Keeping the Promise
Rights and Realities in Latin America
January 1, 2013
Jan 1, 2013
15 Min read time
The Mexican revolution that began in 1910 produced one remarkable outcome: the 1917 constitution.
A result of working-class mobilization against growing inequality and authoritarianism, the constitution declared a long and robust list of rights. Unlike other constitutions at the time, it was strongly committed to social rights, including rights to food and education. In fact, the Mexican Constitution pioneered the development of a more social constitutionalism. The idea was that a constitution should not simply define the organization of the government and describe its limits. It should also insist on the entitlement of all citizens to basic goods and services.
According to Article 27 of the 1917 Constitution, for example, ownership of the lands and waters within the boundaries of the national territory was “vested originally in the Nation.” This meant that the nation had ultimate authority over all resources within its borders, which were to be used for the people. Article 123 incorporated broad protections for workers, recognized the role of trade unions, protected rights to strike and association, and provided detailed regulation of labor relations, anticipating later developments in labor law. This clause made reference, for example, to the maximum duration of work; child labor; the rights of pregnant women; minimum wages; and rights to vacation, equal wages, and comfortable and hygienic working conditions.
Most countries in the region followed the Mexican example, building similar lists of social rights into their constitutions: Brazil in 1937; Bolivia in 1938; Cuba in 1940; Uruguay in 1942; Ecuador and Guatemala in 1945; Argentina and Costa Rica in 1949. Latin American constitutions thus reflected and reinforced the emergence of the working class as a key political and economic actor in the first half of the twentieth century.
In spite of these new basic laws enacted on behalf of average citizens, Latin America experienced a terrible period of authoritarian rule in the 1970s and ’80s. This period was a sharp setback for the earlier expansion of constitutional rights. But with the end of authoritarianism in the late 1980s came a new wave of constitutional reforms, which once more made central the rights of all citizens. In an effort to create universal political and economic inclusion, reformers pushed through a range of positive constitutional rights—to food, decent education, health care.
While Latin American nations have been at the forefront, again and again, of the model of social constitutionalism, the impact on people’s lives has always been mixed. One important reason is that, for all their extraordinary innovation when it comes to social rights, reformers have consistently preserved old-fashioned notions of politics. They have accepted a Latin American constitutional tradition that emphasizes centralized authority and presidential power. Unlike more liberal constitutions, such as the U.S. Constitution, Latin American constitutions empower the president to declare a state of siege, to appoint or remove ministers at will, and to legislate. The concentration of power in the executive ensures that constitutional promises remain more aspirational than real.
Most Latin American countries entered the twentieth century with constitutions based on political compacts between liberals and conservatives, the region’s dominant political forces. These groups were fierce political enemies during the first half of the nineteenth century. Chilean conservatives treated their opponents brutally at the beginning of the Conservative Republic in 1833. In Argentina, there were bloody conflicts between conservative unitarios and liberal federales. The Federal War in Venezuela (1859–1863) also divided liberals and conservatives. And their confrontation in Colombia at times erupted in civil war. In Mexico, the liberals puros fought against the forces of the conservative santanistas. But between 1850 and 1870, these battles yielded to an alliance that lasted for decades.
The constitutions created in those years were an imperfect synthesis of liberal and conservative goals. Liberals got checks and balances and state neutrality among different religious groups, and conservatives got concentrated authority and morality regulations. In effect, the new constitutions blended elements of the U.S. Constitution, influential among liberals at the time, and the 1833 Chilean Constitution, Latin America’s most prominent conservative constitution.
Latin American nations have been
at the forefront of social-rights constitutionalism.
Thus, while the new constitutions established religious tolerance, they sometimes—as in Argentina—reserved a special place for Catholicism. While they provided for checks and balances, they also favored the executive. And while they were concerned to distribute power, they mixed federalism with strong centralization.
