If you want a constitutional guarantee, buy a toaster

Constitutional reasoning falls mainly under the description of political reasoning in that many of its dispositions admit of different conceptions and interpretations. The question, however, is whether any token of constitutional reasoning as such is political by definition. This issue is particularly relevant when it comes to the constitutional guarantee against ex-post-facto criminal legislation. Although this guarantee used to sway legal thought uncontestedly for ages, it has been recently challenged by scholars and judges, at the very least in Argentina. In this work I would like to put forward two hypotheses that explains this recent resistance: a comeback of classical penal republicanism and the hegemony of interpretative jurisprudence.

Constitutional interpretivism and its democratic flaws

Interpretativism usually conceives the Constitution as a set of open clauses, which for it to be effective it must be completed by judicial interpretation. Thus, interpretative judicial review entails not so much an interpretation of the Constitution as a constitutional amendment. This brings about, as a result, partisan politicization of constitutional interpretation and a displacement of public discussion and political decision-making from the representative institutions of the State to the judiciary. In opposition to this paradigm I would like to argue that the Constitution is a political decision that claims to be authoritative and hence constraints the range of its possible interpretations. In order to drive my point home I will dwell on some issues raised by the imprescriptibility of crimes against humanity.

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.