which the Constitution could help in achieving
this process. It was necessary to write a Constitution that was directed in defense of “the
privilege of those who live in misery, the ignorants, the feeble” (41).
22. Pedro De Ángelis, peculiar Italian republican, who worked for Juan Manuel de Rosas in Ar-
gentina, made reference to the “commercial spirit . . . which provoked the ruin of the Ancient
institutions” and “completely corrupted public morality, as a consequence of their numer-
ous injustices, its disastrous expeditions, its unacceptable wars, its immorality and perfidy”
(De Ángelis 1946, 284).
23. For reasons such as these, many of the most important leaders of the anti-federalist move-
ment, like George Mason, from Virginia, rejected the project of concentrating international
commerce in the coastal cities. By acting in that way, he claimed, one would end up undermin-
ing the civic virtues that were necessary for republican government. Virtue, he stated, required
“frugality, probity and a strict morality,” and the proposal of having super-populated commer-
cial cities in the coast contradicted the achievement of those objectives (ibid., 125–26).
Notes 223
24. Some claimed, for example, that social reformers had misunderstood the way to promote
social change: they wrongly believed that “it was possible to destroy the tree of evil by at-
tacking its fruits but leaving its roots untouched” (Noriega 1980, 196). In contrast with this
position, it was maintained that “[the only possible way] for restoring the lost social equi-
librium and securing the triumph of democracy” was that of redistributing all the national
goods” (198–99
25. For instance, in his studies of cooperative economies, in 1928, he claimed that “without co-
operators there is no cooperation” and he also highlighted the importance of “community”
and trade unionism, in order to make cooperation possible (Mariátegui 2006, 197–99). This
is why he concluded stating that “indigenous communities” had the best social and personal
conditions for integrating into a cooperative world, which was not the case with respect to
“urban and rural workers, who lacked a trade-unionist culture” (199).
26. Contemporary political philosophy has normally examined this issue through an analysis
of the discussion between liberals and republicans (Pettit 1997, 2001, 2002; Skinner 1983,
1984, 1990, 1998).
27. See, in this respect, García Villegas discussion of “militant constitutionalism” (García
Villegas 2012).
28. As Samuel Williams stated, “the security of the people is derived not from the nice ideal ap-
plication of checks and balances, and mechanical powers, among the different parts of the
government, but from the responsibility, and dependence of each part of the government,
over the people” (Vile 1967, 678).
29. To state this does not imply saying that federalists rejected all kinds of external controls,
confident as they were in the system of checks and balances. Rather, what they did was to
stress the particular importance of these kinds of internal controls.
30. Montalvo’s position connoted a clear egalitarianism, which took him to defend substantive
economic changes, which could transform society into a society of small proprietors. For
him, in a “proper democracy” the “portions of land” had to be not only equal but also small,
“like in Rome.” Those portions of land had to allow each person to “guarantee his own sub-
sistence” (Roig 1984, 138).
31. Montalvo’s view was also interesting in his reading or rights. For him, it was clear that
“among the rights that constitute the liberty of the people” none was “more sacred than
the right to association.” In his opinion, the liberties of “press, association and discussion”
represented the “foundations of the Republic” (Roig 1984, 236).
Chapter 4
1. The same point appeared in the polemic between Burke and Paine, which was originated
after the former published his invectives against the French Revolution, in his famous book
Reflections on the Revolution in France. Paine replied to that work in his also well-known pub-
lication Common Sense. Thomas Paine made the point in the following way: “The error of
those who reason by precedents drawn from antiquity, respecting the rights of man, is that
they do not go far enough into antiquity. They do not go the whole way. They stop in some
of the intermediate stages of an hundred or a thousand years, and produce what was then
done, as a rule for the present day. This is no authority at all. If we travel still farther into
antiquity, we shall find a direct contrary opinion and practice prevailing; and if antiquity is
to be authority, a thousand such authorities may be produced, successively contradicting
each other” (Paine 1987, 215).
2. He stated: “It can be properly said that the Argentinian Republic does not have even one lively
historical antecedent in the area of national public law. . . . None of the different attempted
essays, in constitutional law . . . exercised any significant influence in public opinion.” This is
why, he added, “the national or federal public law completely lacks . . . antecedents among us”
(Pérez Guilhou 1989, 41).
3. He made reference to a “strong government, such as the one of Chile, which is republican in
its forms, but almost monarchical in its substance” (Alberdi 1886, 157).
224 Notes
4. According to Pérez Guilhou, Sarmiento tried to show that Alberdi was wrong, as an “ideolo-
gist who copied Guizot’s doctrinarism,” which in France served to justify the French monar-
chy of 1830 to 1848 (Pérez Guilhou 1989, 49).
5. This lack of confidence in foreign influences appeared, first, in his strong criticisms of the
1811 Venezuelan Constitution that was, for him, unduly biased in favor of foreign law.
6. In his famous Cartagena Manifesto, Bolívar maintained that it was necessary that the gov-
ernment “identified the character of present circumstances, of our times, and of those men
that surround it” (ibid. 12). There is here a reasonable call for realism, which reappeared
every time that Bolívar had to say something about the validity of certain democratic prac-
tices and proposals. For example, in his Jamaica Letters, he claimed that “present circum-
stances . . . have forced us to recognize that representative institutions are not in accordance
with our present character, habits, intelligence” (ibid, 67).
7. In his Jamaica Letters, he also maintained that “as far as our compatriots do not acquire
the political talents and virtues capable of distinguishing us from our brothers from the
North, fully popular regimes will conduct us to the ruin, rather than help us. Unfortunately,
it seems clear that the required qualities are completely absent from our population.” (ibid.,
67).
8. Quoted in Heise (1978, 149).
9. In theory, this new institution was announced as one that would allow the people to have a
more central play in electoral matters. However, in fact, this openness was severely limited
by the economic and educational conditions of the participants.
10. At that time, French revolutionary thought symbolized, for many, a road to conflict, chaos,
and social dissolution. Those were, according to common criticisms, the obvious conse-
quences that followed from its emergence. The Argentinian caudillo Juan Manuel de Rosas,
for example, considered that French ideology had “excited the spirits of the people, pro-
voked the clash of particular interests, propagated immorality and intrigue, dissolving the
unity of society (and also threatening to dissolve) the most sacred of all the links that put us
together, namely religion” (Romero 1970, 74).
11. In the same way that Bolívar had his own favorite foreign influences in the teachings of
British and Napoleonic constitutionalism, other conservative thinkers found support for
their claims in the examples of figures such as Edmund Burke, Joseph De Maistre, or Juan
Donoso Cortés. In this respect, one should also mention the enormous ideological influence
exercised by Jesuits in the entire American continent.
12. For Lastarria, it was clear that the 1833 Constitution had failed in its main purposes, which
became apparent given the “amount of conspiracies, revolutions and disturbances that have
shocked the country since 1837.” This is why he began to look for an alternative, which he
found in the ideal of “ensuring respect to political institutions and protections to the indi-
viduals, through justice and the law” (Donoso 1946, 448).
13. For Alemparte, all the “tumults and commotion” that affected Chile “occurred under the
imperium of the 1833 Constitution” (Arteaga Alemparte 1870, 28–29). If the Constitution
undermined rather than favored the country’s peace and political tranquility, then it was
necessary to look for the causes of Chile’s exceptional political stability somewhere else. For
Arteaga Alemparte, those causes resided in extra-constitutional factors, such as the “char-
acter” and the peculiar “needs” of Chileans; or the “conditions of the soil” (20, 30). The Con-
stitution’s answer, instead, tended to be always the same: the state of siege. Like Lastarria,
Arteaga Alemparte maintained that all authoritarian responses had dramatically failed. In
his words, “we have had authoritarianism, strong constitutions, brutal governments in all
the South American countries.” That history illustrated the hopelessness of the authoritar-
ian solutions. “Repression,” he claimed, was not the solution (33). For that reason, it was
necessary to equilibrate powers, ensure a proper balance between liberty and authority, and
defend a proper representative system (37).
14. This is what he stated in his famous Te Deum celebrating a new anniversary of Peru’s inde-
pendence, in the College of San Carlos (1846), where he occupied the main directive posi-
tion. See Romero (1977, 146 and 138). Peru, Herrera added, “has been the prey of the seri-
ous and antisocial mistakes promoted by the French Revolution” (ibid.).
Notes 225
15. The text comes from Juan Ignacio Gorriti’s Reflexiones sobre las causas morales de las con-
vulsiones interiores de los nuevos estados americanos y examen de los medios eficaces para reme-
diarlas (Chiaramonte (1997, 529). In addition, Gorriti stated, “The philosopher from Ge-
nève . . . deduces a false conclusion from a false antecedent” but the “eternal law of nature
prohibits man from harming himself, even when he wanted to harm himself” (ibid.).
16. Alberdi, for example, dared to invite Rosas to write an authoritarian Constitution, such
as the Chilean one. He claimed: “The destiny of the Argentinian Republic depends on one
single person: General Rosas, who has the aptitude for rescuing it. . . . Call for an assembly or
a Constitutional Convention. . . . Do what . . . Rivadavia could not do and did not know how to
do. If the centralist project is inadmissible, then try with the federalist form. . . . It has been
said ‘Constitutions have failed, have been inefficient, have brought anarchy.’ It is added:
‘They are impossible to materialize.’ No. If one speaks in that way, it is because one fails to
distinguish between adequate and inadequate constitutions. One then refers to . . . constitu-
tions that have already been tried, while we speak about those that have not been tried,
those that are convenient for the country and its situation. Which Constitution is this? You
have to study it, if you look for it you will find it, as Chile found it. Imitate that Constitution,
which has been clever enough to . . . maintain order. . . . If you believe that strong powers are
the key for order and peace, you should know that those powers can be consecrated in the
constitution—a constitution that declared those faculties necessary and defined its limits”
(Barros 1997, 291–92).
17. Another example of Alberdi’s selective approach to the past appears in his dispute with Do-
mingo Sarmiento and other members of his generation. On the one hand, Alberdi accused
them of the improperly radical changes that they promoted; and also criticized their inability
to understand the importance of political stability. For him, his colleagues acted irresponsibly
when they advocated for changes that did not properly fit with national history. On the other
hand, however, Alberdi, the great advocate of a conservative compact with the past, fought for
the introduction of extremely radical changes—changes that were properly summarized in his
motto “to govern is to populate.” He stated: “This must be the great goal of present Constitu-
tions: they have to help us to . . . provide us with the great practical means that will allow us to
rescue independent America from the present situation of darkness and subordination. Those
means must figure in the top of our constitutions. In the same way that, before, we placed
independence, freedom, religion at the top of our constitutions, today we need to include
free immigration, freedom of commerce, roads, industries without regulation . . . as essential
means for making those words real” (Alberdi 1981, ch. 10). Alberdi’s call for immigrants was
a very peculiar one: he only wanted to promote the arrival of European immigrants, and also
European immigrants of a certain type, namely “the excellent laborious men offered by prot-
estant and dissident Europe” (ch. 5). He dedicated chapter 14 of his most influential book,
Bases, to highlight the civilizing character of Europe in South America. In sum, Alberdi wanted
to directly change the core of Argentina’s population, through the massive immigration of
the most cultivated, best prepared immigrants, coming from Europe. That is to say, the same
person who became the symbol of (the main advocate of) local law; moderate change (against
the radical tendencies advocated by people like Moreno or Sarmiento); respect for traditions
(even those that seemed more difficult to accept), was the one who directly proposed to change
the blood of the American body, by the importation of European blood. It is difficult to imag-
ine a more radical, extraordinary, and complete change than this. Historian Halperín Donghi
claims, in this respect: “Alberdi waited for the economic change that would bring about the
new society, and a new politics; which would emerge after the economic change was complet-
ed.” For him, Alberdi believed it was “possible to create a working force appropriate for a mod-
ern economy, keeping—at the same time—society in a happy ignorance about the modalities
of the modern world (and this is why he is so parsimonious regarding the diffusion of popular
education). Before asking to ourselves whether this is an admirable ideal, we should find out
whether it is feasible” (Halperín Donghi 1980, xxxv). This example does not simply illustrate
the common case of a prolific author, who occasionally writes contradictory texts. What is at
stake is a different phenomenon, which we have already reviewed, namely the use of the past
as a political tool in the daily political disputes.
226 Notes
18. In his work Derecho Público Constitucional (Lastarria 1906, 1:147–48), Lastarria tried to jus-
tify those limits. He stated: “If we want the representative system to produce all the positive
consequences that it is capable of producing, then we need to reserve the exercise of the
national sovereignty to the most intelligent and more capable citizens, who are able to rec-
ognize that importance. We could not, instead, reserve the right to suffrage to those who,
as a consequence of their social condition, can offer no guarantees about their good inten-
tions.”
19. The views of José María Samper were, in this point, almost identical to those of Lastarria.
In fact, both of them considered that their respective countries were going through a dif-
ficult political situation, characterized by the presence of political caudillos and dictatorial
regimes; they both assumed that a renewed institutional system could offer a crucial way
out from the crisis; and they both deemed that the required solution was a drastic one,
which implied an attack to the existing evils from their very roots—only a radical change,
they agreed, could make the incorporation and stability of the new institutions possible.
Samper made reference to his country’s “supreme necessity” to “annihilate the very causes
of its evils,” which required, he claimed, the creation of a “truly Colombian politics.” This
new politics implied putting an end to the period of “insurrections, military coups, and
dictatorship that had perturbed and deviated” Colombia’s development. It was necessary to
“eradicate this cancer of violence, the traditional and artificial antagonisms, from the roots”
(Samper 1861, 225). Samper took into consideration “three main (institutional) remedies”
in order to escape from the crisis (Lastarria would then insist on a similar approach). He
mentioned the establishment of limits to both the Executive and Legislative powers, the de-
mocratization of the Army forces, and a reform in the electoral system so as to leave politics
in the hands of literate people (230–36).
20. Against Lastarria’s critical approach he stated: “We need to be fair. They did not promote a
ferocious tyranny. . . . Their policy was not characterized by . . . surplices or blood . . . but rath-
er by the benign inefficacy of the supreme authority” (Lasterria 1906, 165).
21. In what follows, we shall stress the particular importance of two distinct and in many re-
spects opposite conceptions of democracy and constitutionalism. However, that distinction
should not be read as if we were saying that there existed two and only two alternative
ways of understanding those concepts. By contrast, we shall only be stressing the particu-
lar importance and influence of two relevant and different conceptions of democracy and
constitutionalism—the first would be the dominant view within the political elite, which
was basically maintained by the proponents of the liberal/conservative agreement, as
explored in the previous chapter and the second one would be the one that was mainly
subscribed to by its main critics.
22. According to Alberdi, Sarmiento had properly identified, in Facundo, that the phenomenon
of caudillism had basic structural components, which all those interested in social change
were to seriously consider. Given that many of those structural elements were still present,
Alberdi added, then it was not possible to solve the country’s difficulties by merely importing
certain legal novelties, as Sarmiento was now claiming.
23. For Alberdi (and for the “old” Sarmiento as well), it seemed apparent that the exercise of
authority required the people’s quiescence and subordination. That view, we shall maintain,
openly contrasted with the Rousseauistic notion of democracy, which was particularly influ-
ential at the time of the revolution, and which was by contrast based on the notion of the
people’s sovereignty.
24. For Alberdi, these liberties, which were reserved both to locals and foreigners, were the
ones that were “called to populate, enrich, and civilize these countries” different from the
“political liberties,” which were only “an instrument of ambition and restlessness” and were
neither ambitioned nor required by foreigners who “only come to look for welfare, fam-
ily, dignity, and peace.” Juan Bautista Alberdi, “Sistema Económico y Rentístico,” in Alberdi
(1920, 14:64–65).
25. This way of conceiving public life was basically identical to the Madisonian view that Jen-
nifer Nedelsky describes in her book about property and early constitutionalism in the
Notes 227
United States. For Nedelsky, in Madison’s view, once we recognize that property rights are
threatened by democracy, the solution is then either restraining democracy or limiting the
efficacy of government. This assumption would explain why, in Madison’s opinion, the ex-
isting inequality in the distribution of property had to find a reflection in the inequality of
political power: the protection of property required the transference of a disproportionate
amount of power to the “few,” so as to allow them to protect themselves against “the many”
(Nedelsky 1994, 209). More recently, Adam Przeworski (2010) examines the way in which
political equality threatens economic inequality, and also the limits of that threat in actual
practice.
26. These limitations were of different nature, ranging from the suppression of existing as-
semblies (such as the Cabildos), or the inclusion of literacy or economic requirements (as
a precondition to vote), to the direct use of force (practices that which were all too com-
mon during those years). Restrictions to the political participation of women, slaves, or
infants were also very common, like those that affected single people or domestic servants
(Ternavasio 2002). On occasions, the place of residence, nationality, and ethnic origin were
also taken as reasons for political exclusion. Restrictions were even stronger for active citi-
zens, those who wanted to run for elections. Here, we find limitations according to age,
income, property, and capacity, directed at guaranteeing the election of the “noted” people
(see, e.g., Sábato 2010; Sábato and Lettieri 2003). Moreover, the establishment of indirect
elections was also a way of limiting the political rights of the majority. According to Elías
Palti, indirect elections became a means for transforming suffrage into “a mechanism for the
selection of the best,” which in fact transformed representative government into an “elective
aristocracy” (Palti 2007, 206, emphasis in original). Finally, the non-mandatory character of
suffrage and, more significantly, its public or non-secret features also worked against large
popular participation in elections: most people were too afraid of exposing their political
preferences in public, which opened the space for sanctions coming from their employers
or political adversaries (particularly at a time when political violence was extended). In the
end, those limitations caused basic political rights to become concentrated, during long de-
cades, in a small minority of the population. According to Hilda Sábato, and for the case of
Argentina, only 25 percent of the people in conditions to vote actually voted, which in the
end represented less than 5 percent of the total population (Sábato 2010, 40).
27. In his words: “Among us, the imperfections of the electoral system has made our represen-
tative system illusory: thanks to that system, minorities have taken the name of majority,
and also because of that, congress could not represent the nation itself, with all its different
opinions and interests, but rather represented one fraction, leaving the others without legal
capacity and influence, and thus pushed them into the revolution” (Otero 1967, 372).
28. In his voto particular, he also included an article making reference to the impossibility of
reforming the basic principles of the country, including its independent character, the re-
publican, federal and popular form of government, and the division of power (Otero 1967,
841).
29. His concern with the promotion of the amparo seemed to have come from an unfortunate
personal situation that affected him in 1845. At that time, he was irregularly detained and
processed, under the accusation of participating in a revolutionary conspiracy with the
popular political leader Juan Álvarez. In article 19 of his voto particular, he then wrote that
the courts of the federation would give protection to all those inhabitants of the Republic
against all kinds of attacks coming from the Executive and Legislative branches, or from the
different state authorities (Otero 1967, 336–37).
30. In contradiction with many of the most acclaimed jurists of his time, he claimed: “There
are many capable and well-deserved men who could guarantee the stability of the laws and
respect to the interests of minorities . . . without being proprietors” (ibid. 350). The change
in material relations of society, he assumed, was a necessary component in the dispute in
favor of an extended citizenry, which Otero in so many diverse ways supported.
31. It was remarkable, in this respect, the harsh polemic that Murillo maintained with the econ-
omist Miguel Samper. In opposition to Samper’s views, the radical leader proposed to limit
228 Notes
the accumulation of land in the same hands. Murillo, who claimed to “read politics from the
economic side,” was convinced that “unless we complete the economic revolution that began
with the decentralization law and the establishment of direct taxes,” the Republic would
have no possibility of becoming consolidated (Murillo Toro 1979, 69; Bateman 1978).
32. An important example, in some ways parallel to the one that Murillo Toro presented, was
the one offered by Mexican radicals in the mid-nineteenth century. One of the most noted
cases, in this respect, is that of the Mexican leader Melchor Ocampo, who always defended
a strong notion of democracy, which was not so common in his country at his time. Oca-
mpo also defended a peculiar idea about property, which had as a starting point the idea
that all the inhabitants of the country were on an equal footing: they were all proprietors
of the country that they commonly inhabited (owners of the shared “house”). And to this
reason he added another, which was common in his argumentation, namely an argument
about trust. It was important, for him to trust that every person would give their best ef-
forts to keep the shared “house” in the best conditions. In his own terms, “they all know
something, they are all morally good.” And then he added, “If the people make a mistake,
good, this is not a sufficient reason to deprive them from their rights, because they are the
owners of the house and they will call for the administration of the house those they found
more apt for that purpose” (Ocampo, 1901, 388). Finally, Ocampo also made reference to
the dubious moral and political qualities of most of the members of the dominant political
elite, which were in his opinion those who took unfair advantage of the unequal distribu-
tion of land and who abused the most disadvantaged. The largest properties, for him, were
thus deposited “in the worst hands” (Arreola Cortés 1975, 12–13).
33. In a similar vein, Thomas Jefferson claimed: “There are two subjects, indeed, which I shall
claim a right to further as long as I breathe; public education, and the sub-division of coun-
ties into wards.” Letter to Joseph Cabell, January 31, 1814. See Jefferson (1999, 197).
34. At the same time, in 1853, Marx, in his work on The Jewish Question, had presented the
Jacobin Constitution as “the most radical Constitution” http://www.marxists.org/archive/
marx/works/1844/jewish-question/.
35. Bilbao’s proposals, which in all cases derived from a profound egalitarianism, were ad-
dressed in many other Latin American countries, even though it is not easy to find authors
that delved so far and so deeply as the Chilean intellectual. In Bolivia, the Deputy Lucas
Mendoza defended a proposal for mandatory instructions in the following terms: “If a dep-
uty wants to represent the people, then I do not understand why he would want to become
independent from the opinion of the people” (Jordán de Albarracín 1978, 125). In Mexico,
the Deputy Gamboa considered that indirect elections had to be abolished, because the only
ground for them was the fear of the people. Similarly, Peruvian and Mexican liberals de-
fended unicameralism, as a way of avoiding the creation of institutions (such as the Senate)
that were capable of suffocating the voice of the majorities.
Chapter 5
1. In studying those intellectual novelties, we shall be able to recognize a remarkable evolu-
tion in the development of political ideas, in the region, which included significant continu-
ities with the past. Among those continuities, we should particularly mention the invisible
thread that links the “pre-positivist” thought of liberal-conservatives such as Sarmiento,
Alberdi, or Echeverría, in the mid-nineteenth century and the “positivist” thought of the
end of the century (Zea 1970, 31). The other significant continuity is the one that appears
in the area of political, democratic radicalism.
2. Those interested in learning about positivism in that period may find it useful to read the
works of Argentine writers such as Carlos Bunge, Florentino Ameghino, or José Ingenieros;
the Bolivian writer Alcides Arguedas; the Peruvian writer Francisco García Calderón; and
the Brazilian writer Euclides da Cunha, among others. Again, the work of experts such as
Zea and Hale represent good starting points in this research.
3. We find an interesting antecedent of this positivist movement in Mexico in the work of
Gabino Barreda, who was born in Puebla, and at a young age took part in the fight against
Notes 229
the US invasion of Mexico. Barreda studied medicine in France, where he met Auguste
Comte. His positivist views became well-known after a speech he pronounced in 1857—the
Oración Cívica—where he made an attempt to reconstruct Mexican history from the view-
point of positivism. In addition to that, and since 1867, Barreda became in charge of orga-
nizing Mexico’s educative system. His motto was of clear Comtean inspiration (“Liberty,
Order, Progress”) and expressed his desire to transform the liberal revolutionary movement
of 1850 into a new political paradigm.
4. There are clear links between Justo Sierra’s way of thinking and the thinking of Alberdi
and the 1837 Generation in South America. They all believed that progress and freedom
required order. Social scientist Vicente Palermo aptly described the connections that exist
between the way in which Justo Sierra advocated for Porfirio Díaz’s dictatorship and the
liberal-conservative formula of “restricted political freedoms, ample economic liberties.” In
his view, “Sierra is clearly aware that the key institutional factor of the Porfiriato resides in
the doctrinarian distinction between civil and political rights. The analogy with Argentina’s
‘restrictive republic’, which ensured civil rights for all and political rights for only a few, is
remarkable” (Palermo 1993, 21).
5. In Cossío Villegas’s words, “Justo Sierra objects to the (1857) Constitution, at the begin-
ning of the Porfiriato; while Emilio Rabasa does the same at the end of the Porfiriato; the
former creates the ideology that would provide life to Porfirio Dìaz’ regime, while the
latter justifies a posteriori that ideology and, by doing so, he justifies that very regime.
Sierra and Rabasa can be deemed, then, the two main pillars which provide historical
justification to the Porfiriato. Thanks to the presence of these two talents and these two
extraordinary writers, the Porfiriato was kept alive, in spite of all the time that passed,
and all the vicissitudes and adversities that worked against it” (Cossío Villegas 1957,
61–62).
6. For Herzog: “Emilio Rabasa thinks historically. His interest in history does not come from
an interest in the past, but from his concern for the present. For a jurist, to make history
implies recognizing the laws of social change. This is why Rabasa’s historical discourse is not
interrupted by the description of mere facts: they go directly to the interpretation of those
facts” (Silva Herzog 1990, 292).
7. Páez is presented as “the great Egoist, the Dictator, the Cesar or Cesarión who dominates
the egoism of all his rivals, who organizes, disciplines, and founds a despotic State, like Juan
Manuel de Rosas, which has become the basis of nationality” (quoted in Pereira Larraín
1980, 285–6).
8. As a follower of Comte and as an active member of the Brazilian Positivist Church, Teixeira
Mendes proposed the adoption of a flag that still today represents Brazil. In the center of
the flag we still find the positivist words “order and progress.”
9. Barbosa, who was born in Bahia, was a member of the Liberal Party and a Member of
Parliament during the time of the Empire. From his position in Parliament, he advocated
for the adoption of an electoral reform, the introduction of changes in legal education, the
abolition of slavery, and the gradual democratization of the prevailing Monarchy (Barbosa
1921, 359–69). From the direction of the Diario de Noticias, he also worked for the transi-
tion toward a more federalist system. With the end of the Empire and the arrival of the
Republic—a regime that did not particularly attract his attention—Barbosa occupied differ-
ent public positions, including that of the Vice-Chief of Government.
10. As the main intellectual responsible of the new system, Barbosa was deemed the proponent
of a formalistic, idealistic, and liberal-individualist approach, which was considered totally
foreign to the national political and social thought (V. da Silva 2011).
11. In some cases, these movements of dissatisfaction generated reactive expressions that in-
cluded evolutionary and even racist features. As Funes and Ansaldi put it, many positivist
intellectuals (including, among many others, figures such as the Bolivian Alcides Arguedas,
the Chilean Francisco de Encina, the Argentinian Carlos Bunge and José Ingenieros, the
Venezuelan César Zumeta, or the Brazilian Manoel Bonfim) “showed a particular interest in
attributing the region’s difficulties for economic development, to the racial composition of
Latin American societies” (Funes and Ansaldi 2004, 454).
230 Notes
12. In any case, it seems clear that the most significant work of the period—given the influ-
ence that it achieved within both the realms of politics and literature—was Ariel, the book
written by the Uruguayan José Enrique Rodó. Inspired by Ernest Renan’s Caliban, Rodó’s
book vindicated humanism, idealism, spirituality, and non-materialist moods, which he re-
lated to Latin America, vis-à-vis the materialism and sensuality that he associated with the
Anglo-Saxon world. From his work on, people began to talk about an Arielista generation.
13. By contrast, and according to Alan Angell, there were at least two elements that worked
against the expansion of leftist (and particularly Marxist) ideals in Latin America (clearly,
together with political repression). The first one was the presence of the other “major belief
system in Latin America,” namely Catholicism, with its traditional hostility to Marxism; and
the second one being the presence of populist political parties, of nationalist roots (Angell
1994, 170).
14. However, many objected to the liberal tone of many of these initiatives, which included not
only (justified) measures in defense of an ample freedom of expression (at a time where it
became all too common to criminalize the diffusion of leftist ideas) but also (less justifiable)
measures in defense of private property, free trade, or foreign capital (Hale 1986, 429; Pala-
cios 1934).
15. In particular, this was due thanks to the impulse of Alicia Moreau de Justo, a doctor, social-
ist, feminist, an activist in the defense of human rights, and also spouse of Juan B. Justo.
Alicia Moreau promoted a law in favor of women’s suffrage (which was then rejected by a
Senate controlled by conservatives) and also other initiatives related to the rights of moth-
ers and pregnant women, and the equality of rights between men and women (Oddone
1934).
16. He stated: “Economic equality . . . this is what we want. Economic equality is not impossi-
ble . . . and must be imposed by the force of the revolution” (Recabarren 1979, 126).
17. In Recabarren words: “When the actions by workers and socialists appeared as a threat, the
upper classes invented something called democracy, with which they entertain those work-
ers who have problems of understanding. . . . Democracy is the system that tells the people:
‘Here you have your vote, now go and choose your representatives, so they can free you from
misery.’ But, at the same time that they concede the right to vote, they corrupt workers, by
offering money in exchange for their vote” (Recabarren 1987, 16–17).
18. “The prison system is the worst thing in this country. I do not think I exaggerate when I say
that prison is the best ‘practical and professional school’ for . . . crime and vice . . . All crimes
and all vices become more perfect thanks to the help of prison” (ibid., 29).
19. “(The people) have learnt that the justice system does not exist, or is an integral part of
the . . . oppressive bourgeois system” (ibid., 28).
20. “Society needs to work to correct delinquency, by creating an environment of morality . . . the
penal system must be considered already a failure. The penal system may frighten people,
but is incapable of correcting people. . . . Society must recognize that . . . the main explana-
tory factor of delinquency resides in both the moral and material misery that exist among
us” (ibid., 31).
21. In González Prada’s words: “When you see how judges are selected, you can understand
everything . . . in the end the real and only elector is the president of the Republic: We should
consider courts and Parliaments as mere dependencies of the Executive. . . . Almost always,
high judicial positions are distributed as rewards for previous services offered to the gov-
ernment. . . . No surprise, then, these men then appear not as instruments of justice, but as
tools for power” (González Prada 2009, 172–73). And also: “Nothing expresses better the
degradation of society than the relaxation of the judiciary, and the fact that the judiciary
became a tool in the service of the rich and the powerful. . . . It is at this point when mafias
and camorras become justified.” In angry terms, he claimed that, in those occasions it was
better to have individuals execute justice themselves, than a state of hypocrisy, where “some
oppress and engulf the other, masking the existing inequalities behind a veil of legality.”
Judges, for him, tended to “hide themselves behind the codes, attributing to deficiencies
in the law what were, in fact, their own excesses of personal malice.” Magistrates, he con-
cluded, “tend to gain everything without risking anything” (174–75).
Notes 231
22. “When individuals do not suffer the tyranny of government, they suffer the tyranny of law
[written] and sanctioned by the dominant classes. The excessive rigor of punishment in
crimes against property reveals who were behind those Codes.” And he quotes Duguit to
add that Napoleon’s Code was basically written in order to protect property. Property law,
he claimed, had to be to be replaced by a Labor Code (ibid., 316).
23. Mariátegui stated: “Latin America includes more than 100 million inhabitants, and the vast
majority of them are indigenous and black people. Moreover, what is their economic situa-
tion? The majority of them belong to the class of exploited workers and peasants, and they
represent almost the totality of them. This very circumstance would be enough to express
the importance of races in Latin America as a revolutionary factor” (Mariátegui 1929, 54).
24. In addition, he maintained that “(all) theses about the indigenous problem that ignore or
elude the economic and social character of this problem are sterile theoretical exercises—
sometimes only verbal exercises—which are condemned to an absolute discredit. . . . They
serve as nothing but for hiding . . . the reality of the problem. The socialist critique uncovers
and clarifies this problem and finds the roots of the existing problems in the economy of the
country. . . . The indigenous problem begins with our economy. It has its roots in the organi-
zation of the land. And every attempt to resolve this problem . . . will be superficial work, as
far as the feudalism of the ‘gamonales’ subsist” (Mariátegui 1988, 55).
25. For him, “‘gamonalism’ invalidates every law or ordinance in protection of indigenous
groups.” The authority of the Feudal Lord, or big landowner, made the “written law simply
impotent.” “Free work is prohibited by the law,” he added, “but free work, and even forced
work” were still there. The law could not “prevail against ‘gamonales’. The public officer that
wanted to impose it would be sacrificed by the central power” (ibid).
26. Mariátegui’s work has, in this respect, some coincidences and differences with another Pe-
ruvian intellectual and politician of the time, namely Haya de la Torre. Haya de la Torre had
begun his political activity at the University of San Marcos, as a Member of the Peruvian
Federation of Students (Federación de Estudiantes Peruanos, FEP). From that position, he
proposed the formation of alliances between workers and students, which would end with
the formation of the APRA (Hale 1986, 431–32). Meanwhile, Mariátegui had become a left-
ist in Italy, where he went to study at a time when Italy was still suffering from Mussolini’s
rule. Back in his country, Mariátegui met Haya de la Torre, with whom he maintained a
strong political link until 1928, when they broke their alliance, and Mariátegui decided to
create the Socialist Peruvian Party.
27. Martì developed a heterodox style that would later characterize activists like socialist Roa
García (2010).
28. Flores Magón was arrested in the United States, after writing a pamphlet that made a call to
“all the anarchists in the world,” which in the United States was considered subversive, at a
time when the country was involved in military activities outside its frontiers. A few years
later, Flores Magón died in prison—according to some, as a consequence of the violence he
suffered at the hands of the prison’s guards.
29. Within the same group, it is also worth mentioning the Democratic Party in Peru.
30. Both examples illustrate well a tendency that found other interesting examples in the
region—notably among them, the case of the great Ecuadorian liberal, Eloy Alfaro. Alfaro,
who on two occasions became the president of his country, was a symbol of republicanism.
He also became known for his disputes with the Church and the armed confrontation that
he promoted with the conservative political forces in Ecuador (Deas 1986, 663–68).
31. The unicato was then the dominant, corrupt, and authoritarian group in the country, com-
manded by Miguel Juárez Celman.
32. Yrigoyen’s first presidency was also marked by tragic events, derived from the government’s
confrontations with socialist, anarchist, and revolutionary groups, which promoted strikes
and massive demonstrations during that period. Some references about these events can be
found in Godio (1985); Bayer (1968); and Viñas (1958).
33. With respect to the first conflict, namely its confrontation with conservatism, we can say
that Yrigoyen made enormous efforts to decrease the influence of conservatism, which,
both through legal and illegal means, was still enormously powerful in different Argentine
232 Notes
provinces. For that purpose, Yrigoyen’s main strategy was the use of the constitutional
mechanism of federal intervention, which of course contributed to the strengthening of an
already centralized political organization. During his first presidency, Yrigoyen ordered an
unprecedented number of interventions (twenty—fifteen of them by decree) (Rock 1986,
431). With respect to the numerous social conflicts that troubled his Presidency, two of
them are worth mentioning because of the way in which they expose the worst features of
a government with democratic vocation. The first of these conflicts appeared during the
so-called Semana Trágica, or tragic week. The conflict had begun with a strike that had been
organized by metallurgical workers—a strike that was also a sign of the time of war, and
the difficulties faced by local industries trying to survive in that context (namely, without
basic imported goods). The second significant conflict began at the Patagonia, in 1920, after
a powerful strike promoted by rural workers. Yrigoyen ended both strikes (both very rep-
resentative of this period of transition) through the vigorous—brutal—use of the coercive
powers of the State.
34. Ellauri had studied law in Argentina and was closely in contact with the main political lead-
ers of the neighboring country.
35. Before “Mi conducta . . . ” Battle had published his “Apuntes sobre el Colegiado,” in the same
newspaper. There, he proposed the adoption of a nine-member Junta, which provoked a
profound division between those who defended and those who opposed the plural alterna-
tive. In the end, the two groups began to favor this mixed alternative (Valencia Carmona
1979, 87).
36. In fact, at the very beginning, it was the same Porfiriato that promoted the organization of
the opposition forces, in an attempt to expand the basis of its legitimacy.
37. Two of the main social movements that worked against the old political regime were radi-
cal peasant movements of indigenous blood: one was led by Pancho Villa, in the North of
the country, and the other was led by Emiliano Zapata, in the South. These movements
seemed to have clear roots in Mexico’s history, and particularly in the indigenous, rebellious
movements mobilized by the religious Hidalgo and Morelos at the time of the independence
revolution.
38. According to Rabasa, the project “included some elements of social doctrine,” concerning
labor and agrarian rights, but under the general assumption that both issues had to be ad-
dressed, in all their details, by the law, rather than the Constitution. The reason that was
then presented in order to justify this decision was that, until that time, no other Constitu-
tion had addressed these and other basic questions (Rabasa 1995, 156–57).
39. This outcome was, at least in part, unexpected, after so many decades of a long dictator-
ship. The excuses that were then presented were different and varied. Carranza quoted Toc-
queville for stating that Hispanic-American people “fall into anarchy when they get tired
of obeying, and into a dictatorship when they get tired of destroying” (ibid., 370). He also
made reference to the influences of the French Revolution, in order to repeat another com-
mon topic: Latin Americans took from it all the demands, when in fact they were not “actu-
ally prepared” for that. He also charged against the 1857 Constitution and its (rather timid)
inclination toward parliamentarianism. Such a government, he added, could be understood
in England or Spain, and even explained in France, but it was unacceptable in Mexico. Mexi-
co, he claimed, lacked any antecedent for adopting parliamentarianism. In addition, he con-
sidered that it was not reasonable to go for a weak type of government (373). In his view,
it was necessary, instead, to look for “strong form of governments, capable of maintaining
order” in a context that was characterized by “lack of discipline” (371).
40. R. Barragán raises a similar point for Bolivia, in her analysis of the 1938 and 1945 Consti-
tutional Conventions, which introduced social concerns in the text of the Constitution, and
that for the first time included many representatives of the working class among their mem-
bers (in 1938, particularly through the Popular Front, which channeled the participation of
many unionized workers (Barragán 2006, 70–71, 92–93). She quotes the 1945 appeal to
“the workers, the aborings, the middle class” (102–3). See also Antezana 2003.
41. Other representatives from the working classes included Deputies Andrade, Gracidas, and
Cravioto.
Notes 233
42. He complained about the “academics, the illustrious, the wise, in one word, the jurists.” He
claimed that workers were “tired of the perfidy” of the latter, which always came to under-
mine “public liberties” (Rouaix 1959, 79–80). In a similar vein, Deputy Manjarrez, com-
plaining about the formalities that “made the jurists blind,” emphasized the importance of
leaving formalities behind and just pushing to ensure “sufficient Constitutional guarantees
for workers” (Carpizo 1982, 96).
43. Phillips, for example, stressed the difficulty of understanding or representing others’
needs—of “jumping the barriers of experience”—“no matter how careful or honest” we are.
This should not be understood as an endorsement of the opposite idea, namely that we are
incapable of “putting ourselves in others’ shoes” (Phillips 1995).
Chapter 6
1. With this breakdown, the period of British predominance in the region also came to an end.
Great Britain’s influence in the region was then replaced by the dominant role of the United
States.
2. The first answers oscillated, according to Halperín Donghi (2007), between “constitutional
liberalism” and “dictatorship.” However, liberalism failed in its attempt to show “open-
ness . . . to those new sectors.” In fact, liberalism tended to step back, politically, profoundly
affected by the criticisms that it received: it seemed clear that liberals found enormous dif-
ficulties for providing appropriate answers to the new existing social demands and neces-
sities. In this scenario, and according to the Marxist historian Eric Hobsbawm, European
fascism exercised enormous influence in Latin America, particularly in public figures such
as Colombian Jorge Eliecer Gaitán (1898‒1948) or the Argentinean Juan Domingo Perón
(1895‒1947), and political regimes such as the Estado Novo of the Brazilian Getulio Vargas
(1937‒1945) (Hobsbawm 1994, 139).
3. Of course, there were many other debates and legal reforms taking place around the world,
more or less at the same time as the Mexican Revolution. One could list, for example,
the enactment of the Weimar Constitution of 1919, or the creation of the International
Labor Organization (ILO), or the gradual establishment of the welfare state and Keynesian
economics.
4. The idea of “social tie” is taken from the work of the Chilean sociologist Norbert Lechner,
who aptly described this process in the following way. He stated: “[Situations of ‘social tie’
are those in which] no group or social class has either the economic strength necessary for
imposing its own particular interest over the rest or the political strength required for creat-
ing a general interest. The oligarchy of landowners is not as powerful as before but still pre-
serves part of its power. So-called ‘middle classes,’ which emerged with the help of the State,
appear in the political sphere with unusual force but, lacking a strong economic basis, find it
difficult to develop their own social process. The incipient economic bourgeoisie does not find
in the import substitution . . . the engine capable of allowing them to re-articulate the social
process. This type of industrialization creates a working class, but the presence of foreign
control—direct foreign control in the mining sector, more indirect in manufacturing—pre-
vents the development of a national bourgeoisie. The only objective in which all these groups
are in agreement is in the exclusion of peasants” (Lechner 2006, 53). The situation, it must be
noted, is substantially different from the one that had been prevalent during the nineteenth
century. The number of people affected by the existing inequalities was higher than before;
the demands of these excluded groups were more intense; and they were also more aware of
the injustice of their situation. Society was more politicized and demanding than ever before.
However, no group seemed to be capable of imposing its own project on the others.
5. As Judge Boffi Boggero put it, there were “eminently political questions” that were, because
of that, excluded from judicial review (Boffi Boggero 1975.
6. http://elpais.com/diario/1990/09/01/cultura/652140001_850215.html.
7. I thank Pedro Salazar for his help with this section.
8. As Jaime Guzmán (the main legal intellectual leader behind Pinochetism) would explicitly
recognize, military coups in the twentieth century appeared as a direct reaction to the threat
234 Notes
perceived by the upper classes from democracy, concerning property rights (Guzmán 1992,
153, 176; Barros 2002).
9. President Arbenz tried to deepen the process of reforms initiated by President Juan José
Arévalo and the so-called “October Revolution” (Torres Rivas 1985, 152–53).
10. One could say something similar about the case of Peru and the military coup that was led
by Velasco Alvarado in 1968. However, Velasco Alvarado inaugurated a different type of
regime of a seemingly different sign. He, for example, promoted an important agrarian
reform and also launched a process favoring an expansion in popular political participation.
11. However, it must be noted (and according to what we shall examine below), that this period
of political stability came together with numerous cases of presidents who were unable to
conclude their mandate, either as a consequence of political impeachments (six cases be-
tween 1992 and 2004), or as a consequence of extreme social protests that forced their res-
ignation (as in the cases of Argentina and Bolivia). See, in this respect, Pérez Liñán (2009).
12. During Calderón Guardia’s government, the country promoted some important social
reforms, including the elaboration of the Labor Code and the creation of the since then
enormously influential Social Security Office.
13. Some decades later, other Constitutions would also reduce the powers of the Executive, in
reaction to long periods of political authoritarianism. A case that is worth mentioning, in
this respect, is that of Venezuela 1961. This Constitution was passed after the democratic
pact that followed the dictatorship of Marcos Pérez Giménez (1952‒58). The Constitution
not only established advanced social guarantees (which were adopted in the country during
the 1940s) but also defined significant limitations to the presidential powers—typically,
the restriction of presidential reelection until ten years after the end of the presidential
mandate. Another Constitution that is worth mentioning is that of Peru 1979. That Consti-
tution, which was adopted after two military governments, was the product of a compact
between the APRA and the Popular Christian Party. The document introduced some rel-
evant parliamentary features to the political system. For example, it allowed the Chamber of
Deputies to censor the Council of Ministers, and at the same time it allowed the Executive to
dissolve that Chamber in the case that the latter censored or denied its confidence to three
Councils of Ministers.
14. The 1933 Constitution of Peru expanded the social clauses already incorporated in the Con-
stitution of 1920 and established significant limitations to the Executive, who was limited
in its capacities, severely dependent on the Council of Ministers, and subject to censorship
by Congress, even though he was unable to dissolve Congress and call for new elections, as
in other parliamentary regimes. Many decades after, the Constitution of 1979 would limit
some of these strong parliamentarian features.
15. According to S. Farber, the Constitution was implemented only in parts, and at the same
time had at least two important consequences. On the one hand, it legitimized protest
movements against the most varied injustices; and, on the other hand, it generated a spirit
of cynicism and disillusion with regard to promises that appeared as merely empty ones
(Farber 1976, 97–98).
16. Thus, the Constitution came to symbolize a period when numerous labor and social security
laws were enacted (many of them appeared already in 1924); the labor code was created
(1931); and unions and strikes were legalized.
17. For instance, from 1941 to 1949, the total number of union members increased more than
40 percent (Drake 1991, 294). It must be noted, however, that in the end the remarkable
victory of the Popular Front, which implied the victory of an alliance of radical, socialist,
and communist groups of Marxist origin, was not particularly favorable to the advance-
ment of the radicals’ political agenda, and even less to the more leftist and activist groups
of the coalition, which ended up being repressed, persecuted, or directly banned from
politics (communists, for example, were outlawed and many of its adherents suffered re-
pression by the State’s coercive powers, particularly during the government of President
González Videla).
18. According to A. Angell (1991, 331–32), Frei’s government was characterized by the
Notes 235
nationalization of copper, an agrarian reform, the organization of the popular sectors, and
generally for its programs for addressing the problems of poverty.
19. We shall define in that way the polemic notion of “populism,” this is to say by employing
a definition based on the addition of certain particular characteristics, which we will as-
sume distinguished the organization of society in a specific time of history (for a similar
approach to the concept of populism, see Vilas 1998 and Vilas 2004). In this way, we shall
not be taking into account other possible definitions of the term, such as the one used by
Ernesto Laclau, who related the concept with a discursive phenomenon based on the appeal
to the “people,” in antagonism with the dominant ideology (see Laclau 1978 and 2001). The
dispute around the term is vast, rich, and also tiring. It is possible to find an interesting
analysis of the topic (for example, in Aboy Carlés 2002, 2005, 2010; Aboy Carlés et al. 2005;
or De Ipola and Portantiero 1989).
20. The Constitution’s lack of impact in the political life of the country must also be noted. This
result was clearly linked to the presence of a too strong Executive, who was prepared to rule
independently of what the Constitution said. In any case, the 1934 Constitution appeared
to be fundamentally directed to “constitutionalize the main measures that the Provisional
Government of Getulio Vargas had already adopted” (Bercovici 2008, 382; Bercovici 2009).
21. The Commission combined figures of a fascist origin, nationalists, militarists; with other
figures, more closely related to the Left, such as the jurist Joao Mangabeira; or defenders of
a strong social State, like Oswaldo Aranha or José Américo; and also young brilliant activ-
ists, such as Themístocles Cavalcanti (see, e.g., Marinho 1982).
22. Mangabeira was one of the members who inaugurated the Commission’s sessions. Manga-
beira’s work is of fundamental importance not only for explaining the main social aspects
of the document but also for understanding the place left for professional representation,
which Mangabeira promoted.
23. There were four fundamental topics that were then discussed: centralization, regionaliza-
tion, the need or not to federalize the country, the organization of the judiciary (Wolkmer
1989, 74–75). There was also a remarkable proposal, inspired by the 1931 Spanish legal or-
der, of including a unicameral legislature, which then implied the suppression of the Senate,
and its replacement by a “Superior Council of the Republic.”
24. During the debates, Gouveia denounced the “dictatorial Government,” “the contradiction
and Machiavellism” of government and also of the “dictatorship of money, the dictatorship
imposed by capitalists” (Wolkmer 1989, 112).
25. See also these forms of corporatist representation in the Constitutions of Ecuador 1929 and
1945, for example. The 1945 Constitution included representatives of workers, merchants,
peasants, industrial leaders, the army, journalism, academic and scientific societies, etc.
The 1945 Constitution not only maintains but enlarges these initial forms of corporatist
representation (Grijalva 2012, 150–53). This expansion of functional representatives in-
cludes even the novelty of indigenous leaders. The number of special representatives would
be reduced in the Constitutions of 1946 (promoted by the dictatorship of President Velasco
Ibarra) and 1967.
26. As a result of this new paradigm, different corporative initiatives appeared in Argentina,
including for instance the enactment of the 1951 Constitution, in the Province of Chaco
(then, Province Juan Perón), which in art. 33 created a Legislative composed in part by rep-
resentatives of professional associations. Thanks to Miguel Benedetti and Pablo Cattaneo
for raising this point.
27. Sampay locates the origins of the notion of “social justice” that he uses in the similar term
that appears in the Encyclical “Quadragesimo Anno,” presented by Pope Pío XI. According
to his interpretation of the document, “the notion of common good, or the good of the
collective, implies that the State has to facilitate and guarantee that individuals do what is
good.” However, he added, “in order to fulfill good actions in life, this is to say, in order to
live a virtuous life, one also needs material elements,” which obliged the State to secure that
“every member of the community fulfills his mission and lives according to his place, and
participates in the well-being, the prosperity, and culture, according to his contributions to
236 Notes
the common good” (Sampay 1975, 500).

