Demonstrating the power of an interpretive lens to color the object of study, Gabriel Negretto and Roberto Gargarella examine the same object—the last hundred years of Latin American constitutionalism—from two very different perspectives. The two authors approach Latin American constitutionalism with completely different styles, concerns, and methodologies. It is at times easy to forget that they are talking about the same thing, and at times hard to reconcile their arguments. And yet in many ways they complement each other, each contributing something important to what we know about the constitutional history and politics of one of the global hotbeds of constitutional innovation. Whether one prefers the history of ideas and ideals in Gargarella’s account or the quantitative analysis of interests and strategies in Negretto’s, both books are eminently worth reading, and are important contributions to comparative constitutional studies.
The authors coincide on the importance of law, and of constitutional law in particular, to the politics of Latin America. Latin America is far too often depicted as a land where institutional arrangements are simply irrelevant and constitutions are window dressing. If this is true, no one told the constitution makers of Latin America, who for the last hundred years have fought and negotiated over institutional arrangements that might give them a political advantage, or to enshrine particular political ideals in the constitutions of the continent.
Moreover, in contrast to accounts that suggest that constitutional design can often be the product of mindless borrowing, Gargarella’s and Negretto’s both show designers making clearly intentional decisions in pursuit of their goals, if not always in pursuit of very elevated ones. The final outcome is shown to respond primarily to the domestic politics of constitution making, and not to a process of diffusion. Designers come to the table with conflicting agendas, and what ends up in a constitution is the result of a more or less inclusive bargain, depending on the distribution of power across different interests in the constitutional coalition. As Negretto puts it in Making Constitutions, “In spite of … seeming contagion, … the choice of presidential reelection rules was mostly driven by local conditions and partisan factors in each case” (p. 228).
In both accounts, the majority of constitutions end up as hybrids, the result of constitutional coalitions that include disparate interests in order to succeed. Gargarella shows how the dominant constitutions of early Latin America were a fusion of liberal and conservative ideals, while more recent ones graft social and economic rights (a republican notion, in his account) onto the existing texts. Negretto, meanwhile, argues that “Constitutions need not follow a single design principle” (p. 40). He finds a trend in more recent times toward a “hybrid design” (pp. 40, 239) that is characteristic of Latin American constitutions.
In spite of these broad commonalities, however, the books could not be more different. Gargarella gives us insight into the grand ideas that animate constitutionalism in Latin America, while Negretto examines the self-interested battles over the electoral and policymaking advantages that institutional arrangements can afford. Gargarella’s book is fundamentally about the substantive (value) rationality, in the Weberian sense, that animates constitutional design in Latin America; Negretto’s book is about practical (instrumental) rationality. Each could be read to suggest that the other’s concern is not central to the politics of constitution making. But neither explicitly stakes out an exclusive claim, and in the end it is far more fruitful to see how the two arguments work together than it is to pit one against the other.
Latin American Constitutionalism, 1810–2010 is largely historical and descriptive. Gargarella locates Latin American constitutions within three broad ideological currents. The conservatives were countermajoritarian, elitist, and morally prescriptive, and sought to preserve order and morality. The republicans were majoritarian, focused on collective self-government to the point of restricting individual freedoms in pursuit of common goals, but also deeply intent on a constitutionalism that would create the “social conditions that … make collective self-government possible” (p. 10). The liberals, in turn, put a premium on individual autonomy, even if it meant restricting collective self-rule in pursuit of the common good.
The differences among these currents often made for civil war and violence, but the coincidences among them also made room for grand bargains. Conservatives and republicans often agreed on a strong executive and distrusted “excessive” individual autonomy. The liberals viewed the state, and the executive in particular, as the enemy of individual rights, but shared with conservatives their distrust of the masses and an overriding concern with property rights. Republicans agreed with liberals and conservatives that the masses were unprepared to govern themselves, but from that drew the implication that the people had to be made ready, by paying attention to the “social question.” As a result, republican constitutions often sought to address the people’s material conditions by including economic and social rights, as well as a strong executive to carry them out.
More often than not, conservatives won in uneasy coalitions with liberals, striking bargains that appear to favor conservative ideals. The early constitutional regimes in Latin America, from the nineteenth through most of the twentieth centuries, “were characterized by their exclusionary legal systems, the concentration of powers in the executive, limited political rights, and the extreme use of the state’s coercive powers” (p. 85). The early republican constitutions, which find their echo today in the new Bolivarian constitutions of Venezuela, Ecuador, and Bolivia, were short-lived. The postneoliberal constitutions of the last two decades tried to leaven these oppressive compacts by incorporating increasing numbers of rights, but Gargarella’s principal concern is that these modern constitutions focus too much on rights and leave the “engine room” untouched, giving too much power to the executive.
