Constitutionalism: Old Dilemmas, New Insights, 'proceedings from the XIII Academic Conference of the Colombian Constitutional Court'

437 Pages·3.063 MB·English

by  Alejandro Linares Cantillo, Camilo Valdivieso-León, Santiago García-Jaramillo

Introduction
Alejandro Linares-C antillo D
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This book is a compilation of the twenty essays prepared for the occasion of the XIII fro
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conference of the Constitutional Court of the Republic of Colombia held in Bogotá h
in January 2019. Following the accustomed annual tradition, during my year as Chief ttp
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Justice of the Colombian Constitutional Court (2018–2 019) it was among my responsi- ://a
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bilities to organize and host an academic conference to discuss constitutional law issues a
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which are of great interest to the academia and the Court itself. For the XIII conference, m
I decided to invite professors and scholars from Colombia and abroad to exchange views ic.o
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on and debate current trends in constitutionalism. By current trends, I mean mostly the p
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classical debates, but with the novel approaches arising from the Colombian historical o
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and political context in particular. Although constitutional judges are sometimes por- /b
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trayed as not being open to criticism, I chose to focus the agenda on a critical approach ok
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towards the role of the Colombian Constitutional Court. Therefore, the idea was to have, 0
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as a source of inspiration, a critical reflection on our role from the academia. When I em- 00
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barked on this project, I believed it was going to be an easy task. After all, the Colombian h
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Constitutional Court is a bulwark of constitutionalism, even considered ‘one of the most pte
powerful courts in the world’. 1 Therefore, inviting diverse professors and scholars to ap- r/3
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praise the Colombian experience did not seem a complex enterprise. 0
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As I started to reach out to leading international scholars and professors from 6
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around the world, I learned a lesson of judicial humility. I understood that our court, 4
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even as admired and important as it might be, has not been broadly studied by for- y

eign academics. Moreover, there are very few publications on our court in the English
language available for an Anglophone audience.2 In addition, I found out that gath-
ering this ‘dream team’ of national and international scholars demanded an impressive
amount of work, since they all had previous and compelling commitments. Finally,
it was hard to think of a dialogue between philosophers, who usually take a more a
‘normative’ approach towards discussions in constitutional law, and professors with
1 Stephen Gardbaum, ‘What Makes for More or Less Powerful Constitutional Courts?’ (2018) 29 Duke
Journal of Comparative & International Law 1–4 0; David Landau, ‘Political Institutions and Judicial Role in
Comparative Constitutional Law’ (2010) 51 Harvard Law Journal 319.
2 The most important one being Manuel José Cepeda- Espinosa & David Landau, Colombian
Constitutional Law: Leading Cases (Oxford: Oxford University Press, 2017). See also Manuel José Cepeda-
Espinosa, ‘Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian
Constitutional Court’ (2004) 3 Washington University Global Studies Law Review 529; Santiago Garcia-
Jaramillo, ‘Colombian Constitutionalism: Challenging Judicial Supremacy through Pluralism’ (2019) 2
International Comparative, Policy and Ethics Law Review 317; Samuel Issacharoff, Fragile Democracies.
Contested Power in the Era of Constitutional Courts (Cambridge: Cambridge University Press, 2015); David
Landau, ‘A Dynamic Theory of Judicial Role’ (2014) 55 Boston College Law Review 1501, among others.
Alejandro Linares-C antillo, Introduction In: Constitutionalism, New Insights. Edited by: Alejandro Linares- Cantillo,
Camilo Valdivieso- Leon, Santiago García- Jarmillo, Oxford University Press (2021). © The various contributors.
