Constitutional Change as “Ordinary Politics”: The Misfortunes of a Semi-rigid Constitution for Brazilian Democracy

This paper uses Ackerman's distinction between ordinary and extraordinary politics to understand processes of constitutional change in Brazil. We intend to highlight the insufficiency of Ackerman’s model for a country with a semi-rigid constitution, extensive social rights provisions, and a reluctant democratic political culture. We discuss the impairment of Brazilian democratic deliberation and its consequences both for constitutional politics and the protection of social rights. The paper also explores the causes of the Constitution's loss of normativity: lavish constitutionalization of economic and social provisions, relatively flexible processes of constitutional amendment, and the deleterious features of the political and electoral system. The article concludes that ordinary politics migrated to formal channels of constitutional reform, disfiguring the essence of the Brazilian Constitution and putting in jeopardy the republican pact established after the dictatorship cycle.

Failed Constitutions: Winners and Losers in Chile's Constitutional History

This paper analyzes the main episodes in Chilean history that have led to establishing a new political order, understood as “constituent moments” (Ackerman 1991, Frank 2010). We emphasize the political projects of the losing side during the critical junctures that resulted from these intense political struggles. Identifying the losers in constitutional history, we argue, is key to illuminate the tensions that triggered each of the winning proposals that determine the political history of the country. Following Bruce Ackerman’s notions of constitutional dualism and constituent moments, as well as Pablo Ruiz-Tagle’s proposal to divide in five different “republics” the history of Chile, we analyze the main political projects defeated in the country's constitutional history.

Protecting Rights or Hindering Political Participation? Constitutional Rigidity and the Crisis of Representation in Consolidated Democracies

The purpose of this article is to refute one of the most important arguments of liberal theory: that rigid constitutions produce positive effects on democracies. As opposed to liberal theory, this article proposes the following hypotheses: (1) that constitutional rigidity has a positive effect on electoral competition; but, (2) also a negative impact on political participation. Additionally, (3) the imbalance between electoral competition and political participation, as an effect of constitutional rigidity, produces a crisis of political representation. In order to asses these hypotheses, this study will be focused on the experience of post authoritarian Chile.

Constitution Making and the New Latin American Constitutionalism

The New Latin American Constitutionalism (NLAC) claims that the constitution making processes of Venezuela, Ecuador, and Bolivia were significantly influenced by the revival of the classical revolutionary theory of the constituent power that took place in Colombia in the early 1990s. This article rejects the NLAC's defense of the revolutionary model by challenging their inadequate interpretation of the Colombian process. The Colombian experience should be understood as a mixed process in which the logic of the revolutionary constituent power was softened, first, by a dynamic of compromise and negotiation between a plurality of actors that, second, tried to rely on the principle of legality to engineer a more democratic constitution making process. This has been ignored by the theorists of the NLAC. However, these characteristics were of fundamental importance to avoid the forms of abusive constitutionalism that later emerged in the region, especially in Venezuela and Ecuador.

Las constituciones locales como fuente de interpretación de la constituciones nacionales: El caso de Jalisco, México

In federations such as Mexico, the citizens of the different states that composed the union find themselves significantly constrained by the National Constitution when they wish to enact structural changes to their local constitutions. These limitations question the legitimacy of constitutional arrangements and pose a serious challenge to the practice of democracy in federal states. Taking as an example the recent proposals to set in motion a constitution making process in the State of Jalisco (Mexico), this article explores the difficult relations between the national and local levels of government when it comes to the problem of constitutional change.