Download Commentary: Constitutional Structure in Latin America

Commentary: Constitutional Structure in Latin
America
Jonathan Hartlyn*
Constitutional structure is important to study because we believe it is
often linked with things we care about such as good governance, democracy,
economic and social well-being, or justice, though we continue to debate
when as cause, when as consequence, and when in a linked interactive
fashion. And, it is also important to study changes in constitutional structure
which are sometimes invoked by politicians, or social actors, or academics as
key ways to solve fundamental challenges of their societies.
Because this is potentially such a large topic authors typically narrow
their focus. Authors can choose to focus on different types of changes in
constitutional structures, such as by replacement, or by reform or
amendment, our due to evolving judicial interpretation, or by evolution in
informal rules or norms. Or, they may choose to focus also on incorporating
related elements, such as electoral systems, viewed as central to the regulation of political life in the country, and then, within them, on different
subsets of provisions within these changes.
The article by José Antonio Cheibub, Zachary Elkins, and Tom
Ginsburg focuses on changes in a set of provisions relating to
executivelegislative balance of power in the context of constitutional
replacements.1 These replacements are defined generally as a constitutional
revision carried out without following the amending procedure of the
existing constitution, or based on the classification in historical texts.2 In
turn, Claudio Fuentes focuses specifically on constitutional change in Chile
over a two decade period—a case specifically of reform, not replacement, of
the 1980 authoritarian constitution of General Augusto Pinochet.3 Gabriel
Negretto examines political and electoral reforms broadly, not distinguishing
between replacements or reforms and incorporating electoral measures as
well.4 And Andrea Pozas-Loyo and Julio Ríos-Figueroa, in turn, focus
specifically on amendment and reform as opposed to replacement or broad
* Senior Associate Dean for Social Sciences and International Programs, and Kennth J.
Reckford Distinguished Professor of Political Science, University of North Carolina.
1. José Antonio Cheibub, Zachary Elkins & Tom Ginsburg, Latin American Presidentialism in
Comparative and Historical Perspective, 89 TEXAS L. REV. 1707 (2011).
2. See ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL
CONSTITUTIONS 55 & n.22 (2009).
3. Claudio A. Fuentes, A Matter of the Few: Dynamics of Constitutional Change in Chile,
1990–2010, 89 TEXAS L. REV. 1741 (2011).
4. Gabriel L. Negretto, Shifting Constitutional Designs in Latin America: A Two-Level
Explanation, 89 TEXAS L. REV. 1777 (2011).
1978
Texas Law Review
[Vol. 89:1977
scope constitutional change to demonstrate how the judiciary comprise a
political actor which can protect their autonomy and influence.5
All four of these are excellent articles. Though the authors are looking
at somewhat different things, as noted, they do talk to each other, as I will try
to draw out below. Each of these articles also represents the tip of an iceberg
for the author or authors: an introduction to a much broader agenda for
further research on an important topic in which they are involved, and laying
out that agenda could usefully be drawn out more explicitly in their
conclusions.
The division of labor agreed upon between me and John Ferejohn, the
other panel commentator, is that I would focus primarily on the articles by
Chelkinsburg (José Cheibub, Zach Elkins and Tom Ginsburg) and by
Claudio Fuentes. Let me then turn to the article by Cheibub et al. on Latin
American Presidentialism in Comparative and Historical Perspective.
Scholars have been chipping away at the analytical wall put up between
parliamentary and presidential systems for some time. With regard to the
notion that parliamentary systems provide powerful incentives for coalitional
behavior absent in presidential systems, José Cheibub, Cecilia Martínez
Gallardo, my colleague in Political Science at the University of North
Carolina at Chapel Hill, and others6 have been examining how coalition
behavior and dynamics actually work in presidential systems and finding
quite a bit of it. And now, José, Zach, and Tom are seeking to push the envelope further, saying that the presidential–parliamentary distinction really
may not matter at all on certain critical dimensions, such as executive
lawmaking authority—where region trumps democratic regime type.