DOI: 10.1093/ oso/9 780192896759.003.0001
4 INTRODUCTION
an ‘empirical’ stance towards constitutional law. Fortunately, after months of planning
and hard work, the conference was an academic success, and this collective work, as
a collection of essays, reflects the numerous ideas and opinions written by scholars
and international professors on the role of a constitutional court. At the end of the
day, it was rewarding to see leading scholars from around the world making an effort
to engage and establish a conversation not only with the Court, but also with local D
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academics. n
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The lessons of the book are worth reviewing for comparative scholars, as well as by a
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constitutional and regional courts. The reader will find that this book tries to bridge ed
normative with empirical discussions, domestic with regional and foreign issues, fro
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‘Global South’ approaches with ‘Global North’ stances on human rights, use of prece- h
dents, and transitional justice. This openness to hearing different points of view taught ttp
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me a second lesson of judicial humility: our court, in its almost thirty years of exist- ://a
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ence, has developed creative and innovative precedents, but our history, the difficulties a
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we have confronted, and even our jurisprudence, are not unique in the world of con- m
stitutionalism. Therefore, this book is also an invitation to be aware that constitutional ic.o
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law is context- dependent, as it aims at making sense in a particular society and time. p
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In addition, the book proposes that conceiving the possibility of levelling and reaching o
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a universal constitutionalism is not only utopic but counterfactual. However, it also /b
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offers an interesting perspective to abandon constitutional parochialism and dogma- ok
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tism, to the extent that experiences from other regions, as well as critical normative 0
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positions on constitutionalism, can nourish and enlighten our national debates. 00
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This collection of twenty chapters is divided into three thematic parts which il- h
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lustrate five subjects at the spotlight of comparative constitutional law in light of the pte
growing circulation and intensification of the idea of constitutionalism. Part I exam- r/3
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ines the evolving and leading role of constitutional courts in constitutional democra- 0
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cies. Part II allows constitutional experiences to speak for themselves and discusses 6
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tensions and debates in three topics: (1) the growing trend to judicially enforce ‘con- 4
stitutional unamendability’3 under the doctrine of ‘unconstitutional constitutional by

amendments’; (2) the idea of ‘transformative constitutionalism’ in the area of social
rights enforcement; and (3) the models of transitional justice and their implementa-
tion in the Colombian case. Finally, Part III analyses vertical and horizontal move-
ments of constitutional law doctrines and decisions.
* * *
Part I: The Role of Constitutional Courts in a
Modern Democracy
A. Hercules at the Crossroads
Constitutional courts are today in the spotlight of legal, political, and social
battles. Judges around the world try to imitate the ‘Herculean Judge’ described
3 The term is taken from Yaniv Roznai, Unconstitutional Constitutional Amendments (Oxford: Oxford
University Press, 2018).
ROLE OF Constitutional COURTS IN A MODERN DEMOCRACY 5
by Dworkin,4 by deciding more and more cases in their forum of principles,5
relying on opened- texture and highly moralized clauses included in many con-
stitutions. It is hard to think that Justice Marshall in 18036 or Hans Kelsen7 at
the beginning of the twentieth century would anticipate what judicial review
would become, and the centrality it would take, in solving moral-p olitical dis-
putes. While many theorists see judicial review as a necessary consequence of D
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the supremacy of the constitution, considering its legally binding nature, the n
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essays included in Part I of this book will cast some doubt on the necessary a
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link between constitutionalism and strong judicial review, while also inviting ed
the reader to analyse the rise of constitutional courts from a moral- political and fro
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historical point of view. h
Part I will revert to the classical debates on the role of constitutional judges. From a ttp
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normative stance, and by relying on legal and political philosophy, it will raise objec- ://a
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tions to the prominent role that judges have gained around the world. However, they a
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will not be grounded solely on the classical counter-m ajoritarian objection. This first m
part will also engage in interpretative questions, it will focus on the existence or not ic.o
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of ‘correct answers’ in constitutional hard cases, as well as in the institutional designs p
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needed to instantiate the quest for at least, a ‘good answer’. In fact, Part I aims to ex- o
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amine the evolving roles of constitutional courts. This section bridges a moral political /b
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discussion on the legitimacy of powers conferred to constitutional courts to interpret ok
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the constitution, with an institutional design study, and a factual analysis of a concrete 0
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constitutional jurisdiction. 00
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Two philosophers with a long-t ime struggle with constitutionalism open this h
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chapter, Andrei Marmor and Wil Waluchow. First, Marmor in his chapter, entitled pte
‘Constitutionalism, Liberalism and Democracy’, sets the tone of the discussion by ex- r/3
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posing his scepticism towards constitutional courts. He describes the tension between 0
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our commitment to democratic decision- making procedures and constitutional judi- 6
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cial review, showing that the liberal values that justify a democratic self-g overnment 4
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may also vindicate some limits on majoritarian decision- making procedures, but not y

necessarily in the form of the constitutional regimes that we have. In his point of view
constitutional courts are not a necessary feature of a liberal regime. And it is at this
point that the reader will find a challenge to our faith in constitutional courts: Marmor
acknowledges that democratic decision making has many defects (the fate of persis-
tent vulnerable minorities, the tendency towards shortsightedness, a similar tendency
to downplay people’s rights and liberties for the sake of greater economic gains or in
the force of external threats, and finally the dangers of populism and antiliberal poli-
tics gaining ground within a democratic system), but at the same time he doubts that
courts will be able to deliver satisfactory results in these areas. In fact— by relying in
the US experience—M armor depicts courts as essentially conservative institutions
which are not, and cannot be, as counter-m ajoritarian as depicted by legal scholars,
mainly because their legitimacy and the acceptance of their decisions depends on
4 Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986).
