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Epilogue

Between Magic and Deceit

Günter Frankenberg

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Edited by Colin Crawford and Daniel Bonilla Maldonado

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Javier Couso

This chapter concentrates on the radical democracies of Venezuela, Ecuador and Bolivia. Couso’s argument revolves around three axes. First, he argues that one of the innovative elements of Latin American constitutionalism has been its receptiveness to international human rights law and its commitment to the Inter-American Human Rights System. Second, he indicates that one of the characteristics of radical constitutionalism has been its staunch defense of the principle of national sovereignty. Finally, he states that the defense of national sovereignty has gone hand-in-hand with a constant defense of two principles of international law: the principle of self-determination of peoples and the principle of non-intervention. Couso then argues that the defense of these three principles has ended up pitting radical constitutionalsim against international human rights law. Finally, Couso argues that the illiberal turn taken by U.S. constitutionalism, demonstrated by the violations of due process in the Guantanamo prison, selective assassinations, and the practice of torture, has facilitated the questioning of the Inter-American Human Rights system by radical constitutionalism.

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Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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David S. Law and Tom Ginsburg

This chapter provides a quantitative, comparative analysis of Latin American constitutionalism over the last sixty years, aiming to examine the following three recurring legal and political concerns: the enormous influence of U.S. constitutional law, the excessive control of power by the executive branch, and the high level of human rights violations. This analysis focuses on the content of the constitutional texts taken from the quantitative data of “big n” or big data, and it seeks to question the stereotypes of and preconceptions about the creation of constitutional norms in the region. With respect to the first issue, Law and Ginsburg argue that Latin American constitutions have increasingly moved away from both the U.S. model and models from other regions of the world, such as Europe and Asia. With respect to the second issue, they argue that over time Latin American constitutions have decreased the formal powers granted to the executive branch and have been generous in the recognition and application of human rights. Finally, Law and Ginsburg argue that over the last two decades the distance between the rules recognizing human rights in Latin American constitutions and the social reality has become shorter. For these two authors, the differences between the constitutional promises and the daily life of common people in Latin America have decreased over the last twenty years.

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Edited by Colin Crawford and Daniel Bonilla Maldonado

Constitutionalism in the Americas unites the work of leading scholars of constitutional law, comparative law and Latin American and U.S. constitutional law to provide a critical and provocative look at the state of constitutional law across the Americas today. The diverse chapters employ a variety of methodologies – empirical, historical, philosophical and textual analysis – in the effort to provide a comprehensive look at a generation of constitutional change across two continents.
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Roberto Gargarella

This chapter examines the similarities and differences between U.S. and Latin American constitutional law. Gargarella indicates that, although U.S. constitutionalism has influenced Latin American constitutionalism in some circumstances, these two traditions constitute somewhat different ways of understanding constitutional law. Gargarella argues that Latin American constitutionalism has departed from U.S. constitutionalism on three significant points: it has incorporated a much broader list of rights than the U.S. Bill of Rights (which he says has the effect of allowing more substantive protection of egalitarian principles), it has favored hyper-presidential systems, and it has centralized territorial organization and the exercise of state political and legal power. Gargarella also states that these differences make the Latin American constitutional model more conservative and less consistent with respect to the exercise of power but more progressive on social, economic and cultural matters than the U.S. constitutional model.

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Francisca Pou Giménez

This chapter provides a critical analysis of Mexican constitutionalism. For Pou, this is characterized by “reformism”, i.e., the capacity simultaneously to maintain close ties with the political/legal past and also to present itself as a system in continuous and uninterrupted transformation. The analysis of Mexican reformism advanced by Pou is both static and dynamic and is organised as follows: first, she presents the basic structure of the Mexican constitutional model; second, she provides an analysis of its key content: the standards, institutions, and substantive rules that form its backbone; third, she provides an assessment of the decision-making processes permitted and promoted by the Constitution; fourth and last, she evaluates what she calls the frequency variable, which is nothing other than weighing the effects that living under a constantly-changing constitutional regime has had on Mexicans. Pou concludes that, in a context of institutional fragility and social and political exclusion, the reformism that characterizes the Mexican system has allowed profound institutional change to be perpetually controlled and prevented from above. Pou likewise concludes that the Mexican legal and political system will only be successful if there is a radical qualitative change in its institutions, rules, and principles.

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Jorge L. Esquirol

This chapter contends that the relationship between Latin American and U.S. constitutionalism is not horizontal. Esquirol argues that the vertical nature of the relationship is illustrated particularly well by the relative importance of the Latin American constitutional courts and the Supreme Court of the United States. While the U.S. Supreme Court enjoys broad prestige in Latin America, Esquirol explains, Latin American courts have a questionable reputation in the United States (when they are visible at all). While the U.S. court is widely cited by Latin American court and academics, the case law of Latin American courts is not known and rarely cited by U.S. law professors and courts. For Esquirol, this relationship of subordination of Latin American to U.S. constitutional law is explained by two variables that have contributed to creating a negative image of Latin American constitutional law in the United States, variables that have been instrumental in constructing an idealized image of U.S. liberal constitutionalism and a hyper-realist image of the failures of Latin American constitutionalism. The first variable is the concept of “obstruction of justice” in international law. This concept presents Latin American justice systems as radically dysfunctional. The second variable is the law and development movement and its impact on contemporary comparative law. Esquirol argues that for the law and development movement Latin American constitutionalism has failed.

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Fernanda Nicola

This chapter questions those who affirm that the influence of U.S. legal thought is currently in decline. For Nicola, the diffusion of legal ideas that originate in the United States remains the rule, although the content exported and the procedures for doing so have changed. This transformation of the forms and content of U.S. legal ideas spread around the world can be seen on three intersecting axes: first, rights-centered U.S. constitutionalism has given way to the exportation of legal products related to national security law. The latter consists of a set of theories and practices that justify and indicate the means for adequate development of timely military interventions, actions against terrorism, and war between nations. Second, legal education focused on training critical students, social justice, and full-time professors is being questioned in the United States by those who, after the crisis experienced by law schools, think that legal education should aim to train attorneys to pass the Bar exam, advance transactions that are useful for local businesses, and be taught by part-time professors. Finally, the exportation by U.S.-educated foreign legal elites of the most conservative interpretations of the educational model dominant in the United States. Nicola concludes, then, that the influence of U.S. legal ideas remains as notable around the world as it was in the twentieth century.