Citation: 16 Ind. J. Global Legal Stud. 173 2009
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An Essay on the Emergence of Constitutional Courts:
The Cases of Mexico and Colombia
MIGUEL SCHOR*
ABSTRACT
This essay explores the emergence of the Mexican Supreme Court and the Colombian
Constitutional Court as powerful political actors. Mexico and Colombia undertook
constitutional transformations designed to empower their respective national high
courts in the 1990s to facilitate a democratic transition. These constitutional transformations
opened up political space for the Mexican Supreme Court and the Colombian
Constitutional Court to begin to displace political actors in the tasks of constitutional
construction and maintenance.
These two courts play different roles, however, in their respective democratic orders.
Mexico chose to empower its Supreme Court to police vertical and horizontal separation of
powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the
social bases of democracy by constructing rights. This essay argues that the constitutional
changes that occurred are a necessary but not sufficient explanation for the role these two
courts play. The agenda courts undertake is shaped both by short-term political bargains
and by long-term societal transformations. As a result of both the bargains that led to the
adoption ofa new constitution and broader intellectual transformations regarding the role
of courts in effectuating constitutional guarantees, the Colombian Constitutional Court
has pursued a more ambitious agenda than the Mexican Supreme Court.
*Associate Professor of Law, Suffolk University Law School. I would like to thank Adeno
Addis, Larry Catd Backer, Daniel Brinks, Hannah Buxbaum, Joel Col6n-Rios, Javier A. Couso,
Brannon P. Denning, Julio Faundez, Tom Ginsburg, David Landau, Kim Lane Scheppele, and
Mark Tushnet for their encouragement, comments, and suggestions. I would also like to thank the
participants at the AALS Conference on Constitutional Law, Cleveland, Ohio, June 3-6, 2008;
the Law and Society Conference, Montreal, Canada, May 29-31, 2008; and the Indiana Journal of
Global Legal Studies Symposium on Operationalizing Global Governance, Bloomington, Indiana,
March 19-21, 2008, for their comments and suggestions.
Indiana Journal of Global Legal Studies Vol. 16 #1 (Winter 2009)
@Indiana University Maurer School of Law - Bloomington
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
INTRODUCTION
This essay is part of a larger study that examines the role courts play in constitutional
construction and maintenance. The story of constitutionalism is being written
primarily in the developing world. While it is premature to speak of the triumph of
democracy around the world,' the late twentieth century witnessed a remarkable
expansion of democracy and constitutionalism around the globe. Our intellectual
maps of constitutionalism, however, marginalize the experience of the developing
world because scholars believe that new democracies should copy the best practices of
consolidated or well-established democracies.2 The problem with this view is that it
obscures the processes by which constitutionalism is constructed. Scholars should
stop viewing new democracies and their travails through the lens of the institutions
of well-established democracies. We need to reverse the paradigm embedded in the
dominant scholarly discourse by moving the experience of new democracies to the
center of our study of constitutions.3 We need, in short, new and better stories about
constitutionalism that emphasize the experience of the developing world.
No region of the world provides empirically richer material for the study of
constitutional success and failure than Latin America.4 The history of the region,
from independence until the 1980s, is littered with attempts to make republican
government work that resulted in oligarchy and dictatorship.' The last few decades
of the twentieth century, however, were clearly a period of democratic renewal in
Latin America as electoral democracy became the norm. The late twentieth century
was also a period of intense constitutional experimentation, with the discussion of
1. Larry Diamond, The Democratic Rollback, FOREIGN AFF., Mar./Apr. 2008, at 36,36.
2. Democracies become consolidated when citizens come to believe it is the "only game in town."
ADAM PRZEWORKSI, DEMOCRACY AND THE MARKET: POLITICAL AND ECONOMIC REFORMS IN EASTERN
EUROPE AND LATIN AMERICA 26 (1991).
3. This argument is developed at greater length in Miguel Schor, Rule of Law, in 3 ENCYCLOPEDIA
OF LAW AND SOCIETY: AMERICAN AND GLOBAL PERSPECTIVES 1329 (David S. Clark ed., 2007).
4. The republics of the region experimented with more than one hundred constitutions in the
nineteenth century alone. BRIAN LOVEMAN, THE CONSTITUTION OF TYRANNY: REGIMES OF EXCEPTION
IN SPANISH AMERICA 370 (1993). While political instability waned in the twentieth century, political
turmoil and constitutional turnover remained a problem. PETER H. SMITH, DEMOCRACY IN LATIN
AMERICA: POLITICAL CHANGE IN COMPARATIVE PERSPECTIVE 19-43 (2005). The most recent bout of
constitution-making is tied to the renewal of democracy in the 1980s. See infra note 64 and accompanying
text.
5. The the oretical debate over the path of constitutionalism in Latin America is critically assessed
in Miguel Schor, Constitutionalism Through the Looking Glass of Latin America, 41 TEX. INT'L
L.J. 1, 14-19 (2006).
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THE EMERGENCE OF CONSTITUTIONAL COURTS
major reforms aimed at curbing the power of presidents,6 decentralizing power,7
and empowering courts to vigorously construe constitutions!
The judicial reforms undertaken in this region are part of a worldwide trend
as courts around the globe gained power at the expense of elected officials. Scholars
vigorously debate the implications of the global expansion of judicial power.9
Judicial optimists celebrate it while judicial pessimists decry it. Judicial optimists
draw on the experience of polities that made a successful transition to democracy,
such as South Africa and Germany, to argue that judicial review has an important
democratic pay-off by strengthening constitutions.0 Judicial pessimists, on
the other hand, draw on the experience of older, consolidated democracies, such
as the United States, to argue that empowering courts weakens citizen attachment
to constitutions and undermines the ability of legislatures to solve pressing
problems."' This essay argues that students of courts have paid too much attention
to successful democracies in building theoretical models and too little to the less
successful ones. 2 More attention needs to be paid to the role of courts in the troubled
or partial democracies that are the norm in much of the developing world, 3
6. SMITH, supra note 4, at 154.
7. See generally MERILEE S. GRINDLE, AUDACIOUS REFORMS: INSTITUTIONAL INVENTION AND DEMOCRACY
IN LATIN AMERICA (2000) (examining the attempts at institutional reforms in several
Latin American countries).
8. See generally EN BUSCA DE UNA JUSTICIA DISTINTA: EXPERIENCIAS DE REFORMA EN AMgRICA
LATINA (Luis Psara ed., 2004); Julio Faundez, Democratization Through Law: Perspectivesfrom Latin
America, in ON THE STATE OF DEMOCRACY 125 (Julio Faundez ed., 2007); LINN A. HAMMERGREN,
THE POLITICS OF JUSTICE AND JUSTICE REFORM IN LATIN AMERICA: THE PERUVIAN CASE IN COMPARATIVE
PERSPECTIVE (1998); THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA (Rachel Seider et al.
eds., 2005); Angel R. Oquendo, The Solitude of Latin America: The Struggle for Rights South of the
Border, 43 TEX. INT'L L.J. 185 (2008).
9. See Miguel Schor, Mapping Comparative judicial Review, 7 WASH. U. GLOBAL STUD. L. REV.
257, 270-75 (2008), for a critical review of the debate.
10. See, e.g., HEINZ KLUG, CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA'S POLITICAL
RECONSTRUCTION (2000); Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L.
REV. 771 (1997),
11. See, e.g., RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE
NEW CONSTITUTIONALISM (2004); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM
AND JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY
FROM THE COURTS (1999); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE
L.J. 1346 (2006).
12. For an important study examining judicial review in developing democracies, see TOM GINSBURG,
JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003).
