Cristina Lafont has defended in Democracy without Shortcuts (2020) the possibility of justifying constitutional review in democratic terms. Such a justification would mean making the ideals of constitutionalism compatible with the principle of collective self-government. In Rawlsian terms, Lafont has insisted that constitutional justice has the capacity to encourage public debate and the exercise of public reason through processes extended over time, where different institutions, as well as the citizenry, are engaged. Although the author does not advocate a particular form of constitutional justice, the truth is that her position does seem to rule out certain forms of institutional design. This contribution seeks to analyze what those limits would be (what would make a particular model of constitutional justice illegitimate from a democratic perspective) and what implications such a position has for the models of strong constitutional review that are widespread in Latin America.
On September 2019 a Legislative Act was presented in the Colombian Congress seeking to reform the Political Constitution of 1991. This reform added a paragraph to the article on referendums, establishing that when the Constitutional Court by means of a ruling, interprets matters referring to fundamental rights “the citizens may request through a referendum that such interpretation be annulled, if they consider it contrary to their fundamental principles”. Although the Project was finally shelved, in late 2020, the author of the project returned to the media with his proposal.
This proposal for constitutional reform brings us back to one of the most interesting debates in legal theory in recent years: Can fundamental rights be decided by means of plebiscite democracy? This paper seeks to analyze the constitutional paradigm in the light of this debate, asking about the relationship between law and democracy and, more concretely, between plebiscitary democracy and constitutional rights.
The crisis unleashed by the COVID pandemic has made it clear that hyper-presidentialism is a structural problem in the region that has not yet been overcome and may result in the undermining of democratic regimes, for whose promotion and construction the Inter-American System was a key player. Faced with this circumstance, the legitimacy of the IACHR will be essential to position itself as an actor tending to prevent the weakening of democracy and human rights in the region.
The role assumed by the IACHR up to this point has generated relations of tension and conflicts of authority with national systems. In this context, it becomes interesting to explore the alternative of procedural rationality control – used by the ECtHR – as a tool to adopt a conversational model between the systems, modifying the notion of procedural subsidiarity for a normative one that allows, in turn, to harmonize the role of the Court with the principle of collective self-government.
In Constitutional States it is possible to find guarantees that protect citizens against constitutional omissions of the authorities. This protection implies that the Constitutional Courts, when addressing violations of rights, are obliged to issue rulings in which they specify the way to fulfill a right. They even provide guidelines on the concrete way to guarantee the exercise of the right in question akin to making public policy.
Interventions like these might prevent the addressees of the decision from making contributions that may be significant for the final outcome of the remedy. This issue highlights the need to explore new paradigms related to the role of the Constitutional Courts in relation to affected populations.
A new paradigm must take into account anthropological, sociological, and worldview elements of the affected groups requiring break with the conventional molds in which the interested parties are given participation in the framework of constitutional processes.
Multiscalar approaches are used in social sciences to emphasize the dimensions of the local, the regional, the national, the transnational and the international are not regarded as separate levels to be treated independently but, rather, as units in mutually constituting networks. The proposed paper uses a multiscalar approach to deal with how the ‘Inter-American Standard’ has become the unit of multiscalar presence in the everyday life of public law in the Americas.
The Inter-American Standard is the result of an amalgam of treaty law, soft law, case law, and the networking of shared legal spaces through the expansion of a legal discourse that has permeated the region. National and regional courts, NGO’s and Institutions all talk about the Inter-American Standard. But what is its legal nature? Where does it derive its legitimacy? And how does it interact with the everyday life of different epistemic communities within the Latin American geography are questions analyzed and explored.