As a region that is neither as developed, peaceful, and democratic as the U.S. and Europe nor as underdeveloped, wracked by violence, and undemocratic as Africa and the Middle East, Latin America often falls between the cracks in analyses of global trends. When the Third Wave of democratization hit Latin America in the latter part of the twentieth century, it served to renew debates about the role of constitutionalism in establishing, maintaining, and resurrecting liberal democracy in differential cultural and socioeconomic environments. Considering its sordid history, riddled with authoritarianism and civil war, as well as its present, somewhat mired in political instability, Latin America has not exactly been a bastion of constitutionalism or a model of effective rule of law. For these reasons, as well as others, it has been significantly neglected in comparative academic discourse on constitutionalism, save for incorporation as a largely negative example. Hugo Chávez’ recently proposed—and defeated—constitutional reforms provide an apt microcosm of the regional situation, which is characterized by ebbs and flows in the objective acceptance of constitutions and the more subjective compliance with the normative aspects of constitutionalism.

One of the challenges of looking at Latin American legal systems stems from the roots and evolution of its structures and institutions. Most constitutional scholars are accustomed to operating strictly in the U.S. common law system or purely in the European civil law system; however, neither of these is a fully appropriate framework for analyzing Latin American regional jurisprudence. The reason for this is that while much of the basis of modern legal and judicial systems across the region derives from the civil law systems of the European colonial powers in the region (i.e., Spain and Portugal), Latin American governments have not entirely resisted the influence of the U.S. on these matters. The result of a duality—multiplicity, even, considering the rising prominence of international law—has been a hybrid model of constitutionalism that incorporates aspects of both common and civil law. It is partly as a result of this hybridism, then, that Latin America has fallen under constitutional scholars’ radar.

Meanwhile, another potential reason for comparative deficiencies in the research lies in what some would label a lack of importance of constitutionalism in Latin America. To some, the region’s violent and caudillo-driven post-independence period, coup-fraught twentieth century, and continuously paternalistic, personalistic, and patronage-based politics evidence a fundamental and deeply problematic disregard for rule of law which, in turn, undermines the very foundation of constitutionalism in many ways. One of the primary concerns of those who question the legitimacy and robustness of constitutionalism in Latin America relates to the independence of the judiciary from other branches of government, as well as non-governmental institutions, perhaps most notably the Catholic Church. In 1984, for example, “the general consensus [was that] Latin American supreme courts [were] politically dependent and dominated by the political environments in which they are embedded” (Verner 468). This conclusion rested on an assessment of regional characteristics that included high political instability, a predilection for strong executives, the restrictive nature of the dominant legal philosophy (civil, or Roman, law), the structural and procedural complexity of judicial systems, the limited use of judicial review, and the predominance of unfavorable economic conditions.

Although not all countries in the region have succeeded in improving on these dimensions—indeed, there exist significant differences within the region—the transition from authoritarianism to democracy implied and necessitated certain fundamental changes. While some of these aspects—the affinity for concentrating power in the executive and the predominance of civil law, for example—retain their foothold in the region at large, other characteristics have proven significantly less sticky. Various countries, including Argentina and Nicaragua, have carried out constitutional reforms, overhauled their judicial and/or legislative branches, reduced some of the presidency’s vast powers, and recovered and surged forward financially in the aftermath of the economically disastrous ‘lost decade’ of the 1980s; all of these changes serve to ameliorate some of the conditions that were pointed to as inimical to judicial independence.

When Hugo Chávez proposed constitutional reforms earlier this year, he became only the latest in the swelling ranks of those promoting constitutional reforms across Latin America. The notable, and indeed somewhat pernicious, reality of many such reforms is that they entail the use of one of the foremost symbols of liberal democracy—constitutionalism—for ends that stand in firm opposition to the ideals that constitutions are supposed to represent and embody. One of the most well-known of Chávez’ initiatives would have furthered his campaign to continually expand the power of the presidency, in this case, by abolishing term limits, loosening up the requirements for declaring martial law, and allowing for increased government intervention in the economy. That said, however, using the constitutional reform process to expand executive power in some way or another has been a favorite pastime of various Latin American presidents in recent decades, among them Carlos Menem (Argentina), Evo Morales (Bolivia), Fernando Cardoso (Brazil), Rafael Correa (Ecuador), Ernesto Perez Balladares (Panama), and Alberto Fujimori (Peru).

As evidenced by the continuous trend toward manipulating constitutions for explicitly personal political ends, Latin America still has a ways to go before being inducted into the elite club of the world’s most liberally democratic, constitution-respecting countries. In light of the continuing weakness of liberal democratic constitutionalism in Latin America—or perhaps even because of it—the region clearly represents a handful of vital and fascinating case studies of the effectiveness of transplanting constitutionalism to different cultural soils. Analyzing the various ways that the Latin American hybrid form of constitutionalism diverges from the pure U.S. and European common and civil law paradigms would allow these regions—and the rest of the world—to reflect on which tenets of constitutionalism are most universally functional and thus viable for exportation, and which aspects remain particularistic and should perhaps not be emphasized in constitutional framing or reform efforts. Basing constitutionalist studies on a more complete set of examples would allow for greater representation of the world’s enduring political, social, and cultural differences. This, in turn, might promote more effective forms of liberal democratic constitutionalism resulting from efforts to tailor these norms and goals to individual contexts.

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