Studies in Comparative Federalism

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STUDIES IN COMPARATIVE FEDERALISM

Argentina, the United States and Mexico

Antonio María Hernández Autoridades UNC Rector Dr. Hugo Oscar Juri

Vicerrector Dr. Ramón Pedro Yanzi Ferreira

Secretario General Ing. Roberto Terzariol

Prosecretario General Ing. Agr. Esp. Jorge Dutto

Directores de Editorial de la UNC Dr. Marcelo Bernal Mtr. José E. Ortega

Hernández, Antonio María Studies in comparative federalism: Argentina, The United States and Mexico / Antonio María Hernández. - 1a ed. - Córdoba: Editorial de la UNC, 2019. Libro digital, PDF Archivo Digital: descarga y online ISBN 978-987-707-120-7 1. Federalismo. 2. Constitucionalismo. 3. Sistemas Políticos. I. Título. CDD 321

Diseño de colección, interior y portada: Lorena Díaz Diagramación: Marco J. Lio

ISBN 978-987-707-120-7 Universidad Nacional de Córdoba, 2019 CONTENTS

Chapter I. A conceptual and methodological preamble 11 1. Introduction 11 2. Concepts and characteristic elements of federalisms 12 2.1 Origin and denomination 12 2.2 Federalism as a form of State 16 2.3 Concepts and essential characteristics of federal states 18 3. Classification of federalisms 22 3.1 Integrative and devolutive 22 3.2 Symmetrical and asymmetrical 22 3.3 Dual and coordinate 23 3.4 Centralized or decentralized 24 3.5 With presidential or parliamentary governments 25 3.6 For the purpose of division of power or identity-related 26 4. An interdisciplinary and realist methodology for the study of federalisms 27 5. The risks and importance of comparative studies 28

Chapter II. Comparative constitutional reflections on federalism in Argentina and The United States 33 1. Introduction 33

Part 1. Brief analysis of historical and federal aspects of the US and Argentine constitutions 34 1. The United States of America 34 1.1 The colonial period (1604-1776) 34 1.2 The Declaration of Independence and the Articles of Confederation 37 1.3 The Constitution of the United States of America 39 1.4 The thinking of Madison and Hamilton on federalism and constitutional design 63 1.5 The amendments related to federalism 69 2. Argentina 78 2.1. The colonial period (1553-1810) 78 2.2 The 1810 May Revolution and the first ideas of nationality 79 2.3 Attempts at unitarian and federal organization of the country and the enactment of provincial constitutions (1811-1831) 84 2.4 The Federal Pact of 1831 and the Argentine Confederation 90 2.5 The enactment of the National Constitution of 1853 92 2.6 Federalism in the 1853 National Constitution 95 2.7 Federalism in the 1860 Constitutional Reform 98 2.8. From “dual” federalism to “co-operative federalism” (1950 onward) 101 2.9. Federalism and the decentralization of power in the 1994 constitutional reform 102 2.10 The tendency to centralization 113 2.11 Constitutional violations 116 2.12 The “20 Proposals to Strengthen Argentine Federalism” 127 3. Similarities and differences between both Constitutions 129 3.1 Similarities and differences in the form of government and state 129 3.2 Differences in the constitutional texts of the USA and Argentina 131

Part 2. The functional aspects of US and Argentine federalism 141 1. The Role of the Supreme Court of Justice 141 1.1. The United States 141 1.2 Argentina 155 1.3 Similarities and differences 167 2. The culture of legality 169 2.1 The United States 169 2.2 Argentina 171 2.3 Differences 178 3. Political parties 180 3.1 The United States 180 3.2 Argentina 188 3.3 Similarities and differences 194 4. Intergovernmental relations 198 4.1 The United States 198 4.2 Argentina 207 4.3. Similarities and differences 211 5. Fiscal federalism 214 5.1 United States 214 5.2. Argentina 217 5.3 Similarities and differences 220 6. Asymmetries in both federalisms 222 6.1 United States 222 6.2 Argentina 223 6.3 Similarities and differences 225

Part Three: State Constitutional Law and local governments 226 1. State constitutional law 226 1.1. United States 226 1.2. Argentina 232 1.3 Similarities and differences 242 2. Local governments 243 2.1. United States 243 2.2. Argentina 252 2. 3. Similarities and differences 265 Final reflections 267

Chapter III. Comparative constitutional view of the Argentine and Mexican Federations 283 1. Introduction 283 2. A brief analysis of Mexico’s constitutional history 284 2.1 The stage of Independence 285 2.2 The stage of the federalist and centralist constitutions 288 2.3 The 1917 Constitution 291 2.4 Centralized federalism, hyper-presidentialism, constitutional amendments and anomie 293 3. Similarities in the historical constitutional process of the two countries 303 3.1 The same form of government and state 303 3.2 The original roots of federalism 304 3.3 The influence of the U.S. federal model 309 3.4 The tendency toward centralization 310 3.5 Hyper-presidentialism 311 3.6 Weak constitutional culture and legality 312 4. The most notable constitutional differences between the two federations 313 4.1 In the system of constitutional reform 313 4.2 The effects of the amparo on the federal system 316 4.3 In the respective Federal Constitutions as regards the decentralization of power 318 CHAPTER I A CONCEPTUAL AND METHODOLOGICAL PREAMBLE

1. Introduction

Comparing the federalism of Argentina with that of the United States, which was its model, and with that of Mexico, which, like the Argentine, is Latin American, is a complex and difficult challenge, for many reasons, starting with the breadth and depth of the different historical, juridical, political, economic, cultural, and social situations that must be analyzed. This chapter will explain the conceptual and methodological underpinning of this study, beginning with some theoretical concepts of federalism and of the classification of federal political systems, to be able to accurately characterize our object of study. Then we will consider the methodological aspects, that involve a realistic, interdisciplinary analysis, to be able to see, understand and evaluate the similarities and differences between these three federalisms. We will also mention the particular care that must be taken in the case of a comparative view and, especially, in the case of comparative constitutionalism. We must also add another special consideration concerning the problem of transplanting constitutions, as occurred in Argen- tina and Mexico with the United States constitution. This is the reason for the greater length of Chap. II, comparing the federalism of Argentina with that of the United States, where we devote our attention to that important debate and other cultural, institutional, and political aspects in which we differ. Finally, Chap. III compares Argentina with Mexico, a country with which we have greater historical, political, and cultural

11 similarities, being part of Latin America. This an earlier study, so it is not as developed as the previous chapter, in which we compare not only the historical and constitutional but also the functional aspects and those related to subnational constitutionalism and municipal law. In this case, we concentrate on the historical and constitutional questions of the federalisms of Argentina and Mexi- co and leave a deepening of this comparative study for the future.

2. Concepts and characteristic elements of federalisms1

2.1 Origin and denomination

The historical experiences of the United States - principally2- and of Switzerland3 gave the origin to federalism as a new form of

1 For this point, we follow our explanation in Ch. I on Los sistemas políticos federales [Federal political systems] in our book Federalismo y Constitucionalismo Provincial [Provincial Federalism and Constitutionalism], Abeledo Perrot, Buenos Aires, pp. 3-16. There will be found a more complete analysis of other aspects of the theory of federalisms, such as relations with the republic, constitution and democracy, union and diversity, sovereignty in federal states, federalization process, other federative forms such as confederation and regional states, etc. (Ibid., pp.6-26). 2 Karl Loewenstein, one of the most important thinkers of the 20th century, explained: “Together with the written constitution and the establishment of the “republican”, i.e., non-monarchical, form of government in states with a vast territory, federalism is the most important American contribution to the theory and practice of the modern State. Federal-type state unions had existed previously: in ancient Greece, the Delian, Amphyctionic, Hellenic and Achaean leagues; the Eternal Alliance (Ewiger Bund) of the Swiss cantons since the 14th and 15th century, the Union of Utrecht (1579) between the seven northern provinces of the Netherlands. But none of these formations constituted an authentic federal state, partly for the lack of common bodies with direct jurisdiction over the citizens of the associated states and partly for the preponderance of one of their members. Other state associations, like the Holy Roman Empire or the German nation, were either associations based on vassal or feudal relationships, or, in the best case, confederate in nature. After the transitional period of the Articles of Confederation, the thirteen American States formed, with the Federal Constitu- tion of 1787, for the first time in history, a completely structured federal state”. (“Teoría de la Constitución”, Editorial Ariel, Barcelona, 1982, pp. 354/355). 3 Although this European country adopted a federal organization with the influence of the US Constitution only in 1848, it is undoubtedly the country with the

12 government and state, establishing a special division of power in relation to the territory, in contrast with unitarianism. These experiences preceded the origin of the word4, which emerged with a more precise meaning after the work of the Philadelphia Conven- tion of 1787, sanctioning the Constitution of the United States, was completed.5 This Convention is the most important in the history of federalism, as it was the first to establish this system in a Constitu- tion, a sign of supreme political and juridical wisdom, achieving agreement between the different states of the Union to overcome the problems of the Articles of Confederation of 1778, which had hindered effective government. The Convention was chaired by George Washington, representative of Virginia and later first Pre- sident of the United States, and the most important of the Cons- tituents was James Madison, who also represented the State of Virginia and has been called the father of the Constitution. The US Constitution was also the first national, republican written constitution, and gave origin to modern constitutionalism longest autonomous and confederal history, since it was constituted as a confederation in 1291, based on three regions in central Switzerland that formed a Diet. Throughout the centuries it has maintained very particular characteristics that have enabled it to be one of the deepest and most advanced democracies in the world, with the greatest practice of institutions of direct and semidirect democracy. 4 As Tania Groppi, Professor of European and Comparative Public Law in Si- ena, Italy, notes, (“Il federalismo”, Editori Laterza, Roma, Italia, 2004, pp. 5 and ff.), the etymology of the word federalism derives from the Latin “foedus”, which means treaty, pact, convention or alliance, and hence the verb “foedero” (to join in a pact) and the noun “foederatio” (the result of this action). Thus the English verb “federate” and “federation” as a noun. She explains that at the end of the 18th century, dictionaries in English and French described the word as a neologism, referring to the experiences of the United States and Switzerland and to the constitutional project drawn up by the Girondins in the early 1790s in the French Revolution. 5 Groppi explains that, in the debates of the Philadelphia Convention, there was promiscuous use of the terms “federation” or “confederation”, since the state models known at that time were the unitary or the confederal state, which consisted in a league or alliance of sovereign states and came from international law. Op. cit. p. 6).

13 in its liberal or classic stage, as its example was followed by the French constitution and then by many other countries.6 Its influence was very important in Latin America, and in particular in federal countries like Argentina, Brazil, Mexico and Venezuela. As the approval of nine of the thirteen states making up the American federation was needed for the Constitution to come into effect, between 1787 and 1788, Alexander Hamilton and Ja- mes Madison, Convention delegates, together with John Jay, published The Federalist Papers7 in newspapers of the State of New York under the pseudonym of “Publius”, explaining the word “federalism”, and supporting the constituent convention’s work. The “Federalist Papers” were the most important explanation of federalism as a new form of government and state, with a clear liberal conception of the division and limitation of powers within the State, and of the affirmation of the rights of the citizens. The influence of this work has been fundamental in the history of world political and constitutional thought, and reached Argentina through Alberdi, and thus the Constituent delegates of 1853, who gave us the historical constitution. Alexander Hamilton defined federalism, in reference to the new form of government and state created, as “an association of two

6 For a more detailed analysis of the history of constitutionalism, see Antonio María Hernández, Derecho Constitucional, La Ley, Buenos Aires, 2012, Ch. I, where we analyze the contributions of England, the United States and France. 7 The articles were published between October 27, 1787 and August 16, 1788 in newspapers of the State of New York and the first 46 articles were published in one volume by A & J. McLean in New York in March and May 1788. A second volume contained the remaining articles to number 85. The idea of the work was of Alexander Hamilton, with James Madison and John Jay as co-authors, using the pseudonym “Publius”, in homage to Publius Valerius Publicola, one of the founders of the Roman republic. The articles aimed to defend the constituent work from the attacks of the “antifederalists”, one of whose main leaders was the Governor of the State of New York, George Clinton, who wanted to prevent ratification of the new Constitution. (Cf. “The Federalist papers”, Hamilton, Madison, Jay, edited by Clinton Rossiter, A Signet Classic, USA, 2003, and the Introduction by Charles Kesler, who explains the work in the context of the debate between federalists and antifederalists).

14 or more states into one state, in which the authority of the Union extends to the persons of the citizens”. In parallel, the word confederation started to be used to denote the older form of organization, referring to the league of states, as provided for in the Articles of Confederation of 1778.8 Groppi says that, in political and juridical language, this word had both huge success and certain ambiguity. On the one hand, she notes that, in the 19th century, the US example extended through Europe (German and Austro-Hungarian Empires and Swiss Confederation), America (Canada, Mexico, Venezue- la, Brazil and Argentina) and Australia, and in the 20th century, from Nigeria to Malaysia, from India to Belgium and from South Africa to the European Union, reaching, in the opinion of Elazar in 1987, 40% of the world population and 58 countries governed by this type of federal principles and agreements. On the other hand, she notes that the term has various meanings, for example, in the US case, more linked to union and in opposition to the concept of confederation, while in France it refers to local autonomy

8 With the declaration of Independence of the United States on July 4, 1776, the 13 ex-colonies of the British Empire had to start the war of Independence and try to organize themselves politically, which gave rise to the Articles of Con- federation of 1778. As each of the states retained their sovereignty in that Con- federation, the government of the Union became difficult, and this led to the federal State that was created in 1787. But the process involved a fierce struggle between the two sectors: the “federalists” who wanted to strengthen central or federal government, and the “antifederalists”, who aimed to maintain the sovereignty of the states. Beyond the constitutional sanction of 1787, establishing a balance between the States, essentially with the their equal representation in the Senate, the debates and confrontations continued, not only in the subsequent process of reaching ratification by the States of the Constitution of 1787, but later until the civil war, since the southern slave states declared the “secession”, after the triumph of the great president, Abraham Lincoln. The southern States argued the theory of the states’ sovereignty, which Senator John Calhoun, among others, had defended, to justify the secession and conserve their form of economic production based on the exploitation of cotton using slaves, in con- tradiction to the northern states with greater industrial production, which did not accept that system.

15 and self-government in opposition to the unitary state. She concludes that, nowadays, federal institutions in comparative law are multiple and differentiated.9 The term federalism must thus be used with due care, and it is more correct to refer to federalisms as, rather than a general model, each federalism has distinct particularities (historical, geographical, cultural, economic, juridical and political) obliging us to be precise: Argentine federalism, or US, or Mexican, or Swiss, or Canadian, etc.

2.2 Federalism as a form of State

As studies of public law progressed, they distinguished between forms of government and forms of the State, classifying government as the organization of power as one of the elements of the State (republican-monarchical; presidential-parliamentary; democratic-au- tocratic; etc.), and classifying forms of States based on the relationship between all their elements: territory, population and power. Federalism arose as a division of power in relation to territory, and therefore has been considered more recently as a form of State,10 in particular, opposed to the unitary form, as Karl Loewenstein pointed out: “In opposition to the “monolithic” unitary State, the federal State presents a system of territorial pluralism. The different state activities are distributed between the central State and the member state”11. In this fundamental work,

9 “Il federalismo”, pp. 7-9, Federalismo: successo e ambiguità di una parola. Dan- iel J. Elazar (1934-1999), mentioned by Groppi, was one of the most renowned advocates of federalism. He directed the Center for the Study of Federalism at Temple University, Philadelphia and was one of the founders of the Internation- al Association of Centers for Federal Studies, the most prestigious institution for the study of comparative federalism. 10 This explains why, in Art. 1 of the historic Argentine Constitution of 1853 and in Alberdi’s Bases, federalism is mentioned as a form of government. 11 Karl Loewenstein, Teoría de la Constitución, Editorial Ariel, Barcelona, 1982, p. 357. The original edition of this work was in 1957 with the title Political

16 Loewenstein analyzed the division between horizontal and vertical controls of power, including federalism among the latter, for “the confrontation between two different state sovereignties, separated territorially and which balance each other. The existence of federal borders limits the power of the central State over the member State, and vice versa”.12 This criterion is also found in the well-known work of Dorsen, Rosenfeld, Sajó & Baer on Comparative Constitutio- nal Law, Chap. 4 of which is actually titled Federalism and vertical separation of powers, where they examine the various forms of federalism and of decentralization in non-federal states13. Si- milarly, Giuseppe de Vergottini, Dean of Comparative Consti- tutional Law at the University of Bologna, Italy, declares that power and the governmental process (University of Chicago Press). With respect to the two state and governmental orders mentioned by the author as compris- ing federalism, this was in relation to US federalism, and also occurred in Argen- tina, based on the original text of the Constitution. There are federations that have more than two state and governmental orders, as provided by the constitutions of Brazil of 1988, India of 1991, and South Africa of 1996, with three levels (adding the municipal to the federal and state or provincial), and of Ar- gentina of 1994 with four levels, recognizing also a special institutional level for the Autonomous City of Buenos Aires. In Argentina there is also the possibility of crating regions, through Art. 124 of the Constitution, for purposes of the economic and social development of the Provinces. 12 Teoría de la Constitución, p. 353. Among the vertical controls of power as well as federalism, the author mentions two more fields of reciprocal actions: individual rights and fundamental guarantees and pluralist groups, i.e., the intermediate powers of Montesquieu and de Tocqueville. Op. Cit., pp. 353-354. 13 Norman Dorsen, Michel Rosenfeld, András Sajó, Susanne Baer, Comparative Constitutionalism, American Casebook Series, Thomson-West, 2003, USA, Ch. 4, Federalism and vertical separation of powers, pp. 350-488. The authors distinguish five levels of vertical government: local (municipal), subnational-regional (state-provincial), national (federal), supranational (European Union) and global (United Nations, although this cannot yet be said to be a global government) (cf. p. 350). For the various federative forms, they refer to the United States, Can- ada, Germany, Switzerland and India (pp. 350-386), and they see France, Spain and Italy as examples of decentralization in non-federal states. (pp. 386-395)

17 “the model of federal State mentioned previously presupposes its inclusion in the broader framework of the form of State of liberal derivation”14.

2.3 Concepts and essential characteristics of federal states15

John Locke, in his classic Second treatise of civil government (1689), considering the different powers of the State, included legislative, executive and the federative as different from the former. He held that it comprises “the management of the security and interest of the public without, with all those that it [the society] may receive benefit or damage from.” And that it “contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth”.16 Charles de Secondat, Baron de Montesquieu, in his famous work The spirit of the laws (1748) described the federate republic as follows: “This form of government is a convention, by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of farther associations, till they arrive to such a degree of power, as to

14Giuseppe de Vergottini, Derecho Constitucional Comparado, Editorial Uni- versidad, Buenos Aires, 2005, p. 325. He adds that federalism also concerns the form of government and conception of democracy, and therefore holds that the so-called socialist states (USSR, Czechoslovakia, and Yugoslavia), for their one-party system and lack of political pluralism, were not truly federal, even though they called themselves such. (pp. 325-6). 15 To deal with this complex point, we have chosen the authors we quote. But we cannot deny that the subject is very extensive and presents robust debates, especially in the United States. For example, see from a political science approach, Malcom M. Feeley and Edward Rubin, “Federalism - Political identity and tragic compromise”, The University of Michigan Press, 2008, Ch. 3 “Federalism in political science”, p. 69ff. 16 “John Locke Second Treatise of Government”, Edited, with an Introduc- tion, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge, 1980.

18 be able to provide for the security of the whole body”17. He considered that the federate republic enjoyed the internal happiness of republican government and the external advantages of monar- chies, quoting the examples of the Greek cities, Rome, and later, Holland, Germany and the Swiss Leagues. He added: “Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty”.18 Alexander Hamilton, who cited Locke and Montesquieu in the Federalist Papers, referred to federalism as “an association of two or more states into one state, in which the authority of the Union extends to the persons of the citizens”19. Karl Loewenstein held that “In opposition to the “monolithic” unitary State, the federal State presents a system of territorial pluralism. The different state activities are distributed between the central State and the member state”.20 And as its essential characteristics, he mentioned: a) The central State or “federation” has its own sovereignty strictly separate from the sovereignty of the member States. b) The central State exercises direct dominion over the citizens of all the national territory. c) The distribution of powers between the different orders is key to the federal structure, and d) The essential foundations of federal relations are set in a formal constitutional document.21 Daniel J. Elazar considered that “Federal principles are concerned with the combination of self-rule and shared rule”.22

17 Charles Louis de Secondat, Baron de Montesquieu, The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 1. 6/15/2019, Ch. 1 18 Idem, Ch. I. 19 We examine his concepts more closely below, as well as those of James Madi- son, in the next chapter, in a specific section. 20 Karl Loewenstein, “Teoría de la Constitución”, op. Cit., Ch. X, p. 357. 21 Karl Loewenstein, Teoría de la Constitución, Ch. X, pp. 355-356. 22 Daniel J. Elazar, Exploring Federalism, University of Alabama Press, Tusca- loosa, Alabama, 1987, p. 5.

19 John Kincaid, Director of the Meyner Center for the study of State and Local Government of Lafayette College, Pennsylva- nia, who was president of the International Association of Cen- ters for Federal Studies, describes it as “a structure and a process of governance that establishes unity on the basis of consent while preserving diversity by constitutionally uniting separate political communities into a limited, but encompassing, polity.”23 Ronald L. Watts, who was Professor Emeritus of Queen’s University, Canada, says that “The essential characteristic of federations is that they are composed of two (or more) orders of government operating within a constitutional framework, with one order providing shared rule through common institutions for certain specified purposes and with the other (or orders) providing regional or local self-rule though the governments of the constituent units for certain specified purposes.”24 Segundo V. Linares Quintana, Professor of the University of Buenos Aires, wrote that “in the Federal State – case of political decentralization – the essential political attributions are distributed or shared in two different governmental orders: the central government and local governments, which coexist har- monically and in coordination within the same territory; thus the centripetal and centrifugal tendencies are maintained in a more or less perfect equilibrium”.25

23 John Kincaid, “Introduction”, Handbook of Federal Countries, p. 7. 24 Ronald L. Watts, Comparative Conclusions, in A Global Dialogue on Federal- ism, Volume 2: Distribution of Powers and Responsibilities in Federal Countries, Edited by Akhtar Majeed, Ronald L. Watts and Douglas M. Brown, published for Forum of Federations and International Association of Centers for Fed- eral Studies by McGill-Queen’s University Press, Montreal & Kingston-Lon- don-Ithaca, 2006, p. 322. 25 Segundo V. Linares Quintana, Tratado de la Ciencia del Derecho Constitucio- nal, vol. 6, p. 180. This distinguished Argentine constitutionalist explained that it was the English Prof. James Bryce, noted commentator on the US Constitu- tion, who pointed out in 1901 the existence of centripetal and centrifugal forces in the State. (See note 4855, p. 181).

20 With respect to the essential characteristics of federal states, these authors26 indicate: a. The division of power in the territory among two or more orders of government that act directly on the citizens; b. The existence of a Constitution of which the territorial bodies constituting the federation participate in its reform; c. The recognition of a genuine autonomy for the different orders of government of the federation, ensured by the constitutional distribution of their corresponding powers in legislative, executive, financial matters, etc.; d. The participation of the states members in the organs of government of the federation, through a Second Chamber, which is usually the Senate.27 e. The existence of an organ, normally judicial, to resolve conflicts between the member of the federation and ensure the supremacy of the Constitution. f. The existence of processes and institutions that facilitate intergovernmental collaboration. We must also add, with Watts, that, for adequate functioning of a federal regime, values are necessary linked to the explicit

26 Cf. Karl Loewenstein, see Note 45; Raoul Blindenbacher and Ronald Watts, “Federalism in a changing world. A conceptual framework for the Conference”, in “Federalism in a changing world”, R. Blindenbacher and R. Watts, Editors. McGill-Queen’s University Press, Montreal & Kingston-London-Ithaca, 2003, p. 10; Francisco Fernández Segado, “El Federalismo en América Latina”, p. 4, (the author also adds federal intervention as a technique for maintaining the territorial, political and constitutional integrity of the State); Tania Groppi, “Il Federalismo”, p. 139, (the author also mentions the possibility of signing international agreements on behalf of the member states); Giuseppe de Vergottini, Op. Cit., pp. 331-344, where the distinguished jurist of Bologna analyzes the characteristics of federal states; Ronald Watts, “The federal idea and its contemporary relevance”, Institute of Intergovernmental Relations, Queen’s Universi- ty, Kingston, Ontario, Canada, 2007, p. 4, etc. 27 Although there are some federations that have no Senate or Bicameral Leg- islative Branch, such as Venezuela, St. Kitts & Nevis, Comoros, Micronesia and United Arab Emirates.

21 recognition of multiple identities and loyalties and a generalized sense of the existence of shared objectives and purposes.

3. Classification of federalisms28

3.1 Integrative and devolutive

As we have already seen, “integrative” federalisms are the result of an aggregation of previously independent states giving rise to the new state, delegating powers to it, as in the case of the United States, Argentina and Mexico. “Devolutive” federalisms, however, are the consequence of the decentralization of power in previously unitary states. This is the case of the regional or federal-regional states that we included in the federative forms, such as Italy, Spain, France and even Britain, with the process of “devolution” to Scot- land, Wales, and Northern Ireland. But, from our point of view, federations as solid as those of Canada and Australia could also be included here, which depended from the British Crown.

3.2 Symmetrical and asymmetrical

Watts noted two types of asymmetries: political, referring to the different weight of the federated or regional entities in political, economic, population, cultural, natural resources, etc., terms, and constitutional, related with the diverse status that the constitutions recognize for the members of the federal States. In consequence, if we consider the first type of asymmetries, it is not easy to find a federal State that is fully symmetrical, as there are always differences between the components of a State even in the most advanced countries, e.g., The District of Colum- bia, Connecticut, Massachusetts or California, on the one hand,

28 In this point we also follow our book “Federalismo y Constitucionalismo Provincial”, Ch. I on Federal Political Systems, pp. 16-19.

22 against Mississippi or Alabama on the other in the United States, or the Länder of the former Federal Republic of Germany against those of the ex-Democratic Republic, which does not prevent them being considered moderately symmetrical. In contrast, in Argentina or in Mexico, it is clear that there are broad political asymmetries between the province of Buenos Aires or the Autonomous City of Buenos Aires and the provinces of Cha- co, Formosa or Santiago del Estero, and between the states of Mon- terrey or the Federal District and the states of Chiapas or Oaxaca. From a constitutional point of view, the Argentine federation was symmetrical until the constitutional reform of 1994 as there were no differences between the provinces, but asymmetry was introduced to the system with the recognition of special status for the now Autonomous City of Buenos Aires, which is also a member of the federation. Asymmetries can also be seen in federations such as the Russian or the Swiss, with its cantons and half-cantons, and in regional or federal-regional systems as in Italy and in Spain, from the constitutional differences between the regions and the autonomous communities.29 In the next chapter, we will see that Allan Tarr notes that there are also asymmetries in constitutional matters in the United States.

3.3 Dual and coordinate

The initial US “dual” federalism, a model that influenced, for example, the Latin American countries, was characterized by a clear division of powers between the Federal Government and the states. As regards coordinate federalism30, there have been concrete interjurisdictional experiences such as in the Tennessee River

29 For an analysis of asymmetrical federalism, see Peter Pernthaler, “Asymmetric Federalism as a Comprehensive Framework of Regional Autonomy”, Hand- book of Federal Countries, p. 472 ff. 30 Which Pedro J. Frías also called “of concertation”.

23 valley in the United States, and in the doctrinal plane, Fernández Segado cites Jane Perry Clark in 1938 who presented the need to overcome the rivalry between governmental orders to find a path of cooperation.31 This line of thought was continued by Morton Grodzins calling for conjoint, shared actions by the federal government and the states.32 Fernández Segado also mentions the adoption of cooperative federalism in Germany and Austria, by laws in 1969 and 1974, respectively,33 and discusses the issue in reference to Argentina, Brazil, Mexico and Venezuela, finding progress in this sense in the first three countries34. In Argentina, cooperative federalism began to take effect in the 1950s, with different interjurisdictional treaties, and was incorporated into the 1994 reform of the federal constitution and in the provincial constitutions produced since 1986, which inserted federal clauses to this effect.

3.4 Centralized or decentralized

Depending on the play of centripetal or centrifugal forces, federalisms may be more or less centralized or decentralized. This should be studied first from a normative point of view, emphasizing the distribution of powers in the different orders of government, and then from a dynamic and realist point of view, as there may be non-compliance with the respective norms. It is difficult to make a classification of this nature because it is necessary to generalize, but examples of decentralized federalisms would be Switzerland, the USA, and Canada, and to a lesser

31 Francisco Fernández Segado, “El federalismo en América Latina”, p. 24, who cites Jane Perry Clark, “The rise of a New Federation. Federal-State Coopera- tion in the United States”, New York, Columbia University Press, 1938. 32 “The American System. A new view of government in the United States”, Chicago, Rand Mac Nally, 1966, cited by Fernández Segado op. cit. We will look at this topic in Ch. II. 33 Francisco Fernández Segado, “El Federalismo en América Latina”, p. 25. 34 Francisco Fernández Segado, op. cit., pp. 25-30

24 extent Australia, Germany and Austria, versus centralized federalisms, like those of Latin America, i.e., Mexico, Argentina and Brazil35, or of India, Nigeria and South Africa.36

3.5 With presidential or parliamentary governments

Federations can also be distinguished by their form of government, whether presidential or parliamentary. The former has given rise to the denomination of “executive” federalisms, although here too great differences can be seen between the different countries that have this form of government, as is the case of the United States, Argentina, Nigeria and Russia.37 Canada, Australia, Germany, South Africa, India, and Belgium are some examples of federalisms with parliamentary governments. As a consequence of these different forms of government, contrasts can be seen in the functioning of organs and executives in the federations, as shown in the comparative study by the Forum of Federations and International Association of Centers for Federal Studies in 11 countries.38

35 But Argentine or even Mexican federalism cannot be compared with the Venezuelan, which is practically virtual, because of the constitutional violations during the regime of Chávez and Maduro, who have centralized the country. For an analysis of Argentine federalism, see our study “Federalismo y Constitucio- nalismo Provincial”, op. cit. 36 As regards the complexity of these comparisons, for example, Argentina has much greater recognition of autonomy for its provinces than India, Nigeria or South Africa for their respective subnational governments, as indicated by Cher- yl Saunders, of Melbourne University, Australia, ex-president of the Internation- al Association of Centers for Federal Studies. (See “Legislative, Executive and Judicial Institutions: A synthesis” in “A Global Dialogue on Federalism”, p. 346). 37 See Cheryl Saunders, “Legislative, Executive and Judicial institutions: A synthesis”, p. 353, where she describes as dramatic the differences between Amer- ican presidentialism, subject to constitutional limits, and other cases of “hyper-presidentialism”, as we call it in Argentina, or “super-presidentialism”, as it is called in Russia, where it affects the correct functioning of the federations. We have analyzed the Argentine case in “Republic of Argentina”, in “A Global Dia- logue on Federalism, Volume 3: Legislative, Executive and Judicial Governance in Federal Countries”, op. cit. pp8-36). 38 These countries were Argentina, Australia, Austria, Germany, Canada, Unit- ed States, India, Nigeria, Russia, South Africa and Switzerland. See “A Global

25 3.6 For the purpose of division of power or identity-related

Dorsen, Rosenfeld, Sajó and Baer distinguish federalisms by their purposes as power-distributive or identity-related. The former are primarily linked with the division of power among different levels of government. The latter seek primarily to preserve a significant autonomy for ethnic, religious, or linguistic groups.39 Thus, the federalisms that we are comparing of Argentina, the United States and Mexico would be classified as integrative, with differentasymmetries , with characteristics of dualism first and then of coordination, with differing degrees of decentralization, as we will see, with presidential systems, and founded with the purpose of dividing power between the various orders of government.

Dialogue on Federalism, Volume 3: Legislative, Executive and Judicial Gover- nance in Federal Countries”, op. cit. Similarly, the term “executive federalism” is used when, regardless of the governments being presidential or parliamentary, agreements are needed between national leaders such as the Prime Ministers of the Federation and the federated entities or the Presidents and state or provincial governors to carry out the most important policies. (See Thomas Hueglin, Cana- da, “A Global Dialogue on Federalism, Volume 3: Legislative, Executive and Judi- cial governance in federal countries”, op. cit., p. 103, where the author describes a strong executive federalism in his country, and Stefan Oeter, Germany, in the same book, pp. 138 and 144, who indicates the same in the German federation for the relationship between the Bundesrat (Senate) and the Länder). He also describes executive federalism within the supranational federalism of the European Union. 39 See Dorsen, Rosenfeld, Sajó and Baer, op. cit., p. 351. They argue that “Dis- tributive federalism is concerned primarily with apportioning political power among different levels of government” and give the example of American federalism, and “Identity-based federalism seeks primarily to preserve significant autonomy either for ethnic, religious or linguistic groups”, giving the examples of India and Switzerland. They see Canada as a mixed case, as the first aspect predomi- nates for the Anglophone provinces and the second for the case of Quebec. They also make a qualification of the different federalisms: that of the United States as “elastic and pragmatic”, for the various changes in its history with greater or less centralization; that of Germany as “cooperative” federalism; that of Switzerland for the “predominance of the cantons”; that of India as “multiethnic”; that of Canada as “asymmetric”; and that of Belgium for its transit from centralization to ethnic federalism and possibly a confederation (op. cit., pp. 356-386).

26 4. An interdisciplinary and realist methodology for the study of federalisms

In our view40 of constitutional law, provincial constitutionalism, and municipal law –and specifically for the study of federalism– an interdisciplinary method is best, that covers historical, juridical, political, sociological, fiscal, philosophical, and comparative aspects. The method must also be particularly realistic, because in Argentina, and in general in Latin America Latina, it is common to observe a great distance between constitutional norms and their current reality. It is therefore essential to compare the juridical and constitutional culture of the respective societies to find suitable answers to the similarities and differences in the historical evolution of constitutional models that have had a similar design.41

40See Antonio María Hernández, “Derecho Constitucional”, La Ley, Buenos Aires, 2012, Vol 1, Ch. I, II.4. Método, pp. 28-32; “Federalismo y Constitucio- nalismo Provincial”, Abeledo Perrot, Buenos Aires, 2009, Ch. XII, Derecho Pú- blico Provincial, Método, pp. 325-7 and “Derecho Municipal”, Parte General, Universidad Nacional Autónoma de Méjico, Méjico, 2003, Ch. I, Método, pp. 11-14. There we consider this important issue, starting from the distinction between the deductive-speculative method used by Plato and the inductive-exper- imental method of Aristoteles, and the specifically juridical methods, covering one-dimensional normative positions; two-dimensional, including political science and sociological contributions; three-dimensional, adding axiological and philosophical methods; and multi-dimensional, incorporating anthropological, social, cultural, and ethical contributions. We also examine the realist currents, so necessary to explain our situations, with the distance between formal and real constitutions, resulting from insufficient application of the norms. 41 See Antonio María Hernández, Daniel Zovatto & Manuel Mora y Araujo, “Encuesta de cultura constitucional. Argentina: una sociedad anómica”, Aso- ciación Argentina de Derecho Constitucional, UNAM e IDEA Internacional, Méjico, 2005, and Antonio María Hernández, Daniel Zovatto & Eduardo Fi- danza, “Segunda Encuesta de cultura constitucional. Argentina: una sociedad anómica”, Eudeba, Buenos Aires, 2016. There we discuss the concepts of constitutional culture and of anomie, in an interdisciplinary analysis of surveys carried out in Argentina in 2004 and 2014, in the context of a regional study that also involved similar polls in Mexico, Bolivia and Costa Rica. This issue is of great importance within constitutional theory, and especially relevant for our

27 In the comparison of both federalisms, and in a more extended form in Chap. II devoted to Argentina and the United States, we first analyze the historical, structural and juridical aspects of the respective federations; in second place, the functional aspects, through the role of the respective Supreme Courts of Justice, the cultures of the Constitution and of legality, the political parties, intergovernmental relations, fiscal federalism and the asymmetries; and in third place, aspects linked with State and Provincial Law and Municipal Law.42 These different aspects enable us to understand the structure and functioning of federations, to mark the similarities and differences as rigorously as possible, in the complex context of a comparative study.

5. The risks and importance of comparative studies

Michel Rosenfeld43 warns that comparative law and comparative constitutional law in particular, raise some concerns and objections, the principal danger being that of using foreign material out of context, which is greater in the case of comparative constitutionalism, which is more affected by cultural differences. countries, marked by a weak culture of legality, as in the cases of Argentina and Mexico studied here. 42 We had our first comparative experience when taking part in the “Global Dia- logue on Federalism”, in volume 3 on the study of federations with presidential or parliamentary systems, which was coordinated by Kate Le Roy and Cheryl Saun- ders, in which we dealt with the chapter on Argentina. (“Legislative, Executive and Judicial Governance in Federal Countries”, Vol. 3, op. cit., Canada, 2006). 43 “Constitutional migration and the bounds of comparative analysis”, 58 NYU Ann. Surv. Am 67 (2001), p. 68. Michel Rosenfeld is Professor at the Benjamin N. Cardozo School of Law, New York and is a former President of the American Association of Constitutional Law and of the International As- sociation of Constitutional Law. He has an extensive intellectual production, particularly in this case his co-authorship of “Comparative Constitutionalism”, op. cit., with Norman Dorsen, András Sajó and Susanne Baer,

28 Nonetheless, he says44, the study of comparative constitutional law is necessary and unavoidable, because it is imposed by the process of constitutional migrations and the phenomenon of the progress of international law of human rights. There is importation and exportation of constitutional material and he gives the examples of the influence of the Constitution of the United States or of the Declaration of the Rights of Man in France in 1789 on a large number of countries, and more closely, of the Bill of Rights of Canada on the constitutions of South Africa, New Zealand and Hong Kong, and on the Basic Law of Israel.45 And concerning the rights recognized by the United Nations after the Second World War, he mentions the International Covenants on Civil and Poli- tical Rights and on Economic, Social and Cultural Rights, approved by a broad majority of countries, as well as the jurisprudence of international and regional courts on human rights, applying their respective Charters.46 Rosenfeld47 describes some criteria that should be respected in comparative analysis: firstly, the context of the respective countries should be taken into account to be able to identify the existing similarities and differences and convergences and divergences. Secondly, the analysis should evaluate the role that the transplanted law has in the adopting country, compared to what happened in the country of origin. Thirdly, comparative constitutionalism may throw light on concepts, doctrines, and practices, facilitating a better understanding of the legislation and national culture based on relevant foreign examples. And finally, in cases of divided jurisprudence, such as the American on the subject of homosexuality and affirmative action, it may still provide paths of argumentation centered on particular

44 Rosenfeld, ibid, pp. 69-70. 45 Rosenfeld, ibid, pp. 69-70. 46 Rosenfeld, ibid, pp. 69/70. 47 Rosenfeld, ibid, p. 75.

29 axes.48 We will return to this particularly important topic in the Final reflections in Chap. II. Federalism as a form of state and government is highly significant in world affairs, as we noted earlier. Comparative federalism studies are thus particularly relevant, as shown in the work of distinguished investigators such as Kenneth Wheare and Carl Friedrich, continued by Daniel Elazar, Ronald Watts, John Kin- caid and Cheryl Saunders, who have been presidents of the In- ternational Association of Centers for Federal Studies, founded in 1977, which itself has produced most significant contributions on the subject, such as the Global Dialogue on Federalism.49 We participated in this comparative study and we have tried to apply some of the methodology used in that research. An analysis of the countries of Latin America that were influenced by the first federalism, of America in Philadelphia in 1787, is highly relevant firstly for obvious historical reasons, and then for reasons deriving from the importance and utility of a comparative vision. It is also clearly important to compare the Latin American federalisms among themselves50. But there is no

48 The author then applies these criteria for the comparative analysis of two decisions of the Supreme Courts of Canada and South Africa, in “Regina v. Keeg- stra” on hate-speech and “State v. Solberg” on freedom of religion, respectively, which also consider US jurisprudence, rejecting it in the first case, and accepting it in the second (ibid, pp. 75 ff.) 49 A comparative analysis of federal countries in various aspects, historical, juridical, institutional, political, financial and local government. We should also note the work of the Forum of Federations of Canada, which also took in these projects and in the organization of the International Conferences on Federal- ism, from the first in 1999 in Mont Tremblant, in Switzerland. The Interna- tional Association of Centers for Federal Studies started with the participation of 10 Center of Studies. The first two Centers were that of Queen’s University of Canadá, in 1965 and that of Temple University of the United States in 1967. Currently the Association includes 25 Centers, one of which is the Institute of Federalism of the National Academy of Law and Social Sciences of Córdoba, which I have the honor to direct and which is unique in Latin America. 50 A comparative law study has recently been published of the federations of Argentina, Brazil, Mexico and Venezuela, by this author, Marcelo Figueiredo, Daniel Barceló and Allan Randolph Brewer Carías, respectively, entitled “Las

30 extensive bibliography that reflects the importance and need for these studies, as has been noted51. We hope that this book contri- butes to encouraging research and debate on the decentralization of power in Argentina and in Latin America, which is essential for the profound, democratic renewal of their political regimes.

tendencias del estado federal en América Latina”, with the coordination of Gi- orgia Pavani and Vanessa Suelt Cock, in the Revista General de Derecho Público Comparado, Nº 23, 2018, www.iustel.com. 51 Cf. Marcello Carmagnani, Coordinator, in the Introduction of the book “Federalismos latinoamericanos: México/Brasil/Argentina”, El Colegio de Mé- xico y Fondo de Cultura Económica, Méjico, 1993. p. 9. This important work was followed by others mentioned here, to which we add the following, from historical, economics and political sciences perspectives: Miguel Angel Asensio, “Dos federalismos en los extremos: Argentina y Canadá en el siglo XIX”, Insti- tuto Torcuato Di Tella y Siglo XXI Editora, Buenos Aires, 2010; Ezequiel Gallo, “El método comparativo en historia: Argentina y Australia (1850/1914), in the book by Gallo E., Fogarty J. & Diéguez H., “Argentina y Australia. Su desarrollo comparado”, Editorial del Instituto Di Tella, Buenos Aires, 1979; and “El federalismo argentino en perspectiva comparada”, Tulia G. Falleti, Lucas Gon- zález – Martín Lardone, Editores, Educc, Editorial de la Universidad Católica de Córdoba, Córdoba, 2012.

CHAPTER II COMPARATIVE CONSTITUTIONAL REFLECTIONS ON FEDERALISM IN ARGENTINA AND THE UNITED STATES

1. Introduction

This chapter is the result of research as a postdoctoral senior fellow at the Baldy Center for Law and Social Sciences, in the School of Law of the State University of New York at Buffalo, during the fall of 2017. The model of the original Argentine Constitution of 1853 was the Philadelphia Constitution of 1787. This chapter aims to analyze the main similarities and differences between the federalisms of the United States and Argentina, and to understand how, with a similar constitutional design, the results in the two countries are so different. This is a daunting challenge, because it implies an overarching analysis of substantial and complex material, with a vast doctrine and robust debate, especially in the United States. Part I compares the structure of both federations, analyzing the essential historical and federal aspects of both constitutions, noting their similarities and differences. Part II compares the functional aspects of both federations, the processes by which government decisions are made, as noted by Carl J. Friedrich1, including the roles of the Supreme Courts of

1 Carl J. Friedrich, Trends of federalism in theory and practice, The Pall Mall Press, London, 1968, p. 7, where this prominent Harvard professor writes that federalism is more a dynamic process than a stereotype or static model, since the play of centrifugal and centripetal forces within the state can vary its characteristics over time, toward centralization or decentralization, because it is a political reality in constant evolution.

33 Justice, the constitutional and legal culture, the political parties, and intergovernmental relations, fiscal aspects, and the asymmetries in both federations, with their similarities and differences. Part III compares state and provincial constitutional law and local government law in both federalisms, again with their similarities and differences. Finally, we posit some conclusions on the delicate problem of constitutional transplants, the importance of compliance with the constitution and the enforcement of laws, the essential role of institutions in relation to the progress of nations, the necessity of democratic popular education and the future of federalism, the importance of comparative studies and the values of federalism as a form of state and government. I am deeply grateful for this research residence in such a prestigious University, in an atmosphere of particular academic and human quality, which invites study and reflection on such important topics, and especially to Professor James Gardner, for his guidance and enriching discussions on North American federalism, to Errol Meidinger, Director of the Baldy Center and his staff, who enabled this postdoctoral research, and to Marcia Zu- brow of the Law School Library for her valuable support.

Part 1. Brief analysis of historical and federal aspects of the US and Argentine constitutions

1. The United States of America

1.1 The colonial period (1604-1776)

In 1604, the Virginia Company, with the authorization of the English King James I, made the first settlement in Jamestown. Two years later, he authorized another company, the Northern Virginia, to colonize the north area of the Hudson. That finally took place in 1620, with the arrival of the Pilgrims, and then, in

34 1624, the Dutch East India Company founded Fort Orange on the Hudson, separating Virginia from Northern Virginia, which was designated as New England. Thus began the creation of the 13 colonies as separate entities2. George L. Haskins wrote: “The conditions of settlement and of development within each colony meant that each evolved its own individual legal system, just as each evolved its individual social and political system. Geographical isolation, the date and character of the several settlements, the degree or absence of outside supervision or control - all had their effect in ultimately developing thirteen separate legal systems”.3 Discussing the birth of Anglo-American Law, Lawrence Friedman4 affirms: “English tradition was the basic stuff of American Law. But it evolved into something uniquely American, different in the various colonies but moving in parallel directions”. He adds that English Law – which was the law of the Royal Courts, sitting in London – was applied along with primarily local law and local customs, the result of different local traditions of the colonies, although English Law was more strongly standardized in the eighteenth century. As the author says: “Both colonial law and the law of the United States were subject to centrifugal and centripetal forces: forces that pulled jurisdictions apart; forces that pushed them together. The mother country, its agents, its superior legal culture – these acted centripetally, before independence. Geographical isolation, local politics, and the sovereignty (in law or fact) of colonies and states were centrifugal forces. One of the great, and constant, themes of American Law is the pushing and pulling of these forces: uniformity and diversity, in constant tension over time”. 5

2 See Malcolm M. Feeley and Edward Rubin, “Federalism - Political identity & tragic compromise”, The University of Michigan Press, Ch. 4, p. 97. 3 “Law and authority in early Massachusetts” (1966), p. 4 ff, quoted by Lawrence M. Friedman,”A History of American Law”, Touchstone, NY, 3rd Edition, 2005, p. 4. 4 Ibid., p. 7. 5 See Lawrence M. Friedman, “A History of American Law”, p. 5.

35 There were differences between the colonies due to climate, to structural issues between the “Crown”, “chartered” or “pro- prietorship” colonies, or ideological reasons such as puritanism in New England, William Penn’s Holy Experiment in Pennsylvania, or the proprietary adventure in the Maryland colonies. The skeleton of colonial law was the courts, following English law6 and in relation to the statutes and system of common law7. Virginia in the south and Massachusetts Bay in the north were the ones who exported statutes and laws to the other colonies, especially The Laws and Liberties of 1648 of Massachusetts.8 The most influential legal book of the eighteenth century was William Blackstone’s Commentaries on the Laws of England (1765-1769)9. The enactment of Colonial Charters should also be particularly noted in this period. These were significant antecedents of the future constitutions that the colonies established before the declaration of Independence in 1776, and especially later when they became States. Thus, constitutionalism developed gradually in the United States, through the practice of the written constitution based on the contractual idea, as Hans Kelsen explained: “Just as contracts of some importance are usually granted in solemn public deed, in the same way it was thought advisable to extend the constitutional “covenant” in a public document, with the signature of the legislators as contracting parties. The idea of a Constitutio- nal Act has remained until today.”10.

6 Ibid., pp. 7-22. 7 Ibid., pp.50-53. Alexander Hamilton commented on the common law system in the Federalist Nº 84. Hamilton, Madison, Jay, The Federalist Papers, ed. Clin- ton Rossiter, New York, Mentor, 1961. 8 Ibid., p. 59. 9 Ibid., p. 59. Also especially quoted by Alexander Hamilton in Federalist Nº 84, op.cit.. 10 Hans Kelsen, “Teoría General del Estado”, Mexico, National Editor, 1969, p. 331.

36 These antecedents would be deepened at the time of the struggle for independence of the colonies in relation to the English metropolis. The colonies met with their delegates in the First Continental Congress in Philadelphia in 1774, which discussed intolerable laws such as those imposing high taxes on the settlers, and passed a declaration of Rights and Grievances, in which they defended their right to self-government. This was rejected by the English Empire. Likewise, before the Declaration of Independence, some colonies adopted their own Constitutions, such as New Hampshire in January 1776, and also South Carolina, Virginia, and New Jersey11.

1.2 The Declaration of Independence and the Articles of Confederation

This is how one of the most important revolutions in history started12 which, together with the English Glorious Revolution of 1688 and the French revolution of 1789, constituted the immediate antecedents of constitutionalism in the world order. The initial and perennial objective of constitutionalism was common: to ensure natural human rights and to limit power by dividing it, as John Locke and Montesquieu had sustained. One of the Founding Fathers, John Adams, said: “Let us study the law of nature; search into the spirit of the British Constitution; read the histories of ancient ages; contemplate the great examples of Greece and Rome; set before us, the conduct of our own British ancestors, who have defended for us, the inherent rights of mankind, against foreign and domestic tyrants and usurpers”.13

11 See G. Alan Tarr, “Understanding State Constitutions”, Princeton Universi- ty Press, 1998, Ch. III, “Eighteenth-Century State Constitutionalism”, p. 60 ff. 12 See Gordon S. Wood, “Creation of the American Republic, 1776-1787”, 13 Sentinel [pseud.],”To the inhabitants of the city and county of New York”, April 13, 1776, “Dissertation”, Adams, ed., Works of John Adams, III, p. 462,

37 The Second Continental Congress, between 1775 and 1781, and already transformed into a governing assembly, adopted the most important decisions in the struggle for independence, such as the appointment of George Washington as military head, the De- claration of Independence itself in 1776 and the approval of the Ar- ticles of Confederation and Perpetual Union November 15, 1777. This Second Continental Congress recommended drafting constitutions aimed at organizing good governments for general happiness. In response, more of the 13 Colonies, now converted into States, adopted their own constitutions with solemn declarations of rights, including Pennsylvania, Delaware, Maryland, and Nor- th Carolina in 1776, New York, Georgia, and Vermont in 1777, Massachusetts in 1780 and New Hampshire in 1784. However, Connecticut (up to 1818) and Rhode Island (up to 1842) kept their Colonial Charters.14. The Constitution of Virginia is recognized as one of the most important landmarks of American constitutionalism, with its Bill of Rights drafted by George Mason with the participation of James Madison, influencing the later constitutions15. We highlight only the first two articles, which had a huge significance later in other bills of rights. Its first section established: “All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any contract deprive or rob their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and security.” And Section 2 declares: “All power is vested in, and consequently derived from, the people; that magistrates are their trus- tees and servants, and at all times accountable to them.”

cited by Gordon S. Wood, “Creation of the American Republic, 1776-1787”, The Whig Science of Politics, Part 1: “The Ideology of Revolution”, Ch. 1, p. 3. 14 See G. Alan Tarr, “Understanding State Constitutions”, Princeton University Press, 1998, Ch. III, “Eighteenth-Century State Constitutionalism”, pp. 61 ff. 15 See A.E. Dick Howard, “The road from Runnymede: Magna Carta and Con- stitutionalism in America”, Charlottesville, University of Virginia Press, 1968.

38 The Declaration of Independence of July 4, 1776, deserves special mention for its extraordinary importance in the history of constitutionalism, drafted by another of the Founding fathers, Thomas Jefferson. As well as the independence of the colonies from the English Empire, it declared, among other fundamental principles: “…that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness – That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed.” After the Declaration, and during the War of Independence (1775-1783), Congress enacted the Articles of Confederation and Perpetual Union in 1777, although they would only be fully implemented with the ratification of the last of the States in 1781. This established a legislative power in which each of the thirteen states had one vote, five executive departments, for War, Foreign Affairs, Admiralty, Finance, and the Postal Service, but without an effective executive branch or a common judicial authority. Each decision had to be approved by each of the states and it had no financial powers except in postal matters. Art. 2 said that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States, in Congress assembled.” It was an alliance or confederation of independent states16. Such a weak government and the severity of the circumstances forced the convening of a new Congress in Philadelphia, with the aim of revising these Articles of Confederation.

1.3 The Constitution of the United States of America Thus came the culminating moment of the enactment of the Constitution of the United States of America, in Philadelphia,

16 Lawrence M. Friedman, “A History of American Law,”, op.cit. p. 71; Robert A. Schapiro, “Polyphonic federalism”, The University of Chicago Press, Chicago and London, 2009, pp. 31-32; Malcolm Feeley and Edward Rubin, “Federalism”, op.cit. pp. 100-101; and David L. Shapiro, “Federalism.” A Dialogue “, North- western University Press, Evanston, Illinois, 1995, pp. 58-59.

39 September 17, 1787, which is now the oldest Constitution in force in the world and a document of extraordinary importance and influence in the history of world constitutionalism. Its example was followed by the French constitutions and then by many other countries. Its influence was very great in Latin America, and particularly in the federal countries such as Argentina, Brazil, Mexico, and Venezuela.17 That year produced the transition from a confederate form of state, fixed by the Articles of Confederation and Perpetual Union and which did not function properly18, toward the first federation, with a stronger federal government19. The written Constitution established for the first time a federal form of state, with a presidential-type republican government, with a clear division between the legislative, executive, and judicial powers, in addition to the supremacy of the Constitution. The Constitutional Convention was due to begin its activities on May 14, 1787, but in the absence of sufficient delegates of the states, it was only on May 25, with seven states represented, that deliberations began at the State House, with the unanimous appointment as General George Washington as its president20. In the course of the Convention, the Virginia Plan, presented on May 29 by Edmund Randolph, Governor of Virginia on behalf of his delegation – which was the largest – was decisive and, with amendments and some corrections, would eventually be the basis of the Constitution to be enacted. The various resolutions,

17 See Antonio María Hernández, Director, “Derecho Constitutional”, Tomo 1, Ch.. I, La Ley, Buenos Aires, 2012 and Antonio María Hernández, “Federalismo y Constitutionalismo Provincial”, Abeledo Perrot, Buenos Aires, 2009, Ch. I. 18 See the Hamilton analysis on the Articles of Confederation defects on Feder- alist Nº 21 y Nº 22, The Federalist Papers, op. cit. 19 See Hamilton, Federalist Nº 23, op. cit. 20 See Max Farrand, Professor of Yale, in his classic work “The Framing of the Constitution of the United States”, Yale University Press, New Haven and London, 1913.

40 essentially drafted by Madison, aimed at amending the Articles of Confederation, were named the Virginia Plan and began to be debated by the Convention. It presented a republican government, with the classic tripartite division of powers and a bicameral legislative branch, as well as a president who was to be elected by the legislative branch. A Review Committee was also to be created, composed of the Executive and several members of the Judicial branch, with a veto power over laws, although this could be annulled by the resolution of both Houses. The republican system was guaranteed in each of the states as well as their respective territories.21 At the time of the vote of the third resolution on the establishment of a national government consisting of the supreme legislative, executive, and judicial branches, the delegates for Vir- ginia, Pennsylvania, Massachusetts, Delaware, North Carolina, and South Carolina voted in favor, while those for Connecti- cut voted against, and the New York delegation was divided as Alexander Hamilton was in favor and Robert Yates objected. These differences over the terms “national” and “supreme”, and ultimately over a more or less strong federal government, already showed the two major blocs of the Convention, later called “federalists” and “anti-federalists”.22 Each of the proposals of the Virginia Plan was debated, and these met increasing opposition as the other delegates arrived, consolidating the contrary opinion of the states of New York, Con- necticut, New Jersey, Delaware, and Maryland. For this reason, on June 15, delegate Paterson presented the so-called New Jersey Plan to the Convention, which was supported by the delegates of these states. There were nine propositions for the federal government

21 See Farrand, op. cit., Ch. V “The Virginia Plan,” pp. 68 ff. 22 See Farrand, op. cit., p. 73. Some argue that Robert Yates, a lawyer representing New York, may have been the person who wrote under the pseudonym Bru- tus on behalf of the “anti-federalists.” When Lansing, the third delegate of that State, arrived, he joined Yates in his positions, leaving Hamilton in the minority.

