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POPULAR SOVEREIGNTY AND CONSTITUTIONAL CONVENTIONS
SOBERANÍA POPULAR Y CONVENCIONES CONSTITUCIONALES
SOBERANIA POPULAR E CONVENÇÃO CONSTITUCIONAL
Summary
This article provides an insight about the constitutional
conventions and their connection with the concept of
popular sovereignty. The author states that the constitutional
conventions require a high degree of legitimacy in order to
make institutional changes possible, and thereof constitute
as a tool that can transform the institutional capacities of
the State. On this regard, he defends the conception of
democracy and argues that it is crucial to promote debate
and impartiality, and to achieve decisions that will affect
everyone’s interest. He starts by highlighting the importance
of social struggles and its impact in constitutional reforms,
arguing that they have a high potential of transforming
particular social structures and entrenched injustices.
He explains then the debate about mixing different
constitutional visions by the importation-reception of
institutions and jurisprudence from other countries, as well
as the inherent value of these types of operations. Finally,
he addresses the topic of pluralism and how constitutions
should accommodate the claims of different groups and
individuals; for this purpose he provides some detail about
the historical responses considered by constitutionalism
such as: synthesis, accumulation, inaction and imposition.
Key words: Constitutional Conventions; Pluralism;
Sovereignty; Democracy, Reform.
Resumen:
Este artículo proporciona una visión sobre las convenciones
constitucionales y su conexión con la noción de la soberanía
popular. Señalo que las convenciones constitucionales
requieren un alto grado de legitimidad para hacer posibles
cambios institucionales y así constituirse en una herramienta
que pueda transformar las capacidades institucionales. Para
ello, deendo la concepción de la democracia y sostengo
que es indispensable promover el debate y la imparcialidad
para la toma de decisiones que afectan al interés de
todos. Empiezo poniendo de relieve la importancia de
las luchas y su impacto en las reformas constitucionales,
argumentando que tienen un alto potencial de transformar
determinadas estructuras sociales e injusticias arraigadas.
Posteriormente, explico brevemente el debate acerca de
la mezcla de diferentes visiones constitucionales ya sea
mediante la importación-recepción de instituciones y las
decisiones judiciales de otros países, y el valor inherente
que este tipo de operaciones implica. Por último, hablo de
pluralismo y cómo las constituciones deben adaptarse a
las demandas de los diferentes grupos e individuos; para
este n proporciono algunos detalles sobre las respuestas
históricas provenientes del constitucionalismo tales como:
la síntesis, la acumulación, la inacción y la imposición.
Palabras clave: Convenciones constitucionales; Pluralismo;
Soberanía; Democracia; Reforma.
Resumo
Este artigo proporciona uma visão sobre as convenções
constitucionais e sua conexão com a noção de soberania
popular. Ressalto que as convenções constitucionais
exigem um alto grau de legitimidade para fazer possíveis
mudanças institucionais e, assim, tornar-se uma ferramenta
que pode transformar as capacidades institucionais. Para
este m, apoio a concepção de democracia e sustento que
é indispensável promover o debate e a imparcialidade
para a toma de decisões que afetam o interesse de todos.
Inicio destacando a importância das lutas e seu impacto
nas reformas constitucionais, argumentando que têm um
alto potencial de transformar certas estruturas sociais e
injustiças arraigadas. Posteriormente, explico brevemente o
debate sobre a mistura de diferentes visões constitucionais,
quer seja por importação-recepção de instituições e
Roberto Gargarella*
Universidad de Buenos Aires
* Abogado y sociólogo por la Universidad de Buenos Aires; Máster en Ciencia Política por la Facultad Latinoamericana de Ciencias Sociales (Argentina); Doctor
en Derecho por la Universidad de Buenos; Master of Laws (LL.M.) y Doctor en Jurisprudencia (J.S.D.), ambos por la University of Chicago Law School. Cursó
sus estudios postdoctorales en el Balliol College, Oxford. Actualmente es Profesor en la Universidad Torcuato Di Tella y en la Universidad de Buenos Aires.
Además, es director de la Revista Argentina de Teoría Jurídica.
Recibido: 20/03/2015
Aceptado: 8/05/2015
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decisões judiciais de outros países, e o valor inerente que
tais operações implicam. Finalmente, falo sobre pluralismo
e como as Constituições devem adaptar-se às demandas dos
diferentes grupos e indivíduos; para este m proporciono
alguns detalhes sobre as respostas históricas provenientes
do constitucionalismo, tais como: a síntese, a acumulação, a
inação e a imposição.
