A distinctive aspect of Latin America’s current democratic era, now starting its fifth decade, has been constitutional experimentation. Since the 1970s, almost all democracies in the region have experimented with constitutional change, sometimes even engaging in complete constitutional rewrites. It behooves us to understand what is driving this process, and its effects.
As I do in my own book, Daniel M. Brinks and Abby Blass explore the origin and the content of constitutional experimentation. In some areas, we reach similar conclusions, especially in terms of the importance of power relations between the ruling coalition and other parties; in other areas, especially regarding ideology, we diverge.
At one level, the dependent variable in Brinks and Blass’s analysis is different from mine. The authors focus on how constitutions change in terms of formal powers granted to the judiciary. In contrast, I focus on net presidential powers overall and on the reelection rule in particular. Despite the difference in focus, our books are animated by the same concern: to study the extent to which constitutions allow different branches of government to acquire the necessary gravitas to act autonomously from the executive branch and thus enhance checks and balances.
Brinks and Blass offer a number of innovations in this regard. The first is the useful and creative way that they unpack and codify judicial powers. They break down judicial powers into three dimensions: ex ante autonomy (the extent to which the appointment process is free from control by any given faction); ex post autonomy (the extent to which judges achieve job and salary security); and authority (the areas over which judges are allowed to form an opinion, that is, the court’s sphere of action). The authors are convincing in arguing that this three-dimensional approach better captures the complexities of judicial power than the conventional approach of focusing only on “judicial independence,” which, they argue, is monodimensional and typically predicated on the untenable idea that courts can be (or ought to be) detached from the political arena. They also show that the most robust form of constitutional judicial power is that which maximizes all three dimensions.
The second innovation is empirical. After coding all of the relevant constitutions, the authors show convincingly that, on the whole, Latin American constitutions since the 1970s have fortified all dimensions of court powers, though in different proportions and at different times (pp. 34–36).
To explain this variation in content and timing of changes in court powers over time, Brinks and Blass make a two-pronged argument. The first part focuses on the power differential between the “ruling coalition” (RC) vis-à-vis the rest of the parties involved in deciding constitutional change. They call this differential the “RC shortfall.” Their central hypothesis is that when the ruling party dominates the body deciding constitutional change (that is, when RC shortfall is negative), courts will be given less authority. This, they argue, is the most important force explaining whether the courts acquire power or not.
It is here where our two books overlap the most. What Brinks and Blass call RC shortfall is very similar to what I call power asymmetry, and although we measure it somewhat differently, we both find that it is the most important determiner of the incidence and direction of constitutional change. The overall point in both books is that the group that can be relied upon to press for a more robust court system is typically the opposition, not the ruling party.
The second component of Brinks and Blass’s argument concerns the role of ideology: In their view, the Left is more likely than the Right to produce an expansion of courts’ power. But they also make this argument conditionally. The Left will leave its imprint only when two conditions hold: when it is the weaker actor, or, if it is ruling, when there is a recent history of violence.
The evidence marshaled by the authors is impressive. They conduct statistical analysis using data from 19 Latin American countries from 1975 to 2009, for an impressive n = 665. They also conduct three well-researched case studies: Guatemala, Argentina, and Bolivia. (In reality, they actually have five case studies because they make pertinent comparisons with Chile and Venezuela.)
The finding that ideology matters, albeit conditionally, is perhaps the most significant difference between our books. Neither my qualitative nor my quantitative analysis finds evidence that ideology matters, at least when it comes to overall changes in the powers of the president. Brinks and Blass, in contrast, find statistically that the Left “packs more” authority for the courts into the constitution as its dominance of the constituent assembly decreases (p. 77), whereas the Right prefers “thinner” authority, regardless. They also find that if the Left is ruling, authority expands less than when the Right is ruling (p. 85).
The fact that Brinks and Blass find evidence that the ideology variable matters may have to do with differences in dependent variables. It is theoretically plausible, as they argue, that the parties of certain ideologies would care more about a specific dimension of constitution making (in this case, powers for the court) than about other parts, so that their influence is palpable in particular pockets of the constitution even if not on the overall direction of the entire document (net formal powers of the president) or in other pockets (reelection rules).
It could also be due to differences in samples size (theirs is much larger) or how we measure ideology. Brinks and Blass measure ideology by calculating each country’s difference from the annual regional mean in an index of economic structural reform. I instead measure ideology by combining two measures: the way scholars identify parties and the way in which countries moved in policy in relation to their past, not the region’s average.
Brinks and Blass’s case studies are also impressive. They represent some of the most sophisticated accounts of the history of constitutionalism that I have seen in English for their selected countries. And overall, the cases demonstrate the book’s main argument about RC shortfall.
I did have a bit of trouble following the differences in outcomes across these three cases, and to some extent, following the argument concerning the importance of ideology. The easiest case to follow is the Guatemala chapter. There, a constituent assembly dominated mostly by right-wing parties produced modest levels of authority, which is in line with the book’s expectation.
The Argentina and Bolivia cases were less clear-cut. It is hard to determine right away what the difference in outcomes is between these cases. In terms of autonomy, the outcomes seem similar, if one compares Figure 6.1 (p. 150) and Figure 7.1 (p. 188). However, in both the text and the appendix, we learn that the difference was in terms of ex post autonomy (with an increase in Argentina from 1957 to 1994 and a slight decline in Bolivia from 1994 to 2009). However, authority levels seem comparable, which is hard to align with the book’s argument that the weaker Left (Argentina) should end up with more court authority (although in Bolivia the increase is visible if compared to 1994). It is hard to discern how exactly ideology helps make sense of all of this. The argument is too contingent. I would have preferred clearer comparisons of differences in outcomes among the cases, or selecting cases with clearer variations in outcomes, such as Colombia and Chile, where the Left dominated constitutional politics in the former more so than in the latter).
A subject that receives little attention but which is proving crucial in judicial politics since the 2000s is court autonomy vis-à-vis societal preferences, not just presidential preferences. In some countries, for instance, courts have emerged as the most important champions of unpopular causes (e.g., against the reelection of popular presidents, against conducting referenda on LGBTQ rights). Future researchers may want to study the origins and consequences of courts that choose to go against majorities.
While the exact role of ideology remains unsettled, at least in my mind, one conclusion is clear. The key to greater checks and balances, and in this case, more robust judicial systems, is ensuring that the deciding body is not dominated by any single faction. Our two books agree that when majoritarianism trumps pluralism, democratic governance can paradoxically become compromised.