41 insofar as this could affect the rights of States. Paterson, Lansing and Ellsworth defended this Plan in the discussions for the next three days and Madison, Wilson and Randolph opposed it in defense of the Virginia Plan.23 In the June 19 vote, the Virginia Plan was approved by the delegates of seven states, while the New Jer- sey Plan was supported by the states of New York, New Jersey, Delaware with a split vote from Maryland. The Convention subsequently began detailed discussion of the resolutions of the Virginia Plan, which would lead to the so-called Great Compromise, which would be the main agreement between the large and small states, reached through equal representation in the Senate. To reach this agreement, the work of the Compromise Committee of Gerry, Ellsworth, Yates, Paterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge and Baldwin was crucial, and they presented their report on July 5, based on two points: 1. In the lower Chamber, each State would have one representative every 40,000 inhabitants, with three-fifths of the slaves being counted among the population, and with the power to set taxes, which could not be amended by the upper House. 2. In the upper House, each state would have an equal vote. The main drivers of the latter were the Connecticut delegates, who presented their Proposal on behalf of the State, based on Ellsworth’s presentation24. After some amendments, the Great Compromise was voted on July 16, which for Farrand was the most important of the Convention and the Constitution.25 The agreement was reached despite differences between the South and

23 See Farrand, op. cit., p. 86. In the course of the debate, Hamilton spoke in favor of the Virginia Plan and of the strongest possible federal government, indicating that the best existing government was that of Britain. As the author notes, that did not mean that he supported the idea of a form of monarchical government (p. 87-88). 24 See Farrand, op. cit., Ch. VII “The Great Compromise,” p. 106. Also called the Connecticut Compromise. 25 See Farrand, op. cit., Ch. VII “The Great Compromise,” pp. 91 ff.

42 the North, between the Atlantic states and future states in the West and between the largest and the smallest.26 After the Great Compromise, they continued discussing the proposals of the Virginia Plan, with amendments that definitively shaped the constitutional text and with very important analyses of the articles relating to the Executive and Judicial Powers. Thus, the initial 15 propositions became 23. To draft the first text of the Constitution on the basis of the agreements reached, the Convention on 26 July named a Committee of Detail, with 5 members: John Rutledge (South Carolina), Edmund Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth (Connecticut) and James Wil- son (Pennsylvania), who had to present their work on August 6.27 This document was the basis for the Convention’s deliberations between the latter date and September 10.28 Madison’s annotations reveal the quality and intensity of the discussions, with the participation of a large number of delegates. For example, with regard to federal justice’s attribution to overturn laws in violation of the Constitution, Wilson, Madison, Gouverneur Morris, King, Gerry, Mason, and Luther Martin spoke repea- tedly in favor.29 The manner of election of the President of the Republic was also much debated.30 One of the last propositions was to include a Bill of Rights, as proposed by Mason and Gerry, but this was rejected on the grounds that these were established

26 See Farrand, op. cit., pp. 108-112. The author argues that the debate on slavery in 1787 did not have the significance it would reach later. For an analysis of this important topic at that time, see Joseph J. Ellis, “The Founding Brothers”, Vintage Books, A Division of Random House, Inc., New York, 2002, Ch. 3 “The silence,” pp. 81 ff. 27 See Max Farrand, “The Framing of the Constitution of the United States of America,” Chapter IX, “The Committee of Detail,” pp. 124 ff. 28 See Farrand, op. cit., Ch. X “Details and compromises,” pp. 134 ff. 29 See Farrand, op. cit., p. 157. 30 See Farrand, op. cit., Ch. XI, pp. 160 ff.

43 in the constitutions of the states and would not be repealed by the Constitution31. For the preparation of the text to be sanctioned by the Convention, a five-memberCommittee of Style and Revision was appointed, consisting of James Madison (Virginia), Alexander Hamilton (New York), Gouverneur Morris (Pennsylvania), Ru- fus King (Massachusetts) and William Samuel Johnson (Con- necticut), with Morris responsible for the final drafting of the text, which was presented on September 13. Its analysis, adding more corrections, extended until September 15, which was the last day of debate32. On September 17, the last meeting was held for the signing of the Constitution by the delegates present, who did so apart from Elbridge Gerry of Massachusetts, and George Mason and Edmund Randolph of Virginia. Thirty-nine Convention delegates representing twelve States, with the absence of Rhode Island, signed the Constitution. Finally, the Convention was closed with a final speech by Benjamin Franklin33. The most influential members in drafting the constitutional text, according to Max Farrand34 were James Madison of Virgi- nia, considered the Father of the Constitution35, James Wilson

31 See Farrand, op. cit., pp. 185-6. 32 It was in those days that the famous first phrase of the Preamble was incorporated: “We, the People of the United States...”, from a proposal by the Commit- tee of Style. See Farrand, op. cit., pp. 190-1. 33 See Farrand, op. cit., pp. 192-5. The three delegates who did not sign did so because no Bill of Rights was incorporated in the Constitution. That was also a special claim of the “anti-federalists”. This also explains why the first ten Amend- ments, incorporated in 1791, were aimed at enshrining this fundamental matter. 34 See Farrand, op. cit. Ch. XIII “The Completed Constitution,” pp. 196 ff. It should be borne in mind that two of the most important Founding Fathers of the United States, Thomas Jefferson (Virginia) and John Adams (Massachus- sets), were not part of the Convention, because they were in Europe on diplomatic missions in France and England, respectively. 35 As this author and in general American doctrine call him. His great training in political, constitutional and historical matters enabled him to lead the process

44 of Pennsylvania, a member of the Committee of Detail36, Geor- ge Washington, for his great prestige37, and Gouverneur Morris of Pennsylvania, who was the main writer in the Committee of Style38, in that order. Benjamin Franklin of Pennsylvania, however, although he also had enormous prestige, considered the American Socrates, was not as influential, particularly because of his advanced age of 81. Farrand also believes that, despite his great capacity, Alexander Hamilton did not have the degree of influence of the first four, for several reasons, such as being in a minority among the three delegates of the State of New York, in addition to his absence in some debates. of sanctioning the Constitution, despite his age of 36. He was a Virginian like Washington and Jefferson. Farrand says that while he was not a great speaker like other Convention delegates, he was a very good presenter with special capacity for arguing and convincing, as well as recognized political skill. He sat in front of the president and from there – with the delegates on his right and left – he took notes of the deliberations, which were secret, and so his task is fundamental to knowing what happened in the Convention. To this he later added his participation as co-author of the Federalist Papers, an essential work for constitutional interpretation, and so he has been rightly given the title of the most important of the Constitutional convention delegates. See Farrand, op. cit., pp. 17, 60, 196 and 197. He was also one of the Founding Fathers, served as a Member of the House of Representatives during Washington’s Presidency, was Secretary of State to President Jefferson and, finally, President of the United States. 36 He collaborated very closely with Madison on the constitutional work, demonstrating great oratory capacity and profound legal training. He was also one of the most prominent lawyers of the time, trained in Scotland, from where he arrived at the age of 23, participating in the Independence process. For this reason he was called “James the Caledonian”. 37 Although he did not speak during the deliberations, except at the closing of the Convention, he voted with the Virginia delegation that he led and always supported the views of James Madison, the most important and decisive of the delegates, who also kept notes of what happened in the Convention, which deliberated se- cretly. See Farrand, op. cit. Ch. IV, “The Organization of the Convention,” p. 60 38 Considered one of the brightest delegates, he chaired the Committee of Style. Perhaps the most recognized lawyer in those times, with great oratorical capacity. See Farrand, op. cit., Ch. XII: “Finishing the work,” pp. 176 ff.

45 Farrand also mentions as among the most prominent delegates, Rufus King (Massachusetts), General Charles Pinckney (South Carolina), John Rutledge (South Carolina), Nathaniel Gorham (Massachusetts), and – although they did not sign the final text - Edmund Randolph (Virginia) and George Mason (Virginia)39. He also particularly highlights other delegates who opposed the idea of a strong federal government, but who influenced the Constitution, such as William Paterson (New Jersey), John Dickinson (Delaware), Elbridge Gerry (Massachusetts), Luther Martin (Maryland), and the three Connecticut delegates: William Samuel Johnson, Oliver Ellsworth, and Roger Sherman.40 Fifty-five delegates participated in the deliberations. One sixth of them were born abroad. Most had participated in the independence process and held public office in Congress and in the states. It was a remarkable conjunction of representatives, who were able to fulfill their historic and honorable mission of giving a Constitution to the United States, with a high level of debate.41 Although Hamilton’s influence42 in the Convention was not the most important, as remarked, his significance would later

39 See Farrand, op. cit., p. 199. 40 See Farrand, op. cit., p. 200. 41 Thomas Jefferson, who was on diplomatic duties in France, felt that it was really “an assembly of demi-gods”. See Farrand, op. cit., pp. 39-40. 42 Hamilton was one of the youngest members of the Convention, at only 30 years old. He stood out in the Revolutionary War, fighting alongside Gener- al Washington and reaching the rank of General. He was later Secretary of the Treasury during Washington’s presidency, and was considered one of the most important men of thought and action. He was also one of the Founding Fathers of the United States. See Joseph J. Ellis, “The Founding Brothers,” op. cit., Ch. 1, “The Duel,” which discusses his death as a martyr in the duel with Colonel Aaron Burr, in 1804. and Ch. II, “The Dinner,” about the dinner organized in mid-June 1790 by Washington’s Secretary of State, Thomas Jefferson between James Madison, at that time a member of the House of Representatives, and Alexander Hamilton, Secretary of the Treasury, who had opposing positions on the financial plan for recovering public credit that the latter had presented. Al- though they had shared positions in the Philadelphia Convention and then as

46 be seen, as he and James Madison were the main authors of the Federalist Papers, together with John Jay. This work was an explanation of the Constitution adopted, to achieve its ratification43, and became an unequalled source of interpretation of the Phila- delphia Constitution. The Federalist Papers constituted the first presentation on federalism as a new form of government and state, with a clear liberal conception of the division and limitation of powers within the state and the affirmation of citizens’ rights. The influence of this work has been fundamental in the history of political and constitutional thought, and in Argentina too, through Juan Bautista Alberdi44 and the Constitutional delegates of 185345, who bequeathed us the historical Constitution, following many of its teachings. The work co-authors of the Federalist Papers, there were later differences between the two, including in constitutional and federal matters. 43 The book originated from the debate between “federalists” and “antifederalists” and consisted of a compilation of 77 Articles published in three New York city journals between October 1787 and May 1788, by Alexander Hamil- ton, James Madison and John Jay, under the name of Publius, for the purpose of achieving ratifIcation of the Constitution. This required the affirmative vote of two thirds of the states of the Union, and Governor George Clinton of the State of New York was “antifederalist” and opposed ratification. So Al- exander Hamilton, who had represented that state in the Convention, invited Madison, who represented Virginia, and John Jay, to participate in the work. Eight more articles, completing 85, appeared when the work was published in two volumes in 1788. 44 Referred to as the father of Argentine public law and author of the book Bas- es y puntos de partida para la organización política de la República Argentina, derivadas de la ley que preside el desarrollo de la civilización de la América del Sur [Bases and points of departure for the political organization of the Argentine Republic, derived from the law that presides the development of the civilization of South America], published in Valparaiso, Chile, in 1852, which served as antecedent to the Framers of the Argentine Constitution in 1853. See Antonio María Hernández, “Federalismo y Constitucionalismo Provincial”, Op.Cit., Ch. 2. 45 The most prominent members of the Drafting Committee were Jose Ben- jamin Gorostiaga and Juan María Gutierrez, in that order. See Antonio María Hernández, ibid, Ch. 2.

47 was also known by other forerunners of federal ideas, such as José Gervasio Artigas46 and Manuel Dorrego.47 “Federalism”48 referred to the new form of government and state created, while the word “confederation” began to be used to designate the old form of organization, the alliance of states, as established by the Articles of Confederation of 1777. The Constitution of Philadelphia establishes in its Preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”. Those first words, We“ the people of the United States”, have caused intense debate about whether the Constitution was the result of the people’s decision or a compact among States at the Con- vention to create a national government, and whether the States preceded the creation of the Federal Government or vice versa49. This debate has also taken place in Argentina. The Preamble to the Na- tional Constitution says, “We, the representatives of the people of the Argentine Nation, gathered in General Constituent assembly by the will and election of the provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national Union,

46 Considered the Father of the Nation in Uruguay, he had an enormous influence in the United Provinces of Río de la Plata in the revolutionary era of the nineteenth century, particularly with his Instructions to the members of the Eastern Band in the Assembly of the United Provinces of Rio de la Plata, in 1813, where he proposed a form of confederal state. 47 He was Governor of the Province of Buenos Aires in 1827 and 1828 and one of the strongest defenders of the federal cause in the fight between Unitarians and Federals. 48 As we saw in Chapter 1. 49 See David L. Shapiro, op. cit., Ch. 3, p.58 and ffs.; Malcolm Feeley and Ed- ward Rubin, op. cit., pp. 104-105 and Michael W. McConnell, “Federalism: Evaluating the Founders’ Design“, 54 The University of Chicago Law Review, 1987, pp. 1489 and ffs. (1484-1512).

48 guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty for ourselves, for our posterity, and for all men of the world who wish to dwell on Argentine soil, invoking the protection of God, source of all reason and justice, Do ordain, decree, and establish this Constitution for the Argentine Nation”. The Nation began to be formed with the 1810 May Revo- lution and the Declaration of Independence of 1816, while the provinces were created between 1815 and 1834, and it was those provinces that delegated powers to create the federal government, through the enactment of the National Constitution of 1853. Thus, within comparative federalism it is possible to distinguish between “integrative” and “devolutive” federalisms by their form of creation: the former is when the states or provinces delegate part of their sovereignty to create the federal government, and “devolution” is when the central power creates the states and governments that make up the federation. From that perspective, both the USA and Argentina are considered integrative federalisms50. We have analyzed the complex topic of the sovereignty and autonomy of the provinces, in addition to the debates on the location of sovereignty in a federal state, where we share the arguments of Madison and Hamilton presented in the Federalist Papers51. The following articles of the Philadelphia Constitution of 1787 are those most linked with federalism and many were direct sources of the text of the Argentine National Constitution of 185352.

50 See Antonio María Hernández, “Federalismo y Constitucionalismo Provin- cial”, Op. cit., Ch. I, “Los sistemas políticos federales”, Clasificación. 51 See Antonio María Hernández, Ibid., Op. cit., Ch. I, “Sistemas políticos federales” and “Soberarnía y autonomía provinciales en la doctrina y jurisprudencia de la Corte Suprema de Juticia de la Nación”, in “Cuestiones Constitucionales”, Revista Mexicana de Derecho Constitucional Nº 31, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de Mexico, Mexico, 2015. 52 For a full analysis of the influence of the American Constitution on the Ar- gentine Constitutional, as there are other norms apart from federalism influenced by the former, see Ricardo Ramírez Calvo and Manuel García Mansilla,

49 Article I on Legislative Power, Section 1 states: “All legislative powers herein granted shall be vested in a Congress of the United Sta- tes, which shall consist of a Senate and House of Representatives”. This article is the antecedent of the current53 Art. 44 of the Argentine National Constitution. Section 2, regarding the House of Representatives, contains these Clauses: “1: The House of Representatives shall be composed of Mem- bers chosen every second Year by the People of the several States, and the electors in each State shall have the Qualifications requisite for electors of the most numerous Branch of the State Legislature.” This is the antecedent of the current Art. 45 of the Argenti- ne Constitution. “2: No Person shall be a Representative who shall not have attained to the Age of twenty-five years, and been seven years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen”. This is the antecedent of the current Art. 48 of the Argenti- ne Constitution. Section 3, on the Senate, contains these Clauses: “1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”. This is the antecedent of the current Art. 54 of the Argenti- ne Constitution.

“Las fuentes de la Constittución Nacional y la formación del derecho públi- co argentino”, Lexis Nexis, Buenos Aires, 2006; Alberto B. Bianchi, “Histo- ria Constitucional de los Estados Unidos”, Cathedra Juridica, Buenos Aires, 2008 and Antonio María Hernández, “La influencia de la Constitución de los Estados Unidos sobre el federalismo argentino y de la Constitución Española de 1978 en el constitucionalismo provincial”, in the book “Derecho Federal, sus implicaciones prácticas“, directed by Walter Carnota, ed. Grun, Buenos Aires, 2005. 53 As indicated, because the constitutional reforms changed the numbering of the articles, and their wording in some cases.

50 “3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen”. This is the antecedent of the current Art. 55 of the Argenti- ne Constitution. On the Vice-President of the Republic: “4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” This is the antecedent of the current Art. 57 of the Argenti- ne Constitution. In relation to Impeachments: “6: The Senate shall have the sole Power to try all Impea- chments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Mem- bers present.” This is the antecedent of the current Art. 59 of the Argenti- ne Constitution. “7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”. This is the antecedent of the current Art. 60 of the Argenti- ne Constitution. Section 4, on the election of legislators, contains this Clause: “1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of Choo- sing senators.”

51 This is also a source, but there are notable differences with the Argentine Constitution, as we will see later. Section 5, on the working of the Congress, contains the following Clauses: 1. “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.” This is the source of the current Art. 64 of the Argentine Constitution. 2. “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Con- currence of two-thirds, expel a Member.” This is the source of the current Art. 66 of the Argentine Constitution. 4. “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” This is the antecedent of Art. 65 of the current Argentine Constitution. Section 6 on emoluments, immunities and incompatibilities of legislators contains these Clauses: 1. “The Senators and Representatives shall receive a Com- pensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

52 This is the antecedent of Arts. 74, 68 and 69 of the current Argentine Constitution. 2. “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” This is the antecedent of Art. 72, but there are some differences between the constitutional provisions. Section 7, about bills, contains these Clauses: “1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” This is the antecedent of the current Art. 52 of the Argenti- ne Constitution. “2: Every Bill which shall have passed the House of Repre- sentatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Ob- jections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

53 This is antecedent to the current Arts. 78, 80 and 83 of the Argentine Constitution, although in legislative procedure, amendments were incorporated in the Constitutional Reform of 1994. Section 8, on the powers of the Congress, contains these Clauses: “1: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” This is antecedent to the current Art. 75 Secs. 1 and 2 of the Argentine Constitution, but the Reform of 1994 added amendments, especially in the system of tax-sharing. It is also antecedent to the current Secs. 7 and 18 of the same Article. 2. “To borrow money on the credit of the United States;” This is antecedent to the current Art. 75 Sec. 4 of the Argen- tine Constitution. “3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;” This is antecedent to the current Art. 75 Sec. 13 of the Ar- gentine Constitution. 4. “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;” This is antecedent to the current Art. 75 Sec. 12 of the Ar- gentine Constitution. 5. “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;” This is antecedent to the current Art. 75 Sec. 11 of the Ar- gentine Constitution. 6. “To provide for the Punishment of counterfeiting the Se- curities and current Coin of the United States;” This is antecedent to the current Art. 75 Sec. 12 of the Ar- gentine Constitution.

54 7. “To establish Post Offices and Post Roads;” This is antecedent to the current Art. 75 Sec. 14 of the Ar- gentine Constitution. 9. “To constitute Tribunals inferior to the supreme Court; This is antecedent to the current Art. 75 Sec. 20 of the Ar- gentine Constitution. 10 “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;” This is antecedent to the current Art. 75 Sec. 26, which was also amended in constitutional reform of 1994. 11. “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; This is antecedent to the current Art. 75 Sec. 25 of the Ar- gentine Constitution. 12. “To raise and support Armies, …” This is antecedent to the current Art. 75 Sec. 27 of the Ar- gentine Constitution. 13. “To provide and maintain a Navy;” This is antecedent to the current Art. 75 Sec. 27 of the Ar- gentine Constitution. 14, “To make Rules for the Government and Regulation of the land and naval Forces;” This is antecedent to the current Art. 75 Sec. 27 of the Ar- gentine Constitution. 15. “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” This was antecedent to Art. 64 Sec. 24 of the historical 1853 Constitution, which was suppressed in the constitutional reform of 1994. 16. “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the

55 Authority of training the Militia according to the discipline prescribed by Congress;” This was antecedent to Art. 64 Sec. 24 of the historical 1853 Constitution, which was suppressed in the constitutional reform of 1994. 17: “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings;” This is antecedent to the current Arts. 3 and 75 Sec. 30 of the Argentine Constitution. “18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof. “ This is antecedent to the current Art. 75 Sec. 32 of the Ar- gentine Constitution. Section 9, regarding fiscal powers, contains the following Clauses: 4: “No Tax or Duty shall be laid on articles exported from any State”. This is markedly different from the current Art. 75 Sec. 1 of the Argentine Constitution, which establishes the exclusive possibility of the federal government collecting duties on provincial exports. 6: “No Preference shall be given by any Regulation of Com- merce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”.

56 This is antecedent to Argentina’s fiscal and interprovincial trade system, current Articles 9, 10, 11 and especially 12 of the Constitution. In Section 10, relating to states prohibitions, we find the following Clauses: 1: “No State shall enter into any Treaty, Alliance, or Confe- deration; grant Letters of Marque and reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” This is antecedent to the current Art. 126 of the Argentine Constitution, although it should be emphasized that only treaties of a political nature are prohibited between the Provinces. 2: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.” This is antecedent to the current Arts. 4 and 75 Sec. 1 of the Argentine Constitution, though there are differences as we have noted above. 3: “No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay”. This is antecedent to the current Art. 126 of the Argentine Constitution. Article II on the Executive Power, states, in Section 1 on Terms of office and election by Electoral College, in these Clauses:

57 1: “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same term, be elected, as follows.” This is antecedent to the current Arts. 87 and 90 of the Ar- gentine Constitution. 2: “Each State shall appoint, in such Manner as the Legisla- ture thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United -Sta tes, shall be appointed an Elector. “ This clause, with the text modified by Amendment XII, as we will later, was also antecedent to Articles 78 to 82 of the historical Constitution of 1853, which also set up an Electoral College, which was maintained until the Reform of 1994. The Reform adopted a regime of direct vote with two rounds for electing the President and Vice-President of the Republic in Arts. 94 to 98 of the current Constitution. In Section 2, about powers, related to federalism, Clause 2, provides: “He [the President] shall have power, by and with the Ad- vice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United Sta- tes, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”. This is antecedent to the current Arts. 99 Secs. 4 and 7 of the Argentine Constitution, although in appointing lower magistrates

58 of the Judicial branch, the participation of the Magistrate’s Coun- cil is also required since the 1994 constitutional reform. In Art. III on the Judicial Branch, Sec. 1 establishes that: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Con- tinuance in Office.” This is antecedent to the current Arts. 108 and 110 of the Argentine Constitution. Section 2, on powers, contains these clauses: 1: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Mi- nisters and Consuls; to all Cases of admiralty and maritime Ju- risdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States, between Citizens of the same State claiming Lands under grants of different States, and between a State, or the citizens thereof, and foreign States, Citizens or Subjects”. This is antecedent to the current Art. 116 of the Argentine Constitution. 2: “In all Cases affecting Ambassadors, other public Minis- ters and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”. This is antecedent to the current art. 117 of the Argentine Constitution.

59 In Art. IV about States’ Relationships, Sec. 1 establishes: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state. And the Congress may by General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof”. This is antecedent to the current Art. 7 of the Argentine Constitution. In Sec. 2, Clauses 1 and 2 state: 1: “The Citizens of each State shall be entitled to all Privileg- es and Immunities of Citizens in the several States”. This is antecedent to the current Art. 8 of the Argentine Constitution. 2: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime”. This is antecedent to the current Art. 8 of the Argentine Constitution. Section 3, Clauses 1 and 2 on the creation of new States and the federal territories, declare: 1: “New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress”. This is antecedent to the current Art. 13 of the Argentine Constitution. 2: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this

60 Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State”. This was antecedent to Art. 64. Sec. 14, on the attributions of Congress, in the 1853 Constitution, but was repealed by the Constitutional reform of 1994, because the former national territories were converted into provinces. Section 4, on the Federal guarantee of the republican form of government, states: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence”. This is antecedent to the current Arts. 5 and 6 of the Argen- tine Constitution. Article V, about the mode of reforming and amending the Constitution, states: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitu- tion, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amend- ments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conven- tions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thou- sand eight hundred and eight shall in any Manner affect the first and fourth clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”. These procedures for reform or amendment have also been sources of federal as well as provincial constitutionalism. In Ar- gentina, the current Art. 30 allows only the system of Constituent

61 Convention for constitutional reform, elected by the people, after the declaration of the need for the reform by 2/3 of the votes of each of the Chambers of Congress. It does not permit an amendments system, which is, however, permitted in several provincial constitutions. The federal system does not prescribe ratification of the reform by the provinces, which is another difference from the American model. Art. VI on Constitutional Supremacy contains Clauses 2 and 3: 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Constitution of the Land; and the judges in every Sta- te shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”. This is antecedent to the current Art. 31 of the Argentine Constitution. 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United states and of the several States, shall be bound by Oath or Affirmation, to support this Constitu- tion; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”. This obligation to swear to the various high offices of the State is also antecedent to the Argentine Constitution, but different from the text of 1853 which established a system of freedom of religion, but without equality of religions, due to the obligation to support the Roman Catholic Church in Art. 2, in addition to the requirement to belong to the Church to be President of the Republic, among other aspects. The Constitutional Reform of 1994 repealed this last obligation, as well as other modifications such as the elimination of the patronato, through reforms of the powers of the legislative and executive branches. Here the two Constitutions have clearly different positions on the relation of Church and State.

62 Finally, Art. VII on Constitutional ratification provided that: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”. As mentioned in Art. 5, there is no ratification of enactments by the Constitutional Convention in Argentina, according to the system established by the current Art. 30 of the National Constitution. The Constitution of the United States was enacted with the “unanimous consent of the States present”, as written in the Minutes, on September 17th, 1787, with the signature of 39 delegates of the Constitutional Convention, representing 12 States, without the presence of the State of Rhode Island, at the Pennsyl- vania State House in the city of Philadelphia54.

1.4 The thinking of Madison and Hamilton on federalism and constitutional design55

James Gardner notes that the fundamental principle in this matter was Madison’s statement in the Federalist Nº 4756: “The accumulation of all powers, legislative, executive and judiciary, in

54 Three delegates were also present who refused to sign the new Constitution: George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachu- setts. William Jackson also signed as secretary of the presidency of the Convention. 55 We must limit ourselves to highlighting only part of the thought of these notable thinkers, as seen in the Federalist papers. It is a very complex and difficult task. Larry Kramer has written that it can take a lifetime to study Madison and his interpreters, and moreover, the Framers did not always express the same positions in the Convention debates, in the Federalist papers or in their subsequent declarations. One example is Madison’s position on state rights in the claims of Virginia and Kentucky against the Alien and Sedition Act of 1798, where he shared Jefferson’s views against Hamilton. See Larry Kramer; Understand- ing Federalism, 47 Vand. L. Rev. 1485-1562, p. 1485 and “Framing Visions”, p. 1519. The debate on this topic is very robust: see Michael W. McConnell, “Federalism: Evaluating the Founders’ Design”, the University of Chicago Law Review, 1987, pp. 1484-1512. 56 James Madison, “The Federalist”, Nº. 47, p. 301, in Madison James, Alex- ander Hamilton and John Jay, “The Federalist Papers”, 1787-1788, By Clinton Rossiter, New York, Mentor, 1961.

63 the same hands, ... may justly be pronounced the very definition of tyranny”. And Gardner adds: “To protect Liberty, power must therefore be divided. Federalism serves this principle of American constitutional design by parceling out government powers among different levels of government, and by giving each level of government, state and national, substantial powers sufficient to allow each to monitor and check the abuses of the other.”57 We agree with that opinion. The extraordinary contribution of Madison, developed especially in the Federalist Nº 10 and Nº 51, was the constitutional design of the federal republic, limiting power not only horizontally, between legislative, executive, and judicial branches, but also vertically, between the federal government and states. The essential republican idea of limiting power58 was based on a characteristic of human nature that had to be controlled: “Ambition”, as Madison put it in Federalist Nº 51, “must be made to counteract ambition.”59 And he adds later “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.” A similar concept was expressed by Hamilton in Federalist Nº 6: “… men are ambitious, vengeful and rapacious.”60 Madison in Federalist Nº 51 also stated the other major objective of the compound federal republic: ensuring the rights of the people. Noting the two features of the United States federal system, he wrote: “In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound

57 James Gardner, “Interpreting State Constitutions”, The University of Chi- cago Press, Chicago-London, 2005, p. 81. 58 Following the ideas of John Locke and Montesquieu, which had a particular influence on Madison’s and Hamilton’s thought. 59 Madison, “The Federalist”, Nº 51, p. 322, quoted by Gardner, ibid. 60 Hamilton, “The Federalist”, Nº 6, p. 19, “The Federalist Papers”, Op. cit.

64 republic of America, the power surrendered by the people is first divided between two distinct governments, and then the por- tion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”61 On the second feature, he wrote: “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” Deepening his analysis to secure the rights of the people and avoid the dangers of factions and the oppression of the weak by those who are stronger, he declared “Justice is the end of government. It is the end of civil society.” Madison discussed the relations between republic and federalism, because the solution to the problem of factionalism involved the creation of a federal republic, the size of which overcame the drawbacks presented by governments of smaller territories. He wrote in Federalist Nº 10: “The latent causes of faction are thus sown in the nature of man… So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property.” He saw democracy and the federal republic as the way to resolve the problems of sectarian and factious spirits. He said: “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly,

61 Madison, “The Federalist”, Nº 51, p. 323, quoted by Gardner, op. cit., p. 82.

65 the greater number of citizens, and greater sphere of country, over which the latter may be extended.” And later he declared that the increasing variety of parties in the Union would mean a decrease in the dangers of factions, concluding, “In the extent and proper structure of the Union, therefore, we behold the republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.62 Concerning the republican idea and its principles, Madi- son later declared in Federalist No. 37: “The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands.” Hamilton, in turn, in Federalist Nº 9 defined the new creation of the federal state as: “… a kind of assemblage of societies that constitute a new one ... The proposed Constitution, so far from implying the abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.”63

62 Madison, “The Federalist”, Nº 10, p. 41, The Federalist, op. cit. 63 Hamilton, “The Federalist”, Nº 9, p. 35. We have pointed to the close correlation between republic and federalism, as both are aimed at limiting power to ensure human rights. See Antonio María Hernández, “Legislative, executive and Judicial Power in federal countries”, in “Global Dialogue on Federalism”, Vol- ume 3, edited by Katy Le Roy and Cheryl Saunders, McGill-Queen’s University Press, Chapter on Argentina, Canada, 2006. For an analysis of this topic from the perspective of the thought of John Rawls, see Mark Tushnet, “Federalist and Liberalism”, 4 Cardozo J. Int · L & Comp. L. 329, 344 (1996).

66 Hamilton also defended the idea of limiting the powers of the federal government even by local governments, in Federalist Nº 32, declaring that: “... a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a Power “.64 And as for the role of states in defending citizens’ rights, Hamilton asserted in Federalist No. 26: “The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”65 Madison’s thinking is very clear in Federalist Nº 45 on the fundamental issue of the division of powers in the new state, in which the federal government has only delegated and enumerated powers, while the residual powers correspond to the states. Ma- dison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”.66 On the decisive aspect of the division of powers and sovereignty between the Federal government and the states, Hamilton wrote

64 Hamilton, “The Federalist”, Nº 32, p. 197, Ob Ct. 65 Hamilton, “The Federalist”, Nº 26, op. cit., p. 172. 66 Madison, “The Federalist”, Nº 45, op. cit.

67 in Federalist Nº 32, analyzing tax powers: “But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”67 And after referring to the exclusive delegation of powers in the Federal government, he declares in Federalist Nº 32 on concurrent faculties: “The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution”68 The value that Madison in Federalist Nº 37 assigned to the transaction and the agreements between the large and small states for the enactment of the Constitution has great significance. As he wrote: “The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected.”69 Madison’s analysis in Federalist Nº 39 of the “mixed” character of the Constitution as a combination of “national” and “federal” should also be noted. He said that the House of Representatives is national by its origin in the form of election of its members, whereas the Senate is federal, and that the executive power is mixed in character. As to the form of ratification of the Constitution by the States, he says that it is federal. He concludes that: “The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its founda- tion it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not

67 Hamilton, “The Federalist”, Nº 32, op. cit. 68 Hamilton, “The Federalist”, Nº 32. 69 Madison, “The Federalist”, Nº 37.

68 federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”70 Madison’s thinking and constitutional design in Federalist Nº 47 on the republican system and the structure of government are particularly important, where he analyzes Montesquieu’s ideas and the contents of the state constitutions; and in No. 48, where he considers the division and balance of powers. In regard to the Senate, Nos 62 to 6671, and Nos 67 to 77 on the President of the United States, are notable, in which Hamil- ton discusses the presidential system. Finally, the Federalist Nº 78 by Hamilton on the function of the judiciary is significant, where he proposes control of the constitutionality of the laws and de- fends the independence of the judges as an essential aspect of the republican system. This work is a fundamental source for the interpretation of the American Constitution and a milestone in the explanation of the principles of federalism and constitutionalism.

1.5 The amendments related to federalism

There are 27 amendments, of which the first 10 were approved in 1791 and were called the Bill of Rights. David L. Shapiro72 notes that the enactment of the Bill of Rights shortly after ratification of the Constitution was perhaps the main achievement of the antifederalists in their opposition to the Union. The extraordinary importance of the Bill of Rights of the American Constitution is undeniable, and its influence was notable in comparative law worldwide. Indeed, each of the first ten amendments was significant for the Argentine Constitution, but we want to concentrate on the norms most directly related with

70 Madison, “The Federalist”, Nº 39. 71 The Federalist Nº 62 and 63 are attributed to Madison or Hamilton, Nº 64 to Jay and Nº 65-67 to Hamilton. 72 David L. Shapiro, “Federalism.” A Dialogue, “, Op. cit., p. 62.

69 federalism, with their different historical contexts, and therefore we note the following amendments: The Tenth Amendment (1791) on Reserve powers: “The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. Shapiro 73 comments: “The Tenth Amendment, which may appear tautological when considered in isolation, serves to reiterate the structural significance of the states as political entities both in the Bill of Rights and in the Constitution itself.” The Eleventh Amendment (1795), on Suits Against States: In “Chisholm v. Georgia” in 179374, the Supreme Court of Justice ruled in favor of federal authority in a commercial dispute between two South Carolina citizens against the state of Geor- gia75. The rejection of this sentence produced reactions from the states, which gave rise to the Eleventh Amendment76: “The Judi- cial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Twelfth Amendment (1804) on Election of the President and Vice-President: This amendment was made to overcome the problems produced in the presidential election of 1800 where Jefferson triumphed and consisted of amending the previous wording on the Electoral College. The previous system considered the candidates

73 David L. Shapiro, Op. cit., p. 63. The author remember the Madison · s original formulation of a bill of rights included, as its fourth proposal, the core of the present Bill of Rights and in eighty proposal, the language of what is now the Tenth Amendment. Shapiro, ib., footnote 21. 74 2 U.S. (2 Dall) 419 (1793). 75 The Supreme Court of Justice again ratified the “Chisholm v. Virginia” in “Martin v. Hunter” criterion · Lessee “in 1816 (14 U.S. (a Wheat) 304). See Mal- colm M. Feeley and Edward Rubin, Op. cit., p. 106. 76 See Malcolm M. Feeley and Edward Rubin, Op. cit., p. 106.

70 individually, and whoever received the most votes was named president and the second, the vice-president. But as from this election, political parties were born, and each of these had its own candidates for both positions. The amendment therefore precisely distinguished the respective form of election: “The Electors shall meet in their respective states, and vote by ballot for Presi- dent and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; “The President of the Senate shall, in the presence of the Se- nate and House of Representatives, open all the certificates and the votes shall then be counted; “The person having the greatest Number of votes for Pres- ident, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.77

77 This paragraph was later amended by Section 3 of Amendment 20.

71 “The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” This Amendment was the antecedent of Arts. 78 to 82 of the historical Argentine Constitution, which also established the Electoral College, and were suppressed in the 1994 Reform of the Constitution. Some authors call these years from 1787 to 1865 the “federal period.”78 During this period, the rulings of the Supreme Court of Justice, under the presidency of John Marshall, began to establish “dual federalism,” emphasizing the division of the powers between the federal government and the states, while affirming the power of the federal government. Memorable decisions were those in “McCulloch v. Maryland”79, 1819, on Maryland’s attempt to impose taxes on the Second Bank of the United States, and in “Gibbons v. Ogden”80, 1824, on interstate commerce and concurrent powers.81 We cannot go into a historical analysis of those difficult and crucial years, which had significant events like the Alien and Se- dition Act of 1798, the War of 1812, the attempt at secession of some states of New England in 1814 and the problem between the southern and northern states over the issue of slavery. The

78 Malcolm M. Feeley and Edward Rubin, op. cit., p. 100 ff. 79 17 U.S. (4 Wheat) (1819). 80 22 U.S. (9 Wheat) (1824). 81 See David L. Shapiro, Op. cit., p. 63 and Robert A. Shapiro, “Polyphonic federalism”, Op. cit., PP. 33-34.

72 conflict over tariffs in 1828 led to the South Carolina Exposition and Protest of John C. Calhoun.82 All this was preparing the stage for one of the gravest moments in American history, the Civil War of 1861-1865, provoked by the secession of the Southern states, which created a Confede- racy. The great President Abraham Lincoln rejected the secession and led the Union’s fight against Confederacy and slavery, which ended with the triumph of the Union, even though it cost him his life. Finally, regarding the secession, the Supreme Court of Justice of the States declared that the Union is an “indestructible union … of Indestructible states” in “Texas v. White”83. After the Civil War, what Malcolm Feeley and Edward Ru- bin have called the “National Period” (1865-the present) began, with Radical Republicans who dominated the national government and enacted the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, which not only abolished slavery but also, as Bruce Ackerman pointed out, granted broad policing power of general jurisdiction to the national government84. The Thirteenth Amendment (1865), on Slavery, declared: 1. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the Party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 2. “Congress shall have power to enforce this article by appropriate legislation”. The Fourteenth Amendment (1868) on Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process, and Equal Protection declared: 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

82 See Malcolm M. Feeley and Edward Rubin, op. cit., PP. 106-110. 83 74 U.S. (7 Wall) 700, 725 (1869). 84 Malcolm M. Feeley and Edward Rubin, op. cit., p. 111 and Footnote 51 regarding Bruce Ackerman, “We The People”, Cambridge, MA: Belknap, 1967 ...

73 and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. “2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice president of the United States, Represen- tatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,85 and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” “3: No person shall be a Senator or Representative in Con- gress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability”. “4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or

85 This was modified by the Twenty-Sixth Amendment in 1971, reducing the age of citizenship to 18 years.

74 rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” “5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The Fifteenth Amendment (1870), on Rights of Citizens to Vote, declared: “1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” “2. The Congress shall have power to enforce this article by appropriate legislation”. Regarding the impact of these Amendments on federalism, Robert A. Shapiro says: “The Thirteenth Amendment abolished slavery, which had served as a defining prerogative of states since the founding. The first sentence of the Fourteenth Amendment nationalized the definition of state citizenship, removing from states the right to define the domain of their polities. The second sentence of the Fourteenth Amendment prohibited states from interfering with due process of law, equal protection of law, and national privileges and immunities of citizenship. The Fifteenth Amendment forbade states from denying the right to vote based on race. These Reconstruction Amendments removed significant areas from the exclusive domain of state control.”86 In 1913 two new Amendments were ratified, also related to federalism. The Sixteenth Amendment (1913) on Income Tax declared: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment

86 Robert A. Shapiro, “Polyphonic federalism”, Op. cit., p. 36. This is why, as we have seen, the “national period” began after the Civil War, characterized by greater powers for the federal government.

75 among the several States, and without regard to any census or enumeration.” and the Seventeenth Amendment, on Popular Election of Senators: “1: The Senate of the United States shall be composed of two senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.” 87 In Argentina, the Constitutional Reform of 1994 finally established the direct election of the nation’s senators, as we will see later in analyzing the role of the political parties and the Senate. We also note the Amendment linked with the political rights of the citizens of the Federal District of Columbia, seat of the federal authorities, as this is very important topic for this class of States. The Twenty-Third Amendment (1962) on presidential electors of the District of Columbia, established that: “1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice Presi- dent equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. “2. The Congress shall have power to enforce this article by appropriate legislation.”

87 For an analysis of the American Senate, see William H. Riker, “Senate and American Federalism”, The American Political Science Review, Volume 49 Nº 2, June 1955, PP. 452-469.

76 Finally, the last two amendments on electoral issues are: The Twenty-Fourth Amendment (1964) about the prohibition to limit the right to vote in federal elections for failure to pay taxes: “1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. “2. The Congress shall have power to enforce this article by appropriate legislation.” And the Twenty-Sixth Amendment (1971) on Reduction of the voting age: “1. The right of citizens of the United States, who are eigh- teen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. “2. The Congress shall have power to enforce this article by appropriate legislation.” In the twentieth century, the tendency to nationalization continued through various moments of politics such as the “Loch- ner era,”88 Roosevelt’s New Deal and the Civil Rights Movement, although there was also a transformation of federalism, with greater recognition of the rights of states as from the presidency of Ronald Reagan89. And this was reflected in the jurisprudence of the Supreme Court, especially under the Rehnquist court and with the so-called “new judicial federalism,” issues that we will see later when analyzing the role of the Supreme Court of Justice and State constitutional law.

88 This name comes from a decision of the Supreme Court in “Lochner v. New York”, 1905, which established jurisprudence that lasted till 1937, in which the Court annulled regulations by Congress limiting economic freedom and private contracts. 89 See Robert A. Shapiro, op. cit., pp. 37-53 and Malcolm Feeley and Edward Rubin, op. cit., pp. 110-123.

77 2. Argentina

2.1. The colonial period (1553-1810)

The Spanish Empire colonized much of Latin America in the 16th century, during the reign of the Habsburgs, including the current Argentine territory, which initially depended on the Vi- ceroyalty of Peru. There were different flows of colonizers, one from Peru which founded the current city of Santiago del Estero in 1553, established the first Cabildo and from there organized the founding of nine more Cabildos, and two other streams, en- tering from the west and the Río de la Plata, over time established the historical provinces that carried out the federal organization: Santiago del Estero, Córdoba, Santa Fe, Buenos Aires, La Rioja, Catamarca, Salta, Tucumán, Corrientes, Mendoza, San Juan, San Luis, Entre Rios, Corrientes and Jujuy. In 1776, the Viceroyalty of Rio de la Plata was created, based in the city of Buenos Aires. Besides the king, other Spanish institutions were the Council of the Indies and the House of Trade of the Indies in Seville, which had broad powers over the various Viceroyalties. The Viceroy was the highest authority in each of the viceroyalties, and the Royal Audience was responsible for resolving problems of justice90. The Cabildo was the institution of local government, with ample powers, which affirmed a particularist tendency, considering the enormous distances that separated some localities from others, which is why it has been indicated as one of the main originating causes of federalism91. Juan Bautista Alberdi92 attributed

90 See Jorge Orgaz, El proceso histórico de la Constitución Argentina, Ch. IV of Derecho Constitucional, Vol I, Director Antonio María Hernández, La Ley, Bue- nos Aires, 2012, pp. 259 ff. 91 See Antonio María Hernández, Federalismo y constitucionalismo provincial, Abeledo Perrot, Buenos Aires, 2009, Ch. II. 92 “Bases y puntos de partidas para la organización política de la Repúbli- ca Argentina, derivada de la ley que preside el desarrollo de la civilización en

78 this to one mediate cause: the Spanish municipal regime through the cabildos that gave rise to the Provinces, and to one immediate cause: the absence of national sovereignty that originated local sovereignties. Arturo M. Bas93 also highlighted the importance of the colonial antecedents, which he saw as consisting of “a) the particularist spirit of the Spanish people, b) the different origins of the conquest and population of the cities and territories that today form the Argentine Republic, c) the commercial isolation imposed on the provinces of Cuyo, Tucumán and Río de la Plata, d) the conflicts that led to armed struggle in some cases between these provinces that operated as distinct and independent, e) the constitution of Cabildos, which promoted an individualistic and democratic spirit in the capital cities of the historical provinces, and f) the organization of intendencies by the Royal Charters of 1782 and 1803”.

2.2 The 1810 May Revolution and the first ideas of nationality

We want to clarify two ideas about this: 1. This was the beginning of a real revolution that led to independence from Spain94.

Sudamérica”, op.cit., Ch. XVII. 93 “Derecho Federal Argentino”, ed. Abeledo, Bs.As., 1927, p. 17 ff.. 94 Esteban Echeverría, Juan Bautista Alberdi and Joaquín V. González, considered founding fathers of political science and public law in Argentina, upheld the revolutionary nature of May 1810. Gonzalez in 1885 presented his doctoral thesis at the National University of Córdoba, entitled “Estudio sobre la Revo- lución”, which he defended the following year, giving May 1810 as an example of revolution, in addition to the 1688 English Revolution, the 1776 American Revolution and the 1789 French Revolution. (Joaquín V. González, “Estudio sobre la revolución y otros escritos”, Bicentennial Collection, National Univer- sity of Córdoba Press, Córdoba, 2010, pp. 117 and 187. See also the analysis in Qué es una revolución? by Carlos Alberto Egües in his study Mariano Moreno y la Revolución, in the book Los abogados y la revolu- ción de Mayo, edited by the Instituto Argentino de Estudios Constitucionales y Políticos and the Colegio de Abogados y Procuradores de la 1ª Circunscripción

79 2. The first ideas of Argentine nationality began to be developed.95 The former consisted in the establishment of the first patriotic government, which had two extremely complex objectives: to ensure the triumph of the revolution, even by armed struggle, and to constitutionally organize the new nation.96 To achieve the first objective, a war of independence was waged that had epic and American contours, because with the agreement in Guayaquil of the Liberators José de San Martín and Simón Bolívar, Spanish military power was finally vanquished in the Battle of Ayacucho in 1824. The Congress of Tucuman had solemnly declared the independence of Argentina on July 9, 1816. The second objective, the constitutional organization of the country, was even more difficult, because it took a longer time and enormous efforts that included a bloody and fratricidal civil war, de Mendoza, en Homenaje al Bicentenario, Mendoza, 2009, pp. 100-102. He recalls that Aristotle saw the struggle for equality as the cause of all revolutions, and he considered May 1810 as a revolution. Historians such as Ricardo Levene, Ricardo Zorraquín Becú, Carlos Segreti, Félix Luna, José Luis Romero, Tulio Halperín Donghi and Dardo Pérez Guilhou all reached the same conclusion. 95 Dardo Pérez Guilhou explains how the 1810 May Revolution, in addition to its “independent spirit, begins to build in parallel the idea of the Argentine Nation” in his article”Revolución y concciencia nacional” in the book “Actores y testigos de la Revolución de Mayo”, published by the Argentine Institute of Constitutional and Political Studies, Mendoza, 2010, p. 57 ff.. 96 Cf. Ricardo Levene, “La Revolución de Mayo y Mariano Moreno”, T. II, Ediciones Peuser, Buenos Aires, 1960; Juan González Calderón, “Derecho constitucional argentino”, T. I, Lajouane y Cìa. Editores, Buenos Aires, 1923 and Pablo Riberi, “El pensamiento constitucional de Mariano Moreno”, in the book “El pensamiento constitucional argentino”, (1810-1930), Director Pablo Luis Manili, Errepar, Buenos Aires, 2009. Mariano Moreno had a fundamental role in these issues and has been aptly considered the first Argentine constitutionalist, as Segundo V. Linares Quintana said (“El espíritu de la Constitución”, Buenos Aires, 1993). Carlos Alberto Egües highlights Moreno’s articles in La Gaceta from November 6th to 13th 1810, where he clearly advocated the sanction of a Constitution. (“Las ideas políticas de Mayo y Mariano Moreno” in the book “Actores y testigos de la Revolución de Mayo”, op.cit.).

80 which would be partly overcome with the enactment of the Na- tional Constitution in 1853, 43 years after the 1810 May Revolu- tion. The explanation for this lies in the difficulties that it took to resolve the two main problems of our political formula: the form of government: republican or monarchical and the form of state: unitarian or federal. Indeed, it took ten years until, in the first Battle of Cepeda of 1820, the federal warlords of the Littoral, López and Ramirez, defeated the Supreme Director Rondeau, rejected the unitarian Cons- titution of 1819 and buried monarchical projects. This is how the republican idea, which had been supported by Mariano Moreno in notable writings such as El Decreto de Supresión de Honores and his articles in La Gaceta de Buenos Aires97, which was the newspaper of the revolution98. Thirty-three more years passed, which included the fierce struggle between Unitarians and Federalists and the long dictatorship of Juan Manuel de Rosas, until thanks to the historic decision of Justo José de Urquiza, the National Constitution was enacted in 1853, fulfilling the Federal Pact of 1831 and the Agreement of San Nicolás of 1852, which enshrined the federal form of State.99

97 Especially of November 1, 6, 13 and 15 and December 6, 1810. 98 See the acute documented studies of Carlos Alberto Egües, “Mariano More- no y las ideas político-constitucionales de su época”, Ediciones de la Academia Nacional de Derecho y Ciencias Sociales de Córdoba, 2000 and “Las ideas políticas de Mayo y Mariano Moreno”, in the book “Actores y testigos de la Rev- olución de Mayo”, op. cit. and Pablo C. Riberi, “El pensamiento constitucional de Mariano Moreno”, op. cit. 99 Juan Bautista Alberdi wrote: “The victory of Monte Caseros alone did not give the Argentine Republic everything it needed. It set it on the way to organization and progress, and considered this way, the victory is as great an event as the Revolution of May, which destroyed the Spanish colonial government. Without being able to say that we have returned to the starting point (because states do not follow the path of suffering without profit), we find ourselves as in 1810 needing to create a general Argentine government and a constitution that serves as a rule of conduct to that government”. (Bases, Ch. I, “Situación constitucional del Plata”, Editorial Plus Ultra, 3ª. Edición, Buenos Aires, 1981,

81 The country’s ideas of a nation were also first established in the May Revolution, in three acts of singular importance: the debate of the Cabildo Abierto of May 22, the Chapter Act of May 25 and the Circular of May 27 convoking the representatives of the Cabildos of the interior. These ideas were those of republican federal democracy. The Cabildo Abierto of May 22 was marked by the following positions100: 1. Juan José Castelli’s explanation of the revolutionary theory of the reversion of power to the people, as a result of the abdication of Ferdinand VII, which would serve for the subsequent establishment of the first patriotic government. This was a defense of popular sovereignty, the basis of the republican democratic system. 2. The objection of the Civil Prosecutor of the Audience, Manuel Genaro Villota, to the possibility of the Cabildo of Bue- nos Aires deciding alone an issue that affected the Viceroyalty, in the absence of representatives of the other Cabildos. This was the germ of the federal idea. 3. The response to the objection made by Juan José Paso, who argued the theory of managing the business, by virtue of which Buenos Aires, as “elder sister”, could make decisions, which should later be validated by the other cities. This led later to the Circular of May 27, convoking the other Cabildos, in reaffirmation of the federal idea. 4. The vote of the Commander of the Regiment of Patri- cios, Cornelio de Saavedra, in favor of installing a new governing Junta, with the emphasis that it is the people that confers authority or command. This motion was supported by the majority in the vote, and also showed republican and democratic ideas. A document of special significance was the Chapter Act of May 25, on the installation of the Primera Junta, which was the p. 23). Joaquín V. González also considered the events of 1852 as a revolution, with the defeat of the Rosas regime. (Cf. “Estudios sobre la Revolución y otros escritos”, op. cit., p. 117) 100 Cf. “Mayo de 1810. Actas del Cabildo de Buenos Aires”, preliminary study of Dr. Isidoro J. Ruiz Moreno, Editorial Claridad, Buenos Aires, 2009.

82 first revolutionary government. There these preliminary ideas were set, as indicated by Alberto Bianchi101, through various principles: the sovereignty of the people102, respect for law103, the responsibility of rulers104, the independence of the judiciary105, the public nature of acts of government106, legality in tax matters107, and the need for a constitution108. Finally, in the May 27 Circular, the Primera Junta invited the Cabildos of the interior to elect deputies to join it, in fulfillment of what had been discussed in the Cabildo Abierto of May 22 and ordered in the Chapter Act of May 25. This can be seen as one of the germs of federalism, as we sustained earlier.109 The May Revolution laid the foundations of a democratic and federal republic and achieved its fundamental goal when the National Constitution was sanctioned in 1853110.

101 “El bicentenario del derecho constitucional argentino”, La Ley, Buenos Ai- res, April 9, 2010. 102 Definitively promulgating this principle, which had been enunciated and practised in the Cabildo Abierto of 1810, May 22, to elect la Primera Junta de Gobierno. Cf. Bianchi, Op. cit., p. 2. 103 The Chapter Act stated that the members of the Primera Junta were to be recognized as custodians of the Viceroyal authority and that its provisions should be obeyed. Cf. Bianchi, Op. cit., p. 2. 104 Since it was indicated that members of the la Primera Junta were accountable to the Cabildo and the people. Cf. Bianchi, Op. cit.., p. 2. 105 By prescribing that members of the la Primera Junta were excluded from exercising the Judicial power, which corresponded to the Real Audiencia. Cf. Bianchi, Op. cit., p. 2. 106 By obliging the Primera Junta de Gobierno to publish the state of administration of the treasury the first days of each month . Cfr. Bianchi, op. cit., p. 2. 107 By establishing the fundamental principle that no contribution could be imposed without the agreement of the Cabildo, which was the legislative body. Cf. Bianchi, Op. cit., p. 2. 108 By ordering that the Primera Junta dispatch circulars to the Cabildos to elect representatives for a Congress to establish the form of government that it considered best. Cf. Bianchi, Op. cit., p. 2. 109 See also Joaquin V. González in his “Juicio del Siglo” and Bianchi, Op. cit., p. 2, which indicate these antecedents of the federation. 110 The historical continuity between the May Revolution and the National Constitution was particularly noted by Justo José de Urquiza, who chose to sign the promulgation of the Constitution on May 25, 1853, when it had been

83 2.3 Attempts at unitarian and federal organization of the country and the enactment of provincial constitutions (1811-1831)

With the incorporation of the representatives of the Cabildos of the interior, the Primera Junta became the Junta Grande on December 18, 1810, and institutional norms of significant importance began to be produced. Firstly, the Regulations for the creation of Juntas, which were classified as “provincial”, with 5 members led by a president or governor intendant, based in the capital of the provinces, and “subordinate”, with 3 members, chaired by the Commander of Arms and based in the cities or towns that were entitled to elect deputies in Buenos Aires, with the members of both juntas elected by popular vote. These juntas had significant powers, but they had to be subordinate to the Junta Grande.111 In 1811, the Regulation and Decree on freedom of the press was enacted, considered one of the pillars of the republican system, and then the Decree of suppression of the Indigenous tribute, where the original peoples, who had been subjected to slavery, were called the first brothers and sons of America, and which ordered the extinction of the tribute to be paid to the Spanish crown, a transcendent social decision of the May revolutionaries. In the same year, the Provisional Regulation of 1811, dated October 22, 1811, was promulgated, which is a document of particular significance for its republicanism. This established the principle of popular sovereignty, the fundamental rights of the people and the republican regime with legislative, executive, enacted on May 1 of that year. And Joaquín V. González in the preface of his “Manual de la Constitución Argentina” said that the fundamental Charter should preside over “... the growth and power of the people who became independent in 1810 and founded their government of freedom in the Constitution that governs us.” 111 Cf. Jorge Orgaz, ch. cit., p. 298 in the book Derecho Constitutional, Director Antonio María Hernández, Op. cit.