But whatever their precise balance of liberalism and conservatism, these constitutions were exclusively about the organization and limits of power. They did not include social clauses in favor of the disadvantaged, nor did they provide broad rights of suffrage or association that would foster mass participation in politics and the public sphere. When these constitutions were being drafted and debated, radicals—Sociedad de la Igualdad in Chile and other groups in Mexico and Colombia, most operating in the 1850s—advanced democratizing proposals for annual elections, the right to recall representatives, term limits, and the right to instruct elected officials on legislative decisions. These radicals also promoted reforms to address social questions. However, the liberal-conservative pact rebuffed all those initiatives.
The Emerging Social Constitution
The liberal-conservative constitutional compact succeeded in establishing regimes of “order and progress”: that is how Latin American followers of Auguste Comte described authoritarian and statist governments that fostered economic growth. In the 1880s Latin America enjoyed export booms focused on primary goods, leading to an exceptional period of income growth and political stability.
Then came the transformative political incorporation of the working class and eventually the global economic crash of 1929–30. A series of fundamental changes followed. The most visible were economic; it became increasingly difficult to export primary goods and import basic finished ones. Where state involvement in the economic realm was once highly constrained, now government openly intervened to gain control of resource production and distribution. States took on new functions, creating central banks and regulatory agencies and fixing prices.
The Second World War also precipitated change. Latin America began once more to export food and other primary goods to the countries most directly involved in the conflict. Most nations in the region also had to replace the manufactured goods that they used to import from more industrialized countries now fighting in the war. The resulting gradual process of “import substitution industrialization” strengthened the urban industrial working class, which in turned demanded a more active role in public life.
In the face of all this novelty, the old exclusionary arrangement of society would be impossible to maintain. But the most favored sectors didn’t want to simply give up their profits. Nor did they want to fight civil wars over them. What to do?
The example of Mexico, 1917—not the crisis and armed violence of the Revolution, but the legal response that followed—appeared to be an attractive solution. Mexico’s constitution managed to integrate social demands into the traditional liberal-conservative agreement.
Inspired by the Mexican example, the leaders of the liberal-conservative compact elsewhere in Latin America recognized that it was necessary to reconsider the radical model that had been marginalized from previous constitutional discussions. This would be one of their more fundamental concessions aimed at damping social unrest.
Latin American constitutions began, one after the other, to add new social concerns to their existing legal matrix. But still that existing matrix was little altered. Social commitments were added to constitutions that remained conservative and restrictive concerning the organization of power. The new constitutions retained strong executives, limited suffrage, infrequent elections, indirect elections of officials, and powerful judiciaries prepared to restrict popular initiatives.
Multiculturalism and Human Rights
Since the end of the 1980s, Latin America has been undergoing a second wave of constitutional reform. Brazil adopted a new constitution in 1988, Colombia in 1991, Venezuela in 1999, Ecuador in 2008, and Bolivia in 2009. Argentina revised its constitution in 1994, and Mexico followed in 2011.
Most of these changes are products, in one way or another, of two grim trends. The first is political: the emergence of military dictatorships following the military coup against Chilean President Salvador Allende in 1973. The second is economic: the adoption of neoliberal reforms beginning in the late 1980s.
Military rule had profound effects. In Chile, for example, General Pinochet’s 1980 Constitution established numerous authoritarian enclaves: life-tenured senators, which allowed Pinochet to be part of the Senate during the democratic period; “designated senators,” which also allowed members of the military and police to be part of the Senate; and the requirement of super-majorities in order to change basic aspects of the institutional system (for example, education, the military, and the organization of Congress). Similarly, the 1967 Brazilian Constitution, enacted under the military rule of General Humberto Castelo Branco, sharply limited federalism and political and civil liberties. Large meetings were subject to government authorization, political parties were restricted to the ruling party and one opposition party, and direct suffrage—that is, voting for officials rather than for electors who would choose officials—was suppressed in the main cities for “security reasons.”
When democracy returned, countries needed to reconstruct their constitutions. And in addition to restoring a democratic design to the political process, constitutional reforms once more expanded basic rights. These changes gave special, sometimes constitutional, status to international human rights treaties that the countries had signed during the previous four or five decades. Argentina, Brazil, Bolivia, Colombia, Costa Rica, Chile, and El Salvador used the treaties to protect the rights that had been systematically abused by authoritarian governments.