13. See generally Larry Diamond, Thinking About Hybrid Regimes, J. DEM., Apr. 2002, at 21 (criticizing
the current classification of political structure).
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
including Latin America.14 It is in new democracies, after all, that scholars can
observe the birth of institutions such as constitutional courts.
This essay explores the emergence of the Mexican Supreme Court and the
Colombian Constitutional Court as powerful political actors. Mexico and Colombia
are both troubled democracies in a region where courts have historically been
marginalized from political disputes. Both nations undertook constitutional
transformations designed to empower their respective national high courts in the
1990s to facilitate a democratic transition. These constitutional transformations
opened up political space for the Mexican Supreme Court and the Colombian
Constitutional Court to begin to displace political actors in the tasks of constitutional
construction and constitutional maintenance. Both courts have undoubtedly
been transformed into institutions with a sense of mission by vigorously
construing their new constitutional powers.
These two courts play different roles, however, in their respective democratic
orders. Mexico chose to empower its Supreme Court to police vertical and horizontal
separation of powers, whereas Colombia fashioned a Constitutional Court
whose task is to deepen the social bases of democracy by constructing rights. This
essay argues that the constitutional changes that occurred are a necessary but not
sufficient explanation for the role these two courts play. The agenda courts undertake
is shaped both by short-term political bargains and by long-term societal
transformations.15 As a result of both the bargains that led to the adoption of a
new constitution and broader intellectual transformations regarding the role of
courts in effectuating constitutional guarantees, the Colombian Constitutional
Court has pursued a more ambitious agenda than the Mexican Supreme Court.
In addition to exploring why these transformations occurred, this essay examines
their democratic pay-off and makes two conclusions. First, although judicial
activism has become a normative and political bone of contention in the United
States, 6 critiques of judicial activism have less bite in the context of developing countries.
Activist courts, such as the Colombian Constitutional Court, can play a key
role in ushering in needed democratic transformations in transitional democracies. 7
14. SMITH,Supra n ote 4, at 342 (concluding that "present-day democracy in Latin America tends
to be shallow").
15. For an analogous argument, see CHARLES R. Epp, THE RIGHTS REVOLUTION (1998).
16. See Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV.
C.R.-C.L. L. REV. 373 (2007).
17. Kim Lane Scheppele, Democracy by Judiciary: Or, Why Courts Can be More Democratic than
Parliaments, in RETHINKING THE RULE OF LAW AFTER COMMUNISM 25 (Adam W. Czarnota et al. eds.,
2005). See generally MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL
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THE EMERGENCE OF CONSTITUTIONAL COURTS
In a region, such as Latin America, where constitutions have long been marginalized
from regulating political conflict," a judiciary jealous of maintaining its position
vis- -vis other actors in constitutional construction is a promising change.
Second, this essay challenges the externalist analysis that scholars employ in
analyzing the judicialization of politics 9 and contributes to the nascent literature on
the emergence of balancing tests20 by placing Mexico and Colombia in the broad
stream of global constitutionalism. Scholars of judicial politics emphasize why polities
choose to empower courts. This essay argues that we need to understand not
only the conditions under which constitutional courts emerge, but also how courts
are transformed by the role they play in a democratic order.2' Courts whose agenda
includes a broad mandate to effectuate rights are likely to employ balancing tests,
whereas courts that primarily effectuate separation of powers are more likely to
utilize legal formalism. Legal formalism allows courts to hide legal innovation
under the guise of constitutional interpretation. The shift from formalism to balancing
marks a key transition in the emergence of courts as self-confident actors
that do not mask the creative role they play in constitutional maintenance.
I. A NEW UMPIRE IN MEXICAN POLITICS
The role played by the Mexican Supreme Court has its roots in Mexico's past.
Mexico's ruling party, the Partido Revolucionario Institucional (PRI), governed for
almost a century with remarkably little violence. It was, as the Peruvian novelist
Mario Vargas Llosa once remarked, the "perfect dictatorship." Mexico's political
order under the PRI blended authoritarianism with flexibility because some constitutional
rules, like the prohibition on presidential re-election, were respected, allow-
WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 227-64 (2008) (discussing weak form judicial
review as a method for enforcing social and economic rights).
18. The causes and implications of the marginalization of constitutions in Latin America are examined
in Schorsupra note 5, at 14-30.
19. See, e.g., THE GLOBAL EXPANSION OF JUDICIAL POWER (C. Neal Tate & Torbj6rn Vallinder eds.,
1995).
20. See, e.g., Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism,
(Yale Law Sch. Faculty Scholarship Series, Paper No. 14,2008), available at http://Isr.nellco.org/
yale/fss/papers/14;see infra notes 97-121 and accompanying text.
21. For a richly suggestive essay on this point, see Thomas C. Grey, Judicial Review and Legal
Pragmatism, 38 WAKE FOREST L. REV. 473 (2003).
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
ing the system to evolve over time. The flexibility of Mexican authoritarianism made
Mexico the most successful dictatorship of the twentieth century.22
Authoritarianism has been a problem in Latin America since independence,23
as institutions failed to constrain presidents throughout the region.24 Institutional
design was not the culprit in Mexico, as its 1917 Constitution established a reasonable
balance of powers between the different branches of government. The strong
powers wielded by Mexican presidents flowed not from their formal powers, but
from their control over the PRI, which, in turn, controlled every level of government
until late in the twentieth century." The "metaconstitutional powers of the
president" trumped the formal separation of powers guaranteed by Article 49 of
the Mexican Constitution of 1917. 26 The reason this matters is that when Mexico
democratized and political parties opposed to the PRI gained office, vertical and
horizontal separation of powers emerged quickly. The institutions by which different
political factions check each other had not been destroyed during the period
of PRI ascendancy, but had simply lain dormant until pricked into activity by
the emergence of political competition.
The long period of PRI ascendancy did put its stamp, however, on the Mexican
Supreme Court. 7 Although it enjoyed formal independence from the executive," the
Mexican Supreme Court was subservient to the president throughout the period of
22. See STEPHEN D. MORRIS, POLITICAL REFORMISM IN MEXICO: AN OVERVIEW OF CONTEMPORARY
MEXICAN POLITICS 190 (1995), for discussion about Mexico's authoritarian exceptionalism. The openness
of the PRI regime led Robert Dahl, perhaps the most famous student of democracy, to mistakenly
conclude that Mexico under the PRI was democratic, or in Dahl's terminology, polyarchic.
ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 74 (1956).
23. Scholars disagree whether the nations of the region are authoritarian with faade constitutions or
whether they are liberal projects gone awry. Compare CLAUDIO VELIZ, THE CENTRALIST TRADITION OF
LATIN AMERICA 3-5 (1980) (arguing that the disposition of Latin American countries facilitates dictatorship),
with Jeremy Adelman & Miguel Angel Centeno, Between Liberalism and Neoliberalism: Laws Dilemma
in Latin America, in GLOBAL PRESCRIPTIONS: THE PRODUCTION, EXPORTATION, AND IMPORTATION
OF A NEW ORTHODOXY 139, 158-59 (Yves Dezalay & Bryant G. Garth eds., 2002) (arguing that the implementation
failed, and that respect for law is unlikely to take hold in Latin America anytime soon).
24. See generally Guillermo O'Donnell, Delegative Democracy, J. DEM., Jan. 1994, at 55 (finding
that the authoritarian past of new Latin American democracies reinforces behavior that keeps them
from being true representative democracies).
25. Jeffrey Weldon, The Political Sources of Presidencialismo in Mexico, in PRESIDENTIALISM AND DEMOCRACY
IN LATIN AMERICA 225, 252-53 (Scott Mainwaring & Matthew Soberg Shugart eds., 1997).
