GARGARELLA, Roberto - Latin American Constitutionalism, 1810-2010

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
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
Fus ion Con stituti onali sm 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
22 L atin American Constitutionalism, 1810–2010
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 M aterial B asis o f the Con sti tution 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).

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Latin American

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Library of Congress Cataloging-in-Publication Data

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-

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