Sunday, December 27, 2015

Mirow on Latin American Constitutions, Part 7

With the arrival of 2016 in a few days, we will be only one year away from the centenary of the Mexican Constitution of 1917, the most important constitutional document in Latin America during the twentieth century. With U.S. recognition and having effectively defeated Pancho Villa’s forces, Venustiano Carranza, was ready to move forward with his “constitutionalist” movement in 1916. He called for a constitutional convention at Querétaro with the aim of reforming the Mexican Constitution of 1857. Those gathered at the convention included workers, farmers, miners, and railroad workers in addition to the expected assortment of lawyers, doctors, engineers, professors, and professionals. Although scholars debate the extent the popular voice was heard at the convention and represented in the Constitution, the assembly took on a more reformist and radical hue than Carranza probably expected, and under the presidency of Luis Manuel Rojas, the assembly reviewed and greatly revised the draft constitution proposed by Carranza. 

Even Carranza’s draft was something new in Latin American constitutionalism. It fused various trends into a new document that included, among others, individual rights, the secularization of education, limitations on employment contracts, freedom of the press, procedural rights for the criminally accused, freedom of religious beliefs, and electoral reform. The church, education, work, and land were the main areas of debate as the assembly pushed for greater reform than that found in Carranza’s draft. The Mexican Constitution of 1857 had done much to separate church and state in Mexico. The Constitution of 1917 created the supremacy of the state over the church. One article of the Constitution gave federal authorities exclusive jurisdiction in religion affairs, and another prohibited religious ceremonies or activities in public. Education, particularly primary instruction, was laicized.

Two articles addressing the “social question” are so important that I have to mention them by number. Article 27 is the famous provision dealing with property. It established fundamental ownership of property in the state and a view of property that was moderated by its function in and use by society. Large tracts were to be subdivided and distributed into agriculturally productive plots. Each group of people would have needed land and water. The same article (it runs several pages) created regulatory regimes for coal, oil, hydrocarbons, and minerals. Direct ownership of land and water was limited to Mexicans, and churches were prohibited from owning land. Lands improperly taken from indigenous groups would be returned and held communally. Article 123 set out rights for labor and provided constitutional grounds for Mexico’s subsequent extensive labor legislation. The article recognized trade unions and gave detailed rules on hours, minors, women, wages, vacation, safety, accidents, strike, arbitration, dismissal, and social security. Both articles passed with surprisingly little debate or discussion and stand as intellectual monuments of the Mexican Revolution. Ushering in a new era of social rights and interventionist economic theory, the Mexican Constitution of 1917 has served as a model and starting point in the region since its promulgation.

This is perhaps not a bad place to stop. I hope that through my selection of a few illustrations you have become more interested in this topic. My new year’s wish is that I have convinced you that the legal history of regional and transnational constitutionalism in the South Atlantic is well worth exploring, particularly as many scholars have recently given us a fuller and more international understanding of northern transatlantic constitutionalism. I think there is a certain complementarity available within these two constitutional worlds. It has been a pleasure writing a little about my work. I thank Dan and the Legal History Blog for this opportunity. Happy New Year.