28. In his work Las Constituciones de la Argentina, Sampay presented, as crucial antecedents of
the social view of the Constitution, which he himself contributed to promoting, some dissi-
dent opinions written by Judge Juan B. Terán, a former member of the Argentinean Court,
who demonstrated having an “anti-individualist” view, which Sampay linked to “Savigny’s
historical school” and “reformist socialism.” He quoted, in particular, the Judge’s opinion
in the case Saltamartini v. Cía. de Tranvías La Nacional, from September 1936, where Terán
made clear the central place that he reserved for religion in all his decisions. The judge
then exposed the three main principles that guided his work, which Sampay summarized
in the following way: “Given the Catholic spirit of the Argentine Constitution, which in
this aspect is clearly different from that of the United States, ‘Christianism is the law of
the country,’ so the inhabitants of Argentina are under the protection of this doctrine,
which gives priority to the divine and natural rights of human beings; (2) political power
can dictate retroactive norms, when it is necessary in order to advance distributive justice,
whose finality is to favor the general good; (3) one cannot apply commutative justice to the
work of human beings, given its content and moral transcendence. Commutative justice is
about the exchange of goods between individuals” (Sampay 1975, 70–71). Later on, Sam-
pay vindicated the work of “the wise jurist Tomás D. Casares,” who, at the time when the
1949 Constitution was in force and as a member of the Supreme Court, returned to the dis-
sident opinions of Terán, and in a fundamental case declared that “the state of emergency,
which is aimed at transitorily imposing the authority of the State upon economic and social
powers, is gradually being replaced by a new order about the social body, the distribution
of property and the general regime of the economy” (Martín y Cía. v. José Silvestre Erazzo,
September 1947).
29. In what regards the omission of the right to strike, it is worth reading the discussion that
was then held between Arturo Sampay and Pedro Ramella. The discussion can be read, for
example, in Vanossi (2005). Ramella, a jurist of Peronist origin challenged Sampay’s argu-
ment on the topic, according to which the right to strike was a “natural right” and “as a
result of that” could not become a “positive right.” According to Ramella, if it was a “natural
right” then “precisely for that reason” it had to figure in the Constitution as a positive right.
He also rejected the argument according to which strikes could be assimilated to “wars,” as
the Italian jurist Carnelutti had once maintained. For him, strikes could represent an “ex-
pression of force” but that was not in contradiction with its “legal character” (ibid., 13–14).
30. The article generated resistance from the President Perón himself, who also objected in this
aspect to the work of Sampay (see Sampay 1999).
31. Article 40 maintained that the exploitation of wealth had to be directed to the well-being of
the people, according to principles of social justice. It also fostered State intervention in the
economy, in defense of general interests, and established that the State itself was in charge
of public services that, under no circumstances, could be “sold or transferred for their ex-
ploitation.”
32. Summarizing the contents of the “dogmatic” part of the Constitution, Sampay mentioned,
in the first place, the need to “restore the natural order of society, by strengthening the
family, which we do not consider a secondary task of the State but rather as a policy that
makes the future possible, because the reconstruction of our civilization, which is in a state
of crisis, must be conceived in relation to the place of the family, which must be considered
its fundamental, basic unit” (Sampay 1975, 508).
33. For instance, and according to the “Majority Report” at the Constitutional Convention, the
“legal individualism” of the previous constitutional order was responsible for “the destruc-
tion of the working-class family” by establishing salaries that prevented the worker from
satisfying “the needs of his wife and children” and by forcing women “to go to the factory,
thus disregarding the moral education and health of the children” (Sampay 1975, 495–96).
34. In this respect, the new legal view recovered the principles that characterized conservative
caudillism of the nineteenth century; namely, concentration of political authority, geograph-
ical concentration of power, political verticalism, nationalism, and a constant appeal to the
masses.
Notes 237
35. Some analysts have presented Bolivia’s modern political situation also as the product of
exclusionary democratic compacts. See, e.g., Martínez Dalmau (2009).
36. It is also worth mentioning that the exclusionary compacts appeared, in both cases, during
the period of “Cold War” between the United States and the Soviet Union, which was then
reflected in the political exclusion of forces at the Left of the political spectrum.
37. In fact, during those years there were at least two serious attempts at a military coup. The
first one was led by the Minister of Defense Jesús María Castro León, and the second one by
José Ely Mendoza and Juan de Dios Moncada Vidal.
38. The “revolution” brought back into power the Movimiento Nacionalista Revolucionario
(MNR), which had won the elections of 1951 but had been forced out of it by the Army.
39. The Bolivian rebellion, it must be remembered, would also have an important legal expres-
sion, through the enactment of the 1961 Constitution, during the presidency of Víctor Paz
Estensoro. This Constitution not only recovered some of the crucial social developments
of the 1938 and 1945 Constitutions but also gave suffrage to the illiterate, defined a new
agrarian system, established free and mandatory education, and the nationalization of the
mines, according to the goals of the 1952 movement.
40. The Amendment was annexed to the Constitution after pressures coming from the United
States, and particularly through the demands of Senator Orville Platt. As a result of the
Amendment, the United States was authorized to intervene in internal Cuban affairs in
order to protect its independency. In this respect, it authorized the United States to acquire
bases on the Cuban coast (like the Guantanamo Base and the Isle of Pinos).
41. In a later paper, the author would advocate for the adoption of a less bureaucratized, more
decentralized and rational institutional order, capable of fostering political participation
and popular representation in politics (Valdés Paz 2009, 212).
42. According to the jurist Sampay, the Chilean reform was inspired by the Argentinean 1949
reform (and particularly by the reform of art. 40 of that Constitution). He also linked the re-
form in Chile with those of Argentina, and in particular with Colombia 1936, Mexico 1960,
and Uruguay 1967 (Sampay 1973b, 179–82).
43. An interesting manifestation of these tensions in Chile, during the 1970s, appears in the
work of the well-known jurist Eduardo Novoa Monreal. Some of his more interesting works
(which were published shortly before Allende’s coming to power), were directed to criticize
the organization of the Chilean Judiciary. Novoa Monreal denounced and condemned the
existence of a “classist justice” in the country (Novoa Monreal 1970a, 1970b). He explored
diverse factors provoking that unjust situation and, at the same time, he pointed to the fact
that the Judiciary had always managed to remain untouched by the reformist processes
that were taking place in the country (Novoa Monreal 1970a, 108). In addition, the jurist
highlighted the responsibility of the same judicial branch in the construction of the pre-
vailing situation of injustice. In particular, Novoa Monreal demonstrated that the Supreme
Court had become “an unconditional defender of the political, economic and social status
quo” and also that the members of the Supreme Court had “links and connections with the
most conservative sections of Chilean society, and normally belong to those sectors” (No-
voa Monreal 1970a, 117–18). See also Correa Sutil, stating that Novoa Monreal’s criticisms
to the judiciary amounted to “one of the most important attacks received by the Supreme
Court in its entire history” (Correa Sutil 1993, 95).
44. http://es.wikisource.org/wiki/Grave_Quebrantamiento_del_Orden_Constitucional_y_
Legal_De_La_Rep%C3%BAblica_del_Gobierno_Socialista_representado_por_Salvador_
Allende.”>
45. A group of jurists who defended the military coup, led by Jaime Guzmán, made an appeal to
the notion of original constituent power, to the theories of Carl Schmitt and Juan Donoso
Cortés, and the doctrine of Spanish jurists such as Luis Sánchez Agesta or Luis Legaz Lacam-
bra, in order to look for legitimacy and legal support for the military dictatorship (Cristi and
Ruiz Tagle 2006, 128).
46. During the 1970s, and particularly in Central America, there appeared many other expe-
riences that came close to socialism—being the examples of Nicaragua, El Salvador, and
Guatemala the most relevant among them. In the three cases, the leftist groups tried to
238 Notes
advance their project through guerrilla groups, constituted by multi-classist and multi-
ethnic groups, which incorporated militants coming from diverse ideologies (which mixed
nationalists, anti-Americans, leftist-Marxists, defenders of the Theology of Liberation).
Also, in the three cases we find a military leader that—like in Cuba—tried to mobilize
the population, defying an established power that behaved in an authoritarian and ex-
ploitative manner (Angell 1994, 212). Among these movements, only one became trium-
phant, which was the Frente Sandinista de Liberación Nacional, in Nicaragua. The Frente
managed to defeat the extremist authoritarian regime led by Dictator Anastasio Somoza.
The Nicaraguan experience was not like the Cuban Revolution, in the sense that it did not
appear as a phenomenon that could be exported beyond Central America (213). However,
what happened in Nicaragua did have some impact in El Salvador, where the revolution-
ary movement almost managed to seize power. Nevertheless, in the end the revolutionary
forces lead by the Frente Farabundo Martí para la Liberación Nacional (FMLN) could not
defeat a dominant elite, which appeared to be stronger than the one that was in control of
Nicaragua.
47. According to the Cuban professor Hugo Azcuy, after the Cuban Revolution, “the law did
not appear anymore as an interesting discipline—one that generated academic curiosity.”
By contrast, the law “was only studied in order to criticize its classist roots” (Azcuy 2010,
291). Not surprisingly, in 1962 only sixty-three people graduated from the Law School, and
simply none in 1965.
48. After the Revolution “the slow and complicated legal procedures” recalled “the institutions
and forms of the bourgeois society” rather than the procedures that were required for the
new period of rapid changes and urgent needs to fulfill (Azcuy 2010, 290). Moreover, it
was not only the case that the Cuban population began to develop an “antielectoral feeling”
against the previous regime but also that it found unprecedented opportunities for political
participation after the triumph of the Revolution (281).
49. However, some years after having made this claim, the Cuban professor Azcuy would de-
nounce a political system that he would find “paternalistic” and “vertical” (ibid., 308).
50. Marx’s critique of Bolívar generated intense polemics among theorists from the Left in Latin
America. For them, the critique was a product of Marx’s political prejudices, his resistance to
accept the “autonomy of politics,” and his lack of openness regarding new, local, or regional
ways of doing politics (see Aricó 2010). In the context of our previous analysis, however,
we subscribe Marx’s objections to Bonapartism, in general, and to Bolívar, in particular:
the left should repudiate rather than celebrate the concentration of powers as a means for
promoting social change. The goal of the democratization of powers should not (could not)
be achieved through the shortcut of the concentration of powers.
51. This was, for example, the view famously held by the Brazilian Celso Furtado, in his analy-
sis of Brazil’s 1946 Constitution. For him, the country was in the hands of local oligarchies,
which were also in control of Congress. The president, then, had to be allowed to gain suf-
ficient powers to overcome those oligarchies, thus ensuring the country’s main objective,
namely economic development, something that, he believed, the Constitution was not al-
lowing (Furtado 1965; Limongi 2008). Thanks to Cicero Araujo for raising this point.
Chapter 7
1. Another very difficult case of “constitutional grafting” relates to the indigenous question,
which we shall examine later.
2. See Lamprea (2010, 16) referring to conflict between the Supreme Court and the
Constitutional Court as a “train-wreck” or “Choque de trenes”.
3. Thanks to Mauricio García Villegas for raising this point. See also García Villegas (2012).
4. Personal conversations with Carlos Santiago Nino, Director, Center for International
Studies, Buenos Aires, Argentina, during years. The comments throughout this section are
based primarily on these dialogues. Also, thanks Gustavo Maurino for some conversations
on the topic.
Notes 239
5. According to Carlos Nino: “In studying both existing constitutions and the ideal constitu-
tion, it becomes apparent that there is a possibility that substantive claims which are a
priori valid may conflict with the results of legitimate procedures. In other words, rights
recognized as belonging to the liberal dimension of constitutionalism may conflict with the
results of democratic procedures that constitute the participatory dimension of constitu-
tionalism.” (Nino 1997, 12).
6. As Jeremy Waldron maintained in a recent work about social rights, the introduction of
these social commitments in the form of rights is a quite obvious way “to skew the question,
decisively, toward the judiciary rather than the legislative or executive branches” (Waldron
2010a, 28). Normally, the “administration or application” of rights is delegated to the judi-
cial branch.
7. Notably, Nino also suggested a drastic undermining of the presidential powers, in order to
make possible the introduction of other reforms, aimed at expanding popular participation
in politics (Nino 1993).
8. According to Nino, because “the democratic process cannot be the last resort for the pro-
tection of individual rights, since the main function of rights is to contain majoritarian
decisions,” mechanisms such as judicial review exist “outside the political process to protect
those rights” (Nino 1996, 196). Also, M. Ballard explains that Brazil’s 1988 Constitution
“grants novel individual and social rights and strengthens the judiciary’s capacity to protect
these rights,” but that this, combined with other factors, allows “socially oriented judges to
impair the government’s efforts to embed Brazil more firmly in the global economy” (Ballard
1999, 234).
9. For Etchichury, Argentinian “judges can . . . exercise their constitutional review powers to
enforce social right.” He provides, as an example, a 2000 decision upholding a lower court
order that the national government “grant timely and appropriate medical treatment”
Etchichury (2006, 110–11).
10. In any case, it must be said that the final profile of the Constitution was not only the result
of the government’s initiatives (say, its decision to keep the concentration of powers) but
also (to a good deal) the consequence of the negotiations that took place between the gov-
ernment and the (“Media Luna”) opposition (this is to say, the opposition groups coming
from the richest areas of the country, which threatened to force the country’s secession).
Thanks to Salvador Schavelzon for a conversation upon this point.
11. Levitsky and Murillo (2012) maintain that “the coexistence of socioeconomic inequality and
political equality often creates a disjuncture between formal rule-writers elected and politi-
cally equal citizens and powerful socioeconomic actors who are not necessarily represented
in the formal political system.” This disjuncture helps to explain, at least in part, why we
tend to find Constitutions with a progressive language that is not usually reflected in actual
constitutional practice. In addition, their view makes more explicit what we are here object-
ing to when we object to the idea of using the “liberal language of rights.”
12. See, for example, Tixeira (1991); Doria (1953).
13. The discussion in this respect has been very intense. See, for example, the valuable work
on social rights by Abramovich and Courtis (2002); Balkin (1997); Baxi (1980); Bhagwa-
ti (1985); Bork (1979); Courtis (2006); Craven (1995); Eide, Krause, and Rosas (1994);
Epp (1998); Forbath (2001); Gauri and Brinks (2009, 2012); Henkin (1990); Holmes and
Sunstein (1999); Hunt (1996); King (2012); Langa (1997); Michelman (1969, 1972, 1973);
Sager (1994); Sajo (1995); Scottt and Macklem (1992); Schwartz (1995); Tushnet (1974,
2002). For the Mexican case, referring to the gradual “activation” of the “latent” clauses of
the 1917 Mexican Constitution, see Awapara 2010, who also uses a terminology that is akin
to the one that we are here using.
14. See, for example, Deutsche Welle http://www.dw-world.de/dw/article/0,,4654145,00.html.
Discussing the same objection, Lawrence Whitehead quotes Jamer Bryce “lapidary phrase,”
where he maintained that “the constitutions did not suit the facts, and the facts had to
prevail against the constitutions, sometimes against their letter, usually against their spirit”
(Whitehead 2012, 124).
240 Notes
15. Here, we take this statement as a fact characterizing Latin America’s constitutional life. See,
for instance, Gargarella et al. (2006); and also Abramovich and Courtis (2002); or Courtis
(2006).
16. See, for example, Dulitzky (1988).
17. For Courtis, the “widespread ratification of international human rights treaties” is one of two
important developments in the field of human rights enforcement (Courtis 2006, 169).
18. For Javier Couso, “progressive Latin American jurists turned a critical eye, both on them-
selves as a disciplinary community, as well as on the other central actors in the legal drama”
(Couso 2006, 61).
19. José Reinaldo de Lima Lopes, for example, describes the use of the class action suit in Brazil
against mostly private providers of health and education services (Lima Lopes 2006, 185).
20. Judge Posner has called the US Constitution “a charter of negative rather than positive lib-
erties. . . . The men who wrote the Bill of Rights were not concerned that government might
do too little for the people but that it might do too much to them. The Fourteenth Amend-
ment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans
from oppression by state government, not to secure them basic governmental services.” Jackson
v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (emphasis added). See also Bork (1979);
Edelman (1987).
21. According to Kim Lane Sheppele, “Aspirational Constitutionalism refers to a process of consti-
tution building (a process that includes both drafting and interpretation by multiple actors)
in which constitutional decision makers understand what they are doing in terms of goals
that they want to achieve and aspirations that they want to live up to. It is a fundamentally
forward-looking viewpoint.” (Lane Sheppele 2003, 299).
Chapter 8
1. The new proposed Constitution was then subject to popular contestation through a plebi-
scite, which was celebrated in conditions of restricted-political participation and severely
undermined the legitimacy of the Constitution.
2. Large meetings were subject to previous governmental authorization; political parties
were restricted (only the official party, namely the National Renovating Alliance [Alianza
para la Renovación Nacional, ARENA], and an opposition party, the Brazilian Democratic
Movement, (Movimento Democratico Brasileiro, MDB), were allowed to function as such);
direct suffrage was directly suppressed in the main cities for security reasons. In 1969, a
provisional military junta introduced a profound amendment of the Constitution, which
strengthened the repressive character of the previous document. For example, it introduced
the institution of the death penalty, suppressed habeas corpus, created new military courts,
and opened the door to new repressive laws, such as the Law of National Security, or another
that came to regulate the press.
3. It must be remembered that a national plebiscite, in 1993, would reaffirm the presidential
character of the system (over the parliamentary or monarchical alternatives).
4. In any case, for many, the new 1988 Constitution appeared as the “ground zero” of a “new
legal history” (Barroso and Barcellos 2005, 273). The 1998 document was thus deemed
an “unprecedented catalogue of fundamental rights,” particularly taking into account the
recent legal history of the country, which was characterized by the “arbitrariness and vio-
lence exercised by the State” and a “long history” of inequalities (Vilhena Vieira 2006, 11;
Peixinho et al. 2006).
5. This phenomenon should be studied together with other related (if not directly derived) politi-
cal pathologies, such as the development of undemocratic regimes at the sub-national level.
See, for example, Gervasoni (2010); Giraudy (2010). See also Calvo and Abal Medina (2001).
6. The extended character of the violations of human rights was related to many different fac-
tors, but one particularly important among them was the existence of the so-called National
Security Doctrine. The doctrine had emerged during the time of the Cold War, by the initia-
tive of the United States (the United States actually trained the main military leaders of the
Notes 241
region in the School of the Americas—many of these officers would then occupy positions
of powers in the coming military governments). According to the doctrine, the Army forces
had to change the direction of their efforts: they had to begin focusing their work on issues
of national security, trying to prevent the growing and expansion of leftist ideologies. One
significant consequence of this influence was a new disposition, common in many different
new military governments, to use the coercive powers of the State against their own popula-
tion, in the name of a war against communism. This was the case, for example, of Videla’s
government in Argentina, Banzer in Bolivia, Pinochet in Chile, Turbay Ayala in Colombia,
Somoza in Nicaragua, Stroessner in Paraguay, or Bordaberry in Uruguay.
7. Now, if the objections to the hyper-presidentialist system began to lose force, this was also
due to other, theoretical reasons. In the first place, we could mention the diminished faith in
the theoretical agreements of the 1980s. In effect, numerous academics began to challenge
what had seemed to be “revealed truths” of the anti-presidentialist movement. In particular,
many of them challenged the alleged link between hyper-presidentialism and democratic
instability. It was not anymore obvious, as it seemed to be at one point, that both terms
were correlative (the discussion can be found, for example, in Cheibub and Limongi 2002;
Eaton 2000; Linz and Valenzuela 1994; Nino1987, 1992a; O’ Donnell 1994; Przeworski,
Alvarez, et al. 2000; Riggs 1987; Samuels and Eaton 2002; Shugart and Carey 1992; Shugart
and Mainwaring 1997; Unger 1987). Some of these new studies maintained that the then
common assertions that presidentialism tended to suffer cyclical crisis that provoked the
breakdown of democracy were not empirically sound (i.e., Shugart and Carey 1992); or that
the real causes of the instability of presidentialism resided in some other place (Shugart and
Mainwaring 1997; discussing some of this literature see, e.g., Alegre 2009).
8. A first look at the prevalent organization of these Constitutions’ bill of rights allows us to
recognize the dimension of this phenomenon. According to a recent study by Gargarella,
Filippini, and Cavana (2011), present Latin American Constitutions guarantee the protec-
tion of:
(1) The environment (Argentina art. 41; Bolivia art. 33; Brazil art. 22; Chile art. 19 inc. 8;
Colombia art. 79; Costa Rica art. 50; Ecuador art. 14; El Salvador art. 117; Guatemala
art. 97; Honduras art. 143; Mexico art. 4; Nicaragua art. 60; Panama art. 118; Paraguay
art. 7; Peru art. 2; Dominican Republic art. 66; Uruguay art. 47; Venezuela art. 117).
(2) Culture (Argentina art.75 inc. 22; Bolivia arts. 21, 30; Brazil art. 23; Chile art. 19 inc. 10;
Colombia art. 70; Costa Rica art. 77 and following; Ecuador art. 21; El Salvador art. 53;
Guatemala art. 57; Honduras art. 151; Mexico art. 4; Nicaragua art. 58; Panama art. 80;
Paraguay art. 73; Peru art. 2; Dominican Republic art. 64; Venezuela art. 101).
(3) Health (Argentina art. 75 inc. 22; Bolivia art. 18; Brazil art. 6; Chile art. 19 inc. 10; Co-
lombia art. 49; Costa Rica art. 46; Ecuador art. 32; El Salvador art. 1; Guatemala art. 93;
Honduras art. 145; Mexico art. 4; Nicaragua art. 59; Panama art. 109; Paraguay art. 68;
Peru art. 7; Dominican Republic art. 61; Venezuela art. 83).
(4) Education (Argentina art. 75 inc. 22; Bolivia art. 17; Brazil art. 6; Chile art. 19 inc. 9;
Colombia art. 67; Costa Rica art. 77 and following; Ecuador art. 27; El Salvador art. 53;
Guatemala art. 71; Honduras art. 153; Mexico art. 3; Nicaragua art. 58; Panama art. 91;
Paraguay art. 73; Peru art. 13; Dominican Republic art. 63; Uruguay arts.70, 71; Venezu-
ela art. 102).
(5) Food (Argentina art.75 inc. 22; Bolivia art. 16; Brazil art. 6; Colombia art. 44; Costa Rica
art. 82; Ecuador art. 13; Guatemala art. 99; Honduras art. 123; Mexico art. 4; Nicaragua
art. 63; Panama art. 56; Paraguay art. 57; Dominican Republic art. 54; Uruguay art. 56;
Venezuela art. 305).
(6) Housing (Argentina art. 75 inc. 22; Bolivia art. 19; Brazil art. 6; Colombia art. 51; Costa
Rica art. 65; Ecuador art. 30; El Salvador art. 119; Guatemala art. 118; Honduras art.
178; Mexico art. 4; Nicaragua art. 64; Panama art. 117; Paraguay art. 100; Dominican
Republic art. 59; Uruguay art. 45; Venezuela art. 82).
(7) Work (Argentina art. 14; Bolivia art. 46; Brazil art. 6; Chile art. 19 inc. 16; Colombia art.
25; Costa Rica art. 56; Ecuador art. 33; El Salvador art. 2; Guatemala art. 101; Honduras
242 Notes
art. 127; Mexico art. 123; Nicaragua art. 80; Panama art. 64; Paraguay art. 86; Peru art.
22; Dominican Republic art. 62; Uruguay art. 7; Venezuela art. 87).
(8) Clothing (Argentina 75 inc. 22; Brazil art. 7; Costa Rica art. 82; Ecuador art. 66).
In addition, these new Constitutions tend to
(9) Promote gender equality (Argentina art. 37; Bolivia arts. 11, 15, 26; Colombia art. 40;
Costa Rica art. 95; Ecuador art. 65; Nicaragua art. 48; Paraguay art. 48; Dominican Re-
public art. 39; Venezuela art. 88).
(10) Affirm the existence of a pluri- or multicultural state or national identity (Bolivia, Co-
lombia, Ecuador, Paraguay, art. 1 in all cases; Mexico art. 2; Nicaragua art. 5; Peru art. 2
inc. 19; Venezuela art. 6).
(11) Recognize the right to affirmative action (Argentina art. 75 inc. 23; Bolivia art. 71; Co-
lombia art. 13; Ecuador art. 65; Mexico art. 2 inc. b; Nicaragua arts. 48, 56, 62; Paraguay
art. 46; Dominican Republic art. 39, 58; Venezuela art. 21).
(12) Include mechanisms of participatory democracy (Argentina art. 39; Bolivia art. 162;
Brazil art. 14; Colombia art. 155; Costa Rica art. 123; Ecuador art. 103; Guatemala art.
277; Honduras art. 5; Nicaragua art. 140; Panama arts. 238, 314; Paraguay art. 123; Peru
art. 107; Dominican Republic art. 97; Uruguay art. 79 ; Venezuela art. 70).
(13) Create the institution of an open or popular Town Council (Bolivia art. 11; Colombia
art. 103; Ecuador art. 100; Panama art. 151; Dominican Republic art. 30; Venezuela art.
70).
(14) Accept forms of popular controls upon public policies (Bolivia art. 241; Brazil arts.10,
194, 198, 204; Colombia arts. 103, 270; Ecuador art. 100; Guatemala art. 98; Mexico art.
26; Nicaragua arts. 138, 196; Panama art. 233).
(15) Create the institution of referendum or popular consultation (Argentina art. 40; Bolivia
art. 11; Brazil art. 14; Colombia arts. 103, 374; Costa Rica art. 105; Ecuador art. 104;
Guatemala art. 173; Honduras art. 5; Mexico art. 26; Nicaragua art. 2 ; Panama arts. 238,
313, 325; Paraguay arts. 121,122; Peru arts. 32, 176; Dominican Republic arts. 203, 210,
272; Uruguay arts. 79, 331; Venezuela arts. 71, 73).
(16) Include the right to recall (Bolivia art. 240; Colombia art. 103; Ecuador art. 105; Panama
art. 151; Dominican Republic art. 30; Venezuela art. 72), and
(17) Give constitutional or supra legal status to international human rights treaties (Argen-
tina art. 75 inc. 22; Bolivia art. 256; Brazil art. 5; Colombia art. 93; Costa Rica art. 7;
Ecuador art. 417; El Salvador art. 144; Guatemala art. 46; Honduras art. 18; Paraguay
art. 141; Peru art. 56; Dominican Republic art. 74; Venezuela art. 23).
9. There would be 192 in the history of the region, and 102 in the twentieth century.
10. According to his analysis, restrictive cycles concerning presidential powers (like the one that
began in 1978) are followed by others of the opposite direction, where reelection is facili-
tated (like in the cycle that began in 1993).
11. According to Negretto, these rules that concern presidential reelection and the terms of its
mandate have been the most unstable in the history of the region (ibid.). In another recent
article, he also admits that there have been other reforms, which tend to be in tension with
the former ones.
12. Of course, we have to recognize that, on occasions, self-interested and short-run reforms
may include other, more interesting changes, in order to make them more generally accept-
able (Uprimny 2011).
13. In a more recent work, Cheibub et al. (2012) have emphasized that “the concentration of
law-making authority in the executive” appears as “a trend that has occurred over time in
many political systems, but one that . . . has been especially pronounced in Latin America”
(which implies, in their opinion, “a major departure from the Montesquiean conception of
separated powers”). See Cheibub & al (2012, 94).
14. And this image seems consistent with another, which refers not to the goals and commit-
ments but to the way in which the actual Constitutions were created. The image is that of
two groups specialized in and working at the same time in different sections of the docu-
ment. One group working in the area of rights, and the other in the organization of power,
Notes 243
but without entering in dialogue between them (which seems to be in line with an impres-
sionistic approach to the reforms, which suggests that progressive jurists worked in the first
mentioned area, and other jurists, more closely aligned with and obedient to those in power,
worked in the organization of the institutional machinery).
15. As the noted Peruvian radical once said, in his critique to liberalism: “It is a very poor ap-
proach to liberalism the one that wants to separate the social and religious question from
the political affairs . . . one cannot simply distinguish the social from the religious, political
and moral spheres” (Sobrevilla 2009, 161–62). Also, see Molina (1987, 124).
16. In the end, what appears here is the old topic of the existing tensions between democracy
and rights. Of course, we would like these tensions to disappear, but the fact is that they are
and will always be with us.
17. Negretto wants to explain the character of these reforms by making reference to the “double
nature” of the Constitutions. On the one hand, they work as “structures of government” and
on the other as “structures of power.” In other words, Constitutions would always combine
both concerns about the quality and efficiency of the democratic regime; and the concerns
of the “different political parties regarding the impact that different Constitutional choices
would have with respect to the individual and collective interests of those who design them”
(Negretto 2011b, 1804). The author presents this explanation as a “two-level” one, which
would be different from alternative and more traditional readings about actions and deci-
sions of the kind (i.e., economic explanations, based on the idea that constitutional design
pursues cooperative results; and also explanations based on distributive theories, favored
by political scientists, which study these changes in relation to their impact for winning
elections and influence (1792).
18. As another analyst put it, these new Constitutions would have arrived to break with the
“elitist and exclusionary regimes, coming from the past.” The evidence would be the emer-
gence of “inclusive constituent processes” and the incorporation of new mechanisms ca-
pable of correcting the worst evils of representative democracy, such as “the right to recall
or other forms of participatory and communitarian democracy” (Pisarello 2011, 193). In a
similar sense, see Criado 2011; de Cabo 2011; Palacios Romero 2011).
19. Of course, these claims require a more detailed empirical analysis.
20. In any case, we need to provide a more careful study concerning the type of rights that were
created in each opportunity (one could imagine, for example, that post-authoritarian re-
gimes will be mainly concerned with the consecration and protection of basic human rights
such as physical integrity).
21. Madison’s “iron law” seems to find clear support in common sense, in our knowledge about
history, and also in basic assumptions about political psychology—the materials that Madi-
son usually employed in defense of his views.
22. And here we do not mention other problems related, for example, to the ways in which to
aggregate those votes, or the way to read and interpret the meaning of those accumulated
votes.
23. What we here defend is, instead, a different alternative, which is finally based on the old
radical constitutional tradition and finally on a view of expanded democracy. We shall come
back to this point later.
24. Reflections on these internal contradictions have been benefited by a conversation with
Catalina Botero.
25. Someone could say that those tensions could and should be solved with the help of a better
interpretative theory. However, we need to acknowledge, first, that any Constitution is open
to substantially different, and at the same time reasonable, interpretations (Waldron 1999);
and second, that there are too many and contradictory interpretative theories (Sunstein and
Vermeule 2003). The conclusion is that these Constitutions in internal tension tend to both
nourish and promote reasonably and at the same time opposite readings of the Constitu-
tion.
26. In effect, while the democratic commitment pushes for solving all the relevant public
problems through majority rule, the commitment with rights insists on the idea that
244 Notes
many of those basic public problems (as far as they touch individual rights, as it tends
to be the case) should not be open to majority rule. More strongly, the idea is that rights
should be considered “trumps” against the demands of occasional majorities (Dworkin
1977).
27. We should recall, at this point, Carl Schmitt’s reflections about the Weimar Constitution,
the liberal and democratic principles that it contained, and how to interpret them (see, e.g.,
Schmitt 1884, 2008).
28. According to the analyst López Restrepo, for example, “the diverse interests that were rep-
resented in the Constitutional Assembly produced a document that was much more demo-
cratic than the previous Constitution. However, and concerning its economic aspects, the
Constitution was ambiguous . . . it came to emphasize the responsibilities and capacities of
the State, but at the same time to promote the participation of the private sector in areas
that were previously forbidden to it, like the provision of public services.” The Constitution
thus created a “social State,” promoted “economic interventionism,” gave constitutional sta-
tus to different “social and economic rights” that had never achieved that status before, but
at the same time it favored the participation of the private sector in new areas, promoted
the “independency of the Central Bank,” and rejected all kinds of “monopolies,” according to
the preferences of the “neo-liberal sectors” (López Restrepo 1994, 29).
29. According to Rossi and Filippini, who focused their attention about social rights and inter-
national law, the changes undergone by tribunals includes activities such as the following:
they have (1) applied specific norms contained in human rights treaties; (2) used interna-
tional norms as guidelines for interpreting internal law; (3) used international norms to
complement internal law; (4) considered the interpretations of international organisms for
the protection of human rights in order to define the extent of state obligations and the
content of rights recognized in treaties and declarations; (5) considered concepts and inter-
pretations made by international organs to molding the constitutional hermeneutic; and (6)
applied decisions by international judicial or quasi-judicial organisms in deciding individual
cases (Rossi and Filippini 2010, 195–96).
30. “Simón, Julio y otros,” June, 14, 2005.
31. Corte Interamericana de Derechos Humanos
http://www.corteidh.or.cr/docs/casos/articulos/seriec_221_Esp1.pdf.
32. One could, for example, support annulling the auto-amnesty law dictated by the Argentine
military before stepping down (using a critique similar to the one proposed by the philoso-
pher Carlos Nino at the time, and later adopted in the actions of the Argentine Congress,
when they declared the nullity of this law) or the invalidity of the auto-amnesty proposed
by the Peruvian president Alberto Fujimori, after illegitimately upholding his position of
power (an auto-amnesty objected to by the Inter-American Court in the aforementioned
case Barrios Altos).
33. Some authors have said that critiques like those presented in the preceding paragraphs are
irrelevant; the only thing that matters is that the process of decision or judgment be beyond
reproach (Luban 2004). Nevertheless, even when faced with impeccable, “champagne-quality,”
procedure, the more important question, the one about the authority of the law, is still very
much in play in these cases: “the procedure of the trial has been perfect . . . but who are you
to judge me?” Duff (2008). As I see it, the international community in general, and the Latin
American juridical elite in particular, should make efforts to refrain from falling into new
forms of unjustifiable extreme positivism or “ideological positivism” like those that existed
in the worst periods of the regional political life. Subscribing to a dogmatic reading of the
law (such as the former positivism or ideological neo-positivism) is always objectionable.
Chapter 9
1. The great “drama” that seemed to mark the story of the new Constitution, that of 2008, was
another, related instead to one of the most important “institutional tragedies” of the previ-
ous years, namely, instances of presidential impeachment that went “against the rules” by
implementing questionable impeachment trials, contested on the grounds of both form and
Notes 245
substance. Hence, it can be said that “in many ways, the 2007‒2008 convention focused on
the idea of avoiding irregular impeachment trials by means of the a declaration of cessation
of the president of the Republic, an event which took place on three occasions since 1997”
(this explains one the principal innovations contributed by the 2008 Constitution: the insti-
tution of “muerte cruzada” between the executive and legislative powers, “sudden death,” in
which the Executive has the power to dissolve the Legislature and vice-versa).
2. And also, that “the constitution greatly strengthens the functions of presidentialism . . . the
planning of development, a central part of defining public policy . . . appears to be . . . the
prerogative and exclusive responsibility of the Executive, without any participation of the
political representation, and having limited functions of societal participation in defining
priorities and policy orientations . . . society reduces its participation to the limited func-
tion of observation and control” (Echeverría 2009, 16; Ávila Santamaría 2009; Gargarella
2008).
3. Nevertheless, facing these possibilities, it bears saying in the first place, that the sudden
death escape clause can only be used once; it is a dramatic extreme, requiring an enormous
percentage of votes (two-thirds of the Assembly members), and it involves the “death” of
the posts of its own promoters.
4. A personal anecdote may serve to support these intuitions. While the constitutional debates
were underway in Montecristi, Ecuador, I was invited to lecture about the citizens’ rights
of participation in light of the many reforms that had been put forward during the conven-
tion. Examining the framework of the proposed reforms, I argued that the valuable concern
for expanding political and participatory rights for the citizens should lead the framers to
act in a way different from what they had done; that is, they should have first reformed the
organic part of the Constitution, in which the bases of powers were established and which
reaffirmed the traditional hyper-presidential character of the Ecuadorian political system.
The constituents with whom I spoke, nonetheless, seemed divided between two responses:
either that these reforms were not possible or that they would not be necessary for con-
cretizing the types of initiatives that had been proposed. Unfortunately, according to my
knowledge, time did not prove them right.
5. See, for example, in particular, the presidential veto of the Organic Law of Citizen
Participation. Asamblea Nacional del Gobierno de Ecuador (http://www.asambleanacio-
nal.gov.ec/201003252802/noticias/boletines/pleno-se-allano-al-veto-presidencial-a-
seis-articulos-y-la-disposicion-transitoria-de-la-ley-de-participacion-ciudadana.html).
6. For Acosta, the most worrisome conflict of the post-constitutional phase occurs, exactly,
as he warns between “what was written in the new Constitution of Montecristi, with great
popular participation, and what Correa’s government is doing, which was also supported
by the Constitution.” In this sense, no issue appears more serious to him than the fact that
“the conditions for a broad and active participation by the social movements” were not cre-
ated (http://crucesinbarreras.blogspot.com/2011/01/entrevista-ecuatoriano-alberto-acost
a.html; or also http://www.rebelion.org/noticia.php?id=91644). Acosta refers, especially, to
some of the principal law projects discussed since then that had scant popular participation;
these included “the mining law . . . the food sovereignty law” or “the law project on water.”
In particular, Acosta seems surprised that “those who drafted the new constitution don’t
take what they themselves ratified into account, let alone the government,” especially in
areas directly related to popular participation (such as, e.g., the election of members to the
Commission of Citizen Participation and Social Control, which, according to Acosta, was very
irregularly managed) (http://www.ciudadaniainformada.com/noticias-politica-ecuador0/
noticias-politica-ecuador/browse/66/ir_a/politica/article//alberto-acosta-convoca-a-
los-ciudadanos-a-hacer-que-se-respete-la-constitucion.html?tx_ttnews[calendarYear]=200
8&cHash=644813ba86).
7. The process intended to make popular participation possible is complex. It deals with an
intervention which is achieved based on the “function of transparency and social and elec-
toral control” set out by the new Constitution. This “function of transparency and con-
trol” designates, by means of oversight committees, the members of the organisms of
246 Notes
control and those of the judicial function, which in turn, arranges the designation of
judges.
8. Question No. 4: Do you agree with substituting the current Plenary Council of the Judiciary
with a Judiciary Council of Transition composed of three designated members, one by the
Executive branch, one by the Legislative branch, and one by the department of Transparency
and Social Control, so that during the unextendable term of 18 months, it will exercise
the powers of the Judiciary Council and restructure the Judicial branch, amending the
Constitution as established by annex 4? Annex 4 proposed by the Executive proposes a text
that would replace article 20 of the transitional regimen, and which introduces the follow-
ing into the Constitution. Art. 20—Dissolves the current Plenary Council of the Judiciary,
and in its place, creates a Council of the Transitional Judiciary, formed by three designated
delegates and their respective alternates: one for the president of the Republic, one for the
National Assembly, and one for the department of Transparency and Social Control. All
the delegates and their alternates will be subject to impeachment trial. The transitional
Judiciary Council will have all the powers established by the Constitution, as well as those
designated by the Organic Code of the Judicial branch and will exercise their functions over
an unextendable period of 18 months.
9. There were many occasions on which the implementation of participative measures stipu-
lated in the Constitution was blocked by the government (see, for instance, the example of
pre-legislative plebiscites required for laws that could impact the use of natural resources,
or what was stipulated for the composition of members of the Judiciary Council, in the con-
stitutional regimen of transition and later in practice) or the implementation was delayed,
so that relevant areas of the Constitution that sought to facilitate popular participation
remained untapped (see, for instance, the non-implementation at a local level of the “empty
chair” mechanisms).
10. Ávila also refers to two more general and important topics. On the one hand, he mentions
that “direct democracy should never be used in order to restrict rights” (Ávila Santamaría
2011, 305); and, on the other hand, he lucidly affirms that “garantismo (the strict respect
of basic and procedural rights) does not get along very well with presidentialism” (ibid.). In
reference to those claims, however, one could mention that rights should not be assumed
as self-defined or transparent with regard to their meaning and implications (in this sense,
rights are not and should not be taken as independent from democracy, see Waldron 1999).
Ávila also mentions that “presidentialism can be considered a legitimate system if and only
if it contributed to the promotion and protection of rights” (ibid., 300). This claim, however,
minimizes the problem at stake: the tension between rights and democracy is and will al-
ways be in place and tends to be always aggravated in systems of concentrated authority.
11. Personal interview with Pedro Salazar, November 2012. The same point can be found in
Salazar 2010.
12. Organization of American States (OAS) http://www.oas.org/en/iachr/expression/
showarticle.asp?artID=800&lID=1.
13. Knight Center, University of Texas http://knightcenter.utexas.edu/blog/ecuador-venezuela
-propose-limiting-abilities-rapporteur-freedom-expression.
14. Organization of American States (OAS) http://www.oas.org/en/iachr/media_center/
PReleases/2012/117.asp.
15. I owe this objection to Pedro Salazar.
16. According to an expert in indigenous law, Silvina Ramírez, the lack of respect toward the
Acuerdos de San Andrés has marked, since then, the relationship between the State and the
indigenous peoples, creating “more resistance and lack of confidence towards each measure
of government” (Ramírez 2012). See also Sámano, Durand Alcántara, and Gómez González
(2000).
17. Obviously, this observation does not aim to suggest that these rights should not be included
in the new Constitutions, but rather to highlight the superficial way in which many of these
rights were incorporated into the old Constitutions.
18. In the same way that the coming of the “social question” forced constitutional scholars to
think more carefully about the relationship between law and social change, the coming of
Notes 247
the “indigenous question” force constitutional scholars to confront serious questions, con-
cerning the basic foundations of the nation-state. It became necessary then to think about
the possibility of making different peoples live together, when they did not share a common
language, a common way of solving disputes, or a common culture.
19. According to researcher Raquel Yrigoyen Fajardo, constitutional law has historically offered
three main responses to the “indigenous question,” namely: (1) “assimilation or attempts
to convert Indians to citizens . . . so as to prevent their violent uprising”; (2) “civilization and
Christianization . . . of those deemed ‘savage,’ so as to favor the broadening of the agricul-
tural frontiers”; and (3) “offensive or defensive wars against the Indian nations . . . in order
to annex their territories to the State” (Yrigoyen Fajardo 2011, 126).
20. Carlos Vilas, for example, refers to the “general deficit of Marxist and revolutionary think-
ing in this terrain,” which he found “even more acute in Latin America, in spite of the fact
that is the continent with a larger indigenous community” (Vilas 1988, 51). In that way, he
attempts to explain the difficulties shown by the Sandinista triumphant revolution, in the
1980s, to deal with the rights of the indigenous groups situated in the Atlantic coast of the
country. For him, the revolution tended to dismiss the importance of those forms of social
organization. All the problems belonging to those communities appeared, for the leaders of
the revolution, as problems “subordinated to the general problem of economic backward-
ness” (Vilas 1988, 51; and also 1992).
21. However, there was a first movement in that direction in the Guatemalan Constitution of
1985, which made reference to the rights that peoples and communities had to their cul-
tural identity.
22. Among other relevant constitutional provisions—provisions that had their fundamental
predecessors in Convention 169 of the International Labour Organization 1989— some
of the following can be cited: (1) the Constitutions of Argentina (art. 75.17), Bolivia (arts.
30–6 and 394 III), Ecuador (art. 57.4), Nicaragua (art. 5°), Panama (art. 123), Paraguay (art.
64), Peru (arts. 88 and 89), and Venezuela (art. 119), recognized the right of indigenous
peoples to the property of the land that they had traditionally inhabited. Those of Bolivia
(arts. 30.17 and 171.1), Brazil (art. 231.2), Mexico (art 2. A. VI), and Nicaragua (arts. 89
and 180), consecrated the rights of use and enjoyment of natural resources to the indig-
enous peoples; (2) those of Argentina (art. 75.17), Bolivia (arts. 30.16 and 402), Colombia
(art. 330), and Ecuador (art. 57.6), affirmed their right to participate in the exploitation
of specific natural resources; (3) finally, and maybe most interestingly for the purposes of
our discussion, some Constitutions established the right of consultation regarding natural
resources for the indigenous peoples. In the case of Bolivia, for nonrenewable natural re-
sources (art. 30.15), in Brazil, for hydraulic and mining resources (art 231.3), in Ecuador,
for natural, nonrenewable resources (art 57.7), and in Venezuela, for all the existing natural
resources in native habitats (art. 120) (Aguilar et al. 2010).
23. The idea that “nature” has rights (which appears in the Constitution of Ecuador) and the
references to the right to buen vivir (both in the Constitutions of Ecuador and Bolivia) pro-
voked widespread debates and also numerous criticisms. There are obviously many problems
with the former idea, and some risks of perfectionism, associated with the latter. However,
these clauses should be read in their best light, as attempts to set limits to the “unrestrained
mercantilization of Nature” (Acosta 2009a, 22); affirm basic human values that go beyond
cost-benefit approaches to economic development; and vindicate ancient aboriginal tradi-
tions (Melo 2009, 56). For this debate, see, in general, Acosta (2008); Acosta (2009a); Acosta
and Martínez (2009); Andrade et al. (2009); Gudynas (2009); Melo (2009); Grijalva (2012).
24. A critical approach to the topic—one that is particularly interested in radicalizing the “mul-
ticultural” aspects of the Constitution—may be found in the work of Julio Trujillo (2010).
25. Bolivian law registered at least two important and relevant antecedents of constitutional
change. The first one had to do with the reform of August 1994, which took place under the
presidency of Gonzalo Sánchez de Lozada. Through that reform, Bolivia was recognized as a
“multiethnic and pluricultural” State and the rights of indigenous groups were expanded. At
the same time, the reform authorized one presidential reelection and included changes in
the electoral system. It created some new institutions such as the Constitutional Court and
248 Notes
the Ombudsman. The second antecedent comes from 2004, during the presidency of Carlos
Mesa. The reform followed the so-called “wars” of “gas” and “water,” which took place under
the government of Sánchez de Lozada. The reform incorporated the possibility of calling a
new Constitutional Assembly, according to the insistent demands of the indigenous move-
ment. Other reforms, which took place in the year 2005 were directed at defining the modal-
ity of presidential succession, after President Carlos Mesa resigned from his position.
26. This is not to deny the importance of interpreting the Constitution in another way, this is
by recognizing the mutual dependence between the different spheres of the Constitution, as
Judge Ciro Angarita once mentioned, in a decision of the Colombian Constitutional Court
(T-406, 1992).
27. Very possibly the same nonthreatening character of these changes is what explains the
achievement of these reforms, but there is no pressing need to dwell on this question or
resolve it. Aside from this, the initial low profile of the promoted reforms does not explain
the endurance that these changes have demonstrated over time.
28. Another significant case would be that of the electoral reform in Mexico, 2007‒8. See, for
example, Córdova and Salazar (2008); Woldenberg et al. (2011).
29. Wilson also points to the fact that most legislators passing the reform would not “suffer” the
consequences of its implementation: according to statistics, “the average number of fresh-
men deputies was approximately 80 percent from the 1950s through the 1990s, increasing
to 88 percent in the 2006‒2010 Congress” (Wilson, n. 8, p. 184).
30. Article 333, for example, states that “The state, by means of the law, will prevent impedi-
ments to or restrictions of economic freedom and will curb or control any abuses caused by
individuals or enterprises due to their dominant position in the national marketplace.”
31. Although tutelage represents the most well-known and influential of the new procedures
for grievance created by the reform, it is not the only one; it is accompanied by a popular
claim, collective claim, and a noncompliance claim.
32. These figures are taken from Cepeda (2004).
33. A recent study confirms the remarkable and surprising social support gained by most of
these popular expressions, which included the occupation of land and blockade of roads
(Lodola 2011).
34. At the same time, these facts help us reflect upon other legal topics and questions, of equal
relevance. Among them: How should we conceive of the right of freedom of expression,
given the fact that ample sectors of society seem to lack political “voice” for communicat-
ing their demands or for engaging in a dialogue with their representatives? Is it reasonable
to maintain, still, that the only way of violating expressive rights is through actions, such
as censorship? And how should we evaluate the expressive content of nonverbal discours-
es (i.e., throwing a stone to a political representative; blocking the roads)? Should those
acts deserve protection, as a consequence of their illocutionary aspects? And what forums
should be considered as “public forums,” which deserve special protection? Only streets and
parks, as the traditional doctrine maintains, or also other spaces, perhaps in private hands,
but that presently can replace the old, traditional public forums—such as a shopping center
or a train station?
Chapter 10
1. One can think, for example, about the brief experiences of Rivadavia’s government, in
Argentina, before the ascendance of General Rosas, who would stay in power during decades;
or about the fragility of Venezuelan liberalism, in contrast with the long-lasting government
of General Páez; or about the exceptional interregnum of liberalism, in Peru, in the midst of
militarism and authoritarianism; or about the long Santanista regime, in Mexico, in com-
parison with the weaknesses of liberalism.
2. The majoritarian option seemed to imply irreparable costs—particularly with regard to pri-
vate property. In addition, the advantages promised by an alliance with majoritarian groups
seemed too volatile. In the end, liberals assumed, the support of the masses could endure
Notes 249
some months, even a few years, but that support could also disappear immediately with the
arrival of the first winds of political change.
3. The problems affecting the original institutional design were numerous, also including some
awkward assumptions concerning human motivations (which were basically linked with
passions and self-interest); or a problematic understanding about the system’s dynamic
(James Madison summarized this view in the idea of counteracting “ambition with ambi-
tion,” which would end up promoting political confrontation, stalemate, or agreements
within the dominant elite).
4. Ultimately, the moral project of the Constitution does not only become reflected in what
it says (directly or indirectly) in its clauses about “religion,” or “good behavior” (which are
the typical and more obvious moral clauses of the Constitution). The Constitution’s moral
project also appears in the type of citizen that the Constitution fosters or not, through its
basic rules, the social relationships that it promotes, and the way in which it conceives of the
links between persons (Nedelsky 1994, 275).
5. This is also one of the conclusions reached by R. Barragán, reviewing more than a cen-
tury of constitutional reforms in Bolivia. For her, basically all the conventions that were
called between 1825 and 1971 (the period covered by her study) appeared “in critical
moments, in terms of political crisis and internal fragmentation” (Barragán 2006, 69). For
example, she added, “The Congress of 1839 appeared after the failure of the Peru-Bolivian
Confederation . . . that implied confrontations with Peru, Argentina and Chile”; or the one
that emerged “after the presidential period of Melgarejo and his measures against indig-
enous communities”; or the one that was celebrated in 1899, which came after the “federal
Revolution and a civil war” (69–70).
6. In the first case, some of those initiatives found translation in constitutional texts that
somehow limited the powers of the Executive power (i.e., Uruguay 1942, Guatemala 1945).
In the second case, however, the new Constitutions did not tend to reflect those initiatives,
particularly as a consequence of economic crises that moved different constitutional think-
ers to defend, once again, the creation of a strong Executive authority.
7. By stating this, we are not intending to object to the importation of foreign examples.
Rather, as we said, there are no “uncontaminated,” purely local institutional initiatives.
8. In carrying out this process of change, it is thus important that constitutional activists learn
to put aside much of what has been done by legal reformers in recent years. Just to recall a
crucial example, within the Latin American history of social rights, think about the passage
from the Ayala Convention, in Mexico, to the Querétaro Convention. In the first case, social
reformers advanced radical claims for expropriation, nationalization, and agrarian reform.
In Querétaro, those extreme claims were translated into the language of social rights. In
this way, radicals transformed a dispute that was primarily political and social, in a specific
language, the language of rights, which no longer made a call to political confrontations, but
rather to judicial intervention.
9. That resistance is what we find, for instance, in a Zapatista Manifesto “To the Mexican
People” (which was published in 1914, shortly before the enactment of the Mexican Social
Constitution), when the leaders of the peasants’ movement stated that the peasantry had
not engaged in a revolt “simply in order to conquest the illusory political rights that are
incapable of feeding the people, but rather to obtain a piece of land, which will ensure it
food and freedom” (Gilly 1994, 156). Instead of pushing for the political revitalization of
society, radicals concentrated their energies into legal-types of disputes, which in the end
were channeled into the tribunals.
10. Through the first change—the one that took them to defend the constitutionalization of
social rights—these critics modified their original views in ways that approached the liberal
constitutional project. Meanwhile, through the second transformation—the one that took
them to abandon their claims for the atomization of power—they adopted a posture that
was typical of conservatism.
11. In addition, see Levitsky and Murillo (2012) arguing that reforms that are a result of more
consultation and debate tend to be more stable and politically sustainable.
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INDEX
Acosta, Alberto, 174, 245n 6 pre-positivist thought, 228n1

