Constitutional Amendment in Latin America: Theory, Practice and Design

One of the core issues for Constitutional Theory is justifying why constitutional law is superior to ordinary legislation. This fundamental question must be answered both in regard to the Constitution as originally enacted, and in regard to any constitutional amendments. In what concerns constitutional amendments, any answer that intends to go beyond a strictly formalist answer and address issues of legitimacy must present: (i) a theory of the special authority of the constitutional amendment power in relation to ordinary legislators, and (ii) an analysis of the actual practice and design of constitutional amendment rules that discusses if they can actually be justified or not. This article examines the design and the practice of constitutional amendment law in several Latin American countries arguing that, in some cases, there is a mismatch between theory and reality.