ARTICLE

The constitution of inequality.Constitutionalism in the Americas,1776–1860

Roberto Gargarella*

Constitutional democracies in North and South America appeared after a longperiod of revolutionary struggles in pursuit of independence. This essayassumes that these movements were profoundly egalitarian and expressedtheir egalitarianism in two basic dimensions—the personal and the collective.On the personal level, the revolutionaries’ main claim was that all peoplewere created equal and endowed with similar basic capacities. On the collec-tive level, they claimed that their communities should become self-governing.In other words, neither a foreign country nor a particular family or groupshould rule their societies in the name of the populace at large.

However, the main constitutional projects growing out of the revolutions ofthe Americas severely distorted the principles that had given those revolutionslegitimacy and ceased to profess egalitarian goals. Some of these constitutionswere clearly hostile to the ideal of personal autonomy, and some rallied thecoercive powers of the state in favor of a particular religion. Moreover, thelarge majority of these constitutions actually obstructed the achievement ofself-governing communities. For example, they discouraged civic participa-tion; they reduced popular safeguards to a minimum; they reserved the lastinstitutional word, as it were, to the least democratic branch of government;and they organized a countermajoritarian political system to replace, ratherthan discover or refine, the will of the people.

What follows is an exercise in comparative constitutionalism, focused on thethree main constitutional models that appeared after the revolutions for inde-pendence that took place in the United States, in the late eighteenth century,and seven Latin American countries (Argentina, Chile, Colombia, Ecuador,Venezuela, Mexico, and Peru), in the early nineteenth century. The threemodels are the radical, the conservative, and the liberal, distinguishing threedifferent approaches to the revolutions’ two egalitarian goals, described above.

While the radical model sought to strengthen communal self-governmentat the expense of individual autonomy, the liberal model tended to do theopposite, accepting the sacrifice of communal self-government in the name of

© Oxford University Press and New York University School of Law 2005, 1I·CON, Volume 3, Number 1, 2005, pp. 1–23

* Professor of constitutional law and legal philosophy, Universidad Torcuato di Tella, Buenos Aires.

individual choice. Finally, the conservative approach tended to deny bothegalitarian claims. All three are examined herein.

1. Born egalitarian1.1. Radicalism and majority willThe independence revolutions were invariably characterized by egalitarian ideas,given that they were manifestations of political activism that involved the partic-ipation of many people who believed their basic rights had been violated. Mostrevolutionaries explicitly espoused the idea of self-government, reacting to thesense that other nations had been making decisions for them arbitrarily. Theirbasic claim, such as the call for “no taxation without representation” in NorthAmerica, was that people in colonies should have the same rights as were enjoyedby the people of the colonizing power. More generally, these revolutionary move-ments were egalitarian in their defiance of hierarchies and honorific distinctions.Starting from the assumption that all people were born equal, the revolutionsprofessed to be ready for many of the consequences that followed from this claim.

The importance of egalitarian assumptions is clearly reflected in the U.S.Declaration of Independence, which in its first line states as “self-evident truths”:

That all men are created equal; that they are endowed by their Creator withcertain unalienable rights; that among these are life, liberty, and the pursuitof happiness; that, to secure these rights, governments are instituted amongmen, deriving their just powers from the consent of the governed . . .

This egalitarian and antihierarchical view can be found in many of thepolitical discourses of the time. Employing a rhetoric not unlike that of theFrench counterparts who came later, the American revolutionaries said, forexample: “You fought, conquered and gained your liberty—then keepit . . . Trust it not out of your own hands; be assured, if you do, you will nevermore regain it.”1 Fearing the concentration of power “in the hands of the few,”they asserted that “as soon as the delegated power gets too far out of the handsof the constituent power, a tyranny is in some degree established.”2 Most of all,they objected to the emerging “aristocratic” components of the new institu-tional system. As one militant, using the pseudonym of Cato, asserted, “[the]mode in which [the representatives] are appointed and their duration, will leadto the establishment of an aristocracy.”3

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1 See MORTON BORDEN, THE ANTIFEDERALIST PAPERS 72 (1965).

2 See MICHAEL SHERMAN, A MORE PERFECT UNION: VERMONT BECOMES A STATE 190 (1991).

3 See generally THE ESSENTIAL ANTIFEDERALIST (William Allen and Gordon Lloyd, eds., 1985). Otherexamples of the same ideas appear in George Mason, Objections to the Constitution of Power formedby the Convention, 1787; Richard Lee, Oct 10th, 1787; the Letters of Centinel, Oct. 5th, 1787; JohnDe Witt, Nov. 5th, 1787; The Address and Reasons of Dissent of the Minority of the Convention of theState of Pennsylvania, Dec. 18th, 1787.

In Latin America, the same Rousseauesque trend nourished the radicals’critique of the old authoritarian regimes and was incorporated directly intothe texts of the new constitutions.4 The early constitution of Venezuela,drafted in 1811, represented one of the first significant documents inspired byFrench ideology. In this text, the Venezuelan patriots made reference to thenew social contract that would allow the people to emerge from the supposedlysavage state of nature that distinguished the earlier period of Spanish domi-nation.5 In the famous Oración de Abril, Rio de la Plata leader José Artigas wasalso apparently inspired by the French model.6 Artigas expounded on theurgent need to adopt a new constitution as a way of protecting the rights ofthe people. “We are still ruled by the faith of men,” he said, “and we still lackthe safeguards of the contract.”7 Similarly, in Mexico, the revolutionary priestMiguel Hidalgo evidenced his commitment to radical principles in the 1810Bando sobre tierras y esclavos (instructions on land and slaves), in which hecalled for the redistribution of land and proclaimed the liberation of slaves.8

Following Hidalgo’s precepts, another famous revolutionary priest, José MariaMorelos y Pavon, also advocated the redistribution of land to the people whoworked it and called for the confiscation of property belonging to the enemiesof the revolution. In addition, in the Mexican constitution of 1814—the con-stitution of Apatzingán—he formalized these concepts: national sovereigntyresided in the people; law was the “expression of the popular will,” with theaim of securing “common happiness,” and the government’s only purpose wasto protect citizens brought together “of their own free will.”

These egalitarian impulses achieved a first and rather obvious institutionalexpression through a strong commitment to collective self-government and,almost in a natural progression, to majority rule.9 Typically, within the three-fold organization of power generally approved at the time, radicals considered

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4 See generally AMÉRICA LATINA ANTE LA REVOLUCIÓN FRANCESA (Leopoldo Zea, ed., 1993).

5 See generally Antonio Colomer Viadel, La revolución francesa, la independencia y el constitucional-ismo en Iberoamérica, in AMÉRICA LATINA, supra note 4.

6 See Eugenio Petit Muñoz, ARTIGAS Y SU IDEARIO A TRAVÉS DE SEIS SERIES DOCUMENTALES (1956); D. Rock,The European Revolutions in the Rio de la Plata, in THE INFLUENCE OF 1848 REVOLUTIONS IN LATIN

AMERICA (Guy Thomson, ed., 2002); John Street, ARTIGAS AND THE EMANCIPATION OF URUGUAY (1959).

