Authoritarian Constitutionalism

Authoritarian Constitutionalism Authoritarian Constitutionalism Andrea Pozas-Loyo and Julio Ríos-Figueroa The Oxford Handbook of Constitutional Law in Latin America Edited by Conrado Hübner Mendes, Roberto Gargarella, and Sebastián Guidi Print Publication Date: Jan 2022 Subject: Law, Constitutional and Administrative Law, Comparative Law Online Publication Date: Jan 2022 DOI: 10.1093/oxfordhb/9780198786900.013.17 Abstract and Keywords Authoritarian constitutionalism is a distinct phenomenon that involves an intriguing mix­ ture of a regime type commonly known for its tendency to abuse power with a centuriesold lineage of theories and practices seeking precisely to place limits on how it be used. This chapter provides a conceptual and analytical framework that addresses both dimen­ sions of authoritarian constitutionalism, and in so doing, it discusses the theoretical and empirical advantages and disadvantages of distinct conceptualizations of this term. It then illustrates the different categories in a conceptual map with examples drawn from Latin American countries. The chapter concludes with some promising avenues for re­ search in this interesting and vibrant area. Keywords: authoritarian constitutionalism, Latin America, constitution, constitutional history, abuse of power 16.1 Introduction Prima facie the meaning of ‘authoritarian constitutionalism’ is by no means transparent. Accepting that this concept is not an oxymoron implies at least a willingness, as Mark Tushnet puts it, ‘to pluralize the idea of constitutionalism’1 taking it out of a purely liber­ al-democratic framework.2 A reductionist view, one that is limited to a liberal democratic framework, a priori cancels out the possibility of non-liberal constitutionalism, minimizing not only its normative and scholarly interest but also the relevance of an important part of Latin America’s long and rich constitutional history. The region’s mosaic of political configurations has produced a large number of diverse constitutions,3 many of which have been written under autocratic regimes.4 Of course, not all authoritarian constitu­ tions are the same, nor do all play the same role in their country’s polities: Trujillo’s Do­ minican Republic had little to do with Pinochet’s Chile. Authoritarian constitutionalism is a distinct phenomenon that involves an intriguing mixture of a regime type commonly known for its tendency to abuse power5 with a centuries-old lineage of theories and prac­ tices seeking precisely to place limits on how it be used.6 Page 1 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism We provide a conceptual and analytical framework that addresses both dimensions of au­ thoritarian constitutionalism, and in so doing we discuss the theoretical and empirical ad­ vantages and disadvantages of distinct conceptualizations of this term. We then illustrate (p. 341) the different categories in our conceptual map with examples drawn from Latin American countries. We conclude with what we see as promising avenues for research in this interesting and vibrant area. 16.2 Authoritarian Constitutionalism: A Con­ ceptual Map 16.2.1 ‘Constitutionalism’ in ‘Authoritarian Constitutionalism’ We start by analytically distinguishing two conceptualizations of ‘authoritarian constitu­ tionalism’ using as criterion the normative weight that the authors who have dealt with this concept assign to the term ‘constitutionalism’, specifically, does ‘authoritarian consti­ tutionalism’ imply a positive or desirable qualification over mere ‘authoritarianism’? We consider that the conceptualizations that do have such a positive normative implication7 have an advantage over the ones that do not.8 The former group links ‘authoritarian con­ stitutionalism’ with a very long well-known genealogy where ‘constitutionalism’ is under­ stood as a desirable set of political (and social) principles, practices, and institutions for the organization of governmental power. In contrast, for the latter group, ‘constitutional­ ism’ when accompanied by ‘authoritarian’ refers merely to a specific relation with, or way of using, constitutional law without any normative appeal.9 This latter group thus faces the theoretical disadvantage of conceptual ambiguity10 since the meaning of ‘constitution­ alism’ when accompanying ‘authoritarian’ has little to do with the meaning of the term it­ self. For instance, in her stimulating account of Turkey, Isiksel defines ‘authoritarian constitu­ tionalism’ as a political system that practices robust constitutional discipline (that ‘takes its constitution seriously’) without meeting basic expectations of democracy.11 Notice that a regime that takes its authoritarian constitution seriously is not necessarily normatively better than one that does not (where the authoritarian constitution is systemati­ cally ignored). Thus it is not surprising to read in her account that ‘[t]he [Turkish] system functions on a shared assumption that the constitution matters [the fact that the regime is not only “authoritarian” but also an instance of “authoritarian constitutionalism”]… which is not obviously for the better’.12 This leads to conceptual ambiguity and to para­ doxes in which the presence of ‘authoritarian constitutionalism’ makes it easier for an au­ thoritarian government to infringe upon ‘precisely those principles we expect constitu­ tionalism to uphold’.13 (p. 342) On the other hand, studies on ‘authoritarian constitutionalism’ where ‘constitutionalism’ takes a positive normative connotation avoid such ambiguity. This does not mean that there is a unique understanding of ‘constitutionalism’ within this scholarship, but rather that authors use the term in a way that is consistent with its rich normative and theoreti­ Page 2 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism cal lineage. For instance, in his analysis on Pinochet’s Chile Robert Barros understands constitutionalism as the presence of efficacious institutional limits on central government actors (the executive for instance). As Barros puts it: ‘institutional limits imply a legal standard, a mechanism of enforcement, a division among the authorities subject to the standard and those who uphold it, with the result that the actors are constrained