ABSTRACT
Both lawyers and political scientists have recently made extensive contributions to the study of constitutional change.2 It is usual in these debates to distinguish among three main modalities of change: replacement, amendment, and interpretation of constitutions.3 These modalities-isolated or in their mutual interrelation-can be analyzed from the perspective of the causal dynamics that could explain the occurrence of change, or from the perspective of the effects, i.e., with an interest in clarifying the relation between alterations at the level of basic constitutional arrangements and wider change in social realities. In addition, we can approach them from a predominantly descriptive or normative viewpoint, depending on whether our central interest lies in quantifying, depicting, or explaining what has been happening, or in assessing the process or its results from one or another evaluative standpoint. Mexico’s transition to democracy, in contrast to the typical Latin American
pattern, has not included a constitutional replacement; while over the last three decades almost every country in the region enacted a new constitution,4 Mexico retains its 1917 text. Constitutional amendment and constitutional interpretation are, then, what needs to be tracked down to reconstruct what has been going on in the country. Amendment dynamics make indeed for a distinctive story. According to avail-
able data, the 1917 Mexican text has borne the effects of more than 200 amendment decrees,5 which have translated into more than 500 “section” reforms of variable reach.6 And this is only the tip of the iceberg formed by the astonishing amount of amendment bills registered for discussion.7 The significant rigidity of the Mexican amendment formula did not, quite predictably, inhibit a
dynamics of unremitting reform during the decades of Institutional Revolutionary Party (PRI) hegemony. But more surprisingly, in the 1997-2012 period, when the PRI had already lost the capacity to amend the basic text without the concurrence of other political parties, far from abating, amendments proliferated even more.8 To analyze why Mexican political life has felt the necessity of permanent constitutional expression, or to explore the relationship between permanent legal change and law enforcement-or un-enforcement-are only two of the many lines of inquiry invited by Mexican amendment dynamics. What about constitutional interpretation? Which role has it played in the
Mexican political and legal transition? Which features are most prominent and what do they suggest about broader patterns of legal, social, and political change? Which has been, in particular, the Mexican Supreme Court (MxSC) interpretive contribution to recent change and-perhaps more importantly-what can we expect for the future, especially if constitutional change through amendment starts to shrink and interpretation progressively acquires more comparative significance? How does the court’s interpretive job look, from one or another perspective of evaluation? Though the role of the MxSC in recent political evolution has not yet been
fully reconstructed,9 no doubt it has participated in trends that have marked the judiciary worldwide. Thus, in Latin America and elsewhere, judges have seen their powers extraordinarily strengthened,10 in part as an effect of a market-reinforcing agenda that viewed judicial independence as the keystone to the rule of law,11
and in part as an effect of the progressive consolidation of rights-based, substantivist constitutionalism, which puts limits on political majorities and entrusts their enforcement to courts.12 From other standpoints, however, the MxSC performance has hardly been standard. As has often been noted, the court’s track record in policing federalism and the horizontal division of powers has been good-it has successfully undertaken an arbitral role that the president can no longer fulfill-but it has performed poorly its other main constitutional responsibility: to protect individual rights against public (or private) encroachment.13
While the apex courts of other regional countries were shaping some of the more interesting developments in contemporary constitutional law,14 the MxSC retained formalistic and old-fashioned styles of adjudication15 and continued to devote most of its time to cases filed by corporations brandishing their “fundamental right” not to pay taxes.16
