Enacting constitutionalism the origins of independent judicial institutions in Latin America

Comparative Politics

Volumn 42, Issue 3, 2010, Pages 293-311

  Ríos Figueroa, Julio ^a   Pozas Loyo, Andrea ^a  

^a NONE

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[No Author keywords available]

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EID: 77952624878     PISSN: 00104159     EISSN: None     Source Type: Journal    
DOI: 10.5129/001041510x12911363509710     Document Type: Article

References (99)

1. R. C. Van Caenegem, An Historical Introduction to Western Constitutional Law (New York: Cambridge University Press, 1995), pp. 190-193
2. Stephen Holmes, "Constitutionalism," in the Encyclopedia of Democracy, ed. Seymour M. Lipset (Washington, DC: Congressional Quarterly Press, 1995), p. 299.
3. Aristotle, Politics (Cambridge, MA: Loeb Classical Library, 1932), 1293a 33-34;
4. Alexander Hamilton, James Madison, and John J. Jay, The Federalist Papers (New York: New American Library, 1961).
5. For instance, arguably, the central concern of ancient constitutionalism was political stability and strength, while modern constitutionalism places a larger emphasis on the protection of the individual vis-à-vis the government. M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967).
6. Political power in oligarchies concentrated in a social class can be seen where the main political offices are in the hands of the few rich, or in democracies where they belong to the many poor. Aristotle, Politics, 1301a 31-37.
7. Hamilton et al., p. 331.
8. Ancient constitutionalism attained this aim by mixing institutions of different constitutions. "For example, in regard to the administration of justice, in oligarchies they institute a fine for the rich if they do not serve on juries but no pay for the poor for serving, while in democracies they assign pay for the poor but no fine for the rich, but a common and intermediate principle is to have both payment and fine, and therefore this is a mark of a constitutional government, since it is a mixture of elements from both oligarchy and democracy". Aristotle, Politics, 1294a 37-1294b 3.
9. For the debate surrounding this issue on the American constitution-making process, see Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997).
10. Montesquieu, The Spirit of the Laws (London: University of California Press, 1977).
11. Hamilton et. al., Federalist, p. 78.
12. John Ferejohn and Pasquale Pasquino, "Constitutional Adjudication: Lessons from Europe," Texas Law Review, 82 (2004), p. 15.
13. Mark Thatcher and Alec Stone Sweet, "Theory and Practice of Delegation to Non-Majoritarian institutions," West European Politics, 25 (January 2002): 9.
14. Alec Stone Sweet, "Constitutional Courts and Parliamentary Democracy," West European Politics, 25 (January 2002): 77-100.
15. Patricio Navia and Julio Rlos-Figueroa, "The Constitutional Adjudication Mosaic of Latin America," Comparative Political Studies, 38 (February 2005): 189-217.
16. Lynn Hammergren, "Do Judicial Councils Further Judicial Reform? Lessons from Latin America," Carnegie Endowment for International Peace, Working Paper No.28, Rule of Law Series (2002), p. 2.
17. Carlo Guarnieri, "Judicial Independence in Latin Countries of Western Europe," in Judicial Independence in the Age of Democracy. Critical Perspectives from around the World, ed. Peter H. Russell and David M. O'Brien (Charlottesville: University Press of Virginia, 2001), p. 118.
18. Geraldine Szott Moohr, "Prosecutorial Power in an Adversarial System: Lessons from Current White Collar Cases and the Inquisitorial Model," Buffalo Criminal Law Review, 8 (2004): 165-220.
19. Carlo Guarnieri and Patricia Pederzoli, Los jueces y la politica. Poder judicial y democracia (Madrid: Taurus, 1999), p. 95.
20. As the scandals on the firing of the U.S. attorneys during April 2007 show, no country is immune to this potential flaw of institutional design.
21. John Ferejohn, "The Politics of Imperfection: The Amendment of Constitutions," Law and Social Inquiry, 22 (2006): 501-530
22. Jon Elster, Ulysses Unbound (New York: Cambridge University Press, 2000).
23. Barbara Geddes, "Initiation of New Democratic Institutions in Eastern Europe and Latin America," in Institutional Design in New Democracies, ed. Arend Lijphart and Carlos Waisman (Boulder, CO: Westview Press, 1996).
