250 years after the independence of the United States, the milestone that this historic event represented in world history is a reason for analysis, taking into account that the American Constitution served as a model for other countries that were building and perfecting their systems of government, as well as the fundamental checks and balances of a democracy, with an eye focused not only on the American independence feat, but also on the French Revolution of 1789, which established the foundations of the French republic.
In an interview with La Estrella de Panamá, professor of Constitutional Law at the University of St. Thomas, in Miami (Florida), Dr. Christian González-Rivera provided an analysis of how the US Constitution influenced the drafting of the Magna Carta of several Latin American countries, while weighing how perfectible democracy is.
What influence did the American Constitution have on the constitutions of other countries around the world and how did it directly and indirectly influence their systems of government?
It influenced both directly and indirectly. The American Revolution began in 1776 with a war that culminated in 1781, and subsequently, the current Constitution in force in the federal territory of the United States was ratified in 1788, and came into force a year later, in 1789.
The American Revolution is more than the American War of Independence. The American Revolution, according to its founders like Benjamin Rush, was based on the spirit of thinking about citizenship in a different way. We had a revolution on North American soil similar, but also very different in many ways, to the French Revolution of the same era.
That revolutionary, libertarian and liberating spirit that existed in the United States during its founding, and it is a spirit that spread to the rest of Latin America. For example, Simón Bolívar is part of that liberating tradition. Another of the founders of the American homeland, Thomas Jefferson, for example, openly conceived the entire American hemisphere as a territory populated by free and independent republics that were not under the yoke of either Spanish, British, French, Dutch, or whatever, right?
The 19th century saw in Latin America a series of influences on the Constitutions of the countries of the region, and the 20th century also saw a series of influences starting from the Second World War, because from the dismantling of imperial possessions at that time, new countries emerged copying in some way various things such as the American republican structure, the separation of powers, the broad electoral franchise… but they also began to adopt – and, for this reason, these constitutions today are much more bulky, extensive and different from the American one – more rights.
For example, those rights related to tangible goods such as health, social security at the constitutional level, the United States has these rights at the level of public policy, but not at the constitutional level.
This is part of a tradition that dates back to the end of the Second World War that is also situated in the context of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights as well as the Convention on Cultural, Economic and Social Rights.
How imperfect can we consider democracy, although it is considered the most perfect form of government with its checks and balances and its mechanisms? Is democracy perfectible?
Democracy is not perfect, but it can be perfected. And the great difference between democratic arrangements and non-democratic arrangements in general is precisely in the greater degree of perfectibility. Of course, democracy how?, why?, for whom? and by whom? Democracy as a principle is a principle of majority self-government.
Democracy alone is not enough because majorities also tyrannize. Constitutionalism complements democracy in modern liberal politics because it restricts, whether republican or not, the powers and scope of action that majorities have at any given time and distinguishes the people in two modalities.
When the people meet in a constitutive manner, to make their Constitution, to set the rules of the game, that happens very little, because the Constitution is not amended every so often versus the people who are part of the ordinary political process, made up of the transitory majorities, of those who win today and lose tomorrow.
The challenge in a democracy that has lasted 250 years in the United States has been to have self-government, democracy and government by the majority, but within the limits allowed from time to time by the supermajority that constitutes the rules of the game. Democracy only works if there is a guarantee and hope that today’s minority can be tomorrow’s majority, that today’s majority can become a minority tomorrow and that there is no problem with that, that things work that way and that we should not lose hope in the process because one has a spell of being a minority.
Because? Because during that period of the exercise of power, as a minority one can lose influence in the political processes, but the constitutional republican guarantees guarantee you a minimum of rights as a minority and that is the game. This gives the possibility of becoming the majority one day, but with the duty and restriction that being the majority, the minority still has certain rights and freedoms.
What similarities do you see between the Panamanian Constitution and the US Constitution?
I am not an expert on the Panamanian Constitution and, in fact, it has generated great interest for me this year in particular, but I have read it once because I teach comparative law and we address the Constitutions of Colombia, Chile, and Mexico in class. But, in general, the impressions I have about the current Constitution is that in theory there is separation and institutionalism. In theory, there are many good things and rights that even the US Constitution does not guarantee such as social security, but it is public policy in the United States.
There are many positive rights in the Panamanian Constitution, which seem to be a good idea of public policy, but I do not know in practice which one is efficient, how enforceable they are, how much they cost fiscally, and how that is managed.
I don’t really want to give an opinion on the Panamanian Constitution without being more related and immersed in factual reality, because the law has two aspects: the law of the books and the law in action.
The Constitution of the Soviet Union has hundreds of rights that the United States does not have, while that of North Korea has guarantees of many types.
What matters is not so much the design of the bill of rights, but also the structural guarantees of institutionality and separation of powers combined with a practice that is effectively reflected in practice by what the book says.
From what moment does a Constitution, which is appreciated as a guarantee, become a tool of totalitarian States?
On the one hand there is a question of design in many cases and, on the other hand, it is a question of culture. Let’s talk about design issues. In the Weimar Republic, the Constitution that the Germans had before and during the Second World War is clearly a liberal, republican, etc. Constitution. It has several interesting clauses, one of them very interesting, which is the emergency powers clause, a clause that many other Constitutions currently have in the world today, but which, in this case and due to bad faith, resulted in totalitarianism.
This was an instrument with which Hitler arrogated to himself all the temporary powers of that state of emergency and the emergency, obviously, never ends. Emergency powers, as the US Supreme Court justices say in the Youngstown Steel case, are powers that tend to cause emergencies. The person in power has caused an emergency and that person tends to like emergencies. The reality is that most Constitutions today have a state of emergency clause. Since the Second World War, state of emergency clauses also have some limitations.
On the other hand, there are populist movements that want to remake the Constitution. That process can be only as good as the people who make up that process. A republic can easily go, as has happened with Chavista Venezuela, from a republican, stable, democratic Constitution, to a constituent process that ends with a Constitution that in theory also has separation of power and even has more separation of powers in theory, but in practice it centralizes power because the governing party becomes a very important component, and that happens whether or not there is constitutional justification for it.
When parties co-opt the exercise of power in any country, this hinders checks and balances, and also makes the scenario of tyranny more possible.
