The constitution of inequality. Constitutionalism in the Americas, 1776-1860

Abstract

Constitutional democracies in North and South America appeared after a long period of revolutionary struggles in pursuit of independence. This essay assumes that these movements were profoundly egalitarian and expressed their egalitarianism in two basic dimensions—the personal and the collective. On the personal level, the revolutionaries’ main claim was that all people were created equal and endowed with similar basic capacities. On the collective level, they claimed that their communities should become self-governing. In other words, neither a foreign country nor a particular family or group should rule their societies in the name of the populace at large. However, the main constitutional projects growing out of the revolutions of the Americas severely distorted the principles that had given those revolutions legitimacy and ceased to profess egalitarian goals. Some of these constitutions were clearly hostile to the ideal of personal autonomy, and some rallied the coercive powers of the state in favor of a particular religion. Moreover, the large majority of these constitutions actually obstructed the achievement of self-governing communities. For example, they discouraged civic participation; they reduced popular safeguards to a minimum; they reserved the last institutional word, as it were, to the least democratic branch of government; and they organized a countermajoritarian political system to replace, rather than discover or refine, the will of the people. What follows is an exercise in comparative constitutionalism, focused on the three main constitutional models that appeared after the revolutions for independence that took place in the United States, in the late eighteenth century, and seven Latin American countries (Argentina, Chile, Colombia, Ecuador, Venezuela, Mexico, and Peru), in the early nineteenth century. The three models are the radical, the conservative, and the liberal, distinguishing three different approaches to the revolutions’ two egalitarian goals, described above. While the radical model sought to strengthen communal self-government at the expense of individual autonomy, the liberal model tended to do the opposite, accepting the sacrifice of communal self-government in the name of