by prior decisions in the form of rules’.14 Similarly, Mark Tushnet considers ‘authoritarian consti­ tutionalism to be a variety of constitutionalism characterized by intermediate levels of rights protection and a low (or intermediate) level of use of force and fraud in elections’.15 Tushnet, however, doubts the efficacy of institutional constraints in enforcing such features in authoritarian regimes.16 Rather they would be put in practice due to a normative commitment with certain liberal freedoms by the political elite.17 In other words, for Tushnet the ‘normative commitment to constraints on public power…might be a truly distinguishing characteristic of authoritarian constitutionalism’.18 In sum, we have two distinct ways of understanding constitutionalism in ‘authoritarian constitutionalism’. The first refers to a subset of practices, principles, or institutions that constrain power in authoritarian contexts, and for which therefore ‘constitutionalism’ has semantic equivalence when used to qualify either authoritarian or democratic settings. The second way refers merely to the use of constitutional means for authoritarian ends; thus, in this case ‘constitutionalism’ means something different in ‘authoritarian constitu­ tionalism’ than in ‘democratic constitutionalism’. 16.2.2 ‘Authoritarian’ in ‘Authoritarian Constitutionalism’ ‘Authoritarian’ also has been used to refer to different phenomena in the literature on au­ thoritarian constitutionalism. Some authors refer to authoritarian practices or behaviours related to the constitution, such as the practices captured by Landau’s abusive constitu­ tionalism that is defined as the ‘use of mechanisms of constitutional change in order to make a state significantly less democratic than it was before’.19 Other authors refer to the abuse of (p. 343) constitutional emergency powers, such as an undue or unbound concen­ tration of power on the executive branch to face a threat to the republic, as a case of au­ thoritarian undermining of democracy through constitutional means.20 Notice that in the previous examples ‘authoritarian’ refers to practices or behaviours, not to a type of regime. In fact, strictu sensu abusive constitutionalism and abuses of emergency powers take place under democracy, which is threatened by those authoritarian practices. We take a different approach. Specifically, we understand ‘authoritarian constitutional­ ism’ to be a distinct phenomenon that takes place under a non-democratic regime; thus, this is the way in which we use the term ‘authoritarian’. Emphasizing regime-type as the relevant feature for understanding ‘authoritarian’ implies that its specific definition de­ pends on the definition of ‘democracy’.21 In this connection, conceptualizations of ‘author­ itarian constitutionalism’ can then be classified into those that adopt a minimalist concep­ tion of democracy (as Przeworski22) or those with a more substantive approach to it (as Freedom House23). We consider that a minimalist conception has important advantages for the development of empirical research on authoritarian constitutionalism, especially Page 3 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism when (as is often the case) some of the substantive elements ascribed to democracy coin­ cide with features linked to constitutionalism. Hence, we understand democracy as a regime ‘in which rulers are selected by competitive elections, and in which ruling parties lose elections’.24 Such a concept of democracy produces objective and observable criteria for a binary classification of regime types, autocracy and democracy, and allows also for making further distinctions within either set.25 To see the analytical advantages of our approach, consider the challenges posed by the conceptualization of ‘authoritarianism’ in Mark Tushnet’s otherwise appealing under­ standing of ‘authoritarian constitutionalism’. ‘I take as a rough definition of authoritarian­ ism that all decisions can potentially be made by a single decision maker [and that] those decisions are…unregulated by law’.26 In other words, according to this definition, ‘if the regime is authoritarian, it faces no constraints on abandoning laws, courts, and constitu­ tionalism, when doing so would serve the regime’s interests’.27 Therefore, Tushnet ex­ cludes a priori the possibility of effective institutional constraints on authoritarian govern­ ments since in his formulation they always have the capacity to transform the rules of the game, the constitutional provisions, at will.28 However, Latin American constitutional his­ tory provides examples of the inaccuracy of this claim. For instance, as we discuss in de­ tail in the following section, Mexico’s powerful presidents under the authoritarian hege­ monic-party rule could not (neither de jure nor de facto) alter art. 83 of the Constitution that establishes a six-year presidential term without re-election, despite the fact that the president was the (p. 344) head of the party that controlled supermajorities in both houses of the federal congress as well as states’ executives and legislative branches.29 If we are correct, then there might be interesting cases of effective institutional limits on power in some authoritarian regimes, and the fact that Tushnet’s (and other substantive) conceptu­ al approach(es) a priori exclude them is a disadvantage for empirical research. In sum, we define ‘authoritarian constitutionalism’ as the presence of effective institution­ al constraints-on-power in countries with an authoritarian regime. Now, it is important to note that while some institutional constraints may be effective, others may not. Within the same country some institutions may be instances of authoritarian constitutionalism while others may only be parchment barriers, as we exemplify later. We believe that a more pre­ cise use of the concept, targeting specific institutions or constitutional articles at particu­ lar times rather than whole countries, provides enhanced analytical leverage to ultimate­ ly explain the sources of constitutional enforcement and efficacy. Our conceptual map, based on the two dimensions we have discussed is summarized in Table 16.1, in which we include the examples for each category that we elaborate on in the second part of