Acuerdos de San Andrés, 177–78, 246n16 on reforms, 201
AD. See Alianza Democrática (AD) Sistema Económico y Rentístíco de la Confederación
Agesta, Luis Sánchez, 237n45 Argentina, 30, 49
“Agirópolis” (Sarmiento), 218n23 on sovereignty, 217n14
Agrarian republic, 54 suffrage and, 21
Aguascalientes Convention, Mexico, 99, 101, 103 writings, influence of, 34–36
Aguilar Rivera, José Antonio, 72, 140, 176, 227 n. Alem, Leandro N., 96
39, 229 n. 44 Alessandri, Jorge, 114
Alamán, Lucas Alfaro, Eloy, 231n30
Executive power, 18 Alianza Democrática (AD), 121, 122
Historia de México, 72 Alianza Popular Revolucionaria Americana (APRA),
on independence, economic and political, 46–49 93, 231n26, 234n13
influence of, 214n43 Allende, Salvador, 111, 124, 127–29, 148
on Mexican Constitution of 1824, 69, 140 Alvarado, Enrique, 211n17
past, new institutions and, 72–73 Alvarado Velasco, Juan, 234n10
Ramírez, Ignacio and, 53 Alvarez, Juan, 42
Albano, Carrasco, 38 Amado, Gilberto, 116
Alberdi, Juan Bautista Ameghino, Florentino, 228n2
Bases y puntos de partida para la organización American Convention of Human Rights, 170
politica de la República Argentina, 3–4, 165, American Revolution, 210n11
218n23, 252 taxation without representation, 6
on caudillo, 78 Amézaga, Mariano, 211n17
checks and balances system, fusion Anarchy, liberal model as fighting against, 16
constitutionalism, 33 Angarita, Ciro, 248n26
Constitutional project, 3–4 Angell, Alan, 230n13, 235n18
1837 Generation and, 34 Angostura Discourse (Bolívar), 67, 68
Estudios sobre la Constitución Argentina de 1 Anti-Bolivarian politics, 25–26
853, 64 Anti-collectivist nature of liberal model, 15
immigrants, call for, 225n17 anti-individualist view of society, 212n31
Letters from Quillota, 78 Anti-Statist nature of liberal model, 15
on liberal model, 16 Apatzingán constitution. See Mexico
mixed constitutions and, 165–66 Apostolado Positivista, Brazil, 89–91, 218n29
non-egalitarian context, constitution in, APRA. See Alianza Popular Revolucianaria
45–46 Americana (APRA)
past, uses of in new constitutions, 63 “Apuntes sobre el Colegiado” (Battle), 232n35
on authority, exercise of, 225n23 Aranha, Oswaldo, 235n21
democracy, limited, 77–80 Arbenz, Jacobo, 110, 125, 234n9
local traditions versus foreign successful Arboleda, Sergio, 219n37
examples, 63–66 Arcos, Santiagio, 218n23
Rosas, Juan Manual de and, 73, 225n16 Areopago, 13
on political rights, 29–30 Arévalo, Juan José, 112
269
270 Index
Argentina Barrigán, R., 249n5