26. Id. at 254-55.
27 See MIGUEL GONZALEZ COMPEAN & PETER BAUER, JURISDICCI6N Y DEMOCRACIA: Los NuEvos
RuMBOS DEL PODER JUDICIAL EN MEXICO 107 (2002).
28. Justices enjoyed life tenure until the 1994 reforms. The 1917 constituent assembly discussed the
judiciary and sought to enhance its independence in "reaction to the judiciary's [historical] subordi-
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THE EMERGENCE OF CONSTITUTIONAL COURTS
PRI ascendancy for two reasons--one political, the other attitudinal. The political
explanation lies in bureaucratic recruitment and advancement. Justices were selected
among aspiring PRI functionaries with remarkably little media attention or involvement
by professional organizations. Justices tended to see their position as a steppingstone
to a better career somewhere higher up the PRI ladder. 9 The attitudinal
explanation is that judges shared a desire not to undermine the revolutionary project
of remaking Mexico.3 ° The Mexican Constitution of 1917 was designed to be a transformative
document,3' and judges believed that the political branches were to play the
key role in turning the promises contained in the constitution into reality. Mexican
constitutional scholars drew negative lessons from the role that the U.S. Supreme
Court played in preventing social reforms under Lochner32 and its progeny, and concluded
that courts with the power of judicial review were an obstacle to social reform.
33 Mexican courts adopted formalism, as have courts in authoritarian regimes
throughout the world, to avoid entanglement with politics. 34
nation" to strong presidents. Pilar Domingo, Judicial Independence: The Politics of the Supreme Court
in Mexico, 32 J. LATIN AM. STUD. 705, 711, 713 (2000).
29. Id. at 723. Between 1934 and 1994, almost 40% of the Justices remained in office fewer than five
years, even though they had life tenure. Beatriz Magaloni, Authoritarianism, Democracy, and the Supreme
Court: Horizontal Exchange and the Rule of Law in Mexico, in DEMOCRATIC ACCOUNTABILITY IN
LATIN AMERICA 266, 288-90 (Scott Mainwaring & Christopher Welna eds., 2003). Under the PRI,
the judiciary was starved for resources. It was better characterized as "third rate rather than the third
branch of government." H&tor Fix-Fierro, Judicial Reform in Mexico: What Next?, in BEYOND COMMON
KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 240, 240 (Erik G. Jensen & Thomas
C. Heller eds., 2003).
30. See Charles A. Hale, The Civil Law Tradition and Constitutionalism in Twentieth-Century Mexico:
The Legacy of Emilio Rabasa, 18 LAW & HIST. REV. 257, 278 (2000).
31. The Mexican Constitution of 1917 was part of a larger project to "regenerate" or modernize
Mexico by overcoming the legacies of the past that had prevented it from "developing." See WILLIAM
H. BEEZLEY & COLIN M. MACLACHLIN, 2 EL GRAN PUEBLO: A HISTORY OF GREATER MEXICO
1911-THE PRESENT 245-47 (1994).
32. For a discussion of the role that the fear of Lochner (i.e. that courts would undo social reforms
adopted by majoritarian institutions) played in the comparative constitutional imagination, see
Miguel Schor, Judicial Review and American Constitutional Exceptionalism, 46 OSGOODE HALL L.J.
(forthcoming 2008).
33. See Hale, supra note 30. The majority of jurists throughout the period of PRI ascendancy defended
the view that the Constitution of 1917 was largely a political instrument. GONZALEZ & BAUER,
supra note 27, at 121. See generally Matthew C. Mirow, Marbury in Mexico:Judicial Reviews Precocious
Southern Migration, 35 HASTINGS CONST. L.Q. 41 (2007) (examining the history of Mexico's judiciary
in its relation to American jurisprudence).
34. Judges in authoritarian regimes can retain a high degree of independence by relying on legal
formalism to reduce or prevent conflict with the other branches. LISA HILBINK, JUDGES BEYOND POLITICS
IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE 249 (2007).
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This was the legacy faced by Ernesto Zedillo when he became president in 1994.
Zedillo ran on a platform that included judicial reform and delivered on that promise
almost immediately upon taking office. Zedillo was part of a wing of the PRI that
sought to improve the functioning of the judiciary as a means of facilitating economic
and political liberalization." In addition, rising levels of violence "forced all [the]
presidential candidates [in 1994] to make justice-related campaign promises. 3 6 The
speed with which the reforms occurred is remarkable. Zedillo delivered his inaugural
speech on December 1, 1994, and spoke at length of the need to strengthen the
Supreme Court by reforming the constitution. 7 He proposed profound constitutional
reforms on December 6, 1994. The reforms became law by February 1, 1995."8 There
was little or no discussion of these reforms in Congress, the public, or the media.39
Zedillo's reform package had two complementary aims.4 The first was to
35. The "technocrats" within the PRI, such as Ernesto Zedillo, who favored liberalization were
largely trained in disciplines like economics in the United States. See generally MIGUEL ANGEL CENTENO,
DEMOCRACY WITHIN REASON: TECHNOCRATIC REVOLUTION IN MEXICO (1999) (analyzing the
technocrat revolution in Mexico and its repercussions on the modern state). Reforms aimed at professionalizing
the judiciary began in the 1980s, however, and preceded Zedillo's election. Fix-Fierro,
supra note 29, at 240-41.
36. Silvia Inchin Oseguera, Judicial Reform and Democratization: Mexico in the 1990s, at 88
(2004) (unpublished PhD dissertation, Boston University) (citing 50 PREGUNTAS A LOS CANDIDATOS,
ELECCIONES MEXICANAS 21 DE AGOSTO DE 1994, at 135 (Federico Reyes Heroles coord. 1994)).
37. President Ernesto Zedillo, Discurso Completo de la Toma de Posesion Como Presidente (Dec.
1, 1994), http://www.bibliotecas.tv/chiapas/dic94/Oldic94a.html.
38. Amendments require a two-thirds majority in Congress and a simple majority in the states.
MEX. CONsT. art. 135. The s peed with which the judicial reform of 1994 was implemented was not
unusual. Article 135 was an ineffective speed bump to a party that controlled all 3 branches of the
federal government and the majority of state governments for almost the entire twentieth century.
The Mexican Constitution was amended four hundred times between 1917 and 1988, when the PRI
lost the ability to amend the Constitution without consulting the other parties. Magaloni,supra note
29, at 282. Although constitutions in Latin America are, formally speaking, rigid documents, they
are flexible in practice as evidenced by the ease with which they are changed. See Schor, supra note 5,
at 29.
39. The dearth of discussion that the proposed judicial reform generated is remarkable. It "attracted
little media attention, occupying no newspaper headlines or front page space." Oseguera,
supra note 36, at 89. It generated little or no discussion in Congress, which enacted Zedillo's initiative
in sixteen days. The reform reduced the number of justices from twenty-six to eleven. There was no
complaint by the sitting members of the Supreme Court, all of whom lost their positions, as they were
offered retirement bonuses. Id. at 92. When interviewed, the outgoing president of the Supreme
Court stated that the Court would comply with these changes as "only in this manner could Mexico
remain governed by the rule of law." Miguel Cabildo, Los 25 Ministros Que Serdn Jubilados, Sus Historias,
Sus Carreras, Sus Nombramientos, PROcEso, Dec. 19, 1994, at 32. For a more nuanced view on
the level of interest generated by the 1994 reforms, see Fix-Fierro, supra note 29.