this chapter (see Table 16.1). We posit that ‘authoritarian constitution­ alism’ proper is to be found in autocracies where there are some effective institutional constraints on governmental power (upper left cell) and provide three instances of this: the role of the Constitutional Tribunal in Chile under Pinochet, the performance of courts in the Brazilian dictatorship of 1964–1985, and the non-re-election rule in Mexico under hegemonic-party rule. In the upper-right cell we include autocracies with weaker or none institutional constraints on power, where constitutional mechanisms are manipulated by Page 4 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism the government. We label these cases instances of ‘constitutional authoritarianism’ to em­ phasize that while having constitutions they do not have ‘constitutionalism’: these are in­ stances of constitutional (p. 345) institutions being used for authoritarian ends. The exam­ ples we discuss in this category are the performance of the Supreme Courts in Argentina and Mexico, as well as the Dominican Republic under Trujillo. In the lower-righthand cell we find democracies in which some ‘authoritarian behaviours’ take place, such as ‘abu­ sive constitutionalism’ in Venezuela under Chávez or the abuse of emergency powers in Colombia from 1958 to 1991, which are sometimes mistakenly presented as instances of authoritarian constitutionalism.30 Finally, the lower left-hand cell is the place for democ­ ratic regimes with strong institutional limits on power, in other words constitutional democracies.31 Table 16.1 Regime types and its institutional limits Institutional Limits on Power Regime Type Autoc­ racy Democ­ racy More Less/None Authoritarian Constitutional Authori­ tarianism Constitutionalism Chile, 1973–88 (Constitutional Tribunal) Brazil, 1964–1985 (Military Courts) Mexico, 1934– 1994 (Non-re-election clause) Dominican Republic, 1930–1961 México, 1934–1994 (Supreme Court) Argentina, 1930–1932 and 1943–1946 (Supreme Court) Democratic Constitutionalism Abusive Constitutional­ ism Venezuela, 1999 (Abusive constitutional­ ism) Colombia, 1958–1991 (Emergency powers) Certainly the attentive reader has noticed a couple of thorny issues raised by our exam­ ples. Whereas the empirical operationalization of the regime-type dimension is well devel­ oped and allows in most cases for unambiguously identifying an autocracy, it is less clear how to capture the ‘constitutionalism’, or institutional constraints-on-power, dimension. For starters, it is important to acknowledge that the extent to which institutions constrain under authoritarian regimes varies greatly between countries, within countries across Page 5 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism time, and within the same country and period across different institutions and issue-ar­ eas.32 Moreover, fine-grained and reliable data is hard to obtain under authoritarian regimes, which make it hard to make systematic comparisons and to generalize knowl­ edge. We will discuss some of the issues in the next section and in the conclusion, albeit briefly due to constraints of space. 16.3 Examples from Latin America 16.3.1 Authoritarian Constitutionalism Perhaps the clearest example of authoritarian constitutionalism is that of the Chilean mili­ tary dictatorship (1973–1990), no less so because its own demise was partly caused by in­ stitutional constraints that they themselves had created. As Robert Barros puts it: shortly after the coup, the military junta demanded rules to regulate power among the armed forces and later introduced and sustained a constitution which set into operation institutions (p. 346) that limited the dictatorship’s power and prevented it from unilaterally determining the outcome of the 5 October 1988 plebiscite which trigger the transition to democracy in 1990.33 The reason behind this demand for rules was that none of the four branches of the armed forces, which together formed the ‘Junta de Gobierno’, wanted another to dominate the government. Because the decisions of the ‘Junta’ had to be taken by unanimity each branch, which had both corporatist autonomy and real power behind it, checked the oth­ ers. The result was, as Przeworski eloquently puts it in the Foreword to Barros’ book, ‘that even though the “Junta” as a whole had the capacity to act at will, internal differ­ ences led it to conform to the constitutional document it originated and even to decisions of the Constitutional Tribunal it created’.34 The military regime in Chile changed many things when compared to the democratic regime it toppled, including banning political parties and shutting down Congress. Inter­ estingly, whereas the regime did not touch the courts and pledged its commitment to judi­ cial independence, Chilean ordinary judges did not challenge the abuses made by the regime, for instance in the persecution and prosecution of political opponents.35 Howev­ er, the 1980 Constitution36 created by the military regime did constrain the use of power: for one, it restricted the Military Junta’s prior capacity to unilaterally modify the constitu­ tion. More importantly, the constitution included a Constitutional Tribunal that soon as­ sumed autonomy even though its members were appointed by the military. All the organic constitutional laws passed by the Junta had to be reviewed by the Tribunal and on these and other decisions the Tribunal on various occasions ruled against the Junta.37 Of course, the Tribunal’s most consequential decision was to force the Junta to hold a plebiscite on the continuation of the regime in 1988 as the Constitution stipulated, with the known results. Page 6 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism Another example of authoritarian constitutionalism proper comes from Mexico. The PRI (Partido Revolucionario Institucional) was the hegemonic party in Mexico from 1929 to 2000 when it lost the presidential election. During the PRI era, this political party had control over the Administration, the Federal Congress, the states’ Governments and the Judiciary. The President was the head of a very well-disciplined political system: he was the head of the government and the head of the PRI. He had the political capacity to vio­ late some provisions of the 1917 