—Vicente F. Benítez R., Constitutional and Comparative Law Professor at Universidad de La Sabana (Colombia)
Former Constitutional Court Justice Luis Guillermo Guerrero’s recent I-CONnect post offers a familiar, and initially persuasive, narrative about constitutional adjudication in a system of strong presidentialism. He underscores the risk that emergency powers and expansive executive authority “can easily become tools for bypassing ordinary democratic controls,” and he credits the Constitutional Court’s doctrinal adaptations with having “often been essential to the preservation of democratic order in Colombia.” Professor Guerrero is also careful to note the institutional risk of such expansions —each doctrinal step forward accumulates discretionary power that the constitutional text did not clearly anticipate— while insisting that this has “often been essential to the preservation of democratic order in Colombia.”
This response draws on a paper I am currently writing about Colombia’s unconstitutional constitutional amendment doctrine (UCAD), commonly known as the “substitution” doctrine. My point is not to deny that the Court has sometimes played a democracy-protecting role. It plainly has. The claim is narrower and, I think, more defensible: if Professor Guerrero’s principal justification for celebrating doctrinal expansion is that it preserves democratic order by taming executive overreach, then the substitution doctrine does not consistently bear witness to that justification—not only because it has sometimes under-enforced constraints on presidential empowerment, but also because it has over-enforced UCAD by stifling reasonable, non-authoritarian exercises of the amendment power. In other terms, at crucial points, the Court has abdicated, and at others, it has overreached, generating democratic costs that are hard to square with the stated rationale.
1. Theoretical Mismatch: a Democracy-Protecting End Built on a Schmittian Architecture
UCAD is often introduced as a solution to a standard puzzle: if amendments are legally authorized, on what basis can courts invalidate them? The Colombian Court’s key move is to reframe amendment review as a competence inquiry grounded in the constituent/constituted power distinction: the amendment power is delegated and therefore cannot “substitute” the Constitution that authorizes it (see Y. Roznai’s account on Colombia here). That seems, at first sight, a domesticated and liberal position—courts are not vetoing reforms they dislike; they are policing ultra vires acts.
But the deeper point is that this constituent-power architecture is not ideologically neutral. Colombia’s doctrine correlates closely with Carl Schmitt’s decisionist theory of constitutionalism (see here and here), and not merely by resemblance. In foundational decisions, the Court explicitly builds the substitution doctrine upon Schmittian ideas. Decision C-551/03 (the doctrine’s canonical starting point) not only deploys the constituent/constituted distinction as its conceptual backbone; it also cites Schmitt among the theorists supporting that framework.
In decision C-1200/03, the Court reinforces the same logic through the “identity and continuity” of the Constitution—again in a register that tracks Schmitt’s core claim that some constitutional content cannot be altered without dissolving the constitution as such. And later decisions that operationalize the substitution analysis —including, among others, C-588/09 and C-294/21, which explicitly build upon Schmitt’s work— continue to treat constitutional identity as something the Court can authoritatively identify and defend.
Why does this genealogy matter for Professor Guerrero’s “taming presidential power” thesis? Because Schmitt’s framework is built around the premise that constitutional unity rests on foundational political decisions, and that someone must “decide” when the ordinary legal order is insufficient—when an “exception” is present that demands a guardian’s intervention. Translated into Colombian amendment review, the Court must decide what counts as the Constitution’s implicit “core”, decide when a given change becomes “substitution,” and decide whether consequences and interaction effects are relevant or whether the analysis should remain text-bound.
That decisionist structure generates a paradox and a prediction. The paradox is that a doctrine celebrated for protecting liberal-democratic commitments draws its authority from an illiberal architecture suspicious of pluralism and comfortable with concentrated interpretive power. The prediction is practical: beyond occasional dramatic interventions that look like “democracy enhancing,” the same structure will also produce recurrent failures—under-enforcement (validating abusive amendments) and over-enforcement (invalidating plausible reforms by casting disagreement as substitution).
2. Qualitative Mismatch: Demystifying the Re-Election Saga and the Court’s Abdication Cases
Scholarship has focused —understandably— on the Second Re-election case (C-141/10) as the emblematic example of successful UCAD: a Court halts a powerful incumbent’s attempt to stay in office for twelve years, and the ruling is implemented (see, for example, here, here, and here). But to properly understand decision C-141/10, we must also examine less celebrated and more uncomfortable cases —especially the First Re-election case (C-1040/05)— because that earlier decision demystifies the later success and challenges the dominant narrative.
