David Law and Tom Ginsburg
in Colin Crawford and Daniel Bonilla Maldonado (ed.), Constitutionalism in
the Americas, (Edward Elgar, 2018), pp. 217-239
Introduction: Generalizations about the practice of constitutional drafting within a region as diverse as Latin America are bound to be inherently imprecise. A single region can be home to considerable constitutional heterogeneity.1 It is also clear, however, that there exist geographical and regional patterns in the adoption of formal legal rules.2 Distinctive regional characteristics can endure in the face of globalization for a multitude of reasons. In the case of Latin America, for example, they may be borne of historical, religious, linguistic, and geographical ties, or they may reflect the
existence of shared concerns and experiences, such as American hegemony or a legacy of strongman rule.
This chapter offers an empirical overview of constitutional drafting patterns and trends in Latin America over the last 60 years. We use various quantitative measures and indices of constitutional content to contrast Latin America with other regions and shed light on whether and in what ways constitutional drafters in Latin America have responded to frequent concerns such as excessive American influence, overconcentration of executive power, and human rights abuses.
Section II examines the extent to which Latin American countries continue to use the U.S. Constitution as a model for their own constitutions. In both scope and substance, Latin American constitutions are becoming increasingly dissimilar to the U.S. Constitution over time. Indeed, not only has Latin America become increasingly divergent from the model of the U.S. Constitution, but it has become more divergent than the rest of the world.
Section II examines the extent to which Latin American countries continue to use the U.S. Constitution as a model for their own constitutions. In both scope and substance, Latin American constitutions are becoming increasingly dissimilar to the U.S. Constitution over time. Indeed, not only has Latin America become increasingly divergent from the model of the U.S. Constitution, but it has become more divergent than the rest of the world.
Section III compares constitutions in Latin America with those of other regions along a number of substantive dimensions. Relative to other regions, constitutional drafting in Latin America is characterized by a stingy approach to executive power and a generous approach to the protection of rights. Latin America’s combination of extensive de jure rights, on the one hand, and a long history of autocratic leaders and human rights abuses, on the other, is a reminder that governments do not always deliver in practice what they promise on paper. Prior work suggests that levels of actual respect for rights have improved over the last two decades, with the result that the gap between the promise and the reality of Latin American constitutionalism may be narrowing.3 As interesting as that line of research happens to be, however, this chapter focuses exclusively on how constitutions are drafted, rather than how they are interpreted or implemented. Accordingly, we deliberately limit our analysis to the text of the constitutions themselves. Our findings suggest that constitutional drafting is characterized to some degree by variation along regional lines, and that there is at least some substance to the notion of a Latin American approach to constitutional drafting...
