Nolte, Detlef and A. Schilling-Vacaflor, 2012. Introduction: The Times they are a Changin’: Constitutional Transformations in Latin America since the 1990s, in: Nolte, Detlef and A. Schilling-Vacaflor, eds. 2012. New Constitutionalism in Latin America. Promises and Practices. London: Ashgate, 3-30. (original) (raw)
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Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.
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Almost all constitutions have a beginning and an end; enactment supposes its birth, while replacement entails its death. Like all living beings, written constitutions can pass away because of many causes. Among other factors, political, economic and social conditions, but also constitutional design features are called to be the leading causes of what is hereby denoted as constitutional replacement. Why do some written constitutions survive longer than others? To what extent are political, economic, and legal factors, the determinants of constitutional replacement? To answer these questions, this article presents an empirical study of risk and protective factors of constitutional mortality, among five South American countries, namely Bolivia, Colombia, Ecuador, Peru and Venezuela, in the period 1946 - 2016. This time period is especially interesting due to its variability. Previous literature insights are confirmed insofar evidence suggests that bicameralism tends to live longer, despite adverse political and economic conditions.
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Since the mid-1980s, Latin America has seen an intense period of constitutional change, as almost all countries either adopted new constitutions (Brazil in 1988, Colombia in 1991, Paraguay in 1992, Ecuador in 1998 and 2008, Peru in 1993, Venezuela in 1999, and Bolivia in 2009, among others) or introduced major reforms to their existing constitutions (Argentina in 1994, Mexico in 1992, and Costa Rica in 1989). The new Brazilian constitution of 1988 can be viewed as the starting point of this phase of reforms, which is still developing. Obviously there are important national differences. However, despite these national differences, this wave of constitutional reforms in Latin America seems to have some common features. Despite the intensity of the recent constitutional changes in Latin America, I know of no text that has tried to systematically examine the common features of the development of constitutionalism in the region. There are important reflections on the constitutional evolu...
Latin American countries have been riding a massive wave of constitutional change since 1978. One aspect of the political institutions selected as a result of this process seems particularly puzzling. Reforms that promote party pluralism and consensual decision making coexist, often within the same design, with other reforms that restrict party competition and foster concentration of power in the executive branch. This Article argues that constitutional choice is endogenous to the performance of preexisting constitutional structures and to the partisan interests and relative power of reformers. According to this theory, the seemingly contradictory trends of design that we observe in Latin America reflect (i) the diverse governance problems faced by new democracies and (ii) the heterogeneous interests of the actors who had influence over institutional selection. The Article provides evidence in support of this theory from the recent experience of constitution making in Latin America.
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This report seeks to describe and analyse key features of constitution-building and reform processes in 18 Latin American countries during the period 1978-2012. The report, written by Gabriel Negretto, consists of four chapters covering constitution-making procedures, executive powers, citizen rights and constitutional justice, and participatory institutions. Each chapter was originally conceived as a discussion paper for participants in an international seminar, entitled 'Constitution-Building Processes in Latin America', held on 21-22 October 2015 in Santiago de Chile. The seminar was organized by the General Secretariat of the Presidency of Chile, International IDEA and the University of Chile Law School. The chapters take a comparative approach to constitution-building experiences in Latin America, with the central objective of informing deliberations on the creation of a new constitution in Chile. The Annex contains a concluding essay, authored by Javier Couso, which builds on the topics discussed in this report to analyse the constituent process currently underway in Chile. The Chilean case serves as a reminder that constitution-building processes are deeply political affairs, in which correlations of power, strategic behaviour, and even sheer luck, play important roles. Thanks to Sumit Bisarya for his comments and suggestions during the writing of this work, and to the participants at the seminar for their feedback on the different papers distributed for discussion. Thanks also to the International IDEA Publications team for their support in the editing of the text.
The purpose of this seminar it to analyze the politics of constitutional change from a theoretical and comparative perspective. We will discuss different approaches to constitutional stability and change and apply them to explain selected cases of constitutional reform in Latin America. The seminar is divided into three sections: concepts and approaches, institutional design and variation, and constitution making episodes. We conclude with a discussion on the importance of constitutional change for the reformulation of a research agenda on institutional origins and effects.