In decision C-141/10, the Court relied in part on the pernicious effects that the first re-election had already produced on the 1991 system of checks and balances. This judgment emphasizes how extended incumbency altered the timing logic of appointments and the effective independence of key oversight bodies, and how a second extension would deepen those distortions. Yet in decision C-1040/05 —faced with arguments about exactly these systemic consequences— the Court upheld the first re-election while adopting an effects-blind posture. It treated its remit as largely confined to whether the amendment text directly replaced an essential feature, and it resisted evaluating foreseeable institutional repercussions.
This juxtaposition matters for Guerrero’s thesis. If the substitution doctrine is a reliable instrument for preventing executive overreach, it should not first constitutionalize a major distortion of checks and balances (C-1040/05) and then, without a fully convincing doctrinal bridge, pivot into a more effects-sensitive, system-level intervention (C-141/10) (on these two approaches see here and here). The pattern looks less like a stable democracy-protecting doctrine and more like exception-selectivity: the Court shifts posture once it redescribes the political stakes as existential.
The problem becomes clearer once we widen the lens beyond re-election. A trio of “abdication” decisions illustrates how the Court endorsed constitutional designs that expanded presidential norm-making power and weakened timely judicial supervision. The 1991 Constitution reserved “statutory matters” (rights, elections, parties, key institutional structures) to Congress and subjected these statutory laws to ex ante constitutional review. Yet in decisions C-1200/03, C-970/04, and C-971/04, the Court upheld amendments that created pathways for the President to legislate on statutory matters through decrees when Congress failed to act within short —or even already expired— deadlines, with only deferred (ex post) judicial review.
Colombian scholar Manuel Quinche has described this dynamic as “constitutional elusion”: legal form is used to evade or dilute constitutional controls, producing practical effects before review can bite. These cases are directly relevant to Guerrero’s broader argument about control elusion. Professor Guerrero’s post treats the provisional suspension of Decree 1390 as necessary because delayed review risks becoming “merely symbolic.” The abdication cases show that substitution doctrine has, at times, helped constitutionalize precisely that sort of delay —authorizing executive regulation with meaningful legal effects before the Court can intervene— and this is particularly troubling given that Uribe was not only re-elected (with the separation-of-powers harms already noted), but was also able to operate within a constitutional design that empowered the President to legislate in statutory domains subject only to deferred judicial review.
But the mismatch between UCAD and democratic preservation runs in both directions: the same doctrine that can miss executive-driven risks can also overshoot by narrowing the space for legitimate constitutional politics—treating reasonable constitutional disagreement, even in non-presidential contexts, as an impermissible “substitution.”
3. Another Qualitative Mismatch: UCAD’s Over-Enforcement and the Stifling of Reasonable Amendment Politics
If Section 2 shows why UCAD is an unreliable tool for “taming” presidential power, the broader jurisprudence highlights a second, distinct tension with Professor Guerrero’s democracy-preservation rationale. Democratic order is not threatened only by executive aggrandizement; it can also be undermined when constitutional review excessively constrains a polity’s capacity to deliberate and decide —through amendment— on contestable institutional questions. In this register, substitution review functions less as a check on entrenchment and more as a device that can shrink the space for legitimate constitutional politics by converting reasonable, democratically enacted redesign into unconstitutional “substitution.”
Begin with the Public Servants amendments. These two constitutional changes focused on Colombia’s provisional public employees—people temporarily filling career civil-service posts until the process for appointing permanent career officials (a process that ordinarily includes competitive examinations and related merit-based steps) was completed. The 2008 amendment sought to convert many provisional appointees into permanent career officials if they met job requirements and competence criteria, effectively constitutionalizing a route of mass regularization that echoed statutory schemes the Court had already rejected. In decision C-588/09, the Court struck it down, holding that it displaced the Constitution’s meritocratic civil-service regime and equality commitments. Against that backdrop, the 2011 amendment presented itself as a “compromise”: rather than dispensing with merit selection altogether, it replaced the competitive exam with a points/score mechanism based on experience and academic credentials of provisional employees, and made their appointment depend on how that score compared to exam-takers’ scores. Yet in decision C-249/12, the Court likewise invalidated this second amendment, again reasoning that it undermined the Constitution’s core commitments to meritocracy and equal access to public office.