Palavras chaves: Convenções constitucionais; Pluralismo;
Soberania; Democracia; Reforma.
I shall take, as my starting point, the claim that
there should be an intimate connection between the
notion of popular sovereignty and Constitutional
Conventions. e assumption is that we, as members
of a community, use Constitutional Conventions
in order to dene the fundamental institutional
aspects of our life in common. As a consequence, it
is absolutely necessary that we take a decisive part in
those events, under the assumption that “what aects
all should be decided by all.” More precisely, and as
result of the particular conception of democracy
that it is here defended, I assume that a broad and
inclusive debate is a crucial condition for obtaining
decisions that are properly respectful of every
person’s fundamental interests. Similar decisions
may, eventually, be obtained through other means,
and broad and inclusive debates may, occasionally, be
conducive to improperly biased decisions. However,
the assumption is, rst, that there is no better way to
maximize the chances of deciding impartially than
through a broad and inclusive debate, and second,
that impartiality is simply indispensable if we talk
about a Constitution understood as a “compact
among equals.”
In the study of Constitutional Conventions, I would
rst stress two main features that I associate with
them. First, Constitutional Conventions need to
have a very special legitimacy in order to be able to
carry out fundamental institutional changes. So, that
special legitimacy provides the ‘key’ that is necessary
to make fundamental institutional changes possible.
at special legitimacy, then, provides Conventions
with very special -actually unique, unmatchable
-institutional-transformative-capacities.
e presence of these elements helps explain
the conicts that tend to arise in connection to
Constitutional Conventions: Conventions that
declare themselves “sovereign”; Conventions that
claim to have more powers than the incumbent
government and act in consequence; governments
or political groups that try to coopt the Convention;
assaults upon Conventions; the use of force (even
military force) against Conventions; etc. etc.
e extraordinary transformative capacities of
Constitutional Conventions have also provoked a
common and undesirable result: in many occasions,
the two mentioned elements are decoupled in
ways that we get extraordinary powers without
extraordinary legitimacy. To state it more precisely,
we get Conventions that claim to have extraordinary
capacities for promoting institutional changes, but
at the same time lack the extraordinary legitimacy
needed to get the key to institutional changes.
is rupture between legitimacy and powers seems
a typical fact of contemporary political life, given
the way in which people have lost their republican
capacities to “decide and control” in issues that are of
utmost public importance. ere is an assault upon
representative institutions that also –if not mainly-
tends to aect the most relevant representative
bodies. Members of Constitutional Conventions,
which are in need of a special legitimacy (given their
public ambitions), usually obtain their legitimacy
from common general elections. In this way, the
actual legitimacy of members of Constitutional
Conventions does not seem to be dierent, less
superior, to the legitimacy of public ocers, elected
aer general elections. In spite of this, elected
representatives in a Convention claim to have
superior attributes and dare to take, or threaten to
take, extraordinary measures from their public posts.
e point makes it necessary to recall Bruce
Ackerman’s precise intuition about the distinction
between constitutional moments and normal politics.
Ackerman calls our attention about the special
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legitimacy of constitutional moments (Ackerman
1991). What is special about those constitutional
moments is not the fact that they are the product of
certain formal procedures, but rather that they are
the product of and express a broad, intense process
of popular mobilization and political activism. is
is what makes constitutional moments so dierent
from normal politics, and what gives them special
legitimacy and special powers. is view about
legitimacy is particularly appealing for those of
us who defend a strong conception of democracy:
legitimacy becomes thus connected with processes
of inclusive public discussion and intense popular
mobilization, rather than with formal amendment
procedures. is approach restores rationality and
reasonability to the discussion around constitutional
reforms.
For these reasons, those of us who favor large and
profound constitutional reforms need to advocate
for dierent kind of Constitutional Conventions,
this is to say Conventions whose legitimacy is not
merely based on formal legal procedures, but rather
on their representative character, their diversity, their
inclusiveness, their tight links with civil society, and
the intensity and transparency of their public debates.
DIFFICULTY AND IMPORTANCE OF CONSTITUTIONAL REFORMS
Herein, I shall defend the importance of
constitutional reforms, as a means for favoring certain
social changes and prevent the institutional system
to work in favor of the preservation of entrenched
injustices. To state this does not commit us to assume
a simplistic view about the transformative capacity
of legal reforms: it is not that by merely changing
the law, we change reality. e point is rather the
opposite: we should not neglect or misuse the limited
transformative capacities of legal reforms.
