The
creation of the Argentine Constitution began in 1853 when a Constitutional
Assembly wrote the first version of the Constitution in Santa Fe (1).
From there the Constitution was reformed in 1860, 1866, 1898, 1949, 1957, and
the most current version of the Constitution is the reformed text of 1994 (2). The 1853 version of the Argentine Constitution was forced into formation when
Juan Manuel de Rosas was defeated in 1852, and the Treaty of San Nicolas
required the creation of an effective federal Constitution via a Constitutional
Congress (3).
In response, the Province of Buenos Aires left the Argentine Confederation.
The original Argentine
Constitution of 1853 and its subsequent versions were ratified by a
constitutional convention. Traditionally, the assembly met in the twin cities
of Santa Fe and Paraná in Argentina. Each Argentine province delegated two representatives
for the convention, and these representatives engaged in a process of
legislative voting to ratify the constitution (4). The provincial delegates
were responsible for listening to the citizens of their provinces and
representing their interests in the convention. Thus, the ratification process
is pluralistic because it incorporates the opinions of people from all of the
provinces, rather than just the beliefs of a political elite. This idea of
equal provincial representation in the convention was established by the San
Nicolás agreement of 1852. However, the representatives of the Buenos Aires
province rejected this notion because they believed the number of delegates
should be proportional to the population of a province. As a result, the Buenos
Aires province left the Argentine Confederation until 1859 (5). When Buenos Aires rejoined in 1860, the first
amendments to the 1853 Constitution were discussed by the Constitutional
Convention and implemented. Following the amendments in 1860, the
Constitutional Assembly met several times throughout the following years to
vote on additional modifications. Each time, the provinces held elections to choose
representation for the convention (6). Therefore, it is clear
that the pluralistic nature of the ratification process continued to be
influential during the amendment process as well.
The key component for choosing the
delegates for the Constitutional Congress was equal representation for all of
the provinces of the Confederation (7). Each province of Argentina was granted two delegates. This system that
Argentina used to write their Constitution turned out to be extremely
non-pluralistic for a number of reasons. First, as the Buenos Aires Province made
clear through leaving the Congress, the representation was not proportional at
all. The Province of Buenos Aires only was granted two delegates like all of
the other provinces, but Buenos Aires was by far the biggest province and in a
proportional representation scheme they would have been granted eighteen
delegates (8). The fact that the representation at the Constitutional Congress completely
ignored proportional representation signals the non-pluralistic nature of the
Constitution writing process. Second, the selection of the delegates was not
exactly popular, and instead done by jurists and intellectuals (9). This suggests a clear non-pluralistic nature of Argentina’s Constitutional
Congress. The bias and lack of representation of the people that comes from the
delegates being selected by jurists and intellectuals immediately removes the
pluralistic nature of the Constitution writing process. Third, some of the
delegates were not native to, and had been long removed from the provinces they
were representing (10). This aspect strongly removes pluralism from the Constitution writing process
because it poorly represents and includes all of the peoples’ opinions.
With all of
the influence granted to a small, poorly representative delegation it makes sense
that the Constitution took a consensual structure. The delegation at the
Constitutional Congress was based off of representation from different
provinces, which directly lends to Arend Lijphart’s component of The Consensus
Model of Democracy- “federal and decentralized government.” (11) The providence based representation clearly lead to the consensual structure of
the Argentinian Constitution.
(1) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina.
(2) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina.
(3) Wikipedia. http://en.wikipedia .org/wiki/Constitution_of_Argentina.
(4) Wikipedia.
http://en.wikipedia.org/wiki/Constitution_of_Argentina_of_1853
(5) Wikipedia.
http://en.wikipedia.org/wiki/San_Nicolás_Agreement
(6) Wikipedia.
http://en.wikipedia.org/wiki/1994_amendment_of_the_Argentine_Constitution
(7) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina_of_1853.
(8) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina_of_1853.
(9) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina_of_1853
(10) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina_of_1853.
(11) Lijphart (p.38)
I agree with Chris that although in nature the Constitutional Convention was supposed to be pluralistic, the issues accompanied with the lack of cooperation from Buenos Aries led to a less pluralistic writing process, as further compromises to include Buenos Aries in the nation were needed. I would like to further approach situations in which the process was not actually pluralistic but often elitist opinions took priority, not in the most obvious way, but rather through imitating aspects of the United States Constitution.
