Matching Constitutional Culture and Parchment: Post-Colonial Constitutional Adoption in Mexico and Argentina
| Autor | Nikolai G. Wenzel |
| Páginas | 321-338 |
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A country's choice of a constitution will have profound implications for future stability and prosperity (see Scully 1988 and 1992).1History is littered with poor choices; some (e.g. post-World War Two France or post-Soviet Russia) led to constitutional adjustment; others (such as Argentina or the Philippines) led to constitutional failure, and its ensuing dictatorship and economic disaster.
Mexico and Argentina offer an illustrative comparison. Both countries adopted constitutions in a post-colonial setting, but after decades of turmoil, rather than immediately after their independence from Spain; both borrowed ideas and constitutional design from other countries. Both constitutions were endogenously imposed (non-evolutionary) documents inspired by exogenous ideas. The outcomes, however, were very different: although far from perfect, Mexico has enjoyed constitutional stability, whereas Argentina suffered 11 military coups and
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six military dictatorships in the past century. Because of the similarities in the circumstances surrounding their founding, and the radically different outcomes, the contrasting cases of Mexico and Argentina offer useful lessons for constitutional transfer, constitutional stickiness and constitutional maintenance - and the implications of constitutional choice for political stability and economic growth. Most importantly, these two countries illustrate the importance of matching constitutional parchment to the underlying constitutional culture.
Section Two offers a brief methodological setting on constitutional culture, and the importance of matching formal institutions to informal culture. Section Three discusses Mexico's constitutional success. Section Four explains Argentina's failure, showing that the constitution was fundamentally alien to the underlying culture - and was thus rejected. The final section concludes.
As the primary purpose of this paper is a comparative examination of Mexico and Argentina, I offer only the minimum methodological background necessary. The interested reader is invited to read Wenzel 2007 or forthcoming for details.2
Instead of the more traditional contractual approach to constitutionalism within the discipline of constitutional political economy,3I employ Hardin's4basic view of a constitution as a coordinating mechanism among the "interests that matter" within a polity.5As a coordination mechanism, constitutionalism requires
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"relatively wide agreement on core issues,"6or, in the words of Knight, "society depends upon - we may almost say that it is - moral like-mindedness."7
Successful coordination around a constitution - for harmony, peace, order, and exchange - requires a polity's willingness to be bound,8with informal norms as the ultimate guardian of constitutionalism. Indeed, the solution to constitutional success lies not in the formal. It cannot: constitutions are ultimately mere parchment. While ordinary contracts rely on a combination of internal constraints and external enforcement mechanisms, a constitution, by definition, is the formal enforcement mechanism of last resort. There can be no outside appeal to any other formal institution beyond the constitution itself. Hence the importance of informal constraints in maintaining constitutional order. Hardin explains that "without support from relevant people, perhaps often in the grudging form of those unable to co-ordinate in refusing support,...rules would not be worth the paper on which they are recorded."9Similarly, Alexander Hamilton sensibly noted of the US Constitution that it was a "frail and worthless fabric" in the hands of the wrong people.
This informal constraint, this approach to constitutionalism, can be captured in the concept of constitutional culture. Existing attempts at defining constitutional culture offer a useful start.10But these approaches all share the same major shortcoming, as they limit the concept of constitutional culture to situations where the polity accepts constitutional constraints. Defining constitutional culture as a culture that accepts constitutionalism is simply too limiting; not only does it border on the tautological, but it does not shed light on constitutional failure (which is, after all, much more common than constitutional maintenance).
Constitutional culture includes the implicit and explicit, stated and unstated, conscious and subconscious, thoughts, feelings, beliefs, impressions and norms a group holds about the nature, scope and function of constitutional constraints. Different groups in society can have different constitutional cultures. In a linguistic simplification, I will refer to the predominant constitutional culture as the national constitutional culture, where appropriate. Thus, constitutional culture reflects the
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most basic beliefs and attitudes about general organization, that is, not just the constitutional text itself, "but the entire network of attitudes, norms, behaviors and expectations among elites and publics that surround and support the written instrument."11For definitional and methodological details, see Wenzel 2007 and forthcoming.12
Constitutional culture gains particular importance when we look at constitutional stickiness. Simply stated, a constitution must match the underlying constitutional culture. If it does not, the informal will reject the formal. Rejection can occur for a variety of reasons, ranging from the cultural to the philosophical. For example, a constitutional culture might reject constitutionalism entirely - perhaps because of opportunism or fatalism, or perhaps because constitutionalism is seen as an unfair thwarting of the popular will. Likewise, a constitutional culture might reject a specific constitution.
In sum, a constitution will fail if it is perceived as a foreign graft onto a constitutional culture that formally rejects it, whether because of cultural or philosophical incompatibility. If constitutional culture and the formal constitutional system are radically mismatched, the culture will reject the foreign transplant completely; the best is the enemy of the good, and the wise constitutional framer will not choose the best theoretical constitution. Rather, the wise constitutional framer will pay strict attention to the patient on whom the constitution is being grafted, to guard against transplant rejection and its ensuing health- and life-threatening complications. In a somewhat ironic conclusion, the ideal constitution is, to a large extent, the feasible constitution. Absent stickiness and robustness, a perfect constitution may as well stay under glass in a museum - or forgotten in a Federal Express depot (a friend in an unstable country has a can of food, and calls you for help opening it. Easy. You put a can-opener in a Federal Express package, which your friend receives within 48 hours. He enjoys his food. Why can’t you simply drop a copy of the US Constitution into a Federal Express package, in like fashion Why aren’t constitutions like can-openers )13
The following two cases studies illustrate.
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It may seem odd to use Mexico as a paragon of constitutional success. Indeed, Mexico is known for corruption rather than rule of law; for chronic economic instability and underdevelopment caused by unsound institutions; and for its contrast between Ivy League-educated élites and impoverished masses. In addition, Mexico has only recently emerged from almost a century of one-party rule, in what Vargas Llosa dubbed "the perfect dictatorship,"14able to maintain absolute and authoritarian power with an international veneer of democracy and constitutionalism, and minimal resort to traditional dictatorial methods.
Why, then, am I choosing Mexico as an example of constitutional stickiness For all its shortcomings, Mexico has been remarkably stable in the 20th century, especially by Latin American standards. Since the conclusion of the 1910-1920s revolution, Mexico has enjoyed stability, constitutional maintenance and constitutional transitions, and high levels of democratic participation - if "Mexico-style." Contrary to all of its Latin American neighbors, Mexico has not suffered a military coup since its early 20th century revolution. So, perhaps by stricter standards, its constitution has not served the interests of rule of law, democracy and human rights quite as well as it could have. But the constitution has been remarkably stable and respected - enough so that Mexico warrants figuring as a case study of successful constitutional stickiness. I thus agree with McHugh's assessment that Mexico's constitutionalism "has been a testament to a legal and political persistence that has not always been entirely successful but...has, nonetheless, provided a basis for the continuing democratic evolution of this country."15
The stability and success of the 1917 constitution are especially remarkable if one considers Mexico's early post-colonial turmoil. Pre-revolutionary Mexican history can be roughly broken down into three periods: (i) 1821-1875, a period of political and institutional fumbling after independence, with no less than 800 armed revolts; (ii) the Porfiriato dictatorship between 1875 and 1910; and (iii) a protracted revolution cum civil war from 1910 through the 1920s.16Hardly an auspicious foundation for constitutional government.
Mexico was particularly hard hit in throwing off the Spanish colonial yoke
The Wars for Independence left Mexico in disorder and decay. Conditions were far worse in...
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