Reforms are particularly important in contexts
characterized by profound injustices: they may
ensure legal protections to seriously disadvantaged
groups and provide them with tools that may help
them ght for their rights. In a recent work, Jon Elster
has established that the majority of constitutional
reforms emerge in times of crisis, which we may
associate with the existence of profound social
injustices and distress (Elster 2014). But, it should
be added, precisely in those situations it seems
particularly dicult to promote a meaningful reform,
this is to say one with the capacity of challenging and
modifying the prevalent injustices. And this is so for
some rather obvious reasons.
e main reason I am thinking about is that, very
frequently, reform-processes become in charge of
the same people/group/class that are beneting from
the existent injustices. Obviously, if the reform has
to be designed by the same individuals that may be
aected by them, one should expect either improper
blockages or a biased reform that le some of the
prevalent injustices unaected. Presumably, those
diculties would become larger the more those
injustices are entrenched -the more the institutional
system is contaminated by them. ose biases and
obstructions may appear during the draing of the
Constitution, but also during its implementation
process.
Similar problems appear when the desired reform
is directed to modify exactly part of the same
institutional system that needs to get involved in the
reform process. Typically, this is what has happened
in Europe, aer the numerous initiatives directed
at remedying the so-called “democratic decit” that
aected the regional political organization. And
this is also what happened in Latin America, aer
the numerous initiatives that appeared in the 1980s,
directed at drastically reducing the powers of the
President: those reforms were, in the end, blocked or
diluted by the same Executive Powers under attack.
Of course, nothing that I said so far should be taken
as an argument against constitutional reforms.
Just the opposite: being aware of the level of the
existing diculties should make us also conscious
about both the dimension of the required changes,
and the amount of energies required by a serious
process of constitutional reform. Clearly, the
enormous motivations needed for carrying out a
signicant process of change do not appear magically
-they cannot emerge from nowhere. Perhaps, the
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CONSTITUTIONAL MIXTURES, TRANSPLANTS AND GRAFTS
perspective of substantive constitutional changes
is only reserved to extreme social situations. In the
history of Latin American constitutionalism, the more
radical initiatives for constitutional reform appeared
and were developed in situations of dramatic social
distress: think about the Constitutional Conventions
of Ayala 1911 and Aguascalientes 1914, in
Revolutionary Mexico (which would nally adopt its
National Constitution in 1917); or -contemporarily-
the dierent initiatives for constitutional reform in
Bolivia, under the aboriginal leader Evo Morales.
e discussions about ‘transplants’ in juridical
material -referring to the possibility of ‘graing’
‘foreign’ institutions onto an existing constitutional
body- calls our attention about the possibility of
mixing dierent constitutional visions, and suggests
the presence of strong tensions susceptible to being
unleashed at the moment that the ‘gra’ or the
‘reception’ of the ‘foreign’ ideas or initiatives occurs.
e concept of ‘transplants’ has been studied from
dierent perspectives in all of its variations. In any
event, the discussion has basically tended to focus
on two aspects of the issue: the importation of
institutions or reception of judicial decisions from
other countries, and the inherent value of these types
of operations.
1
e discussion about legal transplants and gras
has sometimes been improperly contaminated, with
arguments that I shall not consider but mention,
given their historical importance: very frequently,
debates on the issue centered on the defense of
nationalist values and the wrongness of ‘importing’
institutions from other countries.
e noted independence leader Simon Bolívar,
like many others, repudiated the opposition’s
fascination with the “exaggerated maxims of the
rights of man,” maxims that he discredited because
of their importation from France (Bolívar 1976,
12). Nevertheless, his insistence on localism did
not get very far; all of the Bolivian constitutional
projects were based either on English conservative
constitutionalism or on Napoleonic authoritarian
constitutionalism. Similarly, in Colombia, Miguel
Antonio Caro and Ospina Rodríguez also rejected
the importation of French ideas in the name of
1 Good discussions about the ‘value’ of importation, can be found in the International Journal of Constitutional Law (2003, vol,. 1, n. 2); Tushnet (1999);
Ackerman (1997); Kennedy (1997); Rosenfeld (1997); Ferejohn (1997); Balkin & Levinson (1998).
nationalism. However, their claims for localism
appear to be based, instead, on reactionary
Hispanicism and Catholicism (Gargarella 2014).