auto-amnesty law, 244n32 Barrios Altos v. Peru, 170
conservative-radical alliance, 25 Bases para la nueva Constitución, 165, 214n43, 218n23
Constitutional Convention of 1852, 34 Bases y puntos de partida para la organización politica
Constitutional reform of 1994, 135–36 de la República Argentina (Alberdi), 3–4l,
Constitution of 1819, 48–49 165, 218n23, 252
Constitution of 1853, 32, 64 “Basic structure” of society, 209n1
Constitution of 1949, 119–20 Batista, Fulgencio, 110
article 40, 236n31 Battle y Ordóñez, José, 96–97, 232n35
Majority Report, 121, 236n33 Battlism, 95–98
reforms and, 186–87 Bauer, Edgard, 211n18
1837 Generation, 27, 34, 138, 229n4 Becerra, Busch, 113
enfiteusis, 221n9 Belgrano, Manuel, 212n27
fusion constitutionalism, 32, 34–36 Bello, Andrés
“Literary Saloon,” 34 on democracy, limited, 77–80
National Administrative Power, 110 eradication of past, 73, 75, 226n20
1926 Assembly, 47 hostile constitutions, grafting social rights onto,
past, uses of in new constitutions, 223n2 132–33
Peronism, 115, 119–21 on political liberty and past, 79
piqueteros, 191 on political rights, 29–30
positivism, 86 Bergallo, P., 253
radicalism, 93 Betancourt, Rómulo, 122
San Nicolas Agreement, 218n20 Bilbao, Francisco
social rights, 119–21 El gobierno de la libertad, 53
Unión Civica Radical, 96 politically committed citizenry, economy and
voting, 227n26 creation of, 52–54
Argentinian Socialist Party, 93 radicalism and, 94, 211n17
“Argirópolis” (Sarmiento), 218n23 reforms, call for, 8–9
Arguedas, Alcides, 228n2, 229n11 Bill of rights, guarantees, 241–42n8
Ariel (Rodó), 230n12 Boggero, Boffi, 233n5
Arosamena, Justo, 219n36 Bolívar, Simón
Arriaga, Ponciano, 42–43, 142 Angostura Discourse, 67, 68
on accumulation of property, 45 anti-Bolivarian politics and, 25–26
on exploitation, 220n5 Bolivian Congress, 67
on material organization, 220n3 Cartagena Manifesto, 224n6
Arteaga Alemparte, Justo, 70, 224n13 Cesarism, 88–89
Artgeaga, Domingo, 38 Congress of Venezuela speech, 210n7
Artigas, José, 10–11, 24, 181 Constant, Benjamin, correspondence, 17
Associations, 59–61 independence, fight for, 3
Authoritarian alternative, 107–11 Jamaica Letters, 13, 66–68, 224n7
landowners, 233n4 local traditions versus foreign successful
middle classes, 233n4 examples, 63–66
military coup alternative, 109 Marx, Karl, criticisms by, 13, 131, 212n26,
state of siege and, 108 238n50
working class, 233n4 “Memorial to the Citizens of New Granada by a
Auto-amnesty law, Argentina, 244n32 Citizen of Caracas,” 3, 67
Autonomy, 157–58 militarism of, 8
individual, 5, 196–97 recovery of local traditions, 66–68
Ávila, Ramiro, 174, 246n10 on “rights of men,” 212n32
Ayala Convention, Mexico, 249n8 Venezuelan Constitution of 1811, analysis of,
Ayala document (Plan de Ayala), 99–100 68–69
Ayutla Revolution, Mexico, 41 Bolivia
Azcuy, Hugo, 238nn47 and 49 Constitutional Assembly, 154
Constitutional Conventions, 232n40
Balmaceda, Juan Manuel, 114 Constitution of 1938, 113
Barbosa, Rui, 89–91, 229n8 Constitution of 1994, 154
Barragán, R., 232n40 Constitution of 2009, 136, 182–83
Barreda, Gabino, 228–29n3 contradictions in Constitution, 141
Barreto, Luis Pereira, 89 indigenous question, 192–95, 247–48n25
Index 271
Peru-Bolivian Confederation, 249n5 Camargo, Alberto Lleras, 123