The special legal status afforded human rights treaties has had important political consequences. In part, these initiatives fostered a reconciliation of certain parts of the political left with ideas about rights and constitutionalism. Some elements of the left had earlier disparaged these ideas as elements of a “merely formal” legality and democracy that created illusions about power and carried no real benefits for workers and the poor. The new legal status many of these constitutions granted to human rights also had an important impact on conservatives. Many conservative judges, genuinely committed to rule-of-law ideals, began to consider more seriously legal arguments based on the value of human rights.
The new democracies, along with governance reforms, implemented programs of “structural adjustment”: drastic reduction of public expenditures and the elimination of social programs. Austerity required statutory and sometimes even constitutional changes. For example, Brazil’s President Fernando Henrique Cardoso pushed through 35 constitutional amendments to facilitate privatization. The reform of Article 58 in the Colombian Constitution of 1991 provided more guarantees to foreign investors. Similar changes were made in Mexico, Peru, and Argentina.
The economic adjustment programs created an economic and social crisis, which ratcheted up pressure for a new wave of reform. The neoliberal programs increased social distress and levels of unemployment in countries where there were no solid safety nets. Millions of people suddenly found themselves in abject poverty, without means to ensure subsistence for themselves and their families. That period produced the 2001 crisis in Argentina, the “Caracazo”—violent protests in Venuzuela—and the presidential crisis in Ecuador. The state, which for the previous 40 years had guaranteed work and social protections for vast sectors of the population, was shrinking. Valuable state assets were hastily sold off with little public knowledge or scrutiny.
Protests exploded throughout the region, with demonstrators demanding that their constitutions deliver on promised social protections. The most famous of these insurrections, led by the Mexican Zapatistas in 1994, was provoked in part by Mexico’s acceptance of the North American Free Trade Agreement with the United States and Canada. Similar resistance developed in Bolivia’s water and gas wars in 2000 and 2003, respectively, as people rose up against the privatization of basic sectors of the national economy. The occupation of private land by the Landless Workers’ Movement in Brazil; efforts by squatters to occupy land in Santiago, Chile, and in Lima, Peru; the emergence of the piqueteros movement in Argentina; and violent actions protesting the exploitation of mineral resources across the region all were responses to the crisis created by austerity.
Old-fashioned, hypercentralized politics continues to undercut popular empowerment.
These and other disturbances inspired significant socio-legal reforms in Colombia, Bolivia, Ecuador, Venezuela, and Mexico. Today’s Latin American constitutions guarantee the protection of the environment, as well as access to health care, education, food, housing, work, and clothing. Some include guarantees of gender equality and mechanisms, beyond voting, for participatory democracy. The constitutions create institutions of referendum and popular consultation and introduce the right to recall legislators. Some constitutions recognize affirmative action rights. Strikingly, many of the new constitutions affirm the existence of a pluri- or multi-cultural state or national identity and provide special protection to indigenous groups.
The “Engine Room” of the Constitution
Constitutional reformers at the end of the authoritarian period achieved a great deal in advancing the interests of the most disadvantaged.
However, the reforms, though grand in scope, have had little impact on real lives. Decades after the approval of the social constitutions, economic inequality in the region has gotten worse or stayed at levels that rival those in Sub-Saharan Africa. Furthermore, prevailing legal doctrine throughout Latin America regards social rights as non-enforceable, mere affirmations of objectives to be pursued by the political branches. This does not mean that social rights are never enforced—for instance, in recent years, the Colombian judiciary has been playing a large role in vindicating the constitutional right to health care, established in the 1992 Constitution—but in general politicians and judges generally have not implemented and enforced the social rights incorporated in their constitutions.
One of the main reasons for the failures of constitutional reform is that the reformers concentrated their energies on delineating rights, without taking into account the impact that the organization of power tends to have upon those rights. The core of the democratic machinery remained unchanged, which left political controls largely in the hands of traditionally powerful groups.