7 Born in Montevideo in 1764, Artigas became Uruguay’s main revolutionary leader during thefight for the independence.

8 See JAN BAZANT, A CONCISE HISTORY OF MÉXICO. FROM HIDALGO TO CÁRDENAS, 1805–1940 17–19(1977).

9 See GORDON WOOD, THE AMERICAN REVOLUTION: A HISTORY 51 (2002). At the beginning of the revo-lutionary process, this commitment found expression in very basic things such as “an expandedsuffrage, the use of the ballot rather than the customary oral voting, the opening of legislativemeetings to the public, the printing of legislative minutes, and the recording of votes taken in thelegislatures. All these proposals enlarged the political arena and limited the power of those whoclung to the traditional ways of private arrangements and personal influence.”

the legislature the most important branch, given its democratic character, andtended to reject institutional arrangements that allowed other branches tointerfere with legislative decisions. Radicals further favored a “strict separa-tion” of powers whereby no branch had the right to interfere with the actionsof the others. As Maurice Vile explains in his study on the first constitutionaldiscussions in the U.S.: “they [the radicals] all adhered to the doctrine of theseparation of powers, and they all rejected, to a greater or a lesser degree, theconcept of checks and balances.”10 They saw the strict separation doctrine asthe best way of allowing the majority will to prevail.

Most of the first radical constitutions in the U.S.—that is to say, the stateconstitutions that were approved prior to the adoption of the federalConstitution of 1787—created systems of strict separation. In Latin America,too, this idea acquired a certain importance among advocates of populism.The Mexican constitution of 1814 seemed committed to that principle. Morecontroversially, some scholars describe the Mexican constitution of 1857, atleast in its first draft, as exemplifying this concept.11 In 1813, the first consti-tution proposed for the Banda Oriental region (including what is now Uruguayand part of Brazil) explicitly prohibited “mutual interference” betweenbranches. Article 21 states, “the Government of this province will neverexercise legislative and judicial functions, or the functions of either one; thelegislative branch will never exercise executive and judicial functions, or thefunctions of either one. The judiciary will never exercise legislative and execu-tive functions, or the functions of either one.”

In many cases, the radical groups supported the creation of unicameral,rather than bicameral, legislatures. In their view, a bicameral legislatureentailed a division of the popular will, which must be singular and indivisible;any attempt to fragment it had to be resisted. More important, radicals rejectedthe particular type of bicameral legislature that their opponents proposed—namely, a “conservative” senate, which would not only restrain the decision-making powers of the majority but also guarantee a privileged and relativelypermanent place in the legislature—that is to say, a fixed percentage of seats—for the powerful few.

The proposal for a unicameral legislature gained support in the U.S. during theyears that followed independence. An important example is found inPennsylvania’s 1776 constitution, which provided for a unicameral legislaturewith members elected to one-year terms. Some other state constitutions, inVermont and Georgia, for example, followed the Pennsylvania model. In LatinAmerica, too, many political leaders preferred a unicameral congress, consider-ing the senate to be an aristocratic institution. An early proposal for a unicamerallegislative body was advanced in Mexico by the Apatzingán constitution of 1814.

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10 See MAURICE J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 133 (1957).

11 See JOSE ANTONIO AGUILAR RIVERA, EN POS DE LA QUIMERA. REFLEXIONES SOBRE EL EXPERIMENTO CONSTITU-CIONAL ATLÁNTICO (2000).

In Peru, the unicameral concept was broadly supported in early constitutionaldebates and was realized in the liberal constitutions of 1856 and 1867.

The radicals’ desire to strengthen the powers of the legislative branch had,as an obvious corollary, the goal of limiting the powers of the executive. Formost of them the creation of a powerful executive implied a return to theancient model of domination, as reflected in the Venezuelan constitution of1811, which “dissolved” the executive power and created a plural executive.Undoubtedly, the decision to have three different executive heads arose fromthe delegates’ fear of a new tyranny; it also reflected their absolute confidencein the transformative effect of the new laws.

Another significant element in the radicals’ political program was thestrengthening of relations between the representatives and the people, aimed atempowering the latter. During the period of so-called radical constitutionalismin the U.S., we find numerous initiatives aimed at increasing the representativecharacter of the political system. They included, for example, an executive electedby the legislature (found in nine of the eighteen earliest constitutions of theindependent states); no veto power conceded to the executive; popular election ofmost government officeholders; a directly elected senate (except in Maryland);rotation of senators (New York, Delaware, Virginia); and rotation of most of theimportant government officials, such as sheriffs, coroners, and governors(Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia).12

Radicals were typically very skeptical of the judicial system as well, becauseof its implications for the democratic organization of the country. In principle,at least, an increase in the powers of the judiciary seemed to imply a decreasein the democratic powers of the citizenry. The dispute over the functions of thejudicial branch commonly translated into a dispute over the question of who,or which institution, should have the “final say” within the political system.For radicals, obviously, the final say had to be in the hands of the citizenry ortheir delegates in congress; the political branches should prevail over the non-political ones. For example, the radicals of Pennsylvania decided to create aunique institution of popular origin to which would be entrusted the task ofconstitutional revision—a Council of Censors, independent of the executive orlegislative branches, which would be elected every seven years for a one-yearterm. Other radicals advocated jury nullification—the doctrine that jurorshave the right not to enforce a law they consider unjust. This doctrine reflectedthe radicals’ “view of the jury as a democratic institution in which citizensdeliberate, not only about the facts of the case but also about the justice of thelaw as applied to the case.”13

In Latin America, the judicial institution was born weak. Its members weretypically too close to the political authorities who appointed them. It was perhapsbecause of this lack of autonomy that the radicals were less concerned with the

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12 See DAVID LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 104–5 (1988).

13 See generally JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY (1994).

judicial branch. Nevertheless, there were initiatives aimed at reducing the scopeof judicial powers and enhancing legislative authority as seen, for instance, in theColombian constitution of 1863 and in the “Saint Thomas Program,” a set ofpolitical reforms drafted in 1858 by a radical group of Venezuelan federalists.14

Finally, and importantly, majoritarians tried to strengthen popular controlover public affairs by decentralizing the decision-making process—that is, bydefending federalism. Ideally, a more federal country was synonymous with amore democratic—indeed, an authentically self-governing—community.Federalism became, in fact, one of the most significant and problematic issuesduring the postrevolutionary period. In the U.S., it was, arguably, the issuemost discussed in the constitutional debates during the Federal Convention. InLatin America, federalism also constituted a significant political issue,15 butmost of the disputes were not solved through discussion in the press or indemocratic forums but simply created opposing belligerent camps. Wars overfederalism divided Venezuela for most of the nineteenth century. Similarly, inColombia, the dispute between federalist and antifederalist groups also definedthe century; the constitutions of 1821, 1832, 1853, and 1863, for example,reflected in their content the triumph of the federalist side.16 In Mexico, manyof the most distinguished political leaders of the century—such as VicenteGuerrero, Lorenzo de Zavala, Juan Alvarez and Benito Juárez—defendedthe federalist cause. Constitutions such as those of 1824 and 1857 partiallyincorporated the demands of federalist groups although none of them, andparticularly the first one, fully satisfied their claims. In Argentina, the pressureof federalist groups was decisive in the defeat and final abrogation of the 1819and 1826 constitutions and was also an important feature of the debates thatculminated in the constitution of 1853.

1.2. Rights and virtueA corollary of the radicals’ commitment to the majority principle was theirrestrictive approach to individual autonomy and individual rights. The politicalelites tended to associate radicalism with rights violations in the wake of theJacobin experience in France and the revolution by people of color in Haiti.Undoubtedly, the harsh experience of the initial years of the revolutions inAmerica—in which radicals played a significant role—gave radicalism a badname, as many people associated it with bloody revolts, and the mobilization ofthe masses with violence and the destruction of private property. There wereclear tensions between the promotion of majority claims and the promotion ofindividual rights, and radical theory was not well equipped to deal with them.

