An Essay on the Emergence of Constitutional Courts: The Cases of Mexico and Colombia

Abstract

This Essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia are both troubled democracies in a region where courts have historically been marginalized from political disputes. Both nations undertook constitutional transformations in the 1990s designed to empower their respective national high courts as a means of effectuating democracy. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and constitutional maintenance. Both courts have undoubtedly been transformed into institutions with a sense of mission by vigorously construing their new constitutional powers.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the social bases of democracy by constructing rights. This Essay argues that the constitutional changes that occurred are a necessary but not a sufficient explanation for the role these two courts play. The agenda courts undertake is shaped both by short-term political bargains and long-term societal transformations. As a result of both the bargains that led to the adoption of a new constitution and broader intellectual transformations regarding the role of courts in effectuating constitutional guarantees, the Colombian Constitutional Court has pursued a more ambitious agenda than the Mexican Supreme Court.

In addition to exploring why these transformations occurred, this Essay examines their democratic pay-off and makes two conclusions. First, although judicial activism has become a normative and political bone of contention in the United States, critiques of judicial activism have less bite in the context of developing countries. Activist courts, such as the Colombian Constitutional Court, can play a key role in ushering in needed democratic transformations in transitional democracies. In a region such as Latin America where constitutions have been long been marginalized from regulating political conflict, a judiciary jealous of maintaining its position vis-a-vis other actors in constitutional construction is a promising change.

Second, this Essay challenges the externalist analysis that scholars employ in analyzing the judicialization of politics and contributes to the nascent literature on the emergence of balancing tests by placing Mexico and Colombia in the broad stream of global constitutionalism. Scholars of judicial politics emphasize why polities choose to empower courts. This Essay argues that we need to understand not only the conditions under which constitutional courts emerge but also how courts are transformed by the role they play in a democratic order. Courts whose agenda includes a broad mandate to effectuate rights are likely to employ balancing tests whereas courts that primarily effectuate separation of powers are more likely to utilize legal formalism. Legal formalism allows courts to hide legal innovation under the guise of constitutional interpretation. The shift from formalism to balancing marks, therefore, a key transition in the emergence of courts as self-confident actors that do not mask the creative role they play in constitutional maintenance.

Keywords: constitutional courts, comparative constitutional law, judicial review, judicial activism, balancing, institutional emergence