—Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
Comparative constitutional law has a particular taste for unraveling constitutional waves. Jon Elster, in his Forces and Mechanisms in the Constitution-Making Process, identifies seven waves from the late eighteenth century to the end of the twentieth century. Tom Ginsburg, when examining the global spread of constitutional review, points out three waves that led to the most current configuration of constitutional review worldwide. Doreen Lustig and J. H. H. Weiler, drawing from Mauro Cappeletti’s Judicial Review in the Contemporary World, wrote that they would pay homage to that great author by exploring the recent developments of constitutional law through the “metaphor of waves.” It is a fascinating discussion that connects cross-national historical developments with their respective constitutional designs, as if both environmental and design factors walk hand in hand across various countries that are connected by some common ground. Comparative studies have already shown the correlation between geographic diffusion and constitutional change, leading neighboring countries to follow certain patterns that could be framed as waves. Also important, regime changes and political crises have a strong impact on constitutional change, so the waves that take place in the political realm may also imply waves in constitutionalism. In Latin America, this correlation seems quite strong. But is it really? And what about the recent political and constitutional events in the region? Could they be framed in the “metaphor of waves”?
One of the most fascinating and impactful books on Latin American constitutionalism is Roberto Gargarella’s Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution. It is impressive how Gargarella connects the diverse and highly conflictive historical narratives of a region with the rise of the rich – and sometimes experimental – Latin American constitutionalism. It is still a largely overlooked constitutionalism in comparative constitutional studies despite those two hundred years of experiments, practices, crises, populisms, and – why not? – political and constitutional successes. The coincidence of movements for independence in the early nineteenth century, when modern constitutionalism was still in its infancy, furthered a series of extremely interesting constitutional projects and designs, even more so when applied in a region with so many social disparities and oligarchical control over institutions. It is the moment of rebellions (if not revolutions) challenging preservationist movements, of radicals, liberals and conservatives negotiating with each other. It is also the moment when Latin American constitutionalism would replicate, with various adaptations, some political and constitutional designs from the neighboring North, such as presidentialism, federalism, and, a bit later, the concrete or diffuse system of judicial review.
Gargarella concentrates his analysis on two central features of Latin American constitutionalism that gained strength over those two hundred years. The first feature, largely inspired by the lessons of his fellow Argentinean Professor Carlos Santiago Nino, is that presidentialism in Latin America means hyper-presidentialism and that this is the “engine room of the constitution;” the second is the vast presence of economic and social rights in the most recent Latin American constitutions, but which are more promise than reality. His very interesting thesis is straightforward: “the institutional system had a significant responsibility in the consolidation of the political, economic, and social system, which remains, after 200 years of independence, profoundly unequal.” The engine room of the Constitution – and particularly hyper-presidentialism – is intimately connected to the perseverance of inequality in the region.
It is a well-founded thesis and an inspiring message of the value of Latin American constitutionalism. More importantly, it brings the region’s rich constitutional history into the international spotlight. Yet, it naturally comes with some controversies. There is the difficult balance between the need to provide a more overarching perspective of Latin American constitutionalism and the various historical and contextual narratives that are not easily translatable into a common regional pattern. In fact, constitutional designs in the region have become increasingly diverse over the years. Latin American countries have largely diversified in the ways they manage their presidentialisms, mechanisms of constitutional change (replacement and amendments) as well as their constitutional courts. Moreover, they could depart from the premise of “‘legal origins’ as determinants of contemporary outcomes” and create designs of their own, sometimes significantly distinct among themselves. If there were waves – and there certainly existed various impulses for common changes both in the political and constitutional realms -, their translation into similar institutional frameworks looks less pronounced than the very idea of a Latin American constitutionalism might depict. Inequality is a common ground, and it is indeed both cause and consequence of such Latin American constitutionalism, but the variants that came out of such a social structure have become significantly diverse. Even the waves seem less homogenous across the region.
From a Brazilian perspective, for example, the very argument of hyper-presidentialism tells only part of the story. Brazilian history is of strong presidents, for sure, but it is largely dependent on political calculations with Congress and, more recently, also with the Supreme Court, both very strong institutions. The country has historically not managed its own conception of presidentialism, normally titled coalitional presidentialism, very well, and it is no wonder that, despite its reasonable capacity of providing some governance, it has had to continuously deal with serious gridlock, challenging party fragmentation, and, more recently, diffuse politicization of the judicial system. Parliamentarism or semi-presidentialism always reappear as potential solutions for political crises in Brazil, and presidential impeachments are not a rare phenomenon.