Pluri-National Constitutional Tribunal, 194 Campillo, Juan Del, 218n23
Bolivian Congress, 67 Campos, Francisco, 118
Bolivian National Assembly, 185 Cané, Miguel, 34
Bolivian Revolution of 1952, 125, 237n39 “Caracazo,” Venezuela, 123
Bolshevik Revolution (1917), 91, 92 Carbonell, M., 254
Bonfim, Manuel, 229n11 Cárdenas, Lázaro, 102
Bonilla, Daniel, 189 Cardoso, Fernando Henrique, 152
Borrero, Misael Pastrana, 123 Carnelutti, Francesco, 236n29
Botana, Natalio, 253 Caro, José Eusebio, 40, 71
Botero, Catalina, 243n24 Caro, Miguel Antonio, 40–41, 79, 217n32
Boves, Juan, 16 Carranza, Venustiano, 98–100, 104, 232n39
Branco, Humberto Castelo, 111, 149 Cartagena Manifesto (Bolívar), 224n6
Brazil Casares, Tomás D., 236n28
Américo Brasiliense project, 37 Caseros, battle of, 217n14
Apostolado Positivista, 89–91, 218n29 Castañeda, Francisco de Paula, 72
civil war, 219n32 Castro, Fidel, 93, 111, 124–26
coffee plantations, 218n27 Catholic Church. See also Catholicism
conservativism, 25, 215n4 anti-Bolivarian politics and, 25–26
Constitutional Convention, 116–17 fusion constitutionalism and, 35
Constitution of 1934, 116, 118 and moral perfectionism, 13
Constitution of 1937, 118 Populist alternative and, 120
Constitution of 1946, 112–13, 150, 238n51 Catholicism
Constitution of 1967, 149–50 Ecuador, 13
Constitution of 1988, 151–52, 181, 240n4 fusion constitutionalism and, 33
Executive power, 17–19 as moral ideal, 3
fusion constitutionalism, 36–38 Caudillo, 77–78, 88, 236n34
internal tension, constitutions in (1988), 148–51 Cavalcanti, Temistocles, 116, 235n116
Magalhaes Castro project, 37 Celman, Miguel Juárez, 96, 231n31
mixed constitutions, 165 Center-federalist model, fusion constitutionalism,
National Commission for the Repression of 33
Communism, 118 Cerda, Aguirre, 114
National Renovating Alliance, 240n2 Cesarism, 88–89, 229n7
National Security Council, 149 Cesarismo democrático (Vallenilla Lanz), 88
National Security Court, 118 Chacón, Jacinto, 75
order and progress regimes, 36, 89–91, 218n26 Chalbaud, Carlos, 110
positivism, 36, 89–91, 218n26 Chamber of Censor, 213–14n40
Provisional Government, 37 Character, formation of and state neutrality, 54–56
Republican Constitution of 1891, 37 Chávez, Hugo, 154
slavery, 37, 89 Checks and balances, system of, 16–17, 57–59, 163
Superior Tribunal, 38 fusion constitutionalism, 33
Brazilian Democratic Movement, 240n2 Cheibub, J. C., 254
Brazilian Positivist Church, 229n8 Chile
Bryce, James, 239n14 anti-Bolivarian politics and, 215n5
Bucaram, Abdalá, 153, 154 Armed Forces, 149
Bunge, Carlos, 228n2, 229n11 article 5 of Constitution, 39
Burke, Edmund, 223n1, 224n11 associations, 60–61
Bustamante, Anastasio, 221n10 Club de la Reforma, 38
Bustamante y Rivero, José Luis, 110 Constitutional project, 3
Constitution of 1823, 213–14n40, 213n36
Cabell, Joseph, 228n33 Constitution of 1833, 32, 33, 38, 69–70,
Cabrera, Luis, 103 224n12
Cadiz Constitution, 17, 67, 140, 213nn35 and 38, Constitution of 1857, 26
215n44 Constitution of 1925, 114–15, 235n20
Caldera, Rafael, 122 Executive power, 114
Calderón Guardia, Rafael, 112, 234n12 fusion constitutionalism, 38–39
Calderón, Francisco García, 228n2 internal tension, constitutions in (1980),
Calle, Plutarco Elias, 102 148–51
Camacho, Manual Ávila, 109 liberal-conservative fusion, 30–31
272 Index
Chile (Cont.) Comonfort, Ignacio, 41–43, 220n47