Constitution38 without political opposition. Moreover, the PRI’s supermajoritarian control also gave him the legal capacity to alter the Constitution. Every incoming President amended the Constitution to make it fit his political agenda: as many as sixty-six constitutional provisions were altered during the presidential term of Miguel de la Madrid Hurtado, 1982–1988.39 Nevertheless, this does not imply that in this period the President could arbitrarily transform any article or, as Tushnet puts it, that ‘the authoritarian (p. 347) leader has lawful power to alter [all] constitutional provisions at will…’.40 In particular, during this president-centred era art. 83 of the Constitution that establishes a six-year presidential term without re-election41 was neither altered nor vio­ lated, and without doubt it constituted a strong and ever effective institutional constraint on power. Why did presidents with extraordinary power accept to hand over political power and to retire from public life once their term was over?42 Given the purposes of this text the first thing to point at is that the strict enforcement of art. 83 cannot be fully accounted for as a ‘normative commitment’ to limits on power by Mexican presidents as Tushnet’s account would imply: President Alemán attempted, and failed, to push for his re-election, and ar­ guably this instance sent the clear message to his successors that art. 83 was untouch­ able. While a detailed account of the enforcement mechanisms of art. 83 is not possible here, it is important to note that the PRI was politically and socially very heterogeneous and that the hegemonic equilibrium was arguably sustained by the following of intraparty informal rule: as long as the rotation of presidential power among the different ideologi­ cal sub-groups was possible (as long as no president sought re-election) no sub-group would break with the party and all would respect the selection of the candidate and coop­ erate with the winners.43 Hence art. 83 was ‘constitutional’ not only in a formal sense, but also in the deeper sense of constituting the ‘rules of the political game’. Our last example within this category comes from Brazil. The Brazilian dictatorship (that started with a military coup in 1964 and ended with a pacted transition in 1985) created seven Institutional Acts and the Constitution of 1967.44 Some Acts were issued after the Constitution, including the infamous AI-5 ‘that eliminated habeas corpus in cases of na­ tional security crimes, thus institutionalizing the use of confessions extracted under tor­ ture as a basis for the repression and prosecution of opponents and dissidents’.45 However, the constitutional rules created by the dictatorship were consequential and did impose limits on the authoritarian rulers. As Pereira notes: When rulers of a state are concerned about legal procedures—even when they ma­ nipulate those procedures in their own interest—defense lawyers then may have opportunities to monitor the safety of their clients, and this can save lives.46 Page 7 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism Thus, in Brazil the autocrats’ choice to use law and courts in their ‘control’ measures, such as carrying out political trials of enemies instead of naked repression (as in Argenti­ na) may have given them some legitimacy but at the cost of a certain loss of control over the outcome of individual trials. For instance, in Brazil the courts could repeal or at least reduce the length of sentences decided in military tribunals. Military courts usually accepted the charges made by mili­ tary prosecutors: 88.48 per cent of the time in the Superior Military Tribunal. But when cases (p. 348) went to the civilian Supremo Tribunal Federal (STF) in appeals, they were handled by the civilian federal prosecutor’s office and the STF accepted the arguments of the civilian federal prosecutor in 66.66 per cent of the cases. Interestingly, only civilians in military courts could appeal their cases to the civilian courts. Military personnel, un­ like civilians, did not have the right to appeal their cases to the STF.47 Moreover, as Pereira notes, the courts actually mitigated the severity of repression, being more lenient in the harshest early moments in the aftermath of the coup: For example, at the time of the 1964 coup, the military purged its own ranks of participants in the legalist movement that had prevented a military coup in 1961, but over 90 per cent of the thirty-eight defendants accused of participating in the 1961 movement were acquitted.48 16.3.2 Constitutional Authoritarianism The Dominican Republic during the ‘Era of Trujillo’, the time during which Rafael L. Tru­ jillo ruled the Dominican Republic (1930–1961), is an interesting example of an authori­ tarian regime in which the constitution did not limit the behaviour of the autocrat despite the fact there might be coincidence between the constitutional text and the regime’s be­ haviour. When an authoritarian government produces a constitution and laws but there are no institutional limits on power (‘no constitutionalism’), we have an instance of ‘con­ stitutional authoritarianism’. Trujillo was president from 1930 to 1938 and from 1942 to 1952, but he remained ‘the Supreme Leader of the Dominican Party’ and in fact he and his family controlled Dominican politics until his assassination in 1961. Trujillo’s rule was a bloody authoritarian period in Dominican history; it was also a time marked by person­ ality cult. However, he had a notable ‘respect’ for legal form and constitutional technicali­ ties that lead him on several occasions to amend the constitution in order for it to fit his intended actions.49 Thus, under this legalistic dictator one can observe that the actions of the government match what the constitution specifies, but one could hardly claim that the constitution constrained Trujillo’s behaviour. Trujillo’s constitution did not constrain power; its ‘legalistic’ use arguably was aimed at providing some legitimacy to the regime. A similar legitimizing role can be found in cer­ tain decisions of the Argentine Supreme Court regarding the relationship between law and power, the legitimacy and legality of military interventions, and the acts of military regimes. These cases involved