84 and judicial branches. The legislature corresponded to the Jun- ta Conservadora, the executive to the First Triumvirate and the judicial to the Court of the Royal Audience. Subsequently, the Triumvirate dissolved the Junta Conservadora and concentrated power, sharpening tensions between centralists and federalists. However, a statute was issued in November 2001 and an Indivi- dual security decree.112 A Second Triumvirate summoned a new Constituent As- sembly, that of the year 1813, especially important among our constitutional antecedents. Four projects were presented for constitutions of the United Provinces of the Rio de la Plata. The fourth, called federal, written by Felipe Santiago Cardozo, a deputy linked to the hero of the Banda Oriental, José Gervasio de Artigas, was the only one that proposed a federal form of state, while the others established a unitarian state. Artigas’ Instructions to the deputies of the Banda Oriental, of April 5 and 13, 1813, established: the declaration of independence (Art. 1), the confederal organization of the State (Art. 2), civil and religious freedom (Art. 3), two levels of government, national and provincial, each with its own constitution and powers (Arts. 4, 7, 12 and 16), the tripartite division of powers (Arts. 5 and 6), the popular origin of constituent power (Art. 13), the installation of the government outside the city of Buenos Aires (Arts. 11 and 19), in addition to the recognition of rights and other clauses. The assembly began in the city of Buenos Aires on January 31, 1813 and was chaired by Carlos de Alvear. The diplomas of the deputies who came from the Banda Oriental were rejected, for formal reasons, revealing the centralist criteria of the men of Buenos Aires, opposed to Artigas, who was a precursor to our federalism. The Assembly could not achieve its purpose of declaring independence and enacting a constitution, although it passed

112 Cf. Jorge Orgaz, Ch. cit., p. 305, in “Derecho Constitucional”, Director Antonio María Hernández, Op. cit.

85 norms of great institutional and social value, which would later be incorporated into the national Constitution in 1853. The Assembly declared itself sovereign and recognized immunity of opinion for its members, in addition to organizing an Executive power under the Supreme Director of the United Pro- vinces, instead of the Triumvirate, to be assisted by a 9-Member State Council. It abolished the tribunals of the Inquisition and instruments of torture and separated state from religious authority. It established a Test of residence for civil servants and dismissed those who could not show a letter of citizenship. It set May 25 as a Civic Holiday, adopted the National Anthem of Vicente Lopez y Planes and coined money with the expressions “United Provinces of Río de la Plata” and “In Union and Freedom.” In social matters, it declared Freedom from the womb113, reaffirmed the freedom and equal rights of the first peoples, abolis- hing the mita, encomienda and yanaconazgo and personal service, as well as titles of nobility and the mayorazgo, and prohibiting the exhibition of symbols or emblems at the gates of houses and public spaces. The subsequent Provisional Statute of 1815 was immediately rejected for its unitarian content by the Provinces, in defense of their own institutions. That year the process started of creating the original 14 provinces, based on the respective Cabildos, which culminated in 1834, when Jujuy separated from Salta. These provinces would be those which in 1831 would constitute a confederation through the Federal Pact, and in 1853 the federal State through the enactment of the national Constitution. A new Congress convened in the city of Tucumán had the historical responsibility to formally declare the Independence of the United Provinces of the Rio de la Plata from the domination of the kings of Spain, on July 9, 1816. Several sessions of that Con- gress discussed the form of government, and there were proposals

113 Which meant that slavery was abolished.

86 for adopting a temperate monarchy, which finally collapsed as the republican antecedents became stronger.114 The Congress moved to Buenos Aires and sanctioned the Provisional regulation of 1817, which followed the guidelines of the Statute of 1815, with particular emphasis on its centralist and unitarian character, with local authorities appointed by the Supre- me Director of the State, based on a list submitted by the Cabildos. The same Congress subsequently analyzed a draft constitution that was enacted April 22, 1819 as the Constitution of the United Provinces in South America. This declared Catholicism as the state religion. It organized a division of powers, based on a bicameral legislative branch, with a House of Representatives elected by the people, with exclusive initiative in matters of taxes and contributions. The Senate was constituted with one senator per province, three military senators, one bishop and three eccle- siastics, one senator for each university and the Director of the state when his period ended. The executive power was to be exercised by the Director of the state, appointed for five years by the Congress with the two chambers assembled. The judiciary was led by a High Court of Justice, consisting of seven judges and two prosecutors. It had a bill of rights, some of which were a direct antecedent of our national constitution. The constitution avoided referring to the form of government or the provinces. As we said, this constitution was rejected by the provinces for its centralist character and led to the military reaction that ended in the Battle of Cepeda of February 1, 1820, with the triumph of the federal warlords, Estanislao López of Santa Fe and Francis- co Ramírez of Entre Ríos, who defeated the Supreme Director Rondeau and dissolved the national government. From that moment the republican form of government was definitively ratified, ending any attempts for a monarchical organization, which in any

114 Cf. Jorge Orgaz, Op. cit., in “Derecho Constitucional”, Director Antonio María Hernández, vol. 1, p. 316.

87 case had never reached the intensity of the debates and experiences seen in the Mexican case. That year of 1820 is of great importance for federalism, because provincial sovereignty was deepened through the adoption of their own constitutions and the making of interprovincial pacts. The instrumentalist force of federalism was in these pacts, almost one hundred in number, the most important of which were the Pacto del Pilar (Feb 23, 1820) between the provinces of Buenos Aires, Santa Fe and Entre Rios; the Tratado del Cuadrilátero (Jan 15-25 and April 7, 1822) between the provinces of Buenos Ai- res, Santa Fe, Entre Rios and Corrientes; the Federal Pact (Jan 4 to Feb 15, 1831) between the provinces of Buenos Aires, Santa Fe and Entre Rios, which the others then joined, constituting the Argentine Confederation; and as the immediate precedent of the constitutional enactment of 1853, the Agreement of San Nicolás (May 31, 1852), which ratified the bases of the federal organization already established in the Federal Pact of 1831. For this reason, the Preamble to the Constitution refers to the fulfillment of these pre-existing pacts. It is also important to highlight the exercise of constituent power by the provinces, as another of our constitutional antecedents. The provinces of Santa Fe, with its Provisional statute of 1819; Tucumán, with the Constitution of the Republic of Tucumán of 1820; Córdoba, with its Provisional regulation of 1821; Corrien- tes with its Provisional Constitutional regulation of 1821; Entre Rios with its Provisional Constitutional Statute of 1822; Catamar- ca, with its Constitutional Regulation of 1823; San Juan with its Carta de Mayo of 1825; San Luis with its Provisional regulation of 1832; Buenos Aires with its Draft constitution of 1833; and Jujuy with its Provincial statute of 1839, dictated their own constitutions. In 1824, the governor of the Province of Córdoba, Juan Bautista Bustos, tried unsuccessfully to gather a Constituent Con- gress, which was finally achieved at the end of that year in the city of Buenos Aires, extending its activity to 1827. Thus in 1825, a

88 Fundamental Law was enacted, which entrusted the national executive power to the government of Buenos Aires. Then, the Pres- idency Act was passed, appointing Bernardino Rivadavia as head of the Executive with the title of President of the United Provinces of the Rio de la Plata. In that year, the provinces were also consulted on the form of government and state, with the provinces of Córdoba, Entre Ríos, Mendoza, San Juan, Santa Fe and San- tiago del Estero supporting federalism, Jujuy, La Rioja, Salta, and Tucumán supporting unitarianism, and Catamarca, Corrientes, Misiones, Montevideo, San Luis, and Tarija for whatever the As- sembly decided. Already in 1826, the Buenos Aires Capitalization Act was adopted, and the debate on a unitarian constitution began, which was approved on December 24 of that year. Art. 1 proclaimed freedom and independence from all foreign domination and Art. 2 that the nation will never be owned by one person or one family. Roman Catholicism was adopted as the official religion (Art. 3) and “the republican representative form, consolidated in one unit of government” (Art. 7). The legislature was bicameral, with a House of Representatives elected directly by the people and a Senate with the representation of the capital and the provinces, elected by boards of electors chosen by the people. The executive branch resided in the President of the Argentine Republic, elected indirectly by a board of electors from the capital and provinces. The judicial branch corresponded to a High Court of justice and other courts. Each province had a governor, appointed by the president from a triplet submitted by the boards of administration, which had to exist in the provinces with a number of 7 to 15 members, elected by the people. Being a “theoretical attempt at political unitarization of the country”, as Linares Quintana115 said, the Constitution of 1826 was immediately rejected by the provinces, who perceived that they

115 cf. Op. cit., p. 171.

89 would be converted into simple administrative units of the central government. Faced with the intensification of political problems to which was added a war with Brazil, Rivadavia resigned as president on June 30, 1827, and the Congress disposed its own dissolution and that of the national government, commissioning the province of Buenos Aires to manage foreign relations. Thus, Colonel Manuel Dorrego assumed the governorship of the province, and together with Artigas, these were the leaders of Argentine federalism. But unfortunately, he was soon overthrown and then shot by the unitarian General Juan de Lavalle, leading to a worsening of the fratricidal struggles. The unitarians were led by General Lavalle and General José María Paz, who in 1829 defeated Bustos, the federal governor of Córdoba, and constituted the League of the Interior in 1830, composed of the provinces of Cordoba, Catamarca, La Rioja, Mendo- za, San Juan, Salta, Santiago del Estero, San Luis, and Tucumán. The federalists, led by General Juan Manuel de Rosas and General Estanislao López, defeated General Lavalle at the Batt- le of Puente de Márquez in 1829, and formed the League of the Littoral with the Provinces of Buenos Aires, Santa Fe, Corrientes and Entre Rios.

2.4 The Federal Pact of 1831 and the Argentine Confederation

As a result of the triumph of the federal forces, the Federal Pact of January 4, 1831, was agreed, which is a foundational document, which all the provinces later adhered to, constituting the Argenti- ne Confederation, which would exist until it became the Argentine Federation with the National Constitution of 1853. The Federal Pact began by declaring that the majority of the peoples of the Republic “have proclaimed in the most free and spontaneous way the federal form of government” and then affirmed the validity of the previous treaties and defensive alliances. A representative committee of the Littoral Governments of the Ar- gentine Republic was constituted (Art. 15) and among its powers

90 was established that of inviting the other provinces to join in federation by convoking a General Federative Congress to arrange the administration of the country and preserve the sovereignty, freedom, and independence of each of the provinces (Art. 16). Linares Quintana116 argued that this was the “true fundamental statute of the Confederation, equivalent in our constitutional development to the Articles of Confederation and Perpetual Union of 1781 in the history of the United States of America”. Subsequently the dictatorship of Juan Manuel de Rosas arose, who as Governor of Buenos Aires, ruled with the sum of all public power and exercising extraordinary faculties117, representing the nation and conducting foreign relations by delegation from the provinces. He opposed the fulfillment of the Federal Pact that envisaged the convening of a constituent assembly to organize the country constitutionally.118 However, in those difficult times, the1837 Generation developed, with notable figures like Esteban Echeverría, Juan Bautista Alberdi and Domingo Faustino Sarmiento, who would later play very important roles in our history. Political thought was conden- sed in the “Socialist Dogma”, with 15 symbolic words, essentially written by Echeverría.119

116 cf. Op cit., p. 175. 117 For this reason, Article 29 of the National Constitution, in a remarkable republican definition and with great eloquence, prohibits this type of attribution for presidents and governors, remembering Rosas’ dictatorship. Estrada said that the article is a protest rising from the depths of history, and Agustín de Vedia, that it was written in letters of blood. 118 Despite the claims made especially by the other great federal chief, Juan Facundo Quiroga of La Rioja, which were rejected by Rosas in several of his letters, such as that of the Hacienda de Figueroa, found among the bloody clothes of Quiroga, murdered on February 16, 1835 in Barranca Yaco, in the province of Córdoba. See also, Jorge Orgaz, Op. cit., pp. 326-330 and Germán Bidart Campos, Op. cit., among many other authors with different historical, political and ideological opinions. 119 Although in No. 15, titled Denial of the sympathies that may bind us to the two great factions that have disputed power during the Revolution, Alberdi is

91 2.5 The enactment of the National Constitution of 1853

On May 1, 1851, Justo José de Urquiza, governor of the province of Entre Rios, produced his famous Statement, in which he accepted Rosas’ resignation of the management of foreign relations, took them over and announced that he would march on Buenos Aires to end Rosas’ tyranny. This resulted in the Battle of Caseros, Fe- bruary 3, 1852, where General Urquiza defeated Rosas and then summoned the governors to the Agreement of San Nicolás de los Arroyos, in compliance with the Federal Pact of 1831. This made him the great historical figure of Argentina who constitutionally organized the country. The agreement was signed on May 31, 1852. It consisted of an introduction and 20 clauses, the most important of which ratified the Federal Pact of 1831 and convened a General Federal Congress to meet in the city of Santa Fe as from August of that year, with two deputies per province. The handling of foreign relations was given to a Provisional Director of the Argentine Confederation, appointed by General Urquiza. The governors signed the agreement, including Vicente Ló- pez y Planes, governor of the province of Buenos Aires, although it was then rejected in the Buenos Aires Legislature. This provoked military intervention by Urquiza who temporarily took over the local government, but when he withdrew for the beginning of the deliberations of the Constituent Convention, a rebellion broke out on September 11, 1853, which would lead to the secession of the province from the rest of the Argentine Confede- ration. For that reason, Buenos Aires did not participate in the Constitutional convention of Santa Fe of 1853 that enacted the National Constitution. These were very serious times for the country, only overcome in 1859 with the Battle of Cepeda, consequence of a new armed clash between the Argentine Federation and Buenos Aires thought to have been involved, as it presents the thinking he later expressed in the Bases, in 1852, in defense of a mixed federation.

92 province, where General Urquiza triumphed over General Mitre. The consequent San José de Flores Pact decided that the province would rejoin the federation after reform of the national Constitu- tion, which took place in 1860. At the end of May 1852, the first edition appeared of the Bases y puntos de partida para la organización política de la Re- pública Argentina, derivada de la ley que preside el desarrollo de la civilización en SudAmérica by Juan Bautista Alberdi, father of our public law, who was in exile in Chile. There he develops his thinking about federalism, especially in Ch. XVII to XXIV120. In chapter XXIV, entitled Continuation of the same subject. Ex- tension of the faculties and powers of the general government, he insists on the scope of these faculties and reiterates his idea about a “mixed federation”, i.e., a “federative unit” or a “unitarian federation”, because in his view pure types were impracticable and the American model should be followed. But he also indicates that in the Argentine case the system to be adopted should be further centralized. He writes: “Under the Spanish government, our provinces composed a single viceroyalty, a single colony. The United States, under English domination, were so many colonies or governments absolutely independent of each other as states. Each state in North America was larger in population than the entire current Argentine Confederation; each province here is smaller than the county into which those states are subdivided. This means, for example, that Argentina adopting the compound government of North America, would involve more centralism, more of the national element, than in the North American system”. In the second edition of the Bases, he incorporated his draft constitution, which was a very important antecedent for the constitutional delegates, through two of these who were particularly

120 See Antonio María Hernández, “Federalismo y Constitutionalismo Provin- cial”, Abeledo Perrot, Buenos Aires, 2009, chap. II. , “Federalismo Argentino y sus orígenes”, “Federalismo en Alberdi”.

93 influential: José Benjamín Gorostiaga and Juan María Gutiérrez, members of the Drafting Committee. Analyzing his Draft in terms of federalism shows that121: a. His basic model was the American Constitution of 1787, as from there emerge the similar grand principles of the Ar- gentine Federation in terms of the distribution of powers between the federal government and the provinces and concerning the Senate. b. However, he moved away from that model to describe a more centralized federation, as can be seen from: 1. The revision of provincial constitutions by the Congress. 2. The Congress’ faculty to sanction substantive laws. 3. The power of federal courts to resolve conflicts between a province and its neighbors. 4. Other differences that we will discuss later between Argentine and American federations, in the opinion of Arturo M. Bas. 5. His thinking expressed especially in these chapters of his “Bases”. The Constituent Convention met in the city of Santa Fe in preparatory session from November 15, 1852, where Facundo Zuviría was appointed as President and Francisco Segui and Del- fín Huergo as Secretaries. The Drafting Committee was named on December 24, initially formed by Pedro Díaz Colodrero, Pedro Ferré, José Benja- mín Gorostiaga, Juan María Gutiérrez and Manuel Leiva, who were joined on February 23, 1853 by Santiago Derqui and Martín Zapata, but the former was replaced by Juan Del Campillo, also from the Province of Córdoba. The Drafting Committee introduced the draft Constitu- tion on April 18, with a report explaining that the mission was “... to arrange the general administration of the country under the federal system”, according to Art. 2 of the Pact of San Nicolás de

121 See Antonio María Hernández, “Federalismo y Constitucionalismo Pro- vincial”, op. cit., Ch. II, in the section “El federalismo en el pensamiento de Alberdi”, where we discuss his ideas in the Bases and his Draft Constitution.

94 los Arroyos of 1852 and Art. 16 of the Federal Pact of 1831. At the beginning of the debate, on April 20, the Reporter, José Ben- jamín Gorostiaga, declared: “The Committee has strictly observed this basis, organizing a general government for the Republic, leaving the underlying sovereignty and independence of the provinces. Its project is poured into the mold of the United States Constitution, the only true federation model in the world.”122 The National Constitution was enacted on May 1, 1853123, promulgated by Urquiza on May 25 of that year, and solemnly sworn in the country on July 9. The grand ideals and purposes of the May Revolution came into effect with the sanction of the National Constitution124, which has ruled from then till nowadays, with constitutional reforms occurring in 1860, 1866, 1898, 1957 and 1994.125

2.6 Federalism in the 1853 National Constitution

The Constitution had 107 articles, consisting of a Preamble, a First part with a single chapter of declarations, rights and guarantees and a Second part, on authorities of the nation, with two titles: Federal government and Provincial governments. The Preamble refers to the Argentine Confederation and to the meeting of its constituent General Congress “... by the will

122 Segundo V. Linares Quintana, op. cit., p. 182. We have already mentioned the articles of the Philadelphia Constitution that served as the source of the Ar- gentine Constitution. 123 Law Nº 25.863, enacted in 2003 by the National Congress, on the proposal of the Argentine Association of Constitutional Law, which at that time I presid- ed, established that every May 1 is the Day of the National Constitution. 124 For an analysis of the character and content of the National Constitution of 1853, see Segundo V. Linares Quintana, op. cit., pp. 195 ff. 125 As ordered by the Constitutional Convention of 1994, annulling the constitutional reforms of 1949 and the de facto Amendment of 1972. For a discussion of the power of the constitutional convention and the reforms it produced, see Antonio María Hernández, “Derecho Constitucional”, La Ley, Bs. As, 2012, Tomo 1, Ch. II: “El Poder constituyente”.

95 and choice of the provinces that compose it, in compliance with pre-existing pacts ...”. Article 1 declared: “The Argentine nation adopts for its government the representative, republican and federal form, as established in this Constitution.” Article 3 prescribed that “the authorities that exercise the federal government reside in the city of Buenos Aires, which is declared Confederation capital by a special law.” Article 5 stipulated: “Each confederate province shall dictate for itself a constitution under the republican representative system, in accordance with the principles, declarations, and guarantees of the National Constitution; and which ensures its administration of justice, its municipal regime and free primary education. The provincial constitutions shall be reviewed by Congress before being promulgated. Under these conditions, the federal government guarantees each province the enjoyment and exercise of its institutions.” Article 6 ordered: “The federal government intervenes at the request of the provincial legislatures or governors, or without it, in the territory of any of the provinces, for the sole purpose of re-establishing the public order disturbed by sedition or to attend to the national security threatened by a foreign attack or danger.” Art. 41 on the faculties of the Chamber of Deputies in impeachment: “It alone exercises the right to accuse before the Se- nate the President and Vice-President of the Confederation and their ministers, the members of both chambers, those of the Su- preme Court of justice and the provincial governors, for offences of treason, extortion, embezzlement of public funds, violation of the Constitution, or others that deserve an infamous or death pe- nalty, after being informed of them on the petition of part or of some of its members and declared to constitute a cause by a majority of two thirds of its members present.” Article 42 said: “The Senate shall consist of two senators from each province, elected by their legislatures by plurality of votes, and two for the capital, elected in the form prescribed for

96 the election of the President of the Confederation. Every senator shall have a vote.” In Art. 64 on congressional powers, it was established in Sec. 11: “To dictate the civil, commercial, penal and mining codes, and especially general laws for the whole confederation on citizenship and naturalization, ...” and in Sec. 28: “To examine the provincial constitutions and to reject them if they are not in conformity with the principles and provisions of this Constitution, ...” In Article 83 on Attributions of the executive branch, Sec. 3 stated: “It is the immediate and local head of the Confede- ration’s capital.” Art. 97, on Attributions of the judiciary, said: “It corresponds to the Supreme Court and the lower courts of the Confederation to have knowledge and decision in all cases related to points governed by the Constitution, by the laws of the Confederation, [with the reservation made in Sec. 11 of Art. 64], by treaties with foreign nations, in conflicts between different public authorities of the same province, in cases concerning ambassadors, public ministers and foreign consuls, in cases of admiralty and maritime jurisdiction; in resources of force; in matters in which the Confederation is a party; in cases that arise between two or more provinces; between one province and the neighbors of another; between neighbors of different provinces; and between a province and its own neighbors; and between a province and a foreign state or citizen”. And Art. 98 on the jurisdiction of the Supreme Court of Justice declares: “In such cases, the Supreme Court shall exercise its jurisdiction on appeal, in accordance with the rules and exceptions prescribed by the Congress; but in all matters concerning foreign ambassadors, ministers and consuls, in those in which any province is a party and in deciding conflicts between public authorities of the same province, it shall exercise it originally and exclusively.” Art. 101 prescribed the basic norm in the distribution of powers, as follows: “The provinces retain all the power not delegated by this Constitution to the federal government.”

97 Art. 102 said: “They make their own local institutions and are governed by these. They elect their governors, their legislators and other provincial officials, without intervention from the federal government.” Art. 103 declared: “Each province dictates its own constitution, and before putting it into exercise, sends it to Congress, for consideration, as provided in Art. 5.” It also established concurrent faculties for the Federation and the provinces (Art. 104) and those prohibited for the provinces (Art. 105), as well as interprovincial conflicts (Art. 106) and that provincial governors are natural agents of the federal government to enforce the Constitution and laws of the Nation (Art 107, which is the last article of the Constitutional text of 1853). Freedom of trade was guaranteed, and domestic customs were banned (Arts. 9 to 12), and the formation of new provinces enabled (Art 13). A federal treasury was organized and the respective treasuries of each of the provinces (Arts. 4 and 64). Thus this first normative version of federalism of 1853 established a more centralized model than the American, with marked influence of Alberdi’s thinking. However, some differences can be seen between the Draft of the Bases and the text of the Constitution, e.g., the latter adds: a) the power of the Congress to impeach the provincial governors (Art. 41) and b) the power of the Supreme Court to be the original judge of conflicts between public authorities in the same province, which consolidated even more the centralization of Ar- gentine federalism in relation to the US model.

2.7 Federalism in the 1860 Constitutional Reform

The first Constitutional Reform, in 1860, was made as a consequence of the reinstatement of the Province of Buenos Aires to the Federation, after the Battle of Cepeda in 1859 and the Pact of San

98 José de Flores, as noted above. This reform had special importance in terms of federalism126 because it modified some articles that had established a markedly centralized federalism, such as those imposing the review of provincial constitutions by Congress, the impeachment of governors by Congress and the power of the Su- preme Court to resolve conflicts of provincial authorities. This Reform affirmed the rights of the provinces, with a focus of greater decentralization, following the thinking of Sarmiento.127 The following reforms were established: a) In Art. 3, which fixed Buenos Aires as the capital of the Republic, the same principle was established as that of Art. 13, of territorial integrity in the creation of new provinces, which meant that the territory of the federal capital was to be determined by a law of Congress after transfer of the respective territories by the Legislature of the province or provinces in question.

126 See Antonio María Hernández, “Federalismo y Constitucionalismo Provincial”, Abeledo Perrot, Buenos Aires, 2009, chap. II, “Federalismo argentino y sus orígenes”. 127Domingo Faustino Sarmiento was a thinker, writer, educator and statesman. He served as governor of the Province of San Juan, national senator, national In- terior Minister, Ambassador to the United States of America between 1865 and 1868 and national President between 1862 and 1868. He was a national constitutional delegate in the Reform Convention of 1860. He was originally unitarian, but after his journey to the United States in 1847, he became federalist. He was also a prominent constitutionalist, as demonstrated in his book Comen- tarios sobre la Constitución de la Confederación Argentina, and in his passionate debates with Alberdi over the Constitution of 1853, especially in the matter of federalism. He was professor at the University of Buenos Aires in the first chair of constitutional law. He proposed following the US Constitution, jurisprudence and federalism more closely, because with his rationalistic vision he thought that, as these institutions had been so successful there, the same must happen here. He had already put some of his ideas and proposals forward in his book Facundo, a classic of Argentine literature. Just as Alberdi was the intellectual who influenced the Constitutional delegates of 1853, Sarmiento occupied this position in relation to the Constitutional delegates of 1860. Although both were part of the remarkable Generation of 1837, they later produced one of the most celebrated, bitter and profound debates in our history.

99 b) Art 5 abolished two requirements established for the exercise of provincial autonomy: 1. The review of their Constitutions by the national Congress (also contemplated in Arts. 64 Sec. 28 and 103); and 2. free primary education. c) Art. 6 on federal intervention declared the necessity to write the reasons for intervention, to reduce the discretion of the federal authorities, indicating the need for a prior request by the provincial authorities to the federal government, to support them in case of sedition or invasion from other provinces. d) Art. 32 was added, prohibiting Congress from restric- ting the freedom of the press or establishing federal authority over this. e) Art. 34 established the incompatibility of the exercise of positions as members of federal courts of justice and provincial courts. f) Arts 36 and 41 were modified (becoming Arts. 40 and 47) as to the requirements for being a legislator, adding to age and citizenship, that of being “a native of the province electing them, or with two years of immediate residence in it.” g) Governors were excluded from Art. 41 (subsequently Art. 45), which had made them subject to impeachment by the national Congress. h) In Art. 64 (subsequently Art. 67) on congressional powers, after the power to enact civil, penal, and commercial codes, the following was added in Sec. 11: “without such codes alte- ring local jurisdictions, their application corresponding to federal or provincial courts, depending on the matters or persons coming under their respective jurisdictions;” and Sec. 28 abolished the power of Congress to examine provincial constitutions. i) Arts. 97 and 98 (subsequently Arts. 100 and 101) abolished the attribution of the federal judiciary to resolve cases between a province and its neighbors, and of the Supreme Court, in particular, to decide conflicts between public authorities of the same province.

100 j) Finally, the reforms to Arts. 4 and 64 (subsequently Art. 67), linked to export and customs duties (Art. 26), in addition to the special privileges recognized for the Province of Buenos Ai- res in Arts. 31 and 101 (subsequently Art. 104), were fruit of the Paraná Pact of 1860, in which the federation had to yield to the requirements of that province, which did not want the federalization of its customs. This would be resolved only in the Second Constitutional Reform, in 1866, which maintained the original wording of 1853, granting import and export duties exclusively to the federal government.

2.8. From “dual” federalism to “co-operative federalism” (1950 onward)

This constitutional text was in force until the constitutional reform of 1994, but this did not prevent a major modification, which was the transition from dual or competitive federalism toward a cooperative federalism. During this period, interprovincial agreements began to be made under Art. 107 (current Art. 125) of the Constitution: “The provinces may enter into partial treaties for purposes of the administration of justice, economic interests and works of common benefit, with the knowledge of Congress ...”. Thus, provincial pacts that had stopped being signed after 1853 started to appear from 1948 onward, and more firmly from the 1950s to this day, with different purposes and titles, enabling the construction of bridges and an inter-provincial tunnel between Santa Fe and Paraná, the treatment of inter-provincial rivers as watersheds, and the creation of hydrology committees. The Fe- deral Investments Council, Federal Taxes Council and other federal councils were created for diverse matters such as education, security, public health, public works, environment, etc., as well as for solving problems and analyzing projects between provinces, the City of Buenos Aires, and the federal government.

101 2.9. Federalism and the decentralization of power in the 1994 constitutional reform128

As we have seen, there are three normative versions of Argentine federalism in the National Constitution: the original of 1853, that of the Reform of 1860 and finally, that of the Reform of 1994, which is the current text. Here we will briefly describe the work of the Constituent Convention around the decentralization of power, which covered three aspects: a) those of federalism in particular; b) the recognition of the great principle of municipal autonomy and (c) the granting of a new status to the Autonomous City of Buenos Aires129.

128 This was the most legitimate and democratic reform of our constitutional history, because it was the result of a national constituent convention composed of 305 delegates of 19 political blocs, where the entire spectrum of Argentine politics was represented, after free elections. The major constitutional reform included 61 norms: 20 new, 24 reformed and 17 transitory provisions, which covered both the dogmatic part (with a chapter of new rights and guarantees) and the organic part, with modifications in the federal government, in the legislative, executive and judicial branches as well as in provincial and municipal government, together with the creation of the Autonomous City of Buenos Aires. The reform achieved a notable modernization of Argentine public law, deepening the federal republic and laying the foundations for a social democracy within the framework of the third stage of constitutionalism: that of the internationalization of human rights. Unfortunately, given the weak constitutional and legal culture that characterizes Argentina, the reform is incomplete and Congress still has to sanction some 20 statutory laws. For a more thorough analysis of these issues, see our work cited in the previous note, in addition to A veinte años de la reforma constitucional de 1994, in the special issue of Jurisprudencia Argentina with the same title, coordinated by Alberto García Lema and Antonio María Hernández, Abeledo Perrot, Buenos Aires, 2014-III, August 20, 2014. 129 Here we limit ourselves to describing the reforms. Each reform was analyzed in our book entitled Federalismo, autonomía municipal y la Ciudad de Buenos Aires en la reforma constitucional de 1994, Depalma, Buenos Aires, 1997, now out of print but reedited in our book Federalismo y Constitucionalismo Provin- cial, in Ch.. III, IV and V especially, where further analysis can be found. Our study La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino, Jusbaires, Buenos Aires, 2017, contains a more up-to-date analysis.

102 One of the core ideas of the constitutional reform, in which we acted as vice-president of the Drafting Committee130, was the strengthening of federalism. We were particularly pleased with the decisions of the Constituent assembly in these modifications: In institutional and political terms: 1. The establishment of four levels of government in the Ar- gentine federation: the federal government (Arts. 44 to 120), the provinces (Arts. 121 to 128), the Autonomous City of Buenos Aires (Art. 129) and autonomous municipal governments (Art. 123). The reform also included the possibility of creating regions for economic and social development (Art. 124). 2. The distribution of powers, maintaining the general principle of residual faculties for the provinces (Art. 121), and recognizing new and wider powers for the provinces and municipalities, as we will see in the next point. 3. The recognition of the power of policing and taxing of provinces and municipalities over national utility establishments, as a clear affirmation of federal autonomy (Art. 75 sec. 30). 4. The Senate and its federal role, with the aim of accentua- ting its federal role through direct election of its members (Art. 54), the inclusion of a third senator per province for the minority (Art. 54), and the assignation of greater powers (Art. 75 Sec. 2 and 19), making the Senate the originating chamber for laws on tax- sharing and laws promoting differentiated policies to balance the unequal relative development of provinces and regions. 5. Federal intervention, the declaration of which corresponds essentially to Congress (Art. 75 Sec. 31), modifying the previous practice which saw the President acting by decree in two-thirds of the 170 cases recorded, which had become a classic lament of Argentine federalism. 6. Political parties (Art. 38) and federalism, since political parties must reflect the values and principles of federalism also in their functioning.

130 As a constitutional delegate elected by the province of Córdoba.

103 Regarding financial aspects: 7. Tax sharing, with the aim of enacting an Agreement-law as an instrument of cooperative federalism, to resolve the severe problems of fiscal federalism (Art. 75 Sec. 2). 8. The Federal Fiscal Commission, as a fundamental institution to guarantee the good functioning of interjurisdictional fiscal relationships and of the system mentioned above (Art. 75 Sec. 2). 9. Federal principles for the national budget, for investment of public funds by the federal government with “federal” criteria (Art. 75, Sec. 8). In economic and social aspects: 10. The Federal Bank (Art. 75 Sec. 6), to modify the current Central Bank, which is more proper to a unitarian state. 11. Regions for economic and social development (Art. 124), as a new option to strengthen Argentine federalism and reverse the inappropriate territorial organization seen now. 12. The provinces and the possibility of signing international agreements (Art. 124) as one of the essential foundations for modernizing public law in the context of open regionalism and globalization. 13. The provinces and original ownership of their natural resources (Art. 124), is another very important decision of the As- sembly recognizing provincial autonomies. 14. Provincial Social Security entities and other concurrent faculties (Art. 125) reaffirming the principles of the division of powers and local autonomy. 15. Federal principles in education, science, and culture, (Art. 75 Sec. 19), with criteria and aims similar to those in the previous point. a) The distribution of powers131

131 For this topic we follow our article The distribution of competences and the tendency towards centralization in the Argentine Federation, in Decentralizing and Re-centralizing Trends in the Distribution of Powers within Federal Coun- tries, Institut d’Estudis Autonomics, International Association of Centers for Federal Studies, Barcelona, 2010, pp. 71-90.

104 On the fundamental topic of the distribution of powers in the federal State, the constitutional reform of 1994 did not modify the highest rule on this subject, the former Art. 104 (current 121), on the powers conserved by the provinces, summari- zing the historical Argentine law, in the expression of Joaquín V. González. The fact that these issues were not debated does not imply that the Assembly gave no importance to them, possibly the most difficult problems for a federation. It rather implies that the delegates saw the grand principles established in the Consti- tution of 1853/1860 as unchangeable. The concepts of Alberdi and Gorostiaga are still fully applicable, accepted by the doctrine and case-law of the Supreme Court, that the provinces have unrestricted residual powers, and that the federal government exercises those expressly or implicitly delegated and therefore has limited powers. It is true that this rule has undergone modifications, as the centralization process has evolved in the country, and even the case-law of the Supreme Court itself has submitted to the advances of the central government, as authors such as Vanossi, Frías, Bidart Campos, Romero, etc. have noted, but we trust that the changes that have to take place in the future, in accordance with the constitutional mandate emerging from the reform, will deepen federalism. Therefore, the classifications made by the doctrine on the relations of the Argentine federal structure are still in force: the relations of subordination (Arts. 5 and 31, establishing the supremacy of the national Constitution), participation (of the provinces and of the City of Buenos Aires in the federal government, specifically in the Senate), and coordination (which is the delimitation of powers of the federal, provincial and Buenos Aires City governments), noted by Bidart Campos. The different classifications of powers between the federal government and the provinces are also in force and can be summarized as follows: those conserved by the provinces (Art 121);

105 delegated to the federal government (fundamentally the express powers of the various federal government bodies, e.g., Arts. 75, 85, 86, 99, 100, 114, 115 and 116, and those implicit of the Con- gress, Art. 75 Sec. 32); concurrent between government orders (Arts. 41, 75 secs. 2, 17, 18, 19 para. 1 and Art. 125); shared (requiring the will of the levels of government, such as the law-agreement on tax-sharing and the federal tax body, and transfers of powers, services and functions, Art. 75 sec. 2) and exceptional (for the federal government in direct taxes, Art. 75 sec. 2, and for the provincial governments in dictating the underlying Codes until these are dictated by Congress, and in arming warships or raising armies in cases of foreign invasion or of a danger so imminent that it admits no delay, Art. 126). There are also powers forbidden to the provinces (because they were delegated to the federal government); forbidden to the federal government (because they were maintained by the provinces) and forbidden to every order of government (such as the con- cession of extraordinary faculties, of the sum of public power or submission or supremacy to government or to any person, Art. 29, or the violation of the declarations, rights and guarantees of the dogmatic part of the Constitution). The Constitutional Reform of 1994 added the following powers to the federal government, following the careful listing made by Castorina de Tarquini:132 “1) To establish and modify specific allocations of shareable tax resources, for specific periods and by special law (Art. 75 Sec. 3); “2) To provide for the harmonious growth of the Nation and for populating its territory; to promote differential policies to balance the unequal relative development of provinces and regions (Art. 75 Sec. 19);

132 Ch. XXVI, El régimen federal y la reforma constitucional, en Pérez Guil- hou, Dardo y otros, Derecho constitucional de la reforma de 1994, Depalma, Buenos Aires, 1995, pp. 351-2.

106 “3) To enact laws organizing and giving a basis of education that consolidates national unity, respecting provincial and local particularities, in compliance with particular requirements (Art 75 Sec. 19); “4) To approve or reject the new international treaties incorporated by the reform, i.e. human rights treaties with future constitutional hierarchy, integration treaties, norms set by supranational bodies and to acknowledge international treaties signed by the provinces (Art. 75 Secs. 22 and 24, and Art. 124); “5) To legislate positive measures guaranteeing true equality of opportunities and treatment, and the full benefit and exercise of the rights recognized by this Constitution and by current international treaties on human rights (Art. 75 Sec. 23); “6) To dictate a special, comprehensive social security regime protecting children in situations of neglect and the mother during pregnancy and the nursing period (Art. 75 Sec. 23); “7) To arrange or decree federal intervention (Sec. 75 Sec. 31, and Art 99 Sec. 20); “8) To exercise the function of government, the headship of which is recognized in the person of the President of the Nation (Art. 99 Sec. 1); “9) To exercise the general administration of the country, through the head of cabinet, politically responsible to the Presi- dent of the Nation, and under the control of the General Accou- nting Office of the Nation (Arts. 85 Sec. 1 and Art. 100 Sec. 1); “10) To dictate, under particular conditions, decrees of necessity and urgency, except in penal, tax, electoral and political party matters (Art. 99 Sec. 3); “11) To organize the collection of the national revenue and to execute the national budget law, as a faculty of the Head of Cabinet, who shall exercise this under the supervision of the Pre- sident of the Nation (Art. 99 Sec. 10 and Art. 100 Sec. 7); “12) The organization and administration of justice. The selection of magistrates is now made by a special body, the Council

107 of the Magistracy, which does not include provincial representation. The appointment is always made by the President with the agreement of the Senate (Art. 99 Sec. 4 and Art. 114).” The constitutional reform also increased the exclusive powers of the provinces, as also noted by Castorina de Tarquini:133 “1) To dictate provincial constitutions in accordance with Art. 5, ensuring municipal autonomy and regulating its scope and content in the institutional, political, administrative, economic, and financial aspects (Art. 123). This provision shows the third level of political decentralization, and thus the increasingly firm trend of provincial public law toward recognizing municipal autonomy. “2) To create regions for economic and social development and to establish bodies for these purposes (Art. 124); “3) To sign international agreements under certain conditions (Art. 124); “4) To exercise all those powers that are implied in the concept of original provincial ownership of the resources existing in their territories (Art. 124); “5) To exercise powers of policing and to levy taxes on pre- mises of national utilities in the territory of the Republic (Art. 75 Sec. 30).” Regarding concurrent faculties, the constitutional reform incorporated: indirect internal taxes (Art. 75 Sec. 2); attributions related to the indigenous peoples of Argentina (Art. 75 Sec. 17) and the provisions in the new clause of human progress or development (Arts. 75 Sec. 19 para. 1, and Art. 125). Even though there is no exact correlation in the text of these two norms, we agree with Castorina de Tarquini134 that all the matters mentioned in Art. 75 Sec. 19 para. 1 require the concurrent action of the provinces, and we also consider that the generic statement of Art.

133 Castorina de Tarquini, op. cit., p. 353. 134 Castorina de Tarquini, op. cit., p. 355.

108 125 comprises what is most specific in that norm. Art. 41 likewise recognizes the faculty of the Nation to dictate “the minimum protection standards” for the environment and Art. 75 Sec. 19, “laws on the organization and basis” of education, but in our opinion the previous constitutional doctrine on the complex topic of concurrent faculties has not been modified, as we argued in the Constitutional Convention itself.135 Art. 125 also prescribes that “the provinces and the City of Buenos Aires may maintain their own social security entities for civil servants and professionals”, which should be interpreted as a ratification of the concepts already determined by Art. 14 bis, in a special defense of the faculties of the provinces and of the City of Buenos Aires against the attacks of the central government, which tried to transfer the pension funds by means of fiscal pacts and other pressure. Finally, as regards Art. 42, which provides for “the necessary participation of consumer and user associations and of the interested provinces in control entities”, in “conflict prevention and resolution” and the “regulatory frameworks for national public utilities”, we also share the opinion of Castorina de Tarquini136 that a faculty that is, in principle, national may become concurrent by the will of the provinces with interest in participating. The fact that the provinces can participate, as in this case, in national agencies, should be noted as another sign of deepening federalism. In relation to the new shared powers embodied in the Cons- titutional reform, the same author137 indicates: “1) The establishment of the tax-sharing regime, which will be made by means of an agreement-law, on the basis of accords between the Nation and the Provinces… 2) In the same constitutional provision [referring

135 See Hernández “Reforma Constitucional de 1994”, Labor del Convencio- nal Constituyente Antonio María Hernández, Imprenta del Congreso de la Na- ción, Buenos Aires, 1995, p. 60. 136 Castorina de Tarquini, op, cit. page 358. 137 Castorina de Tarquini, op. cit., page 360.

109 to Sec. 75 sec. 2], another shared faculty is established when it is provided that there will be no transfers of powers, services or functions without the respective reallocation of resources, approved by law of Congress as appropriate, and by the interested province or the City of Buenos Aires. Such a transfer will thus operate as long as there is a willingness shared between the different orders of political power… (3) Finally, the control and monitoring of the tax-sharing and of any transfer of services will be the responsibility of a federal fiscal agency, with representation of all the provinces and of the City of Buenos Aires, so that this function will also be exercised in a shared manner (Art. 75 sec. 2).” To sum up, the most important federal powers correspond to the three powers of the federal government: legislative, executive and judicial, in relation to national defense, foreign relations and the general interests of the country; and the most important provincial powers are those which have to do with the interests of each of the provinces, through the preserved faculties and, in general, those that enable local autonomy in its constitutional, political, financial and administrative aspects. Continuing with the constitutional reform of 1994, concerning the decentralization of power, the establishment of the principle of municipal autonomy has been especially important in its various institutional, political, administrative, economic, and financial aspects (Art. 123), as an obligation to be guaranteed by the provinces. As for the recognition of municipal autonomy138, it is grati- fying to see that Argentina, since the reform, is now advanced in comparative world law. Currently, some 170 Municipal Charters

138 For an analysis of municipal autonomy in comparative law and in Argentine law, see our study: Derecho Municipal. Parte General, published by the Univer- sidad Nacional Autónoma de México, Mexico, 2003, in Ch. III and VI. This work, now out of print, can also be found in the Virtual Library of the Instituto de Investigaciones Jurídicas of the UNAM. There we examine the meaning of the institutional, political, administrative, financial and economic aspects of autonomy and the distinction between full, semi-full or relative autonomy.

110 have been enacted, which are true local constitutions, resulting from local constituent power exercised by municipal constituent assemblies elected by the people. But here too we must distinguish the norm from the reality, because despite the remarkable progress, a permanent struggle must be made for effective compliance with the principle and its- res pect by other levels of government. For example, three provinces (Buenos Aires, Santa Fe and Mendoza) have still not adapted their respective constitutions to the federal constitution to enable the enactment of municipal Charters. And there are other provinces that have not yet begun the process of enacting Charters, despite the provisions of their own constitutions (Formosa, La Pampa and Santa Cruz). There are other violations of municipal autonomy, like those suffered by the Municipality of San Luis, harassed by the provincial government, which was finally resolved by the national Supreme Court itself in the case “Ponce, Carlos Alberto”139 or those of the municipalities of the province of La Rioja, which lacked a provincial tax-sharing law, which was also resolved by the Supreme Court in the case “Intendente Municipal Capital c/Provincia de La Rioja s. Amparo”140. More recently, the Supreme Court dee-

139 We commented on this in our article entitled “La Corte Suprema como garante de la autonomía municipal”, in the journal “Debates de Actualidad”, Nº 195, Asociación Argentina de Derecho Constitucional, pp. 146 ff., where we stress the importance of this decision, in the bold line of other precedents such as “Rivademar”, of 1989 or “Intendente Municipal Capital c. Provincia de La Rioja”, of November 11, 2014, concerning the financial aspects of municipal autonomy, which we mention in the next note. 140 In a crucial decision of November 11, 2014, the national Supreme Court accepted a plea for injunction presented by the mayor of the Capital city of the Province of La Rioja, who in defense of the financial aspect of municipal au- thonomy had requested sanction of the Law-Agreement of tax sharing, as required by the provincial Constitution. The Court ordered the sanction of the tax-sharing law in the province. We had the honor of representing the municipality before the Supreme Court in this case, which is undoubtedly one of the most important in Court case law in the subject of municipal autonomy. This decision was the antecedent of another fundamental decision of the Supreme

111 pened this jurisprudence in the case “Municipalidad de la Ciudad de La Banda c. Provincia de Santiago del Estero s. Conflicto entre poderes públicos,” of August 23, 2018, ordering the modification of tax-sharing on the grounds of discrimination. The granting of a new status to the City of Buenos Aires (Art. 129) was another great advance by the Constituent Assembly, affirming the decentralization of power and recognizing a special institutional autonomy for the city, with the character of a City State, like that of Berlin, Bremen, and Hamburg in German federalism, as we argued in the Assembly debate. In 1996, in constituent assembly, the Autonomous City of Buenos Aires enacted its own constitution and democratically elected its authorities.141 Although the constitutional design was correct, its regulation by the Congress in laws 24.588 and 24.620 did not respect the supreme norm of Art. 129, and amendments need to be made to comply with it strictly, including among other issues that the Autonomous City should have its own judiciary, in all levels, and its public registries142. This requires progress in the transfer of the former national judiciary, the General Justice Inspectorate, and the Real Estate Property Registry.143 Continuing with these res-

Court a year later in relation to the claims of the provinces of San Luis, Santa Fe and Córdoba for withholdings from the federal tax-share, in which the Court accepted the five suits presented, declaring the inconstitutionality of the withholdings and ordering their immediate return to the provinces, as well as exhorting the federal state authorities and the governors to agree the enactment of the Law-Agreement on Tax-Sharing, as ordered by the Constitution. See Antonio María Hernández, Los fallos de la CSJN sobre detracciones a la masa coparticipable y la confirmación de una jurisprudencia federalista, Suplemento La Ley, Abril 2016, No. 2, Buenos Aires, pp. 44 ff. 141 Historically the Mayor of the City of Buenos Aires was appointed by the President of the Republic, which shows the magnitude of the change made by the Constitucional Reform of 1994. 142 For a detailed study of the topic, see our work: “Federalismo y Constitucio- nalismo Provincial”, Ch. V. 143 See Antonio María Hernández, “La autonomía plena de la Ciudad de Bue- nos Aires y el traspaso de la Ex Justicia Nacional”, a conference on May 16, 2018

112 trictions on the full autonomy of the City severely harms Argen- tine federalism, since in general it is the provinces which are responsible for these services corresponding to the most developed district of the country144. As a consequence of the assumption of new authorities in the national Presidency and in the Ciudad Autónoma de Buenos Ai- res, an agreement was reached in early 2016 over the transfer of 19,000 members of the Federal Police to the police of the Ciudad Autónoma, in compliance with Art. 129 of the Constitution, a very important step towards the full autonomy of the City.145

2.10 The tendency to centralization

The Argentine form of State was decentralized from the beginning, through federalism and the municipal regime, established as from the enactment of the Constitution of 1853. As we have seen, its federalism was “decentralized” in the 1860 reform, with the modifications of Alberdi’s influence and finally, in 1994, there was a notable advance in the decentralization of power, including not only the deepening of federalism, but also the recognition of municipal autonomy and the institutionalization of the Autono- mous City of Buenos Aires. in the Legislature of the CABA, organized by the Asociación Argentina de De- recho Constitucional, www.acaderc.org.ar, and the Instituto de Federalismo de la Academia Nacional de Derecho y Ciencias Sociales de Córdoba. We discussed the new agreements made between the Presidency of the Republic and the Head of Government of the CABA for the transfer of the penal and family courts and the Registries in 2017, in compliance with the National Constitution, and which were approved by the Legislature of the CABA and are now awaiting consideration by the Congress of the Nation. 144 According to the Report of the Under-Secretary of Justice of the Ciudad Autónoma de Buenos Aires, the National Budget of 2016 devoted 30% of total spending of the Judicial branch to the functioning of the former National Jus- tice, for a sum of over 6,842 million pesos. Idem previous note. 145 See our article “Hacia una autonomía plena de la Ciudad”, published in the newspaper La Nación of the city of Buenos Aires, dated January 19, 2016.

113 But, throughout the history of Argentina, we have undergone a profound centralization process, which has produced notable discord between the formal Constitution and current reality. This means that the sociological or realistic face of federalism must be considered, to be able to observe the genuine currency of the constitutional norms. A multiplicity of reasons has led to the failure to comply with the federal project of the Constitution, which Frías has summarized as: a) the advance of the federal government without sufficient resistance from the provinces, b) the development of centralizing virtualities of the Constitution itself, and c) the infrastructure of socio-economic concentration in the metropolitan area of Buenos Aires to the detriment of the interior and of the equilibrium of the country.146 We conclude the discussion of the violations of the federal project of the Constitution with the ideas contained in our article The failure of the centralist project147, since both issues are intimately linked: “The recent reports at the end of 2002 on Human Development from the United Nations and from the Institute of Research of the Cordoba Stock Exchange have coincided in their diagnosis of the serious problems of inequality, injustice, inequi- ty, and disintegration, caused among other things by the extreme centralization of the country. It is sufficient to look at the human development indexes contained in the first of these reports, where Formosa is at the lowest point with 0.156, and the city of Buenos Aires is at the highest point with 0.867, that is, almost 6 times more, as a demonstration of the territorial differences.

146 See Pedro J. Frías, La provincia argentina entre Alberdi y la realidad in Homenaje a Juan Bautista Alberdi, Tomo 1, Academia Nacional de Derecho y Ciencias Sociales de Córdoba, Córdoba, 2002, pp. 58-59 and his earlier studie Introducción al derecho público provincial, Depalma, Buenos Aires, 1980; Dere- cho Público Provincial, with other authors, Depalma, Buenos Aires, 1987 and El proceso federal argentino, 1988 and 1998, among others where he analyzes the process of defederalization in the country. 147 “La Nación”, Newspaper of the City of Buenos Aires, on January 8, 2003.

114 “The dangers and evils that have been pointed out since the 19th Century by, among others, Alberdi in his Bases opposing the capitalization of Buenos Aires, Sarmiento in Argirópolis and Alem in his famous prophecy of 1880 in the debate on the federalization of the city of Buenos Aires have been confirmed. And in the 20th Century, Martínez Estrada spoke of the “head of Goliath” and more recently Félix Luna in his book Buenos Aires y el País argued that this is an unsolved structural problem that runs throughout Argentine history. “This notable phenomenon of concentration, which en- compasses all the orders of Argentine social life in relation to its capital and is repeated in nearly all the provinces, has been similar to that occurring in other Latin American countries, which have unfortunately not been able to escape from this common characteristic of underdeveloped societies, presenting poor territorial order, with marked asymmetries. “The centralization process of the country around the metropolitan area of Buenos Aires, where nearly 35% of the population live in less than 1% of the territory, is complemented by the fact that nearly 80% of Argentine production originates in a ra- dius that is hardly more than 500 km from that area. “It is clear that the federalism as a form of state embodied in the national Constitution of 1853 and 1860 was the correct decision for solving the serious political, economic, and social problems of such an extensive country, which required effective decentralization of power. But the problematic currency of the Constitution is also particularly seen in this aspect, since in reality a unitarizing project steadily imposed itself, centralizing power in the so-called federal government, based in the port of Buenos Aires, encroaching on the constitutional design and on provincial autonomy, and with no respect for municipal autonomy. This negative process could not be hindered even by the Constitutional Reform of 1994, one of the main ideas of which was the deepening of the decentralization of power.

115 “We link this process to the anomie we suffer, as Carlos Nino pointed out in his book entitled A country outside the law and as Juan Agustín García anticipated years ago, arguing that Argentines had a real contempt for the law. For this reason, the federal draft of the Constitution was breached and the centralist, unitary project consolidated. Its results, as we have observed, demonstrate its failure. “This is what must be corrected; centralism must be abandoned, rather than getting confused with the idea of modifying federalism, which has been well defined - but not complied with - in the constitutional text, like other aspects of the constitutional project. The change, therefore, should aim at raising the level of political and legal culture to respect and secure the normative force of the Constitution and its federal project.”

2.11 Constitutional violations148

Some of the violations that have occurred were set out in our latest report on Argentine Federalism149: a) The continuation of constitutional violations “During 2016, the constitutional violations of the federal project of the Argentine Constitution have continued, which we have been pointing out annually, since 2006, in successive editions

148 As we have been pointing out for a long time in our writings. In the essay “Fortalezas y debilidades constitucionales. Una lectura crítica en el Bicentenar- io”, Abeledo Perrot, Buenos Aires, 2012, analyzing the period between 1910 and 2010, we argue that the first weakness is the anomie, the weak constitutional culture, expressed in systematic violations of the Constitution. And celebrating 20 years of the reform, I pointed out that there were about 20 regulatory laws of the Constitution still to be sanctioned by Congress. (“A veinte años de la reforma constitucional de 1994”, op. cit.,). This is clearly seen in the regulations on federalism and the decentralization of power in general. 149 Which I present every year as Director of the Institute of Federalism of the National Academy of Law and Social Sciences of Córdoba in the Cuaderno de Federalismo, in this case, No XXX for the year 2016, edited by the Academy, although I include events after that report, to update the consideration of this important topic.

116 of this publication (see Cuadernos de Federalismo, Nos. XX, XXI, XXII, XXIII, XXIV, XXV, XXVI, XXVII, XXVIII and XXIX). “We recall that: a) the tax-sharing law-agreement has not yet been enacted and the federal tax body is not regulated by the criteria set out in Art. 75 Sec. 2, which under the sixth transitional clause of the Constitution were to be established by the end of 1996; b) budget laws continue to be issued that do not conform to the terms of reference of Art. 75 Sec. 8 regarding federal principles for public spending, c) Congress extended emergency legislation and maintains the delegation of functions in the Executive Branch, which also injures federalism and centralizes the country, through government by decree; d) a marked inadequacy continues in the progress of the regional integration process within the country, or worse, it has almost completely stopped; e) other rules relating to the economic aspects of federalism are not complied with; f) centralist laws persist, such as those of educational funding and national education, which also damages federalism and the powers of the provinces, and these have to be modified or repealed, as we mentioned in previous reports and in our work 20 proposals to strengthen Argentine federalism, in addition to the references below; g) there is no full autonomy for the Autonomous City of Buenos Aires; and h) Argentina’s inadequate territorial planning - with its central axis in the overpopulation of the province of Buenos Aires - has not been altered. This requires urgent solutions, at this stage of the 21st century, as we have indicated in the 20 proposals referred to. “This entails severe injury to our constitutional and democratic state of law. However, the elections in late 2015 and the loss of Peronist hegemony have resulted in power being essentially more balanced in the Houses of Congress and the hyper- presidentialism we endured has been tempered. These election results, repeated in the 2017 legislative elections, show good possibilities for the country’s democratic future, as we argued in last year’s report. We reiterate that it is time to deepen dialogue in all

117 instances, to enable us to find substantive solutions to Argentina’s structural problems. “True change means, first of all, a closer link between politics and ethics, to move away from the most unfortunate phenomenon of structural corruption enhanced by impunity, which has characterized our national decline. Fulfillment of the republican federal democratic political project defined in the national Cons- titution is the great target to be reached in the near future.” b) Arbitrariness in the destination of federal public spending. “We repeat the diagnosis of the earlier report that, in addition to the shortcomings identified, the problems encountered regarding arbitrariness in the destination of federal public expenditure are also recurrent. But we believe that this problem is atte- nuated with the new federal government. This is a consequence of attempts to exercise a federalism of cooperation, through meetings and agreements reached with provincial governments in aspects such as those related to repayment of the 15% of the Anses, decided by the Supreme Court in 2015 on the claims made by the provinces of San Luis, Santa Fe and Córdoba. “The severe foreign exchange and capital market restrictions have also been modified, so it is now possible for provinces to access public credit. There is also a greater equilibrium in the subsidies policy in areas such as transport, energy, and public works. “However, there are still some critical opinions to be noted, regarding subsidies and works for the metropolitan area of Bue- nos Aires. The journalist, Adrián Simioni, of La Voz del Interior of Córdoba, has pointed out that, for the election campaign, during 2016 “the timid reduction of the exorbitant privileges that the whole country grants the voters of Greater Buenos Aires under the form of public services was halted. In part, that was for court rulings by magistrates who ignore more than is suspected. But the Macri government carefully chooses not to get caught up in all the problems of Greater Buenos Aires. This can be clearly deduced from an Argentine Budget Association (ASAP) report

118 on the 2017 Budget: while public service subsidies in total (investments plus current expenditures) decreased by 12%, the two most inequitable subsidies (which are exclusive to Greater Buenos Aires) grew 17% (passenger trains) and 3% (the free water supply and sewers that the whole country pays through Aysa).” And Si- mioni continues: “The ASAP itself points up the privileges in public works to the same area. The province of Cordoba will have the lowest national investment per capita. The amounts for María Eugenia Vidal’s Buenos Aires grow 98%. The Nation will build in Greater Buenos Aires the three most expensive works of all: 3 billion pesos to reform the Constitución-La Plata railway line, 2,392 million to “improve transport” in the Metropolitan Area, and so that it is not said that the interior is miserable, it also began to build the Camino del Buen Ayre highway, with 1,284 million for the richest district.” (La Voz del Interior, Saturday, October 8, 2016, p. 13, Politics, Ya empezó el gobierno macrinista?). “That is why strict compliance with the federal guidelines of the Constitution is vital both in the sanctioning of budget laws and with regard to the urgent need to make progress on the tax- sharing laws. We will return to this issue later when considering the judicial claim of the Province of Buenos Aires for the Conur- bano funds”. c) It is urgent to amend or repeal the existing centralist legislation and its respective policies. “The reforms that must occur in this area are very broad, so the following list is in no way exhaustive. This task requires a thorough analysis of the regulations dictated, which over time have significantly centralized our federalism. As an example, we will point out some issues of great relevance. We begin with the urgent need to modify or repeal most of the taxes with specific allocation that withdraw funds from the total sum for tax-sharing, injuring provincial and municipal autonomy.150

150 Analyzing federal tax-sharing, (in “Federalismo, autonomía municipal y ciudad autónoma de Buenos Aires en la reforma constitucional de 1994”,

119 “Also, over time based on the “progress clause” of Art. 75 Sec. 18 (formerly Art. 67 Sec. 16) and the possibility of Congress granting temporary concessions of privileges and stimulus rewards, the fiscal authority of provinces and municipalities was ignored or affected in multiple cases: railways, transport, communications, mining, etc. This centralist legislation and policies - almost always endorsed by the jurisprudence of our Supreme Court of Justice151- must be reviewed in the light of the new Art. 75 Sec. 30 of the National Constitution, which recognizes the power of policing and taxing of the provinces and municipalities over national utility establishments, another notable milestone of federalist affirmation, incorporated in the 1994 reform. This means that legislative and jurisprudential reforms must be made, to comply strictly with the Constitution, which has strengthened provincial and municipal autonomies in all aspects, including taxing and financial. The same must happen with subsidies in public transport and energy services, which are mostly directed to the metropolitan Buenos

Depalma, Buenos Aires, 1997 and “Federalismo y Constitucionalismo Provin- cial”, Abeledo Perrot, Buenos Aires, 2009), we indicate various norms – Tax Pacts, Laws and Decrees – that reversed the primacy that local governments had achieved in the primary distribution versus the federal government, pursuant to Law No. 23.548, reaching the situation where more than 80% of the resources are received by the National Government. Fortunately, the Supreme Court ruled in November 2015 in favor of claims filed by the provinces of San Luis, Santa Fe and Córdoba, declaring the unconstitutionality of the withholdings made to the total tax-share for the benefit of the Anses and Afip, which we have considered in the Doctrine Section of Cuaderno de Federalismo XXIX. 151 See “Tratado de derecho y economía”, 3 vols., Director Juan Vicente Sola, La Ley, Buenos Aires, 2013, “La cláusula del progreso”, in Vol. II, Ch. XXII, pp. 420 ff. and “La cláusula del progreso” (with special reference to the railways)”, by Alberto Bianchi, Lecture presented at the XX Congress of Argentine Asso- ciation of Constitutional Law, in Mendoza, 2011, points 2 c) Los problemas del equilibrio federal, and 3 a) iii) Jurisprudencia, en especial sobre conflictos impositi- vos. Although this description should be moderated in the light of the above rulings, which have begun to establish more federalist jurisprudence, setting limits on withholdings from total tax-share.