40. STEPHEN ZAMORA ET AL., MEXICAN LAW 188 (2004).
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THE EMERGENCE OF CONSTITUTIONAL COURTS
secure the independence of the Mexican Supreme Court. The 1994 reforms provide
that appointees may not have held a political position for one year prior to
appointment and may not hold political office for two years after retirement.4
The executive's appointment power was weakened as well. Following the 1994
reforms, the president must submit three names to the Senate, which then has
thirty days to select one by a two-thirds majority vote.42
The second goal of the reforms was to empower the Mexican Supreme Court
to deal with vertical and horizontal separation of power issues. Mexico moved towards
the political court model of review,43 which is the norm in Europe, 4 when
Article 105 of the Mexican Constitution was amended. A defining characteristic of
this model is that political actors may bring their disputes directly to a national high
court for resolution. The Mexican version of the political court model provides for
two different review mechanisms. One is the controversia constitucional, which provides
for centralized, a posteriori review of "any dispute that may arise between government
authorities."5 It is designed to effectuate vertical and horizontal separation
of powers by enabling the various branches of government to air out their disputes
before the Mexican Supreme Court.46 The other major innovation is the acci6n de
inconstitucionalidad, which is a form of abstract, centralized review.47 It is designed
to allow political parties to bring claims directly before the Supreme Court." Decisions
under either action are binding erga omnes and have, therefore, precedential
effect, which is an innovation in Mexican law designed to strengthen judicial rulings
of invalidity. Under either form of review, a minimum of eight out of the eleven
justices must vote to invalidate a law, which preserves an ample margin of apprecia-
41. MEX. CONsT. arts. 95, 101.
42. Id. art. 96. If the Senate fails to act, the President can select one of the nominees. If the Senate
rejects all three, then the President provides a new list of nominees. If the Senate again rejects all
three, the President then can designate an appointee. Id.
43. The political court model is defined and compared to other models of judicial review in Schor,
supra note 32.
44. The political court model of judicial review has proven highly influential throughout Latin
America as well. See generally Patricio Navia & Julio Rfos-Figueroa, The Constitutional Adjudication
Mosaic of Latin America, 38 COMp. POL. STUD. 189 (2005).
45. ZAMORA, supra note 40, at 275. Claims may be brought only before the Mexican Supreme
Court. Id. at 276. They must also be brought within thirty days of the challenged decision. Id. at 280.
The 1917 Constitution provided for this form of review as well but it lacked any implementing legislation
until the 1994 reforms. Id. at 276.
46. Id. at 274.
47. See id. at 282-85.
48. The actors who have standing are qualified legislative minorities, the Attorney General of
Mexico, and the leaders of political parties. Id. at 284.
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
tion for legislatures. 9 These two reforms provided the Mexican Supreme Court
with the requisite tools to become a powerful actor in disputes between the various
branches of government and between political parties.
The writ ofamparo, on the other hand, which is the vehicle used to effectuate
individual rights, was not reformed in 1994. Prior to 1994, it was the primary judicial
review mechanism in Mexico." It is frequently criticized for having only
inter pares effect in what has become known as the Otero formulation.5 A weak
system of precedent has some virtues, however. Civil law systems look askance
upon precedent because the code, and not its judicial incrustations, is the law.52
Similarly, scholars have argued that precedent should have less strength in constitutional
adjudication than in other fields because "a written constitution ... must
provide flexibility if judicial supremacy is to be permitted." 3 The real problem
with the writ of amparo is that it has become very technical and has "gradually
turned into a subtle and intricate tapestry of legal nuances.."5 4 It can be used to
challenge judicial decisions and is frequently used to delay and clog up judicial
proceedings.55
Following the 1994 constitutional reforms, the Mexican Supreme Court became
an important player in Mexican politics. The reforms changed the "political
understanding surrounding the Supreme Court's role as a check on the separation
49. Some scholars have criticized the supermajority provision as weakening judicial control of legislation.
See, e.g., Jodi Finkel,Judicial Reform as an Insurance Policy: Mexico in the 1990s, 46 LATIN AM.
POL. & Soc'y. 87, 97 (2004). It has the virtue, however, of institutionalizing the principle, first articulated
by Thayer, that courts should invalidate legislation only when a clear mistake has been made.
See generally James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7
HARV. L. REV. 129 (1893). The Mexican supermajority rule fits in comfortably with a trend toward
limiting the power of courts to invalidate legislation, which Mark Tushnet calls weak-form review.
TUSHNET,Supra note 17, at 18-42.
50. H&tor Fix-Zamudio & Eduardo Ferrer Mac-Gregor, El Derecho de Amparo en Mxico, in EL
DERECHO DE AMPARO EN EL MUNDo 461 (Hector Fix-Zamudio & Eduardo Ferrer Mac-Gregor eds.,
2006).
51. Id. at 5 14-21.
52. See generally JOHN MERRYMAN ET AL., THE CIVIL LAW TRADITION 937-1011 (1994) (describing
sources of law and philosophies of judicial interpretation, including the role of precedent, in civil law
systems).
53. EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 42 (Ist ed. 1949).
54. ZAMORA,SUpra note 40, at 259. Repeated efforts to reform the writ ofamparo have failed for lack
of political support. Id. at 260-61; Domingo, supra note 28, at 717-18. In 1992 around "77 percent of
amparo cases were dismissed for reasons of improper procedure" and only 11% favored the plaintiff.
Domingo, supra note 28, at 717.
55. Zamora concludes that it is "often simply used as a delaying tactic in civil disputes that have
little to do with constitutional guarantees." ZAMORA,supra note 40, at 2 74 .
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THE EMERGENCE OF CONSTITUTIONAL COURTS
of powers." 6 Disputes that were once ignored or handled behind closed doors by the
president are now resolved by the court. This transformation can be seen most readily
in a number of recent cases involving the president.57 It would have been unthinkable
for the Mexican Supreme Court to have resolved these disputes before the
1994 reforms. One such dispute involved a suit filed by opposition lawmakers seeking
information regarding the "questionable financing of Mr. Zedillo's 1994
campaign."" Another involved a dispute between President Vicente Fox and Congress
over an attempt by the President to limit the budget in 2005. The Mexican
Supreme Court upheld Fox's actions but provided a mechanism by which Congress
could reject presidential changes to the budget. 9 Another important case occurred
when the court ruled that a former president could be tried for crimes committed in
office.60 The striking aspect of these three cases is that the Mexican Supreme Court
assumed an important role as an umpire in disputes between the different branches
of government. The Mexican Supreme Court has not been as active as the Colombian
Constitutional Court, however, in effectuating individual rights.
II. A NEW DEMOCRATIC ACTOR IN COLOMBIAN POLITICS
While Mexico had a stable, open, authoritarian regime throughout the twentieth
century, Colombia experienced a stable, closed democracy. It had regular presidential
elections throughout the twentieth century with one short dictatorial
interruption.6 Against this electoral success, however, one must weigh the obvious
deficiencies of Colombian democracy such as marked inequality; a "horrendous spiral
of violence," particularly "[s]ince the mid-1980s"; and the "inability or unwillingness"
of political institutions "to respond adequately to.. .dramatic socioeconomic
56. Finkel, supra note 49, at 92-93.
57. This essay focuses on horizontal, rather than vertical, separation of powers. For an analysis of
vertical separation of powers, see generally Susana Berruecos, El Nuevo Papel del Poder Judicial en
Mxico: La Corte Suprema Bajo un Nuevo Federalismo, in ESTADO DE CRISIS 0 CRISIS DEL ESTADO
77-108 (Beatriz Londofio Toro ed., 2003).
58. Sam Dillon, Mexico Court Makes History by Siding with Congress, N.Y. TIMES, Aug. 25, 2000, at
A3. Justice Olga Sanchez Qordera stated in a news conference that "this was a profoundly historic
decision." Id.