the question of whether a military coup interrupts legal continuity and whether the new military government has the legitimacy and authority to Page 8 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism enact valid laws.50 (p. 349) After the coup of 4 September 1930 in which General José Félix Uriburu deposed President Hipólito Yrigoyen, the Supreme Court legitimized the de facto regime on the grounds of the necessity to protect the country, recognizing that the provisional government ‘possesses the military capacity to secure the nation and its citi­ zens and has publicly declared that it will defend the laws of the country and the su­ premacy of its constitution’.51 A similar decision, that actually cites the previous one as a precedent, was issued by the Supreme Court on 7 June 1943 after the coup that ended the government of President Ramón Castillo, establishing a military dictatorship.52 The Argentine Supreme Court, thus, shed some legitimacy on autocratic governments recog­ nizing their capacity to enact valid laws based on the necessity to protect the country and the de facto government’s capacity to do so. As we noted before, within the same authoritarian country some institutions may be in­ stances of authoritarian constitutionalism (institutional constraints on power) and also of constitutional authoritarianism (the use of the constitutional text and interpretation for authoritarian ends). Let us present an example of this phenomenon from Mexico. Since constitutional term-limits played a constraining role on the executive, we therefore in­ cluded this as an instance of authoritarian constitutionalism. In contrast, the Mexican Supreme Court did not limit the government during the hegemonic party era but rather was instrumental for the government to achieve its ends. The Mexican Supreme Court’s decisions were in several instances a legitimizing tool for the authoritarian government. For the Supreme Court the ‘Constitution’ was not a legal document but rather, based on Carl Schmitt’s ideas, a series of fundamental political deci­ sions that underlie the juridical order made by the actual political forces, ultimately the President of the Republic and the governing party. Therefore, the Supreme Court could not undermine the political will embodied in the Constitution. It could, at most, mechani­ cally apply the laws and regulations that were subordinated to it.53 And this is what the Supreme Court did: case after case the court consistently held that it had no power at all to subvert or supplant the will of the legislature and least of all of the constitution-making power.54 The Supreme Court actually stated in a self-effacing manner that it could not ‘in­ terpret the law in any way that has any transcendental effects’.55 The Mexican Supreme Court was not an institutional constraint on the authoritarian gov­ ernment56 but it did play an important role within the hegemonic party system. (p. 350) Specifically, the Supreme Court was a helpful actor with regard to the actual governance of the authoritarian regime, contributing to cementing the power-sharing deal of the au­ tocratic governing coalition. For instance, the Supreme Court contributed to cementing the so-called civil-military pact that was one of the pillars of stable hegemonic party rule: in exchange for loyalty to the hegemonic party the armed forces were given an important degree of autonomy with regard to the military’s internal functioning, training and pro­ motions, along with a high level of discretion regarding expenditure.57 The Supreme Court helped cement the civil-military pact in different ways. First, as a way of powersharing, from 1940 to 1994 ‘the presence of at least one military officer serving as a Supreme Court justice was a constant’.58 Second, through its jurisprudence, the Supreme Page 9 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism Court defended a broad scope of military jurisdiction where military officers charged with crimes were tried (and usually absolved or leniently punished) by military courts. The Supreme Court also allowed civilians to be tried in military courts, despite art. 13 of the Mexican Constitution,59 in cases where public safety was considered to be at risk (such as massive strikes or guerrilla uprisings).60 The last point can be generalized, as the scholarship of institutions in authoritarian regimes has shown. In a nutshell, institutions in authoritarian regimes even if they do not constrain the government can play an important role in autocratic governance.61 One strand of this literature has focused on the role of political parties, legislatures, and elec­ tions in maintaining power and governing by solving information, credibility, coordination and monitoring problems.62 Another strand of this literature deals with the many relevant functions that institutions such as courts and judges play in authoritarian regimes, high­ lighting the role of a single salient court, such as the Supreme Court or the Constitutional Tribunal, or that of the Supreme Court and a subset of lower courts, and also institutions such as prosecutorial organs.63 These would be instances of constitutional authoritarian­ ism: cases where constitutional institutions serve authoritarian goals but do not institu­ tionally constrain the autocrats. (p. 351) 16.3.3 Abusive Constitutionalism We add two examples of this category that are worth discussing, albeit briefly, because they should not be conflated with authoritarian constitutionalism or even with constitu­ tional authoritarianism given that they take place under democracy: ‘abusive constitution­ alism’ and emergency powers. The former is the use of mechanisms of constitutional change by incumbents who want to stay in power and thus erode the democratic order, or ‘abusive constitutionalism’.64 Landau discusses the case of Venezuela, a stable democracy for decades, where Hugo Chávez was elected president in 1998 but faced opposition from members of the decaying but traditional parties, who continued to control majorities in the national Congress, the Supreme Court, and state and local governments. In this con­ text, using a mixture of shrewd political tactics and arguments resorting to ‘the people’ as the ultimate constitution-maker, Chávez managed