This chapter explores the trajectory of the principle of equality in Latin American constitutionalism. During the “founding period,” most constitutions in the region included mere references to a principle of formal equality. However, after some decades, this initial position became transformed into a bold commitment to substantive equality. In present times, it is not uncommon to find references to affirmative action, group rights, actual equality of opportunities for men and women, and other egalitarian initiatives. Keywords: formal equality, substantive equality, affirmative action, democracy, prior consultation, constitutionalism

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.

This chapter examines the influence of authoritarian constitutionalism in Latin America. Mainly focused on the ‘founding period’ of regional constitutionalism (1850–80), the chapter claims that, in spite of the fact that authoritarian constitutionalism today lacks most of the influence that it used to have, it continues to represent a powerful force within regional constitutionalism. The author suggests that the vast majority of Latin American Constitutions continue to organize their ‘structure of powers’ according to an imperfect and unstable liberal-conservative model, and that this flawed structure allows a recurrent reemergence and occasional reinvigoration of authoritarian impulses within regional constitutionalism.