However, it seems that Brazil is not alone: if we look at what has been taking place in Peru in the last years, for instance, where two presidents were impeached in less than three years and where party fragmentation is high, we could argue that there too presidents are not that strong and are highly dependent on those other institutional variables. Peru features a more unstable political system and fragile party system than Brazil, so comparisons should be made with a grain of salt, but the point here is simple: presidential systems are multidimensional, so even presumably strong presidents can become very weak quite rapidly. Constitutional design just tells us one part of the story, and sometimes not the most decisive one. Moreover, even where presidents are strong, this may not be a bad call for constitutional design. Cheibub, Elkins and Ginsburg say that, “prima facie… democracy is not incompatible with expanded executive lawmaking” and that the “Latin American presidential pattern is one to be celebrated rather than condemned.” Their position can be naturally contested, but it at least shows that we are working in a field full of uncertainties. If we extend such an analysis to other variables – for instance, the strength of constitutional courts, political parties, and mechanisms of constitutional change -, the conclusion would be that Latin American countries have surfed on waves by equilibrating such variables in quite diverse ways.
Interestingly enough, the latest political and constitutional developments in the region have again brought a call for the “metaphor of waves,” as if the region were passing through similar movements that may lead to new political moments and perhaps new constitutional moments. In Brazil, the expectations of President Bolsonaro’s defeat in the October 2022 elections usually come with some analytical debates over the return of a “left-wing wave” in Latin America. Peru, with the recent tight victory of Pedro Castillo, is just the most recent case, but, before that, Argentina (with Alberto Fernández in 2019) and Bolivia (with Luis Arce in 2020) showed that possibly what looked until recently a region swinging to the right, as had happened in Brazil (Bolsonaro in 2018), Argentina (Mauricio Macri, 2015-2019), Chile (Sebastián Piñera in 2018), Colombia (Iván Duque in 2018), and Uruguay (Luis Alberto Lacalle in 2020), may be less sustainable than first thought. Even Chile, with its astounding developments towards a new constituent assembly largely composed of independents and the left, contributes to such a perception, while the recent protests in Colombia point out a large dissatisfaction with how the right-wing Iván Duque has managed the COVID-19 crisis and other issues. It is thereby plausible to sustain that there is a new wave and that this means that Brazil may elect the Worker’s Party (PT) candidate, Lula da Silva, in 2022.
However, to what extent are we talking about similar movements across countries? Besides inequality, which has been exacerbated because of the COVID-19 crisis, some analysts point out a structural crisis in the institutionalization of political parties as a common feature of Latin America’s presidential failures, a reality that has become more visible through the growing polarization in the region. In Latin America, possibly Jair Bolsonaro is the most polished example of the radicalization of the previous wave that led to typical outliers from inexpressive parties to win the presidential elections. Yet Bolsonaro looks himself also an outlier in the region. Even if Bolsonaro surfed on that wave, he was part of a diverse movement that is not itself identified with none of such other cases above. It would be misleading to place him among politicians such as Macri, Piñera, Duque or Lacalle. Bolsonaro is part of an international extreme-right wave that is normally identified with Donald Trump or Viktor Orbán, though here too comparisons are not straightforward. This is all to say that waves are also multidimensional, and it is not simply because Brazil is in Latin America that the country might now be swinging to the left. It might be so because perhaps that other wave may be also enduring some challenges, such as Trump’s defeat and Orbán’s growing opposition and potential defeat next year. Or it may be both.
Latin America is a fascinating region for exploring the various dimensions of political and constitutional development. It is the region in the globe that due to its social and historical confluences provides significant material for comparing by similarity or difference. No other region in the globe, perhaps, shares so many common histories and combine so many similar institutional frameworks, particularly its presidential form of government. It is the perfect scenario thereby for applying the “metaphor of waves”: the synchronicity of some of its regime changes, constitutional moments, and political swings is beyond doubt. Its over two hundred years of constitutionalism and its “long – [and bumpy] – road toward egalitarianism,” as Gargarella points out, should be studied carefully, as it has many lessons for the world. Yet its waves have increasingly appeared to be less locally overarching and more globally connected, even if to merely some specific developments. The globalization of waves may also mean the fragmentation of waves. This is certainly a dilemma for comparative studies that Latin American seems to be raising.