59. Stephen Zamora & Jos6 Ram6n Cossio, Mexican Constitutionalism After Presidencialismo, 4
INT'L J. CONST. L. 411,422 (2006).
60. Id.
61. FRANK SAFFORD & MARCO PALACIOS, COLOMBIA: FRAGMENTED LAND, DIVIDED SOCIETY 298
(2001).
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
changes .... '2 In response to the violence and immobilism of the political system,
the power of Colombian presidents grew through the repeated use of states of emergency.
6 In short, in a region of troubled democracies, Colombia stands out for its
combination of elections, overly powerful presidents, inequality, and violence.
The latter half of the twentieth century witnessed a profound constitutional
moment throughout the Americas. 64 No country in the Americas experienced as
profound a constitutional transformation, however, as Colombia. It was also a transformation
marked by illegality, though this may be the norm with regard to deep
constitutional changes. 65 A referendum was used to determine whether the voters
desired a constitutional assembly, despite the fact that only Congress had the power
to amend the constitution.6 6 The barrier to amendment was quite low, since amendments
required only an absolute majority in both houses of Congress in two consecutive
sessions. 67 Although Colombia's Constitution was formally flexible, it proved
rigid in practice. Colombia's democracy had become increasingly dysfunctional in
the second half of the twentieth century. Its presidents, elected by a nationwide con-
62. Jonathan Hartlyn & John Dugas, Colombia: The Politics of Violence and Democratic Transformation,
in DEMOCRACY IN DEVELOPING COUNTRIES: LATIN AMERICA 249, 249-50 (Larry Diamond et
al. eds., 2d ed. 1999).
63. Id. at 251 (noting that the country has largely been governed under a state of siege since the
194 0s); see also Ronald P. Archer & Matthew Soberg Shugart, The Unrealized Potential of Presidential
Dominance in Colombia, in PRESIDENTIALISM AND DEMOCRACY IN LATIN AMERICA, supra note 25, at
110, 126 (noting that Colombia was under a state of siege 75% of the time from 1958 to 1991). States of
siege have been a leitmotif of Latin American politics. As a consequence, constitutionalism in the region
facilitated dictatorship as the exception becoming the rule. See generally LOVEMAN,supra note 4.
64. The constitutional changes in Latin America were dramatic. SMITH, supra note 4, at 156
("During the 1990s, seven countries adopted completely new constitutions; others used amendments
as a means of reform."); Oquendo, supra note 8, at 192. Canada adopted the Charter of
Rights and Freedoms after a long and difficult gestation. See PETER H. RUSSELL, CONSTITUTIONAL
ODYSSEY: CAN CANADIANS BECOME A SOVEREIGN PEOPLE 4 (3d ed. 2004). The United States was not
immune to the wave of constitutional democratization, but that transformation occurred via the
Supreme Court rather than formal amendment. LUCAS A. PowE, JR., THE WARREN COURT AND
AMERICAN POLITICS 2 (2000) (arguing that the Warren Court was part of a larger liberal coalition
that mounted a sustained assault on anti-democratic enclaves found primarily in the South).
65. In the United States, for example, "the Constitutional Convention was acting illegally in proposing
its new document in the name of We the People." BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS
41-42 (1991).
66. The legality of the convention was tested in the Colombian Supreme Court, which upheld the
referendum "on the grounds that the state of siege powers permitted the president in times of'abnormality'
to respond to the 'primary constituency."' Archer & Shugart, supra note 63, at 147.
67. Daniel L. Nielson & Matthew Soberg Shugart, Constitutional Change in Colombia: Policy Adjustment
Through Institutional Reform, 32 COMP. POL. STUD. 313, 321 (1999).
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THE EMERGENCE OF CONSTITUTIONAL COURTS
stituency, reflected the desires of urban voters in seeking institutional change.'
These desires were blocked by a Congress that suffered from malapportionment
and therefore reflected the desires of rural rather than urban voters. 69
While the legality of Colombia's constitutional assembly was questionable, it
was undoubtedly democratic. President Virgilio Barco used his state of siege powers
to hold a referendum on whether Colombia should have a constituent assembly.
70 Students and leading newspapers advocated in favor of a new constitution to
deal with Colombia's myriad problems.7 The referendum, which was held in
conjunction with the May 1990 presidential election, passed with 88 percent of the
vote. 2 The members of the constituent assembly were subsequently elected by a
minority of Colombia's voters73 but represented a broad swathe of the political
forces of the nation. The low turnout "enabled nontraditional parties and movements
to do extraordinarily well."74 In addition to representatives of the major
parties, the assembly included significant representation from demobilized guerillas
as well as indigenous and religious minorities. No group dominated the assembly,
which meant that decisions were reached on the basis of broad "discussion
and consensus. 75
The 1991 Constitution addressed Colombia's democratic deficits: a system of
representation that had done a poor job of aggregating voter preferences; an overly
68. Id. (noting that the "history of Colombia" between 1974 and 1990 is replete with "failed attempts
to reform the constitution").
69. Id. at 319 (observing that "by 1986, more than half the members of Congress were elected primarily
by rural voters, even thou gh more than 60% of the population was urban").
70. Id. at 326.
71. JAIME BUENAHORA FEBRES-CORDERO, EL PROCESO CONSTITUYENTE: DE LA PROPUESTA ESTUDIANTIL
A LA QUIEBRA DEL BIPARTIDISMO 126-28 (1991).
72. JOHN D. MARTZ, THE POLITICS OF CLIENTELISM: DEMOCRACY & THE STATE IN COLOMBIA 261
(1997); Nielson & Shugart, supra note 67, at 326.
73. SAFFORD & PALACIOS, supra note 61, at 336 (noting that 74% of the electorate refrained from
voting in the election of delegates to the assembly); Hartlyn & Dugas,supra note 62, at 281.
74. Hartlyn & Dugas, supra note 62, at 281; Gabriel Murillo-Castafio & Victoria G6mez-Segura,
Institutions and Citizens in Colombia: The Changing Nature of a Difficult Relationship, 84 Soc.
FORCES (SuPP.) 1, 3 (2005), http://muse.jhu.edu/journals/social-forces/v084/84.lbriceno-leon.pdf
(noting that the convention was broadly representative of the main social forces in Colombia);
Rodrigo Uprimny, The Constitutional Court and Control of Presidential Extraordinary Powers in
Colombia, 10 DEMOCRATIZATION 46, 52 (2003) ("[O1ver 40 percent of the members of the Constituent
Assembly did not belong to the Liberal and Conservative parties, which had until then dominated
Colombian electoral politics.").
75. Uprimny, supra note 74, at 52.
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
powerful president; and a broad failure to effectuate individual rights.76 Referenda
were introduced to reinvigorate electoral democracy.7 The power of the president
to legislate and declare states of siege was weakened.78 The new constitution was
rich in rights and in judicial mechanisms for their protection."
The 1991 Constitution also created a new constitutional watch guard-the
Colombian Constitutional Court-to replace the Supreme Court as the final arbiter
of constitutional meaning. The constituent assembly vigorously debated
whether a new court was needed." Forces who feared that it "would give judicial
decisions too much importance as sources of law," as in the United States, opposed
the creation of a constitutional court." The proponents of the new court, on the
other hand, believed that the Colombian Supreme Court had interpreted the 1886
Constitution in a formal manner that undermined rights protection and "amplified
the distance between the Constitution and the socio-political life of the [Colombian]
nation."82 Somewhat surprisingly, the new Constitutional Court became
a powerful guardian of constitutional rights. Constitution drafters, after all, do
not know ex ante how the institutions they craft will behave. There are three important
characteristics of the Colombian Constitutional Court that helped it
emerge as a powerful protector of rights for groups marginalized from political
power: a new method of judicial appointment; a new mechanism of judicial review;
and a transformation in how rights are conceptualized.