past, uses of in new constitutions, 63, 65, 223n3 Comparative Constitutional Project, 156
Popular Front, 114, 234n17 Compensation, 158–60
prison system, 230n18 Comte, August, 86, 89, 229n8
radicalism, 93–94, 210–11n14 Confederation of Mexican Workers (CTM), 108
Radical Party, 210–11n14, 211n17 Confederation of Peasants (CNC), 108
socialism after Allende’s victory, 127–29 Confiscation of property, liberal model and,
Sociedad de la Igualdad, 31, 54 212–13n34
Unidad Popular, 127 Conservative model, 1810–1850 Constitutions,
Workers Socialist Party, 93–94 11–14. See also Conservativism
Christian Democratic Party, 114 anti-individualist view of society, 212n31
Christianity, radicalism and, 24 conservative model, 6–7, 11–14, 210n12
Christian morality, Populist alternative and, 120 liberal model, 6–7, 14–17
Church, place of in societies, 5–6 morality and, 210n12
Citizenry, politically committed, 52–54 moral perfectionism, 11–13
“Citizens Power,” Venezuela, 175 organicist view of society, 212n31
Civil rights, fusion constitutionalism and, 28 overview, 6–7
Club de la Reforma, Chile, 38 political centralism, 12
CNC. See Confederation of Peasants (CNC) political elitism, 11–12
CNOP. See National Confederation of Popular republicanism and, 6–11, 211n17
Organizations (CNOP) strong presidentialism, 12
Coffee plantations, Brazil, 218n27 Conservativism
Cold War, 102, 127, 237n36, 240–41n6 egalitarian constitutionalism and, 197
Collective Executive, Uruguay, 95–98 fusion constitutionalism. See also Fusion
Collective self-government, 5–6, 196–97 constitutionalism
Collor de Melo, Fernando, 162 liberal-conservative fusion, 30–32
Colombia liberalism and, 22
Constitutional Court of 1991, 187–90 liberals and, scope of agreements, 27–30
Constitutional model, 5 liberals, differences, 21–22
Constitution of 1832, 41, 219n38 Mitre, Bartolomé on, 20
Constitution of 1843, 71 radicalism and, 22
Constitution of 1863, 220n41 radicals, differences, 22–25
Constitution of 1886, 29, 40, 217–18n19, independence, economic and political, 46–49
217n32, 220n41 organization of power, 27–28
Constitution of 1991, 135, 152, 167 rights, 28–29
Executive power, 40 Consistency, 168
freedom of expression, abolition of, 219n40 Constant, Benjamin, 17–18, 89–90, 213n39
fusion constitutionalism, 40–41 Las Constituciones de la Argentina (Sampay), 236n28
liberal-conservative fusion, 30, 31 La Constitución Politica de la República de Chile
mixed constitutions, 165 (Lastarria), 38
National Front, 123–24 Constitutional compact, expanded, 199–200
Pacto de Unión, 40 Constitutionalism
Rio Negro Constitutional Convention, 26, 40 social constitutionalism, 153–57
La Violencia period, 188 Constitutional rights, 241–42n8
Colombian Congress of 1842, 71 social protest and, 191
Color de Mello, President, 153 Constitutional translation, problems of, 134,
Colosio, Luis Donald, 154 141–43
Comentario sobre la Constitución Politica de 1833 Constitutions, hostile, 132–47
(Albano), 38 constitutional theory, questions for, 133–46
Commentaries on the Constitution of the United States constitutional theory, questions for dormant
(Story), 64 clause, 134, 144–46
Commission for the Pacification and Concord of constitutional translation, problems of, 134,
the Congress of the Union (COCOPA), 141–43
Mexico, 178 crossed impact, 134–39
Common Sense (Paine), 223n1 internal impact, 134–39
Communism, 110 internal influence of graft, 134
National Commission for the Repression of constitutional translation, problems of, 134,
Communism, Brazil, 118 141–43
Community, organization of, 44–45 crossed impact, 134–39
Index 273
different models, convergences and tensions Dodge, Nehemiah, 215n3

between, 139–41 Domingo, Pilar, 166, 174
dormant clause, 134, 144–46 Donghi, Tulio Halperín, 36, 84, 124, 218n25,
internal impact, 134–39 233n2
internal influence of graft, 134 Don Simplicio, 53
mixed constitutions, 140 Dormant clause
successful graft, possibility of, 134–39 egalitarian constitutionalism, 202
Contemporary constitutionalism hostile constitutions, grafting social rights onto,
“engine room” of constitution, 172–95 134, 144–46
internal tension, constitutions in, 148–71 Dorrego, Manuel, 50–51
Continuities Dworkin, Ronald, 168
past, uses of in new constitutions, 76–77
postcolonial constitutional model, 84–85 Echeverría, Esteban, 27–28, 34, 174–75, 216n10,
Convenio 169, 181–82, 247n22 228n1
Cooperative economies, 223n25 Economic independence
COPEI. See Politica Electoral Independiente interrelation with political independence, 51–52
(COPEI) liberal-conservative tradition, 46–49
Correa, Rafael, 154, 174 Economic reforms, 49–50, 152
Correa, Ramón, 40 Economy, creation of politically committed
Cortés, Juan Donoso, 224n11, 237n45 citizenry and, 52–54
Costa Rica Ecuador
Chamber IV (1989), 187–90 Catholicism, 13
Constitution of 1949, 112 Constitutional Convention, 211n21
Courtis, C., 240n17 Constitutional reform, 154
Couso, Javier, 240n18 Constitution of 2008, 173, 244–45n1
Criminal law, inequality and, 192 popular participation, 174, 245–46n7, 246n9
“Cross and the sword” image, 11–14 sudden death escape clause, 245n3
Crossed impact, 134–39 Constitutions of 1929 and 1945, 235n25
Crossed reforms, 186, 205 Constitutions of 1996 and 1998, 182–83,
CTM. See Confederation of Mexican Workers (CTM) 247n23
Cuba. See also Cuban Revolution Executive power, 173–74, 245n2
Constitution of 1934, 125 “fourth state function,” 174
Constitution of 1940, 112–13, 126 Montecristi constitutional debates, 245nn4
Constitution of 1959, 125 and 6
Constitution of 1961, 237n39 Organic Law of Citizen Participation, 245n5
Constitution of 1976, 126–27 Plenary Council of the Judiciary, 246n8
Court of Constitutional and Social Guarantees, presidentialism vs. rights, 173–75
113 Egalitarian constitutionalism, 196–208
Movimiento Nacionalista Revolucionario (MNR), collective self-government, 196–97
237n38 constitutional compact, expanded, 199–200
radicalism, 95 dormant clauses and, 202
socialism, post-revolution, 125–27 Executive power and, 206, 249n6
Cuban Revolution, 93, 111, 129, 130, 238n46 indigenous question and, 203
Cubas, Raúl, 153 individual autonomy, 196–97
“Cuestiones Argentinas” (Fragueiro), 218n23 liberal-conservative alliance and, 197–99
Cunha, Euclides da, 228n2 process leading toward, 206–8
reforms, 200–206
Darío, Rubén, 92 “engine room,” reforms in, 204–5
Das Capital (Marx), 93 external consistency of, 201–2
De Ángelis, Pedro, 25, 27, 222n22 “fuel” of constitution, 205–6
Declaration of Rights of the Indigenous Peoples, hyperrationality, 202
182 internal consistency of, 201–2
de Cabo, Antonio, 175 limited rationality, 202
De La Huerta, Adolfo, 102 localized reforms, 203–4
de la Rúa, Fernando, 153 material basis, 205–6
Deodora Da Fonseca, Marshal Manuel, 36, 219n32 motives and modalities of, 202–3
Derecho Público Constitucional (Lastarria), 226n18 outcome of, 202–3
El Dia, 97 radical reforms, 202
Dictatorship, 148–51 social question and, 199, 207
274 Index
Egaña, Juan No. 58, 57

