This contribution will address Latin American transformative constitutionalism approaching it through the categories of European constitutionalism. It will focus mainly on the role of supreme, constitutional and international courts as actors of transformative constitutionalism using the parameters and tasks traditionally allotted to constitutional adjudication. The main examples of such focus will be the Colombian Constitutional Court and the Inter-American Court of Human Rights as significant cases in the region, with references to other relevant courts. The comparative perspective adopted in the talk will contribute to foster a dialogue between European and Latin American scholars, promoting dialogue and mutual understanding.
Based on my personal and professional experiences, I will briefly present the origin and development of the principles of respect for fundamental rights and democracy in the Inter-American system. Latin America has several lessons to share with other regions in order to fight against cross systematic violations of human rights. The joint venture between the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights is one example. The transformative constitutionalism of the current times relays on the progressive understanding of the American Convention and national constitutions. After 31 years of the publication of my book “The battle of HUMAN rights,” I will focus on what has been transformative and what remains unchanged. This will allow me to share some pros and cons related to the contemporary debates about this relevant issue.
Transformative constitutionalism has captured the imagination of progressive scholars throughout Latin America, due to its promise to bridge the gap between socio-economic justice and constitutionalism, a gap that has been particularly large in this region (where constitutionalism has traditionally lived side-by-side with gross economic inequality). The very sustainability of democratic constitutionalism is at risk –due precisely to the inequalities that the contemporary global economic order promotes within most countries—, the notion of a constitutional theory and practice that addresses the latter is attractive. The question of how, exactly, can constitutionalism contribute to the transformation of the economic structures that condemns large segments of society to an unequal access to the benefits of growth, remains polemical. I'll explore different attempts currently in display in Latin America that aim to materialize the ideals of a transformative constitutionalism.
Since the end of authoritarian regimes in Latin America several states of the region have amended or replaced their constitutions. One of the main characteristics of this wave of “new” constitutions concerns those norms that reshaped the understanding of supranationality. The constitutional clauses that open statehood in favor of fundamental rights and regional integration are the examples that represent the openness of windows and doors vis-à-vis supranational standards. For my Ph.D, I studied the 36 constitutions of the Americas in order to organize the taxonomies of the continental corpus iuris. Therefore, I will present the conceptual framework that allowed me not only to define Latin American supranational clauses but also to classify their levels of openness towards regional integration. This aspect is crucial for the stability and the future of both commune and transformative law in the region.