First, appointments link courts to broader political forces, thereby playing a key
76. See Manuel Jos6 Cepeda-Esp inosa, Democracy, State and Society in the 1991 Constitution: The
Role of the Constitutional Court, in COLOMBIA: THE POLITICS OF REFORMING THE STATE 72-73 (Eduardo
Posada-Carb6 ed., 1998); John C. Dugas, Explaining Democratic Reform in Colombia: The
Origins of the 1991 Constitution 84-85 (1997) (unpublished PhD dissertation, Indiana University),
http://proquest.umi.com/pqdweb?did= 739796131 &sid= l&Fmt=2&clientld = 12010&RQT=309&
VName = PQD.
77. There were also significant reforms to the electoral system, and new elected positions were created.
Dugas,supra note 76, at 87. While only Congress could amend the 1886 Constitution, the 1991
Constitution also provides for change by a popularly elected constituent assembly. Id; CONSTITUCi6N
POLITICA DE COLOMBIA arts. 260, 376 (1991) [hereinafter COLOM. CONST.].
78. The Colombian Constitutional Court has actively policed and restricted presidential declarations
of a state of siege, facilitating a striking reduction in its use. In the 1980s, Colombia was in a state
of siege for 80% of the time, in the 1990s, only 20%. Uprimny,supra note 74, at 64-65.
79. Although the 1991 Constitution clearly strengthened the mechanisms of judicial review, there
is a long tradition of judicial review in Colombia, as this power was established in the 1886 Constitution.
MANUEL Jost CEPEDA-ESPINOSA, POLtMICAS CONSTITUCIONALES 6 (2007).
80. Man uel Jos6 Cepeda-Espinosa, Judicial Activism in a Violent Context: The Origin and Impact of
the Colombian Constitutional Court, 3 WASH. U. GLOBAL STUD. L. REV. 529, 547 (2004).
81. Id. at 549.
82. CEPEDA-ESPINOSA, supra note 79, at 33.
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THE EMERGENCE OF CONSTITUTIONAL COURTS
role in the construction of judicial accountability. Scholars overly emphasize judicial
independence as the key to making constitutions work, whereas the problem is better
conceptualized as one of accountability. For courts to play a useful role in effectuating
constitutional democracy, they must be somewhat, but not overly, accountable.
Courts that are overly accountable to political factions erode the trust needed for democracy
to work, 3 whereas overly independent courts have little incentive to play a
positive role in the construction of democracy. 4 The Colombian Supreme Court, for
example, was insufficiently accountable under the 1886 Constitution. The court
"nominated its own new members" and, not surprisingly, had little incentive to play a
constructive role in democratic politics." The 1991 Constitution, on the other hand,
created an appointments mechanism that made the Constitutional Court broadly
representative of the political forces of the nation. The court currently has nine members
who are elected by the Senate for one eight-year period.86
Second, unlike the 1994 Mexican constitutional reform that empowered political
actors to bring claims directly before the Mexican Supreme Court, the 1991
Colombian reforms created a new tool by which ordinary citizens could vindicate
rights.87 The writ of tutela allows any person whose fundamental rights" are
threatened to sue. These actions are informal and may be filed without an attorney.
Judges must give these actions priority and reach a decision within ten days.
The Colombian Constitutional Court has discretion to review these decisions.89
The bulk of the work of the Constitutional Court deals with reviewing tutela ac-
83. Schor, supra note 32.
84. HILBINK, supra note 34, at 241 (arguing that the independence of the Chilean judiciary fostered
an extreme legalism that undermined democracy).
85. Cepeda-Espinosa, supra note 80, at 540.
86. Id. at 551. The Supreme Court, the Council of State, and the President each submit lists of three
candidates. COLOM. CONsT. arts. 239-40.
87. Abstract mechanisms of judicial review, which had their origin in the 1886 Constitution,
were also strengthened. Cepeda-Espinosa, supra note 80, at 554-56. The 1991 Constitution also
introduced mechanisms to contextualize abstract review by authorizing the Constitutional Court
to hold "public hearings to gather information on the socio-political context of the matter at hand."
Id. at 556. Abstract review generally has erga omnes effect, whereas tutela decisions generally have
inter pares effect., Id. at 565, 571.
88. The formal catalogue of fundamental rights is found in Title 1I, Chapter 1 of the 1991 Constitution.
The court has, however, given an expansive reading to the term "fundamental rights." Rights
not found in Title II, Chapter 1, such as economic, social, and cultural rights, may also be deemed
fundamental. ESTADO SOCIAL DE DERECHO/JUEZ DE TUTELA, Corte Constitucional
[Constitutional Court], Sentencia No. T-406/92 (Colom.); Mauricio Garcia-Villegas, Law as Hope:
Constitutions, Courts, and Social Change in Latin America, 16 FLA. J. INT'L L. 133, 145 (2004).
89. COLOM. CONsT. art. 86; Cepeda-Espinosa,supra note 80, at 552-54.
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
tions, which have grown dramatically in importance since 1991.90 Scholars dispute
the relative merits of abstract, concentrated review versus concrete, diffuse review.
It has been argued, for example, that a specialized tribunal exercising abstract,
concentrated review is more likely to become a vigorous defender of a constitution
than is a non-specialized court exercising concrete, diffuse review.9 The problem
with this view is that the formal mechanisms of judicial review do not determine
the role that a court assumes in a given democratic order. To understand the
emergence of courts as institutions, scholars need to contextualize the work of
courts. Diffuse review does have a democratic pay-off that concentrated review
does not-empowering citizens to bring claims may help build a constituency for
the legal system. The sheer number of tutela actions filed in Colombia attests to
the emergence of a culture of rights.92 Courts are powerless unless other actors use
their decisions as a form of coinage in political struggles." The lack of a constituency
means that the law neither regulates, nor ameliorates, political conflict because
the "linkages between law and society are broken."94 The existence of a
constituency, on the other hand, amplifies the power of courts95 and helps active
courts, such as the Colombian Constitutional Court, weather the political storms
that their decisions inevitably engender.9 6
Third, the 1991 Constitution marks a crucial transformation in how rights
are conceptualized in Colombia. The Colombian Constitutional Court has displaced
elected officials as the principal guardian of rights. In contrast, under the
1886 Constitution, courts were clearly subservient to the legislature in effectuating
rights; the liberties that the Constitution provided "were understood to be simple
prerogatives given by the state to individuals," which lacked enforcement mecha-
90. In 1992, the Colombian Constitutional Court reviewed 8,060 tutela decisions; in 2001, the
number was 133,273. From 1992 to 2002, the total number of decisions decided by the Court increased
from 235 to 1,123. Around 70% of those are tutela decisions; the rest are abstract review.
Cepeda-Espinosa, supra note 80, at 559-62.
91. AREND LIJPHART, PATTERNS OF DEMOCRACY: GOVERNMENT FORMS AND PERFORMANCE IN
THIRTY-SIX COUNTRIES 223-38 (1999).
92. CEPEDA-EsPINOSA,supra note 79, at 95-117.
93. Schor, supra note 3, at 1331-32.
94. Id. at 1333. See generally JENNIFER A. WIDNER, BUILDING THE RULE OF LAW (2001).
95. Even courts in authoritarian regimes have surprising reservoirs of strength if they have a political
constituency. See, e.g., TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW,
POLITICS, AND ECONOMIC DEVELOPMENT IN EGYPT 17 (2007).
