The DNA of Constitutional Justice in Latin America: Politics, Governance, and Judicial Design

291 Pages·2018·2.512 MB·English

by  Daniel M. Brinks, Abby Blass

The DNA of Constitutional Justice in Latin America
In recent times there has been a dramatic change in the nature and scope of constitutional
justice systems in the Global South. New or reformed constitutions have proliferated, pro-
tecting social, economic, and political rights. While constitutional courts in Latin America
have traditionally had limited power and have mostly acted to preserve the status quo, they
are now evolving into a functioning part of contemporary politics and a central component
of a dynamic system of constitutional justice. This book lays bare the political roots of this
transformation, outlining a new way to understand judicial design and the very purpose
of constitutional justice. Authors Daniel M. Brinks and Abby Blass use both case studies
and quantitative data drawn from nineteen Latin American countries over forty years to
reveal the ideas behind the new systems of constitutional justice. They show how con-
stitutional designers entrust their hopes and fears to dynamic constitutional governance
systems, expecting to empower their successors to direct the development of constitutional
meaning over time.
Daniel M. Brinks is Associate Professor in the Government Department and Law School
at the University of Texas at Austin. He is also a senior researcher with the Christian
Michelsen Institute.
Abby Blass is a PhD candidate in Government at the University of Texas at Austin.
Comparative Constitutional Law and Policy
Series Editors
Tom Ginsburg
University of Chicago
Zachary Elkins
University of Texas at Austin
Ran Hirschl
University of Toronto
Comparative constitutional law is an intellectually vibrant field that encompasses an increasingly
broad array of approaches and methodologies. This series collects analytically innovative and
empirically grounded work from scholars of comparative constitutionalism across academic disci-
plines. Books in the series include theoretically informed studies of single constitutional jurisdic-
tions, comparative studies of constitutional law and institutions, and edited collections of original
essays that respond to challenging theoretical and empirical questions in the field.
Books in the Series
The DNA of Constitutional Justice in Latin America: Politics, Governance, and Judicial Design
Daniel M. Brinks and Abby Blass
The Adventures of the Constituent Power: Beyond Revolutions? Andrew Arato
Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka Dian A. H. Shah
Canada in the World: Comparative Perspectives on the Canadian Constitution edited by Richard
Albert and David R. Cameron
Courts and Democracies in Asia Po Jen Yap
Proportionality: New Frontiers, New Challenges edited by Vicki C. Jackson and Mark Tushnet
Constituents Before Assembly: Participation, Deliberation, and Representation in the Crafting of
New Constitutions Todd A. Eisenstadt, A. Carl LeVan, and Tofigh Maboudi
Assessing Constitutional Performance edited by Tom Ginsburg and Aziz Huq
Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka Benjamin
Schonthal
Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second
Wave Brian Ray
Constitutional Courts as Mediators: Armed Conflict, Civil–Military Relations, and the Rule of Law
in Latin America Julio Ríos-Figueroa
Perils of Judicial Self-Government in Transitional Societies David Kosař
Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea
Chaihark Hahm and Sung Ho Kim
Radical Deprivation on Trial: The Impact of Judicial Activism on Socioeconomic Rights in the
Global South César Rodríguez-Garavito and Diana Rodríguez-Franco
Unstable Constitutionalism: Law and Politics in South Asia edited by Mark Tushnet and Madhav
Khosla
Magna Carta and its Modern Legacy edited by Robert Hazell and James Melton
Constitutions and Religious Freedom Frank B. Cross
International Courts and the Performance of International Agreements: A General Theory with
Evidence from the European Union Clifford J. Carrubba and Matthew J. Gabel
Reputation and Judicial Tactics: A Theory of National and International Courts Shai Dothan
Social Difference and Constitutionalism in Pan-Asia edited by Susan H. Williams
Constitutionalism in Asia in the Early Twenty-First Century edited by Albert H. Y. Chen
Constitutions in Authoritarian Regimes edited by Tom Ginsburg and Alberto Simpser
Presidential Legislation in India: The Law and Practice of Ordinances Shubhankar Dam
Social and Political Foundations of Constitutions edited by Denis J. Galligan and Mila Versteeg
Consequential Courts: Judicial Roles in Global Perspective edited by Diana Kapiszewski, Gordon
Silverstein and Robert A. Kagan
Comparative Constitutional Design edited by Tom Ginsburg
The DNA of Constitutional Justice
in Latin America
Politics, Governance, and Judicial Design
Daniel M. Brinks
University of Texas at Austin
aBBy Blass
University of Texas at Austin
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www.cambridge.org
Information on this title: www.cambridge.org/9781107178366
DOI: 10.1017/9781316823538
© Daniel M. Brinks and Abby Blass 2018
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2018
Printed in the United States of America by Sheridan Books, Inc.