Suggested citation: Juliano Zaiden Benvindo, The “Metaphor of Waves” in Latin America: A Fragmentary Reality? Int’l J. Const. L. Blog, Jun. 23, 2021, at: http://www.iconnectblog.com/2021/06/the-metaphor-of-waves-in-latin-america-a-fragmentary-reality/
. Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 368
. T. Ginsburg, ‘The Global Spread of Constitutional Review’ in K. Whittington, R. D. Kelemen, and G. A. Caldeira (ed.), The Oxford Handbool of Law and Politics (Oxford University Press 2010) 82
. Mauro Cappelletti, Judicial Review in the Contemporary World (1971)
. Doreen Lustig and J H H Weiler, ‘Judicial Review in the Contemporary World – Retrospective and Prospective’ (2018) 16 International Journal of Constitutional Law 318
. Z. Elkins, T. Ginsburg, and J. Melton, The Endurance of National Constitutions (Cambridge University Press 2009) 134-35
. ibid 137
. Jon Elster 364
. R. Gargarella, Latin American Constitutionalism,1810-2010: The Engine Room of the Constitution (Oxford University Press 2013)
. See Carlos Santiago Nino, ‘The Debate over Constitutional Reform in Latin America’ (1992) 16 Fordham Int’l L. J. 635, 635-51; C. S. Nino, ‘Transition to Democracy, Corporatism, and Presidentialism with Reference to Latin America’ in D. Greenberg et al. (ed.), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press 1993) 46-64
. R. Gargarella 10
. See J. Z. Benvindo, C. Bernal, and R. Albert, ‘Introduction: Facts and Fictions in Latin America Constitutionalism’ in R. Albert, C. Bernal, and J. Z. Benvindo (ed.), Constitutional Change and Transformation in Latin America (Hart Publishing 2019) 1-18
. See José Antônio Cheibub, Zachary Elkins, and Tomi Ginsburg, ‘Latin American Presidentialism in Comparative and Historical Perspective’ (2011) 89 Tex. L. Rev. 1731
. See Sergio Abranches, ‘Presidencialismo de Coalizão: O Dilema Institucional Brasileiro’ (1988) 31 Dados – Revista de Ciências Sociais 5, 5-34; S. Abranches, Presidencialismo de Coalizão (Companhia das Letras 2018) 440, 440
. Fernando Limongi, ‘A Democracia no Brasil: Presidencialismo, Coalizão Partidária e Processo Decisório’ (2006) 76 Novos Estudos CEBRAP 17, 17-41; A. C. Figueiredo and F. Limongi, ‘Instituições Políticas e Governabilidade: Desempenho do Governo e Apoio Legislativo na Democracia Brasileira’ in C. Ranulfo (ed.), A Democracia Brasileira: Balanços e Perspectivas para o Século 21 (Editora UFMG 2007) ; A. C. Figueiredo and F. Limongi, ‘Political Institutions and Governamental Performance in Brazilian Democracy’ in D. de la Fontaine and T. Stehnken (ed.), The Political System of Brazil (Springer 2016)
. See B. Ames, The Deadlock of Democracy in Brazil (University of Michigan Press 2001)
. See Cesar Zucco Jr. and Timothy Power, ‘Fragmentation without Cleavages? Endogenous Fractionalization in the Brazilian Party System’ (2021) 53 Comparative Politics
. See Juliano Zaiden Benvindo, Brazil’s Increasingly Politicized Supreme Court, Int’l J. Const. L. Blog, Feb. 16, 2017, at: http://www.iconnectblog.com/2017/02/brazils-increasingly-politicized-supreme-court/
. See Juliano Zaiden Benvindo, Parliamentarism in Brazil: Stability for Whom? Int’l J. Const. L. Blog, Aug. 27, 2017, at http://www.iconnectblog.com/2017/08/parliamentarism-in-brazil-stability-for-whom/
. See Rafael Mafei Rabelo Queiroz, ‘Abuse of Rhetorical Power and Presidential Impeachment in Brazil: Reflections from Legal History’ (2020) Abuse of Rhetorical Power and Presidential Impeachment in Brazil: Reflections from Legal History 215, 215-26
. José Antônio Cheibub, Zachary Elkins, and Tomi Ginsburg 1730
. See Christopher A. Martínez, ‘Presidential Instability in Latin America: Why Institutionalized Parties Matter’ (2020) Government and Opposition 1, 1-22
. See Steven Levitsky, ‘Democratic Survival and Weakness’ (2018) 29 Journal of Democracy 102, 102-13
. See R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press 2014) 244
. R. Gargarella 206