The direct participation of the People –mostly through referenda- in the construction of political decisions has increased, and very much exceed the fore imagined limits of its spectrum. These new opportunities always come with different challenges, as well as unexpected risks for democracy and minority rights. Through this paper I look for a common pattern in the processes that have taken place in recent times in Latin American countries. Elements of the analysis will be the political situation, the questions asked, the level of conclusiveness of the People’s answer with respect to the whole decision making process, and the controls established by the very same juridical order.The given experiences enlighten us about the problems and dangers, but as well will give us the chance to rethink the role of the public law and the public actors –People, politicians, judges, etc.- in the whole scenario
The judicial supremacy represents the product of the idea that constitutional courts have a final say in constitutional interpretation, despite its democratic deficit. Within this debate, we selected arguments that challenge the constitutional interpretation monopoly by courts. That arrangement includes parliaments by means of constitutional amendments when they are reversing constitutional court rulings. However, the description of this decision-making process does not contain any normative ought on the content of constitutional rights. In order to solve it, the principle of non-regression is used as an instrument to keep fundamental rights immune to reforms. Therefore, we propose to discuss that principle in order to demonstrate its implicit effect, specifically, the problem that seeks to equate in an anticipated and calculated way the technological productive forces of progress with the legal and social relations of production and reproduction.
The recognition of indigenous jurisdiction works out a conception of democratic constitutionalism in which rights are a key concept in the liberation struggles of indigenous people. If constitutionalism remains strongly attached to traditional liberal thought, the moment of conceptualizing non-liberal values of indigenous law has an increased affinity with the Epistemologies of the South. On the one hand, the recognition of indigenous self-government threats fundamental notions of liberalism; on the other, it remains unclear if this can bring about greater control of power. This essay reflects upon how Latin American Constitutionalism implements legal pluralism and how it could help provide institutional innovation in Brazil, Bolivia, Colombia and Peru
Charismatics presidents elected in Latin America, as well as in other ancient authoritarian regimes, have been using constitutional change mechanisms (amendments or new Constitutions) with the aim of destroying both constitutionalism and democracy. They create new autocratic regimes in order to remain in power and/or weaken the control system. The strategy makes the Constitution appear democratic at a distance and the danger to the rules of democratic play and liberal democracy goes unnoticed by the international community (Schepelle). The proposed presentation works with the hypothesis that the Brazilian presidential design, combined with the conflictive experience of coalition presidentialism, as well as the history of authoritarianism in the country, benefits this kind of maneuver, being the cause of a democratic and institutional crisis, in an hypothesis of a weak president as well as a strong one