In the end, it was less a theoretical dispute than a
politically opportunistic one, destined to disqualify,
rather than discuss, the proposals of the opposition.
at said, nevertheless, it is necessary to add that at
least one version of the discussion about ‘transplants’
and ‘gras’ holds attractions for the purpose of
considering the strengths and limitations of regional
constitutionalism. is discussion is premised
on the following general hypothesis: regardless
of their origin, some gras tend to be innocuous
while others are not, depending on the bonds of
kinship (the ‘genetic links’) that exist between the
graed material, the institutions, and the receiving
constitutional ‘body’.
In order not to transform the aforesaid into a
tautological statement, we can imagine the following
situation. Imagine three very dierent kinds of
constitutional projects faced o, one conservative
(politically elitist and morally perfectionist),
another liberal (anti-statist, defending checks
and balances and moral neutrality), and the third
radical (politically majoritarian and morally
populist). en, one might expect that many of the
imaginable ‘interfaces’ between one project and
another would be destined to failure or require that
one of the projects yield to another. Historically
speaking, liberals and conservatives, for example,
were able to come to terms and collaborate on
the draing of many constitutions, due to the fact
that the projects coincided greatly on many issues
(both repudiated political majoritarianism, both
proposed a rm defense of property rights, both
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agreed, with little diculty, on the implementation
of anti-statist political economies) but, nevertheless,
in everything related to religion, they were largely
forced to smooth over their dierences.
In many occasions, however, the combination
between dierent constitutional models failed,
or went through serious problems. And these
diculties were facilitated by at least two main
factors: rst, the importance of the dierences
between the projects at stake, and second, the fact
that one of those models was already entrenched,
and the other (or, more properly, institutions related
to the latter model) were irresponsibly incorporated
to the former, as ‘gras’. By ‘irresponsibly’ I mean
incorporated without any serious consideration
regarding the prevalent, existing institutions, and the
‘resistance’ they could oer before the incorporated
‘novelties’.
In my opinion, this second case explains one
otherwise inexplicable event in the history of
constitutionalism, namely the apparition of ‘social
rights’ and the diculty they faced to become
enforced by judicial authorities. e fact is the
following: since the beginning of the 20
th
Century,
numerous Western countries began to (sometimes
massively) incorporate social rights into their
Constitutions. However, during more than ve
decades, those rights became almost ‘dormant
clauses’ and were treated as non-enforceable,
second-class rights. Surprisingly or not, this fact
took place in dierent countries, under dierent
circumstances, at dierent times, and in spite of the
important place that those rights occupied in the
reformed Constitutions. How could this generalized
phenomenon be explained? How could it be possible
in countries that modied their Constitutions once
and again and always insisted on their choice of
social rights, and expanded the list of adopted
social rights? One possibility to start explaining
this phenomenon is through the idea of a ‘failed’ or
improper ‘gra’.
Take, for instance, the case of Latin America, this
is to say a region that became noted because of
the force of its constitutional commitment to
social rights. Social rights arrived to the region
early (since the Mexican 1917 Constitution) and
since then they expanded in all countries, in
all dierent Constitutions, during years. ose
rights, however, were usually incorporated into
‘hostile’ constitutional bodies, modeled under the
inuence of liberal and conservative ideas, which
seemed to be well-prepared to resist the ‘arrival’ of
‘foreign’, strange, alien ‘gras’. e ‘receiving body’,
genetically linked to the liberal-conservative project,
proved well prepared to rebu the ‘importation’ of
these foreign entities, leaving them in the hands
of judges and courts. As expected, these latter
did not recognize the signicance of these new
rights, to which they habitually ascribed the status
of programmatic rights or secondary rights.
2
A
similar story can be told regarding the introduction
of ‘participative clauses’, above all during the
prominent second wave of constitutional reforms
in the 20th century.
3
To simplify a long story, if
mechanisms ‘promoting civic participation’, like the
plebiscite and referendum, are able to undermine
the authority of existing parliaments, and these, in
turn, remain (constitutionally) in charge of dening
or promoting these very same participatory
mechanisms, then there is small hope for the fate
that shortly awaits these clauses.