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Brinks, Daniel M., 1961- author. | Blass, Abby, author.
Title: The DNA of constitutional justice in Latin America : politics,
governance, and judicial design / Daniel M. Brinks, Abby Blass.
Description: Cambridge [UK] ; New York, NY : Cambridge University Press,
2018. | Series: Comparative constitutional law and policy | Includes
bibliographical references and index.
Identifiers: LCCN 2017059344 | ISBN 9781107178366 (hardback)
Subjects: LCSH: Constitutional courts—Latin America. | Constitutional
law—Latin America. | Political questions and judicial power—Latin
America. | Judicial process—Latin America. | Justice, Administration
of—Latin America.
Classification: LCC KG501 .B75 2018 | DDC 342.8—dc23 LC record
available at https://lccn.loc.gov/2017059344
ISBN 978-1-107-17836-6 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Contents
List of Figures xi
List of Tables xiii
Acknowledgments xv
1 Constitutional Justice in the americas at the Turn of
the Millennium 1
1.1. Recent Trends in the Design of Constitutional
Justice Systems 4
1.2. Constitutional Governance Theory in a Nutshell 8
1.3. Constitutional Ferment in 19 Latin American Countries, 1975–2009 11
1.4. Contributions 15
1.5. Looking Ahead 17
2 Judicial Power and the Design of Constitutional Justice 19
2.1. Understanding and Measuring Judicial Power 20
2.2. Disaggregating Judicial Power 22
2.2.1. Autonomy 23
2.2.2. Authority 28
2.2.3. Interacting Autonomy and Authority 30
2.3. Uneven Growth of Judicial Power in Latin America 31
2.3.1. Using the Quantitative Measure to Describe the Region 31
2.3.2. Qualitative Overview of Regional Trends 36
2.3.3. Individual Countries 40
2.4. Correlation or Causation: Do Formal Institutions Matter? 43
2.5. Conclusion 47
vii
viii Contents
3 Constitutional Governance and the Politics of Judicial Design 49
3.1. Putting Existing Theories on the Same Plane 50
3.2. A Unifying Theory: Courts as Mechanisms of
Constitutional Governance 55
3.3. Principles of Design for Constitutional Governance 57
3.4. Alternative Logics 60
3.4.1. Diffusion of Regional and Period Models 61
3.4.2. Learning 62
3.4.3. Regime-Specific Logics (Legitimacy) 63
3.5. Conclusion 64
4 identifying the Political Origins of Constitutional
Justice through Quantitative analysis 66
4.1. From Theory to Hypotheses to Operationalization 67
4.1.1. First Principle: The Ruling Coalition and
the Scope of Authority 69
4.1.2. Second Principle: The Originating Coalition
and the Constitutional Governance Coalition 72
4.2. Alternative Explanations 73
4.2.1. Testing for Learning 73
4.2.2. Testing for Diffusion 75
4.2.3. Testing for Authoritarian Preferences 75
4.3. Results 75
4.3.1. The Courts’ Scope of Authority 76
4.3.2. Ex Ante Autonomy 80
4.3.3. Ex Post Autonomy 82
4.3.4. Combining the Three Dimensions 84
4.4. Illustrative Cases 87
4.5. Implications 88
5 Guatemala (1985): Building Constitutional Justice in
the shadow of Civil War 95
5.1. The History of Guatemala’s Constitutional Justice System 96
5.2. Key Features of the 1985 System of Constitutional Justice 106
5.3. The Emergence of a Robust and Autonomous
System in Guatemala 110
5.3.1. The Originating Coalition and the
Construction of the CGC 111
5.3.2. The Originating Coalition and the Scope of
Constitutional Justice 118
Contents ix
5.3.3. Social Constitutionalism and the Boundaries
of Constitutional Justice for Private Property 122
5.3.4. Other Logics at Work 128
5.4. Other Constitutions with Similar Features 129
5.5. Conclusion 134
6 argentina (1994): negotiating a Plural space of
Constitutional Justice 135
6.1. The History of Argentina’s Constitutional Justice System 136
6.2. Key Features of the 1994 System of Constitutional Justice 149
6.3. The Emergence of a Social Democratic System of
Constitutional Justice in Argentina in 1994 152
6.3.1. The Originating Coalition 153
6.3.2. The Construction of Constitutional Governance 157
6.3.3. Other Logics at Work 170
6.4. Other Constitutions with Similar Features 172
6.5. Conclusion 176
7 Bolivia (2009): Governance logic in the new Constitutionalism 178
7.1. Bolivia’s Constitutional History 180
7.2. Constitutional Governance and the Design of Bolivia 2009 190
7.2.1. The Originating Coalition 190
7.2.2. The New System of Constitutional Justice 198
7.2.3. Bolivia 2009’s Design and the Logic of
Constitutional Governance 204
7.3. Other Constitutions with Similar Features 208
7.4. Conclusion 213
8 Conclusion: The Politics of Constitutional Justice 214
appendix a: Judicial Power: Concepts and Measures 229
A.1. General Observations about Creating Institutional Indices 230
A.1.1. Our Measures Should Be Explicitly
Informed by Our Theories 230
A.1.2. Different Research Questions May Need
Different Indices, Even for the Same Institutions 231
A.1.3. Weighting and Aggregation Rules Should
Also Follow Basic Theoretical Principles 232
A.2. From Concept to Measure: Operationalization 233
A.2.1. Ex Ante Autonomy 233
A.2.2. Ex Post Autonomy 235
x Contents
A.2.3. Authority 237
A.2.4. The Results 240
A.3. Relationship to Existing Accounts of Judicial Power 241
A.4. Judicial Design in Latin America since 1975 247
A.5. Sources for Variables Measuring Judicial
Independence and the Rule of Law 249
References 251
Index 261