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14 See generally RAMON DÍAZ SÁNCHEZ, GUZMÁN. ECLIPSE DE UNA AMBICIÓN DE PODER (1950); MARIANO

PICÓN SALAS, VENEZUELA INDEPENDIENTE, 1810–1960 (1962).

15 See generally CLAUDIO VÉLIZ, LA TRADICIÓN CENTRALISTA DE AMÉRICA LATINA (1984).

16 See Robert Gilmore, Nueva Granada’s Socialist Mirage, in 36 THE HISPANIC AMERICAN HISTORICAL

REVIEW, 190–210 (1956).

Most of all, the radicals subordinated the safeguarding of individual rights tothe “will of the majority.” For many, then, the triumph of populism implied theend of all rights. Furthermore, the radicals’ concern with cultivating a virtuouscitizenry reinforced the idea that their project was incompatible with the indi-vidual’s autonomous life choices.17 The profound egalitarianism implicit in theradicals’ commitment to majority rule thus tended to be brutally imposed at theexpense of people’s right to live as they wished.

The radicals’ wholesale endorsement of the popular will was the product oftheir belief in the infallibility of the people’s claims. As Ignacio Rayón argued,majority will was “inerrante,” unerring.18 This dogmatic view was reflected invarious institutional projects. The Apatzingán constitution of 1814 provides anice example of the risks associated with radical proposals.19 After declaringthat law was “the expression of the popular will” aimed at obtaining “collectivehappiness” (art. 18) and after affirming legal equality (art. 19),20 article 20 ofthe constitution articulated its populist features, stipulating that all citizensmust obey the law unconditionally. In the constitution, this statement was notthough to belie the citizens’ freedom or their reason; it merely represented thesacrifice of the individual intelligence to the popular will. Meanwhile, article 41included, among the onerous duties that revolutionary citizens owed theircountry, “complete submission to its laws, absolute respect for its authorities,immediate disposition to contribute to the public expenses and voluntarysacrifice [sic] of their goods and their lives when it becomes necessary . . .” And,it asserted, exercise of these virtues “represents true patriotism.”

In the U.S., this populist view found expression in many of the revolutionaryconstitutions. One may see this, as well, in the drive to institutionalize a basisfor virtue. The constitutions of Maryland, South Carolina and Georgia, asGordon Wood explains, “authorized their state legislatures to create in place ofthe Anglican Church a kind of multiple establishment of a variety of religiousgroups, using tax money to support ‘the Christian religion,’ [while] bothConnecticut and Massachusetts continued to recognize the modified but stillofficial status of the established Congregational church.”21 During the time of

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17 See generally MICHAEL SANDEL, DEMOCRACY’S DISCONTENT. AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY

(1996).

18 Born in Tlalpujahua, Mexico, in 1773, Ignacio Rayón was a lawyer that joined the revolution-ary priests Hidalgo and Morelos in their early fight for Mexico’s independence. Hidalgo’s secretaryof state and foreign relations, Rayón later collaborated with Morelos in the elaboration ofApatzingán’s Constitution of 1814.

19 See Maria del Carmen Borrego Plá, La influencia de la Francia revolucionaria en México: El texto con-stitucional de Apatzingán, in AMÉRICA LATINA supra note 4. See generally ERNESTO DE LA TORRE VILLAR,LA CONSTITUCIÓN DE APATZINGÁN Y LOS CREADORES DEL ESTADO MEXICANO (1964).

20 The conservative forces would later reject even this modest adherence to egalitarianism. Thus,the Constitution of 1824 would not even mention equality before the law.

21 See GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC 427 (1969).

the national constitutional debates, many antifederalists refused to include inthe constitution a principle of state neutrality regarding religion. For example,Charles Turner asserted that “without the prevalence of Christian piety andmorals, the best republican Constitution can never save us from slavery andruin.” Turner, like many antifederalists, expected the new constitution toinclude support for a form of education “as shall be adequate to the divine,patriotic purpose of training up the children and youth at large, in that solidlearning, and in those pious and moral principles, which are the support, thelife and soul of a republican government and liberty, of which a freeConstitution is a body.” The promotion of religion, he assumed, would renderthe people “more capable of being a Law unto themselves.”22

2. The conservative reaction

The initial years of radicalism were followed by strong reactions that blamedideology for the main defects affecting public life; hence, in the U.S., thereensued a period of “popular turmoil” and, in Latin America, a difficult periodof consolidating independence. These reactionary forces came to deny whathad seemed to be, until that point, an accepted truth about politics, namely, theegalitarian idea that the people were sovereign and that, consequently, the willof the majority must always prevail. In the U.S., “the people’s will as expressedin their representative legislatures and so much trusted throughout thecolonial period suddenly seemed capricious and arbitrary.”23 Paradoxically, asWood explains, it was “the very force of the laws of the states, not anarchy orthe absence of law,” that seemed to be undermining the new republics.Accordingly, these reactive forces tried to eliminate the institutional causes ofwhat they described as populism and demagoguery and proposed replacing aninstitutional structure dominated by town meetings and popular bodies withmore hierarchical institutions. According to Merrill Jensen, “conservative-minded men sought to avoid further unpleasantness by doing away with towngovernment, substituting for it a corporate form whereby the towns couldbe governed by mayors and councils.”24 Similarly, Stephen Pattersonremarks that, by the mid-1780s, an “intensive and massive” reaction “againstconventions” began, ending in a campaign for “replac[ing] the traditionaltown meeting . . . with a mayor and a representative council.”25

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22 See HERBERT STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 23 (1981).

23 See WOOD, supra note 21 at 405.

24 See MERRILL JENSEN, THE NEW NATION. A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION

118–21 (1967).

25 See Stephen Patterson, The Roots of Massachusetts Federalism. Conservative Politics and PoliticalCulture Before 1787, in SOVEREIGN STATES IN AN AGE OF UNCERTAINTY 50–52 (Ronald Hoffman andPeter J. Albert, eds., 1981).

French revolutionary doctrines were considered responsible for the earlyyears of radicalism and so became the object of violent attacks. John Adams,for example, associated the revolutionary events in France with popularuprisings that took place in the U.S., such as Shays’s rebellion, an episode thathad a profound impact on the delegates to the Federal Convention.26 Similarly,Alexander Hamilton referred to the French Revolution as the “great monster”that “confounds and levels everything.”

A similar reaction occurred in most of Latin America. As Colombian SergioArboleda states, “all the incidents of our revolution originated in one and thesame principle and were aimed at achieving one and the same goal: the prin-ciple, the anti-Catholic French revolution; the goal, the destruction of themoral feelings of the masses.”27 A close ally of his, Mariano Ospina Rodríguez,denounced the “political doctrines of the French philosophers” that he heldresponsible for the national crisis. These doctrines, he asserted, had promoteda “wild anti-Christian movement.” The policies that these men promotedduring the 1840s, which I refer to as “perfectionist” or “moral perfectionism,”were all clearly marked by this same bias. Their goal was to restore the “moralfeelings” of the masses from the top down, and this entailed curtailing thefreedom of individuals in their choice of life plan and in quashing thedemagogic will of the people manifested in communal self-rule.28

In Peru, the cleric Bartolomé Herrera was the most important figure in thefight against the French ideologies.29 In one of his most notable sermons, Herreraattacked Rousseauesque proposals in these terms: “government and citizenshave become slaves of what is called the will of the people . . . [they have] become

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26 See ALLAN PENDLETON GRIMES, AMERICAN POLITICAL THOUGHT 144 (1983).