5 Ronald Dworkin, ‘The Forum of Principle’ (1981) 56 New York University Law Review 469.
6 See Madison v Marbury, 5 US 137 (1803).
7 See Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of
Constitutional Law (Cambridge: Cambridge University Press, 2015).
6 INTRODUCTION
the people. Marmor, as a prominent legal positivist, believes that the acceptance and
efficacy of judicial review is context- dependent, but that some fights still need to be
fought in the political, not the legal arena.
To counteract this attack on constitutionalism, his old- time opponent, Wil
Waluchow, in his chapter, entitled ‘The Misconceived Quest for the Elusive Right
Answer or Dedication to a Process, Not a Result’, considers that constitutional courts D
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must commit to a process rather than a result. He acknowledges that judges making n
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political decisions have a considerable margin of discretion, and their cases fall into a
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the ‘hard cases’ arena, as famously called by H. L. A. Hart.8 As such, Waluchow be- ed
lieves that the answer to the interpretative concerns over constitutional judges should fro
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not be overcome by relying on the idea of a unique correct answer, as proposed by h
Dworkin, but rather by a dedication to the decision-m aking process, which presup- ttp
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poses the display of judicial virtues that Hart famously enumerated.9 For Waluchow ://a
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it is clear that, even if constitutional judges confront several ‘hard cases’ where discre- a
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tion is at hand, judicial discretion does not consist of unbridled choice on the part of m
the one who exercises it. Waluchow revisits his idea of the ‘Community Constitutional ic.o
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Morality’, under which each legal system instantiates a set of moral values embedded p
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in its constitution from which judges should not depart; it is the constitution and the o
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local social practice that determines such ‘constitutional morality’, and not an ideal set /b
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of external objective morality. This idea mitigates the ‘counter-m ajoritarian’ objection, ok
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as judicial review would reflect the commitments deeply held by the society where it 0
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is being exercised. This proposal could be fertile soil for further research. It would be 00
necessary to consider how this proposal works in those ‘wicked legal systems’10 where /ch
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the ‘Community Constitutional Morality’ seems to be at odds with basic rights, or pte
the objection that courts, instead of being an antidote to those shortcomings of dem- r/3
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ocratic decision making— like the fate of persistent minorities— is simply becoming 0
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another institution aligned with the majoritarian views.11 6
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In line with this discussion on constitutional interpretation and institutional de- 4
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sign, Roberto Gargarella, in his chapter, entitled ‘Dialogic Constitutionalism in y

Defective Democracies’, initiates a conversation between the ‘Global South’ practice of
judicial review, and the institutional framework set forth by the US founding fathers
in the Federalist Papers. Gargarella’s aim is to demonstrate how progressive consti-
tutions of the Global South are ‘trapped’ by the Madisonian separation of powers. To
overcome this situation, Gargarella believes that the institutional framework needs
to be reshaped in order to accommodate the particular necessities of Latin American
societies. In this sense, he agrees with Marmor that institutional design is context-
dependent and needs to be fixed in line with particular moral-p olitical considerations.
To confront the objections raised by Marmor, Gargarella proposes rethinking the
whole system of checks and balances towards a more participatory ‘dialogic model’,
where constitutional courts are not entrusted with the final word on constitutional
8 See generally H. L. A. Hart, The Concept of Law (Oxford: Clarendon Law Series, 1961).
9 Ibid., at 205.
10 See David Dyzenhaus, Hard Cases in Wicked Legal Systems (Oxford: Oxford University Press, 2010).
11 See Andrei Marmor, Interpretation and Legal Theory (2nd edn, Oregon: Hart Publishing, 2005), 160– 2;
Andrei Marmor, ‘What is Law and What Counts as Law? The Separation Thesis in Context’ (2017) Cornell
Legal Studies Research Paper No. 17-3 4.