I do agree with them that Latin American presidents have had
extraordinary legislative powers. Indeed, it has been a long-standing view
that presidents in Latin American have had extensive powerful formal constitutional powers compared to other national executives, including
particularly the U.S. President.7 It is valuable to see this now placed in a
broader, updated comparative frame of reference, with a set of extensive,
carefully chosen measures, and with an ability to track changes over time
more systematically than before thanks to the impressive dataset of the
Comparative Constitutions Project.8 The notion that in the end the
differences they highlight may be as important or more important than the
5. Andrea Pozas-Loyo & Julio Ríos-Figueroa, The Politics of Amendment Processes: Supreme
Court Influence in the Design of Judicial Councils, 89 TEXAS L. REV. 1807 (2011).
6. See JOSÉ ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM AND DEMOCRACY
(2007); Octavio Amorim Neto, The Presidential Calculus: Executive Policy Making and Cabinet
Formation in the Americas, 39 COMP. POL. STUD. 415 (2006); Cecilia Martínez Gallardo, Coalition
Duration in Presidential Systems (Aug. 2008) (conference paper).
7. See Jonathan Hartlyn & Arturo Valenzuela, Democracy in Latin America since 1930, in VI
CAMBRIDGE HISTORY OF LATIN AMERICA, PT. 2: LATIN AMERICA SINCE 1930: ECONOMY,
SOCIETY AND POLITICS 99 (Leslie Bethell ed., 1994).
8. COMPARATIVE CONSTITUTIONS PROJECT, http://www.comparativeconstitutionsproject.org.
2011]
Commentary: Constitutional Structure in Latin America
1979
presidential–parliamentary distinction certainly will attract attention.
However, I have several questions and qualifications.
First, there is the question of which features of presidentialism should
one focus on. In their article, Cheibub et al. make the argument, with which I
agree, that the U.S. and Latin American presidential systems are similar because the executive is popularly elected and does not need the confidence of
the legislature to remain in office. However, there are other important similar features which are significant and could be addressed. One is the issue of
the dual legitimacy of the executive and the legislature, since both are popularly elected. Another similarity—in contrast to parliamentary systems—is
that as a result of this, in a presidential system the head of state and the head
of government are the same individual.
The article is also correct in noting that presidentialism has been very
“sticky” in Latin America, in spite of frequent constitutional replacements in
the region. One remarkable example is Colombia: when the Conservative
and Liberal parties agreed to divide power equally between them in the consociational National Front arrangement, with perfect parity in congress, in
the judiciary, in the cabinet, and in appointed governors and mayors, instead
of a plural executive of some type, they opted instead for alternation in the
presidency between the two parties. Yet, the article could cite and explore
further Uruguay’s two unhappy experiences with a plural executive.
One of the most dramatic findings in the article is with regard to the
growth in formal executive powers in Latin America, particularly in terms of
the ability to propose constitutional amendments and budget legislation,
initiate ordinary legislation, and possess decree powers. A central issue
which should be addressed is whether the formal legal changes represent for
each country in which it took place an actual change in de facto presidential
power, or whether—as greater respect for congruence between de facto and
de jure powers grew—there was pressure to “constitutionalize” what was
already in fact informal practice. Some past analyses of presidential power
have sometimes mischaracterized actual presidential budgetary and decree
powers through a strict reliance on formal texts.9 Over the extensive time
period in which the article makes comparisons, from the nineteenth century
into the twenty-first century, there may well also be a secular change toward
greater respect for formal institutions and constitutional texts. Since the
number of countries is relatively small, it might be worthwhile to do some
comparative case study analysis.
Another powerful point made in the article is that the story is more one
of change and of greater convergence over time than of stability. However,
if in fact the change is more to bring de jure norms in line with actual
practice, then there is even more reason to believe that executive dominance
9. Cf. JONATHAN HARTLYN, THE STRUGGLE FOR DEMOCRATIC POLITICS IN THE DOMINICAN
REPUBLIC 218 (1999).