Chilean 1823 Constitution and, 213n36 Ferré, Pedro, 35
Constitutional project, 3 First Latin American Constitutions (1810–1850),
Estado social del hombre, 210n8 1–19
fusion constitutionalism and, 35 Flores, Pérez, 176–77
moral code, 13–14 FMLN. See Frente Farabundo Marti para la
1814 Mexican Constitution of Apatzingán. See Liberacón Nacional (FMLN)
Mexico Fonseca, Deodoro da, 90
1837 Generation. See Argentina Foreign examples, local traditions versus, 63–66
Ejército Zapatista de Liberación Nacional (EZLN), 152 “Founding fathers,” non-egalitarian context of
Electoral Power, 67 constitution in, 44
Ellauri, José, 97, 232n34 Fourier, Charles, 211n18
Encina, Francisco de, 229n11 Fragoso, Augusto Tasso, 110
Encyclical “Quadragesimo Anno,” 235–36n27 Fragueiro, Maríano, 218n23
Endogenous controls, 57–59 France. See also French Revolution
Enfiteusis, Argentina, 221n9 Jacobin Constitution of 1793, 82, 228n34
“Engine room” of constitution, 172–95 Francia, José Gaspar Rodriguez de, 13, 24
Equilibrate power, liberal model’s commitment to, 14 Franco, Afranio Melo, 116
Errázuriz, President, 216n5 Franklin, Benjamin, 53
Estado Nacional (Campos), 118 Freedom of expression, 248n34
Estado Novo (Vargas), 116, 233n2 abolition of, Colombia, 219n40
Estensoro, Victor Paz, 237n39 Frei, Eduardo, 114
Estrada, Jose Maria Guitiérrez, 212n28 French Declaration of Human Rights, 68
Estudios sobre la Constitución Argentina de 1853 French Revolution, 210n11
(Alberdi), 64 Common Sense (Paine)-, 223n1
Etchichury, H., 239n9 influences of, 232n39
Europe past, uses of in new constitutions, 71, 224n10
fascism, 102 Reflections on the Revolution in France (Burke), 223n1
“red” revolution, 30–31 Frente Farabundo Marti para la Liberación Nacional
Evolucion Politica del Pueblo Mexicano (Sierra), 87 (FMLN), 238n46
Exclusionary compact alternative, social question, Frente Sandinista de Liberación Nacional, 238n46
107, 121–24 Frías, Félix, 11
National Front, Colombia, 123–24 Fujimori, Alberto, 152, 153, 162, 171
Executive power, 17–19 Furtado, Celso, 238n51
Chile, 114 Fusion constitutionalism, 20–43, 85. See also
Colombia, 40 specific countries
compensation and, 159–60 Catholic Church and, 35
Ecuador, 173–74, 245n2 Catholic faith and, 33
egalitarian constitutionalism and, 206, 249n6 center-federalist model, 33
hyper-presidentialism and, 162–63 checks and balances system, 33
Mexico, 177 civil rights, 28
scope of, 22 conservatives
Venezuela, 175–76, 234n13 liberals and, scope of agreements, 27–30
Exploitation, 220n5 examples, 34–43. See also Argentina; Brazil;
External contradictions, 165–66 Chile; Colombia; Mexico
EZLN. See Ejécito Zapatista de Liberación Nacional Founding Period, 23–24, 216n13
(EZLN) liberal-conservative fusion, 30–32
liberals
Factions, 2, 209n3 conservatives and, scope of agreements, 27–30
Facundo (Sarmiento), 78, 225n22 radicals and, scope of agreements, 25–26
Fajardo, Raquel Yrigoyen, 247n19 liberals and conservatives, scope of differences
Farber, S., 234n15 between, 21–22
Farrell, Edelmiro Julión, 119 organization of power, 27–28
Fascism, 102 radicals
Federalist Papers (Madison), 56–59 liberals and, scope of agreements, 25–26
checks and balances in, 57 radicals and conservatives, scope of differences
No. 10, 2, 56, 216n13 between, 22–25
No. 31, 12
No. 51, 57 Gaitán, Jorge Eliecer, 233n2
No. 55, 57 Gallegos, Rómulo, 110
Index 275
Gálvez, José, 212n24 Ideas conservadoras de buena ley (Mitre),

Gálvez, Pedro, 212n24 20–21
Gamarra, Agustín, 216n7 Illegality, law and, 191–92
Gamboa, Deputy, 228n35 ILO. See International Labor Organization
“Gamonalism,” 231n25 (ILO)
García-Villegas, 189, 190, 223n28, 238n3 IMF, 221n13
Gelman v. Uruguay, 170 Immigrants, call for by Alberdi, 225n17
Gilmore, Richard, 31 Imperfect liberty, 77
Giménez, Marcos Pérez, 234n13 Import substitution, 105
Globalization of law, 168 Inconsistent institutions, 159
Gloppen, Siri, 159, 174, 204 Independence
El gobierno de la libertad (Bilbao), 53 economic and political, 46–49, 51–52
Gómez Farías, Valentin, 18 objections to, 50–51
Gómez, Juan Vicente, 89, 110, 229n7 Indigenous question, 179–81, 246–47n18
Gómez, Laureano, 110 Bolivia, 192–95
González, Florentino, 216n7 centrality of, 179
González Prada, Manuel, 94, 230n21, 231n22 Declaration of Rights of the Indigenous
Gorostiaga, Benjamin, 35 Peoples, 182
Gorriti, Juan Ignacio, 72, 225n15 egalitarian constitutionalism and, 203
Gouveia, Zoroastro, 117, 235n24 gas and water wars, 248n25
Great Britain, model of constitutionalism, land rights, 183
66–67 material condition of constitutions, 192–95
Great Depression, 110 Mexico, 247n18
Groussac, Paul, 92 mixed constitutions and, 179, 184–85
Guatemala natural resources, 183
Constitution of 1985, 181, 247n21 “nature,” rights of, 247n23
socialism, 237–38n46 new constitutions, indigenous rights in,
Guerra del Chaco, 113 181–83
Guilhou, Pérez, 9, 224n4 political powers, expansion of indigenous rights
Guitiérrez, Juan María, 34, 218n23 and, 183–85
Guitiérrez, Lucio, 154 responses to, 247n19
Guitiérrez, Rafael Rocha, 219n39 translation and, 180
Guitiérrez, Santos, 219n36 Individual autonomy, 5–6, 196–97
Guzmán, Jaime, 233–34n8, 237n45 liberal model’s commitment to, 14–15
Ingenieros, José, 228n2, 229n11
Haiti Injunctions, 188–89
Constitution of 1805, 24 Instability. democratic, 241n7
slavery, 2, 24 Institute of Security and Social Services for State
Haitian Revolution (1791–1804), 2–3 Workers, Mexico, 109
Hamilton, Alexander, 12, 211n23 Inter-American Court of Human Rights, 155,
Hartlyn, Johnatan, 124, 125, 156, 173 170–71
Haya de la Torre, Raúl, 93 Internal contradictions, 166, 243n24
Henry, Patrick, 23 Internal impact, hostile constitutions, 134–39
Herrera, Bartolomé, 12, 71–72, 212n24, 224n14 Internal law vs. international human rights law,
Herzog, Silva, 88, 229n6 168–71
Hispanic-Americans, 232n39 International Human Rights Law, 155
Historia de México (Alamán), 72 International Labor Organization (ILO), 233n3
Hobsbawm, Eric, 233n2 Convenio 169, 181–82, 247n22
El Hogar Obrero, 93 Inter-sectional contradictions, 166
The Holy Family (Marx), 211n18 Iron law (Madison), 161, 243n21
Hostile constitutions. See Constitutions, hostile Itamaratí Commission, 116, 235n21
Human behavior, understanding of, 120
Human rights, 148–51 Jacobin Constitution of 1793, 82, 228n34
international human rights law vs. internal law, Jamaica Letters (Bolívar), 13, 66–68, 224n7
168–71 Jefferson, Thomas, 23, 53, 221n13
Hume, David, 58 Cabell, Joseph, letter to, 228n33
Hyper-presidentialism, 148–51, 241n7 The Jewish Question (Marx), 228n34
Schmittian argument for, 162–65 Jíminéz, Marcos Pérez, 111, 121, 122
Hyperrationality, 202 Juárez Law (1855), Mexico, 42
276 Index
Justo, Alicia Moreau de, 93, 230n15 liberal-conservative alliance, egalitarian

Justo, Juan B, 93, 230n15 constitutionalism and, 197–99
liberal-conservative fusion, 30–32
Keynesian economics, 233n3 presidentialism and rights, relationship, 157,
Konvitz, M., 23 243n5
Korn, Alejandro, 93 radicalism and, 21–22
radicals and, scope of agreements, 25–26
Lacambra, Luís Legaz, 237n45 La Libertad, 86
Laclau, Ernesto, 235n19 Lima Lopez, José Reinaldo, 240n19
Lagos, Ricardo, 149 Limits. See New constitutions, limits imposed by
Landless Movement, 152 past
Landowners, 222n19 Limongi, F., 259
authoritarian alternative, social question, 233n4 Linhares, José, 110
Land use, indigenous rights and, 183 Llerena, Juan, 218n23
Lastarria, José Victoríno Local traditions versus foreign examples, 63–66
associations, 60–61 Locke, John, 12
La Constitución Politica de la República de Chile, 38 López de Santa Anna, Antonio, 41
Derecho Público Constitucional, 226n18 López, Francisco Solano, 13
as liberal, 219n35 López, General, 81
past, uses of in new constitutions, 69–70, López, José Hilario, 219n36, 221n9
224n12 López, Vicente Fidel, 34
eradication of past, 73–74 López y Planes, Vicente, 218n20
Lee, Richard Henry, 9 Los partidos en Colombia (Samper), 5
The Left, constitutions and, 129–31 L’Ouverture, François-Dominique Toussaínt, 24
“Legal individualism,” 236n33 Loveman, Brian, 15, 27, 31
Leguia, Augusto, 110 Luis, Washington, 110
Lemaitre, J., 136, 188, 189
Lemos, Miguel, 89 Macchi Luis González, 153
Lenchner, Norbert, 233n4 Mackenna, Benjamin Vicuña, 39
León, Jesús María Castro, 237n37 Madiedo, Manuel, 219n38
Lerdo de Tejada, Sebastián, 86–87 Madison, James
Lerdo Law (1856), Mexico, 42 anti-federalists and, 9
Letters from Quillota (Alberdi), 78 Federalist Papers, 57–59
Levitsky, Steve, 209, 253, 263 checks and balances in, 57
“Liberalism of fear,” 212n33 No. 10, 2, 56, 216n13
Liberal legalism, 163 No. 31, 12
Liberal model, 1810–1850 Constitutions, 14–17. No. 51, 57
Liberals and liberalism No. 55, 57
anarchy, as fighting against, 16 No. 58, 57
anti-collectivist nature of, 15 hyper-presidentialism and, 162–65
anti-Statist nature of, 15 institutional design and, 249n3
checks and balances, system of, 16–17 iron law, 161, 243n21
confiscation of property and, 212–13n34 “paper money crisis” and, 209n3
definition of liberalism, 210n12 on public life, 226–27n25
equilibrate power, commitment to, 14 U.S. constitutional debates, 216n13
individual autonomy, commitment to, Vices of the Political System, 217nn15 and 16
14–15 “wall of separation” and, 23
“liberalism of fear,” 212n33 Magalhaes Castro project, Brazil, 37
moral neutrality, commitment to, 14 Magón, Flores, 95, 231n28
overview, 6–7 Mahuad, Jamil, 154
tyranny, as fighting against, 16 Maistre, Joseph De, 224n11
Liberals and liberalism. See also Liberal model, Majoritarianism, 8
1810–1850 Constitutions defined, 210n12
anti-Bolivarian politics, 25–26 Majority rule, radicalism and, 8
conservatives and, scope of agreements, 27–30 Maldonado, Francisco Severo, 54
organization of power, 27–28 Mangabeira, Joao, 116, 235nn21 and 22
rights, 28–29 Manifiesto de la Sierra, 125
conservatives, differences, 21–22 Mariátegui, José Carlos, 54, 94, 231nn23–26
independence, economic and political, 46–49 Marti, José, 95, 231n27
Index 277
Martinez, Paulino, 103 Constitution of 1917, 95, 101–104, 106, 112,

Marx, Karl, 228n34 148, 166–67
Bolívar, Simón, criticisms of, 13, 131, 212n26, article 5, 102, 104
238n50 article 27, 101, 152
Das Capital, 93 article 123, 101–2
The Holy Family, 211n18 Council of Ministers, 112
Mason, George, 222n23 1814 Mexican Constitution of Apatzingán, 10,
Massieu, José Francisco Ruiz, 154 24, 181, 211n20
Mata, José María, 42 electoral reform, 2007–8, 248n28
Mateos, Adolfo López, 109 Executive power, 17–19, 177
Material basis of Constitution, 44–61 expanded democracy, 80–83
associations, 59–61 indigenous question, 247n18
character, formation of, 54–56 Institute of Security and Social Services for State
economic independence Workers, 109
interrelation with political independence, Juárez Law (1855), 42
51–52 Lerdo Law (1856), 42
liberal-conservative tradition, 46–49 M-19, 154, 189
endogenous controls, 57–59 Mexican Liberal Party (PLM), 95
motivations, 57–59 mixed constitutions, 165
neutrality of state, 54–56 National Confederation of Popular
non-egalitarian context, constitution in, 44–46 Organizations (CNOP), 108
political independence, liberal-conservative National Revolutionary Party, 102
tradition, 46–49 non-egalitarian context, constitution in, 45,
politically committed citizenry, economy and 221n9
creation of, 52–54 order and progress regimes, 86–88, 228–29n3
political reform, economic reform for, 49–50 Partido Acción Nacional, 102
republicanism, 54–56 Porfirio Díaz regime, 86–88, 98–99,
Matta, Manuel Antonio, 38, 216n5 229n5
Maximiliano, Carlos, 116 positivism, 86–88, 228–29n3
McCarthyism, 125 presidentialism vs. rights, 177–79
Melgarejo, Mariano, 249n5 Querétaro Convention, 98–101, 103, 104,
“Memorial to the Citizens of New Granada by a 249n8
Citizen of Caracas” (Bolívar), 3, 67 radicalism, 92, 95
Mendes, Raimundo Teixeira, 89–90, 229n8 reform of 2011, 153–57
Mendoza, José Ely, 237n37 Revolutionary Party (PRI), 108, 177
Mendoza, Lucas, 228n35 Santanista period, 87
Menem, Carlos, 152, 162 social question, 246–47n18
Mercato, Zavaleta, 125 “Supreme Conservative Power,” 18
Mesa, Carlos, 153, 154, 248n25 Supreme Court, 178–79
Mexican Constitutional Assembly, 103 Tlateloco massacre, 109
Mexican Liberal Party (PLM), 95 Universidad Nacional Autónoma de México
Mexican Monarchy, 73 (UNAM), 109
Mexican Revolution, 92, 98–100, 233n3 Zapatistas Army for National Liberation, 99,
Mexican Social Security Institute, 109 103, 152, 178, 249n9
Mexico. See also Mexican Revolution Minority, defined, 28
Aguascalientes Convention, 99, 101, 103 Miskitos, 181
Ayala Convention, 249n8 Mitre, Bartolomé, 20–21, 215n2, 218n23
Ayala document (Plan de Ayala), 99–100 Mixed constitutions, 140, 165–68
Ayutla Revolution, 41 indigenous question and, 179, 184–85
Commission for the Pacification and Concord of MNR. See Movimiento Nacionalista Revolucionario
the Congress of the Union (COCOPA), 178 (MNR)
Commission of Human Rights (1996), 155 Molina, Gerardo, 219n38, 222n16
Confederation of Mexican Workers (CTM), 108 Monreal, Eduardo Novoa, 237n43
Confederation of Peasants (CNC), 108 Montalvo, Juan, 9, 59–61, 61
Constitutional Commission project (1856), 42 Montecristi constitutional debates, Ecuador,
Constitutional Convention, 42, 81 245nn4 and 6
Constitutional reforms (2011), 154–55 Montt, Pedro, 39, 219n33
Constitution of 1824, 69, 140 Morais, Prudente de, 219n32
Constitution of 1857, 32, 33, 87, 98, 100–102, Mora, José María Luis, 29, 46–49
104, 142, 205 Morales, Evo, 154
278 Index
Morality, republican model and, 9 Ocampo, Melchor, 42, 221n14, 228n32

Moral neutrality, liberal model’s commitment O’Donnell, Guillermo, 125, 255, 273, 275
to, 14 Odría Manuel, 110
Moral perfectionism, 11–13 Old colonial compact, 84
Moral populism, 8, 9 Olvera, 45, 220nn4 and 6
Moreno, Gabriel Garcia, 12, 60, 73, 211n21 Onganía, Juan Carlos, 111
Mosquera, Tomás, 40 O Problema Nacional Brasileiro (Torres), 118
Motivations, 57–59 Ordaz, Gustavo Díaz, 109
Motta Ferraz, O., 260 Order and progress regimes, 84–91
Movimiento Nacionalista Revolucionario (MNR), Brazil, 36, 89–91, 218n26
237n38 “Order and Progress in the Name of
Multicultural politics, 204 Humanity, the Country and the Family,”
Murillo, Manuel Toro, 219nn36 and 39 90
economic independence, interrelation with breakdown of, 106
political independence, 51–52 Mexico, 86–88, 228–29n3
on expanded democracy, 80–83 postcolonial constitutional model, 85–91
on land possession, 222n19 pre-positivist thought, 228n1
majoritarianism, 9 Venezuela, 88–89
politically committed citizenry, economy and Organicist view of society, 212n31
creation of, 52–54 Organic Law of Citizen Participation, Ecuador,
political reform, economic reform for, 49 245n5
right of individual to regulate own affairs, Organizacao Nacional (Torres), 118
222n15 Ortúzar Commission, 149
suffrage and, 10, 52 Ospina, Mariano, 40
Murillo, Victoria, 209, 253, 263 Ospina Rodríguez, Mariano, 71, 110
Myers, Jorge, 25 Otero, Mariano, 49–51, 80–83, 221n14, 227nn28
and 29
Napoleonic Constitutions of the year VIII and X, Owen, Robert, 211n18
67, 213n38
Napoleonic Consular Constitutions of 1799 and Pacto de Unión, Colombia, 40
1802, 12 “Pact of New York,” 122
Napoleon, Louis, 86, 218n25 Páez, José Antonio, 89, 229n7, 248n1
Napoleon’s Code, 231n22 Paine, Thomas, 9, 53, 167, 210n11, 221n13
National Commission for the Repression of Common Sense, 223n1
Communism, Brazil, 118 Palacios, Alfredo, 93
National Commission of Human Rights, 155 Palafox, Manuel, 99
National Confederation of Popular Organizations Palmero, Vicente, 229n4
(CNOP), 108 PAN. See Partido Accián Nacional
National Electoral Commission, Venezuela, 176 “Paper money crisis,” 209n3
National Front, Colombia, 123–24 Paraguay
National Renovating Alliance, Brazil, 240n2 Constitution of 1870, 32
National Revolutionary Party, Mexico, 102 independence of, 24
National Security Doctrine, 240–41n6 Paredes y Arrillaga, Mariano, 221n10
Natural resources, indigenous rights and, 183 Parra, Aquileo, 219n36
Nedelsky, Jennifer, 226–27n25 Partido Acción Nacional, 102
Negretto, Gabriel, 155–56, 159, 213–14n40, Past
242n11, 243n17 limits imposed by. See New constitutions, limits
Nelson, Stephen S., 215n3 imposed by past
“Neoliberal” programs, 151–53 new constitutions and. See Past, uses of in new
Neutrality of state, 54–56 constitutions
New colonial compact, 84 Pastrana, Andrés, 152
Nicaragua, article 5 of constitution, 181 Past, uses of in new constitutions
Nineteenth century. See First Latin American continuity, model of, 76–77
Constitutions (1810–1850); Fusion democracy, limited, 77–80
constitutionalism describing the past, 68–70
Nino, Carlos Santiago, 137–38, 150, 217n18, on eradication of past, 72–76
239nn5 and 7–8 evaluating the past, 70–72
Non-egalitarian context, constitution in, 44–46 local traditions versus foreign successful
Nuñez, Rafael, 40, 41, 219n36 examples, 63–66
Index 279
recovery of local traditions, 66–68 working classes, 116