120 Aires area, resulting in huge inequality for the inhabitants of the interior of the country152. “Law No. 24.588 must also be amended as it is unconstitutional in its Arts. 2, 8 and 10, which violate Art. 129 of the Cons- titution and restrict the full autonomy of the Autonomous City of Buenos Aires. In addition, federalism is also affected for another reason: the previous “national” judges and the Property Registry and the General Inspectorate of Justice are supported by the Bud- get of the Nation, rather than that of the Autonomous City. “It is also crucial to end hyper-presidentialism, which pro- foundly injures the federal republic, beginning with the immediate repeal of the superpowers granted in Art. 37 of the Financial Administration Act, and the economic emergency legislation, in addition to amending Law No. 26.122 on Decrees of necessity and urgency, which unconstitutionally regulates Art. 99 sec. 3 of the Constitution. “As for natural resources, the existing legislation on hydrocarbons, fisheries and other resources must be adapted to the provisions of Art. 124 of the National Constitution, which recognized provincial ownership over these. Many years after the reform, through Law No. 26.197, the federal government recognized provincial powers in the case of hydrocarbons, amending Art. 1 of the Hydrocarbons Act No. 17.319. This so-called “short law” passed on a federalist spirit imposed by the Consti- tution, which had been gravely ignored by the so-called Hydro- carbon Sovereignty Act No. 26.741 of 2012 and its Regulatory Decree 1277 of that year. There are clear objections to the constitutionality of the latter norms, which also give a huge power to

152 In some cases, users in the interior have come to pay up to 10 times more than those in the metropolitan area of Buenos Aires in gas and electricity bills, as indicated by La Voz del Interior de Córdoba, in articles by Germán Negro entitled “El federalismo, según quien tenga la manija” and “Injusticias en el laberinto de los servicios públicos,” on pp. 3 and 5 respectively, of the edition of Sunday, September 4, 2016.

121 the Executive Branch, without the proper participation of the Federal Hydrocarbons Council.153 “This is also the case of Law No. 27.007, which made amendments to the Laws No. 17.319 and 26,741, with the same aim of deepening a process of centralization in this matter, based on an agreement with the governors of the producer provinces, which was characterized by its stealth, speed and the use of the old unitary practices of the previous national government. A revision of this legislation so distant from the federal principles of the Na- tional Constitution is imperative.” d) Landmark Federal Agreements on Tax-Sharing and fiscal responsibility “On May 18, 2016, an agreement was signed in Córdoba by the President, governors and the head of the Autonomous City of Buenos Aires for the repayment to the provinces of the 15% of the total tax-share destined for the Anses since the 1992 Fis- cal Pact. The agreement had indisputable significance within the framework of the complex financial relations of the Argentine Federation, characterized by its marked centralization and by the extreme political, economic, and financial dependence of subnational governments. “Unlike other pacts or agreements, characterized by imposition by the central government, this one involved an adequate exercise of interjurisdictional relations, with greater balance and justice for provincial and local governments, beginning to end one of the many deductions from the tax-share. This was a concrete example of federalism of coordination and cooperation, which was one of the great objectives of the 1994 constitutional reform. The agreement also paved the way to ensure the governance of the country and to confirm that we urgently need a deliberative

153 See the documented study of Lorena Schiariti: “Oscilaciones del federalismo en materia de hidrocarburos”, in the Revista de Derecho Público “Diez Años de Derecho Público en la Argentina-II”, 2013-2, Directors Tomás Hutchinson and Horacio Rosatti, pp. 409 ff., Rubinzal Culzoni Editores, Buenos Aires, 2012.

122 democracy, with a deepening of institutional quality and compliance with our greatest political pact which is the National Constitution, with its republican federal project. “The decision of the Federal Government to bet on dialogue on this occasion should be highlighted, and it received a notewor- thy response from the representatives of the provinces and the Au- tonomous City. I believe that the recent election results also helped, removing the possibility of hegemony and hyper-presidentialism, and facilitating these political agreements between the various forces, who began to exercise dialogue, here and in the Congress. “This is also a consequence of five rulings by the Supreme Court on November 24, 2015, just days after the end of Cristina Kirchner’s second term of government, in one of the most conflic- tive political and institutional transitions in Argentine history. And more than 7 years after the first claim made by the province of San Luis, followed by that of Santa Fe and much later, by the request for injunction from Córdoba. That is why we insist on the political and institutional importance of this agreement, which should serve as a starting point for more important objectives, in the financial and economic aspects of Argentine federalism and in particular the sanctioning of the Federal Law-agreement on Tax-Sharing. “At the beginning of 2017, the Presidency and the Go- vernors insisted on the need to enact three laws: tax reform, tax liability of governments and tax-sharing. In addition, the Pro- vince of Buenos Aires sued the Federal State for the recovery of the Conurbano Fund before the Supreme Court of the Nation. This Fund had been created in 1992 by Law 24.073 to compen- sate for the losses suffered by the Province in the transition from Tax-Sharing Law No. 20.221 to No. 23,548. However, in 1996, Law No. 24.621 limited the Fund to a fixed sum of 650 million pesos, which, never updated, produced a situation of marked injustice, aggravated by the fact that the surpluses of that cap, were divided among the other provinces. This was approximately 50 billion pesos, which explains the significance of this issue. That

123 is why the Supreme Court sought the opinion of all the other Provinces. Those governed by the Justicialist-Peronist Party declared that, if the Buenos Aires claim was accepted, the amounts should come out of the tax-share corresponding to the Federal Government. The number of court claims showed up another of our problems: that of the judicialization of politics, because in the absence of a solution by the political authorities, they resort to the highest court. “In that context, another important Federal Agreement dated November 16, 2017, was signed by the President, the governors - with the sole exception of the Province of San Luis - and the head of government of the Autonomous City of Buenos Aires, on important interjurisdictional matters. This Agreement had to be approved by a law of the Congress and of the respective provincial legislatures and of the Autonomous City of Bue- nos Aires, to be valid. Accordingly, Congress enacted two laws on December 21, 2017, approving the Agreement. No. 27,429, called Fiscal Consensus, involved tax and social security changes, and was accompanied by the resignation by the provinces of the claims initiated for the tax share before the Supreme Court of the Nation154. The other law, No. 27,428 of Fiscal Responsibility and Good Governance Practices, established rules to ensure solvency in public affairs, avoid overspending and growth in the appointment of public employees. “The municipal governments did not participate in the Agreement, but with suitable respect for their autonomy, Art. 33 of Law 27.428 proposes that the provinces should invite them to adhere to the Law, since only in this way will the legislation become mandatory at that level of government. However, this Agree- ment does not clearly specify the parts of the funds to be shared for local governments, which has led to some conflicts with the

154 In the Annex to the Agreement there is a list of the 59 lawsuits between federal and provincial states.

124 provincial authorities.155 The Agreement also established compensation for the Province of Buenos Aires for the Conurbano Fund, which we mentioned earlier. “These instruments, facts, dialogues and agreements between the federal government, the provinces and the Autonomous City of Buenos Aires have been a positive exercise of federalism of cooperation and cooperation, but it is necessary to bring about further changes to comply with the federal ideal of the Constitution.156 “The enactment of the tax-sharing law cannot be delayed any longer. It is not possible to continue with transient rules and pat- ches that do not solve the underlying problems. It is regrettable that the anomie in this decisive matter continues to deepen. This substantive issue must be resolved politically, complying with the national Constitution, which sets specific responsibilities for the president, the governors, Congress, and the legislatures. “One of our 20 Proposals to Strengthen Argentine Federalism is that the only way out of the current “labyrinth” of tax-sharing is to follow our Ariadne’s thread, which is nothing more than respecting the mandates of the Constitution. The total tax-share must be restored in accordance with this, for which almost the totality of the specific allocations in force today, which have decreased it, consolidating fiscal unitarianism, must be repealed or significantly modified. Then the primary and secondary distribution must be set on the basis of the constitutional criteria. It is crucial to place the emphasis on the division of powers, services and functions

155 As in the province of Cordoba, because Art. 188 Section 3 of its constitution establishes that no less than 20 per cent of the provincial tax-share, including all kinds of taxes, federal or provincial, shall correspond to the local governments. For this reason, both the provincial government and some local governments, including that of the city of Córdoba, have already appealed to the High Court of Justice of the province. 156 In particular, sanctioning the Law-agreement on Tax Sharing is urgently required, as expressly stated in clause m) of the Federal Agreement of Novem- ber 16, 2017.

125 between the nation, the provinces, and the City of Buenos Aires, since the latter levels of government, in addition to the municipalities, are those that have the greatest responsibilities in this regard. Greater recognition of the participation of the provinces and the City of Buenos Aires - which must necessarily then impact tax-sharing to the municipalities - will make the subsequent discussion on secondary distribution between provinces, the Autonomous City, and municipal governments relatively easier. “What I have called “the triumph of the centralist project” has resulted in a country of enormous differences and imbalances, as seen in the indexes of human development, gross product, or per capita income, which must be changed. The solidarity criteria required by the Constitution must be respected, as do the Cana- dian, Australian, or German federations. “This complex and decisive debate must begin right now, following the established constitutional guidelines. For this, a truly overarching policy is needed that overcomes partisan anta- gonisms, strengthens interjurisdictional relations, and allows a balanced development of the country in accordance with the federal project of the Constitution. Just as it was possible to achieve congressional sanction of consensus tax-sharing laws157 in the presidencies of Frondizi and Alfonsín, the same can be done based on these important precedents within the framework of the current political situation. This requires establishing serious and sound foundations in the area of federal finance under the mandate of the Constitution.” e) The need for a federal, regional, and municipal agenda. “We have long insisted on the need for a federal, regional, and municipal agenda for the country. We have already spoken of the federal agenda, through our Reports and especially in our work on the 20 Proposals to Strengthen Argentine Federalism.

157 Such as No. 14,788 of 1959 and No. 23,548 of 1988, which were a remarkable step forward in tax-sharing for the provinces in the primary distribution.

126 “As for the regional agenda, we have also mentioned that this process is practically halted, despite being one of the most important tools within the grand federal political project of the Constitution. That is why we include here the 2017 Seminar on Federalism and Regions in the National Constitution, which we co-organized with the Parliamentary Secretariat of the national Senate and the Fundación Metropolitana. Over 3 days, members of the Institute of Federalism and national senators gave presen- tations on the different regions of the country. These important, unprecedented conferences are recorded and can be found in YouTube, under the title Federalismo y Regiones en la Constitu- ción Nacional and were uploaded by the Senate of the Nation, through their specific departments. “We therefore insist on the need to discuss an agenda on these issues, which will ultimately bring about the ethical and institutional change that society is waiting for.”

2.12 The “20 Proposals to Strengthen Argentine Federalism”

Comparative analysis with other federations around the world presents us with a very suitable constitutional design with appreciable decentralization of power and recognition of the autonomies of the provinces, municipalities and of the Autonomous City of Buenos Aires. But now the issue lies in the need to comply with the mandates of the Constitution, since the triumph of the centralist project, the fruit of the constitutional violations, has resulted in a country of enormous differences and imbalances, as shown in the indexes of human development, gross product, or per capita income158, and this must be corrected.

158 See Miguel Angel Asensio, “Desequilibrios territoriales y disparidades re- gionales en un contexto federal”, in Cuaderno de Federalismo, No XXVI, Insti- tuto de Federalismo de la Academia Nacional de Derecho y Ciencias Sociales de Córdoba, Córdoba, 2013, pp. 171-83. This can also be found online at www. acaderc.org.ar, Instituto de Federalismo.

127 For this reason, we wrote the 20 proposals to strengthen Ar- gentine federalism159, which we list without comment here: “1. Comply with the principles of the republican federal system of the National Constitution. “2. End hyper-presidentialism. “3. Strengthen the federal role of the Congress of the Nation and of the Senate in particular. “4. Reaffirm the role of the Supreme Court of Justice as the guarantor of federalism. “5. Promote a new territorial ordering of the country that modifies the huge concentration of political, economic, demographic, and cultural power in the metropolitan area of Buenos Aires. “6. Enact the Law-Agreement on Tax-Sharing, in accordance with constitutional principles. “7. Respect federal principles when enacting the annual budget. “8. Federalize the Central Bank. “9. Strengthen the federalism of coordination or cooperation through a better exercise of interjurisdictional relations. Create a National Association or Conference of Governors. “10. Conduct federal planning for the development of the country, with participation from the different state levels. “11. Promote regions for economic and social development. “12. Promote the new role of regions, provinces, and municipalities in the processes of national and supranational integration. “13. Strengthen the autonomy of the provinces, the Auto- nomous City of Buenos Aires, and the municipalities. “14. Amend or repeal the existing centralist legislation and its respective policies. “15. Federalize education.

159 In “Propuestas para fortalecer el federalismo argentino”, Hernández, Rezk, Capello, Coordinadores, Instituto de Federalismo de la Academia Nacional de Derecho y Ciencias Sociales de Córdoba, Córdoba, 2015, pp. 9-50 and my “La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino”, Jusbaires, Buenos Aires, 2017. There is also an online version at www. acaderc.org.ar, Instituto de Federalismo. They are further developed there.

128 “16. Exercise a federalism of cooperation for the exploration, exploitation and use of natural resources. “17. Federalize the public services within national competence. “18. Strengthen federal principles in the doctrine and organization of the political parties. “19. Decentralize and integrate the country in other aspects (infrastructure, transport, communications etc.). “20. Move the Federal Capital.”

3. Similarities and differences between both Constitutions

3.1 Similarities and differences in the form of government and state

Through the comparative analysis, similarities can be seen in the form of representative, republican, presidential government and of federal State which the respective Constitutions have established. The influence that the US Constitution has had for the adoption of the Constitution of Argentina is evident, since it served as a model as Jose Benjamín Gorostiaga, the Reporter of the Consti- tutional Convention of 1853, stated. There is also some similarity of historical processes, as both countries had to fight their respective wars of independence, to overcome the colonial stage, and then effect their constitutional organization. But there are also notable differences in the historical processes and in each of the stages mentioned. Indeed, the cultural influences of the English and Spanish crowns were quite different, as can be seen in a multiplicity of aspects, starting with different juridical systems: the USA belongs to the common law system, while Ar- gentina belongs to the civil law system. And from there, different cultural, political, and social features run through their histories up to our time. It is worth remembering what John Adams said before the Revolution on the need to maintain English traditions in defense of freedom, or the quotes in the Federalist Papers from

129 English authors such as Locke or Blackstone in favor of the fundamental principles of English law. In contrast, in relation to the influence of the Spanish crown, Sarmiento in Recuerdos de Pro- vincia (1850) declared that the United States after the Revolution had maintained the freedoms, juries, parliaments and constitutional charters of the English system, while Argentina had to change its past of a Spanish absolute monarchy and of the Church’s Inquisition. Alberdi in Bases expressed similar ideas on the colonial past that Argentina had to leave behind. We will see later the significance of the Spanish colonial past for our deficient juridical culture, as a consequence of absolute government, the lack of deliberative assemblies and of local democratic governments, the fascination with caudillos, and the contempt for the law, as Juan Agustín García noted in La ciudad indiana. It is clear that behavior in relation to the law and the value assigned to institutions have been different in both countries, among other aspects of their diverse cultural influences. Another difference can be seen in terms of the time-period of the respective processes, since the USA took only 11 years from the beginning of the revolution in 1776 until the adoption of the Constitution of Philadelphia, whereas Argentina took 43 years from the Revolution of May 1810 until the sanction of the Na- tional Constitution in 1853. Thus, the USA reached a consensus on the form of government and state more rapidly than Argentina. As for the characteristics of both federalisms, that of the USA is clearly much more decentralized than that of Argentina. This was linked to the debate and struggle between “federalists” and “antifederalists,” on the one hand, and between “unitarians” and “federalists” on the other. While in the USA the “federalists” managed for the first time to establish that form of government and state, through a stronger federal government, but with special recognition of the sovereignty and autonomy of the states, the “antifederalists” defended a more confederal position, pointing to the dangers of federal government for the rights of states.

130 In contrast, in Argentina, the unitarians postulated a form of state in which everything depended on a central government, while the federalists emphasized the defense of provincial autonomies. This led to a significantly more centralized federalism than that of its model, beyond the reform made in 1860, which modified an even more centralist conception of the original version of federalism. Finally, both federalisms can be classified as “integrative”, as both were the result of the delegation of powers by the states and provinces. For us federalism, based on a pactum foederis, was the form of state and government chosen to resolve the serious political, economic, and social conflicts that occurred between the provinces and was the result of our historical evolution, as it also happened in the United States.

3.2 Differences in the constitutional texts of the USA and Argentina

Arturo M. Bas160, professor of the University of Cordoba, indicated the following differences in federalism between the Constitu- tion of 1787 and that of 1853 with the Reform of 1860: 1) The procedures and formalities required for the definitive enactment of the Constitutions, since in Argentina in 1853the vote of the representatives of the people of the provinces was considered sufficient, while in the United States, pursuant to Art. VII of the Constitution, ratification was necessary by the legislative branches of nine states, i.e. two thirds of the thirteen existing states, which was achieved only in 1791, four years after its enactment in Philadelphia. 2) The manner in which both constitutions are reformed, since the Argentine Art. 30 establishes the convention system with prior declaration of the need of reform by both chambers of

160 “El Derecho Federal Argentino”, Valerio Abeledo, Buenos Aires, 1927, Tomo 1.

131 Congress, while the US Constitution establishes that an amendment can be passed by Congress, with the vote of two-thirds of each chamber, or by means of a convention, called by Congress at the request of two-thirds of the legislative branches of the states, that also requires ratification by the legislatures of three-quarters of the states or by conventions held in three-quarters of the states, depending on the manner of ratification the Congress may choose, as established in Art. 5. 3) In religious matters, while the Argentine Constitution supports the Roman Catholic Church, the US Constitution established in its 1st Amendment that the Congress would not pass any laws on religious faith. 4) In relation to the equality of the states, the US Consti- tution established in its Art. 5, in fine, that “... no State shall be deprived, without its consent, of its equal suffrage in the Senate”, while in Argentina this important rule does not exist. 5) In tax matters, since the U.S. Constitution in its Art. 1, Sec. 2, Clause 3 declared that direct taxes must be distributed between the States according to their population, while the Argen- tine Constitution, in Art. 67 Sec. 2 (now Art. 75 Sec. 2 after the 1994 Reform) established proportionality, not in relation to the population of each province but seeking equality in all of the national territory. Clause 5 of Sec. 9 of Art. 1 forbids the American Congress to establish duties or taxes on articles which are exported from a state, while the Argentine Constitution, in its Arts. 4 and 67 Sec. 1 (now Art. 75, Sec. 1) listed export duties among the assets of the federal Treasury. Finally, the Argentine Constitution, in its Arts. 9, 10 and 11, banned the provinces having customs offices or receiving import or export duties, while the USA Cons- titution declares otherwise in its Art. 1, Sec. 10, Clause 2, which reads: “No State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws; And the net Produce of all Duties and Imposts, laid by any State on

132 Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress”. 6) In electoral matters, as regards the organization of the federal powers, in Argentina this attribution belongs to the Con- gress, but in the USA, with its greater decentralization, it is the competence of each state. This is indicated in Art. 1, Sec. 2, Clau- se 1, for the election of the members of the House of Represen- tatives, and in the same article, Sec. 4, Clause 1, in addition to Amendment XVII, for the election of Senators. Also, Art. 2, Sec. 1, Clause 2 sets the following for the election of President and Vice-president: “...Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the Sta- te may be entitled in the Congress”. 7) Regarding representation in the Congress of the Federal Capital, while in Argentina it was permitted in both Houses by Arts. 37 and 46 (now 45 and 54), in the US case this was not allowed. The Twenty-Third Amendment of 1961 only permitted the election of members of the Electoral College for the election of President and Vice President of the Nation by the elec- torate of the District of Columbia. The constitutional reform of 1994 recognized this representation in both Chambers for the Autonomous City of Buenos Aires, regardless of whether it remains the Federal Capital. If the capital should change its location in the future, it will have representation for its population in the Chamber of Deputies, under Art. 45. 8) As regards substantive legislation, in Argentina, these are powers of the national Congress under Art. 67 Sec. 11 (current Art. 75 Sec. 12), while in the USA such powers belong to the States. 9) Concerning the powers of the federal courts in cases against one of the states or provinces, there is an important difference because, while the Argentine establishes this power in its Art. 100 (current 116): “Knowledge and decision in all suits …

133 between one province and the neighbors of another… between a province or its neighbors against a foreign State or citizen correspond to the Supreme Court and to the lower Courts of the Nation”, the US has the opposite solution. In effect, Bas recalls that when the Constitution was submitted for ratification by the states, it was objected that any of these was exposed to being sued by the citizens of another state, which affected their sovereignty, power and dignity; and in 1793, in the case “Chi- sholm v. Georgia”, when the Supreme Court accepted a laws- uit against Georgia, the state refused to appear, not recognizing the jurisdiction of the Court, in which the Court insisted. Since other states accompanied Georgia’s position, Amendment 11 was subsequently passed which says: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”. 10) In connection with citizenship, the Argentine Consti- tution provides for unity, giving the national Congress in its Art. 67 Sec. 11 (now Art. 75 Sec. 12) the power to enact “...general laws on naturalization and nationality for the entire Federal State, based on the principle of nationality by birth or by option for the benefit of the Argentine Republic; ...”, while the U.S. Constitu- tion additionally accepts the criterion of state citizenship, with the sole limitation of Amendment 14, Sec. 1, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside...” 11) As regards the election of President and Vice-President, in the event that an absolute majority of the electors’ votes is not reached, the Argentine Constitution in its Arts. 82 to 85 (now repealed because direct election was introduced) determined that the Congress would choose them “with absolute plurality of votes and by nominal voting”. In the United States, however,

134 Amendment 12 establishes that, in such a case, it is the House of Representatives which must choose, in which “the votes shall be taken by States, the representation from each State having one vote”, thus establishing here the equality of the states, avoiding the dominance of those with the greatest representation. 12) As regards the appointment of officers by the President with the approval of the Senate, there is another important difference because, while in the Argentine Constitution the rule is exceptionality, for these cases, according to Art. 86, Secs. 5, 10 and 16 (now Art. 99 Secs. 4, 7 and 19), in the United States such approval is the ordinary rule, since Art. 2 Sec. 2, Clause 2 states that the President “shall nominate, and by and with the Advi- ce and Consent of the Senate, ... all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments”. This difference shows not only the greater decentralization of power in the American model, which strengthens the role of the Senate, where the states are equally represented, but also the Alberdian conception of presidential attributions. It is well known that, although Alberdi followed the guidelines of the Constitution of Philadelphia, he also incorporated greater powers in accordance with the model of the Chilean Constitu- tion of 1833, which outlined a system with stronger presidentialism. Alberdi in the Bases argued that it was necessary to give all the necessary power to the President, since on that depended the fate of South America. Modifying this important issue, vital to our republican system of the division and balance of powers, was one of the ideas behind the constitutional reform of 1994, a subject which exceeds the scope of this study. Nevertheless, in direct relation to this point, as a delegate in this Assembly, we proposed broadening the positions that required Senate

135 agreement to appointment by the President. We proposed a new subsection for Article 86, 10 bis, which read: “Appoint and remove, with the agreement of the Senate, the members of the Board of Directors of the Central Bank and all those officials of control organizations, for whose appointment the laws require the approval of the Senate.”161 13) As regards federal intervention in local bodies, there are also differences between Art. 6 of the Argentine Constitution and its antecedent Art. 4, Sec. 4 of the USA Constitution, because: a. in the Argentine Constitution, reference is made to intervention in provincial territory in certain circumstances, while in the U.S. case it is indicated that the Federal Gover- nment must protect the states or their authorities; b. In the Argentine Constitution, such intervention may en- tail the replacement of provincial authorities by a federal commissioner, while in the USA the protective action is for the support of the state government; c. Art. 6 authorizes intervention to restore authorities that have been overthrown, but that is not provided for in the US Constitution. d. The Argentine Constitution ensures the people of each of the provinces the enjoyment and exercise of their own institutions (Art. 5), while the U.S. Constitution only guarantees a republican form of government. Despite the small differences between both constitutional texts in this matter, in institutional behavior the gap is immeasurable because in Argentina, federal intervention has been the classic lament of its federalism, since in violation of the letter and

161 “Reforma constitucional de 1994-Labor del Convencional Constituyente Antonio María Hernández (h.)”, Buenos Aires, Imprenta del H. Congreso de la Nación, 1995, pp. 25-43, which transcribes the draft in File 72, and Hernán- dez Antonio M. “Proyecto de Reforma de la Constitución Nacional conforme los criterios fijados por la ley 24.309 de dicha Convención Nacional Constituy- ente”, where in Art. 19 we discuss the amendments of Art. 86, on p. 31.

136 spirit of the Constitution, this was one of the most effective instruments for centralizing the country and overriding provincial autonomies. 14) With respect to subsidies from the federal government, the Argentine Constitution, in Art. 67 Sec. 8 (now Art. 75, Sec. (9) gave Congress this power for the provinces “whose income is not enough to cover their ordinary expenses”, while there is no similar condition in the US Constitution, reflecting the greater independence of the States of the Union. 15) Finally, Bas writes that the US Constitution does not include a provision like that of Art. 110 (now 128) of the Argenti- ne Constitution, according to which the provincial governors are “natural agents of the Federal Government to enforce the Cons- titution and the laws of the Republic of Argentina”, which, as we know, is difficult to interpret in our federal state. This confirms our opinion on the greater degree of decentralization of power enacted in the American text, which with its correct application for more than 200 years, has enabled the exem- plary development of its federalism as a form of state. Another significant difference is that in the Argentine Constitution of 1853, Art. 5 incorporated the Provinces’ obligation to enact their Constitutions, and among its requirements, that of “securing the municipal regime,” which is not in the US Constitution. More differences were added by the Constitutional Reform of 1994: In the institutional and political aspects of federalism: 1. The recognition of four orders of Government in the Ar- gentine Federation, i.e., the Federal government, the Provinces, the Autonomous City of Buenos Aires (Art. 129) and the autonomous Municipalities (Art. 123), to which should be added the possibility of the creation of regions for economic and social development (Art. 124).

137 2. The distribution of powers between these orders of government, maintaining the general principle of enumerated powers for the Federal government and non-enumerated or residual for the Provinces (Art. 121), and recognizing new, greater powers for the Provinces and Municipalities. 3. The recognition of the power of policing and taxation of provinces and municipalities over national utility establishments, as a clear affirmation of autonomic and federal principles (Art. 75 Sec. 30). 4. The federal role of the Senate has been accentuated by the direct election of its members (Art. 54), the incorporation of the third senator for the minority (Art. 54) and the allocation of greater powers (Art. 75 Secs. 2 and 19), ascribing it the character of chamber of origin in laws relating to federal tax-sharing and those that promote differentiated policies to balance the unequal relative development of Provinces and Regions). 5. The electoral college for the election of President and Vice-President was abolished, establishing direct and run-off election (Arts. 94 to 98), for greater democratic legitimacy162. 6. The declaration of federal intervention now essentially corresponds to Congress (Art. 75, Sec. 31), modifying the previous practice which allowed the president to intervene by decree, as occurred in two-thirds of the more than 170 interventions of provinces, which constituted one of the causes of the centralization of the nation. 7. In the political parties (Art. 38), to ensure they comply with the federal idea and practices in their operation.

162 It is interesting to highlight the topicality of this debate in the United States, as seen in the Editorial note Let the people pick the President of The New York Times, Wednesday, November 8, 2017, p. A 26. See John Dinan, Contemporary debates about the US Presidency and Congress: The electoral college, legislative ger- rymandering and enumerated powers, in Dialogues on Legislative and Executive Governance in Federal Countries, Bindenbacher Raoul and Abgail Ostien, Edi- tors, ProQuest Ebook Central, MQUP, 2006, pp. 35-38.

138 In the financial aspects of federalism: 8. The Tax-sharing system, with the aim of sanctioning a law-agreement as an instrument of co-operative and consensus federalism, to solve the serious problems of our fiscal federalism (Art. 75 Sec. 2). 9. The Federal Fiscal Agency, as a fundamental institution to ensure the smooth functioning of interjurisdictional fiscal relations and the tax-sharing system (Art. 75 Sec. 2). 10. Federal guidelines for the national budget, so that the federal government invests public funds with “federal” criteria (Art. 75 Sec. 8). In the economic and social aspects of federalism: 11. The creation of a Federal bank (Art. 75 Sec. 6), to modify the current Central bank, which is more typical of unitarian states. 12. The creation of Regions for economic and social development (Art. 124), as a new alternative to strengthen our federalism and to reverse the current inadequate territorial ordering. 13. The possibility of the provinces and the Autonomous City of Buenos Aires signing international agreements (Art. 124), as one of the essential bases for modernizing our public law in the framework of open regionalism and a globalized world. 14. The reaffirmation of the original domain of the provinces over their natural resources (Art. 124), as another of the far-reaching decisions of the Convention in recognition of provincial autonomy. 15. The reaffirmation of provincial powers to create social security bodies and other concurrent faculties (Art. 125), ratifying the principle of dividing powers between federal and provincial governments. 16. The reaffirmation of federal principles in education, science, and culture (Art. 75 Sec. 19), with criteria and objectives similar to those of the previous point. To these reforms specifically related to federalism, there must be added two other reforms that are very important for the decentralization of power:

139 17. Recognition of the great principle of municipal autonomy, in its institutional, political, administrative, financial, and economic aspects (Art. 123)163, and 18. The recognition of a new status for the Autonomous City of Buenos Aires, which is a new member of the federal society, with powers similar to those of the provinces (Art. 129).164 19. And finally, in relation to human rights and provincial constitutionalism, the Constitutional reform granted constitutional hierarchy to eleven international human rights conventions, within the Constitution of the Nation (Art. 31), which must be respected and implemented by the provinces as provided for in Art. 5 of the National Constitution. Thus, there is now a great difference in the constitutional texts, because Argentina modernized its Constitution in the reform of 1994, which has not happened in the USA. Three stages may be seen in the history of constitutionalism: the classic or liberal, which corresponded to the recognition of civil and political rights and was historically the first, starting from the Philadelphia constitution of 1787, which influenced the others. The second stage, social constitutionalism, corresponding to the recognition of the social rights, began with the Mexi- can Constitution of 1917 and that of Weimar in 1919, and was affirmed after thend 2 World War with the Constitutions of Italy, France, and Germany. And then, the third stage, constitutionalism of the internationalization of human rights, was the result of the United Nations struggle to adopt international human rights treaties, which were incorporated into constitutional texts. From this perspective, the United States maintains a first stage constitution, while Argentina adopted a third-stage constitution in the Reform of 1994.

163 See my studies mentioned above and also, Derecho Municipal, op. cit. Te- oría General, Ch.. 3 and 5. 164 See my studies mentioned above and also, La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo, op. cit.

140 Part 2. The functional aspects of US and Argentine federalism

1. The Role of the Supreme Court of Justice

1.1. The United States

In this complex issue, I will confine myself to exploring the role of the Supreme Court in relation to federalism and, specifically, with one of the most serious problems, which is the division of powers between the various areas of government. For reasons of brevity, I cannot go into the robust debate in the United States on judicial review, the scope of the constitutional review, its case-law principles, and the various schools of constitutional interpretation. The role of the Court has been of decisive importance165, for its function as the final authority in matters of constitutional review166, and also because the general principles of distribution of powers adopted in the constitutional text allowed various, ex- pansive or restrictive, interpretations 167. This has been observed concerning the scope of the faculties delegated to the federal government and to Congress, in topics such as the commercial clause and the necessary and proper clause of implicit faculties168, as well as in relation to the Tenth Amendment, aimed at preserving the residual powers of the states and the Eleventh Amendment, which recognized the sovereign immunity of states169.

165 Madison wrote that the Supreme Court would decide “controversies relating to the boundary between the two jurisdictions”, Federalist Nº 39, Federalist Papers, ed. Clinton Rossiter, New York, (1961). 166 Thus initially defined in the famous case “Marbury v. Madison” in 1803, with the vote of Chief Justice John Marshall. 167 Regarding the importance of distribution of powers, Erwin Chemerinsky said: “By federalism, I simply mean the allocation of powers between the federal and state governments”. (The values of federalism, 47 Florida Law Review, (1995), pp. 499-540, esp. p. 504). 168 Constitution, Art.1 Sec. 8, in fine. 169 See David L.Shapiro, Federalism. A Dialogue, op. cit.; Larry Kramer, Un- derstanding Federalism, 47 Vanderbilt Law Review (1994), pp. 1485-1562;

141 We will try to describe how the Supreme Court’s case-law has evolved on these issues, to conclude whether it has tended to configure a more or less centralized federalism. We will follow the analysis of Ilya Somin170, on judicial interpretation and enforcement of limits on Federal and State governments in history. Regarding limits on federal government, Somin in the Early Republic and Antebellum Eras, mentions the debate between Je- fferson and Madison on the Federal Bank of the United States in 1790, in which Jefferson “argued that its creation exceeded Congress’s enumerated powers under Art. 1 of the Constitu- tion,” and Hamilton “contended that the Necessary and proper clause was broad enough to authorize it” 171. Finally, the Supre- me Court with the opinion written by Chief Justice John Mars- hall in the crucial case of “McCulloch v. Maryland” (1819), “not only upheld the constitutionality of the Bank, but also endorsed Hamilton’s argument that the word necessary in the Necessary and Proper clause could be interpreted to allow Congress to enact any legislation that was merely “useful” or “convenient” as a tool for executing one of Congress’s other enumerated powers”.172 Somin pointed out that this sentence “is traditionally seen as an endorsement of extremely broad congressional power”, but considered that “Marshall’s opinion indicated that the clause authorizes legislation only with a “legitimate” purpose that is “within the scope of the Constitution”, and that this passage suggests constraints for congressional powers173.

Malcolm Feeley and Edward Rubin, Federalism. Political Identity and Tragic Compromise, op. cit.; Robert A. Schapiro, “Polyphonic Federalism”, op. cit.; Er- win Chemerinsky, The values of Federalism, op.cit., pp. 499-540; Illya Somin, The Supreme Court Of The United States: Promoting Centralization More Than State Autonomy, pp.440-481, in the book Courts in Federal Countries: Federal- ists or Unitarists?, edited by Nicholas Aroney and John Kincaid, University of Toronto Press 2017, Toronto, Buffalo, London, 2017, pp. 440-481. 170 Ilya Somin, op. cit.,. 171 See Ilya Somin, op. cit, p. 448. 172 17 U.S. (4 Wheat), 413-415 and Illya Somin, op. cit., p. 449. 173 Ibid., op.cit., p. 449.

142 The other important case was “Gibbons v. Ogden” (1824) in which Marshall wrote the Court’s opinion on the scope of congressional authority to regulate “commerce among the several States”, upholding the constitutionality of a federal law granting navigation licenses to ships on the Hudson River trading between New York and New Jersey.174 Somin considers that “Marshall defined commerce relatively broadly as “intercourse”, but he also emphasized that federal power to regulate commerce has significant limits, listing “inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, fe- rries”, as part of the great mass of issues that federal power under the Commerce Clause does not cover”.175 In the Post-Civil War Period, Somin writes that “... The Supreme Court entered a seventy-year period during which it enforced significant limits on federal powers and issued a number of notable decisions constraining congressional authority under the commerce clause and other parts of the Constitution”176. He cites the case of177 “Paul v. Virginia” (1869), in which the Court ruled that the commerce clause did not cover the regulation of insurance contracts because the latter were not “articles in commerce” In “United States v. E.C. Knight” (1895), the Court invalidated the application of federal antitrust laws to a manufacturing firm as beyond the commerce clause, because there is a distinction between interstate commerce and the manufacturing that takes place within

174 Ibid., op.cit., pp. 449-450. 175 Ibid., op.cit., p. 450. Somin mentions two other cases relatively supportive of federal power: “Marbury v. Madison” (1803), regarding the power of judicial review and “Dred Scott v. Sandford” (1857), where the Supreme Court ruled that Congress lacked the power to ban slavery in federal territories. This pro-slavery sentence written by Chief Justice Taney had explosive consequences in US history and politics as it determined Abraham Lincoln’s election, the Civil War of 1861-5, and the subsequent Thirteenth Amendment, which abolished slavery. 176 Ibid., p.451. 177 Ibid., p. 451-2.

143 the boundaries of a single state. In the “Civil Rights Cases” (1883), the Court struck down the Civil Rights Act of 1875, which banned racial discrimination by private businesses operating places for public accommodation. And the Court’s most widely reviled decision limiting federal power was “Hammer v. Dagenhart” (1918), says Somin178, “which struck down a law that banned the interstate transportation of manufactured goods produced by children under the age of sixteen.” In “Pollock v. Farmers’ Loan & Trust Com- pany” (1895), the Court took a “controversial decision limiting Congress’s power to impose taxes, holding that an income tax qualified as “direct tax” that must be apportioned among the States in proportion to population”. This sentence gave rise the Sixteenth Amendment in 1913, which gave the Congress the power to adopt income taxes without apportionment.179 Somin argues that those limits on the federal government were supported by the political consensus in favor of constitutional constraints on federal authority, and that this was based on rivalries between the north and the south, which remained until the beginning of the twentieth century. In the Period of New Deal Transformation, which was the response of President Franklin D. Roosevelt to overcome the Great Depression that began in 1929 through interventionist policies that regulated the economy, the Court between 1935 and 1937 declared some of these policies unconstitutional, including the National Recovery Act of 1933. This decision was unanimous and included the progressive Justices Louis Brandeis and Benja- min Cardozo, in addition to the conservative justices180. This originated Roosevelt’s court-packing plan, that would allow him to add a new justice for every current justice over the age of seventy who chose not to resign. Although the project was rejected in Congress, in 1937 the Supreme Court changed position and

178 Ibid., p. 452. 179 Ibid., p. 452. 180 Ibid., p. 454.

144 allowed the expansion of the powers of Congress in “United States v. Jones & Laughlin Steel” (1937)181 and “United States v. Darby” (1941)182. In “Steward Machine Co. V. Davis” (1937)183 and “Hel- vering v. Davis” (1937)184, writes Somin185, the Supreme Court upheld the constitutionality of the Social Security Act, which created the federal cooperative inter-governmental program for unemployment insurance, retirement pensions, and welfare for single mothers. “Davis” and the Court’s earlier decision in “Butler” also endorsed the theory that Congress’s power to spend money for the “general welfare” allows it to spend for nearly any purpose. But the broader standard on federal powers of this New Deal era of the Supreme Court was set in “Wickard v. Filburn” (1942)186, Somin says 187, and adds: “The Court ruled that the commerce clause authorized a provision of the 1938 Agricultural Adjustment Act that required a wheat farmer to limit his production of wheat, even though none of that wheat was ever sold in Interstate Commerce or crossed state lines ... which suggested that Congress had the power to regulate almost any activity that, in the aggregate, has a significant effect on commerce. In the modern world, that could mean almost any activity of any kind.” Somin’s last point in this historical account is “The partial revival of judicial enforcement of limits on federal power.” The author notes that “… between 1937 and 1995 the Supre- me Court did not invalidate a single federal law as beyond Congress’s Commerce Clause authority. The Court issued no- teworthy unanimous decisions holding that the clause authorized Title II of the Civil Rights Act of 1964, which banned racial

181 301 U.S. 1 (1937). 182 312 U.S. 100 (1941). 183 301 U.S. 548 (1937). 184 301 U.S. 619 (1937). 185 “The Supreme Court of the United States: promoting centralization more than state autonomy”, op.cit., p. 455. 186 317 U.S. 111 (1942). 187 Ilya Somin, op. cit., p. 456.

145 discrimination in places of public accommodation, such as ho- tels and restaurants”.188 The Court concluded that the clause authorized congressional regulation of any activity that Con- gress had a “rational basis” for believing might have an effect on interstate commerce”.189 In that period, however, the Supreme Court, in the case “National League of Cities v. Usery” (1976)190, declared the unconstitutionality of the Fair Labor Standards Act which required compliance by state and local governments of that law for their public employees. The court based its decision on the Tenth Amendment, which recognized the residual powers for the sta- tes191. But that sentence was overruled in “Garcia v. San Antonio Metropolitan Transit Authority” in 1985.192 “Justice Blackmun”, says Erwin Chemerinsky193, “writing for the Court in “Garcia,” unequivocally declared that it was not for the federal courts to enforce the Tenth Amendment. He explained that it had proven impossible to define what activities are so “integral” to state governments that Congress cannot regulate them. More importantly, he expressly relied on the writings of Professor Herbert Wechsler and concluded that the national political process provided sufficient safeguards to protect state government interests. “García” was thus a strong reaffirmation of the post-1937 judicial deference to Congress and the Court’s unwillingness even to consider federalism challenges to federal legislation”194.

188 “Katzenbach v. McClung”, 379 U.S. (294 (1964) and “Heart of Atlanta Motel, Inc. v. United States”, 379 U.S. 241 (1964). 189 Ilya Somin, op. cit., p.. 456. 190 426 U.S. 833 (1976). 191 Somin says “National League of Cities contrasts with the New Deal Court’s dismissal of the Tenth Amendment as “but a truism” that imposes little if any constraint on the scope of Congressional authority”. 192 469 U.S. 528 (1985). 193 Erwin Chemerinsky, op. cit., p. 507. 194 Wechsler’s opinion in The political safeguards of federalism: the role of the States in the composition and selection of the Federal Government, 54 Columbia

146 Chemerinsky says that in this period from 1937 to 1995 there was a paradox in Court jurisprudence, based on two pre- mises. “One view is that judicial enforcement of federalism as a limit on Congress is unnecessary because the political process will adequately protect state interests… In contrast, the emphasis on federalism as a limit on federal judicial power is based on a second premise, that comity – respect for state governments – is a crucial value in the two-tiered system of government created by the Constitution. In Younger v. Harris, for example, the Court explicitly invoked the notion of comity and emphasized that an injunction halting state judicial proceedings would be an undue “negative reflection” on the competence of state courts and a dis- ruption likely to cause friction between the court systems.”195 The paradox – says Chemerinsky196- ended when the Supreme Court in defense of federalism again set limits to the power of Congress, which occurred in the decade of 1990 in the Rehnquist Court 197. It is very important to understand that these changes in the jurisprudence of the Supreme Court were the result of the political process. Somin says 198: “Beginning in the early 1990s, however, judicial enforcement of limits on federal power was partially re- vived under Chief Justice William Rehnquist, appointed to that position by President Ronald Reagan in 1986. The Rehnquist

Law Review (1954) 543-564, was later sustained by Jesse Choper in Judicial Re- view and the national political process, University of Chicago Press, 1980. 195 Erwin Chemerinsky, op. cit., pp. 508-9. 196 Ibid., p. 513. 197 Robert A. Schapiro calls this jurisprudence the return of “dualism” and writes: “By dualist I mean the view that principal authority for regulating a subject must be allocated to either the national government or state governments. The federal government will control certain topics, and state governments will have power over others. Unlike true dual federalism, dualist federalism can accept a large realm of coextensive authority; many matters may be subject to concurrent regulation by the state and national governments”. (Polyphonic Fed- eralism, op. cit., Ch. 3, p. 55. 198 Ilya Somin, op. cit., pp. 458-9.

147 revival had several causes. In the 1980s and 1990s, the resurgent Republican Party claimed that federal power had grown too great and advocated allowing the states greater autonomy. Reagan and his successor, President George H.W. Bush, appointed several Supreme Court Justices committed to reinvigorating judicial enforcement of federalism, including Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas. Just as the earlier collapse of judicial review of federalism had its roots in the triumph of the New Deal Coalition that dominated American politics for several decades, so the Rehnquist revival would not have been possible without the rise of more conservative political forces in the 1980s. In addition, a new generation of conservative and li- bertarian legal scholars began to challenge the previous intellectual consensus against judicial review of federalism. Finally, as time passed since the Civil Rights revolution of the 1960s, the association of federalism with racism diminished in the public mind. The 1990s revival of judicial review of federalism proce- eded along several fronts. In United States v. López (1995)199 the Court issued its first decision constraining congressional power under the Commerce Clause since the 1930s. Five years later, the Court invalidated another law as beyond the commerce power in United States v. Morrison200. “In interpreting the scope of Section 5 of the Fourteenth Amendment, [in the case City of Boerne v. Flores (1997)201] the Supreme Court of Rehnquist was less deferential than its prede- cessors in the 1960s. It ruled that legislation must be “congruent and proportional” to the unconstitutional state action it sought to remedy and could not forbid too much state activity that was not unconstitutional in and of itself.”202

199 514 U.S. 549 (1995). 200 529 U.S. 598 (2000). 201 521 U.S. 507 (1997). 202 Ilya Somin, op. cit., p.459.

148 This case law was continued by the current Supreme Court with Chief Justice Roberts in Shelby County v. Holder (2013)203, which “similarly limited the scope of Congress’ power under Sec- tion 2 of the Fifteenth Amendment, which authorizes it to pass “appropriate” legislation to implement the Amendment’s ban on racial discrimination in voting”.204 Other very important decisions of the Rehnquist Court to limit federal powers in New York v. United States (1992)205 and Printz v. United States (1997)206, ruled that the Tenth Amend- ment bars federal “commandeering” of state officials to use them to enforce federal law. In her acute comment on Printz, Vicki C. Jackson207 says, in relation to the Scalia majority vote arguments on constitutional structure: “Invoking the idea of a balance of power between the spheres of state and federal government, Justice Scalia commented that: “The power of the federal government would be augmented immeasurably if it were able to impress into its service – and at no cost to itself - the police officers of the 50 States.” Moreover, he argued, allowing federal laws to commandeer state executive forces would disturb the federal separation of powers by undermi- ning the authority of the unitary President. And, dismissing the Necessary and proper clause as the “last, best hope of those who defend ultra vires congressional action”, Justice Scalia concluded that commandeering state governments is not a “proper” means.”

203 133 S.Ct. 2612 (2013). 204 Iliya Somin, op. cit., p. 459. 205 505 U.S. 144-166 (1992). 206 521 U.S. 898-923 (1997). 207 Vicki C. Jackson, “Federalism and the uses and limits of Law: Printz and Prin- ciple”, 111 Harvard Law Review, 2180-2259 (1998), pp. 2191-2. Jackson analyzes the four basic points of Scalia arguments: 1. The theory of double sovereignity; 2. Clear constitutional statement on broad state immunity from the exercise of federal power and, concomitantly, of the lower federal power; 3, A historical theory, based on the intention to preclude federal commandeering in the Constitution of 1787; and 4. A theory of democratic accountability. See pp. 2195-2205.

149 The Roberts Court in Windsor v. United States (2013)208 continued the jurisprudence of the Rehnquist Court on respect for state prerogatives, by striking down Sec. 3 of the federal De- fense of Marriage Act, which denied Federal Marriage benefits to same-sex couples who had entered into marriages in states that permit gay marriage under their state law.209 Finally, Somin refers to the cases Seminole Tribe of Florida v. Florida (1996)210 and Alden v. Maine (1999)211, where the Re- hnquist court began to enforce more vigorously the theory that the Eleventh Amendment, which bars suits against State governments that do not consent to these “by citizens of another state, or by citizens or subjects of any foreign state”, and also implicitly forbids the federal government from authorizing private lawsuits against states even by their citizens.212 Somin213 asserts that the Rehnquist “federalism revolution” was an important jurisprudential development, but that its impact on the federal powers has so far been limited because in Com- merce Clause field, the Court struck down only relatively minor laws in Lopez and Morrison. And to this was added the decision in Raich214. In Gonzales v. Raich (2005)215, the Court ruled that the Commerce Clause allows Congress to ban the possession and production of medical marijuana, even when the drug in question has never crossed state lines or been sold in any market216. Regarding the commandeering cases, Somin says that they “can be circumvented to a large extent by tying mandates imposed on state governments to federal grants as conditions the recipients

208 133 S.Ct. 2675 (2013). 209 Ilya Somin, op. cit., p. 460. 210 517 U.S. 44 (1996). 211 527 U.S. 706-733 (1999). 212 Ibid., p. 460. 213 Ibid., p. 460-1. 214 Ibid., pp. 460-1. 215 545 U.S. 1 (2005). 216 Illya Somin, op. cit., p. 461.

150 must meet. Conditional grants can also be used to get around the Court’s Eleventh Amendment jurisprudence. States can be indu- ced to consent to allow themselves to be sued as a condition of receiving federal funds.”217 He218 affirms that is too early to fully assess the potential effects of NFIB v. Sebelius219, the Court’s blockbuster 2012 ruling on constitutional challenges to the Affordable Care Act, President Obama’s 2010 health-care law. In this case, 26 State governments and various private parties challenged the constitutionality of a central provision of the ACA, the mandate requiring most Ameri- cans to purchase government-approved health insurance by 2014, because this mandate was different from previous federal regulations under the commerce clause. “A 5-4 majority accepted this argument, concluding, as Chief Justice Roberts put it, that Congress does not have the power to “regulate individuals precisely because they are doing nothing”. A majority of the Court also ruled that the mandate is not authorized by the Necessary and Proper Clause, holding that the Mandate is not “proper,” even if it is necessary.”220 Finally, on this point, Somin says: “Whether the federalism revival of the last twenty years has any long-term staying power is likely to depend on which party makes future Supreme Court appointments, and also on whether advocates of judicial enforcement of federalism can attract more liberal support.”221 In relation with judicial enforcement of limits on state power, Somin222 says: “In contrast to the Supreme Court’s equivocal record of enforcing limits on federal power, it has historically enforced a variety of limits on state power ... The federal courts’ restrictions on state laws have been so many and varied that it is impossible to give

217 Ibid., p. 462. 218 Ibid., p.462. 219 132 S.Ct. 2566 (2012). 220 Ilya Somin, op. cit. pp. 462-3. 221 Ibid., p. 465. 222 Ibid., p. 465.

151 more than a general summary. There has never been a prolonged period when the federal courts did not use judicial review to impose substantial restrictions on state governments”. On the Nineteenth and early Twentieth Centuries, Somin223 writes: “Judicial review of state laws in the nineteenth and early twentieth centuries is perhaps best known for the “Lochner era” of invalidation of state economic regulations, named after Lochner v. New York224, a 1905 case striking down a New York Law imposing maximum hours for bakers under the Due process Clause of the Fourteenth Amendment, which forbids states from depriving people of life, liberty or property without “due process of law”. Like Plessy, Lochner has become one of the Court’s most denou- nced rulings, often disparaged as “judicial activism” intended to benefit the wealthy at the expense of the poor”. On the Modern Rights Revolution, Somin225 affirms: “Per- haps the most important expansion of judicial review during this period was the Court’s effort to curb racial discrimination by state governments. Brown v. Board of Education (1954)226 which struck down racial segregation in public schools, is probably the most iconic decision in Supreme Court history”. He argues227 that later the Court interpreted the Equal Protection clause to constrain discrimination against other groups. He mentions Craig v. Boren (1976)228 regarding gender discrimination, and Romer v. Evans (1996)229 limiting laws against gays and lesbians. “In 2013, the Court struck down Section 3 of the Defense of Marriage Act (DOMA), a federal law that denied federal marriage benefits to people who entered into same-sex

223 Ibid., p.468. 224 198 U.S. 45 (1905). 225 Ibid., pp.469-70. 226 347 U.S. 54 (1954). 227 Ilya Somin, pp. 470-1. 228 429 U.S.190 (1976). 229 517 U.S. 620 (1996).

152 marriages in the twelve states that permitted them at the time.” in United States v. Windsor230. “The decision – says Somin231- was based partly on federalism considerations. Because of DOMA’s “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage”, Section 3 was subject to a higher level of judicial scrutiny than would otherwise have applied ... Indeed, federalism considerations were relevant precisely because Congress’s intrusion into an area usually left to the States created a “discrimination of an unusual character” that required added judicial scrutiny to determine if it was adopted for an illicit purpose”. In June 2015, the Supreme Court ruled 5-4 in “Obergefell v. Snyder”232 that State laws banning same-sex marriage violate the Fourteenth Amendment233. “Over the last sixty years – explains Somin234 - the Supreme Court has gradually adopted the view that the Fourteenth Amendment incorporates all or most of the U.S. Bill of Rights against state governments through the Due Process Clause.” After the Court’s 2010 incorporation of the Second Amendment right to “keep and bear arms”, “only the Third Amendment right not to have troops quartered in private homes, the Fifth Amendment right to an indictment by a grand jury in criminal cases, and the Seventh Amendment Guarantee of a jury trial in civil cases remain unincorporated. The cumulative impact of these incorporation decisions has been extremely broad, forcing States to adhere to unitary national standards in a wide range of areas.”235. And later, the author says: ... “In addition to the incorporation of most of the Bill of Rights, “substantive due

230 133 S.Ct. 2675 (2013). 231 Ilya Somin, p. 471. 232 135 S.Ct. 2071 (2015). 233 Ilya Somin, op. cit.,p.472. 234 Ibid., p. 473. 235 See Somin, op. cit. pp. 473-7, where the author analyzes different cases related with rights.

153 process” has also been used to protect a wide range of “unenume- rated” rights that are not specifically listed in the Constitution.”236 Somin237 concludes: “In sum, the Court has a long history of enforcing a wide range of constraints on state governments, a trend that shows little sign of abating. The net effect of this tendency is to restrict the power of state and local governments substantially. In that sense, it tends to promote political centralization at the expense of regional autonomy”. In his Conclusion, Somin238 says: “Overall, American judicial review has done far more to promote centralization than to limit the power of the federal government. This pattern is unlikely to change in the foreseeable future. However, the extent to which the courts are willing and able to limit federal power has varied widely over the course of American history. Currently, there is sharp conflict between those who want much more aggressive judicial enforcement of limits on federal power and those who believe this type of judicial review should be cut back or even abolished. The deep disa- greement over NFIB v. Sebelius (2012) and Shelby County v. Holder (2013) reflects this division… In the recent decade, the debate over federalism and judicial review have become connected to debates over interpretive methodology. Many conservative jurists, such as the late Justice Antonin Scalia and Clarence Thomas, argue that the Constitution should be interpreted by its original meaning, which they argue justifies stronger judicial enforcement of limits on federal power. Liberals such as Justice Stephen Breyer tend to support “living Constitution” theories of interpretation that justify reinterpreting the text in light of contemporary needs, which they contend require broad federal power. The overlap between conflicts over federalism and debate over interpretive methodology makes consensus in this field even more difficult to achieve”.

236 Ibid., p.475. 237 Ibid., p.477. 238 Ibid., p.480.

154 For their part, Nicholas Aroney and John Kincaid239 write: “In one of several essays published in the New York Journal in 1787 and 1788, Antifederalist author “Brutus” predicted that the Supreme Court of the United States would “lean strongly in favor of the general government”. He emphasized two reasons. First, the provisions of the U.S. Constitution are expressed in “general and indefinite terms” that invite a nationalist interpretation. Se- cond, members of the Court would be motivated to “extend their power and increase their rights” both directly by expanding their own jurisdiction and indirectly by allowing the general government to enlarge its authority. In response, Alexander Hamilton famously proclaimed that the judiciary “will always be the least dangerous” branch of the federal government.” And they ask the question: “Was Brutus prophetic?”