27 See LA FILOSOFÍA EN COLOMBIA. HISTORIA DE LAS IDEAS 278 (Alberto Rodríguez Albarracín et al., eds.,1988).

28 By “perfectionist” I mean both the attitude toward the lower orders, in finding them much want-ing and thus dangerous, and the inclination on the part of their rulers to “perfect” or completethe shortcomings and intrinsic limitations of those lower orders. These conservatives set their“perfectionism,” in this sense, over and against the Rousseauesque fantasies of the “perfectibility”of man, which would seem necessarily delusional. For these autocratically inclined men, whatwould be the good for the individual (as one of the masses), is defined quite independently of whatthat individual’s own opinion might be regarding his or her well-being or life choice. Implicit, too,is the notion of the objective existence of certain transcendent values, values that would brook nodemocratic negotiation. These “perfectionist” views violently contradict a liberal notion that theindividual’s “good” is, in part at least, a function of their personality and choices-that such a goodis immanent within the person for whom it is his choice. The same debate exists now and, indeed,descends from these earlier debates. Patrick (later Lord) Devlin and the English justice JamesFitzjames Stephen were moral perfectionists, understood in this sense, arguing their view againstthe likes of John Stuart Mill and, now, H. L. A. Hart.

29 Herrera, who was born in 1808, became a cleric in 1834. He was the head of the very conser-vative College of San Carlos that monopolized the education of young intellectuals during manyyears, until the creation of the more liberal College of Guadalupe. Herrera is considered Peru’smost influential conservative thinker during the 19th Century.

slaves of the will of demagogues.”30 Argentinean Juan Ignacio Gorriti, a remark-able representative of local conservative thought, dedicated a great deal of hisReflexiones to criticizing Rousseau. “Human societies,” he argued, “are based onsolid and indestructible natural law” and not on any kind of “social compact.”31

The conservatives’ hostility toward the will of the majority soon foundexpression. Simon Bolívar’s “Memorial to the Citizens of New Granada by aCitizen of Caracas,” written in 1813, offers an exceptionally pronouncedexample of this reactionary attitude toward what were considered radicalexperiments. In the “Memorial,” Bolívar specified that “among the causes thatbrought about Venezuela’s downfall the nature of its Constitution ranks first,which . . . was as contrary to Venezuela’s interests as it was favorable to thoseof her adversaries.”32 Notably, Bolívar faulted the seemingly radical constitu-tion of 1811—which survived only a few days—for making the consolidationof independence impossible. Following similar criteria, many political leaderssuddenly abandoned their initially radical discourse, adopting a new rhetoricthat justified establishing a monarchy: Latin America, they said, was not yetready for democracy.

In their most extreme forms, these conservative reactions aimed at restor-ing the old order, which, in Latin America, implied a restoration of the influ-ence of the Church and the army, the end of egalitarian impulses, and thereinforcement of hierarchy.33 Many of the conservative constitutionaldocuments that replaced the revolutionary texts reflected new commitmentsto the old traditions. Among the clearest expressions of the conservativeconstitutional order in Latin America, we find the Chilean constitutions of1823 and 1833, and the Ecuadorian document of 1869, which manyEcuadorians came to know as the “Black Charter of Slavery to the Vatican.”34

Bartolmé Herrera’s constitutional project for Peru and Lucas Alamán’s consti-tutional proposals for Mexico also fit comfortably within this framework, as dothe Colombian constitutions of 1843 and 1886, Simon Bolívar’s constitu-tional documents of 1819 and 1826; the Peruvian constitution of Huancayo,Venezuela’s constitution of 1857; various Bolivian Constitutions, such asthose of 1831, 1834, 1843, and 1851, and Argentina’s provisional constitu-tional documents of 1815 and 1817.

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30 See PENSAMIENTO POLÍTICO DE LA EMANCIPACIÓN 136, 138 (Jose Luis Romero and Luis AlbertoRomero, eds., 1977).

31 See JOSE CARLOS CHIARAMONTE, CIUDADES, PROVINCIAS, ESTADOS: ORÍGENES DE LA NACIÓN ARGENTINA,1800–1846 529 (1997).

32 See SIMON BOLÍVAR, DOCTRINA DEL LIBERTADOR VOL. 1 14 (1976).

33 See generally Leslie Bethell, A Note on the Church and the Independence of Latin America, in THE

CAMBRIDGE HISTORY OF LATIN AMERICA (Leslie Bethell, ed., 1985).

34 See FRANK SPINDLER, NINETEENTH CENTURY ECUADOR 77 (1987). See also BENJAMIN CARRIÓN, GARCÍA

MORENO. EL SANTO DEL PATÍBULO (1959); see also RICARDO PATTEE, GARCÍA MORENO Y EL ECUADOR DE SU

TIEMPO (1944).

These documents all share two basic features: political elitism and moralperfectionism. The first reflects the assumption that the majority of peoplewere unprepared to govern themselves and in need of political direction. Thesecond, closely related to the former, implies that certain enlightened authoritiesmust ensure that the rest of society follows or respects a preferred conceptionof the good—normally, that of the Catholic religion—through the use of thestate’s coercive powers. Gabriel García Moreno, twice president of Ecuador,plainly outlined these two goals when he assumed the presidency of hiscountry in 1869. At that time, he stated, “the first [goal of my administration]will be that of harmonizing our political institutions with our religious beliefs;and the second will be that of investing our public authorities with the forcesrequired to resist the assaults of anarchy.”35 With these words, García Morenosynthesizes the conservative view, which turned the radicals’ goals andprojects on their head.36

In institutional terms, these conservative tendencies were manifested in acountermajoritarian drive that advocated the concentration of power in the exec-utive. In fact, the most common conservative political proposal was to increasethe power of the president’s office. Among the functions that conservativeswanted to concentrate in the executive were the power to intervene in the politi-cal affairs of the states; broad powers of veto; similarly broad legislative power(through decree) and, sometimes, the power to dissolve the legislature; the judi-cial power of pardon or amnesty; a decisive role in the selection of judges andambassadors; authority to deal with other nations; discretion to appoint andremove ministers; control over the armed forces; and the power to declare warand conclude peace treaties. In addition, they wanted to ensure a long term ofoffice for the president; allow reelection; make him unaccountable for the acts ofhis administration; give him “emergency powers” during “internal or externalcrises”; and authorize him to declare a state of siege.

The conservatives’ confidence in the president had to do, among otherthings, with their certainty about the presumed irrationality of the people andthe supposed independence of judgment of the president.37 In their view, the

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35 See PENSAMIENTO CONSERVADOR, 1815–1898 115 (Jose Luis Romero and Luis Alberto Romero,eds., 1978).

36 See INTERNATIONAL ENCYCLOPEDIA OF SOCIAL SCIENCES, vol. 3 91(David Sills, ed., 1968).My reading of conservatism comes close to a standard definition of political conservatism as used,for example, in the Encyclopedia of the Social Sciences, which defines it as the ideology that “cel-ebrate[s] inherited patterns of morality and tested institutions, that are skeptical about the efficacyof popular government, that can be counted upon to oppose both the reforming plans of the mod-erate Left and the deranging schemes of the extreme Left, and that draw their heaviest supportfrom men who have a substantial material and psychological stake in the established order.”

