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41 Tex. Int'l L.J. 1 (2006)
Constitutionalism through the Looking Glass of Latin America

handle is hein.journals/tilj41 and id is 7 raw text is: Constitutionalism Through the Looking Glass of Latin America MIGUEL SCHORt ABSTRACT Professor Schor's article explores why constitutionalism in Latin America took a different path than in the United States. In the wake of independence, constitutions were adopted throughout the New World to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because law is subservient to politics. The conventional answer posits that the cure for the uncertain constitutional environment in Latin America lies in crafting independent courts. Professor Schor argues, however, that the conventional view overly emphasizes the role of independent courts in making constitutions work, while ignoring the role of We the people. Constitutions become entrenched against political inroads when citizens are willing to mobilize on behalf of the fundamental rules of the game. The key to successful constitutionalism lies not in the separation of law and politics, but rather in the separation of constitutional politics from ordinary politics. Constitutions become entrenched when citizens share a belief that constitutional change requires a higher degree of consensus than changing an ordinary law. Such beliefs are constructed when broad social movements arise that seek to effectuate rights. The issue of how constitutions become entrenched is an important one as new democracies throughout the world struggle with the problem of creating order. The historical experience of Latin America teaches us that democracies cannot establish order unless constitutions have deep social moorings. Constitutions must be constructed by social movements that seek to effectuate rights if new democracies are to long endure. t Associate Professor of Law, Suffolk University School of Law; J.D. 1988 Tulane University, Masters Latin American Studies 2005 Tulane University. This Article was presented at the Law and Society Conference held in Las Vegas, Nev., June 2-5, 2005. 1 would like to thank the members of the panel-Daniel Brinks, Lisa Hilbink, Jonathan Miller, and Kim Lane Scheppele-for their comments and suggestions. Parts of this paper were presented at the Thinking of Law in Latin America conference held at Harvard University Law School, March 4, -2005.-t-would like to thank the-participants, particularly Joseph-Thome;-for a number of-thoughtful-criticisms and suggestions. I would also like to thank an extraordinary group of colleagues at Suffolk University Law School who offered thoughtful and detailed comments on earlier drafts of this paper-Gerard J. Clark, Frank Rudy Cooper, Kate Nace Day, Andrew M. Perlman, and Marc A. Rodwin. Quite obviously none of these individuals share any responsibility for any mistakes or errors in this Article. Lastly, I would like to thank Diane Hartmus who bears no responsibility for any mistakes or errors as well but gave birth to our beautiful daughter-Sarah Josefina-while I was working on the paper.

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