1.2 Argentina

For the analysis of the jurisprudence of the Supreme Court of Jus- tice of Argentina,240 I will use the same criteria as for the American case. I have already mentioned that Argentine court jurisprudence has been markedly centralist in general, although different historical stages of this can be noted. A first stage in the jurisprudence of the Supreme Court effectively followed the jurisprudence of the Supreme Court of

239 “Comparative observations and Conclusions”, in book “Courts in federal countries”, op. cit., p. 482. 240 For a thorough analysis of this topic, see Alfonso Santiago (h.), Director, Historia de la Corte Suprema argentina 1863-2013, 3 vols., Marcial Pons Argen- tina, Buenos Aires, 2014; Daniel Sabsay, Director, Pablo Manili, Coordinator, Constitución de la Nación Argentina y normas complementarias. Análisis doctrinal y jurisprudencial, 5 vols., Hammurabi, Buenos Aires 2010-6; Pablo Mani- li: Evolución de la jurisprudencia de la Corte Suprema de Justicia de la Nación 1863-2007, Universidad, Buenos Aires, 2007; Jonathan Miller, María Angélica Gelli & Susana Cayuso, Constitución y poder político, Astrea, Buenos Aires, 1987 and by the same authors, Constitución y derechos humanos, Astrea, Buenos Ai- res, 1991; and Germán J. Bidart Campos, La Corte Suprema, el tribunal de las garantías constitucionales, Ediar, 2nd Ed., Buenos Aires, 1984.

155 Justice of the United States as its model241. This may be described as a rather “federalist” stage, which began with the operation of the Supreme Court in 1863 and extended to 1930, although we have already seen that there are differences in the constitutional texts, with a more centralized federalism in the case of Argentina. Starting in 1930, another stage begins with the coup d’etat overthrowing President Hipólito Irigoyen which brought in a period of enormous institutional instability, with a succession of civilian and military governments, ending only in 1983, which seriously affected the functioning of the rule of law, federalism, and democracy. This stage may be considered “centralist”, characterized by validating the encroachments of the Federal government. With the election of President Raúl Alfonsin in 1983, there was a return to the validity of the Constitution and democratic institutions, which should be noted as one of our strengths. The greatest expression of this was the Constitutional Reform of 1994, which led to an evident modernization of our constitutional design, to deepen republican and federal democracy. As a result, some changes in the jurisprudence of the Supreme Court of Justice can be noticed in recent years, marking a more “federalist” trend in defense of provincial and municipal autonomies, as seen in the new national Constitution. This comparative analysis cannot fail to point out the important differences between the two judicial institutions,- espe cially with regard to one of the central values of the republican system, the independence of the judiciary242. In Argentina, the

241 See Clodomiro Zavalía, La historia de la Corte Suprema de Justicia de la Na- ción en relación con su modelo norteamericano, 2 vols, Peuser, Buenos Aires, 1920; Miguel Padilla, La Corte Suprema de Justicia argentina y la Suprema Corte de Jus- ticia norteamericana. Historia de dos tribunales constitucionales, Ad Hoc, Buenos Aires, 2004; and Maria Marta Huertas, El modelo constitucional norteamericano en la jurisprudencia de la Corte Suprema de Justicia de la Nación 1863-1903, Instituto de Investigaciones de Historia del Derecho, Buenos Aires, 2001. 242 See Alejandro Carrió (with Alberto Garay), La Corte Suprema y su independencia, Buenos Aires, Abeledo Perrot, 1996.

156 institutional vicissitudes, and the weak culture of legality that we have suffered have affected the functioning of the judiciary, where a deep politization of justice can be seen. This influence of political power has been most notable in the Higher courts of the Provinces, and in the Supreme Court of Justice itself.243 It is evident that the Judiciary, and in particular the Supreme Court, did not adequately exercise their powers to ensure the effective validity of our Constitution and the division and balance of powers. The “hyper-presidentialism” we have endured has meant that the Executive has advanced over the powers of Congress, without adequate review of constitutionality by the Judiciary, and especially by the Supreme Court of Justice of the Nation244. This points up the extraordinary importance for the republican system of the principle of the independence of Judicial Power, which, unfortunately, we do not fully enjoy.245 This has been noted not only in the lack of judicial review of emergency institutes, but also in other matters like “amparo” actions246, electoral and tax issues, and especially in penal cases.

243 See Antonio María Hernández, Fortalezas y debilidades constitucionales. Un análisis crítico en el Bicentenario, Abeledo Perrot, Buenos Aires, 2012; Rober- to Gargarella, Inconsistencia y parcialidad. Un examen histórico de la jurisprudencia de la Corte Suprema de Justicia de la Nación, Jurisprudencia Argentina, Buenos Aires, 2003-IV, p. 1175; and Arturo Pellet Lastra, Historia política de la Corte 1930-1990, Ad Hoc, Buenos Aires, 2001. From the impeachment of the Supreme Court Justices in 1947 promoted of President Juan D. Peron, political influence on the judiciary has been very strong, although not all the Presidents did it in the same way. 244 See Antonio María Hernández, Director, Derecho Constitucional, La Ley, Buenos Aires, Vol II, Ch. XVII, 2012; Las emergencias y el orden constitucional, Instituto de Investigaciones Jurídicas de la UNAM, Mexico, 2003, For- talezas y debilidades constitucionales. Una lectura crítica en el Bicentenario, op. cit. and Federalismo y Constitucionalismo Provincial, op. cit, Ch.Presidencial- ismo y federalismo. 245 Below, we will see results of the Second Survey on Constitutional Culture in Argentina on the independence of judges and the functioning of Judicial Power. 246 Which are injunctions for guaranteeing constitutional rights.

157 As an example of the inadequate functioning of the penal system, the average duration of a corruption case has been 14 years, which has consequently enshrined impunity. It has been tough to judge a public official in office, because Justice advances slowly in criminal proceedings only when officials leave power. Just recently the judicial system has begun functioning, since the former Vice-president of the Nation, Amado Boudou, has been sentenced and the former Minister Julio de Vido is in jail, along with other former officials of the previous government of Cris- tina Fernandez de Kirchner, who also has been processed in six penal cases in progress against her. Criminal proceedings originated in the Bribery Notebooks have also been launched, inves- tigating an illicit association allegedly directed by the former president, which organized the appropriation of billions of dollars in contracts and concessions in energy, public works, and transport. Several business-men have been arrested, some of whom have been rewarded as informers. I have argued that without a sustained fight against corruption, the change the country needs will not be possible.247 We will return later to the subject of the culture of legality, but we note that the Second survey of constitutional Culture248 carried out in 2014, finds a very critical social perception of the functioning of justice. Confidence in the judiciary reached only a low middle position, just barely ahead of Congress and the Executive branch, and then, with low confidence, the police, the

247 See Antonio María Hernández, Fortalezas y debilidades constitucionales, op. cit., where I analyze the problems of corruption as one of Argentina’s greatest weaknesses. 248 See Antonio María Hernández, Daniel Zovatto & Eduardo Fidanza, Se- gunda Encuesta de cultura constitucional. Argentiina: una sociedad anómica, Eudeba, Buenos Aires, 2016. See also the first survey, made in 2004, published as Encuesta de cultura constitucional. Argentina: una sociedad anómica, In- stituto de Investigaciones Juridicas, UNAM, Mexico, 2005, with a version online in English.

158 labor unions, and the political parties249. On the efficiency of the Judiciary, 71% considered that the level of response is poor, bad, or very bad and only 28% considered it good or very good.250 63% responded that there is no equality before the law and 85% disagreed with the phrase that the judiciary judges people regardless of their money251. The perception of the lack of independence of the judges was 60% for the lower magistrates and 51% for the Supreme Court of Justice252. The severity of the problem identified by these answers indicates deep cultural, institutional, social, and educational issues that characterize Argentines individually and as a society.

1.2.1 Centralist jurisprudence This is a brief mention of some case law showing the centralist trend in the Supreme Court of Justice of the Nation, which validated many of the advances of the Federal government over the provincial and municipal governments. a) On Federal Intervention in the Provinces In Cullen Joaquin C. Baldomero Llerena (1893)253, the Su- preme Court judged that federal intervention was a political act of the federal government, not susceptible to constituting a judicial case. This meant for a long time that there was no control over the executive, which used this institution to centralize the country, beyond the letter and spirit of Art. 6 of the Constitution, which was intended to guarantee federal principles and the enjoyment of provincial autonomy.254

249 See “Segunda Encuesta de Cultura Constitucional”, op. cit, pp. 47-48. 250 Ibid., p. 48. 251 Ibid., pp. 74-75. 252 Ibid., pp. 54-55. 253 CSJN, Fallos, 220, 7-9-1893. 254 See Antonio María Hernández, Las emergencias y el orden constitucional, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, Mexico, 2003.

159 b) On the interprovincial commerce clause There are many decisions on this clause (now Art. 75 Sec. 13), also originating in the United States Constitution, as we have seen. The case law is not pacific, as some decisions incline to the complete exclusion of provincial tax and police powers, as in Transporte Interprovincial Rosarina S.A. c. Buenos Aires, Pro- vincia de s/Sumario255. Others show a more federalist position, enabling some provincial and municipal powers, as in Transportes Vidal S.A. c. Mendoza, Provincia de s/Repetición 256. We cannot go into this analysis here, but in general, this is another of the clauses that have allowed greater centralization in the country, because of the vast extension allocated to interprovincial trade. c) On the Clause of progress and the granting of stimuli and privileges by Congress In the case of Ferrocarril Central Argentino c/Provincia de Santa Fe (1897)257, the Supreme Court ordered the province of Santa Fe to return the amount charged in provincial taxes to the railroad, because of the constitutional clause that enabled the Congress to grant stimulus rewards to public service companies and of the progress clause (now Art. 75 Sec. 18). The court rejected the province’s argument that stimulus rewards could only cover the exemption from national tax, given that the autonomy of the provinces meant they could exercise their tax powers. And since then, that centralist jurisprudence has been asserted, depriving provincial and municipal governments of exercising their powers, although later it recognized for the latter the possibility of charging fees for services.258

255 CSJN, Fallos, 324:3048, 25-9-2001. 256, CSJN, Fallos, 306:516, 31-5-1984. 257 CSJN, Fallos, 68:227, 3-7-1897. 258 See Alberto Bianchi, La cláusula del progreso. Con especial referencia a los ferrocarriles, Revista de Derecho Constitucional, No 1, November 2012,

160 d) On the Implicit Faculties of Congress clause The large number of decisions related to this clause (now Art. 75 sec. 32) means we have to abstain from analysis to be brief. But as in the other clauses cited above, extensive interpretation made it possible for the federal government to advance over provincial and municipal policing powers, among other powers of these governments.259 e) On national utility establishments In the case Marconetti S.A.I.C. (1968)260, the Supreme Court rejected the application of a fine by the provincial government of Santa Fe on the company operating in the port, sustaining the thesis of the exclusive competence of the Federal government to exercise authority and competence in national utility establishments. This centralist jurisprudence was amended in the constitutional reform of 1994, which established the exercise of tax faculties or policing power by the provinces and municipalities over these establishments, provided that this did not affect the purpose of the establishment, in Art. 75 Sec. 30 of the National Constitution261. f) On Emergency policing powers In the case Peralta Luis Arcenio y otro c. Nación Argentina s. Amparo (1990)262, the Supreme Court of Justice validated the Decree of Necessity and Urgency 36/90 of the national executive,

Editores Argentinos, Buenos Aires; and Juan Vicente Sola, Director, Tratado de derecho y economía, 3 vols., La Ley, Buenos Aires, 2013. 259 See Susana Cayuso, El federalismo y el poder de policía, in the book Aspec- tos jurídicos e institucionales del federalismo argentino, Director: Antonio María Hernández, Instituto de Federalismo, Academia Nacional de Derecho y Cien- cias Sociales de Córdoba, Córdoba, 2010. 260 CSJN; Fallos, 271:186, 9-8-1968. 261 See Antonio María Hernández, Federalismo y Constitucionalismo Provin- cial, op. cit., Ch. III, El Federalismo en la reforma Constitucional de 1994 y Derecho Municipal, op. cit., Ch. 3. 262 CSJN; Fallos, 313:1513, 27-12-1990.

161 limiting the withdrawal of bank deposits, in violation of the republican system and seriously affecting constitutional rights. The court justified a policing power and emergency legislation of the Executive, without prior congressional intervention. This explains why Argentina had so many economic emergency decrees, and also how it steadily affirmed a “hyper-presidentialism” based on government by decree, all in violation of the national Constitution.263 g) On Tax matters There is again an enormous number of decisions on this matter. But we can take Laboratorios Raffo S.A. c. Municipalidad de Córdoba (2009)264 as an example of centralist jurisprudence, where the Supreme Court validated the fiscal pacts and other advances of the federal government over the taxing powers of provinces and municipalities, regardless of the new constitutional principles established in the constitutional Reform of 1994265. h) On the Legal nature of the Municipalities In Ferrocarril del Sud c. Municipalidad de La Plata (1911)266 the Supreme Court established a jurisprudence - which was amended only in 1989 – which held that the municipalities were delegations of provincial powers, circumscribed to administrative ends and limits. In Argentina, there was a strong debate between those who upheld the “autarchic” character of local governments and those who, on the contrary, affirmed “autonomy”, based on

263 See Antonio María Hernández, Las emergencias y el orden constitucional, op. cit. and Fortalezas y debilidades constitucionales. Una lectura crítica en el Bi- centenario, op. cit.. 264 CSJN, Fallos, 332:1503, 23-6-2009. 265 See Antonio María Hernández, Federalismo y Constitucionalismo Provin- cial, op. cit., Ch. 3 and Maria Gabriela Abalos, Ch. 40 of the book; Corte Su- prema de Justicia de la Nación. Máximos precedentes. Derecho Constitucional, Director Pablo Manili, where she analyzes different decisions about it. 266 CSJN, Fallos, 114:282. 1911.

162 Art. 5 of the National Constitution. The court, with this ruling, favored the former.267 i) On the Autonomous City of Buenos Aires In the case Gauna Juan Octavio s/acto comicial (1997)268, the Supreme court rejected the demand of the Secretary of Govern- ment of the Autonomous City of Buenos Aires, who, invoking Art. 129 of the Constitution, opposed the call for elections of city authorities by the executive power of the Nation, who did so by law 24,620. This ruling affected the full autonomy of the city, in the crucial issue of its political aspects.269 That is why it is necessary to change the centralist jurisprudence of our Supreme Court, to implement the Constitutional reform of 1994, which decentralized the federation, through its three Chapters: Federalism (with special strengthening of provincial autonomy), the Autonomous City of Buenos Aires and the recognition of municipal autonomy.270

1.2.2. Toward a changed jurisprudence Some decisions in recent years have aimed at consolidating federal principles, modifying part of the previous centralist jurisprudence, though without the necessary consistency271. The following cases illustrate the issues:

267 See Antonio María Hernández, “Derecho Municipal”, Universidad Nacio- nal Autónoma de Mexico, Mexico, 2003, Capp. 3 y 5. 268 CSJN, Fallos, 320:875, 7-5-1997. 269 See Antonio María Hernández, “La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino”, Jusbaires, Buenos Aires, 2017. 270 For a profound analysis see our books “Federalismo, autonomía municipal y Ciudad de Buenos Aires en la reforma constitucional de 1994”, Depalma, Bue- nos Aires, 1997 and “Federalismo y Constitucionalismo Provincial”, Abeledo Perrot, Buenos Aires, 2009. 271 See”CET c. Municipalidad de Río Cuarto- Acción Declarativa de Constitucio- nalidad”, (CSJN, 494:2016, 26-9-2017), where the Supreme Court confirmed indirectly the rejection of the exercise of municipal police power on gambling, according to the sentence of the Superior Tribunal of Justice of the Province of Córdoba.

163 a) On provincial sovereignty and autonomy In the cases Zavalía José Luis c. Santiago del Estero, Provin- cia y Estado Nacional s/amparo (2004)272 and Díaz Ruth Inés c. Buenos Aires, Provincia de s/acción declarativa de inconstitucionalidad (2006)273, the Supreme Court returned to case-law originated in Resoagli of 1869, which recognizes this double nature for the Provinces, as did the most authoritative doctrine of Argentina and following the Madison and Hamilton thesis on the division of sovereignty274. b) On the scope of provincial policing power in interprovincial transport In El Practico c. Córdoba, Provincia de s/Acción Declarati- va de Inconstitucionalidad (2011)275, the court extends the scope of provincial policing power in the matter of interprovincial transport, where there was exclusive intervention of the federal government, according to the court’s own previous jurisprudence. Recitals 12 to 15 of the majority vote particularly mention federalism of cooperation, incorporated in the constitutional Reform of 1994. However, subsequent decisions have not been consistent with this, and more centralist positions in this matter were taken again. c) On the Principle of legality in tax matters and limitation of delegations In Camaronera Patagónica SA c. Ministerio de Economía y otros s/amparo (2014)276, the Supreme Court ratified the principle

272 CSJN, Fallos, 327:3852, 21-9-2004. 273 CSJN, Fallos, 329:5814, 19-12-2006. 274 See Antonio María Hernández, Soberanía y autonomía provinciales en la doctrina y en la jurisprudencia de la CSJN, Ch. XXXIX in the book Corte Su- prema de Justicia de la Nación, Máximos precedentes, Derecho Constitucional, Tomo IV, Director Pablo Manili, La Ley, Buenos Aires, p.. 593 and ff. 275 CSJN, Fallos, 334:626, 24-5-2011. 276 CSJN, Fallos, 337:388, 15-4-2014.

164 of legality in tax matters, limiting legislative delegations carried out in violation of Art. 76 of the Constitution. This is very important in relation to our republican system, to the attenuation of hyper-presidentialism, to emergencies and also to federalism, because the representation of the provinces is in the Congress. d) On federalism and judicial decentralization by enabling federal chambers in the interior of the country to intervene in social security issues In the case Pedraza Héctor Hugo c. Anses s/acción de amparo (2014)277, the Supreme Court declared the unconstitutionality of Art. 18 of Law No. 24,463 and established that the Federal Cham- ber of Social Security would cease to intervene in appeals against the sentence of federal judges based in the provinces, which will be the competence of the respective Federal Chambers. In particular, Recital 16 expressly mentions federalism and institutional decentralization, which is a precedent of singular importance. e) On municipal autonomy In the cases Rivademar, Angela Martínez Galván de c. Municipalidad de Rosario (1989)278 and Ponce Carlos Alberto c. San Luis, Provincia de, Acción declarativa de certeza (2005)279, the Supreme Court amended its jurisprudence on local governments by recognizing municipal autonomy, which had been enacted in provincial constitutions and then in the federal constitutional Re- form of 1994.280

277 CSJN, Fallos, 337:530, 6-5-2014. 278 CSJN, Fallos, 312:326, 21-3-1989. 279 CSJN, Fallos, 328:175, 24-2-2005. 280 See Antonio María Hernández, La Corte Suprema de Justicia, garante de la autonomía municipal- Análisis de los casos “Municipalidad de la ciudad de San Luis c. Provincia de San Luis y otro” y “Ponce Carlos Alberto c. San Luis, Provincia de, Debates de Actualidad, Asociación Argentina de Derecho Constitucional, Buenos Aires, Nº 195, 2005, pp. 146-158 and La Corte Suprema de Justicia y la reafirmación de la autonomía municipal, La Ley, Suplemento Extraordinario de Derecho Constitucional, 75 Aniversario, August 2010; and María Gabriela

165 f) About fiscal aspects of municipal autonomy In Intendente Municipal Capital c. Provincia de La Rioja s. Amparo (2014)281, the Supreme Court ordered the Province of La Rioja to enact the Law-agreement on taxation, as an unfulfilled mandate of the local Constitution, which affected the financial autonomy of the municipal governments282. The Court’s funda- mentals were of enormous institutional importance and admitted a second reading that also affected the federal order, because these are similar situations, with more than 15 years of constitutional breaches in the decisive issue of tax-sharing.283 And recently, in Municipalidad de la Ciudad de La Banda c. Provincia de Santiago del Estero s. Conflicto entre poderes públi- cos, of August 23, 2018, the Supreme Court set another important precedent on the economic and financial aspects of municipal autonomy, revoking a judgment of the Provincial High Court on the grounds of discrimination in the tax-sharing system, for violation of the provincial Constitution and of the respective Law, which affected the Municipality. The ruling was issued unanimously by the judges Highton de Nolasco, Maqueda and Rosatti. 284

Abalos, on Autonomía municipal, Ch. XL of the book Corte Suprema de Justicia de la Nación. Máximos precedentes. Derecho Constitucional, Director Pablo Ma- nili, op. cit., Tomo IV, pp. 635 ff. 281 CSJN, Fallos, 337:1263, 11-11-2014. 282 In this case we had the honor to represent the plaintiff municipality before the Supreme Court, which accepted our submission, as we discussed in Informe de Federalismo del año 2014, Cuaderno de Federalismo, Director Antonio María Hernández, Instituto de Federalismo de la Academia Nacional de Derecho y Ciencias Sociales de Córdoba, Córdoba, 2015, online www.acaderc.org.ar. This decision, followed by that for the Municipality of La Banda in 2018, also on tax matters, are the most important jurisprudence of the Argentine Supreme Court on municipal autonomy. 283 See Antonio María Hernández, Sin coparticipación impositiva no hay federalismo, Clarín Newspaper, Opinión, p. 33, November 27, 2014. 284 In this case we had the honor to represent the Municipality of La Banda, and the Supreme Court accepted the plaint we submitted.

166 g) On Tax-sharing Based on the precedent above, we must especially note the rulings of the Supreme Court of 2015 on the Five Claims made by the Provinces of San Luis, Santa Fe, and Córdoba for deductions from the tax-share total made for two agencies of the National Government, Anses and AFIP, on November 24, 2015. These cases, Santa Fe, Provincia de c. Estado Nacional s. Ac- ción Declarativa de Inconstitutionalidad (2015)285 and Santa Fe, Provincia de c. Estado Nacional s. Acción Declarativa de Inconsti- tucionalidad (2015)286, of great clarity in constitutional matters, as I remarked at the time287, marked a shift toward a federal view- point, in strict compliance with the Constitution, on a crucial issue for provincial and municipal governments. In addition to the return of the deductions, the Supreme Court urged the federal government and provincial governments to enact the Federal Tax Partnership Act, which has already exceeded 20 years in constitutional default. As a result of these decisions and the change of government in 2015, there is greater dialogue and negotiations between the President and the governors about these fiscal problems, in exercise of a federalism of coordination and cooperation, as established in the national Constitution since the Reform of 1994288. 1.3 Similarities and differences There is great similarity in the judicial organization in the Uni- ted States and Argentina, based on their respective constitutional

285 CSJN, Fallos, 338:1356, 24-11-2015. S 538 ORI. 286 CSJN, Fallos, 338:1389, 24-11-2015. S 539 ORI. 287 Antonio María Hernández, Los fallos de la CSJN sobre detracciones a la masa coparticipable y la confirmación de una jurisprudencia federalista, Suple- mento La Ley, Constitucional, Directora María Angélica Gelli, April 2016, Nº 2, pp. 44 ff. 288 See Joaquín Morales Solá, Un inédito espectáculo de negociación política; La Nación newspaper, Buenos Aires, November 15 2017.

167 texts289. In the Argentine federation, there is a federal judicial branch and also a judicial branch for each of the provinces and the Autonomous City of Buenos Aires290. Not only the Supreme Court of Justice or the higher courts of the provinces but also all the federal or provincial judges exercise control over constitutionality, since the Argentine system is diffuse, as in the USA291. The- refore, the most important function that the judges have is that of executing this control, which presents different characteristics in the federal and provincial orders. In reviewing federal constitutionality, a sentence declaring unconstitutionality is limited to the concrete case, since the norm continues in force. But in some provinces, there is an atypical review of constitutionality by which the provincial high court can annul a norm with general scope. 292 Though there are similarities in the structural and constitutional aspects of judicial federalism, there are profound differences in the functional aspects. We have already noted that there is no comparison in the application of constitutional principles and of

289 See Antonio María Hernández, Judicial federalism and fundamental rights in Argentina, 41 Rutgers Law Journal, Issue 4, Camden, New Jersey, 2011. 290 The Federal Judicial Branch has 890 judges and prosecutors in all areas, while this number reaches approximately 4,500 in the judicial branches of the provinces and of the Autonomous City of Buenos Aires, but these figures do not sufficiently show the exceptional character of federal justice, since judges and prosecutors are included there who should be transferred to the judicial branch of the Autonomous City of Buenos Aires, as provided for in Art. 129 of the National Constitution. The breach of the Constitution was produced by Law 24,588 which kept the ex-National Judiciary of the Federal Capital (in civil, commercial, labor and penal affairs) under the federal government, covering more than 500 members, at a cost of some 7000 million pesos, acccording to the 2016 budget. For a more detailed analysis on the Autonomous City of Buenos Aires and in general on the decentralization of power in the Argentine Federa- tion, see our book: La Ciudad Autónoma de Buenos Aires y el fortalecimiento del fedealismo argentino, Jusbaires, Buenos Aires, 2017. 291 See Alberto J. Bianchi, El control de constitucionalidad, 2nd Ed. in two volumes, Editorial Abaco, Buenos Aires, 2002. 292 See Ricardo Vergara, El Poder Judicial Provincial, Ch. XV, pp. 449-479, in Derecho Público Provincial, 2nd Ed., Coordinators Antonio María Hernández & Guillermo Barrera Buteler, Abeledo Perrot, Buenos Aires, 2011.

168 the federal republican system in the two countries, and this is particularly seen in the judicial branch at federal and provincial levels. When we examine the culture of the Constitution and of legality in both countries, we will see that this is the origin of the great differences. In the United States, compliance with the Constitu- tion and the enforcement of the laws is very important, but this is unfortunately not so in Argentina. And this difference has enormous scope and consequences. It is also clear that, although a tendency towards centralization can be seen in both Chambers of the Supreme Courts in their respective jurisprudence, the degree of centralization in the case of Argentina is significantly greater. In Argentina, we have not had such jurisprudence defending federalism, with limits for the federal government, as that of the Supreme Court of the United States in the last 25 years. Nor in the jurisprudence of the provincial courts is it possible to find an advance as important as that of the new judicial federalism, as we will see later when we analyze state constitutionalism. It is clear that the American states have a much greater degree of autonomy than the Argentine provinces, so that there is a much more centralized federalism in Argentina than in the United States.

2. The culture of legality

2.1 The United States

As Brutus293 explained, in a free Republic “the Government must rest for its support upon the confidence and respect which the people have for their government and laws.”294 Looking at the second aspect, the culture of legality, respect for the law is indeed a

293 The anti-federalists wrote under this pen-name, that of a defender of the Roman Republic, who also took part in the assassination of Julius Caesar. The federalists, as we saw, used the name Publius, another famous defender of the Republic, in the Federalist Papers. 294 Cited by Michael W. McConnell, op. cit., p. 1508.

169 characteristic of the country, as Tom R. Tyler says: “Americans are typically law-abiding people.”295 The following tables are from an important sociological study, which measures the legitimacy and compliance with the law:296

Table 4.3. “Perceived obligation to obey the law”297

Percentage Agreeing People should obey the law even if it goes against what 82 they think is right I always try to follow the law even if I think that it is wrong 82 Disobeying the law is seldom justified 79 It is difficult to break the law and keep one’s self-respect 69 If a person is doing something and police officers tell them 84 to stop, they should stop even if they feel that what they are doing is legal If a person goes to court because of a dispute with another 74 person, and the judge orders them to pay the other person money, they should pay that person money, even if they think that the judge is wrong

Table 4.5 “Support for the police” (in percent)298

Agree Disagree I have a great deal of respect for the Chicago Police 76 24 On the whole Chicago officers are honest 58 42 I feel proud of the Chicago Police 66 34 I feel that I should support the Chicago Police 88 13

295 Tom R.Tyler, Why people obey the law, Yale University Press, New Haven and London, 1990, p.3. The book draws on the results of a study of the experiences, attitudes and behavior of a random sample of citizens in Chicago in 1984, with 1575 respondents of interviews by telephone, p.8. 296 The Survey is more than 30 years old and changes may have occurred. 297 Tom R. Tyler, op. cit., Ch. 4: “Measuring legitimacy and compliance”, p.45. I show the first wave of respondents. 298 Ibid., p. 48. Shows the first group polled, with the sum ofstrongly agree and agree and the sum of disagree and strongly disagree.

170 Table 4.6. “Support for the courts” (in percent)299

Agree Disagree The courts in Chicago generally guarantee everyone 59 41 a fair trial The basic rights of citizens are well protected in the 57 43 Chicago courts On the whole Chicago judges are honest 57 43 Court decisions in Chicago are almost always fair 56 44

And Tyler interprets the results of these tables: “The Chicago study’s examination of legitimacy and compliance suggests several reasons why people obey the law. One is their instrumental concern with being caught and punished: people typically think it quite likely that this will happen if they commit serious crimes. Deterrence may be exerting an influence on their behavior. Obe- dience to the law is also strongly linked to people’s personal morality. The data suggest a general feeling among respondents that law breaking is morally wrong. A similarly strong feeling emerges in the case of the perceived obligation to obey the law. Most of the respondents interviewed felt obliged to obey the law and the directives of legal authorities. In contrast to the strong normative commitment found in studying personal morality and perceived an obligation to obey the law, support for the police and courts was not particularly high, and neither were evaluations of their performance. This does not mean, however, that dissatisfaction with the police or the courts is widespread.”300 2.2 Argentina

As we mentioned earlier discussing the judiciary, we conducted two Surveys on the culture of legality and of the Constitution in 2004 and 2014.301 We will give only our interpretation of some of

299 Ibid., p. 49. 300 Ibid., p. 56. 301 See Antonio María Hernández, Daniel Zovatto & Manuel Mora y Araujo, Encuesta de cultura constitucional: Argentina: una sociedad anómica, UNAM,

171 the replies in the Second Survey, on issues similar to those asked in the Chicago survey:302 a) Argentina and Argentines and the law In response to the question whether Argentina is a country where the laws and Constitution are respected or, on the contrary, most of the time these are of marginal importance (Figure 41), this second survey confirmed that there is a high degree of perception of a lack of respect for the laws and the Constitution. Indeed, only 18% of respondents consider that the laws are respected, while 80% argue that Argentina lives most of the time on the margins of the law.303 b) Reasons for non-compliance with the law To the question “Why do you think the laws are not respected?”, in this second Survey, 33% of respondents responded that this is due to the malfunctioning of the judicial system, followed by 30% who attributed it to human misbehavior and 17% to malfunctioning of the punishment system, as majority opinions.304 c) Reasons for complying with the law To the question “Why do you respect the laws?”, 35% of respondents responded that it was a moral duty, the same percentage that it benefited us all, and 11% to avoid punishments, as majority answers. 8% indicated that they did so to not harm family and friends and 3% to not be criticized by others.305

Méjico, 2005 and Antonio María Hernández, Daniel Zovatto & Eduardo Fidan- za, Segunda encuesta de cultura constitucional. Argentina: una sociedad anómica, Eudeba, Buenos Aires, 2016. 302 See Antonio María Hernández, Daniel Zovatto & Eduardo Fidanza, Se- gunda Encuesta de Cultura Constitutional, op. cit., Ch. 3. Percepciones sobre las Constituciones, las leyes y algunas cuestiones federales, pp. 63-115. For reasons of brevity, we omit the tables, highlighting the main conclusions. 303 Ibid., p. 64. 304 Ibid., pp. 66-7. 305 Ibid., pp. 68-9.

172 d) Respect for the law by different actors However, when asked to what extent different institutional, social, and personal actors comply with the law, most individuals say that they do so (80 mentions with more than 7 points on a sca- le of 0 to 10 with an average of 7.70), accusing others of not doing so (35 mentions with an average of 5.74). This perception is more severe in terms of the national government (only 26 mentions recognizing it as respecting the law with an average of 4.52) and the perception of provincial governments is even worse (the respondents give them only 24 mentions with an average of 4.66).306 e) Exceptions to the application of the law To the phrase “There are times when it is necessary to dis- obey the law” 46% did not agree and 17% strongly disagreed, but it is important to note that 31% agreed and 3% strongly agreed, which means that 34% of the respondents accepted disobeying laws at certain times.307 f) Ranking violators of the laws Here, the results of the second survey are very troubling as it is perceived that those who violate the laws most – adding the mentions - in descending order are: 1) Politicians 74%; 2) Police officers 52%; 3) Public officials 43%; 4) People 39%; 5) Judges 38%; 6) Lawyers 19%; and 7) Everybody 13%.308 In this survey, we discussed the failure to comply with laws in Argentina:309 “The problem of anomie in this country has been pointed out from different perspectives,310 but we will look particularly at those who have done so from the perspective of law.

306 Ibid., pp. 69-70. 307 Ibid., pp.71-3. 308 Ibid., pp.85-86. 309 Ibid., pp. 104-8. 310 In literature, in José Hernández’s representative masterpiece, Martin Fier- ro, the author refers to the injustice of the laws, which benefit the powerful, the need to make friends of the judges, and the “viveza criolla” (being street-smart)

173 “It was Juan Agustín García, Professor of the Law School of the University of Buenos Aires, in his well-known book La ciudad indiana on Argentine history of the 17th and 18th centuries, who pointed out that one of the four sentiments of that time was “contempt for the law”311. Referring to the law in colonial times, he said: “... the theoretical law was admirable for its charitable kindness; the Royal Charters recommended good treatment, education and the conversion of the Indians. But unfortunately, in all of Spanish America the study of the written law is the least important and illustrative: law, good or bad, grows and develops at the ground-level, in the conflict of passions and interests, protecting the smartest and strongest: generally crawling, narrow and cruel, animated by low feelings and fierce selfishness.”312 “In addition to referring to the arbitrariness of the Cabildos in the regulation of trade and monopoly, he mentioned paternalism as another characteristic, which made the people dependent on the monarch, regarded as an “embodiment of Providence on Earth”313. in a famous poem on the life of a gaucho in conflict with society and its laws in 19th century. In Argentine popular music, the acute lyrics of the tango“Cam- balache”, by Enrique Santos Discépolo constitute a precise sociological analysis of the lack of compliance of laws and social values in the mid-20th century. 311 Juan Agustín García, La ciudad indiana, 2nd Ed., Buenos Aires, Ángel Estrada y Cía-Editores, 1909. In the Preface, the author recalls the thought of José Manuel Estrada: “If we really understood the phonomena of the colonial society, we would have resolved three-quarters of the problems that afflict us”. The first reference to contempt for the law as a national sentiment is included in the Preface, p. 7. 312 Juan Agustín García, ibid., Ch Las Campañas, pp. 34-35. 313 Juan Agustín García, ibid., Ch. La administración de la Capital, p. 151. He says that the Cabildos were a “sad parody of the Castilian councils destroyed by Charles V after the Battle of Villalar in 1521 (p. 157) and that the local coun- cillors were appointed by those who were leaving office, with approval of the Governor who sometimes also appointed them” (p. 164). He also compares them with the Americans, pointing out the contrast with the reality seen in the constitutional charters and political practices that indicated a ardent defense of ideals, interests and government itself.

174 “García described the exercise of comprehensive power by the colonial authorities and the absence of rights of the gaucho, which fostered “... at the bottom of his soul, a feeling of contempt for the law: in his imagination, it is the symbol of arbitrary, brutal, ca- pricious force, embodied in a bullying official, more or less cruel and rapacious, an “alcalde pedáneo”314, always willing to twist the rod of justice in favor of the prestigious landowner, with ties in the capital ... He knows that he has no rights, that is, he has the clear impression that his welfare, his things, his family, are insignificant atoms, ground without much concern by the complicated official mechanism.”315 “Later he said that the struggle between the individual and the State, initiated in the colonial era, “... reached its apogee with the caudillos and their rural military units, the “montoneras”, and anarchy, the complete triumph of individualism”316. In his Conclusion, he notes that the essential characteristics of our political law are “...the predominance of the classical concept of state-providence, political centralization, the inferior and subordinate role of the assemblies; and in the village, to accentuate and fortify these tendencies, contempt of the law become instincti- ve, one of the motives of the will” and then adds: “One can say, without fear of incurring in a paradox, that the country has not escaped from the old regime.” “We finish this brief summary of his thinking with a phrase that we also believe is disturbingly applicable today: “Now as before, higher studies are depressed, especially legal studies! Is it, by God, an evil to make the law known?”317”. But without a doubt, the greatest study carried out on anomie in Argentina was by Carlos Santiago Nino, Law Professor at

314 A kind of local rural municipal judge. 315 Juan Agustín García,ibid., Ch. on El proletariado en las campañas, pp. 262-3. 316 Juan Agustín García, ibid., Ch. on La administración de la Capital, pp. 298-9. 317 Juan Agustín García, ibid., Conclusion, pp. 365-366.

175 the National University of Buenos Aires, in his book: Un país al margen de la ley [A country on the margin of the law]318. With an interdisciplinary view, Nino demonstrated with undeniable intellectual brilliance why Argentina had a history outside the law and how this produced our underdevelopment319. The central thesis of the book was to demonstrate how anomie operated in itself as a factor that produced inefficiency320. Citing Jon Elster’s view that “norms are the cement of society,” he said that laws “make possible the integrity and survival of societies” and consequently, “illegality and anomie, generally affect social productivity, at least under a capitalist system” as Max Weber taught321.

318 Carlos Santiago Nino, Un país al margen de la ley, Emecé Editores, Buenos Aires, 1992.. 319 Nino wrote: “This tendency to anomie, or more specifically to illegality, is involved in many of the factors that are indicated as relevant to explain the involution of Argentine development, in addition to having an independent causal power” (op. cit., p. 24). He argued that Argentine anomie was quite easy to perceive as it emerged from the mass violation of human rights in the 1970s through state terrorism and leftist terrorism. But he also mentioned a less dramatic case: that of the external image of society through traffic in streets and highways, cleanliness in public places or urban esthetics (ibid., p. 25). After mentioning other aspects such as corruption or the involution of economic growth, he discussed political instability: “Such political instability culminated in coups d’etat, which, as is obvious, constituted the maximum expression of Argentine illegality. But there are more indirect ways in which political instability was related to illegality: electoral frauds, such as those practiced before the Sáenz Peña law and in the infamous decade, and electoral proscriptions, such as the one that occurred with Radicalism in that same decade and then with Peronism from 1958 to 1973, the abuse of federal interventions, usurpation by the executive of congressional faculties, the manipulation of justice, abuse of the state of siege, severely affected the subjective legitimacy of the Argentine political system and, consequently, also contributed to the weakness of social adhesion to it which is precondition to it being subverted by force” (ibid., p. 28). 320Carlos Santiago Nino, ibid., p. 28. 321 Nino, ibid., pp. 31-2. He cited Max Weber’s book on The Protestant Ethic and the Spirit of Capitalism, where he said “…modern rational industrial capitalism needs both the technical means of calculating labor, predictable law and an administration guided by formal rules; without this, adventurous, commercial,

176 He also introduced a new qualification of anomie to explain the Argentine case, which he called “boba”322, because the failure to observe the norms affected values such as security and predicta- bility and generated an inefficient collective action323. With notable acuteness and precision, he discussed the anomie in the institutional and social life of our country, norms as tools of cooperation and the way out of the trap of anomie, for which he proposed a process of public discussion and popular education to promote attitudes of loyalty to the norms324. Finally, Nino characterized anomie as anti-democratic, because it is the failure to observe rules that must be sanctioned by the rule of the majority after a process of discussion, and in our case meant a deficiency in the materialization of democracy, because it implied the existence of pockets of authoritarianism325. In our book Las emergencias y el orden constitucional [Emer- gencies and constitutional order], we propose that emergency powers have been used throughout history generally to violate the constitutional system, republican order, and human rights326. In the Preface, we say: “Argentines in recent months have lived a very profound crisis that affected structurally all aspects of national life327. Given this situation, we have long thought that we need an introspective analysis of what we are individually and as a speculative capitalism and all sorts of political capitalism is possible, but private commercial industry with fixed capital and secure calculation is impossible.” 322 Which means stupid. 323Carlos Santiago Nino, ibid., p. 40. 324 Carlos Santiago Nino, ibid., Chs. 2, 3, 5 and 6 – which we specially recommend reading. 325 Carlos Santiago Nino, ibid., Epílogue, p.. 272. 326 Antonio María Hernández, “Las emergencias y el orden constitucional” en sus dos ediciones: 1ª, Rubinzal-Culzoni, Buenos Aires, 2002 y 2ª , Universidad Nacional Autónoma de México y Rubinzal-Culzoni Editores, México, 2003, with Prologue by Diego Valadés. 327 In reference to the crisis of the year 2001, which had very serious political, economic and social consequences.

177 society, to understand why one of the countries with the greatest prospects at the beginning of the twentieth century could reach the current painful situation. And so, after reaching a diagnosis, to try to develop plans for a different future, more in line with the projects and dreams that we initially had as a country. This formidable task requires humility, decision, and ethical exempla- riness to change individual and social behaviors and values. Edu- cation, science and technology must consequently become fundamental instruments of this process, in consonance with the age of knowledge in which we are immersed”.328

2.3 Differences

In the culture of legality, we find the biggest difference between the two countries and this is one of the fundamental reasons why a similar constitutional design had very different results, in terms of the validity of republican and federal democracy, and development in general. In the Conclusions of the Survey, together with Daniel Zovatto, we say329: “The great mistrust and lack of credibility affect major institutions, especially the Presidency, Judiciary, Congress, trade unions and political parties. One of our strengths in the last 32 years is that Argentines value and support democracy. Regrettably, this support for democracy has not been accompanied by a similar development in relation to the validity of the constitutional state of law. On the contrary, far from having progressively consolidated a republican and federal regime, we have walked in the opposite direction. Its main attri- butes – equality before the law, accountability, responsibility of public officials, balance of powers, the transparency and public nature of public affairs, federal principles, and full autonomy

328In the next point of the work we analyze specifically the constitutional violations. Ibid., pp. 108-115. 329 Ibid., pp.172-3.

178 of subnational governments – remain weak or absent. Especia- lly grave is the inability of the State to pursue drug trafficking, organized crime, corruption, and investigation of crimes that remain unpunished, which increases mistrust in institutions and especially in the Judiciary. The violation of civil, political, economic, social, and cultural rights of broad swaths of society can also not be ignored. There is also a considerable increase in violence in all orders, which is one of the most delicate problems in our history. There is a democracy with very low institutional quality and with great weakness in its ethical, political, cultural, and educational aspects. “Nor did we achieve a strengthening of the rule of law, i.e. “the subordination of all power to the law, from the lowest level to the highest” (Bobbio). On the contrary, the government of “men” is being imposed instead of “laws”, given the systematic violation of the normative order .... It is imperative to revert the distance that today separates the society from its Constitution and its laws through reforms aimed at developing and rooting a “culture of legality” in our society. We are facing a complex, profound problem that has no simple or specific answers. Its solution demands a comprehensive, long-term strategy. To move forward in this process of change, one must start from the diagnosis: that of a “boba” and “anti-democratic” anomie, which is also one of the main causes of our underdevelopment (Nino). To which must be added the related problems of transgressions and violence, which demand an emphasis on democratic education and in particular, in a true pedagogy of the principles and values of the national Constitution, as established by another unfulfilled law: No. 25.863”.330

330 We then formulate proposals for the elevation of our constitutional culture and of legality. Ibid., PP. 173-5.

179 3. Political parties 3.1 The United States

We cannot include a historical analysis of the formation of political parties, starting from the presidential dispute in 1800 between Je- fferson and Hamilton.331 But we would like to examine the role of political parties in relation to the federal process. There appears to be agreement among the authors that the role has been crucial, despite the initial position of the Framers, who distrusted parties332. But especially from the moment that there was a transition from a dual federalism to a cooperative federalism, as a consequence of the New Deal, the function of parties became increasingly noticeable. Morton Grodzins noted more than 50 years ago: “No important activity of government in the United States is the exclusive province of one of the levels”, and added: “The system is, in effect, one government serving a common people for a common end”333. And Daniel Elazar wrote: “From public welfare to public recrea- tion, from national defense to local police protection, the system of sharing [responsibility] is so pervasive that it is often difficult... to tell just who is doing what under which hat”334. And Gardner underlines: “Cooperation, Elazar claimed, had by mid-century already become “part of the nation’s constitutional tradition.”335 Other authors that we will see later, especially Larry Kramer336, agreed that partisan federalism is the most important institution of

331 Nos remitimos para ello al análisis efectuado por James Gardner, “The myth of State Autonomy: Federalism, political parties and the national coloni- zation of state politics”, 39, Nº 1, The Journal of Law and Politics, University of Virginia, Fall 2013, pp. 19 ff.. 332Gardner remembers Jefferson, Washington and Madison’s views about it, ibid, PP. 13-14. 333 Morton Grodzins, “The American System: A new view of government in The United States” (1966), quoted by Gardner, ibid, p. 9. 334 Daniel Elazar, “American Federalism: a view from the states”, 3rd.ed. (1984), cited by Gardner, ibid., pp. 9-10. 335 Gardner, ibid., p.10. 336 Larry Kramer, “Understanding Federalism”, 47 Vanderbilt Law Review, 1485-1562 (1994), p. 1492.

180 US federalism.337 “Parties influence federalism” said Kramer338, “in an unexpected way. They don’t actively broker state/federal relations or make self-conscious decisions about how to allocate power, because they are neither centralized nor strong enough to play such a role. Rather, it’s the weakness of American parties that makes them important for federalism. American parties are loose confederations of national, state, and local organizations – a structure they maintain through a form of coalition politics characterized by flexible programs, minimal discipline, and no more than a casual commitment to implementing particular policies. Ideology plays a role, but win- ning elections comes first. The party culture is one in which members are expected to put aside ideological differences and help the party’s candidates get elected. Candidates at each level thus depend on aid from party organizations at other levels and cultivate party- based relationships with candidates at these other levels. This, in turn, affects what they do in office. States are also protected by the structure of the post-New Deal bureaucracy. We have long recognized that the interdependence of legislative and administrative processes gives administrators a voice in lawmaking”. Kramer339 emphasized the “political safeguards of federalism”, which lie “in the structure of the federal government itself”, according to Justice Blackmun in García, who cited Herbert Wechsler’s famous essay coining the phrase340. Notwithstanding the agreement of other authors, like Nugent341, Bulman-Pozen342,

337 Ibid., p. 1492. 338 Ibid., pp.1492-3. 339 Ibid., pp.1503-1514. 340 Herbert Wechsler, “The political safeguards of federalism”: the role of the States in the composition and selection of the National government”, 54 Co- lumbia Law Review, 543 (1943). 341 John D. Nugent, “Safeguarding Federalism- How States protect their interest in national policymaking”. University of Oklahoma Press: Norman, 2009. 342 Jessica Bulman-Pozen, “Partisan federalism”, 127 Harvard Law Review, 4, february 2014, pp. 1077-1146.

181 or Gardner343, on the importance of the role of political parties in the re-founding of federalism and their performance as its safeguards, there are other controversial aspects. Bulman-Pozen344 says that “partisanship also sheds new light on an old debate in the federalism literature: whether American have state as well as national political identities”. She recalls Da- niel Elazar’s opinion in favor, based on the unique culture of the States, and the opposite opinion of Malcolm Feeley and Edward Rubin, who emphasize the process of nationalization of culture. Bulman-Pozen345 affirms: “As recent work in political theory and psychology has shown, partisanship is an important aspect of personal identity and source of community. Democratic and Repu- blican, not state and national, are today’s political identities. But the state and federal governments are important sites of partisan affiliation. As these governments advance competing partisan -po sitions, individuals identify with them in shifting, variable ways. Americans are especially likely to feel loyal to the states when they are controlled by the party out of power in Washington, as some number of them always will be”. Bulman-Pozen in the section States as sites of partisan opposition, analyzing “parties as a safeguard of federalism,” sustains that today’s party system is ideologically cohesive and polarized, in contrast to Kramer’s opinion346. But discussing the centralization or decentralization of the national parties, she347writes: “Today’s parties are best understood as networks of individuals and organizations, including elected representatives and party officials, but also allied interest groups, issue activists, political action committees (PACs) and Super PACs, candidate’s personal campaign

343 Gardner, op. cit., “The refounding of federalism on the party system” p. 13 and sgts.. 344 Ibid., p. 1080. 345 Ibid., p.1080. 346 Ibid., p. 1083. 347 Ibid., p.1085.

182 organizations, politician consultants and the like. While national party committees may be more powerful than their state counter- parts, this does not mean the parties are fully centralized. To the contrary, there is a strong argument that the parties have become more decentralized over time, just not along a federalism axis. Private individuals and organizations have replaced state and local governments as loci of party influence”. In relation to the role of political parties, Bulman-Pozen348 says: “If party politics undergirds cooperation between state and federal officials of the same party, however, so too does it under- gird competition between state and federal officials of different parties… In a time of ideologically cohesive, polarized parties, state governments furnish a critical platform for the party out of power to fight the party in power at the national level”. And furthermore: “This nationalist dimension of partisan federalism informs both the nature of state actions and the actor involved…. [First], states sometimes contest federal policy by arguing that the federal government has acted in excess of its powers and encroa- ched on state prerogatives, and partisanship offers a good clue to when state actors make these claims. But states also contest federal policy by enacting competing laws in the same regulatory area and administering federal law uncooperatively.” and, “Second, partisanship disaggregates support for state versus federal power from state versus federal actors”.349

348 Ibid., pp. 1089-1091. On this issue, see James Gardner, The myth of state autonomy:.., op. cit., The contemporay relationship between State and National Politics, pp. 36 ff. 349 Bulman-Pozen recalls the origin of partisan federalism: “Yet partisan federalism has deep roots. In the early Republic, two emergent, polarized parties similarly turned to state governments to stage national partisan conflict. Con- sider, for instance, the Virginia and Kentucky Resolutions responding to the Alien and Sedition Acts of 1798. Often invoked as a seminal moment in Amer- ican federalism, this state resistance reflected, as much as anything, the use of state governments by national and state actors alike to wage partisan battle. The Acts were Federalist legislation opposed by Republicans at both the national

183 In the section State opposition to the federal government, she analyzes three main ways that states and their federal allies contest national policy: 1. Litigation: State sovereignty; 2. Legis- lation: Institutional isomorphism; and 3. Administration: Uncoo- perative Federalism.350 Regarding 1, Litigation, Bulman-Pozen writes: “... claims of dual sovereignty may have expressive value in preserving the states as counterbalances to the federal government even when those claims fail ... Sovereigntism is, on this account, an epiphenome- non of partisanship. 351 The Patient Protection and Affordable Care Act offers a clear illustration of this dynamic. The Act passed Congress with only Democratic votes. Upon its enactment, Republicans immediately called for repeal, with one Republican House member threatening to “meet the federal government at the state line to keep them from mandating this bill upon us”. A group of states also quickly sued to enjoin the law on the ground that it exceeded Congress’s powers and intruded on state sovereignty. While this was a classic federalism argument, not all states signed on. The split was perfectly partisan. Republican officials representing twenty-seven states argued that the law violated state sovereignty, while Democratic officials representing thirteen states defended the exercise of federal power.”352 Next, the author considers another similar situation, with respect to the federal and state levels and supported by Federalists at both the national and state levels… Although Madison’s role in the Alien and Sedition Acts controversy in part reflects his conversion from a nationalist to a states’ rights supporter, this dichotomous framing risks overstating the tension between nationalism and federalism”. Ibid., pp. 1094-5.. 350 Ibid., pp. 1096-1108. 351 Ibid., p. 1097. 352 Ibid., p. 1097-8. The author says: “Republican have more often been associated with arguments for state power than have Democrats. But federalism doesn’t have a consistent partisan bent. On some issues, and during certain periods, Republicans favor the states; other times, Democrats do.” Ibid., p.1099.

184 Defense of Marriage Act, in which the political position of De- mocrats and Republican changed and was inverted.353 On 2. Legislation: Institutional isomorphism, Bulman- Pozen explains354: “States frequently challenge the federal government by using their own lawmaking capacity to enact policies disfavored by the majority at the national level ... When President George W. Bush took office in 2001, for example, the States began to enact legislation furthering the Democratic agenda.” And she adds the reaction against the Environmental Protection Agency, which took no action on climate change, and the Democratic legislators in California, Hawaii and New Jersey passed laws to reduce greenhouse gas emissions. Then, “during the Obama Ad- ministration, the tables have turned, and now it is the Republican Party seizing on the power of state legislatures to advance its national agenda355… Institutional isomorphism becomes a vehicle not for dual federalism but for state-federal interaction and contestation”, the author concludes.356 On 3, Administration: Uncooperative federalism, Bulman- Pozen357 says: “States also oppose federal policy from within federal schemes, pushing back against federal policy using the authority conferred on them to carry out federal law. Party politics plays a critical role in motivating such uncooperative federalism”. And the Harvard Law professor mentions as examples that, “During the Bush Administration, Democratic states widely refused funding for sex-education programs that requires abstinence-only instruction. More recently, many Republican states have declined grants to expand Medicaid or to set up their own health insurance exchanges pursuant to the Affordable Care Act.358 In other

353 See Bulman-Pozen, Ibid., p. 1099. 354 Ibid., p. 1100-1. 355 Ibid., p. 1103. 356 Ibid., p. 1105. 357 Ibid., p. 1105. 358 Ibid., p. 1105.

185 instances, partisanship leads states to tweak or generate internal opposition to federal programs they administer”.359 In Part III, Horizontal Federalism, Bulman-Pozen360 on Fe- deralism as a safeguard of Parties affirms: “By motivating both state-federal contestation and individual identification with the States, partisanship serves federalism. But if our two political parties help perpetuate American federalism, the reverse is also true: federalism helps perpetuate the Democratic and Republican parties. The coexistence of fifty-one governments means that neither party is ever wholly out of power and that each party’s internal diversity may be expressed in governance decisions... When Repu- blicans rule in Washington, Democrats can build a record in state capitals, positioning themselves to regain federal power, and vice versa. State politicians have a ready springboard into national office; many of our Presidents have come to the White House from the governor’s mansion.”361 Next, on States as laboratories of partisan politics, Bulman- Pozen362 sustains: “These multiple government fora point to a second way federalism serves the political parties: it offers scope for intraparty, as well as interparty, competition and variation. The Democratic and Republican parties look strikingly uniform throughout the country compared to their historical incar- nations. Yet if it is an overstatement today to characterize our two-party system as “more like a hundred-party system”363, there

359 Ibid., p. 1105. And she mentions the examples of some policies during the Clinton, Bush and Obama Administrations, like federal programs on work and marriage, State Children·s Health Insurance Program and immigration. Ibid., pp. 1105-8. 360 Ibid., p.1123. 361 Ibid., p. 1123 and she cites as examples George W. Bush, Bill Clinton, Ron- ald Reagan and Jimmy Carter. 362 Ibid., p.1124. 363 Nelson W. Polsby, The American party system, in New Federalist Papers 37, 40 Alan Brinkley et al. (eds.), 1997, cited by Bulman-Pozen, p. 1124, footnote 216.

186 nonetheless remain disagreements about policies and priorities within each party.”364 On Identifying with other States, the author365 writes: “... it is not only the American whose party is out of power who may seek out other states for surrogate representation. Individuals whose states are controlled by their political party may also affiliate with other states, and they may do so even when their political party is in power in Washington as well. Federalism’s fifty states enable intraparty, not only interparty, differences to yield policy variega- tion, and they create a platform for the national without Wash- ington. Democrats across the country may take California’s environmental leadership to represent their views, while Republicans across the country may take Virginia’s ban on same-sex marriage and civil unions to represent theirs … As federalism maps out national partisan divisions, it encourages individuals to affiliate -be yond state borders”.366 In the Conclusion, Bulman-Pozen367 says: “Partisan federalism not only helps to explain enduring features of the relationship among the states, the federal government, and the people, but also opens up new lines of inquiry. While I have suggested that partisanship and federalism are mutually constitutive in the United States today, my focus has been on how partisanship shapes our federalism ... Such an exploration might, for instance, lead to a new justification for, or critique of, the law regarding state regulation of political parties. Partisan federalism might also enrich our thinking about local government law. We could consider, for example, how some cities, such as Atlanta, Austin, and Nashville, engage in partisan fights with their states, while others, such as New York

364 The author gives examples of state-federal contestation and a greater variety of party positions taking root. See ibid., pp.1125-30. 365 Ibid., pp. 1134-5. 366 In Part II the author analyzes Partisan identification with States and in Part IV, State elections and political community. 367 Ibid., pp. 1145-6.

187 and San Francisco, function as partisan actors on the national stage. As these and other questions underscore, partisan federalism inspires a fresh look at federalism and partisanship alike”.

