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This paper presents a typology of different constitutional conceptions, which are designed to help us classify the constitutional conceptions and debates that appeared in Latin America during the nineteenth century and to compare the opposing ideas that were present at the time. Three broad categories of constitutional projects are defined: (1) conservative models, characterized by the defense of political elitism and moral perfectionism; (2) majoritarian or radical constitutions that sought to reach out to the popular sectors and anchored themselves in a form of moral populism; and (3) the individualist or liberal constitutions. This analysis explores the ideas and principal architects of these various constitutional initiatives for a number of Hispano-Latin American nations for the 1810-60 period, when the basic features of their constitutions were shaped.
In chapter 3, I present the concept of “democratic dissonance,” which plays a significant role in the book. By this concept, I refer to the rupture between political practices and our expectations of them, a gap produced by institutions erected on the basis of assumptions about democracy and society that can no longer be sustained. In the chapter I maintain that the conception of democracy upon which the constitutional institutions were built was “restricted” (i.e., distrust towards majority rule and citizens’ participation in politics) and that the societies of those times were politically “contained” (i.e., in terms of restrictions on political rights). In this chapter, I suggest that such institutional legacy tends to create serious political problems when same institutions are directed to govern, in our time, a completely different social base, one marked by the conviction that public policies must be in line with our fundamental political claims and that our public life must be guided by our collective decisions.
The proposed constitutional organization of the political sphere, including, in a special way, the design of the executive and legislative branches, also reflected assumptions of democratic distrust. In this I explore the imbalance generated within the system of “checks and balances” by strong presidential systems and, in particular, by the presence of what some have called “hyper-presidentialism” (Nino 1997). In fact -I argue- the current system depends on finding a “President-angel” who is capable of and willing to demonstrate the qualities of her character throughout the term of her administration. When, on the contrary, the person elected President does not turn out to be up to the job, or is susceptible to pressure and influence, or takes offense at criticism from society and begins acting in an authoritarian or abusive manner, then the bare reality of the institutional system is revealed. And when this happens, we see that the system, in truth, is incapable of imposing firm control, that it allows abuse to continue, and that it is vulnerable to authoritarian manipulation. This situation -I maintain- should largely be seen as an endogenous product of the institutional system, much more than the result of personal pathologies (authoritarian leaders or unenlightened representatives).
In this chapter I examine the “real life” of dialogic constitutionalism. I begin the chapter by presenting the details of one recent dialogic example -namely the development of Argentina’s debate over abortion - and from that illustration I examine in which cases and for what reasons certain types of democratic dialogues may be considered valuable.
In this chapter (and following the conclusion of the previous one), I refer to the profound difficulties generated by legal interpretation, in general, and constitutional interpretation, in particular. I maintain that, very frequently -and particularly when constitutional values are involved- the words of the law offer some ambiguity or obscurity or vagueness - imprecisions that then must be resolved by the interpreter -typically, by a judge- applying the law to a particular case. The problem is that, unfortunately, interpretative methods -including, originalism, living constitutionalism, textualism, purposivism, strict constructivism- easily take the interpreters to opposite or very different solutions. In the chapter I show how this unfortunate situation strengthens the so-called “democratic objection”, in what relates judicial review; damages the main promises of the “rule of law” (because the “rule of man” rather than the impartial “rule of law” tends to prevail); and in the end favors authoritarianism and “democratic erosion” (thus, when abusive governments, recognizing how much the meaning of the law depends on the will of the interpreter, attempt to gain control over the judicial apparatus).
The question that I explore in this chapter is the following: what should delegates in a constitutional assembly do, in order to properly take into consideration the demands of rival groups, which are usually present in the context of multicultural, divided societies? In my analysis, I make reference to four different responses to the fact of pluralism, which we find in the history of constitutional conventions, namely “imposition,” “synthesis,” “silence” and “bundling”. After describing these four different responses, I concentrate my attention on the analysis of the latter –“bundling”- which has been the more significant and influential approach, within the history of constitutionalism in the Americas, and also one very important in other parts of the world..
In chapter 6, I argue that the representative system that was chosen at the “founding moment” was not thought of as a “second-best” or “necessary evil” system, but rather as a “first option”, preferable to its alternative (some form of direct democracy). Representation—in accordance with “democratic distrust”—was to “filter” or “purify” (instead of “recognizing” or “expressing” or “allowing its refinement through debate”) the citizens’ voice through the sieve of “a chosen group of citizens.” This original representative scheme was explicitly chosen because it was thought that, going back to Madison’s words, the “public voice, spoken by the representatives of the people, is more in line with the public good, than if it had been pronounced by the people themselves, summoned for that purpose.” I argue that representative system was subject to risks that its own proponents recognized, and that with the passage of time materialized: representatives who were “too removed” from their constituents, who fail to recognize the citizens’ demands and needs; who begin to act according to their own interests in disregard for or against the interests of the voters; who form a “class” or “caste” and begin to act primarily for the benefit of that group.
