Manual New Constitutionalism in Latin America: Promises and Practices

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Therefore, the constituent power, investigated from the perspective of Geraldo Pisarello ; , is a phenomenon that shall be interpreted according to the political convergence originated from the social convulsion in the confrontation between the democratizing tendencies in opposition to the deconstituents or legitimating oligarchies of the stable order.

This posture is considered as noteworthy, since the research purposes to resume the main problematics that involved the Latin American society, and that is not just another historic task, but properly a reflection about the political and the legal through their originating problems and most emblematic confrontations. These elements aid in the affirmation of the continental constitutional reasoning and determine the main matrices through which the said theme has been developed over its more than two hundred years of existence.

For that reason, the central issue that conducts the study is not only an approximation and a historical-structural survey of the socio-economic contradictions and their legal unfolding; it goes beyond, seeking the understanding of the constituent roots and their dimension of humanity, for the fundamentals which permeate these processes are found in the search for dignity through the requirement of non-deprivation to the satisfaction of basic needs.

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By understanding the constituent processes as political-legal struggles that are evidenced in several issues grouped by the sentiment of injustice and transformation, a specific conceptualization of constitutionalism is revealed, which is not catalogued by legislative devices and should be seen as an instituting statement, in a critical perspective a proper theme of the constitution theory.

Thus, the Latin American and Caribbean constituent movements are perceived as political struggles for Rights, which precede the legal field by representing instruments of confrontation to the colonialism and the oligarchic constituents — that dictate Constitutional Law from the procedures and catalogues that determine their interests. In this task, the destabilization of the hegemonic political consensus by the instrumentalization of constitutionalism as a tool of transformation, based on the sovereignty of the people, becomes important.

It is a matter of claiming and recovering the leading role of fundamental human rights demanded as a criterion of political justice in the peripheral regional reality, since in the constituent struggles the denunciations and also the concrete alternatives to the deficiencies, dominations and violence of the constituted power to be understood as dominant hegemonic consensus appear.

Thus, these experiences correspond to the alternatives of a critical constitutionalism with its categories: democratic, pluralist, intercultural, decolonial, and egalitarian.

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Thereby, it is through these interdisciplinary categories that one may explore a critical constitutionalism, since the regional constituent processes affirm a Latin- American or even Iberian- American 7 constitutionalist tradition which is affirmed in the requirement of fundamental human rights as a political form, before a legal form, that must be retrieved and explored for verification of its ability to express the sovereignty of the free people.

Considering the aforementioned, the bicentenary of Latin American constitutionalism achieved the sporadic emergence of works on the subject, despite the fact that many constitutionalists have dedicated a considerable amount of their work in the last years to the study of the constituents from the first decade of the 19 th century. The rise of these works reveals the concern for regional constitutionalism, but even so it is customary to ignore them in the chairs of constitutional theory, since the traditional doctrines privilege the North-Eurocentric matrices.

Even so, in close proximity to critical studies of Law, the author presents a central concern: the issue of inequality and its relation to power structures; with special regards to the disturbing need to think and organize democratic life , p. According to this study, the foundational period presents one of the ideas that has the most proximity with the critical characteristics previously referred, it is about the idea of radical constitutionalism, which is opposed by conservative and liberal constitutionalism.

In terms, Gargarella names:. These three constituent experiences summarize the most advanced egalitarian ideas that existed in the Americas — and even in Europe — in that historical period, because in them were envisaged constitutional proposals that actually proposed structural transformations in the political and economic power, since they included the social stratum of the oppressed in the political participation, and privileged the modification of the oligarchic and colonial agrarian structure through legal mechanisms, that reorganized the distribution of land for those who worked on it.

Thus, these constitutional movements that occurred in Latin America from north to south recalling that Haiti was a French and Spanish colony proposed the elaboration of mechanisms that could provide materiality and empower non-privileged sectors by regional economic political forces. In recent years, we have strengthened and deepened the legal investigations related to the Latin-American Constitutionalism, with special regards to the recent innovations that have occurred in the course of the constituent processes of the first decades of the 21 st century, as well as the challenges of its enforcement in a region characterized by coloniality and by dependent capitalism.

In this direction, we resume the readings and fruitful debates of Latin-American critical reasoning and incorporate the need of better knowing the stories regarding the insurgent experiences of our region to the legal debate.


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From these concerns we direct our research to two great areas of Law, the History of Law and Constitutionalism, which is why, in this work, we propose the achievement of this conjugation, highlighting the decolonial bias and the need to redefine the foundational milestones of the traditional history of constitutionalism in our region. Not by chance, according to our perspective, these landmarks are found in the Caribbean, a region that has been facing and resisting imperialist colonial domination since There was, at the colonies, a series of resistance processes of different forms and nuances.

