From abusive constitutionalism to a multilayered understanding of constitutionalism: Lessons from Latin America

摘要

This article criticizes some of the implications of the recently coined notions of "abusive" and "authoritarian" constitutionalism. It argues that these terms assume that constitutions are merely higher law, and lose sight of the fact that they are also political documents that gain meaning due to the domestic and global power struggles. In light of this one-sided notion of constitutionalism, these terms generally imply that constitutions fail in places where amendment mechanisms are simply instruments for maintaining would-be autocrats in power. Reforms are thus necessary to limit amendment mechanisms. Focusing on the deployment of constituent power in Latin America during the 1990s-especially in Venezuela and Colombia-this article reacts against the fiction of "failed law" and uses the idea of constitutions-as-politics to show that amendment mechanisms in the region are related not only to the consolidation of power of authoritarian leaders, but also to domestic disputes around constitutional arrangements that limited democracy during the twentieth century and to the adoption of or resistance to new ideas about economic development in the transition from import substitution industrialization (ISI) to market-oriented reforms. The use of constituent power in Latin America has many faces and this article stresses the political debate, an issue largely forgotten by comparative constitutional scholars.