3.2 Argentina

Here we will refer specifically to the role of political parties and fe- deralism368. In Argentina, although political parties have constitutional rank in Art. 38, since the Constitutional Reform of 1994, serious problems have been observed with the functioning of the party system and with political parties, in particular. The party system is very fragmented, and parties have failed to adequately fulfill their tasks of democratically selecting candidates, forming study groups, making proposals of government, showing accountability in the campaign financing system and dedicating themselves to forming their leaders and affiliates.369Moreover, there are problems of political defections to other parties.370 As we pointed out earlier, hyper-presidentialism, delegative democracy, and emergencies degraded our institutional quality, impeded the full validity of deliberative democracy and republican and federal principles371 and deeply affected political parties.

368 Following our book La Ciudad Autónoma de Buenos Aires y el fortalecimien- to del federalismo argentino, op. cit., where Proposal Nº 18 refers to this question. 369 For an analysis of political parties, see Antonio María Hernández & José Manuel Belisle, Regulación Jurídica de los partidos políticos en Argentina, in the book Regulación Jurídica de los partidos políticos en América Latina, Director Daniel Zovatto, UNAM e Internacional IDEA, Méjico, 2006, pp. 191-242. See too the book “Así no va más- Diagnóstico y propuesta de reforma político-electoral de la Provincia de Córdoba”, Dictamen de la Comisión Consultiva de Ex- pertos, edited by Universidades Católica and Nacional de Córdoba and Educc (Editorial de la Universidad Católica de Córdoba), Córdoba, 2008, with a diagnosis of the party system and the political parties in the Province of Cordoba. 370 See Paulina Chiacchera Castro, “Transfuguismo legislativo”, Rubinzal Cul- zoni Editores, Buenos Aires, 2017. 371 See Daniel Alberto Sabsay, Consideraciones acerca del Federalismo argentino, and Mario Midón, Ilegitimidades constitutionales en nombre del federalismo, in

188 We explained that the President was frequently able to impose his hegemony based on the support of governors who needed financial aid, and these in turn, asserted their power over national legislators. So, another cause of the de-federalization of the country has been the behavior of the political parties in the Congress, and particularly in the Senate372. In turn, hyper-presidentialism has meant in not a few cases, the confusion of the official political party and the government. In some cases, the lists of legislators have been drawn up by the Presidency, as an undeniable demonstration of centralism. The same phenomenon has been repeated at provincial and municipal levels, with governors and city mayors. That is why Guiller- mo Barrera Buteler concludes that the deficiencies of Argentine federalism have an ethical and cultural, rather than normative, the book Aspectos históricos y políticos del federalismo argentino, director Antonio María Hernández, Instituto de Federalismo, National Academy of Law and So- cial Sciences of Córdoba, Córdoba, 2009, p. 247 ff., and p. 271 ff., respectively. 372 See Antonio María Hernández, La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino, op. cit, in proposal Nº 3 on strengthening the role of Congress and the Senate, in particular; The Congress and the Senate in the Argentine Federation, paper submitted in the Workshop of the International Association on Constitutional Law, in Mexico City, November 9-10th, 2017; Federalismo y Constitucionalismo Provincial, op. cit., and Aspectos históricos y políticos del federalismo argentino, in the book Aspectos históricos y políticos del federalismo argentino, op. cit.. See among other studies in this regard: Pedro J. Frías, Introducción al derecho público provincial, Buenos Aires, Depalma, 1980, p. 96 ff.; los 2 Dictámenes del Consejo de Consolidación de la Democracia, el Preliminar de 1986 y el Segundo Dictamen de 1987, published by Eudeba, Buenos Aires; Jorge Douglas Price y Carlos Rosenkrantz, Las cuestiones del federalismo. Análisis de la reforma constitucional desde la perspectiva del federalismo comparado, CFI, 1993, Tomo 1, p. 90 ff.; Eduardo Luna, Congreso y Control, Ediciones Jurídicas Cuyo, Mendo- za, 2007; Guillermo Barrera Buteler, Aspectos políticos del federalismo, punto 3, El Senado desvirtuado in the book Aspectos históricos y políticos del federalismo argentino, Director Antonio María Hernández, op. cit., pp. 282 ff. and Pablo Garat, El presidencialismo terminará con el federalismo?, in Revista Civilidad, Edición Nº 33, August 2013, pp. 8 ff.

189 root, since the representatives in Congress respond not to the provinces and their interests, but to the political project of the leader who included them on the list.373 Hence, he proposes that greater legal requirements be introduced for the recognition of national political parties in relation to federalism, to reduce the “drag” effect that is produced by simultaneous national, provincial and municipal elections, and to strengthen the link between representative and represented.374 This has changed as a result of the presidential election of 2015, as the ruling coalition led by President Macri has no majority in either chamber of Congress and does not govern in most provinces and municipalities. It is possible that a reconfiguration of the political system is occurring, and negotiations are advancing between the political parties in Congress and between the president and the governors. We have for some time been encouraging a profound political reform375 with special emphasis on political parties and the party system376.

373 Guillermo Barrera Buteler, Aspectos políticos del federalismo, in the book Aspectos históricos y políticos del federalismo argentino, Director Antonio María Hernández, op. cit., p. 287. 374 Ibid., p. 288. 375 For a complete analysis of political reform in Latin America, see especially the doctoral thesis in political science of Daniel Zovatto, presented at the Uni- versidad Complutense de Madrid, in 2011, entitled La reforma político-electoral duante la tercera ola democrática en América Latina, covering the period 1978- 2009, among other books by this author. Also Reforma política y electoral en América Latina 1978-2007, Daniel Zovatto and Jesús Orozco Henríquez, Co- ordinators, edited by the Instituto de Investigaciones Jurídicas de la UNAM e Internacional IDEA, Mexico, 2008. 376 See Antonio María Hernández and José Manuel Belisle, Regulación jurídi- ca de los partidos políticos en Argentina, in the book Regulación jurídica de los partidos políticos en América Latina, Coordinator Daniel Zovatto, UNAM and Internacional IDEA, Mexico, 2006, pp. 191-242; and Antonio María Hernán- dez, Por una profunda reforma políica, La Voz del Interior, Cordoba newspaper, December 23rd, 2000.

190 We need to advance in this issue377, including aspects relating to the electoral system378, to the organization of the elections at the federal level, which cannot remain in the hands of the Mi- nistry of the Interior379, and even of Electoral Justice itself, with special emphasis on its empowerment and independence. We do not agree with the indefinite reelections that are allowed in several provinces and most of the municipalities of the country. They consolidate hyper-presidentialism, affecting the republican and democratic system, and hinder the renewal of leadership. The substantial part of a political reform lies in greater de- mocratization, modernization, and strengthening of political parties. Parties must be opened up and internal democracy deepened, to overcome the so-called “iron law of partisan oligarchies.”380 The effective fulfillment of their functions as fundamental institutions of our democratic system must be emphasized, as Art. 38 says. One possibility is the selection of candidates at the federal level through simultaneous and compulsory open primary elections, extending these to the provincial and municipal orders. Po- litical financing issues are crucial, because they are linked to one of our most serious problems: corruption381. Another decisive aspect is the formation and training of the leadership of political parties. Art. 38 of the National Constitution, providing for the allocation

377 As we proposed in Fortalezas y debilidades Constitucionales, op. cit. p. 159, and Federalismo y Constitucionalismo Provincial, op. cit., Ch. XVII, La Consti- tución de Córdoba y la reforma política, p. 457 ff. 378 Argentina may be one of the most backward in Latin America, with its multiple ballot papers for each political party, with all the corruption that this permits. This is at all levels of government, with a few exceptions like Cordoba and Sante Fe with a single ballot paper, and some municipal experiences with an electronic ballot system. 379 It is interesting to see the experience of the Federal Electoral Institute of Mexico. Something similar could be a great advance for our country. 380 As Robert Michels pointed out. 381 See our book Fortalezas y debilidades constitucionales ..., op. cit., pp. 151- 156 and 167-168.

191 of funds to political parties for this purpose, should be strictly complied with382. We particularly note a study carried out in the Province of Córdoba, by the Advisory Committee of Experts on Political-electoral reform, culminating in issuing an opinion and publishing a book383, which may be useful for other provinces and the other levels of government. In direct relation to federalism, we have pointed out the need for its deepening through the existence of specifically provincial and municipal political parties384, to invigorate and prioritize politics and autonomy in these government areas, analyzing and debating their respective issues. We agree with Joaquín v. Gonzá- lez that municipalities are the “first theater” in which people exercise their rights, and that autonomous and widely participatory local governments must be “the social school of democracy”, and the stage where the cursus honorum of politics should begin. They are not yet so, since, although there has been remarkable progress

382 We recall the opinions of Max Weber and Jose Ortega y Gasset about the requirements and conditions to be a serious politician, since an extraordinary capacity of both thought and action is needed. In the face of the complexity of the modern world, there is a lack of true political degree courses, party research and thinking bodies, as well as training schools for the young and affiliates. This is particularly urgent in Argentina given the lamentable state of our parties and party system. 383This Commission was chaired by Dr. Daniel Zovatto and composed of the Rectors of both Universities, Carolina Scotto and Rafael Velasco, the Deans, Ramón Yanzi Ferreyra and Mario Riorda, Constitutional Law Professor Anto- nio María Hernández and Jorge Gentile and Dr. Claudia Laub. This proposed a constitutional reform and other legislative and executive reforms to modify all aspects of the political-electoral reform, covering not only the provincial but also the municipal orders. Unfortunately, very few proposals were implemented, such as the elimination of the summation of votes and the implementation of the single ballot. But we hope this study will one day produce greater changes in our province and our local governments. See Antonio María Hernández, Fed- eralismo y Constitutionalismo Provincial, op. cit, Ch.. XVII “La Constitutión de Córdoba y la reforma política”, p. 457 ff. 384 In our books, Derecho Municipal, 2ª. Ed., Depalma, Buenos Aires, 1997 and Derecho Municipal-Parte General, UNAM, Mexico, 2003, in the chapters on citizen participation in the municipality, where we examine the topic of political parties, among other forms of political and citizen participation.

192 in our legislation to enable a participatory democracy in the local government, in practice worrying problems can be seen, resulting from our poor institutional quality. 385 In addition to this, the importance of provincial and even municipal politics in the national context is increasing.386 The majority of those who became presidents since the recovery of democracy in 1983 were former governors or heads of government of the Auto- nomous City of Buenos Aires387. The same can be said of the importance of municipal politics. We cannot ignore what is happening in the Province of Buenos Aires, for its special political clout. The municipal regime has to be modified, to ensure not only autonomy388, but also provincial political and democratic decentralization. We must

385The Provincial Constitutions, Municipal Organic Laws and Municipal Charters grant strictly political participation by the recognition of the political rights for citizens and even foreigners of electing and being elected, of forming local political parties and of exercising institutes of direct or semidirect democracy like the initiative, referendums and recalls. They also enable the exercise of other forms of citizen participation, through neighborhood councils; public hearings; economic and social councils; among others. Nevertheless, various surveys and studies reflect the crisis of participation and representation and the weakness in constitutional culture and legality (see Hernández, Zovatto & Mora y Araujo, Encuesta de cultura constitucional: Argentina, una sociedad anómica, op. cit. and Antonio María Hernández, Daniel Zovatto & Eduardo Fidanza, Segunda En- cuesta de Cultura constitucional. Argentina, una sociedad anómica, op. cit.). 386See Julieta Suárez Cao, Federal en la teoría y unitaria en la práctica? Una discusión sobre el federalismo y la provincialización de la política, Revista SAAP, Vol. 5 Nº 2, November 2011, pp. 305-321; Marcelo Leiras, Los procesos de descen- tralización y la nacionalización de los sistemas de partidos en América Latina, in the book El federalismo argentino en perspectiva comparada, op. cit., Ch, I, pp. 25-71; and Alberto Dalla Via, constitutional law professor and Judge of the National Electoral Court, who analyzed territorialization of politics in his book La competencia política en el federalismo argentino, Eudeba, Buenos Aires, 2010. 387 Presidents Menem, Duhalde, Rodríguez Saá and Néstor Kirchner were formerly governors of the provinces of La Rioja, Buenos Aires, San Luis and Santa Cruz, respectively; and De la Rúa and Macri, were previously Heads of Govern- ment of the Autonomous City of Buenos Aires. 388 Constitutionally enacted in Art. 123, as an obligation to be guaranteed by the Provinces. It is regrettable that the Provinces of Buenos Aires, Santa Fe and Men- doza have not yet adapted their constitutional texts to the National Constitution.

193 change the centralist system of a single municipal government per district, which means there are just 135 Municipalities for more than 307,000 Km2 and some 17 million inhabitants. Local democracy must be deepened in Buenos Aires Province with many more autonomous, participative municipalities. However, we note the prohibition of indefinite reelection of municipal authorities enacted in 2016, which is most important in this issue. We reiterate the need for an interdisciplinary methodology for the study of federalism389, which is already producing fruits, as seen in the contributions from political scientists, who enrich knowledge of this complex topic with their analysis.390

3.3 Similarities and differences

There is some similarity in this matter, because the federal organization means that political parties can also occupy different positions in the State, if they do not hold the federal government, as Bulman-Pozen has pointed out for American federalism. At present, for example, the Peronist party, which held the Presi- dency for many years until its defeat in 2015, retains most of the

389 See the books Aspectos fiscales y económicos del federalismo argentino and Aspectos históricos y políticos del federalismo argentino, op. cit., with the participation of specialists of these disciplines, as well as lawyers. We also recommend this methodology for the study of constitutional law, provincial constitutionalism and municipal law. 390 Examples of this are the works of Alejandro Bonvecchi, Federalismo fiscal y supervivencia presidencial and Carlos Gervasoni, Transferencias federales y competitividad electoral: la ventaja oficialista de gobernadores en provincias argentinas (1983-2011), in the book Consecuencias económicas y políticas del federalismo fiscal argentino, Carlos Gervasoni & Alberto Porto Editores, op. cit., pp. 35-72 and 73-104, respectively. We also note the work El federalismo argentino en perspectiva comparada, Tulia Falletti, Lucas González & Martín Lardone Ed- itors, Educa, Buenos Aires, 2013, stressing the relevance of local and territorial politics in these times, in the same way as Suárez Cao, previously cited. And of course, the historical-political contributions of Julio Saguir in his work Unión o Secesión, Prometheus, Buenos Aires, 2007 and those of Natalio Botana, in his classic El orden conservador, and his other books and journalistic articles.

194 provinces and municipalities as well important positions in both Chambers of Congress. The relevance of territorial policy in both federations is also similar, since those who have acceded to the Presidency of the Re- public have mainly come from provincial governments or from the government of the Autonomous City of Buenos Aires, especially during the democratic period begun in 1983, as we noted before. However, it is clear that the differences are much greater, because the system of political parties in Argentina is very weak, as we have seen. There is no comparison with the enormous strength of the US bipartisan system. Another big difference is observed in the political culture,391and in the use of institutes of direct democracy, such as initiatives and referendums, which reveal the strength of American democracy. Thus, in 2016, the following propositions were voted on in the USA392: in Alabama 15 Constitutional Amendments393and 15 Legislative measures394; in Alaska, 1 CA, 1 L, 1 Initiative395 and 1 Statute396; in Arizona, 2 CA, 2 ST, 2 L and 2 I; in Arkansas, 4 CA, 3 L and 1 I; in California, 7 CA, 14 I, 15 ST and 1 Referendum397;

391 See John Kincaid, Political culture and the quality of Urban life, Publius, Vol. 10, Nº 2. The study of American Political Culture and its subcultures (Spring, 1980), pp. 89-110. The author quotes Daniel Elazar, who “suggests that American political culture is essentially a compound of three political subcultures termed moralistic, individualistic and traditionalistic. These subcultures emerged from historical interactions among the ethnic and socioreli- gious groups which settled America and the diverse continental environments they encountered.… Moralistic political culture –associated with the northern stream of Puritan, Yankee and Scandanavian settlers; invidualistic, associated with the middle states stream of non-Puritan English, continental, Eastern Eu- ropean, Irish and Mediterranean groups and traditionalistic political cultures, closely tied to the plantation agrarianism of the South.” Kincaid, pp. 91-92. 392 See The book of the States 2017 edition, Volume 49, The Council of State Governments, Lexington, Kentucky, www.csg.org., pp.307-310. 393 From now on, CA. 394 From now on, L. 395 From now on, I. 396 From now on ST. 397 From now on R., in this case to approve or repeal a law banning plastic grocery bags.

195 in Colorado, 6 CA, 2 L, 7 I and 3 ST; in Florida, 5 CA, 2 L and 3 I; in Georgia, 4 CA and 4 L; in Hawaii, 2 CA and 2 L; in Idaho, 1 CA and 1 L; in Illinois, 1 CA and 1 L; in Indiana, 1 CA and 1 L; in Kansas, 1 CA and 1 L; in Louisiana, 6 CA y 6 L; in Maine, 1 L, 5 I and 6 ST; in Maryland, 1 CA and 1 L; in Massachusetts, 4 I and 4 ST; in Minnesota, 1 CA and 1 L; in Missouri, 5 CA, 1 L, 5 I and 1 ST; in Montana, 1 CA, 4 I and 3 ST; in Nebraska, 1 ST and 1 Referendum; in Nevada, 2 CA, 4 I and 2 ST; in New Jersey, 2 CA and 2 L; in New Mexico, 1 CA, 5 L and 4 ST; in North Carolina, 1 L and 1 ST; in North Dakota, 3 CA, 2 L, 3 I, 3 ST and 1 R; in Oklahoma, 5 CA, 4 L, 3 I, and 2 ST; in Oregon, 3 CA, 3 L, 4 I and 4 ST; in Pennsylvania, 2 CA and 2 L; in Rhode Island, 2 CA, 7 L and 5 ST; in South Dakota, 5 CA, 1 L, 7 I, 5 ST and 2 R; in Utah, 3 CA and 3 L; in Virginia, 2 CA and 2 L, and in Washington, 6 I and 6 ST. It is no coincidence that the countries with the greatest exercise of these democratic institutes, Switzerland and the United States, are precisely those with the strongest, decentralized, and ancient federalisms. In Argentina not only the national Constitution, but also provincial constitutions, municipal charters and municipal organic laws widely enable the exercise of these rights of direct democracy, but unfortunately we make little use of them.398 We have already mentioned the serious difficulties of the Argentines to develop architectural policies, based on political agreements, which is the way to solve the country’s structural problems399. Returning to the topic of the parties, at other historical moments there was clear bipartisanship, but the crisis of 2001 had a very strong impact, which particularly affected the other great national political party, the Unión Cívica Radical, which is now part

398 See Antonio María Hernández, “Derecho Municipal”, UNAM, Mexico, 2003, op. cit.. 399Recall the reference to the “ley del odio” (hate law) enunciated by Joaquín V. González in El juicio del siglo, in 1910, which is also one of the decisive causes of our decadence.

196 of the government coalition. We believe that a reconfiguration of the party system is occurring, and we hope that they are strengthened, as fundamental instruments of constitutional democracy. A new reality of political coalitions is being established, which is common in neighboring countries, but not yet in Argentina. Changes are also occurring in national politics, as there is dialogue and negotiation between the parties, both in Congress and between the President and the governors. After the half-term election in 2017, the President proposed a series of economic, fiscal, labor and pension reforms, which reached an important degree of consensus, which is unusual in Argentine politics. But if a new economic crisis occurs in 2018, we will have to see what will happen between government and opposition with the measures for the fiscal deficit, which must be implemented in the 2019 Budget to meet the goals of the new commitment to the International Monetary Fund. To this complex reality is added the scandal of the “Note- books” that describe bribes in public works, which could become a process similar to the “Lava Jato” of Brazil, since the main contrac- tors of the country appear involved, as an evident demonstration of the high level of corruption that we have had. All this is being investigated in the Federal Justice, and we trust that this time it will be possible to end the impunity that has characterized us. For all these reasons, we cannot say that the Argentine party system is the safeguard of federalism as in the United States, but perhaps the opposite. Although we hope it will be so in the future, as imagined by the constituents in the constitutional Reform of 1994. There they were constitutionalized in Art. 38 with the obligation to respect the Constitution, that they must accept, practice and defend the values and principles of federalism not only in the state organization, but also in their own organization and functioning400.

400 See Antonio María Hernández, 20 propuestas para fortalecer el federalismo argentino, in the book La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino, op. cit., Proposal 18.

197 4. Intergovernmental relations 4.1 The United States a) Federal-State inter-governmental relations In the introduction entitled The Constitution and the construction of American federalism, John D. Nugent401, writes: “Constitu- tional scholars have long been interested in whether state governments can adequately protect their interests and prerogatives against perceived federal encroachments. The most vivid examples in American history of states’ attempts to check and balance the federal government has taken forms such as states seceding and governors standing in schoolhouse doors, but state governments protect their interests today in ways that typically involve cons- tructive engagement rather than brinksmanship”. The author affirms that “construction” is the effort to clarify the ambiguities and silences of the Constitution’s text, but “the literature has fo- cused on separation of powers and civil liberties questions much more than federalism questions and the present work fills that gap by describing and explaining the many nonjudicial determinants of the state-federal balance of authority”. Following Grodzins and Elazar’s approach, Nugent402 describes “intergovernmental policymaking efforts and a general theoretical view of the dynamics of American federalism.” In Chapter 1, the author403 presents a typology of state governmental interests vis-a-vis the federal government in legal, fiscal, and administrative matters, with a universal, categorical, or particularistic scope. “Institutionally,” says Nugent404, “universal state governmental interests are promoted by some of the main organizations that make up the “inter-governmental lobby”, a collection

401 “Safeguarding Federalism- How States protect their interests in national policymaking”, University of Okla homa Press: Norman, 2009, p. 4. 402 Ibid., p. 13. 403 Ibid., p. 22. 404 Ibid., p. 31.

198 of professional associations for state officials”, and adds: “Seven major associations comprise the core of the Inter-Governmental lobby: The National Governor’s Association (NGA), the Na- tional Conference of State Legislatures (NCSL), the National League of Cities, the National Association of Counties, the Inter- national City-County Management Association, the U.S. Confe- rence of Mayors and the Council of State Governments”. Regarding Categorical state-governmental interests, the author405 mentions different examples with sectional cleavages and others with common interests such as state borders with Mexico and Canada, fishing industries, Indian tribes, proximity to the Great Lakes, etc. “Many categorical state interests are pur- sued through specialized institutions that are organized regiona- lly, such as the Western Governors Association and the Council of Great Lakes Governors, or around particular policy areas, such as the Northeastern Dairy Compact, the Northeast Association of State Transportation officials, the Interstate Oil and Gas Com- pact Commission, the Northeast States for Coordinated Air Use Management, the seven-state compact governing the use of water from the Colorado River, and the Governors’ Ethanol Coalition”. Regarding Particularistic State-governmental interests, Nugent406 writes: “About two-thirds of U.S. governors maintain individual offices in Washington D.C., a fact that is overlooked in most accounts of the inter-governmental lobby.” In Chapter 2, “The Political Safeguards of Federalism To- day,” the author407 cites Madison’s statement in Federalist 46: “The remaining points on which I propose to compare the federal and State governments are the disposition and the faculty they may respectively possess to resist and frustrate the measures of each other.” Nugent408 sustains that “State officials today use a

405 Ibid., p. 33-4. 406 Ibid., p.35. 407 Ibid., p.55. 408 Ibid., p. 55

199 variety of means to safeguard the legalistic, fiscal and administrative state-governmental interests”, and that the “coherent set of interrelated practices… in combination, constitutes a substantial counterweight to federal authority today.” Next, the author409 explains the four basic state strategies for influencing the federal government: “From strongest to weakest, I refer to these strategies as “state resistance”, “coordinate governance”, “participation” and “exhortation”. State officials choosing the first strategy in effect say to the federal government, “We won’t comply with this federal law, whatever the consequences.” Sta- tes choosing the second strategy use their status as independent political entities to pass effective legislation that makes preemptive federal laws unnecessary for solving public problems. The participation strategy leads state officials to work with members of Congress or federal agencies (or both) while they are writing laws and regulations so that state interests are reflected in the final product. Finally, state officials adopt public relations campaigns to draw attention to their disagreements with proposed or existing federal policies, exhorting federal policymakers to act in more state-friendly ways. Taken as a whole, these general strategies and their many manifestations constitute the full range of political safeguards of federalism available to state officials today”. Later, Nugent410 describes the state officials’ multiple points of access to the federal policymaking process in prelegislative, legislative and postlegislative phases and the modes of States influence. In Chapter 3 Preempting Federal preemption, the author411 considers the interesting issue of the uniform-state-laws and cites Allison Dunham’s opinion: “From the very beginning, it has been a theme that uniformity of law by voluntary state action was a means of removing any excuse for the federal government to ab- sorb powers thought to belong rightfully to the states”.412

409 Ibid., p. 58. 410 Ibid., pp.58-76. 411 Ibid., p. 77. 412 Uniform-laws commissioner Allison Dunham (1965), ibid, p. 77.

200 Nugent413 explains: “For well over a century, however, state governments have used a third way of addressing public problems in the United States – the model legislation on the uniform-state- laws process. In this process, some individual or organization dra- fts a piece of model legislation and then recommends it to all the state legislatures for adoption – preferably without amendment. In the best-case scenario, every state legislature adopts the act as drafted. The result is a single policy that is national but not federal. In such cases, the benefits of the uniform national policy are achieved without federal overrides or preemptions of states’ decision-making authority. States have long borrowed and adapted one another’s policy ideas in a phenomenon political scientists call the “diffusion of innovation”, and the uniform-law process is a more formal and complete version of this sort of interstate sharing of policy ideas”.414 Nugent415 gives two examples: the Uni- form Commercial Code and the Streamlined Sales Tax Project. The first is a “massive collection of uniform state laws that constitute the bulk of commercial law in the United States”, and the second, “is an effort by states to simplify and coordinate state sales tax on various goods so that states can prepare the way for collecting taxes on purchases made on the Internet”. The primary source of uniform acts since about 1890 – writes Nugent416- has been the National Conference of Commis- sioners on Uniform State Laws, whose members are appointed by the governors or their states. This is a nonpartisan institution and Commissioners must be members of the Bar Association of their States. They serve for three-year terms, with the possibility of

413 Ibid., pp.77-8. 414 See Abbe R. Gluck, Nationalism as the new federalism (and federalism as the new Nationalism): A complementary account (and some challenges) to the Na- tionalistic School, 59, Saint Louis University Law School, 1045-1070 (2015), p. 1062. 415 Ibid., p. 79 ff. 416 Ibid., p.82.

201 renewal. The most notable Commissioners have included Woo- drow Wilson, legal scholars Roscoe Pound, Ernst Freund and Karl Llewelyn and future Supreme Court Justices, Louis Bran- deis, William Rehnquist, Sandra Day O’Connor, and David Sou- ter. Discussing How the uniform-law’s process safeguards federalism, he 417says: “The uniform-law process primarily protects state governments’ legalistic interests by preserving state-governmental primacy to legislate in particular policy areas.” In Chapter 4 on State participation in federal policymaking – The inter-governmental lobby, Nugent418 remembers Woodrow Wilson’s question: “Do we (governors) draw together simply as friends or does there arise in our minds the thought that we have a quasi-constitutional function?”. Regarding the Role of Gover- nors, the author419 says: “Governors’ Washington staff work alone and in conjunction with the staff of other governors and associations like the NGA to track federal policymaking efforts ant to try to convince members of Congress to legislate in ways that preserve state-governmental interests.” And he420 adds: “State governments have always lobbied the federal government in one form or another. Because the National government has always relied on the cooperation of state governments to administer a wide variety of federal programs, state governments’ legalistic, fiscal, and administrative interests are substantially affected by the forms those federal programs take. Accordingly, states have regularly sought to clarify their roles vis-à-vis the federal government and to increase their autonomy and flexibility in carrying out federal programs”.

417 Ibid., p.88. See the analysis of this point in pp.88 to 114. 418 Ibid., p. 115. Governor-elect Woodrow Wilson, addressing the Second Meeting of the Governors’ Conference, 1910. 419 Ibid., pp.116. 420 Ibid., p. 117. For other analysis of Governors’ roles, see Jennifer M. Jensen, Governors and partisan polarization in the federal arena, Publius, The Journal of Federalism, volume 47, pp. 314-341 (2017).

202 Regarding the intergovernmental lobby, Nugent421 first analyzes the National Association of Governors, with roots in the Governors’ Conference of May 13, 1908, in a meeting held at the White House during the Presidency of Theodore Roosevelt. The Governors’ Conference became the National Governors’ Conference in 1965 and the National Governors’ Association (NGA) in 1977. “The second tier of the governors’ lobby consists of the several regional governors’ associations that exist to help promote the categorical interests of clusters of state governments. Six major regional associations currently exist ... From oldest to newest, these are the Western Governors’ Association, the Southern Governors’ Association, the Midwest Governors’ Association, The New England Governors’ Conference, the Coalition of Northeastern Governors, and the Council of Great Lakes Governors”.422 The author examines the dynamics among the elements of the Governors’ lobby423, the modes of guberna- torial lobbying in Washington424 and case studies of gubernato- rial influence in Washington.425 In Chapter 5 on State implementation of federal policy as a safeguard of federalism, Nugent426 affirms: “As the previous two chapters have demonstrated, state officials have a variety of means to defuse pressures for new, preemptive federal policy and to influence and shape federal policy as Congress develops it. If state officials’ attempts to promote their interests at these stages fall short of their hopes, their involvement in the third, postlegislative stage afford them additional opportunities to shape the direction of federal policy. The postlegislative phase involves turning the federal law into rules and regulations that are often carried out

421 Ibid., p. 120 ff. 422 Nugent, ibid., p. 123. 423 Ibid., pp. 129-3. 424 Ibid., pp. 133-7. 425 Ibid., pp.137-167. 426 Ibid., p. 168.

203 and enforced by State officials. In this chapter, I explain how state officials use their roles as implementers and enforcers of federal policy in strategic but also principled ways to promote the state- governmental interests described in Chapter 1”. This is due to state influence in the implementation phase of federal policyma- king427, which includes varieties of state administrative discretion, from non-compliance to discretion and renegotiation428. In the field of influencing Presidential Executive Orders, Nugent429 says: “Recognizing the importance of state governments in implementing federal policy, several presidents have issued federalism-related EOs specifying what sort of consultation with state or local (or both) officials must occur before a federal agency develops and issues regulations”. And he remembers Ronald Reagan’s Executive Orders No. 12372, when an Agency proposed actions that would impact inter-governmental fiscal affairs, and No. 12612 which presented a very narrow view of the national Government’s enumerated powers and required a federalism impact statement for rules under consideration by an Agency; and Bill Clinton’s EO No. 13132, that required “To the extent possible, State and local officials shall be consulted before any such action [which would limit the policymaking discretion of the State] is implemented” .430 Finally, it is important to highlight the experience of the Ad- visory Commission on intergovernmental relations431, which was an important institution in this field. The validity and significance

427 See Nugent, ibid., pp.170-209. 428 Ibid., p. 174. 429 Ibid., p. 183 430 Ibid., p. 183. 431 See Tim Conlan, From cooperative to opportunistic federalism: Reflection on the half-century anniversary of the Advisory Commission of Intergovernmental Re- lations, Public Administration Review, September-October 2006, pp. 663-676. John Kincaid, former President of the International Association of Centers for Federal Studies, was Director of this Commission and as Publius Editor wrote the annual report on federal-state relations in the USA for many years until today.

204 of these issues in national politics can also be seen in the performance of the Subcommittee on Inter-Governmental Affairs of the Commission on Oversight and Government Reform of the House of Representatives432. b) Interstate relations and compacts. “States cooperate with one another in many ways” say Ann O’M. Bowman and Neal D. Woods433, “including joint administrative agreements, uniform state laws, multistate legal actions and interstate compacts”. Regarding the Evolution of Interstate Compacts, they434 write: “Interstate compacts are authorized in Art. I Sec. 10 of the U.S. Constitution. Historically, compacts were used primarily to settle boundary disputes between a pair of neighboring states, such as the 1949 Kansas-Missouri Boun- dary Compact. The focus of the compacts was relatively narrow and there were not many of them. One estimate of the number of compacts at the turn of the 20th century found fewer than 40 of them in use, the vast majority of them dealing with state borders. Since that time, the substance of compacts has expanded far beyond the resolution of territorial disputes. One of the most prominent early compacts is the Port Authority of New York & New Jersey, established in 1921. By the 1970s, compacts were increasingly being used to address a diverse array of contemporary problems and policies on topics including child welfare, criminal justice, education, health, natural resources, taxation, and transportation. By 2017, the number of compacts has increased to more than 200, with several more in developmental stages”.

432 See www.fdsys.gov and www.oversight.house.gov, Hearing, April 26, 2017 on Unfunded mandates: examining federally imposed burdens on state and local government. 433 Why States join Interstate Compacts, The Book of the States, 2017 edition, Volume 49, The Council of State Governments, Lexington, Kentucky, www. csg.org., p.19. 434 Ibid., p. 19.

205 In relation with the goals of these compacts, Bowman and Woods435 enumerate: To address shared problems (e.g. river po- llution); promote a common agenda, e.g. reciprocal licensing arrangements for health care professionals across states; to produce collective goods; assistance to other states by responding to natural disasters; and, to reduce the costs associated with policy design and experimentation (e.g. joint studies to determine better utilization of fisheries or develop restoration standards for mined land). They conclude by looking ahead: “The Council of State Go- vernments’ own policy and research team identified five emerging issues that are being developed into compacts: common state policies on autonomous vehicles, occupational licensing across state lines, prescription drug monitoring programs, infrastructure development and violent crime analysis. In these and other policy arenas, states are likely to continue to find compacts an attractive option for addressing common state problems”.436 c) State International Compacts As a consequence of the globalization process, subnational entities have intensified their activities in integration processes, both nationally and internationally. The most prominent examples are those of the European Union, Nafta and also the Merco- sur. It is not only national governments that implement international agreements, but also subnational entities, like the Regions of Italy and France, the Autonomous Communities of Spain, the Länder of Germany and Austria and the Cantons of Swit- zerland. These entities also participate in the signing and execution of international integration treaties, and they are part of the EU European Committee of the Regions. Umbrella agreements have also been signed between the USA’s Southern States and Mexico’s Northern States, and also the USA’s Northern States

435 Ibid., p. 20 in table B: Why States join Interstate compacts. 436 Ibid., p. 22.

206 and the Provinces of Canada. Another example is the Arizona- Sonora Commission437.

4.2 Argentina a) Interprovincial Compacts, Federal Councils, and regions Art. 107 of the Constitution of 1853-1860 (current Art. 125), regarding intergovernmental relations in Argentina, provides that: “The Provinces may enter into partial treaties for purposes of the administration of justice, of economic interests, and works of common benefit, with the knowledge of the Federal Congress ...”438 As from the 1950s, this has been used to enable the transition from a dual federalism to a cooperative or consensus federalism. Progress has also been made towards greater inter-jurisdic- tional relations through Federal Councils, with the joint participation of representatives of federal and provincial governments439. This, naturally, involved flexibilizing the use of powers and institutional practices to be able to advance in the solution of important problems. This is work in process, which must be continuously reaffirmed. The Constitutional Reform of 1994 enacted a coordinated and consensus federalism in various Articles, especially Art. 124: “The provinces may create regions for economic and social development and establish entities with powers to fulfil their purposes ...”. This means: first, the purpose of the region must be the promotion of economic and social development; second, the region cannot consist of a new level of political government,

437 See Antonio María Hernández, Integración y Globalización. Rol de las regiones, provincias y municipios, Depalma, Buenos Aires, 2000 and Federalismo y constitucionalismo provincial, op. cit. 438 Interprovincial pacts were very important in the period previous to the enactment of the Constitution in 1853, as we saw earlier. 439 Such as the Federal Investments Council, the Federal Taxes Council and the Federal Councils on Education, Health, the Environment, Public Works, Internal Security, etc.

207 since, as we have seen, in the Argentine federal structure there are only four government levels; third, the region can be created only by the will of the provinces; and fourth, the region is an instrument to strengthen Argentine federalism, and consequently, cannot be used to centralize the country or to harm provincial and municipal autonomy.440 Regions were created by interprovincial compacts. Salta, Ju- juy, Tucumán, Catamarca, Chaco, Formosa, Santiago del Estero, Misiones and Corrientes created the Norte Grande Region (1987); Mendoza, San Juan, San Luis and La Rioja created the Nuevo Cuyo Region (1988); La Pampa, Neuquén, Rio Negro, Chubut, Santa Cruz and Tierra del Fuego created the Patagonia Region (1996); and Córdoba, Santa Fe and Entre Rios created the Central Region441 (1998 and 1999). Most of provinces are part of regions, although to complete the national map the province of Buenos Aires and the Autonomous City of Buenos Aires442 should resolve to create a region. This is an outstanding characteristic of Argen- tine federalism, in the concert of Comparative Federal Law, as we noted before, since the Reform of 1994.

440 See Antonio María Hernández, “Integración y Globalización. Rol de las regiones, Provincias y Municipios”, Op. cit. y “Federalismo y Constitucionalismo Provincial”, Op. cit. 441 We had the honor of drafting the Interprovincial Treaty of the Central Re- gion, signed on August 15, 1998 by the governors Ramón Mestre of Córdoba and Jorge Obeid of Santa Fe, to which the Province of Entre Ríos was added on April 6, 1999, with the signature of its governor Jorge Busti. For a more in- depth study, see our Integración y globalización. Rol de las regiones, provincias y municipios and Federalismo y Constitucionalismo provincial. 442 In 2017, through the Instituto de Federalismo, we co-ordinated a “Cycle on Federalism and Regions in the National Constitution”, in the national Senate, analyzing each of the Regions mentioned and the Metropolitan Area of Buenos Aires, with the participation of senators from each Region, besides the Block Presidents, Rozas and Pichetto, and the provisional Senate President, Pinedo. See the recording of each of the Days dated June 13, July 4 and August 22, 2017, in the Blue Room of the national Senate, on Youtube.

208 b) The provinces and international relations Article 124 of the Federal Constitution, after referring to the provincial powers to create regions, continues: “... and they shall also be able to enter into international agreements as long as they are not incompatible with national foreign policy, and they do not affect the powers delegated to the federal government, or Argentine public credit, with the knowledge of the Congress. The City of Buenos Aires shall have the regime set forth for such purpose”. The vital need for supra-national integration, as a response to the challenges of globalization, interdependence, and acute world economic competition, led to the development of these pacts by sub-national entities, as has been seen for some time in the European Union, NAFTA and also in the Mercosur. Under the Mercosur, as a consequence of regional integration protocols, the Crecenea and Codesul regions were created, i.e., joining the north-eastern frontier Argentine provinces and the southern states of Brazil with the purpose of promoting foreign trade and integration. Other regional experiences of integration include the NOA (Argentine North West) with the Chilean Norte Grande, and international infrastructure, like the Zapala-Lonquimay Railway between the province of Neu- quén and the neighboring Chilean region, etc. Before the 1994 Constitutional reform, some provinces had already developed foreign trade, promoting their products and tourism. The Constitutional Convention distinguished international agreements of provinces from international treaties, given their more limited scope.443

443 See Néstor Pedro Sagués, Los tratados internacionales en la reforma constitucional de 1994, La Ley, 11 March 1994, where he states that provincial-international agreements cannot exceed the limits of provincial competences, which also include the exercise of powers concurrent with the federal government. In addition, federal law and the limits expressly mentioned in Art. 124 of the Con- stitution must be repected.

209 In relation to the possibility of international integration, the constitutional Reform of 1994 in Art. 75 Sec. 24 provided, as a faculty of the national Congress: “To approve treaties of integration which delegate powers and jurisdiction to supranational organizations under reciprocal and equal conditions, and which respect the democratic order and human rights. The rules derived therefrom have a higher hierarchy than laws. The approval of these treaties with Latin American States shall require the absolute majority of all the members of each House. In the case of treaties with other States, the national Congress, with the absolute majority of the members present of each House, shall declare the ad- visability of approval of the treaty, which shall be approved only by the vote of the absolute majority of all the members of each House, one hundred and twenty days after said declaration of ad- visability. The denouncement of treaties referred to in this Section shall require the prior approval of the absolute majority of all the members of each House”. Argentina is part of a regional system, the Organization of American States, with a system of protection of human rights, based on the American Declaration of the Rights and Duties of Man and on the American Convention on Human Rights (Pact of San José de Costa Rica, 1969). The American Convention, in Art. 28 dealing with the Federal Clause444, declares: “1. Where a State Party is constituted as a federal state, the national government of such State Party shall implement all the provisions of the Convention over whose subject matter it exercises legislative and judicial jurisdiction. “2. With respect to the provisions over whose subject matter the constituent units of the federal state have jurisdiction, the national government shall immediately take suitable measures, in

444 See Antonio María Hernández, La cláusula federal del Pacto de San José de Costa Rica y nuestro orden constitucional, in Constitución de la Nación Argen- tina, Vol 5, Director Daniel Sabsay, Coordinator Pablo Manili, Buenos Aires, 2016.

210 accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfillment of this Convention. “3. Whenever two or more States Parties agree to form a federation or other type of association, they shall take care that the resulting federal or other compact contains the provisions necessary for continuing and rendering effective the standards of this Convention in the new state that is organized.” Thus, the joint obligations of the different government orders of the Federation to fulfil international human rights treaties in good faith should be noted. In consequence, under Sec. 2 of the Clause, the federal government must invite the governments of the Argentine provinces and of the Autonomous City to take the relevant measures to comply with the Pact, within the strict order of their respective powers. This must reflect the mature and modern interjurisdictional relations in a federation that acts with respect for each other’s powers and the principle of federal loyalty. The Argentine provinces must therefore adapt their legislation and judicial case-law to the American Convention, just as the federal government must scrupulously respect the federal principles of the Constitution in this supra-national integration process, taking care not to affect provincial and municipal powers and autonomy. There must also be participation of the provinces and municipalities both in the ascendant and in the descendant phase of international integration treaties.445

4.3. Similarities and differences

There are similarities because both are federal Nations, in which these intergovernmental relations cannot fail to exist. “The inevita- bility within federations of overlaps and interdependence” wrote

445 See Antonio María Hernández, Federalismo y constitucionalismo provincial, op. cit.

211 Ronald Watts446 “in the exercise by governments of their powers has generally required the different orders of government to treat each other as partners. This has required extensive consultation, cooperation, and coordination between governments”. These relationships occur between subnational states and the federal government, between the subnational governments themselves, and between these and the municipal governments. Participation in national or international integration processes and in international relations is also possible. In addition, Argentina and United States are both cooperative federalisms, which encourages these kinds of intergovernmental relations, as we saw, and despite the constitutional differences we noted. The 1994 Argentine constitutional Reform incorporated cooperative federalism through the agreement-laws in tax-sharing, the federal fiscal council, provincial participation in the national regulatory bodies and public services monitoring agencies, the creation of Regions, and the signing of international compacts and even supranational integration. Our comparative analysis showed that the degree of participation of the states in the relation with the federal government and in the federalism process is much greater, stronger, and more balanced in the United States, as we saw in the previous section on political parties. This is mainly due to the greater autonomy of the states of the USA, which also allows for an intense and effectivecontestation against the federal government, in defense of state interests. Gardner447 describes several cases in the history of the Uni- ted States, such as the Nullification Crisis in 1832, with the reaction of South Carolina attempting secession over a problem of

446 Ronald L. Watts, Comparing Federal Systems, 3rd. Edition, Institute of Intergovernmental Relations, McGill-Queen’s University. Montreal & Kings- ton-London-Ithaca, 2008. 447 James A. Gardner, Interpreting State Constitutions”, op. cit., pp. 89-90, who also recalls Madison, Federalist Nº 46, with his defense of the actions by which States could oppose harmful national policies. Ibid., p. 91.

212 federal government tariffs that benefited the industrial north of the country; the reaction of Governor Orval Faubus of Arkansas in 1957, who wanted to prevent the application of a federal court order to prevent racial discrimination in Little Rock, which led to President Eisenhower sending the 101st Airborne Division of the US Armed Forces; the Sagebrush Rebellion in 1979 in Nevada, for a conflict with federal authorities over public lands; the reaction of Governor Cecil Andrus of Idaho in 1988, who wanted to prevent the entry of radioactive waste to the state from Colorado; and finally, a similar reaction from the State of South Carolina in 2002, which blocked the access of trucks containing radioactive material destined for a federal storage site in the State. However, the American bipartisan political party system has made negotiation possible between governments, allowing them to reach a solid consensus on such crucial issues. The role of institutions like the big seven is very important, exerting a very effectivein - tergovernmental lobby in Washington, as Nugent explains in detail. In Argentina, although there has been progress for decades in the signing of interprovincial treaties, the creation of federal councils on various subjects and in the constitutional rank of cooperative federalism, more intense exercise of these interjurisdictional relations is necessary between the various governmental orders. This means advancing in a process to strengthen provincial and municipal autonomy and balance the relationship with the federal government, and especially with the power of the Pre- sidency, as we have seen before. That is why we propose the creation of a National Associa- tion or Conference of Governors, as exists in the US and Mexican federations for the purpose of encouraging dialogue between the president and the governors, to set an agenda to comply with the federal project of the National Constitution.448

448 We have already mentioned that since the 2015 presidential election a dialogue has begun between the president and the governors, which has already enabled important agreements on federal issues.

213 Since the Constitutional Reform of 1994, the provinces have celebrated more international compacts than the states of the USA449.

5. Fiscal federalism

5.1 United States

The Constitution of the USA established in Art. I Sec. 8 Clause 1 the power of the Congress to lay and collect uniform taxes, duties, imposts and excises… throughout the United States. Art. I Sec. 9 mentions other taxes and, in particular, the attribution of collecting income taxes, based on the apportionment of the population in the States, but the 13th Amendment eliminated that requirement in 1916, leading to an increase in revenues of the Federal government. Richard Briffault450 notes the scarce federal constitutional legislation in this area, limited to these provisions, which essentially establish the competence of Congress in this decisive matter, and in particular, the origin of legislative treatment by the House of Representatives, as we have seen. The Federal Government collects taxes through individual income taxes, which are the most important in total revenues (less than 50%), payroll taxes which combine Social Security taxes and Medicare taxes (more than 30%), and corporate taxes (10%), in addition to other revenues451. As for the taxing power of the states, the presentation made by Hamilton in Federalist 32 was very clear452, where he wrote:

449 See Antonio María Hernández, Federalismo y Constitutionalismo Provincial, op. cit.. In the CARI (Consejo Argentino para las Relaciones Internacionales – Argentine Council for International Relations), there is a list of the international compacts signed by the provinces and the Autonomous City of Buenos Aires. 450 Richard Briffault, State and Local taxes in State Constitutions for the twenty-first century, edited by G. Alan Tarr & Robert F. Williams, State University of New York Press, Albany, 2006, Ch. 8, p. 211. 451 According to official federal government information for 2016 in the Web. 452 A. Hamilton, J. Madison & J. Jay, The Federalist, op. cit.

214 “...I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this conces- sion, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.” Hamil- ton then explained that this was a consequence of the plan of the Convention to achieve a union, maintaining the validity of both sovereignties by the respective States. And later he mentioned concurrent powers in tax matters between both state orders.453 Discussing this issue in State Constitutions, Richard Briffault454 explains that almost all the constitutions when considering state and local government finances, establish norms on taxation, loans, and public spending. In general, the articles prescribe substantive or procedural restrictions in this matter, aimed at limiting the public contribution to private sectors and avoiding heavy burdens on taxpayers. He even mentions as a new trend in some states the need for a referendum to approve the creation or increase of taxes.455 The states perceive taxes (approximately 50% of their revenues) from a share of sales taxes (less than 50%), property taxes

453 Hamilton, Federalist Nº 32, Ibid. 454 Richard Briffault, State and Local taxes in State Constitutions for the twenty-first century, edited by G. Alan Tarr & Robert F. Williams, State University of New York Press, Albany, 2006, in the Introduction to Ch. 8, p. 211, in which he then analyzes this issue in detail (pp. 211-240). Also see Ch. VI State and Local finance in Cases and materials on State and Local Government Law, Rich- ard Briffault, Laurie Reynolds, 7th. Edition, 2009, American Casebook Series, West, pp. 624-877. 455 Ibid, pp. 234-5.

215 (approx. 2%) and individual income taxes (approx. 35%). In addition, states receive grants from the federal government for about 30% of their revenues. Local governments also perceive taxes for approximately 40% of their revenues, from a share of sales taxes (approx. 17%), property taxes (approx. 74%) and individual income taxes (approx. 5%). They add charges for services for approx. 15%, and more than 35% of local income is federal and state government grants. In most states, municipal authorization to perceive taxes depends on the respective state legislature. The first grants of the federal government to the states were made through land grants, and after 1900, in cash. Grants consist in financial support to promote national objectives. There are “categorical” grants, with very strict conditions which limit state discretion, like Medicaid and the food stamp program, and “block” grants, with less stringent federal conditions456. Unfunded mandates are federal laws and regulations that impose obligations on state and local governments without fully compensating them for the administrative costs. The excessive use of this instrument in the 1970s and 1980s provoked the reaction of state and local governments and was the origin of the Unfunded Mandates Reform Act in 1995, and later, the “anticommandeering” jurisprudence of the Supreme Court of Justice, as we saw earlier.457

456 In the New Federalism proposal presented by President Ronald Reagan in his address on the State of the Union on January 25, 1983, there were two parts: first, to hand over to the states the execution of programs that were in the hands of the federal government, and second, to modify the categorical subsidies for Block subsidies, that granted greater freedom to the states in disposing of these. Cf. Bernard Schwartz, El federalismo norteamericano actual, Cuadernos Civi- tas, Editorial Civitas, Madrid, España, 1984, in the section El nuevo federalismo, pp. 99-102 457 The Supreme Court “anticommandeering jurisprudence” was a clear defence of the sovereignties and autonomy of the states against the advance of the federal government, as we saw when analyzing the Court’s role. John Kincaid called this

216 Watts458 said that the percentage of federal government revenues before intergovernmental transfers between 2000 and 2004 was 54.2%, and that federal government spending after intergovernmental transfers in that period was 45.9%459. In the same period, intergovernmental transfers as a percentage of state revenues were 25.6%.460 Regarding the equalization system, he wrote 461 that in the USA there is no “coherent generalized equalization scheme; some equalization occurs from the cumulative effect of provisions in specific grant-in-aid schemes as approved by Congress”. And in relation to the arena for resolving issues of federal finance, Watts462 said there are “negotiations among representatives of different states in Congress over allocations of grant-in-aid programs; representatives of state administrations act as lobbyists”463.

5.2. Argentina

On the subject of financial relationships between the federal government and the provinces, the original Federal Constitution of 1853 and the Constitutional Reform of 1860 established a separation of tax sources and treasuries between the federal government and the provincial governments. The 1994 Constitutional Reform incorporated a tax-sharing system between both governmental orders464. phenomenon “coercive” federalism, see From cooperative to coercive federalism, Annals of the American Academy of Politics, 509 (1990), pp. 139-152. 458 Ronald L. Watts, “Comparing Federal Systems”, op. cit., table 9, p 102. 459 Ibid., table 10, p. 103. 460 Ibid., table 11, p. 105. 461 Ibid., table 14 on equalization arrangements, p. 110. 462 Ibid., table 15, p. 113. 463 In this opinion he agrees with Nugent as we saw in the section on intergovernmental relations. 464 For a full analysis, see Antonio María Hernández, Federalismo y constitucionalismo provincial, op. cit., Ch. III; Los recursos económicos de la Nación y de las Provincias, XXII Congreso de la Asociación Argentina de Derecho

217 Distribution of powers in tax matters in the Constitution. The historical Constitution set forth the following classification: For the federal government: Indirect external taxes (customs): exclusively and permanently (Arts. 4, 9, 67 Sec. 1, and 108); Indirect internal taxes: permanently and concurrently with the Provinces (Art. 4); Direct taxes: exceptionally (Art. 67, para. 2). For the provinces: Indirect internal taxes: permanently and concurrently with the federal government (Art. 4); Direct taxes: permanently, unless the federal government uses the power of Art. 67, para. 2 (Arts. 104 and 108). The division between direct and indirect taxes is based on the possibility of there being a pass through of these. The former, for example, are those applicable to property or income, and the latter, value added tax or sales tax. The Constitution indicates that the federal government may charge direct taxes for a particular period for reasons of “... defense, common safety and the general welfare of the Nation…”. It should be noted that the federal government began to receive a direct tax as income tax as from 1934, based on this clause, but rather than transitory, it became permanent. This was the origin of the tax-sharing system, more than 80 years ago. The 1994 Constitutional Reform did not amend this distribution of powers. Consequently, the classification must be updated with new numbers of the Articles, because Art. 67 is now Art. 75, Art. 104 is Art. 121, and Art. 108 is 126.

Constitucional, August 27-28-29, 2015, Facultad de Derecho, Universidad de Buenos Aires, www.aadconst.org.ar, and Subnational Constitutional Law in Argentina, Wolters Kluwer Law & Business, Kluwer Law International, 2011 and Aspectos fiscales y economícos del federalismo argentino, Instituto de Feder- alismo, Academia Nacional de Derecho y Ciencias Sociales de Córdoba, Cór- doba, 2008.

218 We have already mentioned the tax-sharing system established in the Constitutional Reform of 1994, in Part I, on fiscal aspects on federalism. However, this system has not yet been enacted, which is linked to the centralization process that we have endured and to our characteristic anomie. This tendency to centralization was also seen in Part I as closely linked to fiscal issues. This unitarizing, in violation of the Constitution, led to the financial, economic, and political dependence of the provinces. In 2011, we discussed fiscal unitarianism, analyzing the use of federal public spending465 as follows: “You cannot otherwise qualify the reality that indicates that the federal government manages more than 80% of the resources, with only what remains corresponding to all the provinces, the Autonomous City and local governments. To this we can add the following federal public spending purposes data, which corroborate that hegemonic power in violation of Sec. 8 of Art. 75, which establishes that the general Budget of national spending must be fixed annually “in accordance with the guidelines laid down in the third paragraph of Sec. 2 of this Article”, which are objectivity, equity and solidarity related with the tax-sharing law. Juan José Llach presented this data in his study, A decade without federalism and its consequences466, which we summarize as follows: “In his section entitled taking everything, he noted that, while in 1998 the taxes not co-shared by the federal government to provinces and municipalities were 5.4% of the total, in 2011 that percentage reached 23.6%, and this means that sub-national governments could have received US$12,065 million more during 2011, if the 1998 percentage had been maintained. He also writes that, between 2004 and 2011, the

465 Cfr. Antonio María Hernández, “Informe del Federalismo Argentino 2011”, in Cuaderno de Federalismo Nº XXV, edited by the Institute of Federal- ism of the National Academy of Law and Social Sciences of Córdoba, Córdoba, 2012, pp..16-17. 466 Juan José Llach speech, in the Aapresid Forum, in Rosario, Province of San- ta Fe, August 10th, 2012.

219 provinces and municipalities ceased to perceive 67 billion dollars for this reason. In the section The Great Collector, he notes that, while in 1998 the federal government collected 80.1% of total national public resources, the provinces 18.1% and municipalities 1.8%, in 2011 the nation raised 84.4%, the provinces 14.2% and municipalities only 1.4%, in a process that clearly indicates the fiscal unitarianism that we are enduring. In the section I spent, let someone else collect (say the provinces and municipalities), Llach says that, although sub-national governments collected only 15.6% in 2011, they spent 44.4% of total public expenditure, which shows very little fiscal correspondence in the context of comparative fiscal federalism. Llach notes in The Great Spender that the central government increased its share in public spending from 52.9% in 2003 to 55.6% in 2011, while the provinces decreased from 39.3% to 37.2% in those years and municipalities from 7.8% to 7.2%. He also mentions that improper appropriations carried out by the Na- tion between 2003 and 2011 produced these consequences in the provinces and municipalities: a) less tax-sharing, as we saw earlier; (b) lower spending capacity, since in the year 2011 alone these subnational governments stopped spending US$5707 million; and (c) lower decision-making capacity, by increasing discretionary transfers, which were 8,487 billion dollars in 2011 and reached 43,342 million dollars between 2004 and 2011”. This serious situation has just begun to change as from the ruling we mentioned of the Supreme Court in 2015 on the return of contributions that went to the total tax-share, based on the suit of the provinces of San Luis, Santa Fe and Córdoba, and from the change of government that year at the federal level, which enabled a new exercise of cooperative federalism, with meetings and agreements between the president and the governors.

