The Colombian Constitutional Court is famous because of the way it used the unconstitutional constitutional amendment doctrine to prevent the erosion of the Colombian democracy against the ambition of former President Uribe, who tried to be re-elected for a third time. This article tracks the roots of the Colombian unconstitutional constitutional amendment doctrine and shows that its development has been more nuanced and complicated than what the literature typically assumes. The author claims that the Colombian actio popularis–first introduced in Colombia in 1910—is the judicial mechanism that allowed the doctrine to rise, as the wide scope of that mechanism allowed the citizens to bring claims that allowed the judicial system to become politically consequential. Along with the fragmentation of the Colombian political landscape, the actio popularis contributed to pushing the Colombian courts to confront politicians and built its powerful judicial authority.
The Brazilian “Ministério Público” (MP) is an agency that aims to prosecute and monitor the enforcement of criminal law, and also to protect relevant collective goods, such as the ones included in consumer and environmental regulations. These last sorts of powers—established by the first time in the 1934 Constitution and consolidated in the 1946 Constitution—are uncommon from a comparative perspective. The trend in the 1970s and the 1980s was to strengthen these powers even more. Although at first glance someone could think that these atypical powers are useful for enforcing pushing principles and fundamental rights, I argue that the MP has weakened civil society associations and harmed their legitimacy by excluding and discouraging collective associations from getting involved in crucial litigation procedures, triggering political backlashes to NGOs. Thus, a promising constitutional entrenchment mechanism has partially harmed Brazil’s constitutional democracy.
The constitutional amendment mechanism of the 1857 and 1917 Mexican constitutions mimic Article V of the U.S. Constitution in important ways. The Mexican experiment, however, functioned very differently than its American counterpart. While the amending procedure in the U.S. has resulted in incremental, slow, informal constitutional change through a consequential and robust judiciary, the dynamics of constitutional reform in Mexico has resulted in frequent and fast formal constitutional change and a sidelined and weak pushing. This paper offers an account explaining the divergent paths of constitutional change in these two countries. The author uses a historical account to argue that amendment difficulty is not only explained by the way institutional rules are designed but mostly by the party system, political structure, and constitutional culture.