This is where Negretto comes in. He seeks to identify the political determinants of the institutional arrangements that make up the engine room. Negretto’s dimensions partially overlap with Gargarella’s, although he does not associate them with any ideological current. He, too, looks at the balance of power between the executive and the legislature, examining executive legislative powers (agenda setting and vetoes) and government powers (essentially judicial and other appointments). In addition, however, he looks at electoral rules to see whether they are more inclusive (proportional representation, presidential runoffs) or less inclusive (winner-take-all single-member districts and plurality rules for electing presidents).
Negretto’s more disaggregated measure shows a mixed trend for these engine-room features. On the electoral side, countries have moved toward a more inclusive legislature and small-party-friendly rules for presidential elections, but also toward presidential reelection, which in his view is less inclusive. Presidents, meanwhile, have acquired greater legislative powers but have become more limited in their powers of appointment and cabinet control. In an interesting quasi-confirmation of Guillermo O’Donnell’s arguments about the sources of delegative democracy (“Delegative Democracy,” Journal of Democracy 5(1)1994: 55–69), Negretto finds that after a crisis, presidents tend to secure more permissive reelection rules (p. 229) and more legislative powers (p. 97).
Perhaps the greatest difference between the two is that in Negretto’s analysis, political parties’ constitutional preferences are independent of their ideology. They pursue what he calls distributive goals in a deeply political way, but what they want is purely conditional on their relative electoral outlook: If they will control the executive, they want a stronger president; if not, a weaker one. When they are cooperating, they are similarly generic: If there has been a crisis or there is uncertainty, they all want order, stability, effective decision making, and inclusion. For Negretto, then, the politics are about securing or denying “an advantage in political competition” (p. 50); the pursuit of the common good—the road to “economic development, the durability of democracy, effective government, or political legitimacy” (p. 49)—follows a cooperative logic where there seems to be a great deal of agreement on goals.
For Gargarella, on the other hand, constitutions are exactly the vehicle for pursuing competing views of the common good. The ideas that get emphasized—order and stability, or inclusion, or effective decision making—are a function of the distribution of power at the design stage among actors who value each of these things very differently. As a result, his account evokes the deep political battles that ran the length and breadth of the continent in a way that Negretto’s does not. But Gargarella’s account is largely devoid of the practical rationality that flavors Negretto’s account—presumably, in this model conservatives seek to concentrate power in the executive while liberals seek to weaken it, whether or not they expect to win the presidency. To put this another way, Negretto’s key independent variables—electoral outlook, political uncertainty, and crisis politics—do not appear in Gargarella’s model; and Gargarella’s variables—ideas and currents and prominent thinkers—are missing from Negretto’s. Which of these models you prefer is to some extent a matter of taste; they are speaking of different things. Negretto’s stripped-down analysis has significant explanatory power, but Gargarella’s is more colored by recognizable historical debates in the constitutional politics of Latin America.
Reading the two accounts together raises interesting questions. The two authors appear to disagree in their analyses of recent constitutional developments. Current reformers, animated by republican ideals, seem to have overfocused on rights and ignored the existing concentration of power in the executive, says Gargarella (Latin American Constitutionalism, pp. 185–87). The implication is that the designers got it wrong; they are naive in their faith in rights provisions and ignore the “engine room” where the real action is. But while Negretto would agree that executives are either retaining or increasing their power, his evidence on the calculus behind this fact leads to exactly the opposite conclusion: Parties are keenly sensitive to the engine room; it is just that the engine room responds to instrumental rationality, while the rights respond to value rationality. Can we conclude from this that the former trumps the latter?
Together, the two books reveal different facets of a fascinating political history of Latin American constitutionalism—the fights over both ideals and short-term political advantage that animate constitutional change over the last century. Although one could read Negretto’s insistence on instrumental rationality and naked self-interest as a denial of the importance of substantive ideological commitments, one need not do so, especially in light of the fact that he makes space not only for distributive, zero-sum fights but also for a cooperative logic in situations of stress and crisis. And one could read Gargarella’s account as an argument for the primacy of ideals over interests, but there is ample room here for both to play a role, as well as plenty suggesting that one cannot always clearly separate the two. As a result, both books together offer greater insight into the constitutional development of Latin America than either would alone. Gargarella’s work is erudite and deeply historical, as well as animated by a normative commitment to democracy and participation; Negretto’s is rigorous and theoretically smart, revealing new patterns in constitutional development. Both are worth reading for anyone interested in constitutional and institutional analyses, the role of ideas and interests in constitutional design, and the interaction between law and politics.
