Chapter 6: Rights and Power: Illiberal Constitutions of Latin America

by Roberto Gargarella
Chapter 6: Rights and Power: Illiberal Constitutions of Latin America
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Published
Sep 11, 2019

Recent constitutional reforms in Latin America have attracted lots of attention from the world: many of them (and here, the cases of Ecuador, Venezuela, or Bolivia rank first) emerged after processes that were (at least in principle) open to the public and participatory in their nature; and in some cases resulted in unorthodox and challenging constitutions. However, there was at least one crucial problem affecting most of these experiments, which was the following. Many of these reformist processes concentrated their energies in the section of rights, without taking into account the impact that the organization of power tends to have upon those very rights. Latin American Constitutions thus appeared as constitutions with ‘two souls’: one that established a powerful, renewed, democratic, and progressive set of rights; and the other that consecrated a hierarchical, traditional organization of powers. The problem with this design is that through the vertical political organisation that it builds, the new constitutions tend to undermine the liberal and social promises that they make through their rights-sections. It has usually been the case that powerful executives who concentrate most of the political power in their own hands do not welcome challenges to their concentrated authority coming from civil society. The fact that many of these challenges come (as it happened in recent Latin American history) from groups that ground their demands in particular constitutional provisions has not modified this tendency, but rather reinvigorated it. As a result, we find numerous cases of executive authorities that have limited legal reforms by introducing new amendments or simply by ignoring the constitution’s demands. There is not room here to outline these examples—on which I have written extensively elsewhere1—but amongst the most telling have been the vetoing of laws that go against extractivist (the large-scale extraction of natural resources) economic policies with their damaging consequences especially for the self-determination of indigenous groups.

Of course, the introduction of changes in rights can generate a huge impact on the ways in which power is distributed. Typically, for example, the extension of the franchise implies an extraordinary change in the organization of power. We may say something similar regarding the right to minimum wage, or the right to a union. However, one should note at least two things. First, many rights have the potential to expand people’s power (the right to join trade unions, the right to minimum wage), but they remain in practice unforced or subenforced, due to pressures exerted from the (unmodified) structure of government. In other cases, such as the right to vote (the most important and also the most peculiar of all), the absence of corresponding changes in the organization of power reveals the way in which constitutions ensure that the levers of power are still driven by a few. Omitting to change the organization of power, reformers have left the new democratic societies under an elitist form of political direction that was typical of the eighteenth century.

It is interesting to contrast this remarkable omission, typical of recent reforms, with what old legal scholars used to do when engaged in a process of constitutional change. In effect, the engineers of the old liberal-conservative compact (typical of the mid-eighteenth century) showed no doubts about what they had to do, in order to ensure the life of their most cherished rights—especially the right to property. For them, it seemed totally clear that in order to guarantee protections to the right to property, the first thing to do was to get into the ‘engine room’ of the constitution, namely to change the organisation of constitutional powers. Typically, then, they proposed the restriction of political liberties in order to ensure the enjoyment of broader economic freedoms. This was, for example, the main constitutional lesson offered by Juan Bautista Alberdi (one of the greatest constitutional thinkers of Latin America during the nineteenth century): it was necessary to temporarily tie the hands of the majority, so as to ensure protection for certain basic economic rights. By doing so, these old legal thinkers showed that they were totally aware of the need to introduce changes in the organisation of power in order to achieve the enjoyment of certain rights in practice.

I believe that contemporary legal scholars should learn this important lesson from our predecessors: in order to introduce fundamental changes in the constitution—particularly those related to the introduction of more or better social guarantees, or both—one needs to affect the organisation of power, which is presently putting so many obstacles to the enforcement of the new rights incorporated in our texts. The hope for social justice and expanded liberties for oppressed groups depends less on the recognition of more constitutional rights than on the adoption of radical political reforms to open the doors to their claims and voices.


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