Constitutional interpretivism: how the law becomes politics

Judicial Supremacy is usually mistaken for the Supremacy of the Constitution, as if the former were entailed by the latter. This error rests on a particular idea of the Constitution, one that stresses its legal element at the price of eclipsing its political element. Within this frame interpretativism has thriven. The result is that judges might understand that they are free to decide whether to follow statutes or not. In this presentation I state that such a landscape promotes judicial decisionism, which is an undercover way of making politics that in the end harms both justice and politics. This proposal is made through the exposition of the caselaw regarding criminal liability of the military during Pinochet’s regime. Specifically, the attention is focused on those judicial decisions that overlook the rule of extinctive prescription of the Chilean Criminal Law Code thereby weakening the role of the Judiciary as well as the role of Congress.