37 These elitist assumption seemed to be widely and profoundly shared by most noted Americanconservatives, such as Bartolomé Herrera in Peru; Juan and Mariano Egaña in Chile; MarianoOspina Rodríguez and José Eusebio Caro in New Granada; José Ignacio Gorriti in Argentina; orLucas Alamán in Mexico.

president would be sufficiently isolated from popular pressures, thanks to the(often) indirect mode of his election and the length of his mandate.Conservatives assumed that good decisions were the result of a process of indi-vidual rather than collective reflection. As Alexander Hamilton put it, in theseventy-sixth Federalist, “a single well directed man by a single understandingcannot be distracted by that diversity of views, feelings and interests, whichfrequently distract and warp the resolutions of a collective body.”38 Hamiltonwas stressing the exact opposite of ideas the radicals had defended a short timebefore. For him, the diversity of viewpoints that characterize collective bodiesconstituted an obstacle to sound decision making, not a source of collectiveenlightenment. Diversity, he assumed, hindered the chances of careful reason-ing and made it more difficult to think about the interests of the nation; itforced the public officers to defend partisan interests at the expense of thecommon good.

This political elitism was reinforced after the independence revolutions,when conservative leaders came to realize the concrete implications ofencouraging political participation. Most conservatives were immediately dis-illusioned by the first popular mobilizations produced in their countries andbegan to campaign against them. This conservative trend was also favored bythe reactionary climate of Restoration Europe. By the middle of the century, areaction against the revolutionary movements of 1848 was fueling the con-servative impulse.39 Americans felt it necessary to prevent the dissemination ofthose majoritarian impulses in the New World, and conservative leaders wereencouraged by the strongly antiliberal position of the Pope Pius IX.

The most important advocacy of a strong president in Latin America camefrom Simón Bolívar, who was appalled by Venezuela’s 1811 Constitution,which provided for a tripartite executive. In a speech delivered in Angostura, atthe opening of the second national congress of Venezuela, he stated: “[L]et usput aside the triumvirate which holds the executive power and center it in apresident. We must grant him sufficient authority to enable him to continuethe struggle against the obstacles inherent in our recent situation, our presentstate of war, and every variety of foe, foreign and domestic, whom we mustbattle for some time to come.”40

Bartolmé Herrera, in the constitutional project that he proposed in Peru in1860, also made reference to Bolivarian goals. He maintained that it wasnecessary to adopt “an authority capable of enforcing God’s precepts. Anauthority to direct the will of the people and define what must be done or notdone, in accordance with natural law. To do this is to command.”41 The

12 R. Gargarella

38 See JAMES MADISON, ALEXANDER HAMILTON & JOHN JAY, THE FEDERALIST PAPERS, NO. 76 (1988).

39 See THE INFLUENCE OF 1848 REVOLUTIONS IN LATIN AMERICA, supra note 6.

40 See BOLÍVAR, SELECTED WRITINGS, VOL. 1 190 (1959).

41 See JOSE PAZ SOLDÁN, LAS CONSTITUCIONES DEL PERÚ 110 (1943).

Chilean constitution of 1833—which, with little modification, remained inforce until 1925—was also very favorable to presidential authority. Thepresident was allowed two consecutive five-year terms. Also, he was endowedwith significant emergency powers, including the authority to suspend theconstitution and most civil rights. If the congress was in recess, which was atthat time the most common situation, the president could decree a state ofsiege in the provinces, subject to later congressional approval. During suchcrises, the president could even declare martial law in any part of the republicwith the consent of a state council composed of military officers, religiousauthorities and certain civilians.42

The model of a strong executive was also adopted in Ecuador in its 1869constitution; in most Bolivian constitutions of the period; and in the mostlyBolivar-inspired Colombian constitutions of 1826, 1828, 1830, 1843, and1886. Peru’s constitutions of 1826, and 1839—which allowed the delegationof “all the necessary powers” to the president in case of crisis—and 1860 alsoenvisaged strengthening the authority of the executive. In Argentina, twounsuccessful constitutional projects, in 1815 and 1817, may also be describedas conservative. In addition, as a way of improving the chances of preservingsocial order, many Latin American constitutions expanded the role of thearmed forces, which in all cases were commanded by the president of thecountry. Constitutions such as those adopted in Colombia (in 1832 and 1834),Ecuador (1830, 1835, 1845, 1851, and 1852), or Peru (1828, 1834, 1856,1860, and 1867) delegated the task of maintaining internal order to thearmed forces. Other constitutions, such as those of Bolivia (1839 and 1851),Venezuela (1864), and most of those adopted in Ecuador after 1845, allowedthe armed forces a degree of indirect participation in internal affairs. In thosesituations, the armed forces were charged with ensuring that no laws wereadopted because of mere “popular pressures.”43

Within this context, senates were conceived of as mechanisms for reinforc-ing the influence of the rich and wellborn.” This purpose became clear inthe U.S. at the constitutional convention, where the most conservativedelegates stressed the important role of the Senate in controlling the “ambi-tions” and “excesses” of the legislature’s popular house. The long tenure ofsix years seemingly ensured their “firmness and independence,”44 and theirindirect election by state legislatures was meant to help them to avoid the“rivalships and discontents incident to the election by districts.”45 The conser-vatives reserved significant powers to this branch, including, for example, their

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42 See PAUL VANORDEN SHAW, THE EARLY CONSTITUTIONS OF CHILE, 1810–1833 118–19 (1930).

43 See BRIAN LOVEMAN, THE CONSTITUTION OF TYRANNY. REGIMES OF EXCEPTION IN SPANISH AMERICA

399–400 (1993).

44 See THE RECORDS OF THE FEDERAL CONVENTION OF 1787, VOL. 1 218 (Max Farrand, ed., 1937).

45 See THE RECORDS, supra note 44 at 155.

privileged role in the election of judicial officials and ambassadors, theirdecisive participation in the impeachment of public officers, and their treatypowers.

In Latin America, we find similar initiatives that see the senate as a way ofensuring the presence in government of society’s purportedly “aristocratic”element. For example, Alamán proposed in 1834 the creation of anArgentinean senate that would encompass the representation of rural, urban,industrial, and agricultural property owners (38 deputies); mining interests(14 deputies); liberal professions (14 deputies); the magistrature (10 deputies);the literary professions (14 deputies); the manufacturing sector (14 deputies);public administration (10 deputies); the clergy (20 deputies); and the military(20 deputies).46 Herrera similarly suggested a senate composed of the clergy,the military, the sciences, public administration, the landowners, mining andcommercial interests, and the judiciary. The Argentinean constitution of 1819also envisaged representatives of the church, the military and the university asmembers of the senate. The Chilean constitution of 1822 created an unusualsenate that included members of the Supreme Court, representatives electedby the chamber of deputies, cabinet ministers, bishops, army officers, univer-sity professors, and businessmen and farmers who possessed a specifiedamount of wealth.47 In the constitutions designed for Chile by Juan andMariano Egaña we also find analogous proposals.

2.1. The regeneration of AmericansFor conservatives, one of the fundamental missions of government was themoral regeneration of the citizenry, which necessarily ran counter to the egal-itarian assumption that all people were equally able to decide what to do withtheir lives. An improvement in the moral qualities of the population promisedimportant consequences, both for the private life of the individual and for thepublic life of the community. Individuals honoring the official religion wouldbe at peace with themselves, while the community would achieve socialharmony.

The constitution had an important role to play in this process—by explainingwhat values to honor and by what means. One of Peru’s leading constitutionalframers, Juan Egaña, had extraordinary confidence in the transformativepowers of legal instruments. He said that they should prescribe habits, exer-cises, duties, public activities, rites and pleasures “which would transform lawsinto customs and customs into civic and moral virtues.”48 Thus, he proposed

14 R. Gargarella

46 See LUCAS ALAMÁN, LOS IMPRESCINDIBLES 53 (1997). A brilliant conservative theorist, LucasAlamán is deemed the intellectual responsible for the execution of general Guerrero, one of themost popular leaders of the time, and former president of the country.