96. Rodrigo Uprimny & Mauricio Garcfa-Villegas, The Constitutional Court and Social Emancipation
in Colombia, in DEMOCRATIZING DEMOCRACY: BEYOND THE LIBERAL DEMOCRATIC CANON 66, 74
(Boaventura de Sousa Santos ed., 2005); see, e.g., Uprimny, supra note 74, at 59.
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THE EMERGENCE OF CONSTITUTIONAL COURTS
nisms and could be broadly restricted.17 The judiciary consequently read the 1886
Constitution in a formal manner that effectively marginalized courts from the
political problems of the nation." The framers of the 1991 Constitution attacked
this problem, in part by providing a much richer set of rights than those found in
the 1886 Constitution.9" The long catalog of rights does not negate the existence of
other unenumerated rights,'00 and the vast majority of classical negative rights
may be applied directly by courts."'
More importantly, the Colombian Constitutional Court abandoned formalism
and adopted a realist approach that emphasized balancing tests. The change
was sudden and "unexpected" in a country that had a four century-old tradition
of "legal culture" wrapped in "ritual forms."' 0 2 The "traditionalist Latin American
view that minimizes the role of constitutions by focusing on concrete rules"
has been replaced by a "newer view that focuses on the principles and values behind
constitutions, and thus tends to read them broadly."' 0 3
This transformation did not flow simply from the rights inscribed in the 1991
Constitution or from the fact that they were made directly applicable by courts.
The membership of the Colombian Constitutional Court is quite different from
that of its predecessor, the Colombian Supreme Court. The new court has a large
number of former academics. A number of important politicians believed that
legal academics were more likely to have attitudes "in accord with a progressive,
new-constitutional political agenda.'0
1
4 These new judges had an international
outlook and understood that the dominant approach around the globe in construing
constitutions involved balancing.
Courts around the globe made the shift away from formalism and toward
balancing and pragmatism as they began to actively effectuate rights. The agenda
of the U.S. Supreme Court changed in the twentieth century as it turned increasingly
to rights litigation.' In the late nineteenth and early twentieth centuries, the
97. Cepeda-Espinosa, supra note 80, at 575.
98. CEPEDA-ESPINOSA, SUpra note 79, at 33.
99. Articles 11-41 of the Colombian Constitution provide a list of classical negative or "fundamental
rights." Articles 42-77 catalog economic, social, and cultural rights. Articles 78-82 list collective
and environmental rights. COLOM. CoNsT. arts. 11-82.
100. Id. art. 94.
101. Id. art. 85.
102. Cepeda-Espinosa, supra note 80, at 651.
103. David Landau, The Two Discourses in Colombian Constitutional Jurisprudence: A New Approach
to Modeling Judicial Behavior in Latin America, 37 GEO. WASH. INT'L L. REv. 687,689 (2005).
104. Id at 725.
105. See generally Epp, supra note 15.
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
Court came under attack for preventing social reforms by relying on what critics
argued was an outmoded view of the Constitution. °6 In response, justices such as
Holmes, Brandeis, and Stone championed a realist turn that utilized balancing to
take social facts into account in constitutional adjudication. 7 The Court explicitly
began to rely on balancing tests in the late 1930s and 1940s as it articulated a new
role within American politics.' An analogous transformation occurred in Canada.
Canada's original constitution, the British North America Act of 1867, established
federalism but did not constitutionalize rights. 1 09 Canadian courts relied on
legal formalism when judicial review encompassed only federalism."' Rights were
constitutionalized in 1982 with the adoption of the Canadian Charter of Rights
and Freedoms."' When faced with the task of construing an expansive list of
rights, Canadian courts turned to balancing. This process was accelerated by the
appointment of academics, such as Bora Laskin, to the Canadian Supreme
Court."2 This shift in legal reasoning was preceded by a transformation in Canada's
legal culture that involved a vigorous debate over the roots of Canadian constitutionalism
and the desirability of enhancing the role of courts."3 The most
important piece in the puzzle of the spread of balancing, however, was the adoption
of proportionality 4 by the German Constitutional Court after World War
106. HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA
POLICE POWERS JURISPRUDENCE 148-93 (1993).
107. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 954-56
(1987).
108. Id. at 948.
109. RUSSELL, Supra note 64, at 15-31.
110. Peter Hogg, Canada: From Privy Council to Supreme Court, in INTERPRETING CONSTITUTIONS:
A COMPARATIVE STUDY 55 (Jeffrey Goldsworthy ed., 2006); see also Jennifer Smith, The Origins of
Judicial Review in Canada, 16 CAN. J. POL. ScI. 115 (1983) (discussing the intellectual origins of judicial
review in Canada).
111. EDWARD MCWHINNEY, CANADA AND THE CONSTITUTION 1979-1982: PATRIATION AND THE
CHARTER OF RIGHTS (1982).
112. Hogg,supra note 110, at 77-80.
113. RUSSELL, supra note 64, at 99-125; David Oliver Erdos, Mace, Sword, and Scales: The Bill of
Rights Debate in Westminster Democracies (2007) (unpublished dissertation, Princeton University,
on file with the author).
114. Scholars in the United States tend to speak of balancing, whereas scholars abroad speak of
proportionality. See Jacco Bomhoff, Balancing, the Global and the Local: Judicial Balancing as a Problematic
Topic in Comparative (Constitutional) Law, 31 HASTINGS INT'L & COMP. L. REV. 555 (2008), for
an analysis of this distinction.
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THE EMERGENCE OF CONSTITUTIONAL COURTS
II." From Germany, balancing spread "relatively quickly from one jurisdiction to
another" in an almost "viral" fashion. 16
This transformation of legal culture"7 has been more wrenching in Latin
America than elsewhere in the Atlantic world because formalism developed deep
roots during the long ascendancy of oligarchy and dictatorship in the region. Colombia
is at the vanguard of this shift in legal consciousness in Latin America,
which is linked, as it is elsewhere around the globe, to the notion of justiciable
rights."8 The 1886 Constitution was conceived as regulating the "functions and
competencies of the branches of government" but not as a source of rights that
"citizens could judicially enforce. '"9 Criticisms of the classical understanding of
constitutionalism emerged as part of a larger conversation about the state's failure
to deal with Colombia's deep problems. Dworkin and his expansive view of the
role of courts in effectuating rights displaced Kelsen's narrower views in the legal
imagination. This shift in legal culture is reflected in the work of the Colombian
Constitutional Court, as the justices "have made frequent use of contemporary
legal theory to fashion a new judicial style in open contrast with the classical
style.'"' 2 The Court has used this new style of legal reasoning to fashion a progressive
jurisprudence that has both provided outputs for groups long marginalized
115. See generally Sweet & Mathews,supra note 20, at 16-27 (tracing "the emergence of [proportionality
analysis] as a formal procedure for dealing with righ ts claims" in Germany).
116. Id. at 2 6.
117. Professor Diego Eduardo L6pez-Medina provides a seminal study of this transformation.
DIEGO EDUARDO LOPEZ-MEDINA, TEORfA IMPURA DEL DERECHO: LA TRANSFORMACION DE LA CULTURA
JURIDICAL LATINOAMERICANA (2005).