The engineers of the liberal-conservative compact pursued a very different path. To guarantee protections of the right to property, for example, they knew they had to ensure those protections in the core design of political power, not simply announce a constitutional provision. So they typically proposed restrictions, legal and not, of political liberties when doing so promoted basic economic rights.
The strategy of recent reformers also contrasts with the approach of earlier generations of radicals who concentrated on politics: on producing political and economic change through mass political mobilization. Unlike today’s reformers, their forebears never subscribed to the (conservative) model of concentrated authority; they never spoke the liberal language of rights; and they were skeptical about the value of constitutional protections.
The problem with the new constitutions is not simply that they do not go far enough to reach the political “engine room,” where laws are created and implemented. That problem could be addressed in the next round of reform.
The problem is that by preserving an organization of powers that reflects the nineteenth-century model of concentrated authority, reformers present a contradictory design that undercuts their initiatives. The new constitutions embrace democratic and socially committed ideas about rights, while at the same time embracing a traditionally vertical political organization. But it is precisely the old hyper-presidentialist political organization that has thwarted the popular empowerment promised by the new constitutions. For example, Argentina’s political authorities refused to implement the participatory clauses incorporated in the 1994 constitution; Ecuador’s president systematically vetoed all initiatives directed at enforcing the newly created mechanisms for popular participation; and in Peru, Chile, Mexico, and Ecuador, indigenous leaders often suffered prison or repression when they tried to put in practice their newly acquired rights.
The challenges to securing basic rights and a stronger democracy in Latin America are great, but it is time for the working class and disadvantaged groups to break into that engine room. A strong presidency tends to create stability, but at what cost? Concentrated power also produces abuse.
The right reform strategy aims at empowering citizens at large. These kinds of changes may seem ambitious, but they are within reach; indeed, some have been achieved already. For instance, nearly all of Latin America has signed the Indigenous and Tribal Peoples Convention, which ensures that indigenous groups are consulted before governments carry out reforms that may significantly impair their rights. Although few constitutions have recognized this right to consultation, and even fewer countries have implemented it, many courts have taken it seriously and have helped begin to make it a reality.
Lesser reforms are also possible, and some of them have already been designed and put into practice. For example, in parts of Latin America, it has become easier for plaintiffs to gain legal standing, which broadens access to the courts. Small formal changes have led to significant shifts in the attitudes of courts regarding disadvantaged groups. Courts have become more sensitive to the demands of the poor. The courts are becoming a means for the poor to express demands that they normally cannot channel through the political system.
An extraordinary piece of self-criticism by Arturo Sampay explains why promoting social reforms through the constitutions, but without changing the basic organization of power, doesn’t work. Sampay was the drafter of the 1949 Argentine Constitution, during the government of General Juan Perón. That constitution incorporated a long and innovative list of social rights but also embraced Peron’s centralized, personalized, executive-centered model of power. In an article that Sampay published some years later, the jurist questioned his previous initiatives:
The Constitutional reform of 1949 was not properly conducive to the predominance of the people, [through] the exercise of political power by the popular sectors. This was due, first, to the faith that the triumphant popular sectors had in the charismatic leadership of Perón. Secondly, this was due to the same vigilant attitude of Perón, who did everything possible to prevent the popular sectors achieving actual power that could impair the power of the legal government. These facts helped the government to stay in power until the oligarchic sectors, in partnership with the armed forces, decided to put an end to the government. That was, then, the Achilles heal of the reform. And this explains why the Constitution died, like Achilles, at an early stage, by its enemy: it was most vulnerable precisely to those whom it most relied on for support.
Sampay recognized the fatal mistake that he and other members of his generation had made by not paying sufficient attention to the dynamics of power embedded in the constitution. Where presidential power is the sole guardian of the people’s power, the people are unlikely to be respected and heard.
Today’s social reformers should learn his lesson. The new constitutions need to unite principle and power. They need to make the organization of political power consistent with the social impulses that they have incorporated as rights. Otherwise, an inclusively democratic vision of social justice will continue to remain captive to an elitist, nineteenth-century model of politics.
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January 01, 2013
15 Min read time