to elect a favourable constituent as­ sembly which produced a constitution that allowed him and his movement to govern al­ most unconstrained.65 This abusive constitutionalism eventually led to the complete ero­ sion of democracy in Venezuela, and it is present in other countries as well. But for our purposes in this chapter, we underscore that this is a phenomenon that takes place under democracy and thus is not a case of authoritarian constitutionalism. It should be empha­ sized, however, that abusive constitutionalism weakens the institutional constraints on power and thus weakens democracy itself. Emergency powers, and their abuse, have been pointed out as the Achilles’ heel of Latin American constitutionalism.66 But they are a means of saving democracy from a threat, however well or ill designed,67 not a case of authoritarian constitutionalism. Colombia is a case in point. After a relatively brief period of military rule, Colombia returned to a ‘re­ stricted democracy’ in 1958 in which the two main parties agreed to alternate in the pres­ Page 10 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism idency and to share all positions of power equally for sixteen years (the Frente Nacional) but that also left wide portions of Colombian society under-represented.68 The forgotten grassroots level was prey to a dynamic of an increasingly complex spiral of violence that had been developing for decades. To deal with threats, the declaration of a state of emer­ gency became the institutionally preferred option used by Colombian governments until 1991. In fact, of the forty-two years between 1949 and 1991, Colombia spent thirty-five (83 per cent of that time) under a ‘state of exception’.69 Presidential declarations of a ‘state of exception’, not only implied the delegation of legislative powers to the executive but also limited the (p. 352) scope of civil rights and expanded the military jurisdiction. The ‘tool’ of the declaration of emergency proved very flexible given that the reasons for declaring a state of exception were not always a clear challenge to internal security, but rather some social protests such as student or labour movements,70 and the Supreme Court did not generally restrict the government.71 In this case, constraints on power are weakened but to face a threat to democracy, thus our clarification that emergency powers are not an instance of authoritarian constitutionalism.72 16.4 A Fruitful Research Agenda To finish, using the conceptual framework that we propose, we want to point at some ar­ eas of future research in this topic. The first is related to regime type. Our conceptual map rests on the possibility of unambiguously classifying dictatorships and democracies, which can be done most of the time, but of course there are some borderline cases and countries and periods within countries that fall in gray areas that are difficult to classify and where the phenomenon of authoritarian constitutionalism may be more consequen­ tial. Further analysis combining insights from the literature on so-called hybrid regimes73 and constitutionalism is required. The second issue is relative to the empirical assessment of whether authoritarian consti­ tutionalism is present in a country or not. As is evident from our examples, the extent to which the law constrains under authoritarian regimes can vary depending on the issuearea (this of course is also the case in democracies). Why certain institutions are able to effectively constrain power in authoritarian contexts, while others are not, is a question that needs further research. In general, we know that the more the issue-area unifies the diverse interests and values present in the authoritarian regimes’ elite the less the regime allows institutions to constrain it: in Mexico or Chile the Supreme Court did not constrain the regimes but the non-re-election clause in Mexico and the Constitutional Tri­ bunal in Chile did limit them. Nevertheless, more research is required on the determi­ nants of the efficacy of institutional constraints in these settings. Whether constitutional­ ism is present in an authoritarian country may depend on a series of observable condi­ tions, such as the number and type of issue-areas where institutional constraints are, the interests involved in those areas, the structure of the ruling network, and the like. Thirdly, as briefly noted before, it is also important to study the regime dynamics since in­ stitutional limits under authoritarianism may strengthen the regime making it last longer, Page 11 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism or weaken it facilitating the transition to democracy. In other words, some institutional constraints may be a source of stability for the authoritarian regime, such as the prohibi­ tion (p. 353) of executive re-election arguably was in Mexico, while others may undermine the regime, as the Constitutional Tribunal did in Chile. This does not imply that the for­ mer did not have normative advantages since by limiting power within the authoritarian regime may make it less prone to extreme abuses (a kind of moderate authoritarianism). Other paths to and from other cells within Table 16.1 also invite research projects. For in­ stance, as mentioned above, a worrisome trend seems to be occurring in cases where abusive constitutionalism moves towards constitutional authoritarianism (as in the case of Venezuela) or authoritarian constitutionalism. The final, perhaps deeper, issue is about the role that the law or the institutions are play­ ing in constraining the authoritarian regime. How can we know for sure that they are playing a causal role in motivating a restricted behaviour on behalf of authoritarian lead­ ers? What other factors are necessary for such constraints to be effective? In Chile the autonomy and real power of each military branch within the armed forces seems to have been the engine behind the enforcement of the rules established in the Constitution of 1980.74 In Mexico, in contrast, the hegemonic-party system of the PRI developed a mech­ anism of rotation of all positions of power that was behind the enforcement of the non-reelection clause established in art. 83. The definition and sources of the efficacy of consti­ tutions75 is a pending topic not