What is being claimed here is that the ‘insertion’
of new rights or new institutions into strong, well-
established ‘bodies’ requires a very special attention,
so as to avoid the ‘rejection’ of the ‘gras’. One has to
expect resistance and hostility from the institutions
at place, particularly when those institutions and
the elements that are going to be ‘inserted’ belong
to dierent bodies or constitutional models. One
cannot simply ‘implant’ cells from one body into a
dierent one, assuming the compatibility between
the two, or neglecting the capacity of the prevalent
body to resist the incorporation of ‘strange’ cells.
2 How could one expect that judges, especially, would have any particular sensitivity to the interests of the most disadvantaged [classes], given the gulf
-geographic, economic, and social- that isolates them and the close-knit bonds that the judges develop with the most powerful sectors of society? Judges and
[legal] theorists, for their part, created special categories in order to directly render ineective and drain these reforms of all vitality, assuring their relegation to
the waste-bin. But, are these results in any way surprising? Could one expect any other reaction from the Judicial System? Its select members selected, endowed
with the gi of stability, and characterized by the homogeneous background which is their trademark?
3 Beginning with the second wave, there were reforms in Ecuador, in 1978; in Chile and Brazil, in 1989; in Colombia, in 1991; in Paraguay, in 1992; in Peru and
Bolivia, in 1993; in Argentina, Guatemala and Nicaragua, in 1994.
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In his book Political Liberalism, John Rawls
called our attention about the fact that modern
societies have become so complex that we can no
longer expect everyone to share the same values
and ideals. People tend to disagree -and to disagree
profoundly- concerning their “conceptions of the
good,” this is to say their more or less comprehensive
religious, philosophical and moral beliefs. In his
words, modern democracies are characterized by the
fact of pluralism, where pluralism is a reasonable one,
meaning that even though people disagreements
are serious, they are very oen based on genuine
convictions. We then have profound disagreements
among reasonable persons (Rawls 1991, 22-9).
From a dierent perspective, and more concerned
with legal issues, Jeremy Waldron has also been
referring to -what he considers being- a fundamental
characteristic of modern societies, namely the fact of
disagreement, meaning that is a crucial fact that we
profoundly and reasonably disagree about signicant
moral issues (i.e., about abortion, the personal
consumption of drugs, etc.), and at the same time we
want to continue living together (Waldron 1999).
e fact of pluralism is not something new, but rather
something that has been characterizing our societies
for a very long time. Perhaps, we became aware of this
fact in the last decades, through the growing political
importance of multicultural claims and multicultural
studies. But the recognition of profound political
and philosophical disagreements seems to be a
distinctive fact of modern constitutionalism. is
is, for example, how James Madison presented the
issue in his famous Federalist Paper No. 10, when he
examined the problem of factions:
e latent causes of faction are thus sown in the
nature of man; and we see them everywhere
brought into dierent degrees of activity,
according to the dierent circumstances of
civil society. A zeal for dierent opinions
concerning religion, concerning government,
and many other points, as well of speculation as
of practice; an attachment to dierent leaders
ambitiously contending for pre-eminence and
HOW SHOULD THE CONSTITUTION DEAL WITH THE FACT
OF PLURALISM?
power; or to persons of other descriptions
whose fortunes have been interesting to
the human passions, have, in turn, divided
mankind into parties, inamed them with
mutual animosity, and rendered them much
more disposed to vex and oppress each other
than to co-operate for their common good.
e problem, for Madison, for Rawls, and for all
those in our times still interested in constitutional
issues, has been the same, namely how to deal with
such profound and still reasonable dierences.
How to accommodate the reasonable although in
some cases opposite claims of dierent groups and
individuals? e responses varied, in the history of
constitutionalism, in some occasions depending on
the relative political strength of the dierent groups
(a fact that in numerous cases suced to explain
the legal responses that were then adopted), but
also in relation to the imagination and the dierent
understanding and legal conceptions of the dierent
groups. In what follows I shall mention four dierent
responses to the problem of pluralism that we nd
in legal history, namely synthesis, accumulation,
inaction and imposition.
e rst response, synthesis, is related to the Rawlsian
idea of an overlapping consensus, where dierent
groups support a common solution for dierent
reasons (reasons that are internal to their own
favored comprehensive views). To nd a synthetic
agreement that all can share requires from each
part an eort to leave aside or put between brackets
some relevant aspects of its own claims. e second
response, accumulation, appears when the dierent
parts -nding it too dicult to reach a common
agreement- decide to simply sum or put together
(one on the top of the other) their dierent claims,
leaving these claims totally or almost totally intact.
