Shifting Constitutional Designs in Latin America: A Two- Level Explanation

Gabriel L. Negretto

89 Texas L. Rev. 1777

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Professor Negretto seeks to explain seemingly contradictory trends in constitutional design in Latin America.  Professor Negretto argues that these trends reflect diverse governance problems and the varying interests of those who influence institutional selection.  Professor Negretto identifies several reforms “intended to diffuse power and place limits on the partisan or government powers of presidents,” and these are contrasted with other reforms.

Part I begins by reviewing recent constitutional transformations in Latin America.  Although Professor Negretto emphasizes that there is substantial variation in these reforms, he identifies several trends in their orientation.  In the sphere of election rules, Professor Negretto identifies trends such as pluralistic rules for the election of deputies and presidents, personalized voting systems, and more permissive rules of presidential reelection.  In the sphere of decision-making rules, the trends include greater restrictions on the government powers of presidents and stronger legislative powers for presidents.

In attempting to explain the contradictory nature of these trends, in Part II, Professor Negretto proposes a two-level theory of constitutional choice.  This theory is an attempt to integrate cooperative theories and distributional models.  Neither theory, according to Professor Negretto, sufficiently explains the constitutional choices seen in Latin America.  According to his theory, “constitutional choice is endogenous to the performance of preexisting constitutional structures and to the partisan interests and relative power of reformers.”

Finally, in Part III, Professor Negretto applies his theory.  He argues that “in the presence of distributive outcomes, strategic political actors always tend to propose or support alternatives of reform that, within the menu of options, are closer to their partisan interests.”  He proposes that different results will occur depending on whether unilateral or multilateral assemblies are involved in the process.  Additionally, reforms supported by different parties will be affected by their expectations for electoral power in the near future.  It is Professor Negretto’s opinion that the study of reform coalitions needs to be complemented “with a process-tracing analysis of the sequence of events that cause constitutional reform and of the patterns of partisan competition that shape the expectations of the actors about their future positions.”

Models of Democracy and Models of Constitutionalism: The Case of Chile‘s Constitutional Court, 1970-2010

Javier Couso

89 Texas L. Rev. 1517

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Professor Couso examines constitutionalism in the context of “radical democracies.”  Although Couso argues that sometimes these governments should not properly be called constitutional, they still sometimes contain institutions that promote traditional constitutional ideals, such as separation of powers, an independent judiciary, and freedom of expression.

The Politics of Amendment Processes: Supreme Court Influence in the Design of Judicial Councils

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.

Grafting Social Rights onto Hostile Constitutions

Roberto Gargarella

89 Texas L. Rev. 1537

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Professor Roberto Gargarella explains the tensions and implications of “unequal legal integration,” a scenario where new legal practices confront established legal infrastructure.  The most important example of this phenomenon in Latin America is the incorporation of social rights into hostile constitutions.

Historically, this merger occurred in Latin America during the early twentieth century by way of grafting social rights onto liberal-conservative political consensus.  Social rights were identified as objectives of the political branches, not the judicial.

The addition of new social rights changes organic constitutional structure by giving more power to the judicial branch, whether or not it is used.  Examples in Argentina and Colombia suggest that scholars pay insufficient attention to the internal implications of social reforms, even though they are perfectly foreseeable.  This fact is particularly pressing in light of the points of merger between models for different constitutions—conservative, liberal, radical or otherwise.  For instance, judicial constitutional review embraced by liberal and conservative constitutions may see less conflict when the parameters of the constitutional review are specifically defined to satisfy the preferences of both camps.  On the other hand, introduction of social rights into a liberal–conservative scheme that rejected those rights during the constitutional conventions of the nineteenth century may more seriously challenge the institutional framework subject to the imposition of the social rights.

As a result, the failure of reformers to anticipate and facilitate the inclusion of new social rights into constitutional infrastructures has resulted in some social rights falling into a “constitutional slumber.”  Not only does the institutional infrastructure sometimes resist actualization of the new social rights, those social rights are ineffectively or unpredictably reawakened in the future.  This flexibility is both a tool and a liability for the future pursuit of new social rights: it may mobilize groups around progress, but it may also be an exercise in futility.

