An essay on the emergence of constitutional courts: the cases of Mexico and Colombia.(Symposium on Operationalizing Global Governance)

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, (1) 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. (5) 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 major reforms aimed at curbing the power of presidents, (6) decentralizing power, (7) and empowering courts to vigorously construe constitutions. (8)

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. (10) 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. (11) 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. (12) 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, (13) 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, (16) 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. (17)