e third response, inaction, appears when the
dierent groups in charge of the reform cannot nd
a way out to their disagreements, so they decide to
“leave things undecided” (Sunstein 1999, 3). e
nal response that I shall explore, namely imposition,
implies that one of the involved groups manages to
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enforce its own will thus displacing the demands of
the rest.
i. We nd an interesting example of the rst
response -synthesis- in the U.S. initial
constitutional debates concerning religion.
e issue of religion was one of the most
divisive matters among dierent groups,
during the “founding period.” Previous to
the Constitution, the prevailing looked like
one of dire imposition: there was religious
establishment in New England with the
Congregational church, and in the South with
the Anglican Church. Dierent sects, who
had suered from religious persecution in
England, were now making pressure for the
advancement of their own views, through the
use of the State coercive powers. In the end,
however, most social groups accepted a non-
establishment clause (that was rst accepted
in Virginia and then incorporated into the
Constitution),
4
because of entirely dierent
reasons, including self-protection; reciprocity;
tolerance; secularism; etc. not surprisingly,
the case of the First Amendment represents
perhaps the main example guiding Rawls’
reections on public reason, state coercion and
the overlapping consensus.
ii. A good example of the second response
-accumulation- appears in Argentina’s
inuential 1853 Constitution -which represents
a typical case of how numerous Latin American
countries dealt with the claims of opposite
groups. At the time, in Argentina, as in many
other Latin American countries, liberal and
conservative groups confronted each other
violently, over a number of issues. Two of these
issues were then particularly important: religion
and the powers of the Executive. Concerning
the rst issue, liberals favored religious
tolerance, while conservatives proposed
religious imposition. Concerning the second
issue, liberals proposed a system of checks
and balance, while conservatives preferred
the creation of an overtly powerful Executive.
4 e First Amendment of the Constitution reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.
In the face of those conicts, Argentina’s
1853 Constitution (which was the result of a
compact between the two groups) decided,
rst, to provide a special status to the Catholic
Church, through article 2 of the Constitution
(“e Federal Government supports the
Roman Catholic Apostolic religion”), and at
the same time to declare religious tolerance,
through article 14 of the Constitution (“All
the inhabitants of the Nation are entitled…
to profess freely their religion”). Second, and
concerning the organization of powers, the
Constitution established a system of checks
and balances, which closely followed the U.S.
model, and at the same time ensured special
prerogatives to the President (related to the
declaration of a stage of site, or the intervention
into the aairs of local states), following the
authoritarian Chilean Constitution of 1833.
Even though the solutions implemented by
Argentina’s 1853 Constitution were, in those
respects, rather awkward, the fact is that they
represented well the strategy of accumulation
that most Latin American Constitutions
adopted at that time.
iii. ere is an example of the third kind of response
-inaction- in the Mexican constitutional
debates of 1857. e two longer and more
heated debates, during that Convention,
referred to two issues: the adoption of a jury
system; and religious tolerance. And it was in
the second of those cases, where the delegates
decided to go for inaction. e issue of religion
was particularly pressing in the light of the
enormous privileges enjoyed by the Church
and the time, which moved many liberals to
reject any initiative aimed at ratifying the unfair
advantages that it had acquired during so many
years. For instance, the delegate Zarco, one of
the most important gures of the Convention,
rejected the establishment of Catholic religion
asserting -in contrast with his personal beliefs-
that the role assumed by the Mexican church
during all those years had been unacceptable.
“[I]t has denaturalized Christ’s religion because
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5 For instance, the Constitution became the main antecedent of the 1833 Chilean Constitution (in whose writing played a crucial role Egaña’s son, Mariano
Egaña, and through him, the same Juan Egaña). e 1833 Constitution would become the most durable Constitution in Latin America’s 19th Century.
6 Ibid., pp. 637-38.
7 In a letter to José Rafael Arboleda, from June 15th, 1823, Bolívar thanked Arboleda for his (rather isolated) defense of this new branch of power. See Bolívar
(1937), vol. 1, p. 382.
it has declared itself the enemy of freedom; it has
accumulated wealth impoverishing the country;
it has deceived the people…it has defended
privileges and money, disregarding the truths
of Catholicism” (Zevada 1972, 38-9). In the
end, however, liberals did not manage to ensure
religious tolerance through the Constitution,
given the dierences that appeared not only
with conservative representatives, but even
within the liberal group. What the delegates
decided to do, in the end -making it manifest
the transactional character of the Constitution-
was to make silence on the religious question,
preventing, at least, the Constitution to become
an intolerant document in this respect. ey
simply succeeded, in the end, in preventing the
establishment of religious intolerance.
