Andrea Pozas-Loyo & Julio Rios-Figueroa

89 Texas L. Rev. 1807

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Ms. Andrea Pozas-Loyo and Professor Julio Ríos-Figueroa argue that the design of existing institutions and the political leverage of actors that do not participate directly in constitutional reform may exert an important influence on the design of institutions created by amendments.  In doing so, they challenge the assumption that constitution-making processes are and must be extraordinary and are unrelated to motivations and decisions that characterize ordinary politics.  The authors explain the pervasiveness of this assumption by pointing out that it is rooted in a focus on the creation of new constitutions and overlooks the process and politics behind amending existing constitutions.  Pozas-Loyo and Ríos-Figueroa contend that because of this, the design of institutions through amendments will be influenced by variables that do not regularly figure in the analysis of constitution-making, and as such, the more institutional power and political leverage actors have, the more likely such amendments will reflect their interests.

Pozas-Loyo and Ríos-Figueroa suggest two implications from their claim that ordinary politics often accompany constitutional amendment processes.  First, powerful judges can be expected to influence amendment processes aimed at reducing their adjudicatory powers.  Second, other powerful social and political actors with leverage over representatives can be expected to attempt to influence the outcomes of amendment processes that affect their interests.