Constitutional Legitimacy in a Land of Constitutional Change

• In Event: Constitutionalism in Comparative Context: Germany, Latin America, and the U.S.

Abstract

Legitimacy is generally viewed as the glue that binds people to institutions, encouraging respect and obedience (McEwen and Maiman 1986). Yet, low levels of institutional legitimacy plague the developing world, especially in Latin America, where institutions such as constitutions have been frequently replaced. For instance, in Ecuador and Bolivia, constitutions have been rewritten roughly every ten years over the past two centuries (Levitsky and Murillo 2013). Even after the third wave of democratization, nearly all countries in the region have drastically amended or replaced their constitutions. Some, such as Ecuador and Perú, had done so more than once. Thus, what factors undermine the legitimacy of constitutions in a region of frequent constitutional change?

I predict that political crises, i.e., inter-branch conflicts among the legislative, executive, and judiciary branches, pose a significant threat to constitutional legitimacy. When political crises emerge, constitutions are perceived as unable or unfit to solve them, increasing the risk of constitutional replacement. These continuous crises in the region open a window of opportunity for presidents and power elites to exploit the overall distrust of political institutions and gain public and political support to amend or re-write the rules of the game to ultimately consolidate or legitimate their power.

Although the concept of legitimacy has been frequently highlighted in the social sciences and legal studies, it is surprising the lack of theoretical and empirical studies seeking to understand what constitutional legitimacy is and what conditions can undermine it. This research project aims to address this lacuna and seeks to explain why some constitutions have a greater degree of legitimacy and how this might impact the rate of constitutional change.

This study focuses on Latin America because it is a region known for frequent political crises and has experienced the highest rate of constitutional replacements globally. Studies of constitutional legitimacy in such volatile environments can provide a unique insight about constitutional legitimacy, but they can also shed light on the potential correlation between political crises and the rate of constitutional change. By combining qualitative, quantitative, and experimental methods, this study encompasses three levels of analysis: In the first level of analysis, a process-traced based analysis of the Ecuadorian case (1979-2008) explores the causal mechanisms at play when political crises emerge, and how these might impact on the legitimacy of constitutions, and consequently on the rate of constitutional change. Ecuador has one of the highest rates of constitutional replacement in Latin America, with a total of twenty constitutions between 1830 and 2008 and three after its transition to democracy, the highest in the region. Ecuador also has had the most inter-branch conflicts in the region. This extreme case maximizes variation on the variables of interest (Gerring 2017, 68-72). Second, I plan to expand this study to the Latin American region by conducting a statistical analysis of the correlations between political crises and constitutional change. Finally, I expect to conduct an experiment to validate the causal link between political crises and constitutional legitimacy.

Author

• Paz Avila, University of Texas at Austin