The new Latin American constitutionalism: a critical review in the context of neo-constitutionalism

ABSTRACT

The new Latin American constitutionalism (NLC) is the term that has been coined to refer to certain constitutional processes and constitutional reforms that have taken place relatively recently in Latin America. Constitutional theorists have not been very optimistic regarding the scope and nature of this new constitutionalism. I thoroughly agree with this critical skepticism as well as with the idea that this new phenomenon does not substantively change the organic element of the different constitutions in the region. However, I argue that it is a mistake to focus analysis on this characteristic. My intention is to show that the NLC should be evaluated in the context of its relationship with contemporary neo-constitutional theory.

RÉSUMÉ

Le nouveau constitutionalisme latino-américain est la locution qui a été inventée pour renvoyer à certains processus et réformes constitutionnels ayant eu lieu dans une époque relativement récente en Amérique Latine. Les théoriciens des constitutions ne se sont pas montrés très optimistes quant à l’étendue et à la nature de ce nouveau constitutionalisme. Je suis tout à fait d’accord avec ce scepticisme critique, ainsi qu’avec l’idée selon laquelle ce nouveau phénomène ne change pas significativement l’élément organique des différentes constitutions en place dans la région. Cependant, je soutiens qu’il est erroné de concentrer l’analyse sur cette caractéristique. Mon intention est de montrer que le nouveau constitutionalisme latino-américain doit être examiné relativement à la théorie néo-constitutionnelle contemporaine.

KEYWORDS:

• Constitutionalism
• neo-constitutionalism
• new Latin American constitutionalism

Notes

1. In the years that make up the period I have defined as the “counter-majoritarian stage”, there is definitely a general trend, but I am also aware that in those years there are constitutional manifestations that represent clear exceptions to this trend. Such is the case, for example, of the Argentinean Constitution of 1853, or the Mexican one from 1857. A variety of historical factors contributed to that: worldwide, the European revolutions of 1848; locally, the success of the liberal plan of Ayutla against the dictatorship of Santa Anna in Mexico (and the restoration of unicameralism)

2. Let us remember the words of Madison in Federalist No. 58: “the more numerous any assembly may be, of whatever characters composed, the greater is known to be the ascendancy of passion over reason”. Also, those of Hamilton in The Federalist No. 6: “Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities?”

3. Thus, the constitution drafted by Bolivar for Bolivia in 1826 gave the president a lifetime tenure. In Paraguay, José Gáspar Rodríguez of France proclaimed himself in 1813 “Perpetual Dictator” (inspiring the famous novel by Roa Bastos “I, the Supreme”). In the late eighteenth century, Francisco de Miranda was elevated as the Plenipotentiary Dictator of the First Republic of Venezuela. This contrasts with a paradoxical fact: Latin American countries held elections before Europe and Asia (Annino 1995, 10).

4. The Amendment to the Law of amparo in Mexico in 2013 sought a similar result in its text. However, for the reasons I stated above, in practice this reform is merely lifeless text due to the political forces to which legal bodies are subjected in Mexico. The journalist Carmen Aristegui (famous for leading the investigation that exposed presidential corruption in the case of the so-called “White House”) was fired from the company she worked at shortly after publishing her report. The Appellate Court denied the journalist amparo, arguing that her contractual dismissal should be settled in civil court. This meant ignoring the role played by an individual who operates a radio franchise granted by the state. According to the Amendment to the Law of amparo, this would have required giving the franchisee a position of authority, especially involving a company whose public function performs constitutional purposes as a medium for the free dissemination of ideas.

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Notes on contributors

Felipe Curcó Cobos

Felipe Curco Cobos has a PhD in Political Theory. He received his PhD in Political Theory from the University of Barcelona, specializing in contemporary political thought. He was a Fulbright scholarship holder in Social Sciences and professor at the University of Barcelona (Spain). He has also been a professor at the Faculty of Philosophy of UNAM (Mexico). He has taught several courses in Mexico and abroad. Presently he is a full time associate professor and investigator at the Academic Department of Political Science at ITAM (Mexico). In Mexico he has participated and collaborated with the Judicial Federation TV Channel. He was a scholarship holder at the Institute of Philosophical Research (UNAM, Mexico). He has been a member of the Mexican National System of Researchers since 2009. His most recent publications have been on the debate between Latin American political philosophy and European political thought (“Latin American Political Thought before Discourse Ethics”, in Latin American Research Review, Vol 50, no. 4), the question being whether normative elements exist or not in the thought of Karl Marx (“Is there a Normative Theory of Justice in Marx?”, in Topicos, 52), and the normative and moral analysis about the violence in Mexico (“Gewalt und das nackte Leben in Mexiko in Zeiten des Imperiums”, in Krieg und Frieden: Politisch Kulturforschung, Peter Lang Edition, Samuel Salzborn/Holger Zopf (Hrs.)).