ROLE OF Constitutional COURTS IN A MODERN DEMOCRACY 7
interpretation— they would certainly have a word, but not the last one. This model
has certain similarities with the ‘departmentalist’ approach that has been suggested by
some prominent US scholars;12 however, it departs from this idea by focusing on mat-
ters like social and economic rights, whose judicial enforcement has been mainly the
domain of ‘Global South’ constitutionalism.
Part I concludes with an empirical chapter, departing from the philosophical, nor- D
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mative discussions to give the reader a valuable lesson in Colombian constitutional his- n
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tory and judicial politics. Mario Cajas, a Colombian professor, in his chapter, entitled a
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‘From the Public Action of Unconstitutionality of 1910 to the Constitutional Court of ed
1991: The Political and Legal Struggles for Constitutional Justice in Colombia’, pro- fro
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vides an interesting historical account of the Colombian constitutional jurisdiction h
since 1910, when the public unconstitutionality action was first introduced into our ttp
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legal system. Cajas’ historical research evidences how the creation of a constitutional ://a
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court is highly influenced by local history—a s argued by Marmor— and the promi- a
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nent role that local elites, in the political domain and legal academia, play within the m
consolidation of this process. Cajas demonstrates the idea that the institutional design ic.o
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to channel constitutionalism is context- dependent, but at the same time it is influ- p
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enced by debates from other jurisdictions. For instance, he evidenced in his paper that o
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the centralized Kelsenian model of judicial review13 profoundly influenced the crea- /b
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tion of the Colombian Constitutional Court. Hence, this chapter draws the readers’ ok
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attention to another persistent discussion in ‘Global South’ countries: the influence 0
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and use of legal transplants and how they are ‘translated’14 into the concrete polit- 00
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ical context and society. Alongside Gargarella, Cajas instantiates a dialogue between h
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‘Global North’ and ‘Global South’ regarding institutional design. Cajas is careful not to pte
assume that constitutionalism is a ‘one- size- fits- all’ idea, but his historical account in- r/3
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vites the reader to consider how judicial review migrated from Europe into the Latin- 0
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American context. 6
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One final topic, discussed by both Gargarella and Marmor refers to the current 4
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issue of ‘populism’, as a rising phenomenon in many countries around the world. It is y

interesting how both authors are sceptical about the role that courts can play to stop
or mitigate this phenomenon. While the ‘standard’ depiction of constitutional courts
as counter- majoritarian institutions makes us believe that apex courts are best situ-
ated to stop or at least limit populist impulses, Marmor maintains that courts need to
rely on the people’s acceptance and therefore are not truly in the best position to face
populism. On the other side, Gargarella believes that instead of curtailing democracy,
the best way to fight populism is by empowering democratic decision making and to
confront the persistent basic inequalities (political exclusion, democratic dissonance,
concentration of powers, hyper-p residentialism, among others). Even if the reader
does not share this point of view, it leads to an essential question in the faith one may
or may not have in judicial review, as both professors’ critiques depict an imperfect
12 See, among others, Kramer’s proposal in Larry Kramer, The People Themselves (Oxford: Oxford
University Press, 2005), and the reply by Post and Siegel in Robert Post & Reval Siegel, ‘Popular
Constitutionalism, Departmentalism, and Judicial Supremacy’ (2004) 92(4) California Law Review 1027.
13 Vinx (n. 7).
14 See Esteban Restrepo-S aldarriaga, ‘Inevitable Translations’ (2017) 4 Revista del Centro de Estudios
Constitucionales 111–6 8.
8 INTRODUCTION
solution, rather than an ultimate one, and call attention to the need to defend constitu-
tionalism and liberal values from the political arena.