In this chapter, I examine what I take to be the most interesting recent development in constitutionalism, namely the emergence of “dialogic constitutionalism” -a practice that seems to be in line with the regulatory ideal defended in the book as a “conversation between equals.” The starting point of the chapter is the idea is that the system of ”checks and balances” pits the branches of government against each other, and that, in recent years, alternative practices began to develop that, in one way or another, “lubricate” the gears linking the different branches of government and favoring a more cooperative attitude between them. I exemplify these changes from two cases, one “judicial” and the other “political.” As an example of the first, I refer to the well-known decision by the new Constitutional Court of South Africa: Grootboom. As an example of the second, I refer to the now famous “nevertheless clause,” a political reform adopted in Canada. These cases allow me to describe in greater specificity what a “dialogical” approach to constitutionalism imply.
In this chapter, I maintain that the system of controls on government chosen during the origins of modern constitutionalism reflected the fear of and resistance against citizen activism. For this reason, of the different control models that were considered, “internal” or “endogenous” controls were chosen over others that emphasized “popular,” “external,” and “exogenous” controls. This choice, I demonstrate, explains the gradual elimination of “external” tools for establishing “popular” control over representations, which were commonly employed or valued at the time. These tools included the right to recall, mandatory instructions, annual elections, mandatory rotation, etc.
In the penultimate chapter of the book, I explore the recent and attractive practice of “deliberative assemblies”. I maintain that the political crisis unleashed by “democratic erosion” (a crisis that was examined in the previous chapter) led to the creation of problem-solving alternatives that involve much more inclusive public discussion in places like Australia, Canada, Iceland, and Ireland, among several others. Through this chapter, I analyze these experiences and demonstrate that if the collective procedure is organized properly -even in the context of extremely numerous, plural, complex, multicultural, diverse, and conflictive societies- inclusive debate is possible and, above all, worthwhile.
This chapter is dedicated to presenting the distinctive features of the regulative ideal that I employ in this book, that is, the ideal of a “conversation among equals”. I introduce the six defining characteristics of an egalitarian conversation: equality among its participants; the reasonable disagreements that separate those participants; the inclusive and deliberative character of their conversation; their focus on topics of public (rather than private) interest; and the open, continuous and ongoing nature of their dialogue.
In this chapter, I begin to study in more detail the “construction” of “counter-majoritarian” constitutions or, to use the terms employed by the Brazilian jurist Roberto Mangabeira Unger, constitutions constructed around a “discomfort with democracy.” I use, as a starting point in this exploration, the concept of “factions” that played a central role in the Federalist Papers, and which James Madison took as a basis to explain and justify his influential approach to constitutionalism. I examine the institutional implications of this “counter-majoritarian” view through numerous examples, including the preponderance of “indirect elections”; the special requirements to run for the Senate; and the peculiar organization and competencies of courts.
In this chapter, I demonstrate that the declarations of rights that were incorporated into the modern Constitutions relied on a conception of rights that was hostile to democracy. There were various versions of the idea of “natural rights” to which the “founding fathers” subscribed, but the one that prevailed placed rights and citizenship in separate, distant boxes. I also explain, in this chapter, that good part of the prevailing doctrines on the subject are derivations of that original paradigm. Both the idea of rights as “trump cards” that “beat” majority decisions (in Ronald Dworkin’s terms) and the idea that rights constitute a separate sphere (“the sphere of the undecidable” in Luigi Ferrajoli’s work) that must be put out of reach of democracy. According to these prevalent understandings -I claim- rights must be rigorously left to the technical and exclusive care of the judges.
In this chapter, I demonstrate that the system of checks and balances, which was one of the fundamental innovations of modern constitutionalism, was also marked, from the beginning, by a strongly anti-democratic bias. This bias began -I maintain- with the pretense of balancing the “ambition” of the landowning minorities with the “ambition” of the indebted majorities. The choice was made to value political stability and social balance over democratic principles, which came at a very high cost. In this way, majority rule lost much of its meaning. Moreover, I claim that the system of checks and balances was conceived from a logic that is particularly worrying for those who defend a “conversational” or “deliberative” approach to democracy. I refer to the fact that the system was much more motivated to “avoid war” between factions than to promote dialogue between them. Thus -I claim- “constitutional dialogue” was possible, or at least not prevented by the institutional system erected, but the system certainly did not promote it and did in fact pose obstacles to it
Iceland has traditionally been recognized as a highly homogeneous, developed, and egalitarian country with a strong welfare state. In the mid-1990s, however, the local authorities became interested in the prevalent economic theories of those times favoring the “free market” over state intervention in the economy through “regulations.” Reforms in the financial market were introduced to liberalize the flow of capital, which ended up making the country’s banks and stock market attractive to investors, at least initially. For almost a decade, the country experienced an unexpected “boom” as foreign funds flooded in, which also left the country at the mercy of capital flux. As early as 2005, Iceland’s economy began showing alarming signs of weakness, including high levels of inflation and a sudden change in the flow of capital: almost overnight, capital began to flow out of the market, and quickly. Now a prisoner to foreign capital and its fluctuations, the economic “shock” was immediately felt: the national currency depreciated by 70 percent; the stock market crashed; and interest rates skyrocketed. By mid-October 2008, the downward spiral seemed uncontainable. Faced with the crisis, the government decided to assert control over the country’s three main private banks and declared the economy in a state of “bankruptcy.”
In this chapter, I contrast two different approaches to the possible relationships between “human motivations” and “political institutions.” According to a first approach - which continues to prevail today - people are fundamentally selfish and self-interested, and institutions must be designed taking into account this unchangeable human trait. According to the second approach, people are motivated, in part, by civic virtue, a character trait that institutions should help promote.