only in authoritarian regimes.76 Acknowledgements We would like to thank Susan Tomae for her careful revision of the English. Andrea Pozas acknowledges the support of the PASPA fellowship. Notes: (1) Mark Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100(1) Cornell Law Review 391, 420. (2) Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ in James Fleming (ed), Getting to the Rule of Law (New York University Press 2011). (3) Roberto Gargarella, Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (OUP 2013). (4) Gabriel Negretto, ‘Authoritarian Constitution-Making The Role of the Military in Latin America’ in Tom Ginsburg (ed) Constitutions in Authoritarian Regimes (CUP 2014). (5) Juan Linz, Totalitarian and Authoritarian Regimes (Lynne Rienner 2000). (6) Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago University Press 1995); MJC Vile, Constitutionalism and the Separation of Pow­ ers (Liberty Fund 1967). Page 12 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism (7) Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (CUP 2002); Tushnet, (n 1) 420. (8) Turkuler Isiksel, ‘Between Text and Context: Turkey’s Tradition of Authoritarian Con­ stitutionalism’ (2013) 11(3) ICON International Journal of Constitutional Law 702; Rober­ to Niembro, ‘Desenmascarando El Constitucionalismo Autoritario’ in Roberto Gargarella and Roberto Niembro (eds), Constitucionalismo Progresista: Retos Y Perspectivas. Un Homenaje a Mark Tushnet (UNAM 2016); Somek, ‘Authoritarian Constitutionalism: Aus­ trian Constitutional Doctrine 1933 to 1938 and Its Legacy’ in Christian Joerges and Navraj Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Hart 2003). (9) Note that this use of ‘constitutionalism’ is also present in related constitutional discus­ sions. For instance, in Landau’s ‘abusive constitutionalism’ ‘constitutionalism’ merely means ‘the use of mechanisms of constitutional change’: David Landau, ‘Abusive Constitu­ tionalism’ (2013) 47(1) University of California Davis Law Review 189, 195. (10) Andreas Schedler, Concept Formation in Political Science (2010). (11) Isiksel (n 8). Similarly, Somek defines authoritarian constitutionalism as the accom­ modation of judicial and doctrinal discourse to a government that is undoubtedly authori­ tarian: see Somek (n 8) 362. For Niembro authoritarian constitutionalism is a ‘sophisticat­ ed way of exercising power by elites with an authoritarian mentality in states with an in­ cipient democratic development . . . to foster authoritarian aims’: see Niembro (n 8) 224. (12) Isiksel (n 8) 705. (13) Ibid 711. (14) Barros (n 7) 20. (15) Tushnet (n 1) 396. (16) See Section 16.3.1, below, for a discussion on Tushnet’s conception of authoritarian­ ism. (17) Tushnet (n 1) 416, n 135. (18) Ibid 438. (19) Landau (n 9) 195. (20) Brian Loveman, The Constitution of Tyranny: Regimes of Exception in Spanish Ameri­ ca (University of Pittsburgh Press 1993). (21) The dependency of these two concepts is the focus of an extensive and familiar dis­ cussion: see Robert Dahl, Polyarchy: Participation and Opposition (Yale University Press Page 13 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism 1971); Adam Przeworski, Democracy and the Market (CUP 1990); and Joseph Schum­ peter, Capitalism Socialism and Democracy (Harper 1962). (22) Przeworski (n 21). (23) Freedom House, 2005 Freedom in the World (Freedom House 2005). (24) Adam Przeworski, Michael E Alvarez, Jose Antonio Cheibub, and Fernando Limongi, Democracy and Development: Political Regimes and Economic Well-Being in the World, 1950–1990 (CUP 2000) 15. (25) José Antonio Cheibub, Jennifer Gandhi, and James Raymond Vreeland, ‘Democracy and Dictatorship Revisited’ (2009) 143 Public Choice 67. (26) Tushnet (n 1) 448. (27) Tushnet (n 1) 432. (28) Ibid 425. (29) See Andrea Pozas-Loyo, Constitutional Efficacy Under Autocracy? Presidential Term Limits in Mexico, 1917–2000 (Mexico City 2017). It is noteworthy that Tushnet (n 1) 393 identifies Mexico in this period as an example of ‘authoritarian constitutionalism’. (30) Note that in this framework cases that other authors have discussed as instances of ‘authoritarian constitutionalism’ (like Turkey or Venezuela) would start out as democra­ cies with instances of abusive constitutionalism. As these cases become autocracies they can transit to constitutional authoritarianism (if there are no effective constraints on pow­ er), or authoritarian constitutionalism if some institutional limits remain effective. (31) We do not include illustrations of this category. (32) A relatively recent scholarship on so-called ‘hybrid regimes’ and autocratic institu­ tions has made progress in this regard but the debate is not yet settled. See e.g. Tom Ginsburg and Tamir Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes (CUP 2008); Lagacé, Boulianne, and Gandhi, ‘Authoritarian Institutions’ in Jen­ nifer Gandhi and Rubén Ruiz-Rufino (eds), Routledge Handbook of Comparative Political Institutions (Routledge 2015); Steven Levitsky and Lucan Way, Competitive Authoritarian­ ism: Hybrid Regimes After the Cold War (CUP 2010); Julio Ríos-Figueroa and Paloma Aguilar, ‘Justice Institutions in Autocracies. A Framework for Analysis’ (2018) 25(1) De­ mocratization 1; and Andreas Schedler, The Politics of Uncertainty: Sustaining and Sub­ verting Electoral Authoritarianism (OUP 2013); and Milan Svolik, The Politics of Authori­ tarian Rule (CUP 2012). (33) Barros (n 7) 1. (34) Ibid xi. Page 14 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism (35) Lisa Hilbink, Judges Beyond Politics in Autocracy and Democracy: Lessons From Chile (CUP 2007). (36) Political Constitution of the Republic of Chile 1980 (Constitución Política de la República de Chile). (37) Barros (n 7) ch 7. (38) Political Constitution of the United Mexican States 1917 (Constitución Política de los Estados Unidos Mexicanos). (39) Valdés Ugalde, La Regla Ausente. Democracia Y Conflicto Constitucional En México (FLACSO 2012). (40) Tushnet (n 1) 425. (41) Constitution (Mexico, n 38) art 83. (42) See Pozas-Loyo (n 29) for a discussion of the enforcement of this article and an ac­ count of President Alemán’s attempt of re-election. (43) Ibid. (44) Constitution of the Federative Republic of Brazil 1967 (Constituição da República Federativa do