iv. e response based on legal imposition was
the most common among Latin American
conservatives, during the 19
th
Century. During
that Century, and particularly during the rst
half, numerous conservative groups managed
to gain control over politics and enact their
favored Constitutions, which unmistakably
reected their main concern: the decay of
morals in the region. One of the most extreme
examples in that respect was the 1823 Chilean
Constitution, written by the conservative jurist
Juan Egaña. Egaña and his Constitution were
enormously inuential in Chile and, most
generally, in the region, in spite of the fact
that the peculiar Constitution of 1823 was
short-lived
5
Egaña’s Constitution included a
strong executive which, in Egaña’s opinion,
controlled “the entire administration, without
the interference of the legislature, which has to
enact only a few general and permanent laws
and which will meet only aer long intervals
and during a very short time” (Silva Castro
1969, 86-7).
One of the president’s main functions was that of
enforcing Catholic religion, which was established
as the country’s ocial religion. Also, and in order
to ensure the imposition of the ocial religion,
the Constitution created a “conservative Senate”
in charge of controlling the “national morality
and habits” and, more radically, accompanied its
text with a substantive “Moral Code,” directed at
regulating the moral life of Chile’s inhabitants even
in its smallest details: in Egaña’s opinion, the “Moral
Code” represented the highest and most meditated
expression of his life-long theoretical reections on
morality.
e rst part of the code was dedicated to religion
and the need for protecting it (it regulated, for
example, the way in which to celebrate the church’s
public festivities as well as the relationships between
the individuals and their confessors). In its second
part, the code analyzed the family, its composition
and the relationship among its members (it made
reference to personal attitudes and behaviors
including ingratitude, vanity, denigration, or the
abandonment of ones’ parents). Its third part was
related to education, which played a central role
within Egaña’s project.
e code regulated the use of alcohol; provided
for strict parameters to follow during private and
public ceremonies; and established the prohibition
of circulating pamphlets and leaets without the
previous authorization of a group of censors. e
code also included strict sanctions against those
citizens who “created political parties and frankly
displayed their opinions, or those who gathered in
public places”.
6
Extreme as it was, the Code was very
inuential among Latin American conservatives:
Simon Bolívar proposed a similar institution (he
called it the “Moral Power”) in his famous Letter
from Jamaica and in the Angostura Congress of 1819,
without much luck.
7
Ecuador’s autocratic (for many,
‘theocratic’) president Gabriel García Moreno also
advanced -but this time, successfully- a ‘moralizing’
plan, enforced by the State’s coercive powers,
including a vast web of spies, who were in charge
of controlling even the most private aspects of each
Facultad de Derecho
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person’s life. e president was proud of the system
that he enforced, because it allowed him to control all
possible excesses. “I am alert, -he maintained- I have
a system of spies and inspire fear [to my enemies].”
8
García Moreno imposed strict penalties to those
denounced by his agents, without much attention
to the rights of the accused and to questions of due
process, in general. e Constitution he promoted
in 1869 came to legitimize his view and, thus, the
consecration of the Ecuadorian State to Catholicism.
FINAL WORDS
In the former pages, we examined some basic
issues related to Constitutional Conventions, which
may help us reect on their possibilities and limits.
Still, however, we need to know and think much
more, about an issue of primary importance in the
life of our constitutional democracies.
8 Carrión (1959), p. 437.
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Ackerman, Bruce. 1991. We the People. Foundation,
I. Cambridge: Belknap Press
Carrión, Benjamín. 1959. El santo del patíbulo. Quito:
FCE
Elster, Jon. 2014. e Political Psychology of
Constitution-Making. Princeton, inédito.
Gargarella, Roberto. 2014. Latin American
Constitutionalism, 1810-2010. Oxford: Oxford
University Press.
Rawls, John. 1991. Political Liberalism. New York:
Columbia University Press.
BIBLIOGRAFÍA
Sunstein, Cass. 1999. One Case at a Time. Judicial
Minimalism on the Supreme Court. Cambridge:
Harvard University Press.
Tushnet, Mark. 1999. Taking the Constitution away
from the Courts. Princeton: Princeton University
Press.
Waldron, Jeremy. 1999. Law and Disagreement.
Oxford: Oxford University Press.
