Ius & Iustitium is pleased to present this guest post by José Ignacio Hernández G. Professor Hernández is professor of administrative law at “Andrés Bello” Catholic University and Central University, Venezuela, invited professor at Castillo-La Mancha University, Spain, and a fellow of the Growth Lab at Harvard Kennedy School.
Originalism, the dominant mode of legal interpretation in American constitutional law, posits that the interpretation of the U.S. Constitution must be according to its “original” public meaning, that is, the meaning as it was in 1789. In an article published in The Atlantic earlier this year, Adrian Vermeule proposes a different methodology, based on the common good, which proposes that the Constitution be interpreted in accordance with the classical legal tradition, with the final goal of promoting common goods. In other words, instead of the text, the polestar of common-good constitutionalism is purposive ordering to certain social ends. According to Vermeule, common-good constitutionalism draws “upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.”
Although the idea could be considered a disruptive one in the constitutional law of the United States, from a Latin American perspective it resembles the proposal of a “Ius Constitutionale Commune in Latin America” (ICCAL), that is, the common constitutional principles in Latin America, that according to Armin von Bogdandy, are aimed at ensuring that “authority . . . advance[s] the common good.”
To begin with, originalism is not a practical way to interpret constitutions in Latin America, due to the constitutional instability of the region. Shortly after attaining independence, the new nations generally embraced the constitutional model of the United States. But as explained by Zachary Elkins et al, the region gradually departed from this model, as a result of its political instability and constant transformation. Constitutions changed at an amazing pace. For instance, in my country, Venezuela, the average duration of a constitution is eight years — much less than the 19 years proposed by Jefferson. Trying to find the original purposes in those conditions is a work more suited to archaeology than constitutional interpretation.
But besides this instability, textualism and originalism are not proper methodologies in Latin America, because of the “Social State clauses” (“claúsula del Estado Social”) found in Latin American constitutions. This trend began with the Queretaro Constitution approved in Mexico, in 1917, which incorporated social rights that assigned to the government several tasks aimed at promoting inclusive development. This “social question” (Gargarella) generated several tensions between the rule of law and the expansion of government powers to promote common good and equality.
These tensions increased after the reforms that occurred at the end of the 20th century, which inaugurated a “new constitutionalism” that exalted the sovereignty of the people (particularly in Bolivia, Ecuador, and Venezuela). Given the deep cultural roots of populism in the regions, these trends created several risks for the rule of law.
But leaving aside this clear excess, constitutional law in Latin America follows Vermeule’s proposal. From a comparative perspective, it can be concluded that the ICCAL follows “common-good constitutionalism” because its purpose is not only to regulate the government, but to encourage social and economic transformation, promote inclusion, and eradicate inequality. For this reason, ICCAL is not a rigid constitutionalism but a transformative one, in which the constitution is an open rule. The only original intention of Latin American constitutionalism is that the constitution be a living one. The openness of the ICCAL facilitates integration of the legal and moral principles of the national courts and the Inter-American System of Human Rights.
As a result, the ICCAL promotes a balance between markets and the government, through two core principles: subsidiarity and solidarity (also principles of Vermeule’s common-good constitutionalism). One source of inspiration in that approach has been the social doctrine of the Catholic Church, particularly, the encyclical letter Centesimus Annus, that states that “there are many human needs which find no place on the market. It is a strict duty of justice and truth not to allow fundamental human needs to remain unsatisfied, and not to allow those burdened by such needs to perish.” This idea is reflected in the economic rules of several Latin America constitutions (e.g., Article 2018 of the Dominican Republic Constitution).
Transformative constitutionalism has influenced administrative law, blurring the difference between constitutional and administrative law. In Latin America, the “constitutionalization” of administrative law demonstrates that the purpose of administrative law is not only to prevent the abuse of power, but to instantiate common goods based on human dignity. Hence, it is possible to talk about a “lex administrativa communis” in Latin America, particularly, through the codification of administrative procedures based on “good administration standards,” articulated in the 2013 Ibero American Charter of the duties and rights of citizens before the public administration. Those standards are inspired by the ideas of good government developed by Aristotle and Thomas Aquinas, who endorsed an active administrative state aimed at achieving the common good. Hence, freedom is defined, by Spanish Professor Jaime Rodríguez-Arana, as a “solidaristic freedom,” in the sense that the good administration standards aim at achieving the wellbeing of the people based on a holistic and encompassing assessment of what is good for human beings.
It could be concluded that transformative constitutionalism in Latin America is achieved through a dynamic administrative state based on good administration standards. Therefore, and following Vermeule and Sunstein’s proposal about the morality of administrative law based on Lon Fuller´s works, the administrative law of the ICCAL promotes the morality of duty and also, the morality of aspiration—towards Aristotle’s understanding of good government. This idea, by the way, is present in the origins of Latin American constitutionalism, particularly in Article 191 of the 1811 Venezuelan Constitution, according to which governments are created for the common happiness of the people.
Considering the similarities between common-good constitutionalism and the ICCAL, it is important to bear in mind two warnings.
The first is that the ICCAL has failed in its purpose to transform the social and economic order. As was recently recalled by the Inter-American Development Bank, Latin America is one of the more unequal regions of the world (without considering the impact of the COVID-19 pandemic). The discrepancy between ICCAL’s stated aim of inclusive development (its de jure scope) and the empirical fact of pervasive inequality (its de facto scope) could be explained by the weakness of the administrative state in Latin America. If that’s the case, common-good constitutionalism requires the development of a capable administrative state. This is a complex task.
The second is that common-good constitutionalism increases the powers of the government and, therefore, could create incentives for authoritarianism, particularly in weak states, as happened in Latin America. Too many social rights without a workable legal procedure can result in authoritarian measures adopted on behalf of the people, which I have called “constitutional authoritarian-populism.” The ICCAL tends to prevent this risk with a holist interpretation of democracy, as is summarized in the Inter-American Democratic Charter. Consequently, common-good constitutionalism should be open to a broader interaction with international law, in order to ensure the promotion of common good within the boundaries of the rule of law.
Common-good constitutionalism helps us understand the limits of positivism in constitutional law by showing us that constitutions are not a set of rigid and fixed rules aimed only at constraining the abuse of power. As demonstrated by the Latin American experience, constitutions should also be open rules aimed at promoting the common good. The challenge is to build a transformative constitutionalism aimed at achieving the common good through a capable administrative state that works under the rule of law.
José Ignacio Hernández G.