Brasil de 1967), revoked by Constitution of the Federative Republic of Brazil 1988 (Constituição da República Federativa do Brasil de 1988). (45) Anthony Pereira, Political (In)Justice: Authoritarianism and the Rule of Law in Ar­ gentina, Brazil, and Chile (University of Pittsburgh Press 2005) 72. (46) Ibid 6. (47) A remarkable feature of the Brazilian political trials is their relatively high acquittal rate. ‘One source indicates that the acquittal rate at the level of the regional military courts was 48 per cent (Heinz 1992, 90). My sample of two hundred fifty-seven cases in­ volving two thousand one hundred nine defendants he reveals an acquittal rate that is even higher: 54 per cent in the regional military courts’: see Pereira (n 45) 76–77. (48) Pereira (n 45) 82. (49) Jacobo Espinal, Constitutionalism and Democracy in the Dominican Republic (University of Virginia Press 1997). (50) For a similar line of cases in Pakistan, see Tayyab Mahmud, ‘Pretorianism and Com­ mon Law in Post-Colonial Settins: Judicial Responses to Constitutional Breakdowns in Pakistan’ (1993) 4 Utah Law Review 1226; and Tayyab Mahmud, ‘Jurisprudence of Suc­ cessful Treason: Coup d’Etat & Common Law’ (1994) 27(1) Cornell International Law Journal 49. Page 15 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism (51) See ‘Acordada sobre el reconocimiento del gobierno provisional de la nación’, 10 Sep­ tiembre 1930 <www.saij.gob.ar/corte-suprema-justicia-nacion-federal-ciudad-autonomabuenos-aires-acordada-sobre-reconocimiento-gobierno-provincial-nacionfa30996876-1930-09-10/123456789-678-6990-3ots-eupmocsollaf> accessed 21 February 2017. (52) See ‘Acordada sobre el reconocimiento del gobierno surgido de la revolución del 4 de junio de 1943’, 7 Junio 1943 <www.saij.gob.ar/corte-suprema-justicia-nacion-federal-ciu­ dad-autonoma-buenos-aires-acordada-sobre-reconocimiento-gobierno-surgido-revolu­ cion-4-junio-1943-fa43996949-1943-06-07/123456789-949-6993-4ots-eupmocsollaf> ac­ cessed 21 February 2017. (53) José Ramón Cossío and Luis Raigosa, ‘Régimen Político e Interpretación Constitu­ cional en México’ (1996) 5(3) Isonomía: Revista de Teoría y Filosofía del Derecho 41, 47. (54) José Ramón Cossío, La Teoría Constitucional de La Suprema Corte de Justicia (Fontamara 2002) 114. (55) See ‘Apéndice al Semanario Judicial de la Federación 1917–1988, segunda parte, tesis 1337, p. 2165’, quoted by Cossío (n 54) 125. (56) The Supreme Court very rarely served as a check on lower judges, prosecutors, gov­ ernors, executive officials in issues that were important for the regime. For instance, in one infamous decision, the Mexican Supreme Court decided that confessions extracted by prosecutors using physical force (namely, torture) were acceptable as evidence in a trial if there were other pieces of evidence that corroborated the confession (Tesis de Jurispru­ dencia. Semanario Judicial de la Federación. Amparos Directos 151/90 y 251/90. Primera Sala, Octava Época, tomos VII-Enero y X-Septiembre, 193 and 248). (57) Mónica Serrano, ‘The Armed Branch of the State: Civil–Military Relations in Mexi­ co’ (1995) 27(2) Journal of Latin American Studies 423, 433. (58) José Antonio Caballero ‘Amparos y Abogánsters. La Justicia En México Entre 1940 y 1968’ in Elisa Servín (ed), Del Nacionalismo Al Neoliberalismo (1940–1994) (FCE 2010) 157–58. (59) Constitution (Mexico, n 38) art 13. (60) Julio Ríos-Figueroa, Constitutional Courts as Mediators: Armed Conflict, Civil–Mili­ tary Relations, and the Rule of Law in Latin America (Cambridge University Press 2016), ch 5. (61) See Lagacé and Gandhi (n 32). (62) Jennifer Gandhi, Political Institutions Under Dictatorship (CUP 2008); Beatriz Maga­ loni, ‘Credible Power-Sharing and the Longevity of Authoritarian Rule’ (2008) 41 Compar­ ative Political Studies 715; and Svolik (n 32). Page 16 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism (63) See Ginsburg and Moustafa (n 32); Hilbink (n 35); and Ríos-Figueroa and Aguilar (n 32). (64) Landau (n 9). (65) Ibid 203–7. (66) Loveman (n 20). (67) John Ferejohn and Pasquale Pasquino, ‘The Law of the Exception: A Typology of Emergency Powers’ (2004) 2(2) International Journal of Constitutional Law 210. (68) Ana María Bejarano and Eduardo Pizarro, ‘From “Restricted” to “Besieged”: The Changing Nature of the Limits of Democracy in Colombia’ in Frances Hagopian and Scott Mainwaring (eds), The Third Wave of Democratization in Latin America: Advances and Setbacks (CUP 2005). (69) Rodrigo Uprimny, ‘Entre El Protagonismo, La Precariedad Y Las Amenazas: Las Paradojas de La Judicatura’ in Francisco Leal Buitrago (ed), En La Encrucijada: Colombia En El Siglo XXI (Norma 2016). (70) Marta Patricia Perdomo, ‘La Militarización de La Justicia. Una Respuesta Estatal a La Protesta Social (1949–1974)’ (2012) 76(2) Análisis Político 83. (71) Ariza, Cammaert and Iturralde, Estados de Excepción Y Razón de Estado En Colom­ bia (Universidad de los Andes 1997). See also Mauricio García Villegas and Rodrigo Up­ rimny, ‘La Normalization de L’exceptionnel. Sur Le Contrôl Jurisdictionnel Des États D’urgence En Colombie’ in Marie Julie Bernard and Michel Carraud (eds), Justice et Dé­ mocratie En Amérique Latine (Grenoble 2005). (72) Colombia from 1946 to 1958 offers an interesting case for studying transitions to and from some of the categories proposed in our framework, exploring, among other things, the gradation between categories that we present (by necessity) in a binary fashion: see Camilo Castillo Sánchez, El Origen de La Cooptación En La Elección de La Suprema Corte de Justicia (1949–1957) (Universidad del Rosario 2017). (73) See Levitsky and Way (n 32); and Schedler, The Politics of Uncertainty (n 32). (74) Barros (n 7). (75) Andrea Pozas-Loyo, Constitutional Efficacy (New York University Press 2012). (76) Tom Ginsburg and Aziz Huq, Assesing Constitutional Performance (CUP 2016). Andrea Pozas-Loyo Andrea Pozas-Loyo, Associate Professor, National University in Mexico (UNAM). Page 17 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022 Authoritarian Constitutionalism Julio Ríos-Figueroa Julio Ríos-Figueroa, Associate Professor, ITAM School of Law, Mexico City. Page 18 of 18 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: OUP-Reference Gratis Access; date: 17 January 2022