Vol. 21 No. 7 (July, 2011) pp.406-410
THE LEGAL FOUNDATIONS OF INEQUALITY:
CONSTITUTIONALISM IN THE AMERICAS, 1776-1860, by Roberto Gargarella.
Reviewed by José Antonio Aguilar Rivera (CIDE), División de Estudios Políticos,
CIDE, Mexico City.
Email: joseantonio.aguilar [at] cide.edu.
Roberto Gargarella’s book, THE LEGAL FOUNDATIONS OF INEQUALITY, has two
undeniable merits. On the one hand it considers constitutions as important
elements to explain political outcomes in
Gargarella asserts that constitutional democracies are in trouble since
significant numbers of people do not trust their representatives and do not
participate in party politics. One of the factors that might explain this
situation, he claims, is the structure of the institutional system, as organized
by its constitution. Thus Gargarella probes the historical origins of American
constitutionalism. He finds three
constitutional models: radical, conservative and liberal. Populist or radical
constitutions were characterized by their political majoritarianism and their
defense of moral populism, conservative models were defined by their defense of
political elitism and moral perfectionism and liberal charters emphasized
political moderation and moral neutrality. Gargarella divides the book in four
sections. In the first three chapters he accounts for each one of these models
as they gave life to the American charters. In the last one he makes a plea for
egalitarian constitutionalism. The
thesis of the book is clear: “I claim that, after the founding period examined
here, the structure of most American constitutions reflected the liberal ideals
or, as occurred in many Latin American countries, a combination of liberal and
conservative ideals. I also claim that, in the end, these constitutions
undermined, at least in part, the egalitarian commitments that were present at
the time of the various revolutions seeking independence a commitment to the
idea that all men are created equal as much as a commitment to the idea of
collective self-government” (p.8).
Yet, it is very difficult to place each constitution neatly in a single
category. The author is well [*407] aware of this, since he acknowledges that
“most American countries represented strange mixtures” of the three models.
However he still proceeded as if such distinction could be tenable in most
cases.
This is an ambitious work and the issues that Gargarella discusses are indeed
important, yet this is a flawed book. There are four critical problems. The
first one is a lack of proportion between the models discussed in the book.
While acknowledging that “the history of radical constitutionalism in
Besides the problem of balance between the three models there is a second
significant problem with the argument. Constitutions are dealt with as if they
came out of the blue. The issue of institutional origins is not addressed at all
in the book. This is an important issue since it explains the ideological [*408]
make-up of many of the post independence constitutions. The reactionary
atmosphere of Restoration Europe subjected Spanish American leaders to more
conservative ideological influences than they had known before 1815.
Gargarella’s analysis of constitutional ideas is ahistorical. Ideas are
discussed in abstract terms. Clearly, not only normative concerns but events
such as the French Revolution are important to explain why certain
constitutional ideas were more favored by constitution-makers than others. Pre
revolutionary Americans had a different outlook than post Restoration Spanish
Americans. The lack of a proper historical framework critically impoverishes the
book. As a result, Gargarella adopts many of the old clichés of the
nationalistic historiographies of Latin American independence. For instance,
historians have recently claimed that many of the early independence movements
were in fact struggles for autonomy within the Spanish monarchy, not struggles
to establish self-government as it was later claimed (Rodriguez, 2005).
Likewise, scholars have established that centralists were not necessarily
conservatives, as the author asserts.
The consequence of the absence of a proper institutional account beyond
constitutional provisions is that several of the conclusions of the book seem
unwarranted. The subtitle of the book is “The legal foundations of inequality.”
Indeed, Gargarella asserts that: “the constitutional models adopted in most
American countries, I believe, dishonored the egalitarian premises associated
with the revolutionary movements”.
Most constitutions in
Thirdly, the use of the philosophical concepts that Gargarella employs to
account for the political ideas of the era is often anachronistic. His analysis
of liberalism is a good example of this flaw. He claims that a trait of
liberalism was “neutrality.” Yet, this is a modern idea, more widely accepted in
anglo American accounts of liberalism. Very few Latin American liberals in the
19th century believed that
the state should remain neutral. They supported an idea of the “good”: the
normative ideas that made a liberal polity. Likewise, the idea of checks and
balances was not the monopoly of the liberals. In fact, many liberals (as well
as non liberals) ignored at the time that there were two models to choose from
at all (strict separation of powers and checks and balances). Their
understanding was historical, not theoretical. They were more familiar with the
1812 Spanish constitution that inherited from the 1791 French charter the idea
of functional boundaries. Many of them had only a vague understanding of the
American model. In a similar fashion, Gargarella claims that “liberals taught us
to fear the power of the state” (p. 209). This might be true elsewhere, but in
Finally, while Gargarella levels some critiques towards radicalism it is clear
that he considers it the forerunner of the egalitarianism that he advocates. His
normative commitments are explicitly and forcefully asserted. As he sees it,
“egalitarianism aims at strengthening, rather than eliminating or weakening, the
possibility of achieving popular collective agreements. By doing this, it tries
to reestablish an egalitarian dimension that disappears when the collective life
of the community begins to depend on the initiatives of a powerful minority.” On
the contrary, liberal and liberal-conservative constitutions reflect an
anticollectivist bias since they “disregard the importance of collective
agreements” (p. 231). Egalitarianism might be a plausible ideology to defend,
but why should we resort to history to prop it up? Perhaps, because Gargarella
finds in the constitutional past of the
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Garsten, Bryan. 2010. “Representative government and popular sovereignty,” in
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and Alexander S. Kirshner (eds.).
Manin, Bernard. 1997. THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT.
Merquior, J.G. 1991. LIBERALISM. OLD AND NEW.
Boston: Tawyne.
Rodríguez, Jaime E. (ed). 2005.
REVOLUCIÓN, INDEPENDENCIA Y LAS NUEVAS NACIONES DE AMÉRICA. Madrid: Mapfre
Tavera.
Warren, Richard. 1996.
“Elections and Popular Political Participation in
Warren, Richard. 2001. VAGRANTS AND CITIZENS. POLITICS AND THE MASSES IN
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© Copyright 2011 by the author, José Antonio Aguilar Rivera.