5.3 Similarities and differences

The similarities in fiscal federalism are related to the constitutional model of separation of sources of financing and treasuries among the

220 various governmental orders. But it is clear that the differences are very profound, due to the centralization process that Argentina has had, of which this was one of the decisive factors, leading to the strong dependency of provinces and municipalities. In addition, fiscal unitarianism was one of the instruments historically consolidating the pathology of hyper-presidentialism. Using Kincaid’s term, this was unquestionably coercive federalism, in which the federal government imposed its terms through so-called pacts and agreements, which began especially in the period of President Menem, with very serious damage to the taxing powers of subnational governments. There is a surprising contrast between the tax systems in the simplicity and small number of taxes in the United States, against the complexity and excessive number of these in Argentina. There are also differences in the respective federal finances, since the Uni- ted States does not have a tax-sharing system, as we have, although this does not prevent intergovernmental relations, seen in the importance of transfers made by the federal government, especially through grants, for the finances of states and local governments. The strength of the institutions and the practical sense of cooperation of the North Americans clearly results in agreements between the different national levels, with no great conflicts. In contrast, what is notable in Argentina is the arbitrariness in this matter, which produces strong interjurisdictional conflicts and which leads to the constitutional failure to sanction the law of tax-sharing, as well as the delay in reforming the tax system to make it fairer and more simple. The current fiscal and tax-sharing system was qualified by Richard Bird as a “labyrinth” and requires urgent changes to strengthen Argentine federalism, as we said in Proposal Nº 6467: “Enactment of the tax-sharing agreement cannot be delayed, to end the violation of the Constitution, which set a deadline now long

467 See Antonio María Hernández, “20 propuestas para fortalecer el federalismo argentino”, in the book “Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino”, Jusbaires, Buenos Aires, 2017, Propuesta 6, pp. 96-99.

221 overdue, and because this is imperative to change the depressing reality of our federalism.

6. Asymmetries in both federalisms

6.1 United States

According to Watts’s classification468 of asymmetries as constitutional and political, both can be seen in the USA. Alan Tarr469 explains the constitutional position of the fifty states and the institutional and political status of the District of Columbia, Tribes and other territories: “The United States is usually seen as a symmetrical federal system. The original thirteen states each exercised the same powers and enjoy the same representation in the Senate, and the U.S. Constitution guarantees that all states subsequently admitted to the Union join on an equal footing, with the same powers, representation, and prerogatives as the original thirteen ... “This understanding of the American federal system as symmetrical suffices, however, only if one restricts one’s attention to the fifty states. But both historically and currently the country has included component units whose powers and functions differ from those of the states. These units include: (1) the nation’s capital city, the District of Columbia; (2) Native American tribes, almost 600 of which have been recognized by the federal government; (3) territories that were expected at some point to be candidates for statehood; and (4) territories that are expected to remain permanently in a lesser association with the American polity.” He470 examines in detail the institutional and political status of the District of Columbia, Puerto Rico, and other territories

468 Ronald L. Watts, “Comparing federal systems”, Op. cit., Ch. 8, p.125. 469 G. Alan Tarr,”Symmetries and asymmetries in American federalism”, An- nual Meeting of the International Association of Centers for Federal Studies, St. Petersbourg, Russia, june 5-7th, 2006 470 Ibid.,

222 under U.S. control, like American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands, which reveals that many of the issues that have arisen in relation to Puerto Rico also exist in these other territories. Regarding the other kind of asymmetries, the population data from the 2010 census471 show that, while California had 37,254,000 inhabitants, Texas 25,146,000, and New York, 19,378,000, Wyoming had only 564,000, the District of Co- lumbia, 602,000 and Vermont, 626,000 inhabitants. In terms of per capita real gross domestic product (GDP) in 2016, the figures show $160,472 for the District of Columbia; $65,545 for Massachusetts; $64,579 for New York; $64,511 for Connecticut and $63,971 for Alaska, but only $31,881 for Mississippi and $35,466 por Idaho.

6.2 Argentina

In Argentina, under the original 1853 Constitution, there was symmetry from the equal status of the provinces, as in the USA, although national territories were also created through special legislation of the Congress. There were 14 historical provinces that constituted the federal state in 1853 and 1860 and subsequently, the national territories became provinces, the last one being Tierra del Fuego in 1990. The current federation consists of the federal government, 23 Provinces and the Autonomous City of Buenos Aires. There are also some 2,150 local governments. Since the 1994 Constitutional Reform, there is constitutional asymmetry, due to the creation of the Autonomous City of Buenos Ai- res472, which is one of the constituent units of the federation, but with special status, very similar to but different from that of Provinces.

471 See USA, Census Bureau, Statistical abstract of the United States 2012, Ta- ble 19, p. 24. 472 See Antonio María Hernández, “La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino”, op. cit. and “Federalismo y Con- stitutionalismo Provincial”, op. cit..

223 Argentina also has a great variety of other asymmetries. First, the enormous concentration of population in the metropolitan area of Buenos Aires is one of the main causes of the country’s centralization. More than 37% of country’s population is in this area, an example of negative territorial organization. In provincial terms473, in 2010, the province of Buenos Aires had 15,594,428 inhabitants; Córdoba, 3,304,825; Santa Fe, 3,300,736; and the Autonomous City of Buenos Aires, 2,891,082. In contrast, the province of Tierra del Fuego had only 126,190 and Santa Cruz, 272,524 inhabitants. The per capita income by province shows approximately US$30,000 for the Province of Neuquén, which has oil and gas, followed by Santa Cruz and Tierra del Fuego in the south with the same characteristics, and then the Autonomous City of Buenos Aires with about US$24,000. A long way behind are the poorest, Formosa and Santiago del Estero, with less than US$3,000474. Miguel Angel Asensio shows the economic asymmetries of the regions of the country in the following table:475

T. 1. Economic role of the Regions (GDP)

Region 1953 1970 1980 1993 2001 2005 Pampa 81.0 81.6 78.3 77.2 76.7 74,6 Patagonia 2.9 3.5 5.3 6.0 6.8 8.4 NOA 6.1 5,6 6.6 6.3 6.2 6.9 Cuyo 5.5 5.6 5.8 6.0 5.8 6.2 NEA 4.5 3.7 4.1 4.7 4.4 4.1

473 According 2010 National Census. 474 See Dante Sica, Abeceb.com. 475 See Miguel Angel Asensio, Equality, development equivalence and federal finance in Argentina, Annual Meeting of the International Association of Cen- ters for Federal Studies, Fribourg, Switzerland, October 2017.

224 Asensio476 comments: “The results in Table 1, above, show the enormous territorial imbalance, with the Pampa region absor- bing three-quarters of the total GDP.”

6.3 Similarities and differences

As in the other topics, here too we see that both federalisms are asymmetric in institutional, political, and economic aspects, but there is a great difference in the degree of these. Firstly, in territorial ordering they are very different because, in the case of Argentina, the concentration in the metropolitan area of Buenos Aires has grave consequences, unlike the United States. Therefore, our Proposal No. 5 to strengthen federalism says477: To promote a new territorial ordering of the country that modifies the enormous concentration of political, economic, demographic, and cultural power in the metropolitan area of Bue- nos Aires. Our Proposal No. 20478 stresses the idea of moving the federal capital to the interior of the country to seek greater balance in the federation, as was done in the United States, Canada, Australia, and Brazil. The differences in the asymmetries are also enormous by economic regions and per capita income, especially that showing a practically 1 to 10 difference between the richest and poorest provinces, with extreme inequality. It is essential for Argentina to enact the agreement-law of tax-sharing, with a special regime promoting equality among the inhabitants, as the National Constitution prescribes in Art. 75 Sec. 2.

476 Asensio, ibid.. 477 See Antonio María Hernández, “La Ciiudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino”, op. cit... 478 See Hernández, ibid..

225 Part Three: State Constitutional Law and local governments

Despite the crucial importance of these issues, essential for federalism, we can only briefly refer to some aspects of these.

1. State constitutional law

1.1. United States a) Brief history As we saw in Part One, even before the Declaration of Indepen- dence in 1776, there were already four constitutions in the former colonies, and after the Declaration, others were dictated until the enactment of the Constitution of Philadelphia in 1787. These constitutions were an important antecedent to the Federal Cons- titution, and that reflects the importance of State Constitutional Law in the USA. “The very concept of a modern, written, republican constitution,” writes James Gardner479 “aimed at establishing the powers of government and enumerating protected liberties was invented not by the framers of the United States Constitu- tion at the Philadelphia convention, but eleven years earlier, by the drafters of the original constitutions of the former American colonies. The oldest continuously operating written constitution in the world today is not the United States Constitution, but the present Massachusetts Constitution, adopted in 1780, followed closely by the New Hampshire Constitution, in force since 1784. The United States Constitution gets much credit for protecting American liberties, and rightly so, yet unlike many of the state constitutions in effect between 1776 and 1787, the original federal Constitution did not even contain a Bill of Rights. When a Bill of rights was added in 1791, its principles were not invented by its

479 James A. Gardner, “Interpreting State Constitutions”, The University Chi- cago Press, Chicago and London, 2005, ch. 1, p. 23.

226 drafters but were for the most part appropriated from existing state constitutions, particularly the Virginia Declaration of Rights”. Regarding the historical development of state constitutions, Alan Tarr480 says: “This chapter’s survey of eighteenth-century state constitutions has documented changes in constitutional thought and constitutional design, best understood as revealing an evolution in political thought rather than as reflecting a disjunction between Whig theory at the state level and Federalist theory at the national. The growing appreciation of the separation of powers, of checks and balances, and of the need for a more vigorous executive found in various state constitutions of the late 1770s and early 1780s represented a shift in republican constitutional theory. Many of the changes introduced in state constitutions anticipated features of the federal Constitution. Nevertheless, it would be a mistake to view early state constitutions as nothing more than precursors of the federal Constitution. Even after its adoption, the states for the most part went their own way, looking to sister states and to their own political traditions in designing or revising their constitutions rather than emulating the federal charter.” In relation to Nineteenth-Century State Constitutionalism, Tarr writes: “In no period is the divergence between the state and federal constitutional experiences clearer than in the nineteenth century. The federal Constitution was amended only four times during the entire century – once to correct a defect revealed by the presidential election of 1800 and three times in the aftermath of the Civil War. In contrast, campaigns for political change that the federal Constitution accommodated without amendment – such as Jacksonian democracy, the Granger movement and Popu- lism – produced fundamental shifts in state constitutions. The antebellum period has been described, quite accurately, as “an era

480 G. Alan Tarr, “Understanding State Constitutions”, Princeton University Press, Princeton, New Jersey, 1998, Ch. 3, “Eighteenth-Century State Constitu- tionalism”, p. 92. For a profound historic analysis of state constitutional law in the 18th, 19th and 20th centuries, see ibid, chapters 3, 4 and 5.

227 of permanent constitutional revision” in the states. From 1800 to 1860, thirty-seven new state constitutions were adopted ... Du- ring the last half of the nineteenth century, when a concern for continuity dominated national constitutional theory, state constitution-making was epidemic, particularly in the South. From 1861 to 1900, twenty states revised their constitutions, some several times, adopting forty-five new constitutions in all ... altogether, ninety-four state constitutions were adopted during the nineteenth century.” Concerning the twentieth century, the author affirms:481 “If the nineteenth century was the acme of wholesale state constitution-making, the twentieth century is its nadir. Only twelve states revised their constitutions from 1901 to 1997, although five others did adopt their first – and only – constitutions during the period. The United States Supreme Court’s decisions requiring the apportionment of both houses of state legislatures on a “one person, one vote” basis sparked a burst of activity – from 1965 to 1974 seven states adopted new constitutions – but long stretches of inactivity were far more common. … From 1965 to 1974, voters rejected six constitutions proposed by conventions and three others submitted by state legislatures. ... Whereas in the nineteenth century states held 144 constitutional conventions, during the 20th century they have held only sixty-four”. b) Distinctiveness, functions, and structure of state constitutions In another work, Tarr482 points out the differences between the federal and state constitutions in relation to reform of the constitutions: “... from the outset most states made the amendment of their constitution, the replacement of their constitutions, or both relatively easy, and over time the general trend has been to facilitate state constitutional amendment and replacement. Many

481 Ibid., ch. 5, “Twentieth-Century State Constitutionalism”, p. 136. 482 “Introduction” in “State Constitutions for the Twenty-first Century”, Vol- ume 1, edited by G. Alan Tarr and Robert F. Williams, State University of New York Press, Albany, 2006, Pp. 1-2.

228 states expressly authorize the revision of their constitutions, and altogether the states have adopted 145 constitutions, an average of almost three per state. … The states have also developed an array of methods for proposing constitutional amendments – constitutional convention, proposal by the legislature, proposal by constitutional commission and proposal by initiative – and many state constitutions authorize multiple methods for proposing amendments. ... Current state constitutions contain more than 5.000 amendments, and most have been amended more than 100 times, Alabama’s 1901 Constitution more than 740 times”. In relation to the functions of state constitutions, Gardner says483: “If federalism requires state governments to exercise certain kinds of power in certain ways, it follows that one of the most important purposes of a state constitution is to implement the federal plan by empowering the state government to act in just the ways that federalism demands. ... This means at least three things. First, it should grant the state Government sufficient authority to permit it to work directly for the public good of its citizens. Se- cond, it should establish sufficient limits on state power to restra- in, at least to some extent, the ability of state officials to use state power for unjust ends. Third, a state constitution should grant the state government sufficient power to assert itself with at least some degree of efficacy against abuses of national power by the national government.”484 On the structure and substance of state constitutions, Tarr sustains485: “Since at least the late nineteenth century, most state constitutions have shared a more or less uniform structure and have dealt with a common set of issues (while differing in the detail of their treatment of those issues and the range of other issues addressed). In specific structural features, these state constitutions resemble their federal counterpart. All fifty state constitutions

483 Gardner, “Interpreting State Constitutions”, Op. cit., p. 123. 484 For an analysis of these functions, see Gardner, ibid, PP. 123-142 and Chap- ter 5, “Patterns of distrust”, pp. 143-179. 485 G. Alan Tarr, op. cit., p. 11.

229 have eschewed a parliamentary system, established a tripartite division of governmental power, provided for regular elections, and guaranteed a range of fundamental rights, while all but Nebraska’s have created a bicameral legislature. However, closer inspection of the structure and substance of state constitutions highlights many features that distinguish them from the federal Constitution.”486 c) Rights In the fundamental field of rights, Robert F. Williams wri- tes487: “State constitutions are, by definition, changeable. The possibility of changes in rights guarantees, though, can be both attractive and forbidding. For example, many people would approve (depending on the topic) of the addition of new more modern state constitutional rights. On the other hand, one substantial factor in the recent resistance to the calling of state constitutional conventions is the fear of losing existing rights or the specter of acrimonious debates over controversial areas such as abortion, women’s rights, public employees’ right to strike, and so on. State constitutional rights are neither liberal nor conservative, at least in a conventional political sense. They range from free speech and the rights of those accused of crime to property rights, victim’s rights, and the right to bear arms”. Regarding the Guiding Principles, the author affirms:488 “1. State constitutional rights should reflect the fundamental values and aspirations of the state. 2. State constitutional rights may differ from those found in the Federal Bill of Rights. 3.

486 See Tarr, ibid, pp. 11-28 and also, “State Constitutions for the twenty-first century”, op. cit., Volume 3, chapters One, “Rights” by Robert F. Williams; Two, “The Legislative Branch”, Michael E. Libonati; Three, “The Executive Branch”, Thad Beyle; Four, “The Judicial Branch”, G. Alan Tarr; Five, “Lo- cal Government”, Michael E. Libonati; Six, “Voting and Elections”, James A. Gardner; Seven, “Constitutional amendment and revision”, Gerald Benja- min; Eight, “State and Local Finance”, Richard Briffault; Nine, “Education”, Paul L. Tractenberg; and Ten, “The Environment and Natural Resources”, Barton H. Thompson Jr. 487 Ch. One, “Rights”, in op. cit., Volume 3, p. 7. 488 Ibid., p. 9-11.

230 State constitutional rights may include positive as well as negative rights. 4. State Constitutional rights may be located throughout the Constitution, not just in the Declaration of Rights. 5. State constitutional rights may include restrictions on private action as well as on government action. 6. Although state courts will play a leading role in enforcing state constitutional rights, these rights impose obligations on all state and local officials. 7. State electorates retain the authority to change, add to or delete state constitutional rights by state constitutional amendments”.489 d) New judicial federalism “State constitutional rights guarantees, and their enforcement by state courts,” says Williams490, “provided the primary fuel for the renewed interest in state constitutions during the last quar- ter of the twentieth century. This increased interest in state constitutional rights, particularly from the standpoint of state judicial enforcement, has been referred to as the New Judicial Federalism. This phenomenon, always possible but surfacing dramatically in judicial, political and legal circles after about 1970, involves states courts interpreting state constitutional rights guarantees to provide more protection than the federal Constitution”. The origin of this movement was a speech by Justice William J. Brennan Jr before the New Jersey Bar Association in 1976, published the following year in the Harvard Law review491. “Brennan’s topic,” writes Gardner492 “was the protection for individual rights contained in American state constitutions. The U.S. Bill of Rights, Brennan argued, is a powerful protector of individual liberty, but it is not the only source of protection. State constitutions,

489 Then, Williams analyzes the evolution of state constitutional rights guarantees, the relationship of state and federal constitutional rights and the current picture of state constitutional rights. Ibid., pp. 13-27. 490 Ibid., p. 8. 491 State Constitutions and the Protection of Individual Rights, 90 Harvard Law Review, 489 (1977). 492 James A. Gardner, Justice Brennan and the foundations of human rights federalism, 77 Ohio State Law Journal, Volume 77, Nº 2, 2016, pp. 355-85, p. 356.

231 he observed, also protect liberty through their own bills of rights. Because the constitutional system of federalism makes states independent sovereigns, Brennan went on, state constitutional protec- tions for human rights are independent of those provided by the U.S. Constitution. This means in turn that State constitutions may – and in Brennan’s opinion should – offer greater security for individual rights than does the U.S. Constitution, at least as construed by the Supreme Court in a series of then-recent cases interpreting federal rights in ways that Brennan found unduly stingy. State courts, Brennan intimated, should thus look to their own bills of rights to continue the Warren Court’s expansion of individual liberty, of which Brennan had been a key architect.” 493 In the conclusion, the author494 declares “the article’s more important legacy is the spotlight it threw on the previously overlooked phenomenon of human rights federalism.”495

1.2. Argentina496 a) Formation of the provinces The 14 Provinces that existed before the Federal State (Buenos Aires, Córdoba, Santa Fe, Entre Rios, Corrientes, Mendoza, San Luis, San Juan, Santiago del Estero, La Rioja, Catamarca,

493 For analysis of the arguments of Brennan’s article, its impact and the aftermath, see Gardner, ibid, pp. 359-385. 494 Ibid., p. 385. 495 Regarding the important issue of State Constitutions interpretation, see James A. Gardner, Interpreting state Constitutions, op. cit., especially Chapter 6 “A functional account of State Judicial Power” and 7 “An approach to state constitutional interpretation”. 496 For a fuller analysis, see Antonio María Hernández, Sub-national Consti- tutional Law in Argentina, Wolters Kluwer, Kluwer Law International, 2011. We follow the book in this work. See also Antonio María Hernández Federal- ismo y Constitutionalismo Provincial”, op. cit.; Derecho Público Provincial, 2nd Edition, coordinators Antonio María Hernández & Guillermo Barrera Buteler, Abeledo Perrot, Buenos Aires, 2011 and Mario R.A. Midón, Director Consti- tuciones Provinciales y de la Ciudad Autónoma de Buenos Aires, Abeledo Perrot, Buenos Aires, 2009.

232 Tucumán, Salta, and Jujuy) were created between 1815 and 1834 and through inter-provincial pacts established the foundations of Argentine federalism, which was adopted in the national federal Constitution in 1853. After the inclusion of the Province of Bue- nos Aires, which was in secession between 1853 and 1859, there was an important Constitutional reform in 1860, as a consequence of the Pact of San José de Flores, as we saw in Part I. Art. 13 of the Federal Constitution establishes in relation with the admission of new provinces: “New provinces may be admitted to the Nation; but a province shall not be created in the territory of one or more other provinces, nor shall various provinces become one without the consent of the legislative branch of the provinces involved and of Congress”. The Federal Constitution in Art. 67, paragraph 14, amended in 1994, established that Congress had among its powers: “... to determine by special legislation the organization, administration, and government of the national territories, which remain outside the limits of the provinces”. Consequently, national territories were organized, which covered vast extensions in northeastern and southern Argentina. Those later became nine new provinces, the last being that of Tierra del Fuego, Antarctic and Islands of the South Atlantic.497 No national territories remain, and so the reference to these was suppressed in the 1994 constitutional reform.498

497 These territories, under Law No. 1532 of 1884, were divided into the governorships of La Pampa, Neuquén, Rio Negro, Chubut, Santa Cruz, Tierra del Fuego, Misiones, Formosa and Chaco. Article 4 of the law established that when any of those governorships reached 60,000 inhabitants, it would have the right to be declared a province. The executive branch of government was in the charge of an officer appointed by the President of the Republic under the name of Governor. When the population reached 30,000 inhabitants, the people had the right to vote for a legislative branch. The territories also had judges for administration of justice. For municipal government, towns of over 10,000 people had the right to elect a municipal council of 5 members. 498 The national territory of Chaco became a province by Law No. 14037 of 1951. Its first provincial constitution was passed on December 22, 1951,

233 b) Provincial Constitutions and their reforms enacted since the 1853 National Constitution499 The following chart shows the years of the passing of their first Constitution and the Constitutional reforms that such entities had:

Year of first No. of con- Year of lat- Provinces constitu- stitutional est reform tion reforms Autonomous City of Buenos Aires and Fed- 1996 0 1996 eral Capital 1. Buenos Aires 1854 6 1994 2. Catamarca 1855 4 1988 3. Córdoba 1855 8 2001 4. Corrientes 1855 7 2007 5. Chaco 1951 2 1994 6. Chubut 1957 4 1994 7. Entre Rios 1860 6 2008 8. Formosa 1957 2 2003 9. Jujuy 1855 6 1986 10. La Pampa 1952 3 1998 adopting the name of “President Perón”. That constitution was abrogated by the 1955 Revolution, and the province was named Chaco. A new constitution was adopted in 1957. The same Law No. 14037 made the national territory of La Pampa into a province, which, in its first provincial constitution in 1952, adopted the name of “Eva Perón”’. This constitution was abrogated for the same reason in 1955 and its historical name was readopted. The new provincial constitution was passed in 1960. The national territory of Misiones became a province by Law No. 14294 of 1953. The national territories of Neuquén, of Rio Negro, of Chubut, of Santa Cruz and of Formosa became provinces by Law No. 14408 of 1955. Lastly, the national territory of Tierra del Fuego was made a province by Law No. 23775 of 1990. 499 Some provinces enacted constitutions from 1819 to 1853, as mentioned in Part I, which were precursors of the national Constitution of 1853.

234 11. La Rioja 1855 8 2008 12. Mendoza 1854 10 1965 13. Misiones 1958 1 1964 14. Neuquén 1957 2 2006 15. Río Negro 1957 1 1988 16. Salta 1855 9 2003 17. San Juan 1856 6 1986 18. San Luis 1855 7 1987 19. Santa Cruz 1957 2 1998 20. Santa Fe 1856 8 1962 21. Santiago del 1856 11 2002 Estero 22. Tierra del 1991 0 1991 Fuego, Antarc- tic and South Atlantic Islands 23. Tucumán 1856 5 2006

c) Political structure of the provincial governments All the provinces and the Autonomous City of Buenos Ai- res established a republican system of the division into legislative, executive, and judicial branches, just as in the federal sphere. They also have a presidential system, with a governor in charge of the executive branch and a legislature in charge of the legislative branch, all of these elected by the people. Under the provincial autonomy acknowledged in Art. 5 of the federal Constitution, there are 15 provinces with a unicameral and 8 with a bicameral system. The legislature of the Auto- nomous City of Buenos Aires is also unicameral. In general, the smaller and less populous provinces adopted the former, with the exception of Córdoba which adopted this system in its 2001 Constitutional Reform. The other larger, more populated provinces have a bicameral legislature. The House of Representatives represents the people of the province and the Senate represents

235 the districts. Just as in the legislative branch, the provinces differ in some aspects of the organization, appointment and functioning of the judicial branch. Not all of them have a Magistrates’ Council, for example. d) Purpose and functions of the provincial constitutions compared to the federal Constitution Provincial constitutions are very important, because they acknowledge the citizens’ rights in the provinces, organize the powers and establish the bases of the municipal regime. The provinces exercise reserved or residual powers, in addition to those concurrent with the federal government. Consequently, they cannot exercise powers delegated explicitly or implicitly to the federal government. Provincial constitutions regulate the powers of the province and the organization of the legislative, executive, and judicial branches. Also, such constitutions may be considered as power-limiting, in accordance with the democratic, republican, federal principles of the national Constitution. The constitutions of the provinces have an important place and hierarchy in the federal constitutional scheme of the country. In general, such constitutions are more extensive and detailed than the federal Constitution, as they regulate the laws, provincial powers, and regime of local government. They are not as well- known as the federal Constitution, and have special characteristics compared to the latter. For instance, the historical provinces enacted their own constitutions in the 1819–1853 period, prior to the establishment of the federal Constitution. Later, they began to adapt themselves to the latter, in compliance with the principle of supremacy of the federal Constitution, established in Art. 31. In Argentine Constitutional Law, both at federal and at provincial level, there are three different stages: (1) liberal or classic constitutionalism, which gave rise to the liberal state and acknowledged first generation (civil and political) human rights; 2) social constitutionalism, which established a social state and

236 acknowledged the second generation (social) human rights; and (3) constitutionalism of the internationalization of human rights, which gave constitutional hierarchy to certain international human rights treaties and acknowledged third generation human rights.500 At federal level, the first stage commenced in 1853, although its antecedents could also be included as we saw in the historical analysis in Part One. The second stage, social constitutionalism, was incorporated in the 1949 and 1957 constitutional reforms, and the third stage in the 1994 reform. Although, in provincial constitutionalism, there was a general correlation with these stages, sometimes provincial constitutions were ahead of the federal constitution, as in the cases of Mendoza (1916), San Juan (1927), and Entre Rios (1933), which included the rights of workers and votes for women. And the same happened in the third stage, with the Constitution of Neu- quén (1957), and the reforms of San Juan (1986) and Córdoba (1987), which included some international human rights treaties among their supplementary provisions. Some acknowledged third generation human rights, such as those on the environment in Cordoba’s 1987 constitutional reform, anticipating the 1994 reform of the Federal Constitution.501 e) Provinces in the federal Constitution The autonomy502 of each province is acknowledged in the federal constitution and includes institutional, political, financial, and

500 See Antonio María Hernández, Ch. I Teoría Constitucional, point 1 El constitucionalismo, in Derecho Constitucional, Vol. 1, op. cit. 501 See Antonio María Hernández, Federalismo y Constitucionalismo Provincial, op. cit., Ch. XV Los derechos y deberes en nuestro constitucionalismo subnacional. 502 Discussing the nature of the provinces, we argue that, as well as autonomous, they are sovereign in the residual powers not delegated to the federal government. See our article: Soberanía y autonomía provinciales en la doctrina y jurisprudencia de la Corte Suprema de Justicia de la Nación argentina, in Cuestiones constitucionales Revista Mexicana de Derecho Constitucional Nº 31, Instituto de Investigaciones Jurídicas de la UNAM, Mexico, 2015.

237 administrative aspects. This is based on Art. 122, which states: “They determine their local institutions and are self-governed by these. They elect their governors, legislators, and other provincial officers, without the intervention of the federal government”. Their exercise of constituent power is set forth in Art. 5, which reads: “Each province shall enact its own Constitution under the republican, representative system, in accordance with the principles, statements and guarantees of the federal Consti- tution; ensuring its administration of justice, municipal regime, and elementary education. Under these conditions, the federal government shall guarantee each province the full exercise of its institutions”. Art. 123 also states: “Each Province enacts its own constitution as stated in Art. 5, ensuring municipal autonomy, and ruling its scope and content in institutional, political, administrative, economic and financial aspects”. Consequently, the provinces enacted their provincial constitutions, firstly in an original way, immediately after - theen actment of the federal Constitution, and then exercising derived constituent powers, when reforming these constitutions. When enacting their constitutions, the provinces must respect the bases stated in Art. 5, as well as the federal supremacy principles set forth in Art. 31 of the Federal Constitution. The federal Supreme Court of Justice is responsible for monitoring the constitutionality of provincial constitutions and must ensure the supremacy of the federal Constitution. In some cases in which a province breaches these constitutional provisions of Art. 5, the federal Constitution also enables federal intervention according to the provisions of Art. 6, which grants the federal Government the power to intervene in the provincial territory to secure republican government, among other grounds. This is a political intervention of an extraordinary nature, to ensure the principles of the Argentine Federation. As from 1994, the Argentine Constitution granted constitutional hierarchy to several international human rights

238 instruments, and these are applicable in the provinces, through their subordination to the federal Constitution. These are: The American Declaration of The Rights and Duties of Man; the Uni- versal Declaration of Human Rights; the American Convention on Human Rights; The International Covenant on Economic, Social and Cultural Rights; The International Covenant on Civil and Political Rights and its Optional Protocol; The Convention on the Prevention and Punishment of the Crime of Genocide; The International Convention on the Elimination of All Forms of Racial Discrimination; The Convention on the elimination of All Forms of Discrimination against Women; The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments; and the Convention on the Rights of the Child. These instruments, according to Art. 75, paragraph 22, of the Federal Constitution: “in the full force of their provisions, have constitutional hierarchy, do not repeal any Article of the First Part of this Constitution and are to be understood as supplementary to the rights and guarantees recognized herein”. The last part of Art. 75, Section 22, contemplates the possibility of granting the same hierarchy to other human rights treaties: “to attain constitutional hierarchy, other treaties and conventions on human rights, after their approval by Congress, shall require the vote of two-thirds of all the members of each House”503. In consequence, in Argentina we have three sources of rights: international, federal, and provincial. f) Rights504 Civil and Political Rights. Due Process Guarantees. Regar- ding civil or personal rights, the provincial constitutions show a humanist and personalist philosophy in their broad and deep acknowledgment of human rights, affirming that “all inhabitants” or “all persons”’ enjoy these rights, which prevents any discrimination

503 The Congress gave constitutional hierarchy to three more international human rights treaties after the Constitutional reform of 1994. 504 See Antonio María Hernández, Judicial federalism and the protection of fundamental rights in Argentina, 41 Rutgers Law Journal, Issue 4, pp. 907-30.

239 in this respect.505 Rights and guarantees are acknowledged that safeguard civil liberty (conscience, physical integrity, defense in trial, privacy of correspondence and papers, communications, etc.), equality, freedom of speech, work and the exercise of a profession, religious freedom, the right to hold meetings, to request, to as- sociate, to teach and learn, to hold property, among other rights inherent in classic constitutionalism. The provincial constitution which shows the best technique of constitutional elaboration and systematization is that of Córdoba. The Section Rights is classified into four chapters: Personal rights, Social rights, Political Rights, and Associations and intermediate partnerships. In the provincial constitutions, as in Art. 33 of the federal Constitution, there is an acknowledgment of non-enumerated rights, with various formulas.506 This is within a framework of respect for fundamental legal order arising from Arts. 5 and 31 of the federal Constitution. There are also explicit references to the rights and guarantees of the federal Constitution in provincial constitutions.507 The provincial constitutions expressly enshrine the political rights of democracy, republicanism, and the principle of popular sovereignty, in compliance with the order of Art. 5 of the federal Constitution. Rules are incorporated which regulate positive actions to take gender into account, to ensure the admission of women to elective public bodies.508

505 Constitutions of: Córdoba, Art. 18; Jujuy, Art. 16; La Rioja, Art. 19; Salta, Art. 17; San Juan, Art. 15; San Luis, Art. 11; and Santiago del Estero, Art. 17. 506 For example, the Constitution of Córdoba, in Art. 20, provides for those which ‘derive from the democratic form of government and from the natural condition of man’; Jujuy, in Art. 17, ‘ ... which are related to liberty, dignity and safety of human beings, to the essence of democracy and to the republican system of government ‘. 507 Córdoba, Art. 18; Jujuy, Art. 16, item 1; La Rioja, Art. 28; Salta, Art. 84; San Juan, Art. 40; San Luis, Art. 11; and Santiago del Estero, Art. 38. 508 Positive actions in relation to gender extend to other situations, such as the labor market. See Calandrino, Alberto et al. El caso ‘Freddo’ y las conductas pa- tronales como ‘categorías sospechosas’, Revista AADC, No. 192, 2003, p. 112.

240 All the provincial constitutions include rules regarding due process, defense in trial, evidence, natural judge and the protection of personal freedom, and the inviolability of domicile, communications, and private papers. Some of these rules expressly regulate guarantees such as the amparo, habeas corpus and habeas data. The constitutions acknowledge economic, cultural, and social rights for workers, women, children, handicapped people, elderly people, and consumers, indicating that these texts respond to social constitutionalism. The constitution of Córdoba, for instance, adds ‘Special state policies’ which comprise ‘Work, social security and welfare,’ ‘Culture and education’, ‘Ecology’ and ‘Economy and finance.’ The constitution of Jujuy includes ‘Culture, education and public health’ and contains a section on ‘Economic and financial regimes.’ The richness of provincial constitutionalism is shown in the notable development of rights and guarantees509. However, many of these norms do not in reality have full and sufficient force. They are ‘offers’ that the constituent -mem bers made to the people, implying a commitment to produce the change the societies call for. We have already remarked on the distance between norm and reality as a mark of our weak culture of the constitution and legality, a principal cause of our underdevelopment, as Nino noted. We have suffered emergencies of every kind, institutional, political, economic, and social, which have severely harmed the rule of law, the republican system and the full force of individual rights and guarantees.510

509 See Antonio María Hernández, Ch. on “Derechos y Deberes en las Consti- tuciones Provinciales”, in “Federalismo y Constitutionalismo Provincial”, Op. cit. and “Derecho Público Provincial”, 2nd. Edition, Antonio María Hernández and Guillermo Barrera Buteler, Coordinators, Lexis Nexis, Buenos Aires, 2011. 510 See Antonio María Hernández, Fortalezas y debilidades constitucionales. Una lectura crítica en el Bicentenario, Abeledo Perrot, Buenos Aires, 2012 and Las emergencias y el orden constitucional, 2ª. Ed. Instituto de Investigaciones Jurídi- cas de la UNAM y Rubinzal Culzoni, Mexico, 2003.

241 1.3 Similarities and differences

The greatest similarities are seen in this important point, just as when analyzing the historical and constitutional aspects in the federal order. In both countries, states and provinces preceded the federal state, and they constituted it with a similar constitutional design. The Argentine provinces also enacted their constitutions before the federal Constitution and after it. One difference is that the state constitutions are not mentioned in the text of Philadel- phia of 1787, whereas Art. 5 of the Argentine Constitution of 1853 fixed the bases for enacting provincial constitutions. The provinces may also be considered as “laboratories”, according to the well-known expression of Justice Brandeis, because in some cases they anticipated the federal Assembly in the recognition of new rights and the establishment of new institutions. Among the differences, in the United States, there has been a much greater number of state constitutional reforms, with the record in Alabama, which has already surpassed 750 amendments, although also the constitutions of Texas, California and South Carolina have had more than 400 amendments. There are also differences in length, as Alabama has one of the most extensive constitutions in the world, with more than 315,000 words, at the opposite extreme to that of Vermont, which has only some 6600. Argentine provincial constitutionalism recognizes a greater number of fundamental rights, which is a consequence of progress toward the third stage of constitutionalism, the internationalization of human rights. However, as we have said, this does not mean they are fully valid. A difference in state and provincial judicial powers is that, in the case of USA, 43 states allow the popular vote for the election of some classes of judges511, which does not exist in Argentina.

511 See James Gardner, Interpreting state Constitutions, op. cit., p. 170. The Mississippi Constitution of 1832 established for the first time the popular election of state judges, as a consequence of the “Jacksonian era” and the constitutions of Iowa and New York followed suit in 1846.

242 Another significant difference, reflecting the different validity of republican principles, is that in Argentina we have not had such a significant response of the judiciary of the provinces as the New Judicial Federalism. This is also linked to the different degree of independence of the Judiciary, which is one of the most serious problems that Argentina has, as we have seen before. And also, finally, it is another consequence of the greater autonomy of the American states and of their stronger possibility of contestation to the federal government512.

2. Local governments

2.1. United States a) Local Government Variety “Local government in the United States”, writes Michael E. Li- bonati513, “has a rich history of variety, both in type and form. Cities, counties, towns, townships, boroughs, villages, school district and a host of special-purpose districts, authorities, and commissions make up the 87,849 distinct units of local government counted in the 2002 Census of Governments. These local units of government have many different forms and organiza- tional structures. Variations in the numbers and forms of local government reflect the unique political cultures and forces that created and shaped local self-government in each state. “Experience with local government, which is shared by all Americans, has rarely given rise to sustained and systematic reflection about the relationship between local government and

512 See James A. Gardner, Contestation in federal countries, Lecture, National Academy of Law and Social Sciences of Cordoba, 2016, in press. 513 Michael E. Libonati, Ch. 5, Local Government in State Constitutions for the twenty-first Century, Vol. 3, op. cit., p. 109. Libonati is distinguished emeritus professor of Temple University, Philadelphia, one of the most mportant specialists in municipal and state law in the United States, with a vast intellectual production.

243 state government. Instead, the desire for local self-government has been institutionalized in thousands of compacts, charters, special acts, statutes, constitutional provisions, resolutions, ordinances, administrative rulings, and court decisions since the ear- liest dates of settlement of this country. … Given this diversity, there is no single model of constitutional arrangements dealing with local government that is appropriate for all states. Never- theless, the key issue remains the same from state to state, namely, the level of autonomy to be accorded to local governments in the state constitution”. “Two themes dominate the jurisprudence of American local government law:” says Richard Briffault514, “the descriptive assertion that American localities lack power and the normative call for greater local autonomy”. The Argentine historical process was similar, as we see below, and this is why it is necessary to analyze the concept and extent of municipal autonomy in the United States. b) Defining Local Government Autonomy Libonati515 explains: “This section examines the range of state constitutional definitions of local government autonomy. One of the most useful classifications of local self-government is Gordon Clark’s principles of autonomy. These principles distinguish between a local government’s power of initiative and its power of immunity. By initiative, Clark means the power of local government to act in a “purposeful-goal oriented” fashion, without the need for a specific grant of power from the legislature. By immunity, he means “the power of localities to act without fear of the oversight authority or higher tiers of the state.” The- re are four variations in the exercise of these two components to

514 Richard Briffault, “Our localism: Part I-The structure of Local Govern- ment Law”, 90 Columbia Law Review, Nº 1, January 1990, p. 1. Briffault is currently Professor at Columbia University in New York City and is one of the most recognized authors in municipal and state law in the United States, with an extensive specialized production. We met in 2017 during this research. 515 Ibid., p. 110.

244 autonomy: 1) powers of both initiative and immunity; 2) power of initiative but not immunity; 3) power of immunity but no initiative; and 4) neither power of initiative nor immunity”. Regarding the first classification, Libonati516 says that initiative and immunity vary considerably from one state to another and cites the example of the Colorado Constitution with both powers for the Local Governments. This Constitution orders: “The people of each city and town of this state ... are hereby vested with, and they shall always have, power to make, amend, add to, or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters”; and “such charters and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith”. “These texts” Libonati affirms517 , “both empower the home rule unit to exercise initiative as to all local and municipal matters and immunize the home rule unit from state legislative interference in all local and municipal matters”. The example of the second classification, power of initiative but not immunity, is the Pennsylvania Constitution, and the author says518: “In this formulation, known as the Fordham-Mo- del State Constitution devolution-of-powers approach to local governance, the state legislature has a free hand in defining and limiting the scope of local initiative”. In the third classification, power of immunity but no initiative, Libonati519 gives the case of the Utah Constitution that “prohibits the legislature from passing any law granting the right to construct and operate a street railroad, telegraph, telephone or electric light plant within any city or incorporated town “without the consent of local authorities””.

516 Ibid., pp. 110-1. 517 Ibid., p. 110. 518 Ibid., p. 111. 519 Ibid., p. 111.

245 The last classification, neither power of initiative nor- im munity, is seen in the Connecticut Constitution: “The General Assembly shall ... delegate such legislative authority as from time to time it deems appropriate to towns, cities, and boroughs relative to the powers, organization, and form of government of such political subdivisions”. Libonati 520comments: “The apparent utility of this type of provisions is to defeat challenges to a broad allocation of authority to local governments based on a delegation doctrine or due process claims.” Libonati later521 sustains that, beyond the immunity and initiative concepts, there are other important issues about the scope of local government powers: preemption, inter-governmental cooperation, and privatization. In this third aspect of home rule, he mentions the Pennsylvania Constitution in relation to preemption, because a home rule unit has the power to act concurrently with the state legislature “unless the power has been specifically denied” and he adds the case of the Illinois Constitution. Regar- ding the other issues, the author522writes: “One other question that initiative and immunity models of local government autonomy do not address is the capacity to contract intergovernmen- tally (among federal, state, and local governments), interjurisdic- tionally (among counties, cities, and special districts), and with the private sector. The collaborative perspective has undoubtedly influenced the entrenchment of rules concerning interlocal cooperation and transfer of functions in state constitutions”. In the section Analyzing Local Government autonomy, the author523 cites the definition of Local discretionary authority by the Advisory Commission on Intergovernmental Relations as “the power of local government to conduct its own affairs – including

520 Ibid., p. 111. 521 Ibid., p. 112. 522 Ibid., p. 112. 523 Ibid., p. 113. Report of the U.S. Advisory Commission on Inter-Govern- mental Relations (ACIR), “Measuring Local Discretionary Authority” (1981).

246 specifically the power to determine its own organization, the functions it performs, its taxing and borrowing authority, and the numbers and employment conditions of its personnel”. Libonati continues by explaining the Structural, functional, fiscal and personnel aspects of autonomy524. In relation to Implementing Local Government Autonomy, Libonati525 subtitles Organizing State and Local Government relations: Dillon’s rule to Illinois Home rule (1868-1968) and says on Dillon’s Rule: “The legal doctrine known as “Dillon’s Rule” emphasizes the legal subordination of cities to state government. Although some observers believe this doctrine developed only after the Civil War, much of what became Dillon’s Rule apparently derives from a line of Massachusetts cases decided before 1820 that elaborated a theory concerning the juridical subordination of corporate entities to the sovereign that is rooted in medieval law. The rule – named for its author, Chief Justice John Dillon of the Iowa Supreme Court- was firmly established in a landmark case in 1868 and ultimately adopted in nearly every state. Dillon wrote: “In determining the question now made, it must be taken for settled law, that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation – not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against

524 See Libonati’s study of this important point, where he reviews the different municipal systems regulated in the State Constitutions, in each of the aspects of local autonomy. Ibid, pp. 113-121. 525 Ibid., p. 121. In footnote 81, p. 142, the author mentions two Dillon’s cases “Clark, Dodge and Co. v. Davenport”, 14 Iowa 494-498 and “Merriam v. Moody’s Executor”, Iowa, 164, 170 (1868). Later, Dillon wrote his treatise Commentaries on the Law of Municipal Corporations, and refined his views in subsequent editions, as in 1911. (Ibid., p. 122 and footnote 82, p. 142).

247 the corporation - against the existence of the power”. Libonati526 comments: “It is difficult to overestimate the impact of Dillon’s Rule on the shaping of state and local government relations. The rule has been applied to the interpretation of both statutory and constitutional grants of power to local governments. … the initial stifling consequences of Dillon’s Rule provided a grievance that energized the early advocates of municipal home rule”. On Nineteenth-Century State Constitutional Restrictions on State Supremacy, he527 affirms that the Indiana Constitution of 1851 apparently contained the first state constitutional - pro vision banning local or special legislation regulating county and township business, which was an important decision to limit the legislature’s power over local governments. The 1872 Pennsylvania Constitutional Convention established the Ripper clause: “The General assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes or perform any municipal function… By 1880, 28 of the 38 States had incorporated similar restrictions in their constitutions”528. In the section Developing concepts of Home Rule and Local Government Autonomy, Libonati529 writes: “During the twentieth century, states sought to develop a workable model for providing local governments with a modicum of local autonomy. From 1875 onward, debate and deliberation in the states began to shift from placing restraints on their legislatures to empowering local citizens with the ability to articulate their preferences over institutional forms and functional powers within their local communities. Some of the best examples of the early development of home rule ideas can be seen in the Missouri Constitution of 1875 and,

526 Ibid., p. 122. 527 Ibid., pp. 121-2. 528 Ibid., p. 123. 529 Ibid., p. 123.

248 in the models for devolving powers on local government created by California, New York, the American Municipal Association (AMA), New Jersey and Illinois.” Regarding the Missouri Experiment, the author530 comments: “Faced with legislative corruption and favoritism in managing the affairs of the city of St. Louis, constitutional convention delegates crafted a prohibition of local or special laws changing the charters of cities, towns and villages and a procedural provision requiring a three-month notice to the inhabitants of a county or city prior to the passage of any local laws. ... The convention’s most striking innovation, however, was a provision delegating to the people of St. Louis a power previously possessed solely by the Legislature, namely, the power to make a charter. These charter provisions had to be “in harmony with and subject to the Cons- titution and laws” of Missouri ... The Missouri Constitution was the first to contain a separate article devoted to local government and its relationship to the state legislature. In 1876 the municipal Charter of the City of St. Louis was enacted, with popular participation and the exercise of home rule.”531 Libonati532 has also studied in depth the Home Rule Char- ter system, analyzing its historical origins and particularly, self-government in England. In 1650 the interests of municipal governments were represented in the House of Commons and localism was demonstrated in their opposition to the Corporation Act in 1661, which they saw as harming the charters of local corporations. This Act was swept away by the Glorious Revolution of 1688, and later the Municipal Corporation Act in 1835 secured popular participation.

530 Ibid., p. 124. 531 See Thomas S. Barclay, “The St. Louis Home Rule Charter of 1876” (1902), quoted by Libonati, footnote 89, p. 142, ibid. 532 See Michael E. Libonati, 64, “Home Rule: An Essay on Pluralism”, Wash- ington Law Review, 51-72 (1989), pp. 57-8.

249 He then analyzes the colonial era of the United States and the early state constitutions, holding that “the phenomenon of self– created, self-defined local government may be found in Connecti- cut” and, that “a significant guarantor of local autonomy in Mas- sachusetts, as in England, was the practice of affording each town the corporate right of electing a representative to the General Court. This right was entrenched in the Constitution of 1780”. The popular election of some local authorities was also included in the New York constitution of 1777.533 On the Early Twentieth Century and Home Rule, the Tem- ple Law professor534 writes: “During the twentieth century, states struggled with decisions about the structure of their relationships to local governments and the powers that should be granted to those political communities. Ultimately, the states adopted one of three versions of home rule powers: 1, the City Republic; 2. A Local Government Bill of Rights; or 3. Devolution of powers”. Libonati explains the City Republic535: “The complex task of creating a framework to express the demand for differentiating between state and local spheres of authority can be plotted to a series of amendments to the Californian Constitution between 1894 and 1902”. On the Local Bill of Rights, he explains that the New York Constitution went one step further than Missouri and set in greater detail a bill of rights for local governments in the delineation of their powers536. And, finally on The devolution- of-powers approach, Libonati537 says: “The third approach to local home rule, setting out an area of devolved powers, seemed to avoid the difficulties inherent in delineating a constitutional -di vision of powers between the state and local government. This

533 See Libonati, ibid, pp. 59-65. 534 Michael E. Libonati, “State Constitutions in the twenty-first Century”, Op. cit., p. 125. 535 Ibid., p. 125. 536 Ibid., p. 125-7. 537 Ibid., p. 128.

250 devolved power provided local government with an area in which to operate freely, subject to the ultimate purview of the state legislature. Sometimes referred to as legislative home rule, the devolution of powers is most commonly associated with the model constitutional provision for home rule formulated in 1953 by Jefferson B. Fordham on behalf of the American Municipal Association’s Committee on Home Rule”. Regarding New Jersey and Local Autonomy, the author538 mentions especially the constitutional norms on administrative flexibility, the prohibition of local or special legislation regulating the internal affairs of individual municipalities, the “liberal construction” of local government powers and the provisions on taxation and a funding scheme for public education. And on Illinois and the devolution-of-powers approach, Libonati539 writes: “The text of the local government article of the 1970 Illinois Constitution provides an interesting departure from the devolution-of-powers model”., He points out the themes included in Art. VII of the Constitution: “1. The definition of entities eligible for Home rule status. 2. The scope of powers afforded to these home rule entities. 3. The interpretation of powers granted to them. 4. The basis for dealing with interlocal conflict and collaboration, and 5. The extent of state legislative control over the scope of home rule powers”. On these crucial matters, Richard Briffault540 affirms: “The most emphatic recent presentation of the claim that local governments lack legal power is Gerald Frugs’s The City as a Legal

538 Ibid., p. 129730. 539 Ibid., p. 131. 540 Richard Briffault, ibid, Pp. 6-7. See also Briffault, “Our Localism: Part II-localism and legal theory”, 90 Columbia Law Review, 346-454 (1990); “Local government and the New York State Constitution”, 1 Hofstra L. & Pol · and Simp. 79, 110 (1996) and “Mind the Gap” in “New York broken Constitution: The governance crisis and the path to renewed Greatness”, edited by Peter J. Galie. State University of New York, 2016, pp. 161-83.

251 Concept541. Professor Frug’s assertion that the law of state-local relations renders cities powerless is not unique, however; the claim is widely reflected in the literature. According to Profes- sor Frug, the limited nature of local power derives from, first, the principles of nineteenth-century legal theory that established cities as decidedly inferior political institutions and, second, the failure of state constitutional reforms, most notably home rule, to change that. Although this critique captures some of the black-letter principles of local government law, it ignores much of the formal legal power local government possess as well as all of their legally significant informal authority”.

2.2. Argentina a) The juridical-constitutional status of local government in the federal Constitution: municipal autonomy542 The municipal regime was included in the original Constitution of 1853 in Art. 5 as one of the requirements that provinces have to meet when enacting their provincial constitutions. This brief phrase originated a strong debate on the nature of local governments, with the opinions in the constitutions, in the juridical doctrine, and in the jurisprudence, divided between those who supported “autar- chy” and the administrative nature of municipalities and those who supported “autonomy” and the political nature of municipalities.

541 Gerald Frug, “The City as a Legal Concept”, 93 Harvard Law Review 1057 (1980). 542 See Antonio María Hernández, “Derecho Municipal”, National Autono- mous University of Mexico, 2003, “Derecho Municipal”, 2nd. ed., Depalma, Buenos Aires, 1997 and “Federalism and Provincial constitutionalism”, Ob. citt.; Horacio Rosatti, “Tratado de Derecho Municipal”, 2ª. ed., Rubinzal Cul- zoni, Buenos Aires 1997; Richard M. Zuccherino, “Tratado de Derecho Feder- al, Estadual y Municipal (Argentino y Comparado), 2nd.” ed., Depalma, 1992: María Gabriela Abalos, “El régimen municipal argentino, después de la reforma nacional de 1994”, Cuestiones Constitucionales, Nº 8, Mexico, January-June, 2003; Néstor Losa, “Derecho Municipal en la Constitución vigente”, Abaco, Buenos Aires, 1995 and Enrique J. Marchiaro, “Derecho Municipal.” Nuevas Relaciones Intermunicipales”, Ediar, Buenos Aires, 2000, etc. ..

252 As I mentioned, there were three historical stages of this debate: from 1853 to 1986, from 1986 to 1994 and finally, from 1994 until today. The dates correspond to the following events: 1853, the enactment of the National Constitution; 1986 when most of the provincial constitutions were reformed after regaining democracy in 1983; and finally, 1994, the year of the federal constitutional reform, which expressly recognized municipal autonomy.543 The 1994 Constitutional Reform included the acknowledgment of municipal autonomy in Art. 123 in these terms: “Each province enacts its own constitution as stated in Art. 5, ensuring municipal autonomy, and ruling its scope and content regarding the institutional, political, administrative, economic and financial aspects”. This norm complements Art. 5, and, consequently, one of the established requirements prescribed for the exercise of constituent power by the provinces is to ensure an “autonomous municipal regime.” We have already said, recalling the debate in the Constituent Convention, that the term “ensuring” refers to what already exists and implies recognition of the municipality as a natural and necessary institution, based on neighborhood relations. That was also the interpretation we made of the word “ensure” in Art. 5. We agreed with Horacio Rosatti in that debate that if the provinces do not ensure the autonomous municipal regime, they can be federally intervened under Arts. 5, 6 and 123 of Constitution. Art. 123 indicates that provincial constitutions should regulate the “scope and content” of local autonomy, with respect for provincial autonomy and for the variety and asymmetry that constitute the basis of a good municipal regime. It was always interpreted – but now in the character recognized in Art. 123 – that the municipal regime should be legislated by the provinces in exercise of their autonomy, and that, consequently, there could not be

543 We have no space to analyze this important point concerning the historical evolution of this debate, so we refer to our cited books.

253 a uniform local regime. We will see that the scope and content of autonomy must be linked to its institutional, political, administrative, economic, and financial orders, as indicated in this Article. We explain the meaning of the institutional, political, administrative, economic, and financial orders as follows: The institutional order implies the possibility of the municipality enacting its own municipal charter (home rule). The political order entails the popular, elective, and democratic basis of local government organization. The administrative order involves the ability to provide public services and other local administrative activities, without interference from any authority of another order of government. The economic order means that local governments must be promoters of economic and social development alongside the other orders of government and must participate in provincial, national, and international regionalization processes. The financial order implies the freedom to create and collect taxes and invest revenues, to meet the expenses of its own government and its purposes, which are solely the common good of the local society. This means that, since the reform, local governments have originating or inherent tax powers. In short, the municipal autonomy can be of two types: full, when it includes the five orders (institutional, political, administrative, economic, and financial aspects) that constitute autonomy, and semi-full or relative (when it includes the political, administrative, economic, and financial aspects and only lacks the institutional order). The Scope and Content of autonomy in each of these orders may be understood as follows: In relation to institutional municipal autonomy, the provinces may categorize their municipalities, so that they have full or semi-full municipal autonomy. A good municipal regime must bear in mind the different sociological infrastructures underlying

254 the municipalities, and it is therefore unlikely that the smallest will be able to enact their own municipal charters. On political municipal autonomy, after ensuring republican principles, the provinces can establish a very broad scope and content in this matter. There can be different forms of local government, option systems for each municipality to decide, different electoral systems, greater or lesser citizen participation, etc. As regards administrative municipal autonomy, the scope and content are also extensive because this comprises issues such as public services, public works, policing powers, administrative organization, etc. The decision of the Supreme Court of Justice in the case “Rivademar” should be remembered, that the provinces cannot deprive municipalities of the minimum attributions necessary for the performance of their task, “among which it is essential to establish its level of staff, appoint and remove them”. In this area of administrative autonomy, there is an important task of defining the competences that local governments must perform, although this is eased by the current decentralization process. In economic and financial local autonomy, there is also a considerable breadth of scope and content that the provinces can organize, for such matters as taxing, public spending, promotion of economic development, regionalization, etc. We emphasize that these aspects of local autonomy must be ensured. We believe that Art. 123 consolidates our interpretation of the “originating” character of the municipal power of taxation, for this is undoubtedly a matter of autonomous government arising from the Constitution, and this could not be ensured if it depended on delegation from the provinces. This municipal taxing power comprises the classic tripartite division of “taxes” “fees” and “contributions”, which is widely adopted in provincial constitutions when legislating on municipal regimes. Tax problems of obvious complexity require adequate interjurisdictional coordination, to avoid double or triple taxation (whose constitutionality has long been admitted by the Supreme

255 Court) and high tax pressure. In addition, there is a need for modernization of local administrations and, in particular, cadaster and tax collection systems. The doctrine of the Supreme Court in the case “Municipa- lidad de Rosario c. Provincia de Santa Fe” should also be recalled: “The necessary existence of a municipal regime imposed by Art. 5 of the National Constitution determines that provincial laws should not only imperatively establish municipalities, but that they cannot deprive them of the minimum attributions necessary to carry out their tasks. If such bodies were to be subject in these respects to the decisions of an outside authority – even though it be the provincial – this could prevent them from conducting their specific activity, through restrictions or impositions capable of dismantling the foundations of their functional organization.” In addition, to end the dependency that has been systemati- cally suffered by most Argentine municipalities, a fair proportion of the tax-share, both provincial and federal, must be recognized for them, as is prescribed by some provincial constitutions. It is also necessary to comply with the mandates of the Constitution on the tax-sharing law-agreement. In relation to this, as we saw earlier, the Supreme Court of Justice in a notable ruling in “Intendente Municipal Capital c. Provincia de La Rioja s. Amparo”, ordered the Province of La Rioja to enact the law-agreement on tax-sharing, as an unfulfilled mandate of the provincial constitution, which affected the financial autonomy of municipal governments544. The Court deepened

544 CSJN, “Intendente Municipal Capital c. Provincia de La Rioja s. Amparo”, November 11th, 2014, where we had the honor to represent the Municipality plaintiff before the Supreme Court of Justic, See “Cuaderno de Federalismo”, 2014 Annual Federalism Report, Institute of Federalism of the National Acade- my of Law and Social Sciences of Córdoba, Córdoba, 2015, on page Web, www. acaderc.org.ar. This ruling, together with those mentioned above, are the most important of the jurisprudence of our Highest Federal Court around the municipal autonomy.

