Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America

Abstract

Modern constitutionalism, inaugurated in the eighteenth century by the American (1787-1789) and French (1789-1791) constitution-making processes, assigned to codi fied constitutions a very specific function?to prescribe an institutional framework that would establish guarantees against the arbitrary use of power. However, already in 1800, Napoleon's constitution prescribed a personalistic rule that concentrated great power in his hands and formally made him emperor through its revision in 1804.1 When and why can we expect constitution-making processes to produce an institutional frame work that formally serves constitutionalism? To answer this question, a simple and general typology is presented that captures both the legal/political character of constitution-making processes and their dynamic nature. Unilateral constitution-making processes, where a cohesive and organized politi cal group controls the agencies required to amend or create the constitution, are differ entiated from multilateral processes, where at least two different political groups control those agencies. These two types of constitution-making processes are fruitful indepen dent variables that have considerable advantages over other commonly used variables. The hypothesis of this article is that multilateral constitution-making processes tend to establish institutional frameworks consistent with constitutionalism. Taking these types of constitution-making processes as independent variables, and the Latin Ameri can region as the empirical arena, the hypothesis is tested by focusing on some of the most important institutional mechanisms to prevent arbitrariness?independent judicial institutions. The Latin American region makes for a good laboratory for assessing dif ferent explanations for the creation of independent judicial institutions. The countries examined share a common legal heritage, political culture, civil legal system, and presidential regime, but at the same time retain important variations in judicial insti tutions as well as in other political and economic conditions. Based on an original database covering eighteen countries from 1945 to 2005, the analysis shows that au tonomous judicial councils, strong constitutional adjudication organs, and autonomous prosecutorial institutions are more likely to be created by multilateral constitution making processes.