Edited by Rosalind Dixon and Tom Ginsburg
Chapter 2: Constitution making and constitutionalism in Latin America: the role of procedural rules
The intuition that the constitution-making process matters for the design, durability, or enforcement of constitutions is widely held among policy experts and academics working on comparative constitutional law. Yet relatively few works have carefully examined the theoretical soundness of some general hypotheses about the causal effects of procedural rules. In this chapter, I will review four procedural features that have been important in the making of Latin American constitutions: the legal status of the process, the type of constitution-making body, the degree of elite representation, and the level of citizen involvement. I argue that while some of these features may correlate with relevant outcomes, it is unlikely that procedural rules have an independent causal effect. These rules reflect the distribution of preferences and bargaining power of constitution makers and the historical juncture that triggered the process. I also argue that the long-term success of a constitution depends on ever-evolving practices and interpretations whose connection with initial procedures becomes weaker over time. I provide evidence in support of these arguments based on the experience with constitution making in 18 Latin American countries from 1900 to 2014.
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