In the region also inhabited another indigenous nation: the Caribes , a warrior people from the islands and seacoasts, who currently give name to the seas that bathe those islands, and that bravely resisted the European dominion.

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In this regard, it is important to recall the relevance of the work by the Cuban Roberto F. Since it was not different across the entire American continent, it was a model of geopolitical domination In short terms, the colonization was characterized by the unrestrained expropriation of natural resources and, above all, by physical, moral and spiritual violence against the people who inhabited here, whom became known, in a generic way, as indigenous, and that, in the last five centuries, have been practically decimated MALDONADO, p.

As the west side of the island was more depopulated and the Spanish did not completely colonize that part of the island, many French pirates and merchants begin to use those coasts, founding villages and initiating the French invasion that will give rise to Saint Domingue. Formally, only a century later, with the Treaty of Ryswick, in , the territory becomes a French colony, that:.


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  • Introdujo unos Thereafter, we must understand the importance of this Caribbean colony in the scenario of world geopolitics during the 18 th century. However, this model of domination over bodies and nature did not occur peacefully, the marks of colonial violence are still present, but also are the resistances to it. For this reason, we must remember the dozens of uprisings, rebellions, guerrillas and insurgent actions organized by the black people of San Domingo during the struggle for liberation until becoming Haiti.

    On this, see what Antonio Salamanca mentions:. Having this insurrectional history, we understand that the people of these islands, incredibly rich and important to the colonial system, has tried to break the bonds of slavery many times and has risen in the struggle for freedom against European colonization.

    However, in that same period, a large part of the French people represented by the third state , too, was exploited by the Clergy first state and the nobility second state in the absolutist model of Louis XVI, which goes into crisis and leads to the convocation of the General States. Since the ruptures of , therefore, the French metropolitan territory has been in full sociopolitical turmoil, revolutionizing various social structures and haunting French elites and other European monarchies with its democratic-popular vein.

    In this context, the colonial issue takes on a crucial aspect, usually forgotten by traditional hegemonic theories and even by critical authors, and will reflect on many of the ideological tensions and conflicts experienced in the European territory.


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    • In the constitutional scope, it will not be different. If in France in blood, fire and guillotine the people were trying to end absolutism and to build the Republic, in the case of San Domingo, the last decade of the 18th century was also revolutionary, and was characterized by the abolitionist struggle for liberation of slaves, overcoming color inequalities and building a new fraternal society.

      If, in October , the Declaration of the Rights of Man and the Citizen was practically approved by unanimity only the King and part of the members who organized the monarchist counter-attack were publicly opposed , the issues brought by the Declaration were undefined and under strong attack from the counterrevolutionary forces. One of the main problems, without doubt, referred to the directions of the colonial issue.

      Or rather, how to prevent the principles of the French Revolution and the Declaration of Human Rights itself from being recognized in the colonies and, above all, extended to colored men mixed race people and slaves. In defense of the universality of these rights were: the wing to the left of the Jacobins, some members of the clergy and the most humanistic bourgeois sectors, which, in the great majority, organized themselves or supported the Society of the Friends of the Black, an anti-slavery French organization, which defended the recognition of the Declaration's rights for men of color, as well as a gradual process of abolishing slavery in the colonies.

      On the other hand, their main opponents organized themselves in the Massiac Club and had one of the icons of this process as their representative: the lawyer Antoine Barnave, one of the founders of the Club of the Jacobins, initially a fervent democrat who became president of the Constituent Assembly and, throughout the process, betrayed his principles and collaborated with the royal family and the monarchists, including his acting as draftsman of the decree which dealt with the colonial issue:.

      In February, the president of the Massiac Club sent Barnave a memorandum on the colonial issue, which he had requested, and so it happened that, appointed on March 2, he had his report ready on March 8 []. On that day, speaking to the Commission, he proposed everything that any reasonable inhabitant of the colony could expect. They should be allowed to elaborate their own Constitution and modify the Exclusive, submitting both to the National Assembly.

      JAMES, , pp. For fear of inflaming the debate, the Decree was approved like this and provided useful arguments for the abolitionists. On the importance of this debate within the French Constituent Assembly, we shall see the following account:. The debate was one of the biggest that the Constituent had seen. Robespierre awakened the deputies to the fact that they were participating in a dangerous game in such flagrant violation of the principles upon which their own positions were based: […] But the Assembly, on the defensive against the revolution, surrendered and on September 24 revoked the decree of May On September 28, another decree ordered the departure of new commissioners for St.

      Domingo, and on September 29 the Constituent Assembly would no longer meet. Meanwhile, in Saint Domingo, the racial conflict between mixed-race people and white people worsened and the first already had great victories in the places where they had allied with the slaves in the revolutionary struggle. Seeing the great chances of being defeated, the white farmers propose an agreement. On October 24, there is a conciliation in the colony between mixed-race people and white people.