47 See VANORDEN SHAW, supra note 42 at 93.

48 See IDEAS AND POLITICS OF CHILEAN INDEPENDENCE 266 (Simon Collier, ed., 1967).

creating institutions, first a Tribunal de Censura and later the ConservativeSenate, which had not only the power of veto over all legislation but also theduty to guard public morality. The Conservative Senate, comprising ninemembers, was in charge of the “mores and morals of the nation.”49 Some ofits members had the duty to make annual visits to the three provinces of thestate in order to assess the virtue, morality, civic pride, and piety of the citizens.As guardians of morals, these senators carried an actual register in which theytook note of citizens’ behavior; they also devised punishments and rewards forthe wicked and virtuous citizens, respectively. After the enactment of the 1823constitution, these provisions were more precisely articulated in a group ofnorms also drafted by Egaña. In particular, he gave a detailed account of hisviews in a “Moral Code,” which was the clearest expression of his moralperfectionism.50,51

Ecuadorian president García Moreno represents another important exam-ple of extreme Latin American perfectionism. Unlike those constitutionalistsdiscussed so far, García Moreno managed to implement and enforce his moral-izing scheme over many years. In order to carry out his ideas, this theocraticpresident frequently resorted to the coercive apparatus of the State.52 Withlittle attention to the rights of the accused or questions of due process, heimposed strict penalties on those denounced by his agents.53

For conservatives, rights were dependent on, and had to serve, more funda-mental values. They were not “unconditional,” as liberals would come toregard them. In many cases, conservatives assumed the existence of an objec-tive and often divine moral scale, whose principles were intrinsically valuable,

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49 See LUIS GALDAMES, HISTORIA DE CHILE. LA EVOLUCIÓN CONSTITUCIONAL 703 (1925).

50 See JUAN EGAÑA, COLECCIÓN DE ALGUNOS ESCRITOS POLÍTICOS, MORALES, POÉTICOS Y FILOSÓFICOS DEL

DR. JUAN DE EGAÑA (1836). The first part of the code was dedicated to religion and the need for pro-tecting it. It regulated, for example, the way in which to celebrate the church’s public festivities aswell as the relationships between the individuals and their confessors. In the second part, the codeanalyzed the family, its composition and the relationship among its members. In this respect, itprovided for strict sanctions to behaviors such as ingratitude, vanity, denigration, or theabandonment of ones’ parents. The third part was related to education, which played a centralrole within Egaña’s project. The code regulated the use of alcohol, provided for strict parametersto follow during private and public ceremonies, and created prizes reserved to the best citizens. Seealso IDEAS AND POLITICS supra note 48 at 269. Bolívar also promoted a secular version of Egaña’smoral code. To advance this ideal, Bolívar created a new institution, added to the traditional threebranches of government, which he sometimes called the “Moral Power” of the nation. Referringto this institution in his “Letter from Jamaica,” he maintained that its main responsibilities werethe design of education, the circulation or restriction of written materials, and the promotion andprotection of civic virtue.

51 See SIMON BOLÍVAR, OBRAS COMPLETAS, VOL. 1159–74 (Vicente Lecuna, ed., 1947).

52 See generally CARRIÓN, supra note 34.

53 See PENSAMIENTO CONSERVADOR, supra note 35; See generally MANUEL GÁLVEZ, VIDA DE DON GABRIEL

GARCÍA MORENO (1945).

which the state must always protect and promote. They further assumed thatdefense and cultivation of these values would guarantee both personal andsocial order, just as their violation would prove a menace to both. Typically,they argued that an attack upon, or improper defense of, the moral founda-tions of the country would debase the entire society. Given these assumptions,individual rights were acceptable only insofar as they could accommodatethose other superior claims.54

These attitudes toward rights were manifested most clearly in that specialplace that conservatives reserved for public moral values—their constitutions.For example, article 16 of the Colombian constitution of 1843 proclaimed that“the Apostolic Roman Catholic religion” was “the only sect supported and main-tained by the Republic.” The Colombian constitution of 1886 went still further,recognizing Catholicism as “the religion of the nation” and proclaiming that allpublic authorities must “protect it and cause it to be respected as an essentialelement of the social order” (art. 38). That text also commanded that public edu-cation be organized and directed under the aegis of the Catholic Church. Othersignificant examples include article 9 of Ecuador’s 1869 constitution, where thestate also used its coercive powers to protect Catholicism and ensure its position.Individual rights were conditioned on the respect of these external values; forexample, article 2 of that constitution proclaimed that “expression of thought”would not be subject to censorship, provided it respected “religion, morality,and decency.”55 García Moreno justified restrictions on a free press in the newconstitution, asserting that “the demagogic press, unbridled as never before,insults our religion and our chastity, calls for revolutionary passions and favorsanarchy.”56 Similarly, in Miguel Antonio Caro’s opinion, “if man has the right tothink and say whatever he wants, then he has the right to do whatever he wants.Absolute freedom of thought and expression come, then, with the diffusion ofvices, with frenzy and with crime.”57 In a similar vein, Bolívar made reference tothe “exaggerated maxims of the rights of men,” which he believed allowedindividuals to act as they wished, “breaking thus the social compact andbringing nations into anarchy.”58

16 R. Gargarella

54 In the United States, the conservative view finds it roots in the period that preceded independ-ence, when many of the colonists reestablished in the new country an institutional system thatshared many features with the very one they were escaping. For good summaries of the history ofconservatism in the United States, see generally NAT HENTOFF, THE FIRST FREEDOM (1980); CLINTON

LAWRENCE ROSSITER, CONSERVATISM IN AMERICA (1982).

55 See generally RAMIRO BORJA Y BORJA, LAS CONSTITUCIONES DEL ECUADOR (1951); OSCAR EFRÉN REYES,BREVE HISTORIA GENERAL DEL ECUADOR (1942).

56 See REYES, supra note 55.

57 Id.

58 See DOCTRINA DEL LIBERTADOR, supra note 32 at 12.

3. Liberalism3.1. The sovereignty of the individualDefying both radicals and conservatives, the liberals sought to protect individ-uals against the polar evils of “tyranny” and “anarchy.” With that in mind,they first retreated from the tendency to cast the legislature as a mere instru-ment in the hands of an arbitrary majority. Second, they wanted to avoid theestablishment of a moral dictatorship by religious groups. In sum, they meantto ensure the balance of powers that eluded their opponents, as well as tosecure certain basic rights that their opponents dismissed.59

Given these goals, the liberals clearly had a very different perspective on theegalitarian promises made during the struggles for independence. For them,contrary to the radicals’ assumptions, respecting equality meant, above all,respecting individual choice. Each person represented a sacred unit of thecollective order. The sovereignty of the individual, rather than the people, wasparamount, and the whole institutional system had to be organized in such away as to honor that assumption. As radicals were ready to sacrifice individualrights in the name of the collectivity, liberals were prone to sacrifice thecommunity in the name of each of its parts.