The Inter-American Court and Constitutionalism in Latin America

Diego García-Sayán

89 Texas L. Rev. 1835

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Judge García-Sayán lauds the influence of the Inter-American Court on domestic Latin American judicial systems.  Domestic courts of Latin American countries serve not only as guarantors of the international obligations of states, they also legitimize and revitalize the rule of law by harmonizing international standards and their domestic law.  Four examples demonstrate this advance: amnesties, investigation of human rights violations, the right to an effective remedy, and rights of indigenous peoples.
With regard to amnesty, the Inter-American Court case of Barrios Altos has a significant impact on the ability of violators of international human rights laws to excuse their own behavior.  Of course, trial and conviction of Peruvian criminals throughout the Peruvian justice system was one result, but Barrios Altos also established interpretive parameters for analysis of amnesty provisions in Chile, Argentina, Colombia, and Uruguay.
With regard to investigation of human rights violations, the consistency of the Inter-American Court’s jurisprudence as to the importance of the obligation of states to guarantee international law has aligned the norms of a line of cases in Colombia and Peru.
With regard to the right to an effective remedy, the Inter-American Court’s interpretation of Article 8 and Article 25 of the American Convention has been adopted by the highest courts of several countries. For example, in Argentina, the Code of Criminal Procedure was amended as a result of the Inter-American Court’s decision in Herrera Ulloa v. Costa Rica to ensure the adequacy of Mr. Ulloa’s defense. In Guatemala, an Inter-American Court case overturned a death penalty sentence on a due process claim.  Additional decisions along these lines have come out of Peru and Mexico.
With regard to the rights of indigenous peoples, the Inter-American Court has established a framework for juridicial pluralism and nondiscrimination.  Against criticism of the imposition of international normative institutional parameters onto indigenous authorities, the Inter-American Court has protected the autonomy of indigenous groups while defending the principles of international human rights.  For instance, in Nicaragua, communal property rights of indigenous groups were vindicated by the Inter-American Court.  On the other hand, the Constitutional Court of Colombia has defended a strong interpretation of individual rights against the right of an indigenous community to punish offenders of their laws by using the approach of the Inter-American Court.

Federalism Compatibilists

Garrick B. Pursley

89 Texas L. Rev. 1365

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Two federalisms exist in the legal landscape: the federalism of the courts and federalism in practice.  The two are quite distinct.  This is the subject of Robert Schapiro’s Polyphonic Federalism, which Pursley reviews in this piece.  Schapiro, writes Professor Pursley, aims to explain the causes of the disconnect between these two federalisms and suggests ways to reconcile judicial conceptions with federalism in practice.

The current federalism regime of the courts is dualistic in nature—designed to defend a governmental regime of separate spheres of federal and state authority that no longer exists in the United States.  In practice, this separate spheres approach breaks down immediately, with the two levels of government often cooperating, sometimes clashing, but almost always interacting in one way or another in conducting their affairs.

There are two academic responses to this issue.  Under the “conventionalist” view, Pursley argues that because the Constitution is the supreme law of the land, adopted and continued in effect by acts of popular sovereignty, government practices simply must be invalidated if they violate it, regardless of their benefits.  The “compatibilist” response embraces these intergovernmental practices, arguing that they should be constitutionally permissible because of their instrumental benefits.  Pursley notes that Schapiro is a leading voice among the compatibilists, and Polyphonic Federalism is the first book-length defense of a general practice-based theory of federalism.  According to Schapiro, federalism doctrine should not focus on drawing lines between state and federal government, but on how to harness the dynamic interaction of these different realms.

Pursley’s review attempts to clarify and assess Schapiro’s effort to build a general normative case for compatibilism.  The resolution of the debate between the two academic views will have important ramifications for the different areas of law and policy in which interactive federalism practices are employed today.  By clarifying the positions and stakes, Pursley hopes to advance the debate.  He first situates Schapiro’s view within the debate and discusses the compatibilists’ shared descriptive thesis. He then attempts to identify Schapiro’s normative thesis on behalf of compatibilism by evaluating several possibilities.  He next provides two conventionalist rejoinders.

Pursley concludes that it is our decision rules that need modifications.  Deciding on the proper modifications involves practical reasoning, he writes, not abstract theorizing.  In this respect, Polyphonic Federalism is a formidable contribution.

The Common Man?

Marsha S. Berzon

89 Texas L. Rev. 1395

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In her review of Justice Brennan: Liberal Champion, Judge Marsha S. Berzon provides a unique perspective on the life and jurisprudence of the late Justice Brennan. Drawing on her experience as Justice Brennan’s first female law clerk, she argues that historians should not discount Justice Brennan’s progressive decision-making as a member of the court simply because he was reluctant to follow through with such ideals in his own personal life. Instead, she admires his ability to recognize sexual discrimination as wrong, even prior to fully divorcing himself from engaging in such discrimination. In her review, she recounts the story of her clerkship application, starting in rejection and ending in a rewarding position in Justice Brennan’s chambers.

Believing in the Goodness of People

Larry Kramer

89 Texas L. Rev. 1403

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Judicial biography, writes Dean Larry Kramer, is a difficult genre.  The work of judges is not often exciting and cases that a judge decides tend to make up the substance of a judicial life.  But, Kramer notes, reading about lawsuits can be less than stimulating.

In reviewing Justice Brennan: Liberal Champion, Kramer finds the authors “were unable to surmount the inherent limitations of the genre.”  Kramer notes that the authors faced some serious constraints: Justice Brennan’s life was not particularly interesting before he went on the bench, he was involved in almost nothing off the bench, and he was extremely reserved in and about his personal life.  Although Brennan was a friendly, gregarious, and likeable person, Kramer thinks that these qualities themselves made up a form of reserve.

