The article challenges the way the history and practice of the constitutional amendment rules in the Ecuadorian Constitution of 2008 has been understood by scholars. The conventional explanation posits that imposing strict limits to the constitutional reform procedure – such as referring to the fundamental structure of the State or grant ex-ante review power to the Constitutional Court – could posit a paradigmatic change in the Constitution’s stability. However, I argue that none of this is not a significant restriction in practice. The Ecuadorian Constitutional Court’s jurisprudence on constitutional reform does not seem to be coherent, and the corresponding constitutional rules remain as mere rhetorical norms until today.
In Latin America, the drafters of early nineteenth-century constitutions were skeptical of implementing republican forms of government. Uruguay was an exception. Under the Swiss-educated reformist José Batlle y Ordóñez (1904-07, 1911-15), the groundwork was set for a new constitution that would bring about a secular democratic republic. Indeed, the 1918 Constitution replaced a conservative and centralist constitutional system with a regime of participatory democracy. This article advances a new interpretation of Uruguay’s participatory democracy and argues that, despite the brief endurance of the 1918 Constitution, participatory democracy may be an effective mechanism for constitutional entrenchment where it helps to create popular support for the rule of law and institutional stability.
The Chilean 1925 Constitution established the power of judicial review of legislation for the first time in Chile’s history. Nevertheless, under the 1925 Constitution, the Supreme Court never used its power to enforce relevant democratic values against legislators in high-profile cases. The constitutional experiment failed, and Chile’s legal system was a sort of “legality without courts” (Faúndez 2010). The conventional explanation argues that the Chilean legalistic culture of that time was apolitical and formalistic, but little work has focused on the incentives that judges had at that time. I claim that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court’s choice not to intervene in politics, but this account is insufficient to explain judicial behavior fully. More attention needs to be given to the institutional weaknesses of the judiciary and the political instability that existed at that time.