Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America

By Negretto, Gabriel L. | Law & Society Review, December 1, 2012 | Go to article overview

Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America


Negretto, Gabriel L., Law & Society Review


Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.

Since 1978, all the countries of Latin America have either replaced or amended their constitutions. Replacement and amendment are, however, substantively different means of constitutional transformation. While the replacement of the existing constitution involves a political decision to re-create the basic legal structure of the state, amendments, like judicial interpretation, are mechanisms of legal adaptation that preserve the continuity of the constitution in a changing environment. The frequent replacement of constitutions thus puts into question the legal and political foundations of democratic regimes. What explains the choice between replacements or amendments?

It is argued here that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of amendment procedures and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses their normative implications. In particular, it is suggested that while new Latin American democracies may foster constitutional stability by adopting inclusive institutions, more flexible amendment procedures, and strong mechanisms for constitutional adjudication, it is likely that constitutional crises will continue to provide incentives for the constant renegotiation of constitutional agreements.

The article first considers the problem of constitutional change in comparative perspective. This is followed by a discussion in Section 2 of the reasons and various means for constitutional change. From this discussion emerge several general hypotheses about constitutional replacements and amendments, which are tested in Section 3 using different models of regression analysis for longitudinal data. The article concludes with a discussion of the implications of the analysis for constitutional design, and of the factors that work against constitutional stability in Latin America's new democracies.

Assessing Constitutional Change

The most important discussions in the research agenda on institutions in the social sciences hinge on the problem of institutional change and its conceptual antithesis, institutional stability.1 Yet the meaning of change in comparative institutional analysis is inherently ambiguous.

Institutional change may imply the displacement of preexisting institutional forms or their adaptation to shifting environments. …

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Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America
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