This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article argues, however, that constitutions become entrenched against political inroads when citizens are willing to mobilize on behalf of the fundamental rules of the game.
The issue of how constitutions become entrenched is an important one throughout the world as new democracies struggle with the problem of creating order. Democracies cannot establish order until constitutions have deep social moorings. The historical experience of Latin America is particularly instructive as it has a long experience with constitutions that lack citizen support or social moorings and the result was dictatorship, rather than republican government. In short, constitutions must be socially constructed if new democracies are to endure.
The issue of how constitutions become entrenched is important not only for understanding the conditions under which new democracies may endure but also has important consequences for legal theory. Constitutional theory has for too long been concerned with normative problems such as the counter-majoritarian difficulty. The comparative constitutional law enterprise enriches legal theory by focusing attention on the role that constitutions play in maintaining democracy.