1980
Texas Law Review
[Vol. 89:1977
started out strong in the region. At the same time, the story of convergence
appears to emerge only after World War II, when the first quantifiable
increase in similarity across constitutions in Latin America is found (see their
Appendix D).10 Interpreting constitutional similarities in the period before
1870 is also difficult given the region’s dramatic history of instability and
civil wars and the absence or just the beginnings of state formation. In
addition, there was initial experimentation with various constitutional forms:
Roberto Gargarella has discussed three constitutional models which were
present in the nineteenth century, with the liberal and conservative models
winning out over a more radical model by the end of that century.11
Finally, in terms of convergence over time, the article may be too
unidimensional in what it focuses on, as it contrasts the U.S. President and
Latin American presidents exclusively along the dimension of the balance of
power between executives and legislatures. The article sometimes slips into
arguing more broadly that what we are observing is an expansion of
executive powers in the region, whereas the article is focused on only one
(admittedly important) dimension, executive lawmaking powers. I was
thinking this already, and then I read the article by Gabriel Negretto for this
panel. In this article, he explicitly draws out the contrasting pattern between
the president’s legislative powers in Latin America, in which he concurs with
Cheibub et al. that these have grown over time in the region, and the
president’s government powers, which he finds have not because of growing
congressional power over cabinets, growth in political decentralization, and
greater judicial independence from the executive, among other measures.
Similarly, Negretto’s article emphasizes that contemporary trends in electoral
rule changes have also not all favored executive power concentration. In
addition to these features, in recent years many constitutions in the region
have also introduced elements of direct democracy, including in some countries the popular recall of presidents. Thus, the article by Negretto and these
other issues raise the question whether the convergence pattern identified by
these authors holds across different dimensions of executive power, which
could potentially impact their cross-regional comparisons as well. As these
comments suggest, this is an important project, which raises significant
issues, and I look forward to seeing more work from it.
Claudio Fuentes is also embarking on an ambitious and important
project on constitutional change in Chile, one that places the constitutional
reform process in Chile in a broad theoretical and comparative context, while
carrying out important empirical research including interviews with many of
the central actors and the systematization of key data.
Overall, I find the analysis in this article convincing, in terms of the
central role of the executive in implementing constitutional reform in the
10. Cheibub, Elkins & Ginsburg, supra note 1, at 1736.
11. ROBERTO GARGARELLA, THE LEGAL FOUNDATIONS OF INEQUALITY (2010).
2011]
Commentary: Constitutional Structure in Latin America
1981
post-Pinochet period and regarding why the minority political force on the
right, which had effective veto power regarding constitutional reform, shifted
over time to accept significant constitutional change, leading to the significant reform of 2005. However, in asking why Chile contrasts with other
countries in terms of retaining such a strongly presidentialist constitution and
enacting reform only (not replacement) in such a controlled fashion, I think
he underplays one feature which sets Chile apart in the Latin American
context: on measures of stateness and of rule of law (not necessarily
democratic rule of law), Chile comes out higher than other countries in the
region and has for some time. It is in this context that democratic actors
carried out the transition from authoritarian rule fundamentally respecting the
rules of the game and won, by defeating Pinochet in the 1988 plebiscite.
Although it is true that Chile and Peru are the only South American contemporary cases which did not replace their Constitution inherited from an
authoritarian regime via a constituent assembly, as noted in the article’s
Table 1,12 there are several country cases elsewhere in the region that fall in
the same category, such as the Dominican Republic and several Central
American countries. However, it remains the case that Peru and these other
countries are similar in having much less historical experience than Chile
with regard to constitutionalism, stateness, and democracy.