One can agree that these reforms were ill-designed. But what makes them important for present purposes is that they are not straightforward “executive overreach” episodes; they are contested choices about how to structure merit, experience, and transitional pathways in public administration. The Court’s substitution framing treated its own stringent reading of meritocracy (i.e., as virtually synonymous with competitive exams) as an “essential element,” leaving minimal room for democratic contestation over alternative designs, as Dixon and Landau have convincingly shown. This is a paradigmatic Schmittian vulnerability: once the Court speaks in the name of foundational “decisions,” ordinary disagreement can be redescribed as impermissible substitution.
A similar dynamic appears in the Personal Dose of Narcotics controversy. The 2009 amendment introduced a constitutional prohibition on the possession, transportation, and use of a personal dose, but it did not set criminal penalties. Instead, it gestured toward a public-health response authorizing educational, prophylactic, and rehabilitation measures. This amendment was widely understood as a political attempt to counter the Court’s earlier jurisprudence protecting the right to free development of personality, which, in doing so, invalidated the criminalization of possession/consumption for personal use (see decision C-221/94). In decision C-574/11, the Court avoided a full substitution merits resolution, but it signaled that reading the amendment as authorizing criminalization could trigger substitution concerns. This posture illustrates the doctrine’s ambivalence: rather than offering a stable competence analysis, substitution review becomes a shadow constraint that can harden the Court’s prior interpretation into something quasi-unamendable, even where, as Dixon and Landau have aptly shown, reasonable disagreement exists about constitutional meaning and policy.
Finally, the most institutionally sensitive arena: judicial governance and accountability. In decision C-373/16, the Court struck down the “Expert Committee” mechanism designed to investigate and prosecute high court judges, and in C-285/2016, it invalidated key elements of a redesigned judicial governance body meant to replace the old Judicial Council structure. These decisions were widely criticized domestically as corporatist and self-protective, precisely because they used constitutional identity language —judicial autonomy and self-government— to block reforms aimed at improving accountability and administrative performance. Whatever one thinks of these reforms, their central democratic function was institutional experimentation with accountability and governance. Quashing them through identity language illustrates how UCAD can narrow democratic choice even absent a clear presidential power grab.
Whether one endorses the reforms is not the key point here. The point is diagnostic: substitution doctrine’s decisionist architecture makes it unusually easy for a constitutional court to equate its own institutional position with the Constitution’s “essence,” and to frame admissible redesign as unconstitutional substitution. That is over-enforcement in its most troubling form. It is not merely a mistaken application, but a predictable vulnerability of a doctrine that concentrates authority in a “guardian” of constitutional identity.
4. Conclusion
Former Justice Guerrero is right to argue that Colombian constitutional review has repeatedly adapted to practical threats, and that delayed control can become control elusion. But if the benchmark is the preservation of democratic order against executive overreach, Colombia’s substitution doctrine is an unreliable witness. Its celebrated moment (C-141/10) sits atop an uncomfortable record: earlier validation of executive entrenchment (C-1040/05), endorsement of decree-based “constitutional elusion” (C-1200/03; C-970/04; C-971/04), and a line of over-enforcement cases in which substitution analysis curtails democratic contestation or plausibly entrenches judicial power (C-588/09; C-249/12; C-574/11; C-373/16; C-285/16).
The comparative implication is modest but important. Colombia should not be treated as a straightforward UCAD success story, nor should substitution doctrine be invoked as clean evidence that judicial empowerment reliably “tames” presidential power or preserves democracy. The doctrine’s Schmittian foundations help explain why it can sometimes block democratic erosion in dramatic fashion, and yet also generate recurring pathologies of abdication and overreach once it becomes routine.
Suggested citation: Vicente F. Benitez R., A Response to Luis Guillermo Guerrero: Demystifying the Unconstitutional Constitutional Amendment Doctrine in Colombia Int’l J. Const. L. Blog, Mar. 6, 2026, at: https://www.iconnectblog.com/a-response-to-luis-guillermo-guerrero-demystifying-the-unconstitutional-constitutional-amendment-doctrine-in-colombia/