Saturday, December 12, 2015

Mirow on Latin American Constitutions, Part 4

In past posts, I described how this book came about, summarized the portion of the work that deals with the Constitution of Cádiz in its peninsular and American contexts, and gave an example of the impact this Constitution had in Mexico during independence and the early republic. The Mexican example serves as a bridge to the second half of the book.

Various important themes raised by the Constitution of Cádiz are carried into the period following the 1820s. The politicization of constitutions is illustrated in the trajectories of various countries of the region during the nineteenth century. Independent nations used constitutions as tools in internal political squabbles and major political battles. Although it is difficult to construct uniform explanations of what happened in various national contexts, many countries during the nineteenth century developed new constitutional provisions to create and to protect constitutional rights. They all struggled with questions of sovereignty; electoral representation; the place and incorporation of various peoples within the Americas; limits on the executive branch’s exercise of power; the role of the church, religion, and the military in government and politics; the place of the judiciary; and how to effect lasting, meaningful, and entrenched constitutional regimes. These were all questions raised in one way or another in the debates concerning the Constitution of Cádiz.

The politicization of constitutions continued into the twentieth century when a regional pattern of constitutional intransigence and frequent constitutional turn-over became common. Frequent new constitutions produced a lack of entrenchment in legal and societal terms, and a culture of constitutional noncompliance was exacerbated by continued difficulties with effective enforcement mechanisms.

If the foundation of Latin American constitutionalism in the nineteenth century followed from the Constitution of Cádiz, then twentieth-century constitutionalism in the region was shaped by the Mexican Constitution of 1917. This Mexican Constitution was particularly important for its provisions related to property and labor. This Constitution was the first truly autochthonous constitutional product of Spanish America and was a pivotal point in constitutional development in the region. I imagine a great deal of academic work will be done on the Mexican Constitution of 1917 as we approach its centenary. In addition to exploring the Mexican Constitution, this portion of the work also looks at presidentialism, legislative decrees, the military, and constitutional regimes of exception.

The book ends with a discussion and analysis of the past three decades. Courts enforcing constitutions have uncovered and applied language found in new constitutions in the region. New constitutional tribunals have turned to European and international practices and methods of interpretation. Constitutional judges have established bold holdings directed towards the executive, legislative, and military branches. New forms of constitutional actions and constitutional rights arose in this period. Nonetheless, hindrances to effective constitutional regimes continue in the region.