ABSTRACT
In Latin America, during the drafting of the fIrst post-colonial constitutions, many legal theorists shared these individualist assumptions and suggested quite similar solutions, based on a profound distrust of collective action. The Colombian intellectual Jose Maria Samper, one of the most influential legal thinkers in Latin America during the nineteenth century, summarised this view as follows: '[ifJ what we want is to have stability, liberty and progress ... what we need is that public offIcers adopt the practice of regulating as little as possible, trusting in the good sense of the people and the logic of freedom; they should make efforts to simplify situations, suppressing all artifIcial questions whose only purpose is our mutual embarrassment., 7 Like many intellectuals of his time, Samper defended an invisible-hand argument, or what he defmed as an 'individualist, anti-collectivist and anti-state' position. 8
Similarly, in Argentina, the intellectual leaders of the so-called '1837 generation' dedicated a great deal of their energies to justifying the shift from the sovereignty ofthe people to the sovereignty ofreason, as Natalio Botana described it.9 In other words, these public fIgures argued that the idealistic aspirations of the fIrst revolutionaries should be abandoned in favour of 'more mature' ideas, namely, ideas that recognised that the new nations were completely unprepared for majoritarian democracy. As President Domingo Sarmiento famously argued, the will of the nation 'is only expressed through the reason of educated men, and this is what is called national reason ... We are democrats with regard to the establishment of liberty in favour of national reason [but we oppose the] national will.' 10
These assumptions about majority groups and the way in which they tend to act were accompanied by other assumptions regarding the main interests to be protected from the excesses of majoritarianism, and the way in which they should be protected. The answers that the Founding Fathers advanced in both Latin America and North America are well known. Most of them defended what, in modem times, Isaiah Berlin identifIed as a negative concept of liberty, meaning the existence of an area within which individuals can act unobstructed by others, free of direct coercion. ll John Stuart Mill also believed that there should be areas of people's lives free from state regulation, in respect ofwhich even a democratically elected govemment could not legislate. 12
This view of liberty differs from a positive notion of liberty, which is associated with moral autonomy or free will. Here, a person is free when she is her own master, namely when she is a 'thinking, willing, active being, bearing responsibility for [her] own choices and able to explain them by references to [her] own ideas and purposes,.13
