Thoughts On Roberto Gargarella’s The Legal Foundations of Inequality.

There is much to admire in Roberto Gargarella’s study of constitutional ideas in the Americas between 1776 and 1860. It is very refreshing to see a comparative analysis of Latin American and US constitutional laws, for example, which does not start from the premise that the US system is wholly different (and much superior) to those established further south. Moreover, his hypothesis that constitutionalism within the American continent can be broadly defined into three different models (radical, liberal and conservative) effectively highlights the sharp differences that existed between local political groups concerning the best form of government as well as demonstrating how similar solutions were adopted by different constitutional architects in a variety of countries. In this way, Gargarella succeeds in inserting the Latin American constitutional experience into a broader Atlantic context, for which he should be congratulated.

That said, Gargarella’s work has a number of shortcomings which severely undermine its credibility. In the first place, his analysis shows little or no historical awareness. This is a criticism he has most surely heard before, for in his introduction he makes a point of claiming that he is not aiming to write “a historical project” (p. 7). This is a somewhat disingenuous argument, however, since there is no getting away from the fact that his subject matter is historical and is studied in a historical time-frame. Thus, even if he “is not interested in giving an exhaustive account of early constitutional ideas and their influence across certain countries” (p. 7), his work surely requires some recognition of the fact that the ideas he discusses are not necessarily contemporary to one another and do not necessarily occur in situations that are broadly analogous. His ahistorical approach reduces his analytical categories into static entities that suffer little or no change during the 100 years of  his analysis. In so doing, he does his arguments a great disservice and passes by a very good opportunity to demonstrate why the radical ideas were shunned in the countries he studies, while conservatism and liberalism were more successful. In short, I feel that Gargarella’s work would have benefited from a more nuanced approach to the description of his three models, especially one which identified and engaged with their historical evolution.

Secondly, the quality of Gargarella’s research is far from uniform. It is evident that his sympathies lie with the radical ideas and projects, since he appears to have dedicated a disproportional amount of his investigation to the detriment of both liberal and conservative models. To take one example: Garagarella discusses in detail the ideas of Mexicans Ignacio Rayón and José María Morelos. He quotes from original writing by both men and also quotes from the Constitution of Apatzingán, the culmination of Morelos’s constitutional project. However, when it comes to those he terms Mexican conservatives and liberals, it is apparent that he has not actually read all the texts to which he refers. He describes the 1824 Constitution as being “moderately federalist” (p. 123), apparently ignoring the fact that this constitution creates an extremely limited role for the Federal Government and concentrated power in the hands of the states. The main source of information on the subject of the 1836 Constitution appears to be constitutional lawyer, Emilio Rabasa, who wrote in 1912, and whose judgements on that constitution have been roundly rejected by jurists and historians for more than seventy years. [1] While I fully understand that in a work of this nature it is not realistic to expect that the author engage with all available literature concerning every country, I do feel that reading at least the principal constitutional texts of each would be the minimum requirement.

Thirdly, there are serious omissions from Gargarella’s work. One of the most glaring is the is the absence of any real discussion of the Cádiz Constitution of 1812 and its impact on Latin American constitutional thought. Gargarella dedicates just one paragraph (p. 116) to Cádiz and manages to attribute its formulation to the Supreme Central Junta which dissolved a full two years before the constitution was published. He shows no awareness of the fact that much liberal and conservative constitutional thought in Latin America was formulated as an explicit rejection of Cádiz’s radicalism and what was deemed to be its omnipotent unicameral legislative power, nor that Cádiz inaugurated an explosion in municipal government and popular participation as it provided for town councils or ayuntamientos be established in all populations with 1000 souls or less. This is a shame because a discussion of the Cádiz Constitution and its reception in America would surely have strengthened and contextualized his arguments on the nature of radicalism. It might also have obliged him to rethink his conclusion that radicalism had little importance in Latin America as the “place of the radicals was fundamentally extra-institutional” (p. 155). In my opinion, radical ideas had much currency in the countries which experienced government under Cádiz and the popular participation in local government which it fermented. The concerted effort to rein in radicalism and reduce the number of ayuntamientos and enact stricter electoral guidelines which followed emancipation from Spain in Mexico, for example, is best understood in this context.

Complete reference: Roberto Gargarella, The Legal Foundations of Inequality. Constitutionalism in the Americas, 1776-1860, New York, Cambridge University Press, 2010.

[1] In fact since 1949, see Manuel Herrera Lasso,  “Centralismo y federalismo, 1814-1843”, Derechos del pueblo mexicano. México a través de sus constituciones. Historia constitucional, Mexico City, Cámara de Diputados, LII Legislatura, 1985 (1st ed. 1949),  vol. II, pp. 11-114.

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