It is now evident for the reader why in my mind, Part I is entitled ‘Hercules at the
Crossroads’. All the above- mentioned authors, despite their many theoretical ap-
proaches and differences, converge in the idea that there is more than mere textual
analysis deployed by constitutional courts, and more than just the ‘positive’ or formal D
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enactment of a constitution for Constitutional Courts to consolidate their powers. In n
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the realm of institutional design, constitutional courts emerge in the midst of political a
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circumstances, which determine the extent and scope of their powers. In their current ed
role, judges intervene in highly contested moral- political and historical issues, with the fro
m
uncertainty on whether they are or are not in the best position to do so. The question of h
whether they should intervene in such complex moral- political issues, to what extent ttp
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they should, and the interpretative tools they should employ remains a contested do- ://a
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main, that not even the all-m ighty Hercules judge could solve once and for all. a
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ic
* * * .o
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Part II: New Insights o
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While the topics discussed in this section are not new, the approach that the contribu- 00
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tors to this volume take towards those topics are aimed at introducing new insights, h
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perspectives, ideas, dilemmas, and proposals in the areas of constitutional amend- pte
ments, the judicial enforcement of social and economic rights, and transitional justice. r/3
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In Part II, the reader will engage in normative and empirical discussions, and in an on- 0
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going dialogue between the so called ‘Global South’ and ‘Global North’ constitutional 6
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doctrines. In these examples from different jurisdictions, this section offers three sim- 4
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ilar constitutional issues which do not necessarily lead to similar solutions. y

A. We the People or We the Judges—Th e Judicial Enforcement
of Unconstitutional Constitutional Amendments’ Theory
The discussion on unamendability in law, and vis-à - vis fundamental laws, is hardly a
fresh topic.15 Melissa Schwartzberg, for example, has carried out an exhaustive study
on how it was a recurrent topic in classical Greece, how it was discussed in the fun-
damental laws of the Middle Ages, and also in the US Constitution— which includes
the unamendable clause of equal representation in Senate, and the sunset clause re-
garding the slave trade.16 However, as Schwartzberg and Roznai acknowledge, two
15 Tierney traces it back to the discussions on the constitution of the Catholic Church and the extent
of papal authority for the ‘edification’ and not for the ‘destruction’ of the Church Constitution. See Brian
Tierney, Religion Law and the Growth of Constitutional Thought, 1150-1 650 (Cambridge: Cambridge
University Press, 1982), 64.
16 See Melissa Schwartzberg, Democracy and Legal Change (Cambridge:  Cambridge University
Press, 2007).
New Insights 9
landmark events have boosted the development of constitutional unamendability.
In the explicit form, the German Basic Law of 1949, with its unamendability clause
comprising human dignity and other fundamental values; and in its implicit approach,
the basic structure doctrine set forth by the Indian Supreme Court in Kesavananda
Bharati v State of Kerala of 1973, by reaffirming and extending the idea proposed in
1967 in Golaknath v State of Punjab. As Yaniv Roznai illustrates in his seminal work D
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‘Unconstitutional Constitutional Amendments’, there is a worldwide trend towards n
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constitutional unamendability. Not only have more constitutions included explicit a
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unamendable clauses, but apex courts around the world are enabling themselves to be ed
the guardians of the implicit ‘basic structure of the constitution’.17 fro
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As Cajas has illustrated in his chapter, it is quite interesting that in Colombia the h
doctrine of implicit unamendability was enforced by our Supreme Court as early as ttp
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1978, perhaps inspired silently by the Indian Kesavananda decision in 1973. In 1977, ://a
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the Colombian Congress approved summoning a limited ‘constitutional assembly’, a
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with the specific purpose of amending the judicial branch and the territorial entities, m
and among others, creating a constitutional court, in spite of the fact that the 1886 ic.o
u
Colombian constitution only allowed amendments by Congress. The Supreme Court p
.c
of the time, in a highly divided decision, stated that the amendment power is inher- o
m
ently limited, as it cannot be delegated by Congress to a constitutional assembly. Thus, /b
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as the power to amend the constitution had to be considered a limited competence, ok
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only entrusted to Congress, it was the Supreme Court’s role, as the guardian of the 0
0
integrity of the constitution, to exercise an ultra vires judicial review to amendments 00
duly approved by the legislature.18 This precedent is not well known among compara- /ch
a
tive legal scholars, or in local academia, since we prefer discussing Decision C- 551 of pte
2003 of the Constitutional Court. In this 2003 decision, by relying on the Indian Basic r/3
4
Structure doctrine, the Schmittean conception of constituent powers and his doctrine 0
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2
of the ‘material’ constitution, the Colombian Court enumerated the ‘Constitutional 6
6
Replacement Theory’ while upholding most of the referendum.19 The Court thus 54
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limited the power of constitutional amendment on substantial grounds, precisely by y

those implicit salient features that make the basic structure of the constitution, and
consolidated the power of the Court to undertake such review, under the cloack of
an ultra vires20 doctrine. It should be noted, however, that the explicit text of the 1991
Colombian constitution limits the Court’s competence to review amendments only on
procedural grounds.