ReplyDeleteAs Chris mentioned, Buenos Aries left the Confederation after the 1853 Constitutional Convention, however rejoined after the 1860 Convention (1). Before this convention was held, however, Buenos Aries was expected to form meetings in which they were to propose changes to the Argentine Constitution of 1853 (2). If there were changes proposed, a new convention would occur and the Confederation would send delegates to the convention based on proportion, rather than equal representation as was previously done (2). One distinguishing factor of the 1860 Convention was that the changes proposed by Buenos Aries were primarily aspects that were taken from the United States Constitution (2).
By imitating aspects of the U.S Constitution, the elites of Buenos Aries promoted their opinions in an attractive way to the Confederation, while ensuring their individual interests. The fact that delegates from Buenos Aries were able to use their membership outside of the Confederation as some sort of bargaining chip to encourage the Confederation to adopt their proposed changes does not seem like a pluralistic process to me. As Jonathan Miller wrote in his paper, “the constitutional changes proposed by the [Buenos Aries] Convention were entirely consistent with the needs of the Buenos Aires political elite” (2). Although the original intent of the conventions were to encourage pluralistic participation, the result was the elite’s use of the U.S Constitution as a justification for their changes (2). For example, the following were changes the Convention adopted that were beneficial to Buenos Aries, and were specialized for their specific needs. Firstly, the Convention eliminated the ability for congress to review the provinces’ constitutions (2). Additionally the Convention eliminated another provision from the original 1853 Constitution providing the provinces with more autonomy (2).
Despite the fact that not all of these practices remain today, it is still important to note that the early writing process of the Argentine Constitution did not involve completely pluralistic practices. It appears as if many of the changes to the Constitution were not reflective of the nation as a whole, but rather individual interests of an elite group.
1. http://en.wikipedia.org/wiki/Constitution_of_Argentina
2. Miller (1997) “The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practiceas Authority in Nineteenth Century Argentina and the Argentine Elite's Leap of Faith “,1483-1572.
by Sabrina Weeks-Brittan
ReplyDeleteAs Chris and Allisa stated, the drafting of the Argentine Constitution was not entirely pluralistic, as it came to be influenced by a small group of elites, namely, in the Buenos Aires province. The United States Constitution heavily influenced Argentina’s—in its 1853 inception, 1860 amendments, and significant 1994 reforms (1). I will examine the perplexing role of the U.S. Constitution on the Argentine document. The use of the U.S Constitution as a model for Argentina’s is particularly interesting because it draws attention to a paradox: it was used to structure and reinforce the country’s decentralized, federal government while, at the same time, sanctioning centralization in Buenos Aires (2).
The 1853 Argentine Constitution and the 1860 amendments established a decentralized, federal government based off of the U.S. Constitution (1). The Council for the Consolidation of Democracy, focusing primarily on deepening decentralization, again used the U.S. Constitution as a model for comprehensive institutional reform in 1994 (1). Hernández commends the realization and subsequent formation of a decentralized, federal government, arguing, “the process of centralization of the country around the metropolitan area of Buenos Aires, where less than 1% of the territory hosts almost 35% of the population” demands it (2). But he also goes on to express doubt that the Argentine Constitution—even today—succeeds in decentralization as written, arguing that centralization of power in Buenos Aires is so deep-rooted in Argentine history, that the “negative process could not be hindered even by the constitutional reform of 1994” (2).
Paradoxically, Argentina’s use of the U.S. Constitution also fueled the long-standing history of centralization in Buenos Aires. As Allisa concluded, the elites used the U.S. Constitution to promote their own interests. Miller argues that the a select number of individuals in Buenos Aires secured their own interests under the guise of the U.S. Constitution, knowing their constitutional amendments would be more attractive to the Confederation as a result (3). When Buenos Aires rejoined the Confederation after its amendments were passed in 1860, the province proved its special status (1).
Hernández concludes, “through the history of Argentina, we have suffered a profound centralization process that had produced a notorious disarrangement between the formal constitution and reality”(2). I argue that the manipulative use of the U.S. Constitution by elites in Buenos Aires furthered this process of centralization in reality, despite written intentions for decentralization.
