Comparative Constitutional Law in Latin America
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Comparative Constitutional Law in Latin America

Edited by Rosalind Dixon and Tom Ginsburg

This book provides unique insights into the practice of democratic constitutionalism in one of the world’s most legally and politically significant regions. It combines contributions from leading Latin American and global scholars to provide ‘bottom up’ and ‘top down’ insights about the lessons to be drawn from the distinctive constitutional experiences of countries in Latin America. In doing so, it also draws on a rich array of legal and interdisciplinary perspectives. Ultimately, it shows both the promise of democratic constitutions as a vehicle for social, economic and political change, and the variation in the actual constitutional experiences of different countries on the ground – or the limits to constitutions as a locus for broader social change.
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Chapter 2: Constitution making and constitutionalism in Latin America: the role of procedural rules

Gabriel L. Negretto

Abstract

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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