17 Roznai (n. 3).
18 In a Decision of 5 May 1978 the Chamber of Constitutional Affairs of the Colombian Supreme Court of
Justice (Justice José Mariá Velasco- Guerrero with Justice Guillermo González- Charry dissenting) declared
as unconstitutional the Legislative Act 2 of 19 December 1977. The purpose of this act was to summon a
Constitutional Assembly, following art. 213 of the 1886 Constitution, 2397 Gaceta Judicial, 91–1 25.
19 Thus applying what Dixon and Issacharoff term a second-o rder deferral or ‘Marbury Strategy’.
See Rosalind Dixon & Samuel Issacharoff, ‘Living to Fight Another Day: Judicial Deferral in Defense of
Democracy’(2016) Wisconsin Law Review 683.
20 For a comprehensive description on the use of this doctrine by the Colombian Constitutional
Court, see, inter- alia, Jorge Roa-R oa, Control de Constitucionalidad Deliberativo (Bogotá: CEPC and
Externado University Press, 2019); Vincente F. Benit́ez- Rojas, Constitución Popular, No Judicial. Una
teoría democrática del control de constitucionalidad de las reformas en Colombia (Bogotá: University of La
Sabana Press & Temis, 2014); Carlos Bernal- Pulido, ‘Unconstitutional Constitutional Amendments in the
10 INTRODUCTION
The Colombian Constitutional Court has become a landmark example of the ju-
dicial enforcement of implicit unamendability, as Issacharoff, Roznai, Celemin, and
Ginsburg will show in their contributions to this volume. Perhaps the main reason
for this reputation is that in 2010 the Court declared as unconstitutional a law sum-
moning a referendum that, if approved by the people, would have allowed the presi-
dent in office to run for a third term.21 The Constitutional Court, in Decision C- 1040 D
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of 2005, upheld a constitutional amendment allowing one presidential re- election and n
made it quite clear that only another term would pass its constitutional test.22 In this loa
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sense this precedent, as paradoxical as may sound, paved the way for halting the 2010 ed
proposed amendment. This case has gained worldwide recognition because, as shown fro
m
recently by Versteeg, it is the only successful case in the world of an apex court— or a h
successful rara avis23— to have put a halt to the consolidation of a powerful executive, ttp
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by means of altering the presidential terms in office.24 ://a
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The approach of this first section is rather more empirical. In fact, most of the a
d
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contributors are devoted to comparative constitutional law, and to the study of the m
intersection of law and politics. Again, a chapter focusing on the Colombian discus- ic.o
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sions around the use of the unconstitutional constitutional amendment doctrine is p
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included, to promote more comparative research based on the Colombian experience. o
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This first section of Part II begins with a chapter by Samuel Issacharoff entitled ‘Courts /b
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as Guarantors of Democracy’. Issacharoff has dedicated most of his academic life to ok
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the study of the rise of constitutionalism in new democracies; his ties to the ‘Global 0
0
South’ have compelled him to direct his research efforts at countries such as Colombia, 00
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India, and South Africa, which are studied in depth in this section. By focusing on h
a
these countries, Issacharoff states that in these times, courts have been forced into the pte
role of guarantors of the integrity of democratic institutions. He points out that le- r/3
4
gislatures are often dysfunctional, political parties are weak, and the critical faith of 0
3
2
common initiative among political rules has faded. By undertaking a deep analysis 6
6
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of Indian political and constitutional reasons for the ‘basic structure doctrine’, the 4
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y

Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement
Doctrine’ (2013) 11 International Journal of Constitutional Law 339; Mario Cajas-S arria, ‘Judicial Review
of Constitutional Amendments in Colombia: A Political and Historical Perspective, 1955–2 016’ (2017) 5
Theory and Practice of Legislation 245; Mario Cajas-S arria, El control judicial a la reforma constitucional.
