Caudillos and Constitutions: Who Holds the Ultimate Authority?
Diaz, Rodolfo, Harvard International Review
Who or what holds the ultimate authority: a decade-old constitution or a leader with resounding popular support? Colombia's Constitutional Court answered this question in February 2010 by upholding the integrity of the foundation of any modern democracy--its constitution--and denying President Alvaro Uribe the possibility of a third term in office. At first glance, this " defeat" may be seen as a crushing blow to Colombia's future. During his presidency, Uribe made much progress in institutionalizing the rule of law in a country that has long been plagued by violence due to the looming presence of paramilitary forces and guerrilla groups like the Revolutionary Armed Forces of Colombia (FARC). Supporters of the new constitutional amendment believe that without his guiding hand, the country would be plunged once more into crisis and his reform agenda left unfulfilled.
Nevertheless, this is at best an incomplete assessment of the situation because it does not consider the negative effects that repeated changes to the constitution could have on the stability of Colombian democracy. In order to judge the defeat of this constitutional change as a victory for Colombia and the region, it is essential to consider the regional effects that the preservation of the constitution could have in undermining the historical legacy of Caudilloism--a type of strong man rule in which leaders govern by using plebiscites and regularly bypass systems of checks and balances--that has plagued Latin America. The constitution was amended to set a two-term limit during Uribe's first administration, yet he desired an additional term to continue his campaign of law and order. The Constitutional Court's decision to block Uribe's bid for reelection has in fact perpetuated his legacy of stability and rule of law by breaking a cycle of Caudilloism and plebiscitary rule that has recurrently plagued the region.
Meaningless Paper or Binding Law?
For centuries, scholars including John Locke have seen constitutions as the basis of a "social contract" between a people and its government. In this context, constitutions are supposed to provide limits to political leaders' use of power, while providing the governed with basic assurances of their protected rights. Moreover, constitutions shape the political game both by determining the set of rules by which power is allocated and by defining the institutions through which power is exercised. Yet the idea of the "social contract" implies that those in power will respect the limits it imposes on their rule, at the same time assuming that the governed have the power to force a change in government if the political rules of the game are not respected.
In most of Latin America, constitutions have failed to acquire the sacred status they enjoy in countries such as the United States, France, and certain Latin American exceptions such as Chile. Presidents in the United States have used their veto power sparingly for fear of overstepping constitutional boundaries; political leaders in Chile have followed a process of progressive reform to avoid a breakdown of the democratic principles. In contrast, politicians in the rest of Latin America regularly abuse their power because the nations lack institutions strong enough to back the limitations imposed on the rulers by a piece of paper. Moreover, since these popular leaders, or Caudillos, are perceived to embody the benefits and services delivered by government, they replace the constitution as society's rule-setter. Lacking this degree of legitimacy, constitutions in these countries do not have the moral authority to serve as the basis for a "social contract" and are transformed to dead documents. They provide guidelines, but no one is forced to follow.
The problem, particularly in Latin America, is that the evolving nature of constitutions means the actions taken by political actors shape them just as much as the document itself limits their scope of action. …