24. Gabriel L. Negretto, "Choosing How to Choose Presidents: Parties, Military Rulers, and Presidential Elections in Latin America," Journal of Politics, 68 (Spring 2006): 421-433
25. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (New York: Cambridge University Press, 2003).
26. Jack Knight, "Institutionalizing Constitutions' Interpretation, " in Constitutional Culture and Democratic Rule, ed. John Ferejohn, Jack Rakove and Jonathan Riley (New York: Cambridge University Press, 2001).
27. We discuss the operationalization of these accounts later in this section.
28. A political group is a cohesive and coordinated network of individuals with public political identity, such as a party or a military junta.
29. Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (New York: Cambridge University Press, 2002).
30. In contrast, the members of a multilateral constituent power lack those coordinating mechanisms. If the constitution-making process is successful, the constitution becomes a coordination device. See Russell Hardin, Liberalism, Constitutionalism, and Democracy (New York: Oxford University Press, 1998).
31. For instance, three-quarters of Congress plus the majority of state legislatures.
32. There are few constitutions that contain the procedure for making a new constitution, but even in these cases the procedures are mostly irrelevant. Making a new constitution generally implies that the content of the previous one was in an important way flawed.
33. Emmanuel J. Sieyes, What is the Third Estate? (New York: Praeger, 1963).
34. For instance, if the constituent power is formed by the representatives of several states, those from more populated states will prefer proportional representation in the legislative.
35. For instance, socioeconomic equality and the defense of private ownership are two values that may be prioritized differently by different groups. Note also that different groups can disagree on which institutional setting will realize a common desired aim.
36. Ginsburg, Judicial Review;
37. Jodi Finkel, "Judicial Reform as Insurance Policy: Mexico in the 1990s," Latin American Politics and Society, 46 (Winter 2004): 87-113;
38. and Adam Przeworski, Democracy and the Market (New York: Cambridge University Press, 1991), pp. 36-38.
39. Ginsburg, Judicial Review, p. 25.
40. Ibid., p. 24, emphasis added.
41. Ibid., p. 24.
42. See Finkel, "Judicial Reform";
43. and Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004).
44. Empirical accounts based on the insurance model need to be especially careful of not attributing in an ad hoc manner uncertainty to politicians after a successful judicial reform. For instance, Jodi Finkel has argued that the Mexican 1994 constitutional reform that empowered the judiciary was an insurance policy for the PRI that foreseeing losing power wanted to tie the hands of the future winners, "Judicial Reform" p. 87-113.
45. However, there are reasons to be skeptical of such accounts of long-term strategic behavior, "according to some privileged witnesses of the reform process, in 1994, no one could have foreseen the PRI electoral defeat that occurred in 1997 or 2000," Silvia Inclán, Judicial Reform and Democratization: Mexico in the 1990s. Ph.D. Dissertation, Boston University (2004), p. 84.
46. We thank an anonymous reviewer for pointing out the importance of this question and the relation between uncertainty and the type of constitution makers.
47. Elster, Ulysses Unbound.
48. William Landes and Robert Posner, "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, 18 (1975): 875-99;
49. and Mark J. Ramseyer and Eric B. Rasmunsen, Measuring Judicial Independence: The Political Economy of Judging in Japan (Chicago: Chicago University Press, 2003).
50. This is also the case of the accounts based on principal-agent models.
51. See Gary Cox ant Matthew McCubbins, "Institutional Determinants of Economic Policy Outcomes," in Presidents, Parliaments, and Policy, ed. Stephen Haggard and Matthew McCubbins (New York: Cambridge University Press, 2001).
52. Control over the judicial council has been a sensitive political issue in Latin America. In countries where the Supreme Court has administrative control of the judiciary, it has either blocked the creation of the council that would take away this control (as in Chile and Argentina), or it has fought to control a majority of seats in the council (as in Mexico). In countries where control over the judiciary's structure has been in the hands of the elected branches of government, the creation of a council has been a mere formality since it is controlled by politicians (as in Bolivia). Still, in other countries such as Peru in 1969, the judicial council was created by the military government in order to manage the appointments of judges. See Hammergen, "Do Judicial Councils Further Judicial Reform?" pp. 3-4.