Colombia, 1910–2 007 (Colombia: ICESI University Press, 2008); Cepeda-E spinosa (n. 2); Santiago García-
Jaramillo & Francisco Gnecco- Estrada, ‘La teoría de la sustitución: de la protección de la supremacía e
integridad de la constitución, a la aniquilación de la titularidad del poder de reforma constitucional en
el órgano legislativo’ (2016) 65 Universitas Javeriana 59; Gonzalo Ramírez-C leves, ‘El control material
de las reformas constitucionales mediante acto legislativo a partir de la jurisprudencia establecida en la
Sentencia C- 551 de 2003’ (2006) 18 Revista Derecho del Estado 3; Esteban Restrepo-S aldarriaga, ‘Reforma
Constitucional y Progreso Social: La “Constitucionalización de la Vida Cotidiana” en Colombia’ (2002)
SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers 14.
21 Decision C141 of 26 February 2010 invalidating Law no. 1354 of 2009
22 Samuel Issacharoff, Santiago García- Jaramillo, & Vicente F. Benítez- Rojas, ‘Judicial Review of
Presidential Re- Election Amendments in Colombia’ in Frauke Lachenmann and Rüdiger Wolfrum (eds),
Max Planck Encyclopaedia of Comparative Constitutional Law (Oxford: Oxford University Press, 2017),
https:// oxcon.ouplaw.com/v iew/ 10.1093/l aw- mpeccol/ law-m peccol- e820, accessed 10 June 2020. .
23 Ibid.
24 Mila Versteeg et al., ‘The Law and Politics of Presidential Term Limit Evasion’ (2020) 120 Columbia
Law Review 173.
New Insights 11
South African Constitutional Court’s decision rejecting the draft constitution to re-
place apartheid, and the decision of the Constitutional Court of Colombia to disallow
a president from running for a third consecutive term, Issacharoff concludes that apex
courts can play an ‘emergency role’ in the destiny of the democratic order, one that if
limited to extreme situations and exercised with caution, sound reasoning, and judi-
cial stewardship, can position judges in a good place to act as the guardians of deliber- D
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ative democracy, and even to put a halt to populism. n
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The second contribution in this first section of Part II is a chapter by Tom Ginsburg. a
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Ginsburg has studied the constitutions of several countries, especially those arising ed
from what is called the ‘third wave’ of democratization. In his chapter, entitled ‘The fro
m
Machinery of International Law and Democratic Backsliding: The Problem of Term h
Limits’, Ginsburg uses comparative constitutional law to cast some doubts on the nec- ttp
s
essarily good results that arise from apex courts enforcing the doctrine of unconsti- ://a
c
tutional constitutional amendments, and in this sense he invites us, in contrast to a
d
e
Issacharoff, to pause the faith in what courts can achieve as guardians of democra- m
cies, although he does not refute that they should play an important role. To cast these ic.o
u
doubts, Ginsburg studies the abuse of the doctrine of unconstitutional constitutional p
.c
amendments in Honduras, Bolivia, Sierra Leona, and Burkina Faso, and how in such o
m
contexts constitutional courts have become elements for legitimating autocratic re- /b
o
gimes rather than guardians of deliberative democracy. Ginsburg’s chapter reaffirms ok
/4
some of the normative questions raised in Part I of this book, especially the idea that 0
0
the efficacy and good results of judicial review must be viewed and evaluated in a 00
/c
context-d ependent analysis. h
a
Yaniv Roznai, in his chapter, entitled ‘The Straw that Broke the Constitution’s Back? pte
Qualitative Quantity in Judicial Review of Constitutional Amendments’, also contrib- r/3
4
utes to this comparative tour d’horizon on the judicial enforcement of the doctrine of 0
3
2
unconstitutional constitutional amendments. As stated, his comparative research has 6
6
5
become the milestone for any scholar or judge interested in the theoretical grounds of 4
b
this doctrine, as well as its migration to different jurisdictions. In his chapter, Roznai y

examines the doctrines of constitutional unamendability, and how they can coun-
teract revolutionary changes. He focuses mainly on developing the theory of quantity
transforming into quality in the realm of constitutional amendments: under certain
conditions, even small things can cause big changes. Roznai makes a deep theoretical
analysis based on philosophical and natural sciences theories, and then proceeds to
a more empirical approach. In fact, he takes the Colombian presidential re- election
amendment as an example, departing from the question of why a second consecutive
term is a valid constitutional amendment, while a third consecutive term is an un-
constitutional replacement, and thus an unconstitutional constitutional amendment.
