The Constitutional Adjudication Mosaic of Latin America

Abstract

This article maps current constitutional adjudication systems in 17 Latin American democracies. Using recent theoretical literature, the authors classify systems by type (concrete or abstract), timing (a priori or a posteriori), and jurisdiction (centralized or decentralized). This approach captures the richness and diversity of constitutional adjudication in Latin America, where most countries concurrently have two or more mechanisms. Four models of constitutional adjudication are currently in use. In the past, weak democratic institutions and the prevalence of inter partes, as opposed to erga omnes, effects of judicial decisions, prevented the development of constitutional adjudication. Today, democratic consolidation has strengthened the judiciary and fostered constitutional adjudication. After discussing the models, the authors highlight the role of the judiciary in the constitutional adjudication bodies, the broad range of options existing to initiate this adjudication process, and the prevalence of amparo (habeas corpus) provisions.

Judicial Power in Domestic and International Politics

“…make during the appointment process or in response to particular decisions+ For example, Helfer and Slaughter draw on Steinberg to develop a "constrained independence" model for international courts+ 59 They suggest that international court autonomy and effectiveness is affected by what they call ex ante and ex post tools of influence+ Obvious ex ante tools include formal appointment institutions and procedural rules that limit jurisdiction+ At the international level, there is evidence that governments make appointments designed to advance their political interests+ Voeten finds that left-leaning governments and governments that aspire to European Union membership are more likely to appoint "activist" judges to the ECHR+ 60 Ex post constraints include removal institutions and control over the judicial budget+ Further, simple noncompliance can be conceptualized as an ex post tool, as can global norms regarding the appropriate behavior of international judges+ 61 In Helfer and Slaughter's version, these factors influence the size of the so-called judicial strategic-space, which we take to define the boundaries of the court's power+ 62 59+ See Posner and Yoo 2005;Helfer and Slaughter 2005;and Steinberg 2004+ 60+ Voeten 2007, 692-94+ 61+ See Terris, Romano, and Swigart 2007and Mitchell and Powell 2009+ 62+ Additional ex ante tools might include procedural or substantive rules that increase access to the judiciary or caseloads+ Insofar as judges care about having cases to resolve, such tools might be quite effective~Helfer and Slaughter 1997, 301!+ Although there are differences across levels, it is unclear how fundamental the differences are+ For example, international judicial bodies such as the International Court of Justice or the WTO limit standing to states, whereas individuals typically have access to their own constitutional courts+ This is not true universally, though+ Indeed, until a major reform in 2008, individuals did not have direct access to the French Constitutional Council+ See the discussion of French Constitutional Council in Stone Sweet 2000+ More broadly, particular legal actions in the domestic context are often restricted to entities of the state+ See the discussion in Navia and Rìos-Figueroa 2005+ Cavallaro and Brewer develop a model, in which the ability of international courts to effectively compel compliance depends on media attention of and domestic public support for their decisions+ 63 In the absence of support for the policies international court decisions imply, it is unlikely that international courts will meaningfully influence state behavior+ But even if public support existed, if the media does not cover resolutions, it will be difficult to mobilize public opinion in support of the decision+ Domestic scholars have developed nearly identical theoretical arguments, yet there has been little cross-fertilization+ The oldest argument focuses on institutions that should insulate judges from external pressure~for example, life tenure, supermajoritarian removal institutions, or independent budget authority! make during the appointment process or in response to particular decisions+ For example, Helfer and Slaughter draw on Steinberg to develop a "constrained independence" model for international courts+ 59 They suggest that international court autonomy and effectiveness is affected by what they call ex ante and ex post tools of influence+ Obvious ex ante tools include formal appointment institutions and procedural rules that limit jurisdiction+ At the internatio...…”

Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court

“…The most important innovation in this respect was the creation of the Constitutional Chamber in a new Tribunal Supremo (the new denomination of Venezuela's High Court). Its catalogue of powers is perhaps one of the most generous in the region, including concrete a posteriori (centralized and decentralized) and abstract centralized a posteriori powers (borrowing Navia and Ríos‐Figueroa's [2005] terminology). Its powers include the revision of statutes (federal and subnational) and other acts passed by other branches of power, coupled with a generous repertoire of tools to check the lower courts' decisions on constitutional matters (especially constitutional amparo proceedings) and even on nonconstitutional issues through a procedure similar to certiorari called revisión constitucional that allows the Chamber to review decisions made by any court—including the other chambers of the Supreme Court—on constitutional grounds (Venezuelan Constitution art.…”

“…2 2 There is substantial variation in Latin America with regard to the different institutional dimensions of constitutional adjudication. For a comprehensive overview of these powers, see Navia and Ríos‐Figueroa (2005). …”

Supreme Courts

“…The institutional structures of supreme courts in Latin America mix elements of the US and French models (see, e.g., Garcia, 1998;Navia and Rios-Figueroa, 2005). Thus, most Latin American countries have a single supreme court with the power of judicial review and with general jurisdiction over appeals from a variety of ordinary courts, but many deny to the inferior courts the power of judicial review.…”

“…The 'attitudinal model' posits that justices' decisions directly reflect their political attitudes; this theory, although originally based on studies of the US Supreme Court (Segal and Spaeth, 1993), has been applied elsewhere as well (Morton et al, 1995). Thus, legal assumptions establish the foundations and boundaries of judicial decision making and thereby constrain judicial decisions (Bartels, 2009;Dickson, 2007;Gillman, 1993); and the institutional relationship of the supreme court, the executive, and the legislature shapes the range of discretion available to the court (Navia and Rios-Figueroa, 2005). This, too, has proved fruitful in studies of judicial policy making worldwide (see, e.g., Helmke, 2005;Hirschl, 2004).…”