53. The list of observations is in Table 1. We are aware of three other constitutions adopted during the time frame of this article that, unfortunately, we have not yet been able to find in their original version. These constitutions are from the Dominican Republic in 1961 and 1963 and Brazil in 1969. Of course, the number of amendments to other constitutional provisions not considered in this paper is much larger.
54. Rodrigo Uprimny, "The Enforcement of Social Rights by the Colombian Constitutional Court: Cases and Debates," in Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?, ed. Roberto Gargarella, Pilar Domingo, and Theunis Roux (London: Ashgate, 2006).
55. Ibid., p. 128.
56. We thank an anonymous reviewer for asking us to clarify this point.
57. No constitutional assembly included in this analysis required a threshold higher than two-thirds to make decisions. There were two cases in which the largest party in the legislature had less than 50 percent of seats, but a coalition, as defined in Jose A. Cheibub, Adam Przeworski, and Sebastian Saiegh, "Government Coalitions under Presidentialism and Parliamentarism," British Journal of Political Science, 34 (2004): 565-87, had more than that (Brazil, 1947 and 1988).
58. We coded these cases as multilateral. Data from share of seats in constituent assemblies come from Dieter Nohlen, ed., Elections in the Americas: A Data Handbook, vols. 1-2, (New York: Oxford University Press, 2005);
59. The Political Database of the Americas (PDBA), n.d. last accessed on January 28, 2008, http://pdba.georgetown.edu/ and Constitutionen Hispanoamericanas, n.d. last accessed on January 28, 2008, http://www. cervantesvirtual.com/portal/.
60. Voting in constitutional assemblies is usually by majority, but there are exceptions as is the case in Uruguay where the required vote is two-thirds.
61. Dominican Republic: Howard J. Wiarda, "Contemporary Constitutions and Constitutionalism in the Dominican Republic: The Basic Law within the Political Process," Law & Society Review, 2 (1968);
62. Leiv Marsteintredet, "Political Institutions and Their Effect on Democracy in the Dominican Republic," Ph.D. Dissertation, University of Bergen, 2004;
63. Guatemala: Piero Gleijeses, Shattered Hope: The Guatemalan Revolution and the U.S., 1944-1954 (Princeton, NJ: Princeton University Press, 1992);
64. Honduras: Victor Bulmer-Thomas, "Honduras since 1930," in The Cambridge History of Latin America, ed. Leslie Bethell (New York: Cambridge University Press, 1990), vol.VII;
65. Nicaragua: Victor Bulmer-Thomas, "Nicaragua Since 1930," ibid;
66. Panama: Michael Conniff, "Panama since 1930," ibid;
67. Argentina: Gabriel Negretto, Constitution-Making and Institutional Design: Distributing Power between Government and Opposition in Three Argentine Constitutions (1853-60, 1949, 1994), Ph.D. Dissertation, Columbia University, 2000;
68. Brazil: Gary M. Reich, "The 1988 Constitution a Decade Later: Ugly Compromises Reconsidered," Journal of Interamerican Studies and World Affairs, 40 (Winter 1998): 5-24;
69. José Afonso Da Silva, Constituciones iberoamericanas. Brasil (México: UNAM-Instituto de Investigaciones Jurídicas, 2006);
70. Chile: Claudia Heiss and Patricio Navia, "Protected Democracy and Military Autonomy: Trade-offs in Chile's Transition to Democracy," ICSO-Universidad Diego Portales, Working Paper No. 9, vol.2, 2006;
71. Colombia: Luis Córdoba Marino, Apuntes de historia constitucional y politica de Colombia (Bogotá: Fundación Universidad de Bogotá, 1998)
72. and Nestos Osuna Patino, Constituciones Iberoamericanas. Colombia (México: UNAM-Instituto de Investigaciones Jurídicas, 2006);
73. Ecuador Enrique Ayala Mora, "Ecuador since 1930," in The Cambridge History of Latin America, ed. Leslie Bethell (New York: Cambridge University Press, 1990), v. VIII;
74. Paraguay: Instituto Internacional de Gobernabilidad (HG), "Diagnóstico institucional de la República de Paraguay," (2002);