The U.S. Constitution is probably the best example in the Western hemisphereof a liberal constitution. It evidences a clear commitment to individual rightswhile also providing “checks and balances” among the branches of government.In Latin America, we find significant, but always incomplete, efforts to achievesuch a compromise. The Argentinean constitutions of 1819 and 1826 includedinteresting liberal initiatives within frameworks that were not themselvescompletely liberal. The Chilean constitution of 1828 is another example of a doc-ument distinguished by many liberal features. In New Granada, GeneralFrancisco de Paula Santander promoted the adoption of a liberal constitution in1830; during the second half of the century, a new and powerful group of liber-als would manage to enact two very liberal documents, in 1853 and 1863. InPeru, an early generation of liberals enacted antiauthoritarian constitutions in1823, 1828, and 1834; a second generation would do the same in 1856 and1867. In Mexico, the liberals introduced some of their initiatives in the ambigu-ous 1824 constitution; in the second half of the century, they joined with someconservative groups in approving the fundamental constitution of 1857, which,like the Argentinean constitution of 1853, combined features of both ideologies.

3.2. Moral neutralityLiberals advocated the model of tolerant state, one that would allow individu-als to live according to principles of their own choosing. Today, we describe

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59 See INTERNATIONAL ENCYCLOPEDIA, supra note 36 at 276. According to the Encyclopedia, “[liberal]thought and practice have stressed two primary themes. One is the dislike for arbitrary authority,complemented by the aim of replacing that authority by other forms of social practice. A secondtheme is the free expression of individual personality.”

such a state as “neutral”—that is to say, it should not favor any particularconception of the good or use its coercive powers for or against any view of thegood. In the end, the liberals were committed to an egalitarian principleaccording to which all persons were equally capable of deciding how tolive and, as long as they did not interfere with the lives of others, neithershould the state. Thus, the Venezuelan constitution of 1811, enacted immedi-ately after the independence revolution, not only abolished existing legalprivileges but also proclaimed legal equality among all races. Other LatinAmerican nations followed this example and, by the mid-1850s, most LatinAmerican countries had effectively abolished slavery and titles of nobility.

Perhaps the best example of the neutrality principle is to be found in theUnited States, where many liberals strongly opposed the establishment of astate religion, first at the local and then at the national level. James Madisonwas, once again, a key figure in this movement, of which Roger Williams hadbeen an early proponent in Rhode Island. In Virginia, Madison—in collabora-tion with George Mason—drafted the first “Declaration of Rights,” whicheventually guaranteed complete religious freedom to all Virginians. Every per-son, they argued, had an equal right to follow their conscience. However,Patrick Henry, an important representative of what we now describe as pop-ulism, opposed that declaration. He proposed, rather, to support the differentChristian churches through taxation, arguing that the decline of religionwould lead to a decline of morals. Against this view, Madison asserted that thestate lacked the authority to demand such payments. To provide a theoreticalfoundation for his views, Madison wrote the “Memorial and Remonstranceagainst Religious Assessments,” asserting the importance of blocking Henry’sinitiative, which appeared to Madison as the first step toward the establish-ment of a state religion. As Milton Konvitz has observed, Madison feared that“the removal of some stones from the new wall of separation of church andstate in Virginia might lead to the collapse of the wall and to state support ofreligion in general.”60 Madison’s successful campaign contributed to the suc-cess of Jefferson’s Bill for Establishing Religious Freedom in Virginia, probablythe first law in the world to codify religious freedom.

The liberals’ defense of religious neutrality was soon translated into adifferent and broader claim against any kind of state interference with anindividual’s personal convictions, namely that citizens should be able to enjoytheir privacy as a space free from public intervention. The private sphereappeared, therefore, as a sacred and intangible area wherein each individualwas absolutely sovereign. By contrast, in the public sphere state action wasallowed in principle. The liberals were concerned, therefore, with establishing,

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60 See MILTON KONVITZ, FUNDAMENTAL LIBERTIES OF A FREE PEOPLE: RELIGION SPEECH, PRESS, ASSEMBLY 24(1957).

maintaining, and justifying strict limits on the state that delineated what itcould and could not do.

The liberals’ campaign for legal equality and religious neutrality representedonly one part of their fight to affirm basic individual freedoms. To better appre-ciate the scope of their commitments, one must study their most importantcontribution—their various proposals for bills of rights meant to ensure theprotection of the people’s most basic interests. These documents were the“bricks” that gave shape and strength to the liberal “wall of separation.”

In time, bills of rights came to protect basic individual freedoms, such asfreedom of the press, freedom of association, freedom of education, the rightto a jury trial and, in some cases, broad political rights.61 Mexico’s José MaríaMora, Argentina’s Bernardino Rivadavia, the brothers Gálvez in Peru, theliberal merchants known as gólgotas in New Granada, and José VictorinoLastarria in Chile all played important roles in the development of the rightsthat we now tend to associate with our constitutions.62

3.3. “Checks and balances” and countermajoritarian institutionsFor liberals, few issues were as important in the allocation of power as limitingthe influence of popular bodies, which, when given control over the state’scoercive powers, represented the main threat to individuals. In this sense, theidea of a system of checks and balances—key to the U.S. Constitution and,later, to many Latin American constitutions—appeared as a reaction againstthe radical model of “strict” separation of powers that seemed to leave toomuch power in the hands of the most popular branch of government. Theliberals wanted not only to divide state power, which radicals accepted andconservatives often rejected, but also to enable each branch to defend itselfagainst possible incursions from the others. For Federalist number 51, it wasevident that “the great security against a gradual concentration of the several

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61 Rivadavia, for example, a disciple of Jeremy Bentham’s, promoted a significant law of universalsuffrage. Tulio Halperín Donghi, among others, described the actual limits of this law, and showedhow in spite of the law political decisions continued to reside in the hands of a small elite. See TULIO

HALPERÍN DONGHI, POLITICS, ECONOMICS AND SOCIETY IN ARGENTINA DURING THE REVOLUTIONARY PERIOD

360–9 (1975). Peruvian liberals also approved a law securing universal suffrage in 1828.However, disappointed with its effects, the same liberals put an end to this initiative in 1834, butfinally restored it in 1856. Colombian liberals proposed some broadening of the political rights intheir Constitutional projects of 1828 and 1832, under the influence of Vicente Azuero. Duringthe 50s, they would lead a remarkable, although also problematic, battle in favor of universalsuffrage. In Venezuela, the liberals included a Constitutional protection to universal suffrage onlyin 1858. In Ecuador, the Constitution of 1861 also granted this right for the first time.

62 See Natalio Botana, La transformación del credo constitucional, in ESTUDIOS SOCIALES 23–48 (1996);See also Natalia Sobrevilla, The Influence of the European 1848 Revolutions in Perú, in THE INFLUENCE

OF 1848 REVOLUTIONS IN LATIN AMERICA, supra note 6. See generally JOSE IGNACIO EYZAGUIRRE, HISTORIA

DE LAS INSTITUCIONES POLÍTICAS Y SOCIALES DE CHILE (1977); JAIME JARAMILLO URIBE, EL PENSAMIENTO COLOM-BIANO EN EL SIGLO XIX (1964).

powers in the same department” was that of “giving to those who administereach department the necessary constitutional means and personal motives toresist encroachments of others.” In particular, the liberals assumed that thelegislature, as the most powerful branch of government, would always betempted to encroach on the other branches. For that reason, they focused mostof their attention on controlling the activities of Congress, chiefly by means ofcountermajoritarian institutions.63

In the U.S., these ideas were discussed at the constitutional convention,where, as a result of their countermajoritarian bias, the federalists advocatedindirect elections that—in their view—“render[ed] the choice[s] more judi-cious.”64 They also perceived a correlation between the size of an institution andthe quality of its decisions. They typically regarded smaller institutions as creat-ing the conditions for political debates that would be cooler, more systematic,and wiser.65 They recommended long terms of office in order to provide “firm-ness and independence” to the body of representatives66 and to motivate people“of the first weight” to participate in government.67 The federalists also sup-ported the creation of large districts, assuming that these were “manifestlyfavorable to the election of persons of general respectability,” who would belikely to own property, as opposed to those who would solicit support fromsmaller constituencies.68 And they summarily rejected the right of voters toinstruct and recall representatives on the grounds that such a provision wouldtransform those elected into mere “mouthpieces” of the electorate.69

In Latin America, too, liberals tried to diminish the powers of the legislature—in particular, the lower house or house of representatives, which they took tobe the most threatening institution given its size and the support it couldmuster from the public. José María Mora, for example, asserted that a lack ofstrong controls over this body was “what caused all the evils suffered duringthe last fifty years by the peoples [of Europe] who have adopted the represen-tative system.” In his opinion, the source of these evils resided “not in thedepository of power; [but] in the power itself.”70 Similarly, José María Samperbelieved that “nothing [was] so dangerous as the domination of numbers,

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63 See generally ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962).

