Friday, December 4, 2015

Mirow on Latin American Constitutions, Part 2

My approach to this book was the same as my book on Latin American private law, Latin American Law: A History of Private Law and Institutions in Spanish America. Before attempting a chronologically sweeping coverage of legal development in a large region, I asked a number of friends and colleagues about how I should go about such a project. The best advice I got was not to think about including everything but rather to ask myself what had to be included to do a responsible job. This advice kept me sane. I didn’t make lists of essential topics or themes. I did, however, use this test as I wrote about various periods, moments, or individuals. When thinking about private law in the region, I knew there were key topics or people I had to cover one way or another: derecho indiano (Spanish colonial law and not, although it is a part of derecho indiano, the law related to indigenous peoples in the Spanish Empire), Juan Solórzano Pereira, slavery, Andrés Bello, independence and codification, and agrarian or land reform, for example.

For Latin American Constitutions, I focused on the Constitution of Cádiz as a founding moment for constitutionalism in the region. The origin and influence of this document were major themes that would pull me through much of the work. There were, of course, other topics or people that had to be included using this test. These included, for example, Juan Bautista Alberdi, Simón Bolívar, the place of the church in constitutional development, amparos (actions to protect constitutional rights), the Mexican Constitution of 1917, and recent constitutional language related to indigenous populations and knowledge. The first four chapters, about half of the book, deal with various aspects of the Constitution of Cádiz as it relates to the Americas. The first chapter places the Constitution of Cádiz in the context of American developments. The French occupation of Spain led to political instability not only on the peninsula but also throughout the Spanish Empire. Some regions of the Americas clumsily stumbled into independence as they asserted direct loyalty to an exiled king. Others haphazardly swore allegiance to the peninsular institutions representing the monarchy. This latter group of regions wound up participating in the Constitution of Cádiz. Chapter 2 looks at the events of 1808 to 1812 from the peninsular side where Spanish representatives from around the empire, and many from the Americas, met in the southern Spanish city of Cádiz to debate, draft, and promulgate this unique document of Spanish constitutional monarchy. The following chapter, Chapter 3, focuses on what the Americans brought to the debate and the text of the Constitution. Different models of representation led to questions of citizenship, race, and the inclusion or exclusion of indigenous people and people of African descent, free and enslaved, in the uncharted world of an imperial constitution. The abolition of slavery was heatedly debated. The final chapter dealing mainly with the Constitution of Cádiz, Chapter 4, examines how the text played out on the peninsula and specifically in the Americas. It looks at how the Constitution and the institutions it created led, in many instances, to independence. I will tell you a bit about the other chapters in my next post.