Thus, Chile does seem distinct in terms of the cautious, subdued nature
of the process driven by a respect for the rules of the game and a mindset of
reform and gradualism. Given these features of the Chilean experience, it
does not seem that surprising to me that an initial constituent assembly was
not considered possible and that Chilean democratic leaders did not opt to
seek a more radical route of constitutional replacement. As is evident in
Venezuela, Ecuador, and Bolivia, this process typically follows a period of
sustained economic crisis, and serial party and even party system
delegitimation, and typically involves a highly popular president with a broad
ambitious agenda for social as well as political change, initially blocked by
an opposition Congress, pursuing a complex process of constituent assembly
election, enactment of a new constitution, and eventually congressional
closure.
In contrast, there is a very telling quote in Claudio’s article from thenopposition politician Patricio Aylwin, explaining his thinking in the 1980s
about the peaceful struggle for democracy: there was a need “to deliberately
avoid the theme of [the constitution’s] legitimacy.”13 Given that type of
mindset, the 1989 reform, as Claudio analyzes so well, which otherwise
appears hopefully minimalist and unsatisfactory, in fact did set the stage for
making subsequent constitutional reform easier by changing some of the
rules of the game. Especially from a contemporary perspective, the Chilean
Coalition of Parties for Democracy (CPD—Concertación de Partidos por la
12. Fuentes, supra note 3, at 1750 tbl.1.
13. Id. at 1762.
1982
Texas Law Review
[Vol. 89:1977
Democracia) center-left coalition, which on the one hand was the most
successful coalition government in the entire region during this time period,
governing Chile from 1990 to 2005 and successfully winning 3 re-elections,
also strikes us as excessively cautious. What may be useful to pursue more
in the article or in subsequent research is the counterfactual of a more
confrontational and thus inevitably also a more mobilizational strategy earlier
on, as apparently Ricardo Lagos sought to do.
The article does an excellent job explaining how the CPD governing
coalition sought constitutional reform—in its gradual, elitist way—from
early on and how its efforts picked up dramatically once Lagos was elected
President. Here, the article by Andrea and Julio raises an important issue
which is somewhat underanalyzed in Claudio’s article: how did the views of
key state actors, such as the military and of the judiciary, evolve over time, as
Pinochet was arrested abroad, came back to Chile, and was eventually delegitimized even regarding personal corruption. How did their links, and those
of the business sector, with the parties of the right evolve over this time
period? Also relevant for future reseach would be the question of what
elements of the constitution inherited from the Pinochet military regime the
CPD, and particularly the executive branch (granted so many effective
powers), found attractive, and whether that potentially slowed change at all.
Did the CPD coalition not push harder for reform exclusively because of the
perceived inability to convince rightist elements in Congress? And, a more
systematic analysis of the changing political context for the right leading up
to the significant reforms enacted in 2005 could usefully include public
opinion data as another indicator of the electoral pressures felt by these
political actors.
Chile is a relative outlier in the Latin American context, which makes
issues of diffusion especially interesting. As the article notes, diffusion of
political ideas is seen as important in generating constitutional change,
especially constitutional replacements. Clearly the Chilean model itself is
not diffusing to the rest of the region. Rather, the question is whether in this
case there was “negative diffusion”—I wonder if in his interviews with party
leaders they talked about experiences elsewhere on the continent as lessons
to be learned about what not to do?
Whether countries have had recent constitutional replacements or more
limited reforms like in Chile, one thing that is clear is that both of these
appear to be catalysts for further reforms, rather than representing a clear
resolution among key actors about the rules of the game under which ordinary politics should be pursued going forward. Claudio Fuentes notes this
for the case of Chile. And, regarding more ambitious constitutional
replacements, given their highly specific nature or the ambiguities and
tensions found in their texts, which political actors subsequently seek to
modify or adapt for their advantage, the pattern in the region has been one of
on-going constitutional debate and modification. In contemporary Latin
America, both political and social actors understand democratic politics to be
2011]
Commentary: Constitutional Structure in Latin America
1983
as much about the rules of the game as about political conflict within certain
rules. This bodes well for the research agendas of all the authors on this
panel.