He demonstrates how this ‘new’ re- election, seemingly a small change, subverted the
democratic structure of the Colombian 1991 constitution. Roznai faces the recurrent
criticism of the strong discretion that judges deploy when undertaking the judicial re-
view of constitutional amendments by relying on implicit principles. He proposes that
courts should consider the cumulative impact of a series of amendments affecting a
certain constitutional rule or set of principles, since most of the time the dismember-
ment of a constitutional democracy occurs via a series of small changes, rather than
by a single revolutionary change. By this approach, Roznai believes that constitutional
12 INTRODUCTION
courts will not disproportionately curtail democratic decision making, and might act,
as Issacharoff depicts them, as the guardians of constitutional democracies in the face
of populism and democratic decay.
In the final chapter, entitled ‘Between the Explicit and Implicit Limits? An Analysis
of Judicial Review of the Constitutional Amendment Doctrine in Colombia’, Andrea
Celemín illustrates the Colombian Constitutional Court’s explicit and implicit D
o
w
powers to undertake the judicial review of constitutional amendments. She first n
lo
describes and analyses the ‘explicit’ procedural limits of the Colombian 1991 con- a
d
stitution and the doctrine of implicit unamendability. Through a quantitative anal- ed
ysis of both types of judicial review, her chapter illustrates how the two approaches fro
m
have developed in Colombia, and how in that context, there is an inverse relation- h
ship between the claims based on implicit limits (increasing behaviour) and those ttp
s
of explicit limits (decreasing behaviour). In fact, from 2010 to 2017, more amend- ://a
c
ment bills were challenged as unconstitutional on the grounds of the constitutional a
d
e
replacement doctrine (unconstitutional constitutional amendments) than on the m
grounds of violation of procedural terms. However, in the same vein as Roznai, ic.o
u
Celemín sheds some insights on the discretion that judges deploy when enfor- p
.c
cing these implicit limits. In fact, she raises some criticism over the fact that the o
m
Colombian Court does not have a clear interpretation of its own competence and /b
o
scope to review constitutional amendments. In addition, Celemín claims that the ok
/4
excessive use of the doctrine of implicit unamendability has the undesired effect of 0
0
focusing only on these ‘substantive’ principles thus ‘relaxing’ procedural judicial re- 00
/c
view. This can give the wrong idea of a less strict examination of the compliance with h
a
the rules governing the constitutional amendment process and therefore decreasing pte
the quality in deliberation (at least with regards to the amendments duly approved r/3
4
by the legislature). 0
3
2
Overall, this section illustrates a recurring discussion between popular or ‘polit- 6
6
5
ical’ constitutionalism and judicial supremacy. Should apex courts have the last word 4
b
when interpreting the constitution? Or should the people and their representatives y

in Congress have the final say? Judicial supremacists used to reply to popular con-
stitutionalists that they had the ultimate resort to a constitutional amendment when
they disagreed with an interpretation set forth by constitutional courts. However,
with the empowerment of judges to undertake the judicial review of duly passed
constitutional amendments, this debate seems to take a different stance: should the
last word on the process of constitutional amendments be shifted to the courts?25
Indeed, it is a question of the ultimate source of sovereignty, of whether ‘we the
people’ or ‘we the court’ have the final word on how to shape the constitution. This
is certainly a challenging question, as Issacharoff, Roznai, Celemín, and Ginsburg
have demonstrated.
In jurisdictions like Colombia, where those limits are implicit, and the competence
to exercise a substantive review of constitutional amendments is not explicitly granted
25 Schwartzberg advances an idea according to which constitutional unamendability enforced by courts,
does not impede constitutional change, only shifts the final word on whether it is possible to make it or not
to apex courts: Melissa Schwartzberg, Democracy and Legal Change (Cambridge: Cambridge University
Press, 2007).