Another problem Kramer highlights is that the biography took twenty-five years to complete.  547 pages, the majority of which describe case decisions, is too much, no matter the quality of the writing.  The authors do, however, include some interesting facts throughout.  For example, Justice Brennan experienced discomfort with women clerks.  Also, he was the Court’s only member with prior judicial experience when he was appointed.

The more important question, argues Kramer, is how did this ordinary man become such an extraordinary judge?  Kramer spends some time discussing Brennan’s legacy and his accomplishments as a judge.  Brennan was a coalition builder and a leader among his colleagues.  Kramer thinks that part of his success in these roles is due to the fact that Brennan was someone who did not hate.  That is, he was without anger, without malice, and without bitterness.  Indeed, writes Kramer, he “had a genuine, almost automatic, empathy for everyone and everything.”  It was Brennan’s ability to inspire people, both personally and through his opinions, to strive to do and be better for which Kramer will remember him.

Our Liberalism

Frank I. Michelman

89 Texas L. Rev. 1409

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Stern and Wermiel, writes Professor Michelman, claim that Justice Brennan: Liberal Champion is a tale of surprise.  Not only did Brennan’s service on the U.S. Supreme Court turn out liberal, but it also turned out to be historically momentous, as Brennan became arguably the most influential justice of the entire twentieth century, not to mention the most forceful and effective liberal ever to serve on the Court.

Michelman looks closely at these claims.  He notes that Holmes and Brandeis may challene Brennan as the most influential justice of the twentieth century. Michelman also questions the second claim, wondering whether Brandeis, Frankfurter, Warren, Black, Douglas, or Marshall might have better claims to being the champion liberal justice in the Court’s history.

Michelman makes note of the celebratory tone of the book regarding Brennan’s liberalism, which never expresses doubt about Brennan’s liberal cause.  But Michelman is unsure exactly how Brennan’s liberalism should be classified.  While the book provides a profile of it in the form of data points, Michelman writes that it is left to the reader “to connect the dots as liberalism.”  He argues that Brennan is not a classical or pragmatist liberal, as Brennan was “a stout defender of the uses of reverse race-based discrimination, of the state’s power to impair undoubtedly lawful property holdings for non-urgent reasons, of ‘welfare’ at taxpayer expense.” He also acknowledges that the authors are not writing as general historians but instead might be identifying Brennan as a liberal within the contemporary political polemical meaning of the word.  But he does not think this is quite right either.

Instead, Michelman argues that the best fit is “‘liberal’ in a sense akin to what Rawlsian political philosophy has in mind.”  He thinks this is what the Stern and Wermiel meant by the word, even if they didn’t intentionally say so.  The egalitarian views of the Rawlsian group liberals with which Brennan should be identified, writes Michelman, come “from the political–philosophical ideas of Immanuel Kant.”  He then details how Brennan’s judicial views align with this group of liberal thinkers.  Michelman finds it somewhat surprising that the authors have such a historically recent philosophical turn on the term “liberal.”

A Justice for All Seasons

Robert M O‘Neil

89 Texas L. Rev. 1417

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In the opening of his review, Professor O’Neil states that “[a]ny lingering doubt [about the durability Justice Brennan’s legacy on the Supreme Court] has now been allayed by the publication of Stephen Wermiel’s and Seth Stern’s prodigious biography,” Justice Brennan: Liberal Champion.

O’Neil details how Brennan selected Wermiel to be his official biographer in the 1980s.  Wermiel enjoyed great access to both the confidential papers and personal insights of Brennan.  Wermiel also continued gathering material after Brennan’s retirement, joining the Justice and his former clerks for their annual dinner.  In the 1990s, amid fear that the biography would not be published, Seth Stern joined Wermiel in the writing and researching to accelerate the process to its completion.

This extensive process helped correct some historical inaccuracies.  For example, President Eisenhower was said to have expressed regret over his Supreme Court selections (Brennan and Warren), calling them his two mistakes, which he never actually did.

O’Neil also notes that “a striking value of the book is the authors’ capacity to distill areas of emphasis that transcend chronology.”  One such area is Brennan’s role as a judicial colleague, which included his notable ability “to craft tenuous majorities for important civil rights and liberties.”  Another important role for Brennan was that of mentor to his clerks.

O’Neil writes that the authors have been “realistic about the limitations of an ultimately imperfect ‘champion.’”  They include coverage of a variety of challenges Brennan faces, such as his first wife’s illness as well as the family’s persistent penury.  For details of family and collegial insights, the authors were forced to rely by necessity on “Nancy Brennan as the sole actively involved family survivor.”  O’Neil adds a word of caution in this respect.

O’Neil lastly discusses the authors’ characterizations of the Justice, such as “liberal” and “First Amendment champion.”  He notes that much has been written already about these issues, and concludes that “one should read Liberal Champion with full realization of the limitations and imperfections of its subject, but with no lesser measure of admiration both for the Justice and for the long-sought but most welcome biography.”