      The slaves were betrayed by their bothers of color. However, this debate continued heated in the French capital, because the lefty-wings continued to support the literalness of the article one of the Declaration and the need to abolish slavery. He organized, with the support of English and North-American abolitionists, a guerrilla of militants that fought for the end of racial discrimination.

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      On November 20 of , he, Jean Baptiste Chavannes important leadership in that period and other 23 insurgents are captured on the Spanish part of the island. JAMES, , p. That defeat and the assassination of the mixed-race leader acted as a catalyst and, in the following months, the people was becoming organized and planned a great insurgency. Historically, authors indicate that the black revolution would have originated under the leadership of papaloi 16 Boukman , a Jamaican slave who knew how to read and was known as the man of the book:.

      Behind Revolution and Communist Slavery in Latin America - Behind the Deep State

      In the first months of , within and in the surroundings of Le Cap, they were organizing themselves for the revolution. The voodoo was the environment of the conspiracy. Despite all prohibitions, the slaves traveled miles in order to sing, dance, practice their rites and talk […] Boukman, a papaloi or high-priest, a gigantic negro, was the leader. The plan was conceived in a massive scale […] was not entirely well succeeded.

      But almost. The reach and the organization of this revolt show that Boukman was the first of that lineage of great leaders that slaves were to launch in such profusion and speed over the years that followed. Until half of the year in the colonies the negros and mixed-race press, without success, the French authorities for their rights. In August, the black uprising begins, which would mark the beginning of the revolution and intensify racial conflict in the Caribbean colonies, which, for the most part, were under this exploitation regime.

      Local authorities were almost giving in to an agreement with the mixed-race, a fact that was fastened by the arrival of the news concerning: […] the law on the colonies of September 28, His head was displayed in public, with the intent to demonstrate what would happen to the insurgents.

      On November of new French commissioners are sent there in an attempt to impose the order, but they do not accomplish much success.

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      New Constitutionalism in Latin America : Almut Schilling-Vacaflor, Detlef Nolte - Book2look

      Meanwhile, the news about the seriousness of the situation in the colonies reach France. On March 24 [of ], by a broad majority, the Legislative issued a Decree giving full political rights to the colored men [mulattoes]. The royal family's frustrated attempt to escape hastens the confrontation between the counterrevolutionaries monarchists and the radical Jacobin wing, who starts to identify itself more and more with the abolitionist cause.

      On regular times, one could not expect French peasants and workers to have any interest in the colonial issue […] But, in that moment, they had risen themselves. They attacked royalty, tyranny, reaction and oppression of al kinds, which encompassed slavery. The revolutionary armies were then collecting victories, and the ruling classes of Europe were arming themselves against this new monster: democracy. England and Spain, two monarchies, declare war to the Revolution.

      In the Caribbean, this conflict had evident interests: take the main French colony and easily acquire all of its agricultural production. In the territory of Saint Dominique , the French were divided between monarchists the majority being farmers, slave owners and republicans army members led by Sonthonax. Besides that, they were trying to contain the black revolution that was marching in accelerated expansion, as well as defending the land border from the Spanish and their coasts from the British ships.

      It is in this scenario that:. Sonthonax returned to Le Cap, nearly ruined city […] the slaves that had yet not rebelled, influenced by the revolutionary fermentation surrounding them, refused to remain slaves. They crowded the streets of Le Cap, elevated exalted as in a religious rally, and clamored for freedom and equality. Even without permission from the metropolis, counting on the strength of the black army was the only chance left for the French to be able to resist the war against the English and Spanish monarchies in that colony.

      In this period, the British, with more than 7 thousand men, left Barbados and had already invested against Martinique, Saint Lucy and Guadalupe. The slaver farmers of Saint Dominique were clamoring for a British intervention in order to defeat the black rebels. The external conflicts with the two great powers and the disputes over the directions of the process against the Girondins delayed and hampered any kind of deliberation:.

      This was the France to which arrived, in , three deputies sent by Saint Domingo to the Convention: Belay, a black slave who had purchased his freedom, Mills, a mulatto, and Duffay, a white man. On February 3 they attended their first session. In this period, the British were controlling part of the island and, on July 5, took the capital Port Prince.

      There was little left for the total defeat of the French army in its main colony. This was a central element for the change in the behavior of the black rebels. Led by Toussaint, they will join the French army to defend the principles of the Revolution, above all, their liberation. The treaty establishes the surrender of the Spanish part of the island to the French Republic in exchange for the peninsular territories occupied by the French this delivery would only take place in Soon after, Sonthonax is called to France and leaves the leader Toussaint L'Overture as governor of the territory.

      Nevertheless, in this period, the political juncture on the French territory is modified.