1. Jonathan M. Miller, “THE ARGENTINE REPUBLIC: Introductory Note Constitutional History and Political Background,” Southwestern Law School. (1999)
2. Antonio Maria Hernández, “Sub-national Constitutional Law in Argentina,” Kluwer Law International. 11-18 (2011).
3. Jonathan M. Miller, “The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in Nineteenth Century Argentina and the Argentine Elite’s Leap of Faith,” 46 Am. U. L. Rev. 1483, 1493-1532 (1997).
Chris mentioned that a constitutional assembly wrote the Argentine constitution as the convention included representatives from all regions of the newly formed state (1). Therefore, the constitution-writing process would appear to be pluralistic. In reality though, the writing process was quite the contrary.
ReplyDeleteThe disproportionality in the writing process indirectly caused an absence of pluralism: equal representation was granted for all provinces in the confederation via the San Nicólas Agreement (1). The peculiarity in this situation is that Buenos Aires seceded from the confederation in 1853 after the San Nicólas Agreement, and yet, the elitists of the district were still able to manipulate the constitution-writing process (1). The historical significance of the Argentine constitution writing is that the constitution assembly convened following the defeat of Juan Manuel de Rosas in 1852 (1). The constitution was officially drafted in 1853 (1). Thus, I expected the approach to drafting the constitution to be pluralistic in nature to allow the opinions of people from all regions to be included, as the previous decision-making under the dictator Rosas was, by definition, exclusive. However, as Sabrina noted, the representatives of Buenos Aires influenced the structure of the Argentine constitution, by using the United States constitution as a model. Elkins mentioned in his book, The Endurance of National Constitutions, that Latin American constitutions are becoming increasingly dissimilar to the American constitution (3). This is probably because the creation of the United States constitution was not entirely pluralist either. The American constitution was primarily written by a particular group of elites (“the founding fathers”) who ultimately dictated the structure of the government. Inspiration from the United States’ constitution likely contributed to the overwhelming centralization in Buenos Aires that still exists today. This absence of pluralism reflects a potentially majoritarian aspect in the formation of the Argentine government – despite the powers delegated to provinces, the central government, highlighted by the executive, is dominant.
Therefore, I have reason to question my original analysis of Argentina as a model of Lijphart’s consensual government. Equal representation was intended to increase plurality; however, the ensuing disproportionality, a characteristic that opposes Lijphart’s consensual model, allowed the elitists of Buenos Aires to primarily exclude the opinions of other delegates as they maintained considerable authority in decision-making (2).
(1) Constitution of Argentina http://en.wikipedia.org/wiki/Constitution_of_Argentina
(2) Lijphart (Ch. 3)
(3) Elkins (Ch. 2)
Jackson Oelke
ReplyDeleteArgentina’s constitution writing process lacked pluralism, but as John Carey points out in his paper, “widespread agreement is not necessary for constitutions to be effective (1),” and further, that during the constitution drafting period, “universal ‘ownership’ of a new constitution is unnecessary (1).” In the case of Argentina, however, it does seem as though the lack of pluralism ended up causing several issues.
The political climate prior to 1853 was full of turmoil. There were a series of civil wars lasting from 1810 until 1880, and attempting to write and ratify a constitution amongst such conflict was undoubtedly a challenging task (2). Buenos Aires was considered the most influential region from the outset, and attempted to gain control of the surrounding provinces with the Argentine Constitution of 1819 (3). Although this constitution was immediately rejected by the provinces, and ultimately fueled the continuing civil wars, it foreshadowed the future struggles Buenos Airs would cause for the South American country’s attempts to unify.
Given that the port of Buenos Aires served as Argentina’s only real connection to Europe, it was undeniable that they had a bargaining advantage (4). Part of the city’s reasoning for leaving the 1852 constitutional convention was that they felt under-represented. In all fairness to them, a truly proportional scale of representation would have granted Buenos Aires several more than the two delegates they were given (4). This did make me wonder though; if Buenos Aires had been given their proportional amount of delegates, wouldn’t it have resulted in an overly represented elite? In this sense, I claim that the lack of representation from Buenos Aires in the drafting of the 1853 Constitution ultimately led to a more pluralistic system, rather than one with complete and utter dominance by the capital city.
(1) Carey (p. 5)
(2) Wikipedia. http://en.wikipedia.org/wiki/Argentine_Civil_Wars
(3) Wikipedia. http://en.wikipedia.org/wiki/Constitution_of_Argentina.
(4) Wikipedia. http://en.wikipedia.org/wiki/Federalization_of_Buenos_Aires