75. Peru: María McFarland SánchezMoreno, "When a 'Constitution' is a Constitution: Focus on Peru," Journal of International Law and Politics, NYU, 33 (2001);
76. Uruguay: Héctor Gross Espiel, and Eduardo Esteva, Constituciones Iberoamericanas. Uruguay (Mexico: UNAM-Instituto de Investigaciones Jurídicas, 2005);
77. Venezuela: Miriam Kornblitb, "The Politics of Constitution-Making: Constitutions and Democracy in Venezuela," Journal of Latin American Studies, 23 (1991): 61-89.
78. If no constituent assembly was created, we corroborated that the regime was classified as a dictatorship by Adam Przeworski, Michael Alvarez, José Cheibub, and Fernando Limongi, Democracy and Development (New York: Cambridge University Press, 2000);
79. Scott Mainwaring, Daniel Brinks, and Aníbal Pérez- Liñán, "Classifying Political Regimes in Latin America, 1945-1999," Studies in Comparative International Development, 36 (2001): 37-65;
80. and Peter Smith, Democracy in Latin America: Political Change in Comparative Perspective (New York: Oxford University Press, 2005).
81. All the Latin American constitutions considered here are "rigid" in the sense that their amendment procedures require at least legislative supermajorities.
82. Negretto, Constitution-Making, pp. 165-166
83. See Rachel Sieder, "The Judiciary and Indigenous Rights in Guatemala," International Journal of Constitutional Law, ICON, 5 (2007): 211-217
84. Rebecca Bill Chavez, The Rule of Law in Nascent Democracies: Judicial Politics in Argentina (Stanford, CA: Stanford University Press, 2004), pp. 17-23.
85. The variable measures the probability that two randomly selected persons from a given country will not belong to the same ethnic group, so values close to 0 indicate homogeneity, and values closer to 1 indicate heterogeneity. Alberto Alesina, Arnaud Devleeschauwer, William Easterly Sergio Kurlat and Romain Wacziarg, "Fractionalization", Journal of Economic Growth, 8 (2003): 155-194
86. Douglass North and Barry Weingast, "Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England" Journal of Economic History, 49 (1989): 803-832
87. OPEN ECONOMY is taken from Allan Heston, Robert Summers, and Betina Aten, Penn World Table version 6.2, Center for International Comparisons of Production, Income and Prices at the University of Pennsylvania, (2006). Values for this variable are available for 1950 to 2004. Based on these series and the level of GDP per capita we imputed values for years between 1945 and 1950. GDP per capita is taken from Angus Maddison, The World Economy. Historical Statistics (Paris: OECD, Development Center Studies, 2003), pp. 145-149 For both variables we take the values lagged one year for the analysis.
88. See Pilar Domingo and Rachel Sieder, eds., Rule of Law in Latin America: The International Promotion of Judicial Reform (London: University of London, 2001).
89. World Bank, Initiatives in Legal and Judicial Reform (Washington, DC: The World Bank, 2004).
90. Gretchen Helmke and Elena Mclean, "Inducing Independence: A Strategic Model of Lending and Legal Reform," unpublished paper, 2006, argue that under some conditions local NGOs provide good information to international lenders about the credibility of the national government's commitment to improve judicial institutions.
91. Data from USAID come from Steven E. Finkel, Aníbal Pérez-Liñán, and Mitchell Seligson, Final Report: Effects of U.S. Foreign Assistance on Democracy Building: Results of a Cross-National Quantitative Study (USAID, Vanderbilt University, University of Pittsburgh, 2006).
92. Data from the World Bank were constructed based on the Database of Projects and Operations in the Public Administration, Law, and Justice Sector (available at http://www.worldbank.org/ under Projects and Operations).
93. Data from the IDB is based on Christina Biebesheimer, "Justice Reform in Latin America and the Caribbean: The IDB Perspective,"
94. in Domingo and Sieder, Rule of Law. Data for EXTERNAL FUNDS are available only after 1990. For this reason, we are unable to systematically explore this hypothesis.
95. When DIFFUSION is not included in the regression of Table 3, Column 1, MULTILATERAL becomes significant at the p ≤ .10 level.
96. This is consistent with the fact that not all constitutional governments are democracies nor all democracies have been constitutional.
97. Przeworski, et al., Democracy and Development.
98. Nohlen, v. 2, Elections in the Americas, pp. 543-544
99. See Domingo & Sieder, Rule of Law.