118. The Mexican Supreme Court recently began to utilize balancing tests in amparo cases. Luisa
Conesa, The Tropicalization of Proportionality Balancing: The Colombian and Mexican Examples (Cornell
Law Sch. LLM Paper Series, Paper No. 13, 2008) available at http://lsr.nellco.org/cornell/lps/
clacp/13. It is not surprising that balancing in Mexico emerged first in amparo cases because it is designed,
inter alia, to effectuate individual rights. The transformation in Mexico appears incomplete,
however, as some scholars characterize the reasoning of the Court in many cases as "formalistic." See
GONZALEZ & BAUER,supra note 27, at 34;see also Sergio L6pez-Ayll6n & H&tor Fix-Fierro, "Faraway,
So Close!" The Rule of Law and Legal Change in Mexico, 1970-2000, in LEGAL CULTURE IN THE AGE
OF GLOBALIZATION: LATIN AMERICA AND LATIN EUROPE 285, 286 (Lawrence M. Friedman & Rogelio
Prez-Perdomo eds., 2003) (noting that factors facilitating the rule of law such as a "stronger judiciary,
and increasing rights awareness among the population" are counterbalanced by, among other
things, a "formalistic judicial mentality").
119. LOPEZ-MEDINA, Supra note 117, at 408.
120. Id. at 436.
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INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1
from political power and deepened the social bases of democracy in a society long
marked by inequality.12'
CONCLUSION
Mexico and Colombia provide an instructive unit of comparison politically
and juridically. Throughout the twentieth century, Mexico was a remarkably
open authoritarian regime and Colombia a fairly closed electoral democracy.
Today, both nations are vigorous, if troubled, democracies. Both nations adopted
important reforms in the 1990s that empowered their respective national high
courts to enforce constitutional guarantees. While both Mexico's and Colombia's
constitutional moments were marked by authoritarian undertones, the adoption
of Colombia's 1991 Constitution clearly involved a higher degree of discussion and
participation than Mexico's 1994 constitutional reforms.
Both Mexico and Colombia strengthened their mechanisms of judicial review,
which in turn is part of a world-wide process that scholars call the judicialization
of politics.'22 The term "judicialization of politics" is problematic, though,
as it focuses attention on why courts gain power while obscuring the transformations
occurring within the judiciary. Scholars have paid too much attention to the
conditions that facilitate the emergence of judicial power and too little on what
courts are actually doing. Courts are transformed when they exercise judicial review.'
23 When courts assume the job of judicial review in a new democracy, they
may become institutions whose members believe they have an important role to
play in keeping the democratic enterprise afloat. For example, the uncertainty as
to the role of the Supreme Court in the early American republic, and the political
disagreement its work engendered, helped forge the Marshall Court into a remarkably
unified institution. 2 4 Similarly, both Mexico and Colombia have powerful
national high courts whose members share a mission or a belief that they are
121. See Cepeda-Espinosa,supra note 80, at 650, 665; Garcia-Villegas,supra note 88, at 141. But see
Garcfa-Villegas, supra note 88, at 151. See generally Uprimny & Garcia-Villegas, supra note 96, at
65-92 (examining the role of progressive constitutions in "social emancipation," with particular
emphasis on Colombia).
122. See generally THE GLOBAL EXPANSION OF JUDICIAL POWER, SUpra note 19.
123. See Grey, supra note 21, for a richly suggestive essay on this point.
124. See DWIGHT WILEY JESSUP, REACTION AND ACCOMMODATION: THE UNITED STATES SUPREME
COURT AND POLITICAL CONFLICT 1809-1835, at 445-47 (1987).
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THE EMERGENCE OF CONSTITUTIONAL COURTS
engaged in a common enterprise."' The notion that courts should be subservient
to political actors has been swept away. This is an important transformation in a
region where politicized constitutions have long facilitated dictatorship.
One of the lessons of this essay is that the two courts have different notions of
what their jobs should be. The Mexican Supreme Court sees its role as an umpire
in the game of politics. It maintains horizontal and vertical separation of powers
and prevents parties from riding roughshod over each other. It bears a familial
relationship to the Marshall Court in the early American republic, which assumed
the job of maintaining the shifting line between nation and state. The Colombian
Constitutional Court, on the other hand, clearly plays a different role. In a country
marked by violence and inequality, it sees its role as deepening the social bases
of democracy. It has breathed life into the long list of rights contained in Colombia's
1991 Constitution and the citizens of that nation have increasingly turned to
the Court for protection. It bears a familial relationship to the Warren Court,
which sought to deepen American democracy and enforce rights against a recalcitrant
minority located mainly in the South.
The issue is why these two courts assumed such different missions. The obvious
answer focuses on the short-term political bargains that empowered these two courts.
Mexico chose to strengthen the mechanisms by which political actors could bring
claims directly before the Supreme Court, whereas Colombia created a tool by which
ordinary citizens could bring claims before its courts. The problem with this view is
that courts are not automatons whose job can be engineered ex ante by constitution
makers. Both the Mexican Supreme Court and the Colombian Constitutional Court
could have ignored or perverted the mandates that were thrust upon them, much as
the U.S. Supreme Court did with the reconstruction amendments for more than a
century. To answer this question, we need to understand the intellectual atmosphere
in which the courts operated. The 1991 constitutional transition in Colombia was
preceded by a vigorous public debate over the necessity of enhanced judicial protection
of rights and a debate among legal scholars over the role of balancing tests in
constitutional law. Mexico, on the other hand, undertook a more limited constitutional
revision that was not accompanied by a sustained public debate.
In addition to exploring the constitutional transformations that occurred in
125. See generally Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretive
Institutionalism and the Analysis of Supreme Court Decision-Making, in SUPREME COURT DECISIONMAKING:
NEW INSTITUTIONALIST APPROACHES 65, 78-86 (Cornell W. Clayton & Howard Gillman
eds., 1999) (discussing the beliefs of the United States Supreme Court justices in regard to the institutional
"mission" of the Court).
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Mexico and Colombia, this essay also explored the democratic consequences of
the different roles assumed by these two courts. An important strand in modern
American constitutional theory suggests that the role exercised by Mexico's Supreme
Court may be more democratically appropriate than the one exercised by
Colombia's Constitutional Court. Both the Marshall and Warren Courts engendered
political conflict, but the latter facilitated the rise of a powerful conservative
backlash which transformed American politics. 2 ' The lesson of the American
experience seems to be that courts enhance democracy by enforcing procedural
protections but can undermine it by vigorously enforcing substantive protections.
Elected officials, not courts, should usher in democratic transformations.
It would appear, moreover, that if activist courts are dangerous in well-established
democracies such as the United States, then they are even more dangerous
in transitional democracies. This is a mistake for two reasons. First, transitional
democracies suffer from a number of democratic deficits. Using the law as a
means of addressing these deficits has proven alluring to lawyers throughout
Latin America, particularly those who were steeped in the progressive legacy of
the Warren Court when they studied in American law schools.' Long, detailed
constitutions and activist courts may do a better job of delivering democratic outputs
than elected officials. 2 ' Precisely because national high courts have a small
membership and face different incentives than do legislative bodies, courts may,
under appropriate circumstances, forge a collective understanding that their job is
to effectuate programmatic constitutions. Second, there is an unexpected but important
pay-off to the active enforcement of rights by courts in transitional democracies.
Courts can utilize formalism in enforcing separation of powers, but
formalism breaks down when they actively effectuate rights. Courts that effectuate
rights necessarily balance constitutional guaranties against statutes. Courts
provide better democratic outputs when they take a pragmatic, flexible approach,
rather than a formal approach, to interpreting constitutional guaranties.
126. Professors Post and Siegel coined the term "backlash thesis." Post & Siegel, supra note 16, at
373.
127. Javier A. Couso, The Seduction of judicially Triggered Social Transformation: The Impact of the
Warren Court in Latin America, in EARL WARREN AND THE WARREN COURT: THE LEGACY IN AMERICAN
AND FOREIGN LAw 237,262 (Harry N. Scheiber ed., 2007).
128. Scheppele, supra note 17, at 25.
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