property rights, limited, 80–83 Porfirio Díaz regime, Mexico, 86–88, 98–99, 229n5,
Patronato, 35 232n36
Pellegrini, Carlos, 96 Portugal, self-government, 6
Peña, Roque Sáenz, 96 Positivism
Peralta, José, 222n17 Brazil, 36, 89–91, 218n26
Pérez, Carlos Andrés, 122–23, 153 Mexico, 86–88, 228–29n3
Pérez, José Joaquin, 39 postcolonial constitutional model, 85–91
Pérez, Manuel, 35 pre-positivist thought, 228n1
Peronism, 115, 119–21, 130 progress and, 86–88
Perón, Juan Domingo, 110, 115, 119–21, 236n30 Venezuela, 88–89
Peru Postcolonial constitutional model, 84–104
Barrios Altos v. Peru, 170 Battlism, 95–98
conservativism, 71 democratic branch, 95–98
Constitutional reform, 1993, 152 new colonial compact, 84
Constitution of 1823, 26, 27, 67, 213n38, 216n8 old colonial compact, 84
Constitution of 1860, 32, 217n16 order and progress regimes, 84–91
Constitution of 1933, 234n14 positivism, 85–91
Executive power, 216n7 Brazil, 89–91
liberal-conservative fusion, 31 Mexico, 86–88, 228–29n3
radicalism, 94, 211n17 pre-positivist thought, 228n1
Peru-Bolivian Confederation, 249n5 Venezuela, 88–89
Petión, Alexander, 213n37 radicalism, 91–95
Pinilla, Rojas, 111 revolutions, 98–100
Pinochet, Augusto, 111, 149, 169–70 single-party system and, 100–102
Pio XI, 235–36n27 rupture, 84–85
Piqueteros, 191 Uruguay, Collective Executive, 95–98
Pisarello, Gerardo, 151, 154, 156, 159 Yrigoyenism, 95–98
Platt Amendment, 125, 237n40 Prada, Manuel González, 211n17
Platt, Orville, 237n40 Prada, Raúl, 141, 185–86
PLM. See Mexican Liberal Party (PLM) Presidential authority, 151–53
Pluri-National Constitutional Tribunal, Bolivia, 194 Presidentialism and rights, relationship, 157–62.
Politica Electoral Independiente (COPEI), 121, 122 See also Presidentialism vs. rights
Political centralism, 12 autonomy, 157–58
Political elitism, 11–12 compensation, 158–60
Political equality, 239n11 concentrated authority, system for, 160
Political independence indifference, 157–58
interrelation with economic independence, iron law (Madison), 161, 243n21
51–52 liberalism and, 157, 243n5
liberal-conservative tradition, 46–49 necessity, 160–62
Political liberties, expanded, 80–83 relative indifference, 158
Politically committed citizenry, economy and Presidentialism vs. rights, 172–79
creation of, 52–54 Ecuador, 173–75
Political majoritarianism, 8 Mexico, 177–79
defined, 210n12 Venezuela, 175–77
Political powers, expansion of indigenous rights Prestes, Julio, 110, 115
and, 183–85 Prestes, Luis Carlos, 116, 118, 130
Political reform, economic reform for, 49–50 PRI. See Revolutionary Party (PRI)
Popular Christian Party, 234n13 Primary truths, 12, 211n23
Popular Front, Chile, 114, 234n17 Prison system, Chile, 230n18
Populist alternative, social question, 115–21 “El problema constitucional” (Llerena), 218n23
Argentina, social rights and Peronism, 115, “Profesión de fe” (Mitre), 218n23
119–21 Progress. See also Order and progress
Christian morality, commitment to, 120–21 positivism and, 86–88
human behavior, understanding of, 120 Property
Peronism, 115, 119–21 accumulation of, 45
social justice and, 235–36n27 confiscation of property, 212–13n34
social rights, 115–19 rights, 47, 166
Varguism, 115–19 limited, 80–83
280 Index
Przeworski, Adam, 227n25 outcome of reforms, 202–3

Punto Fijo compact, 121–23, 154 radical reforms, 202
“engine room” of constitution and, 185–87
Querétaro Convention, 98–101, 103, 104, 249n8 internal impact, 201
Quito legal context of, 201
Sociedad Republicana, 61 political reform, economic reform for, 49–50
radical, 202
Rabasa, Emilio, 86–88, 98, 140, 229nn5 and 6, standing in courts, procedures for granting,
232n38 187–90
Radical model, 7, 139, 142. See also Radicals and Venezuela, 176
radicalism; Republican model, 1810–1850 Reglamento Provisorio de la Provincia Oriental
Constitutions (Artigas), 10–11, 181
Radicals and radicalism Rejón, Crescencio, 81
alternative models and, 7 Religious influence, conservative model, 11–14
anti-Bolivarian politics, 25–26 Religious tolerance, establishment of, 32–33
Argentina, 93 Republicanism, 54–56
Chile, 93–94, 210–11n14 Republican model, 1810–1850 Constitutions. See
Christianity and, 24 also Radical model
conservatives, differences, 22–25 conservativism and, 211n17
Cuba, 95 definition of republicanism, 8
egalitarian constitutionalism and, 197 “general will,” as project of, 7–11
1848, 91 morality and, 9
“gamonalism,” 231n25 moral populism and, 8, 9
influence of, 7 overview, 6–7
liberalism and, 21–22 radicalism and, 8–9, 211n17
liberals and, scope of agreements, 25–26 radical model. See Radicals and radicalism
majority rule and, 8 Restrepo, Carlos Lleras, 123
Mexico, 92, 95 Restrepo, López, 244n28
Mitre, Bartolomé on, 20 Restrictions and limits, new constitutions. See New
Peru, 94 constitutions, limits imposed by past
postcolonial constitutional model, 91–95 Revolutionary Party (PRI), Mexico, 108, 177
working class, 92 Revolutions. See also American Revolution;
Rama, Carlos, 211n18 Bolshevik Revolution (1917); Cuban
Ramella, Pedro, 236n29 Revolution; French Revolution; Mexican
Ramírez, Ignacio Revolution
charges against Constitution, 220n8 postcolonial constitutional model, 98–100
Don Simplicio, 53 single-party system and, 100–102
politically committed citizenry, economy and Ribeiro, Demétrio, 90
creation of, 52–54 Rights
on slavery, 45 internal tension, constitutions in, 155–57
speeches of, 216n12 presidentialism and rights, relationship,
Ramírez, Silvina, 246n16 157–62
Rawls, John, 209n1 Rio Negro Constitutional Convention (Colombia),
Reagan, Ronald, 151 26, 40
Reasons for having Constitution, 1–4 Rivadavia, Bernardino, 221n9, 248n1
Recabarren, Luis Emilio, 93–94, 230nn16–18 Robbins, Ephraim, 215n3
“Red” revolution, Europe, 30–31 Roca, Julio Argentino, 86
Reflexiones (Gorriti), 72, 225n15 Rodó, José Enrique, 230n12
Reformist alternative, social question, 111–15. See Rodriguez, Garavito, César, 263
also Reforms Rojas, Ezequiel, 26, 216n5
social democratic cases, 111 Rojas Pinilla, Gustavo, 123
Reforms, 200–206 Roldán, Salvador Camacho, 45, 219n36
crossed reforms, 186, 205 Rome Statute, 155
egalitarian constitutionalism and, 200–206 Rosas, Juan Manual de, 222n22
external consistency of reform, 201–2 Alberdi, Juan Bautista and, 73, 225n16
hyperrationality, 202 conservative-radical alliance and, 25
internal consistency of reform, 201–2 defeat of, 218n20
limited rationality, 202 1837 Generation and, 34
localized reforms, 203–4 French Revolutionary thought and, 224n10
Index 281
liberal-conservative fusion and, 31, 216–17n14, Sieder, Rachel, 166, 174, 194
248n1 Sierra, Justo, 86–88, 98, 229nn4 and 5
local traditions versus foreign successful Silva, Rosa e, 219n31
examples, 63 Single-party system, revolutions and, 100–102
Rouaix, Pastor, 102, 104 Sistema Económico y Rentístíco (Bello), 30
Rousseau, Jacques, 9, 73 Sistema Económico y Rentístíco de la Confederación
Russia, Bolshevik Revolution (1917), 91, 92 Argentina (Alberdi), 49
Slavery, 227n26
Sábato, Hilda, 227n26 Brazil, 37, 89
Safford, Frank, 28, 213n35, 216–17n14 Haiti, 2, 24
Saint, Simon, Henri de, 86 Smith, Peter, 108–9
Salazar, Pedro, 264 Sobrevilla, David, 211n17
Saltamartini v. Cia. de Tranvias La Nacional, Social-Christian Party, 121
236n28 Social commitments, fusion constitutionalism
Sampay, Arturo, 119, 186–87, 235–36nn27–29 and and, 33
32, 237n42 Social crisis, 151–53
Samper, José María Social Doctrine (Vatican), 120
on “anarchy,” 220n42 Socialist alternative, social question, 107, 124–29
Constitutional projects, 41, 219n37 Chile, socialism after Allende’s victory, 127–29
Constitution of 1886 and, 217n32 Cuba, post-revolution, 125–27
on “laissez-faire,” 52 Social justice, 235–36n27
on liberal model, 15–16 Social protest, 152, 190–92
Los partidos en Colombia, 5 constitutional rights and, 191
past, uses of in new constitutions, 226n19 criminal law, inequality and, 192
democracy, expanded, 227–28n31 illegality, law and, 191–92
democracy, limited, 77–80 “voice,” absence of, 192
protests and, 153 Social question, 179–81, 246–47n18
rights, restrictive view, 29 authoritarian alternative, 107–11
Samper, Miguel, 219n36 constitutional liberalism, 233n2
Sánchez de Losada, González, 153, 154, 248n25 Cuba, post-revolution, 125–27
Sánchez de Tagle, Francisco, 18, 214–15n44 democratic-exclusionary alternative, 107
San Nicolas Agreement, Argentina, 218n20 egalitarian constitutionalism and, 199, 207
Santa Anna, Antonio López de, 18, 214n43 exclusionary compact alternative, 107, 121–24
Santanistas, 30 the Left, constitutions and, 129–31
Santiago Concha, Melchor de, 38 liberal-conservative compact, 106
Säo Paulo, constitutional revolution of 1932, 116 liberalism, 233n2
Sarmiento, Domingo Faustino masses, political participation of, 106
“Agirópolis,” 218n23, 219n33 order and progress regimes, breakdown of, 106
past, uses of in new constitutions Peronism, 115, 119–21
on authority, exercise of, 225n23 social rights, 115–19
democracy, limited, 77 “social tie,” 108, 233n4
eradication of past and, 225n17 translation and, 180
Facundo, 78, 225n22 Varguism, 115–19
local traditions versus foreign successful Social reform, 223n24
examples, 63–66 Social rights, hostile constitutions and. See Hostile
pre-positivist thought, 228n1 constitutions, grafting social rights onto
sovereignty of, 217n14 “Social tie,” 108, 233n4
“Savigny’s historical school,” 236n28 Sociedad de la Igualdad, Chile, 54
Schmitt, Carl, 118, 237n45, 244n27 Sociedad Republicana, 61
Schmittian argument for hyper-presidentialism, Soldán, Paz, 216n8
162–65 Sousa Santos, Boaventura de, 194
Seguí, Juan Francisco, 218n23 Sovereignty of reason, 27
Self-government, collective, 196–97 Sovereignty of the people, 27, 216n10
Self-interest, 56, 59 Soviet Union, Constitution of 1935, 126–27
Serrano, José, 102 Spanish Constitution of 1931, 125
“Seven Laws” of 1836, 83, 214n43 Standing in courts, procedures for granting, 187–90
“Shays” Rebellion, 209n3 State neutrality, 54–56
Sheppele, Kim Lane, 240n21 States of siege, 233n5
Shklar, Judith, 212n33 Story, Joseph, 64
282 Index
Strong presidentialism, 12 suicide of, 119

Structural adjustment programs (1990s), 148 Varguism, 115–19
Suffrage, 10, 21 Vatican, Social Doctrine, 120
controls and, 59 Velasco, Castillo, 43, 220n2
educational value of, 222n15 Venezuela
periodical, 60 Alianza Democrática (AD), 121, 122
secret suffrage, 215n2 article 70 of Constitution, 177
universal, 29, 52, 96, 108 article 72 of Constitution, 175
women’s, 117 Bolívar, Simón, Congress of Venezuela speech,
Sunstein, Cass, 209n2 210n7
“Supreme Conservative Power,” 18–19 “Caracazo,” 123
Svampa, M., 266 “Citizens Power,” 175
Constitution of 1811, 1, 26, 68–69, 224n5
Tagle, Sanchez de, 221n10 Constitution of 1947, 122
Tejada, J., 45–46 Constitution of 1961, 175
Terán, Juan B., 236n28 Constitution of 1999, 176
Terra, Gabriel, 110 Executive power, 175–76, 234n13
Thatcher, Margaret, 151 National Electoral Commission, 176
El Tiempo, 53 1957 plebiscite, 124
Tlateloco massacre, 109 order and progress regimes, 88–89
Tocqueville, Alexis de, 232n39 Politica Electoral Independiente (COPEI), 121, 122
Tore, Haya de la, 231n26 positivism, 88–89
Torres, Oliveira Viana Alberto, 118 presidentialism vs. rights, 175–77
Tristán, Flora, 9, 94, 211n18 Punto Fijo compact, 121–23, 154
Turner, Charles, 24 reforms, 176
Tutelage, 189, 248n31 Social-Christian Party, 121
Tyranny, liberal model as fighting against, 16 Supreme Court of Justice, 176
Unión Republicana Democrática (URD), 121
UNAM. See Universidad Nacional Autonóa de Venezuelan Communist Party, 122
México (UNAM) Vices of the Political System (Madison), 217nn15
Unidad Popular, Chile, 127 and 16
Unión Republicana Democrática (URD), 121 Victoria, Héctor, 104
United Nations, Declaration of Rights of the Vidal, Juan de Díos, 237n37
Indigenous Peoples, 182 Vidaurre, Manuel, 214n41
United States Constitution, 103, 140 Videla, Rafael, 111
Universal suffrage. See Suffrage Vigil, Francisco de Paula González, 9, 59–61,
Universidad Nacional Autónoma de México 211n17, 216n7
(UNAM), 109 Vilas, Carlos, 247n20
Uprimny, Rodrigo, 103, 135, 156, 158, 189, 240n14 Vilhena, Vieira, Oscar, 267
URD. See Unión Republicana Democrática (URD) Villaba, Jóvito, 122
Urquiza, Justo José de, 63, 218nn20 and 23 Villa, Pancho, 98–100, 232n37
Uruguay Villa, Valencia, 31, 189
Collective Executive, 95–98 La Violencia period, Colombia, 188
Constitution of 1830, 32
Constitution of 1934, 112–13, 235n15 Waldron, Jeremy, 164, 239n6
Gelman v. Uruguay, 170 “Wall of separation,” church and state, 23
Walzer, Michael, 157
Valdés, Federico Ponce, 112 “War of the Supremes,” 71
Valencia, Guillermo León, 123 Weimar Constitution of 1919, 116, 125, 233n3,
Vallarta, Luis, 42 244n27
Vallenilla Lanz, Laureano, 88–89 Werneck-Pestana project, Brazil, 37
Vallerroel, Gualberto, 113 Whitehead, Lawrence, 239n14
Varas, Antonio, 39 Williams, Samuel, 223n28
Vargas, Getulio, 115–19, 130 Williman, Claudio, 97
authoritarianism, 215n4 Wolkmer, A., 38
conservatives and radicals, alliance between, 25 Women, political rights, 227n26
Constitution of 1946 and, 112–13 Wood, Gordon, 6, 212–13n34
Estado Novo, 116, 233n2 Workers and working classes
overthrow of, 110 politics, incorporation into, 204
Index 283
Populist alternative, social question, 116 Yrigoyen, Hipólito, 92, 96, 110, 231–32nn32 and 33
radicalism, 92 Yrigoyenism, 95–98
rights, exercise of, 222n21 Zapata, Martin, 35, 98, 218n23
social question (mid-twentieth century), 233n4 Zapatistas Army for National Liberation, Mexico,
World Bank, 152, 221n13 99, 103, 152, 178, 249n9
World economic crisis of 1929/30, 105, 202 Zavala, Lorenzo, 72
World Wars I and II, 105, 119 Zavalía, Salustiano, 218n23

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Latin American

Oxford New York

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Published in the United States of America by Oxford University Press

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Library of Congress Cataloging-in-Publication Data

1. The First Latin American Constitutions (1810‒1850) 1

2. Fusion Constitutionalism: The Liberal-Conservative Compact

4. The Limits Imposed by the Past upon

8. Contemporary Constitutionalism I: Constitutions

Inequality as a main concern. This study will be marked by some fundamental

The First Latin American Constitutions

To Have a Constitution: Why and Against What?

of personal dependency—more precisely, slavery.6 The emphasis and the anxiety

Two Foundational Ideals, Three Constitutional Models

• A conservative approach, which from the very beginning of the independence

autonomy (republicanism); one that, in contrast to the previous one, appeared to

The Republican Model: The Project of the “General Will”

The Conservative Model: The Cross and the Sword

It is a mistake to allow all kinds of calumnies and insults, or attacks on the

The Liberal Model: Neither Anarchy nor Tyranny

at the time of sanctioning all these rights . . . the Constitution must do it in

it is necessary to legislate as little as possible, to renounce the mania of reg-

simplify situations, suppressing all artificial questions whose only purpose is

The Moderating Power in Brazil and Mexico, and

The Scope of the Differences

The Scope of the Agreements I: Conservatives and Radicals

Under the inspiration of intellectuals such as De Ángelis, Rosas’s government synthe-

The Scope of the Agreements II: Radicals and Liberals

Does the commander of the Constitution commit a high-treason crime

The Scope of the Agreements III: Liberals and Conservatives

decisions gained respectability, legitimacy, and impartiality, as a result of a public process

The Liberal-Conservative Fusion

[Since 1854] conservatives and liberals began a shifting relationship, which

Fusion and Constitution

• established religious tolerance, without necessarily affirming State neutrality. Most of

Five Examples: Argentina, Brazil, Chile, Colombia, Mexico

the president of the republic. Comonfort was a politician of conservative leanings

the concession of extraordinary faculties to the Executive power—faculties that in

The Material Basis of the Constitution

Introduction: The Constitution

Economic Independence and Political Independence in the

An Economic Reform for the Political Reform

Every political reform has to have as its object an economic reform. If we

Objections to the Independence Thesis

I find no reason to think that domestic servants lack independence, which

any condition receive their subsistence from the Government? . . . However,

What kind of independence do we need? . . . Is it the case that the capitalist

Economic Independence/Political Independence

The Economy and the Creation of a Politically

Discussing State Neutrality: The Endogenous

The Fuel of the Constitution: The Constitution and Personal

Motivations, “Checks and Balances,” and Endogenous Controls

The great security against a gradual concentration of the several powers

Burned Bridges and How to Reconstruct Them: The Place

to a naïve conception of society (as many federalists maintained), republicans and

main assumptions of his view. These assumptions included a commitment to majori-

The Limits Imposed by the Past upon