64 See THE RECORDS, supra note 44 at 330.

65 See id. at 151.

66 Id. at 512.

67 Id. at 220.

68 Id. at 454. See BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 63 (1997).(explaining that federalists assumed that large electoral districts would favor the selection of the“natural aristocracy.”)

69 See CASS SUNSTEIN, THE PARTIAL CONSTITUTION Ch.1 (1993).

70 See CHARLES HALE, MEXICAN LIBERALISM IN THE AGE OF MORA, 1821–1853 86 (1968).

which normally overcome intelligence and virtue.”71 For the same reasons,Latin American liberals rejected the inclusion in the constitutional order of aright to recall representatives,72 and tried to reduce the influence of cabildos(town halls), which were, at that time, the most representative political insti-tutions in most countries. This is what Bernardino Rivadavia did in Argentinaand what General Santander did in New Granada, considering them “unableto promote [the public good].”73

The liberals were also concerned with limiting the authority of the execu-tive and avoiding potential abuses, and they suggested various devices to thisend. They proposed limiting the president’s term of office, prohibiting hisreelection, restricting his powers of veto (or increasing the legislature’s abilityto override it), and restricting or eliminating the executive’s extraordinary orexceptional powers, which were so frequently used in Latin America. Forexample, Peruvian constitutional delegates in 1823 decided to follow the earlyexample of Venezuela and create a three-person executive, diluting theauthority of that branch. Term limits were another common strategy, as seenin Colombia, where the Río Negro Convention reduced the presidentialmandate to two years.

The organization of the judicial system was also an important element inthe liberals’ agenda. Both in the U.S. and in Latin America, liberals recognizedan ally in the judiciary and reserved significant functions to it. Their confi-dence in that branch was based on several considerations: First, judges werewell prepared in a technical sense and had time for deliberation before takingtheir decisions. Second, because of the mode of their appointment and thestability of their tenure, they were not dependent on the will of any group. AsMadison claimed, in the forty-ninth Federalist, judges were “by the mode oftheir appointment, as well as by the nature and permanency of it . . . too farremoved from the people to share much in their prepossessions.”

Directly or indirectly, most liberals defended the right of the judiciary todetermine the validity of all norms, that is, to have the last word regarding theconstitutionality of democratically enacted legislation.74 In this way, liberalconstitutions implicitly recognized the superiority of the judicial branch overthe others. It was not the majority but a very particular minority that wasauthorized to pronounce the last institutional word. Ultimately, this choice

The constitution of inequality 21

71 See JOSE MARIA SAMPER, HISTORIA DE UNA ALMA. MEMORIAS ÍNTIMAS Y DE HISTORIA CONTEMPORÁNEA

486–8 (1881).

72 See, for example, the decisions adopted in this regard by the “Asamblea del año 13,” inArgentina, or the latter constitutional convention of 1826. See JOSE LUIS BUSANICHE, HISTORIA

ARGENTINA 113 (1965); JOSE CARLOS CHIARAMONTE, CIUDADES, PROVINCIAS, ESTADOS (1997).

73 See generally DAVID BUSHNELL, THE SANTANDER REGIME IN GRAN COLOMBIA (1954).

74 Clearly, most constitutions did not openly incorporate the system of “judicial review” hereunder discussion. However, this faculty was usually recognized by the same judiciary as “implicit”in the text of the constitution.

illustrated the liberals’ rejection of the radicals’ view that impartiality was tobe found in the opinion of the multitude75 and of the conservative positionthat associated the “right” decisions with those that reflected the “naturalorder” of things. Thus the liberal constitutional model also manifested whathas been called a “discomfort with democracy,” apparent “in the ceaselessidentification of restraints upon majority rule as the overriding responsibilityof judges and jurists; in the consequent hypertrophy of counter-majoritarianpractices and arrangements; and in the single-minded focus upon the higherjudges and their selection as the most important part of democratic politics.”76

4. Conclusion: The slow decline of egalitarianism

By the end of the nineteenth century, liberal ideas appeared to be the mostinfluential in shaping the new American constitutions. Liberalism representedthe perfect synthesis of two antithetical models of constitutionalism, the radi-cal and the conservative. Of course, there were variations among countries.While the U.S. Constitution could be described fairly as a liberal constitution,this was not true of most Latin American constitutions, the majority of which,by the end of the century, combined liberal and conservative elements.Typically, they followed the U.S. system of checks and balances while, at thesame the time, transferring additional powers to the president (such as, thepower to declare a state of siege; the power to intervene politically in localmatters; the power to appoint ministers without congressional approval),thereby unbalancing the political machinery as a whole. Similarly, while mostof the Latin American constitutions established religious tolerance, theyreserved a distinct place for the Catholic religion.

Regardless of their varied forms, the new constitutions generally did notrealize the broad egalitarian ideal predominating at the time of the independ-ence revolutions—that all individuals deserved equal respect in their equaldignity. That is not to say that, because the main revolutionary goals wereprofoundly egalitarian, the new societies should have remained egalitarian.Nor is it assumed that there is only one way to honor egalitarian ideals.Clearly, there remains an unfinished debate about what an egalitarianinstitutional system should look like and whether it should emphasize per-sonal or collective goals.77 In general, conservative constitutions were at oddswith both sets of goals, insofar as they were egalitarian; the radical model

22 R. Gargarella

75 See HALE, supra note 71 at 95. For this reason, also, some liberals showed no confidence in thejury system. José María Mora, for example, adopted an extreme position in this sense, defendingthe need for composing the juries only with property holders. “Only this class of citizens,” heargued, “is truly independent and can inspire confidence of both the legislator and the rest of thenation.”

76 See ROBERTO UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 72–3 (1996).

77 See generally JEREMY WALDRON, LAW AND DISAGREEMENT (1999).

dismissed individual rights in the name of an unclear collective will; and theliberal constitutions tended to undermine the ideal of communal self-government in the name of individual choice.

The fact that democracies today seem to have trouble accommodating boththe preeminent rights of the individual and the ability of the community togovern itself—suggests that it is not possible to satisfy both egalitarian ideals atthe same time. It seems that, in focusing too much on one ideal, a societybegins to lose sight of the other. Should we conclude, then, that the originalegalitarian promises were merely the transitory reflections of a particular timeand not worthy of sustained attention? Or should we begin carefully, instead,to explore ways of accommodating both ideals by—for example—discardingsome of the countermajoritarian features that seem to characterize most mod-ern democracies? The answer is not clear, although it is apparent that a recon-ciliation of constitutionalism and egalitarianism is still a desirable goal.

The constitution of inequality 23