256 its jurisprudence in a more recent ruling in 2018, in the case “Mu- nicipalidad de la ciudad de La Banda c/Provincia de Santiago del Estero s/Conflicto de poderes públicos”. The economic function of the municipalities has multiple consequences, and therefore local governments must be partners and promoters of economic, social, and integral human development along with other state orders. The problem is much more serious in large cities, because of the phenomena of unemployment, poverty, marginality, social exclusion, and violence. Local economic autonomy must also be strengthened, by two growing tendencies: integration and decentralization. The principle of municipal autonomy enshrined in the national Cons- titution must now be realized, which requires a permanent vigil and continued struggle for this high ideal, the basis of our political decentralization, of federalism and democracy. In this respect, we note that almost 25 years after this reform, there are violations of this principle, linked to our lack of compliance with the norms and our deficient democratic political culture. b) The municipal regimes in provincial constitutions545 All Argentine municipalities are autonomous, but there is a difference between those with “full” autonomy, able to enact their own municipal charters and those with “relative” autonomy, lacking the institutional aspect, as we saw above. At present in Argentina, more than 150 municipal charters have been enacted. All local authorities are democratically elected by the people. Usually there is an executive body, under the Mayor, and a deliberative body, the municipal council. In some provinces, there is also a tribunal of accounts, which is a body for control of legality in financial matters, also elected by the people, as in the municipalities of the province of Córdoba.

545 For more analysis, see Antonio María Hernández, Sub-national Constitu- tional law in Argentina, Wolters Kluwer, Kluwer Law International, 2011, op. cit.and Derecho Municipal,op. cit..

257 Municipalities are subject to legality controls only by judicial courts. Only in really exceptional situations, provided by the provincial constitutions, may municipalities be intervened by the provincial government (usually by a law of the legislature, with a supermajority quorum). Municipalities are empowered to challenge, both at federal and state level, laws or acts which they deem harmful to their autonomy. In the case of acts of the province of which they form part, they can challenge before the provincial courts, and especially before the High Court, but even in these cases, they may reach the Argentine Supreme Court of Justice, through an extraordinary appeal and exceptionally, even through an Amparo Action against the Province, which originates the exclusive jurisdiction of the Argentine Supreme Court546. Determining the bases for their respective local regimes is an obligation of the 23 provinces, by virtue of the provisions of Arts. 5 and 123 of the Federal Constitution. This issue is therefore one of the most important provincial powers. Consequently, relationships between the federal government and the municipalities are not direct, but indirect through the respective provincial government. Anyway, considering the great power of the federal government, it is evident that this may condition local life with its political, economic, and financial power. In Argentina, there are no intermediate local entities between the municipalities and the provincial governments. But there is a growing development of the idea of intermunicipal relationships, i.e., the creation of associative figures, with different goals of common welfare, such as associations of municipalities, intermunicipal entities, production agencies or metropolitan entities.

546 According to the jurisprudence of the Supreme Court in the case “Munici- palidad de San Luis c. San Luis, Provincia de y Estado Nacional-Amparo”, with a majority and minority ruling, on August 9, 2001. There we had the honor of representing the municipality together with the late Professor Alberto Spota, where for the first time the issue was admitted as federal and in original instance.

258 But they do not exist in all the country, but only in some provinces. Such entities are created by the municipalities, without the intervention of the provincial government and the appointment of their authorities is the result of the decision of the respective municipalities, whose officers (in particular the mayors) represent there too each local government. Thus, there is no popular election for the administration of such intermunicipal entities. The provincial government intervenes in these bodies only through the enactment of the constitutional or infra-constitutional rules that authorize them, since these decisions correspond to the municipal governments. Municipal powers are fixed in each provincial constitution and in the municipal organic law of each province, and in the respective municipal charters in municipalities that have enacted these. The powers are quite broad because, in general, they touch all matters related to satisfying the common welfare needs of the local society, including the institutional, political, administrative, economic, and financial aspects. Municipalities have exclusive powers, concurrent with those of the provincial and federal governments, and they also exercise some powers by delegation from these governments. There are different systems for allocating powers, but the most common in our legal system is that which enumerates these powers in the provincial constitution and then, in a final clause, acknowledges the powers required to satisfy the needs of the local society. Provincial constitutional provisions, in general, authorize the exercise not only of intermunicipal but also of interjurisdictional relationships, which shows a way to advance in the construction of a cooperative or consensus federalism, in which local governments must increasingly interrelate with other levels of government. Nevertheless, there is still much to be done in this matter. In general, there is no legislation setting forth, for instance, matters delegated to local governments or the contributions or financing that must be made. As already mentioned, delegation is

259 usually related to controls concerning policing power, for example, in health provisions. Broad lawmaking and regulatory powers have been acknowledged for municipalities. Twenty provincial constitutions empower municipalities (in general of the first category, i.e., with the largest population) to enact their own municipal charter, which entails the exercise of a “third degree” constitutional power. Besides, each municipality may enact municipal ordinances, which in general are deemed true “material laws” and these may be questioned before the Judicial Branch by virtue of the constitutionality review since they imply the exercise of a political and not only administrative power. Municipalities also have administrative powers for providing utility services and other such duties that do not depend on another state order.547 c) Municipal Organic Charters Municipal autonomy is acknowledged in all its aspects, beginning with the institutional, i.e., the ability to enact their own municipal charter. Most of the provincial constitutions grant home rule to local governments, with the exception of the provinces of Buenos Aires, Mendoza, and Santa Fe, because their constitutions have not been reformed and are in breach of the federal Constitution. We have stated that the municipal charter is “like a local constitution, regulating various aspects of the municipal regime: its form of government, local finance, policing power, utilities, officers’ -lia bility, forms of citizen participation, intermunicipal relationships, etc.” We also believe that the techniques for writing constitutions, suggested by Segundo Linares Quintana, are applicable to the enactment of charters: (1) adaptation to institutional reality; (2) stability; (3) flexibility; (4) fundamentality; (5) prudence and (6) style.

547 For a further analysis of these issues, see Antonio María Hernández, Derecho Municipal, op. cit.

260 Alberdi thought that any Constitution is a “fundamental political transaction” and, therefore, the charter must be the result of the dreams, ideals, and aspirations of citizens548. Political passions that try to impose circumstantial majorities must therefore be set aside, and these high ideals must inspire municipal conventions to agree fruitful, long-lasting, and fair works, and thus, each city will be the highest realization of our political culture. Since charters are the result of the exercise of third-degree constitutional power, they must respect the constitutional bases set forth by each provincial constitution and by the federal Constitution. This means that charters should not be subordinated to the organic municipal law of each province, although an adequate com- patibility with this and the rest of the provincial laws is necessary. In relation to the federal Constitution, which has the highest hierarchy in the federal state, charters must scrupulously respect its letter and spirit, and in particular, some specific provisions: Art. 1, on the republican form of government, where the teaching of Adolfo Korn Villafañe on the “municipal representative republic” should be remembered; Art. 5, establishing the bases for the second degree constituent power of the provinces and, since the 1994 Constitutional Reform, Art. 123 on municipal autonomy, and Art. 31 on the supremacy of the Constitution. This evidently complex task is especially important to avoid any objection to or impugnation of the constitutional nature of charters. As regards the provisions of provincial constitutions on municipal charters, there is a distinction between charters that require approval by the legislature, and those for which such a requirement is not enacted; only the constitutions of Chubut, Art. 231, Neuquén, Art. 276, and Salta, Art. 168, require such approval.

548 I had the honor to chair the Municipal Constitutional Convention of the City of Córdoba, which in 1995 sanctioned the first municipal charter for a city of more than 1 million inhabitants in Latin America. The charter was the result of a very high degree of consensus by the five blocks of convention delegates. This Charter has served as a model for many others in Argentina.

261 The provincial constitutions include requirements for charters, which may be summarized as follows: (a) a representative, republican and democratic system, with direct election of authorities by means of a universal, mandatory, equal, secret vote, even by foreigners; (b) imposition, in most cases, of the traditional form of government with a mayor and municipal council; (c) a system for monitoring the legality of spending; (d) the rights of popular initiative, referendum and revocation; and (e) other requirements stated by the municipal regime of each province as to material and territorial jurisdiction, local finances, intermunicipal relationships, etc. As to the procedure, a large majority of the constitutions state that municipal constituent conventions must be convoked by the executive departments by virtue of ordinances issued by the municipal councils. Most of the constitutions provide for proportional representation as the electoral system for choosing members of the convention. Finally, as regards which municipalities must enact charters, there are provincial constitutions that establish this for all of them, and others that authorize it only for those with larger populations, with an explicit or implicit categorization. There are currently 178 municipal charters in 14 provinces. d) Types of local governments The following are the forms established in the provincial constitutions: Mayor and Municipal Council: For their municipalities, the constitutions of Buenos Aires (Art. 190), Catamarca (Arts. 247, item 1, and 248), Corrientes (Art. 220), Chaco (Art. 184), Chu- but (Art. 229), Entre Rios (Art. 233), Formosa (Art. 176, item 1), Jujuy (Art. 184), La Pampa (Art. 118), La Rioja (Art. 169), Mendoza (Art. 198), Misiones (Art. 162, for categories 1 and 2), Neuquén (Art. 277, for category 2), Rio Negro (Art. 233, for those lacking a charter), Salta (Art. 165), San Juan (Arts. 242, 244 and

262 245), San Luis (Arts. 254 and 257), Santa Cruz (Art. 144), Santa Fe (Art. 107), Santiago del Estero (Art. 220, item 2), Tierra del Fuego (Art. 180) and Tucumán (Art. 133). This is the traditional form of government in Argentine municipalities. Community Committees: Elective bodies that in general include deliberative and executive powers, for smaller municipalities or for local entities which do not constitute a municipality, and which are called communities or rural municipalities, in the constitutions of Catamarca (Art. 255), Córdoba (Art. 194), Corrien- tes (Art. 217), Chubut (Art. 227), Entre Rios (Art. 232), Formosa (Art. 175), Jujuy (Art. 185), Misiones (Art. 162), Neuquén (Art. 278), Río Negro (Art. 241), San Juan (Art. 252), San Luis (Art. 250), Santa Cruz (Art. 148), Santa Fe (Art. 107), Santiago del Es- tero (Art. 220, item 4), Tierra del Fuego (Art. 181) and Tucumán (Art. 132). The forms of government and names of these local institutions also vary according to the provincial constitutions. Municipal Commissioners: are elected by a simple plurality of votes for urban centers, of up to 800 inhabitants in the constitution of San Luis (Art. 251), and of up to 1,000 inhabitants in that of Santiago del Estero (Art. 220, item 5). Municipal delegations: are organized in rural centers depending upon the nearest municipality, as determined by the constitutions. The constitution of Chaco establishes them for centers with fewer than 800 inhabitants (Art. 186), the constitution of Salta for those with fewer than 900 inhabitants (Art. 164), and San Luis, for rural centers with more than 80 voters, with a delegate elected directly, by simple plurality of votes (Art. 252). This system is also applied in the Province of Buenos Aires, for the localities of each District that are not its capital.549

549 The Province of Buenos Aires is the most centralized and with the most backward municipal system of all. There is no political decentralization, since for approximately 17,000,000 inhabitants in 307,000 Km2 there are only 135 municipal governments based in a city, while the other localities have delegates appointed by the mayor. In some cases, that delegate is more than 100 Km from the city. There is a movement promoting the autonomy of these localities, which

263 Option System: here it is the municipality itself that chooses its own form of government, and in our opinion, this is the best solution, since it respects autonomy to a greater extent, and allows sufficient flexibility, subject to local particularities and the passing of time. This is the case in the constitution of the Province of Cór- doba (Arts. 183, item 2, and 184), which permits different types of government, including mayor, council and tribunal of accounts, committee, or committee with city manager, as established by the respective municipal Organic Charters or the municipalities subject to the Municipal Organic Law, through ordinance approved by subsequent popular referendum.550 Likewise, the constitutions of Neuquén (Art. 276) and Río Negro (Art. 228, item 2), for those municipalities that may enact charters, only impose requirements to elect deliberative organs, which implies the possibility of adopting another form of government, such as that of a committee, in addition to the traditional form. The constitution of Tierra del Fuego (Art. 175, item 2) also permits municipalities empowered to enact their charter to establish their own form of government. e) Constitutional violations of municipal autonomy We have pointed out the serious violations of municipal institutional autonomy, from the impossibility of enacting municipal charters in the provinces of Buenos Aires, Mendoza, and Santa Fe, because the provincial constitutions are not adapted recently met in Huanguelén. See the interview in the newspaper La Nueva of Bahia Blanca, June 2, 2018, where we pointed out the need for an immediate constitutional reform in the Province to guarantee municipal autonomy and decentralize provincial power. In addition, see our book Derecho Municipal, Depalma, 2nd Edition, 1997, in the chapter on Régimen Municipal Argentino. 550 See Antonio María Hernández, El régimen municipal cordobés, in Revista de Derecho Público, vol. 2, Rubinzal Culzoni, Buenos Aires, 2005. The subject is regulated in Municipal Organic Law Nº 8102 of the Province of Córdoba, enacted in 1991 on the basis of my draft bill in the Provincial Legislature. I was also a member of the Drafting Committee in the provincial Constituent Assembly of the Province of Córdoba, which in 1987 enshrined the principle of municipal autonomy in Arts. 180, 183 and concordants of the provincial Constititution

264 to the national Constitution. In other provinces, too, municipal charters have not been enacted, or only partially, even though they are empowered to do so. And in fiscal and administrative aspects, there are serious advances of the provincial powers over municipal financial resources and their policing powers. There is a marked dependence of local governments on provincial powers, in violation of constitutional norms, as we have also noted in relation to the provinces. That is why our proposal No. 13 is precisely “to strengthen the autonomy of the provinces, of the Autonomous City of Buenos Aires and of the municipalities”, because this is essential for Argentine federalism551.

2. 3. Similarities and differences

As we saw in Parts I and II, with respect to federal and provincial historical and constitutional aspects, similarities can be seen in the state structure of both federations that include local governments. One difference is that in the United States there is discussion as to whether local governments are part of the federation552, while in Ar- gentina this is clearer since the constitutional reform of 1994, which is why we maintained that there are four governmental orders in the Argentine federation.553 Variety and asymmetry are also common to these governments, with 50 local systems in the United States and 23 in Ar- gentina, since the respective state and provincial constitutions regulate these matters. The debate on the nature and institutional location of these local governments has also been similar as well as the struggle for municipal autonomy. The experience of the Home Rule Charter of the State of Missouri in 1875 was followed in Argentina in the constitutional reform of the province

551 See Hernández, La Ciudad Autonóma de Buenos Aires y el fortalecimiento del federalismo argentino, op. cit. 552 See Nugent, Op. cit., Ch. 1, footnote 37, p. 256-7. 553 See Hernandez, “Federalismo y Constitucionalismo Provincial”, Op. cit., Ch. 3.

265 of Santa Fe in 1921, which led to enacting the first municipal charters in the cities of Rosario and Santa Fe in 1933. There was also some influence of local government systems in terms ofeffi - cacy, such as government by committee and that of committee with city manager.554 On the other hand, there are noticeable differences in municipal autonomy in the provincial constitutions compared to the state constitutions, and especially in the respective federal constitutions. This difference began from the moment the original constitutional texts were adopted, since that of Philadelphia of 1787 did not mention local governments, while in Argentina in 1853, Art. 5 imposed the obligation on the provinces to ensure their respective municipal regimes. Madison555 himself, however, did refer to municipal legislatures in Federalist Nº 39, discussing the national or federal character of the Constitution and applying his concept of the division of popular sovereignty in various governmental orders. There he argued, “...local or municipal authorities form different and independent portions of the supremacy and are no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only and leaves to the several States a residuary and inviolable sovereignty over all other objects”. That demonstrates his clear opinion in favor of local governments, with exclusive powers and with the exercise of popular sovereignty, which must be respected by the other governmental orders. He would also reiterate this when referring to the Fede- ral District in its organization and the rights of its citizens, in

554 See Hernandez, “El régimen municipal cordobés”, op. cit. 555 Madison, Federalist Nº 39, The Federalist Papers, ed. Clinton Rossiter, 1961.

266 Federalist Nº 43556: “... as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them...”. For his part, Hamilton in Federalist Nº 32557, affirmed that: “(the) necessity of local administrations for local purposes, would be a complete barrier against the oppressive use such a power”. In the case of Argentina, as a result of the Constitutional Reform of 1994, the principle of municipal autonomy was incorporated into the constitutional text in Art. 123, as we have seen. Notwithstanding the great progress made in this matter by the most modern constitutional text of Argentina, there are still constitutional violations and the struggle for the full validity of that principle in the country must be continued.

Final reflections

The comparative analysis of the two federations shows similarities and differences, and answering the main question about the reasons for the different evolution and results of the institutions de- signed leads us to reflect first on the special complexity of constitutional transplants. We will mention some authoritative opinions from comparative law558 on this interesting question, paying specific attention to the countries of America and then to Argentina.

556 Madison, Federalist Nº 43, Op. cit. 557 Hamilton, Federalist Nº 32, Op. cit.. 558 See Alan Watson, Legal transplants: an approach to comparative law, 2nd Ed., 1993, uses a comparative analysis from private law. In constitutional law, see Barry Friedman & Cheryl Saunders, Symposium: Constitutional Borrowing, 1 Int·l J. Const. L. 177 (2003). The U.S. Constitution has had a broad and extensive influence in many continents and countries (Cf. Andrezj Rapaczynski, The influence of U.S. contitutionalism abroad, in the book Constitutionalism and rights: the influence of the United States Constitution abroad, Louis Henkin & Al- bert Rosenthal, eds., 1990, where the author mentions Europe, Latin America, Africa, Canada, Australia, India, Israel and Scandinavia). The issue is therefore of special interest in U.S. doctrine – see Notes 2, 3 and 4 in the article by Ro- berto Gargarella, Grafts and rejections: Political Radicalism and Constitutional

267 Roberto Gargarella in an acute article559 looks at the difficulties for transplants in America560, particularly in cases of incorporating institutions with a politically radical and egalitarian origin in contexts with a different, conservative/liberal genetics561. He analyzes the three constitutional traditions in America: conservative, radical, and liberal, in relation to the organization of power and to recognized individual rights.562 Following Garcia Moreno, he sees the objectives of the conservative tradition as linking political institutions with religious beliefs and allocating sufficient powers to the State to- main tain order against anarchy. He cites the Constitutions of Chile of 1823 and 1833, Colombia of 1843 and Ecuador of 1869 as examples of this 563. The radical tradition is the opposite of this in each of its aspects, for example defending the decentralization of power and the controls of the Congress over the powers of the President, as well as extending rights with social content. He places Hidalgo and Morelos, the leaders of the independence of Mexico, in that tradition, influenced by the French Jacobite Constitution of 1795564. The liberal tradition opposes both of these, with Madison declaring himself to be against tyranny and anarchy, emphasizing checks and balances, horizontal and vertical controls, separation

transplants in the Americas, 77 Rev. Jur. U.P.R. 507 (2008), p. 508. Gargarella, professor in the University of Buenos Aires, discusses the opinions of Justices Scalia and Breyer in “Printz” (1997), as well as articles by Lee Epstein & Jack Knight, Mark Tushnet, Bruce Ackerman, David Kennedy, Michel Rosenfeld, John Ferejohn, Jack Balkin & Sanford Levinson and Viktor Osyatinsky. 559 Roberto Gargarella, Grafts and rejections: Political Radicalism and Consti- tutional transplants in the Americas”, 77 Rev. Jur. U.P.R. 507 (2008). 560 Gargarella, Ibid, II. Grafts and rejections, pp. 509-10. 561 Ibid, p. 507-8. 562 Gargarella, ibíd, III. Three “bodies” of constitutional traditions in America, pp. 510 ff. 563 Ibid, pp. 511-2. 564 Ibid, p. 512.

268 of church and state and the defense of individual rights, as in the Philadelphia Constitution of 1787. He then analyzes the agreements between liberals and conservatives in the nineteenth century and mentions examples in several countries, such as Argentina in the Constitution of 1853, recognizing the freedom of religion in Article 14, but with the obligation of the state to support the Catholic Church in Art. 2565. He examines the radical policies and constitutional reforms in various countries of America in the twentieth century, which incorporated new political and social rights and institutions, although these have been frustrated attempts, unable to modify the reality of hyperpresidentialism, corruption, failure to exercise the institutes of participatory democracy and violation of social rights, showing the degree of inequality in our societies566. Nevertheless, Gargarella highlights as positive the incorporation of the Magistrates Council in Argentina by the 1994 Reform, despite being a institution transplanted from European experience567. He makes reflections and criticisms on the conditions and requirements for the effectiveness of transplants and constitutional reforms568. Keith Rosenn and Carlos F. Rosenkrantz are also skeptical about transplants. Rosenn explains the failure of Latin American constitutionalism in relation to its model as a consequence of the concentration of land ownership and the lack of experience in the exercise of government.569 Rosenkrantz, from a philosophical-po-

565 Ibid, p. 513 ff.: IV. A pact between liberals and conservatives, especially note 15 on p. 514. 566 Ibid, pp. VI. The reemergence of the radicalism: new waves of constitutional reforms in the Americas, pp. 520 ff. 567 Ibid, p. 524/5. 568 Ibid, pp. 524 ff.: VIII: “Conclusion: Grafts, transplants and rejections”. 569 Keith Rosenn, “The success of constitutionalism in the United States and its failure in Latin America: an explanation”, 22 U. Miami Inter-Am L. Rev. 1, 21/24 (1990).

269 litical perspective, argues that transplants are undesirable in this region, because of its cultural heterogeneity and the democratic ideal of self-government. He adds that abuses in this matter affect our constitutional culture570. In relation to Argentina, Jonathan Miller571 holds that the transplant in 1853 was successsful, because it enabled a great advance in the world context and that the model used influenced this572. But this was aided by Argentine operators, especially judicial operators in the Supreme Court, recognizing the authority of American constitutional practice, through judgments dictated until 1897.573 This was also the main issue in the debate between Alberdi and Sarmiento.574 Miller particularly notes Sarmiento’s opinion in Comentarios de la Constitución de la Confederación Argen- tina, of 1853, where he says that taking advantage of the U.S.

570 Carlos F. Rosenkrantz, “Against borrowing and non-authoritative use of foreign law”, 1 Int.Jnl. of Constitutional Law, 259/77 (2003). 571 Jonathan Miller, Professor at the Southwestern School of Law, in his article The authority of a foreign talisman: A study of U.S. constitutional practice as authority in ninetheenth century Argentina and the Argentine elite’s leap of faith, 46 American Law Review, 1483 (1997). 572 Ibid, pp. 1485-6 where Miller argues that the importance of the model that made possible such a great development, based on Alberdi’s vision, the debates between Alberdi and Sarmiento and the sanction of the National Constitution of 1853 with its 1860 Reform, has not been taken into account. He compares the economic performance of Argentina with the most developed countries of the world between 1880 and 1913, and then its further growth until 1930. As we have seen, 1930 was a turning point in our history, since this was a rupture of our constitutional order and the beginning of our decline.(Cf. Antonio María Hernández, Fortalezas y debilidades constitucionales. Una lectura crítica en el Bicentenario, op. cit.). 573 Ibid, pp. 1544-53, Miller explains that American jurisprudence was a talisman for the Argentine Court, and then describes the decline of this American influence between 1897 and 1930. Ibid., pp. 1561-7. 574 Ibid, pp. 1516-21. Cf. Part One of this chapter where we examined Argen- tina’s constitutional history. For a more detailed analysis of the thinking and debates of these historical figures and especially on the American model, see Natalio Botana, Un debate fundador-Estudio Preliminar, pp. 9-28 in the book Constitución y Política- Sarmiento-Alberdi, editorial Hydra, Buenos Aires, 2012.

270 experience would bring similar results for the constitutional organization and development of Argentina575. He highlights Alberdi’s opinion in Estudios de la Constitución de 1853, which appeared in response to Sarmiento’s book, where he opposed considering the Argentine Constitution as a simple copy of the American576. Miller believes that, although Alberdi may have been the winner of the debate when it took place in 1853, later the Constitutional Reform Convention of 1860 leaned toward the thesis of Sarmiento, who was also its main figure, giving greater authority to the American Constitution as our model.577 In the decades that followed until nearly the end of the nineteenth century, the authority of the United States Federal Constitution and the jurisprudence of its Supreme Court of Justice were decisive in our constitutional debates and in judgments of the Ar- gentine Supreme Court578. Thus the final winner of the debate with Alberdi was Sarmiento579. Miller considers that between 1897 and 1930 the influence of American practice in Argentine jurisprudence began to

575 Ibid, p. 1516. The author also mentions the opinions of Gorostiaga and Gutiérrez, original constituent delegates in 1853, which were similar, although without giving the degree of authority that Sarmiento granted to the American experience. Sarmiento especially defended the need to follow American jurisprudence for the interpretation of our Constitution, and this was rejected by Alberdi in their debate. Ibid., p.. 1546. 576 Miller, ibid, p. 1519. 577 Miller, ibid., p. 1524. Cf. Our analysis in Part 1 of this chapter of the Reform of 1860 and its corrections of the most centralist aspects of the original model of 1853, inspired by Alberdi. Miller states that the opinions of Mitre, Sarmiento and Vélez Sársfield at that time as members of the commission revising the 1853 text for the Province of Buenos Aires, were decisive for recognizing the authority of the U.S. Constitution as our constitutional model. Ibid, p. 1525. 578 Miller analyzes three very important judgments of the Argentine Supreme Court, in which it upheld the correctness of the transplant and the authority of the U.S. Constitution and its practice and jurisprudence in relation to the Argentine constitutional order. The cases were “De la Torre”, “Acevedo” and “Sojo”. Ibid, p. 1546 ff. 579 Miller, ibid, p. 1546.

271 decline.580 In his Conclusion, he questions Hegel’s rejection of external influences on the Constitution, given the development achieved by comparative law, and because cultures interact. He also mentions, as a current example from Argentina, what happened in the Constituent Assembly of 1994, which recognized the constitutional hierarchy of international human rights instruments, for the symbolic value of international law and the work of the United Nations.581 He concludes saying that sometimes in countries emerging from long periods of dictatorship “The life of the law in such a country often is not “logic” or “experience,” but faith”.582 Miller’s positive view of the transplants and influences in the original Argentine constitution contrasts with the opinion of Mitchell Gordon583, based on Hegel’s thinking584, that it is not possible to copy the major elements of a national constitution, as this

580 Miller, ibid, p. 1562. He cites the judgment in “Ferrocarril Central Argen- tino c. Provincia de Santa Fe”, Decision 68:227, of 1897, where the Court used the general welfare clause of Art. 67 Sec. 13 to authorize Congress to advance in matters affecting the provinces, such as tax exemptions granted to the rail- roads, that prevented the collection of provincial taxes. This was a question of strong incidence in Argentine federalism, in our opinion, in which the Argen- tine moved away from the U.S. model to favor the federal government, with a centralist focus, as we indicated earlier. 581 Miller, ibid, pp. 1568/9. 582 Miller, ibid, p. 1572. Mentioning the value of experience, he remembers Oliver Wendell Holmes’ phrase in The Common Law (1881): “The life of the law has been not logic: it has been experience”. 583 Mitchell Gordon, “Don’t copy me, Argentina: Constitutional borrowing and rhetorical type”, 8 Wash. U. Global Stud. L. Rev. 487 (2009). The author, Law Professor at the University of St. Thomas School of Law, Minneapolis, Minne- sota, like Miller, shows a profound knowledge of our history, carefully analyzing the thinking of Alberdi and Sarmiento, and agrees that the transplant was successful in Argentina. 584 “The constitution of any given nation depends in general on the character and development of its self-conciousness”. Georg Wilhelm Friedrich Hegel, Philosophy of Right, Oxford University Press (1953), cited by Gordon, ibid, p. 487, note 4.

272 eflects a national identity, national values and national aims. The functioning of a constitution thus depends essentially on the respective constitutional culture, which is part of the national culture and therefore collective participation is fundamental585. Gordon does not, however, fully share Hegel’s opinion about the logical impossibility of a successful copy, but takes a middle ground, under Rett Ludwikowski’s criterion that this challenge involves the constitutional delegate like a gardener choosing seedlings, implanting them “into living and constantly changing rules, norms and institutions, … blending together features produced by different tastes, cultures, and styles, but, in the process, making something genuinely new.”586 Horacio Spector has made an interesting contribution587, against skeptical opinions, affirning that the constitutional transplant made initially in Argentina was highty successful for the long period between 1860 and 1930, and that the failure occurred as a consequence of the military coup, and is not easily nor solely attributable to the origin of the Constitution.588 He also introduces the concept of the mutation effect of judicial precedents, characterized as “the process of continuing to extend the scope of a holding, regardless of its factual basis, to cover situations not even contemplated in the reasoning that grounded the original decision.”589 He analyzes in particular what happened with the use of the doctrine of economic emergency in relation to the expropriation of bank deposits, and demonstrates how the Argentine Supreme Court invoked precedents of the U.S. Supreme Court to create a new doctrine of emergency, that

585 Ibid, p. 515. 586 Ibid, p. 519. 587 Horacio Spector, Constitutional transplants and the mutation effect, 83 Chi-.Kent L. Rev. 129 (2008). Spector is professor and former Dean of Law of the Universidad Torcuato Di Tella, Buenos Aires. 588 Ibid, p. 130. 589 Ibid, p. 130.

273 was in no way contemplated by the transplanted precedent, nor by the National Constitution590. Pablo Riberi591 joined this debate arguing that the political powers in Argentina tried to transplant legitimacy by importing foreign laws and precedents, and that this process has been carried out in interpreting human rights without understanding the scope of legal solutions from other political and legal contexts. He says that the Supreme Court in its jurisprudence has not established a reasonable basis or doctrine on the use and abuse of legal copies, and he adds that our current constitutional agenda tends to adopt these transplants, not only from the jurisprudence of the U.S. Supreme Court but also from Euro- pean constitutional law, in relation to semipresidentialism or the possibility of establishing a Constitutional Court592. His acute analysis of legitimacy and transplants marks agreements and disagreements with the positions of Miller and Rosenkrantz.593 He also analyzes what happened in our country with the American

590 Spector explains that the Argentine Court in the case “Avico c. De la Pesa”, of 1934, concerning a legal moratorium on mortgage payments, accepted the precedent of “Blaisdell” of the U.S. Court, for a similar emergency situation. But with the first expropiation of bank deposits in 1989, there was the first mutation in the “Peralta” decision in 1990, when the Court also cited “Blaisdell” and “Avico”, for a very different situation. A second mutation arose when the same precedents were also used in the “Bustos” in 2004 and “Massa” in 2006, to justify the constitutionality of the emergency measures that established the “corralito”, an expropiation of bank deposits that produced an enormous popular reaction. Ibid, pp. 134-145. For a detailed analysis of the corralito and other emergencies, see our study Las emergencias y el orden constitucional, 2nd Ed., UNAM y Rubinzal-Culzoni, Méjico, 2003. 591 Pablo Riberi, A constitutional caveat: How much legitimate meaning comes along implementing legal transplants?”, Diritto Publico Comparato Europeo, 1-2013. Riberi is Adjunct Professor in my Law Department of the Universidad Nacional de Córdoba and has recently been appointed member of the executive committee of the International Association of Constitutional Law. 592 Ibid, pp. 103/4. 593 Ibid, pp. 104/7.

274 Constitution of 1787, recognizing the success of the transplant proposed by Alberdi. He makes justified criticisms of the jurisprudence of the Court and its institutional action during the presidencies from Menem through Kirchner. He ends by ad- mitting that copies and transplants are unavoidable nowadays, but warns that legitimacy rests on a reasonable reading of similar factual conditions.594 This complex problem in relation to our country, which has caused so much controversy and polemics since those of Al- berdi and Sarmiento, was updated by the debate held a few years ago by Professors Manuel García Mansilla and Ricardo Ramí- rez Calvo with Dardo Pérez Guilhou. The first two published the book Las Fuentes de la Constitución Nacional. Los principios fundamentales del derecho público argentino in 2006595, arguing that the main source of the Argentine Constitution was the U.S. Constitution, and they questioned the doctrinaire positions that tried to minimize this596. Pérez Guilhou based his critical opinion on the originality of the Argentine text and therefore relativized the influence of the Philadelphia Constitution.597 García Mansi- lla and Ramírez Calvo published another article in response598, which was answered by another by Pérez Guilhou599. Finally the Buenos Aires professors published their book La Constitución

594 Ibid, pp.. 107/114. 595 García Mansilla Manuel José & Ramírez Calvo Ricardo, published by Lexis Nexis, Buenos Aires. 596 Cf. Manuel José García Mansilla & Ricardo Ramírez Calvo, “La Consti- tución Nacional y la obsesión antinorteamericana”, Preface by Dr. Héctor A. Mairal, ed. Virtudes, Authors Prologue, XV. They give the example of Prof. Juan Carlos Cassagne as somebody who holds a mixed or juxtaposed origin of sources. Ibid, XVI, note 2, where they mention two of his articles on the subject. 597 Dardo Pérez Guilhou, “Las fuentes de la Constitución Nacional”, Suple- mento La Ley de Derecho Constitucional, March 15, 2007. 598 “Las fuentes de la Constitución Nacional y el pecado de disentir. De quijo- tes, cabalgatas y ladridos”, El Derecho, June 20 and 21, 2017. 599 “Las fuentes de la Constitución Nacional”, El Derecho, August 21, 2007.

275 Nacional y la obsesión antinorteamericana.600 Regardless of the marked bitterness of this debate601, we believe that it was still enriching, because greater deliberation and contrast of ideas is necessary in our university and academic contexts602. It is worth adding the authoritative opinion of Natalio Bo- tana603: “From the texts that Echeverria expounded in the Dogma Socialista... until the writings that Alberdi summarized in Bases y puntos de partida ... and Sarmiento published in Facundo ... that adventure of political imagination seemed to converge towards an omega point: a federal republic that rests on the legitimacy derived from the innovative role of institutions and from the more opaque and resistant work of experience and customs. Transplan- ting laws was simple: it was enough for an effective legal clerk to copy and translate legal systems from abroad (and there was, to a great extent, the U.S. Federal Constitution). Transplanting customs, on the other hand, was a much more ambitious challenge. Perhaps that enterprise, wrapped in an exultant imaginary out of proportion with the mundane reality from which it started, laid the bases of modern Argentina”. Throughout this chapter, we have looked in detail at the profound influence of the Philadelphia text on the Argentine Natio- nal Constitution, and at their similarities and differences. We also remarked on Alberdi’s thinking on federalism, and the three

600 Manuel José García Mansilla y Ricardo Ramírez Calvo, op. cit.. 601 See Juan M. Mocoroa, “Las fuentes de la Constitución Nacional como “fuente” de disputa (personal y no) académica”, Academia, Año 12, Nº 14, pp. 59/75. Mocoroa, of our Constitutional Law Department in Córdoba makes an interesting analysis of this debate. 602 During our recent experience in the New York State University at Buffalo, the manuscript of this chapter was submitted and then debated with the professors, December 7, 2017, which is the working model of this university. 603 Natalio Botana, “El federalismo liberal en Argentina: 1852-1930”, in the book, “Federalismos latinoamericanos: Méjico/Brasil/Argentina”, Marcello Carmagnani Coordinador, El Colegio de México y Fondo de Cultura Econó- mica, Méjico, 1993, p. 226..

276 normative models of federalism: in the original Constitution of 1853, in the Constitutional Reform of 1860 and in the Constitu- tional Reform of 1994, and looked at the debate between Alberdi and Sarmiento and the Constitutional Reform of 1866.604 It is also clear from the writings of various authors that the influence of U.S. constitutionalism was intense during the 19th century and started to decline in the 20th century, a process the continued until 1930. This date was also a point of inflexion in our history, as the military coup that overthrew President Irigo- yen involved a manifest decision to question the political philosophy of the National Constitution. The coup by General José Félix Uriburu had a marked fascist orientation, with a clear intent to abolish the democratic, republican and federal principles and values of the National Constitution. Mussolini had a very strong political and ideological influence in the country, in vast political, military, religious, union and even intellectual sectors. We have argued that the national decline started with the coup d’etat of 1930, which interrupted an extraordinary historical cycle in which Argentina reached its greatest significance on the world stage, shown in a variety of political, cultural, educational, economic and social indicators. As from 1930, a democracy steadily developed with a low institutional quality, characterized by “delegative democracy” and “corporativism” and by a hyper-presidentialism that has deeply affected the republican and federal principles of our political regime. This aggravated the most negative aspects of the law of internal discord, noted by Joaquín V. González, that we suffered

604 See Antonio María Hernández, “Federalismo y Constitucionalismo Pro- vincial”, op. cit., Ch. II, “El federalismo y sus orígenes”, pp. 27-46 and Ch. III, “El federalismo en la la reforma constitucional de 1994”, pp. 47/118. Ch. IV on “La autonomía municipal en la reforma constitucional de 1994”, pp.. 119/40 and Ch. V on “La Ciudad de Buenos Aires en la reforma constitucional de 1994”, pp.. 141/82.

277 many times in the 20th century and particularly through the extreme violence exercised between 1973 and 1983605. As for the influences that our constitutional law has had, which we consider unavoidable given the opinions mentioned earlier, we discussed these in a previous work, noting the American influence at federal level both in 1853 and in 1860 and later the Spanish influence in provincial constitutionalism of ththe 20 century606. In any case, and to conclude this point, our constitutional problems are more related to the deficiencies of constitutional culture and legality than to the design of the Constitution. We also agree with the warnings in the doctrine analyzed concerning the conditions required for transplanting institutions or jurisprudence. The second reflection is about the importance thatobservan - ce of the constitution and the laws has in a society. As we have seen, the reasons for the major differences in the evolution of both federalisms are found here, given that based on similar models, their development has been very different. In the United States, “the national Constitution is treated with veneration,”607and it has had

605 See our study Fortalezas y debilidades constitucionales. Una lectura crítica en el Bicentenario, op. cit. where we analyze the weaknesses including the current anomie; the problem of emergencies, starting from the interruptions of constitutional order; the hyper-presidentialism; the violations of the republican system and federalism; and the problems of violence and corruption. We explain that for this reason Art. 36, on the defense of constitutional and democratic order, was incorporated in the constitutional reform of 1994, citing our speech to this effect in the Constituent Assembly. See also two Surveys on Constitution- al Culture and Legality, which characterize an anomic society, op. cit., which we directed with Daniel Zovatto and Manuel Mora y Araujo en 2005 and with Daniel Zovatto and Eduardo Fidanza, in 2016. 606 See Antonio María Hernández, “Derecho Federal, sus implicancias prac- ticas”, edited by Walter Carnota, pub. Grun, Buenos Aires, January 2005, in which I wrote the chapter La influencia de la Constitución norteamericana en el federalismo argentino y de la Constitución española de 1978 en el constitucionalismo provincial. 607 Levinson, Constitutional Faith; Kammen, A machine that would go of itself, quoted by Gardner, Interpreting state Constitutions, op. cit, p. 241, Footnote12.

278 a very high degree of compliance, despite its antiquity and the difficulties for its reform. In Argentina, however, although there is high popular appraisal of the national Constitution, but there is general agreement about the lack of knowledge and violations of the Consti- tution through extensive periods of history. This is particularly marked in matters concerning the decentralization of power, because the Constitutional reform of 1994 modernized the text, compared to that of the United States, but it has not yet been possible to change the severe tendency to centralization we are suffering. It is essential to raise the level of the constitutional culture and legality in Argentina, as we proposed608, because this is one of the reasons of our underdevelopment. We are convinced that full and strict compliance with the Constitution and the Laws would produce profound changes in our country. The third reflection is about the value of the institutions. The great differences observed in Part II and Part III in the functioning of both federalisms indicate that respect and confidence in the institutions have had a decisive influence on the results achieved by both countries. In Argentina it is essential to focus on this aspect, to modify the decline that we have endured609, considering, for instance, the urgency to produce profound changes in the functioning of the powers, and especially of the judiciary, in both government orders, as well as strengthening political parties as fundamental instruments of constitutional democracy. Ace- moglu and Robinson have shown in their classic book Why nations fail? The origin of power, prosperity, and poverty610 how the value of institutions is decisive for the development of countries, which needs no further comment here.

608 Proposal Nº 1, “La Ciudad Autónoma de Buenos Aires y el fortalecimiento del federalismo argentino”, op. cit.. 609 See Rosendo Fraga, Ch. 4, “La cultura constitucional: clave de la baja calidad institucional”, in Hernández, Zovatto and Fidanza, “Segunda Encuesta de Cul- tura Constitutional. Argentina: una sociedad anómica”, Op. cit., pp. 119-127 610 Daron Acemoglu and James Robinson, New York, Crown Business, 2012.

279 The fourth reflection is about the supreme importance of education and in particular of democratic education. In Argentina, we reached a high level of development up to 1930, based on the great importance given to education by the founding fathers and especially Sarmiento, but in that year, the breaking of the rule of law began the process of our decline. The process of real change is linked to the importance that must be given to education and science, and in particular to democratic education,611and especially education on constitutional values612. To have “responsible citizens”, Norberto Bobbio posited a “call to values”613, firstly to the ideal of tolerance614, followed by that of non-violence615, of the gradual renewal of society through

611 See Antonio María Hernández, “Fortalezas y debilidades constitucionales. Una lectura crítica en el Bicentenario”, op. cit., 2012, and Hernández, Zovatto and Fidanza, op. cit. I pointed out the need of a democratic and civic education, based on the values and principles of our National Constitution, as enacted by Law Nº 25,863 in 2003, a project of the Argentine Association of Constitution- al Law when I was its president. Art. 1 of the law established May 1 as the Day of the National Constitution, and Art. 2 orders modifications to the curriculum at all levels of education to teach the Argentine Constitution. Unfortunately, the law has not yet been implemented, as befits our anomie. 612 The National Constitution Center in the City of Philadelphia was created by the Constitution Heritage Act in 1988 and inaugurated September 17, 2000. It is a non-partisan, non-profit-making institution, to disseminate the knowledge, awareness and relevance of the Constitution of the United States in the daily life of the country. For further information, see its webpage www.consti- tutioncenter.org. I was impressed by the use of the latest audiovisual techniques for civic education based on knowledge of the Constitution. The visit ends in the Hall of the Framers of Philadelphia, reproduced in real size. Also in Argen- tina, in the city of Santa Fe, which has been the seat of most of our National Constitutional Assemblies, on May 4, 2014, the first stage was inaugurated of what will be the Constitution Library Park. 613 Norberto Bobbio, “El futuro de la democracia”, Plaza & Janes, Barcelona, 1985, p. 48. 614 “If today there is a threat to the world’s peace, it comes once more from fanati- cism, or from the blind belief in truth and the force capable of imposing it. No need to give examples: we have them before our eyes.” (Norberto Bobbio, op. cit, p. 48). 615 “I have never forgotten the teaching of Karl Popper, that what essentially distinguishes a democratic government from a non-democratic one is the fact that only in the former can the citizens get rid of their rulers without bloodshed.

280 the free debate of ideas and the change of mentality and way of living616, and finally, the ideal of brotherhood (the Fraternité of the French Revolution)617. The fifth reflection is the importance of interdisciplinary analysis in matters of federalism. This methodology, as we have pointed out, is necessary to create a space for comparative studies, which enrich the national readings. The sixth and final reflection is on the values of federalism. The U.S. Supreme Court of Justice has noted as the values of federalism: “… decreasing the likelihood of federal tyranny, enhan- cing democratic rule by providing government that is closer to the people and allowing states to be laboratories for new ideas.”618 Chemerinsky agrees with Samuel Beer in adding three other values: “community self-determination,” “utility and efficiency” and “liberty,” which are also mentioned in Supreme Court rulings.619 The author argues the need for further development

The often ridiculed formal rules of democracy have introduced, for the first time in history, techniques of coexistence, the aim of which is to resolve social conflicts without resorting to violence. Only there are these rules respected, the adversary is not an enemy (who must be destroyed), but an opponent, who to- morrow may occupy our place”. (Norberto Bobbio, op. cit, p. 48). 616 “Only democracy allows the formation and expansion of silent revolutions, as has happened in recent decades with the transformation of the relationship between the sexes, which may be the greatest revolution of our times.” (Norber- to Bobbio, op. cit, p. 48-9). 617 “A great part of the story is made up of fratricidal struggles. In his Philoso- phy of History, Hegel defines history as an “immense slaughterhouse.” Can we contradict him? In no country in the world can a democratic regime endure without becoming a custom. But can it become a custom without recognition of the brotherhood that unites all humans in a common destiny? This recognition is even more necessary today, in which every day we become more aware of this common destiny, and therefore, guided by the dim light of reason that illu- minates our way, we must act accordingly.” (Norberto Bobbio, op. cit., p. 49). 618 “Gregory”, 501, U.S., 458, quoted by Erwin Chemerinsky, “The values of federalism”, 47, Florida Law Review, 499-540 (1995). Larry Kramer recalls Jus- tice Brennan’s famous phrase on state and local governments as “laboratories of democracy”, in “New State Ice Co v. Liebmann”, 285 U.S. 262, 311 (1932), in “Understanding Federalism”, op. cit., p. 1499, footnote 26. 619 See Chemerinsky, ibid, pp. 536-8.

281 of this subject in the jurisprudence of the Supreme Court, and writes: “Finally, federalism needs to be reconceptualized as being primarily about empowering varying levels of government and much less about limiting government. A key advantage of having multiple levels of government is the availability of alternative actors to solve important problems ... In other words, the greatest beauty of federalism is its redundancy: multiple levels of government over the same territory and population, each with the ability to act.”620 We can add the value of comity seen in the jurisprudence of the U.S. Supreme Court of Justice621, which is very important for the proper functioning of the federations, since it is necessary to respect the values of union and of diversity, as fundamental objectives of this form of state and government622. We have argued that federalism is philosophically linked to the values of the republic, democracy and constitutionalism.623 We remember Madison’s idea, seen in the Federalist Papers Nº 10 and 51, on the significance of the federal republic as a double guarantee for the freedom and rights of citizens, as one the one hand, it limits power by checks between the various orders of government and hinders the danger of factions, and on the other, it broadens popular participation in the different spheres of government: federal and state.624 We believe that these fundamental values, enshrined in the respective Constitutions we have examined, require a renewed commitment to a permanent “Struggle for Law” (Von Jhering), especially in Argentina.

620 See Chemerinsky, ibid., p. 538. 621 As in “Younger”, as we have mentioned above in the analysis of the role of the U.S. Supreme Court of Justice. 622 See Hernández, ch. 1 “Federal Political systems”, in “Federalismo y constitucionalismo provincial”, op. cit. 623 See Hernandez, ibid., Ch. 1 624 See Madison, “The Federalist Papers”, ob. cit., Federalist Nº 10 and 51.

282 CHAPTER III COMPARATIVE CONSTITUTIONAL VIEW OF THE ARGENTINE AND MEXICAN FEDERATIONS1

1. Introduction

I would like to take a comparative view of the constitutional history of both federations, first synthetically analyzing their respective processes from Independence to the present day, and then pointing out the similarities between the two federations. Through their respective Constitutions, of Argentina in 1853, with the enactment of the national constitution still in force, and of Mexico in 1917, both countries established the same representative, republican, and presidential form of government and the same federal form of state. In addition, both countries have seen a very conflictual historical process to define the form of government – because of the confrontation especially between republicans and monarchists - and the form of state – between unitarians or centralists and federalists. In relation to the federalism of the two countries, there are also coincidences concerning the reasons for its adoption and a shared US model. There is also a common tendency toward centralization in both Federations. Both countries have also suffered the phenomenon of hyper-presidentialism, within the framework of a weak constitutional and legal culture.

1 This Chapter was presented at the Ibero-American Congress of Constitution- al Law in the City of Mexico in 2017, in press, and we have omitted some points on Argentina, to avoid repetition.

283 Finally, there are some marked differences in the constitutional reform system, which is of particular significance and importance, in the effects of the amparo on the federal system, as well as in their respective federal constitutional texts, particularly with regard to the decentralization of power.

2. A brief analysis of Mexico’s constitutional history2

Fix Zamudio and Valencia Carmona3 - who we will follow here - have pointed out 3 main historical stages of Mexican constitutionalism: the struggles for Independence, with the Constitutions of Cadiz and Apatzingán of 1812 and 1814 respectively; the controversy between federalists and centralists, with the Constitutions of 1824, 1836, 1843 and 1857 and the 1910 Revolution, which originated the 1917 Constitution, which has been in force for more than 90 years. In Mexico as well as in Argentina and other Latin Ameri- can countries, which were colonies of the Spanish Empire, there were heroic struggles for independence. It was an extraordinary historical process, whose outstanding figures were Francisco de Miranda, the forerunner, as well as the Liberators Simon Bolivar and José de San Martín, who managed to end the military power of the empire only in 1824, at the Battle of Ayacucho. In Mexico, two personalities stand out, Miguel Hidalgo y Costilla and José

2 In the history until the enactment of the Constitution of 1917, we follow our study Reflexiones sobre la historia constitucional de las federaciones mexicana y argentina (con motivo del 100 aniversario de la Constitución de Querétaro de 1917 [Reflections on the constitutional history of the Mexican and Argentine federations (on the occasion of the 100th anniversary of the Constitution of Querétaro of 1917)] , in the 3-volume work, “Fuentes históricas de la Consti- tución de 1917, César Camacho (general coordinator) and Jorge Fernández Ruiz (academic coordinator), MAPorrúa, Mexico, 2016, pp. 439 ff. 3 Héctor Fix Zamudio & Salvador Valencia Carmona, Derecho constitucional mexicano y comparado, Editorial Porrúa, 6th ed., Mexico, 2009.

284 María Morelos, who gave their lives for independence. In both countries, the revolution involved military action to end colonial power and, at the same time, a formidable struggle to lay the foundations of national states, which necessarily involved constitutional legal debates and constituent processes.

2.1 The stage of Independence

In that first stage of Mexican Independence, according to these authors4, the first constitutional antecedent was the Constitution of Cadiz of 1812. This text established the exercise of national sovereignty, a moderate hereditary monarchy, giving great power to the Courts, with division of powers and recognition of rights, which made the document especially important as a particular expression of classic liberal constitutionalism. It had a complicated duration of just six and a half years in Spain, as King Ferdinand VII annulled it in 1814, restored it in 1820, and then eliminated it in 1823, and then it had another year of validity between 1836 and 1837, but the Constitution of Cadiz would have important influence in Europe and America, and Mirkine Guetzevich considered it a pattern of nineteenth-century liberalism.5 This Constitution was the origin of Spanish constitutionalism and the response to the Bayonne Statute of 1808, imposed by Napoleon on the peninsula, as he had done in other European countries. The influence of the French Revolution, its Constitu- tion of 1791 and of thinkers such as Rousseau and Montesquieu, is evident in its writing. The most important representative of this liberal political philosophical origin of the text of Cadiz was the jurist Agustín de Arguelles, perhaps the most prominent delegate of the Constituent Assembly.

4 Fix Zamudio & Valencia Carmona, op. cit., p. 80. 5 Cf. Luis Sánchez Agesta, “Orígenes, evolución y crisis del régimen constitucional” Madrid, 1974. p. 35 and “Historia del Constitucionalismo Español”. Ma- drid 1964. p. 5

285 One particular feature was the participation of some sixty American deputies out of a total of three hundred in the assembly, at which the Mexicans, Miguel Ramos Arizpe and José Miguel Guridi y Alcocer, stood out for the quality of their interventions.6 This Constitution was promulgated in Mexico by Viceroy Fran- cisco Javier Venegas in September 1812, when an authorized copy arrived in Veracruz. But not all the future American countries participated in the deliberations. Alberto Dalla Via7, following Levaggi, says “that, in 1812, there were three different political situations in America: territories that remained peacefully held by Spain or that had been submitted after revolting (Lima, Mexico, Cuba, Central America, Venezuela); territories at war, with triumphs and defeats on both sides (Quito, Alto Peru, Salta del Tucumán, Banda Oriental); and territories with aspirations to self-government, governed by national juntas (Buenos Aires, Paraguay, New Granada, Chile), so this influenced the relationship between the respective populations and the Constitution.” Not only did no representatives of our Viceroyalty of the Rio de la Plata participate in the work, but neither did it have any validity there, as it was rejected by the revolutionary forces8. What is discussed in our constitutional history is the degree of its influence. Alberto Dalla Via and Jorge Reinaldo Vanossi held different positions 9. The former supports the opinion of those

6 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., p. 81. 7 Cf. Dalla Via, A. (2009). La Constitución de Cádiz de 1812: un antecedente indirecto de la Constitución Nacional Argentina, in “La Constitución de Cádiz de 1812 como antecedente constitucional argentino”, presented by Alberto Da- lla Via and Jorge Reinaldo Vanossi at the meeting of the Academia Nacional de Ciencias Morales y Políticas of Buenos Aires on July 23, 2008, which can be seen in its webpage and was published in the Anales of the Academia in the same year. 8 The sole exception was the Cabildo de Salta, which accepted it in the session of January 9, 1813 and it was sworn in the Plaza Mayor on January 30 of that year. But after the triumph of General Manuel Belgrano in the Battle of Salta, on February 20, 1813, it was abandoned (see Alberto Dalla Via, op. cit.). 9 See “La Constitución de Cádiz de 1812 como antecedente constitucional argentino”, op. cit.

286 who see an appreciable degree of influence of that Constitution in our antecedents, especially in the Assembly of 1813 and the unitarian constitutions of 1819 and 1826 and thus in the national Constitution of 1853 itself, incorporating several of its institutions. He comments, “But the most important figure, adopted from the Constitution of Cadiz, is the Ministry, which will pass on, through the Constitutions of 1819 and 1826, to that of 1853, giving particular characteristics to our constitutionalism. As the dean of Argentine constitutionalists, Segundo V. Linares Quintana, has pointed out, it is in the ministerial institution and in the relations between the executive and the legislative bodies that the Constitution of Cadiz decisively influenced the Argen- tine Constitution, which, while inspired by the US presidential system at this point, was significantly changed by this model.”10 Jorge Reinaldo Vanossi, however, argues that the influence of this Constitution was quite relative and second-hand and that it did not reach the National Constitution of 185311. The other antecedent of the Independence period in Mexi- co, the Constitution of Apatzingán of 1814, officially held the title of “Constitutional Decree for the Freedom of Mexican America” and was the exclusive work of the patriots, who put the proposals into effect in the constitutional documents of Rayón and in the Sentimientos de la Nación by José María Morelos.12 This instrument was the work of the Chilpancingo group, composed of Mo- relos, Bustamante, Quintana Roo, Herrera, Rayón and Liceaga, which shows “the close approach to Rousseau and which for its uniformity of thought must be treated as a doctrinal unit”.13 The

10 Alberto Dalla Via, op. cit. 11 Cf. “La Constitución de Cádiz de 1812 y su influencia en el constitucionalismo argentino”, op. cit. He considers that it only influenced the antecedents mentioned until the Constitution of 1826. 12 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., p. 81. 13 Cf. Héctor Fix Zamudio & Salvador Valencia Carmona, op. cit., p. 81, where they recall José Miranda’s ideas in, “Vida colonial y albores de la Independencia”.

287 text established a division of powers, but with clear predominance of Congress, which was vested with the greatest powers even in matters of international relations and appointments. The Execu- tive Branch itself was of 3 members all appointed by Congress, as well as the Supreme Court of Justice, of 5 members.14

2.2 The stage of the federalist and centralist constitutions

In Mexico as in Argentina, the first major topic of debate on the political formulas of constitutions was between republicans and monarchists about the form of government. In Mexico, there were strong defenders of the monarchy, such as Iturbide and the so-called “borbonistas” who sought the reinstatement of the Spanish dynasty. In the Iguala Plan of 1821, later modified by the Treaties of Cordoba of the same year, a “temperate monarchical government” was established, and that the Courts should draft the Constitution of the Mexican Empire. In the meantime, Agustín de Iturbide assumed the executive branch, and, after the installation of the First Constituent Congress on February 24, 1822, which ratified the monarchical regime, he made himself Emperor. After dissolving the Congress on October 31, he made the Natio- nal Institutional Junta enact the Provisional Political Regulation of the Mexican Empire but was forced to reinstall Congress in early March 1823, before which he finally abdicated on March 19, under pressure from the Plan de Casa Mata which had become known throughout the country.15 That First Constituent Congress continued its deliberations until October 30 of that year, annulling the acts of the Empire, designating a Triumvirate for the Executive Power (Vic- toria, Bravo and Negrete) and formulating the “Congressional

14 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., pp. 81-2. 15 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., pp. 82-83.

288 Vote”, in favor of a republican federal formula, which had to be ratified by a new Congress.16 Fix Zamudio and Valencia Carmona stress the quality of the deliberations of this Second Constituent Congress in which Ramos Arizpe, de Zavala, Gómez Farías, Morales, Rejón and Covarru- bias stood out among the federalists and Espinoza, Bustamante, Becerra, Manguino and Fray Servando Teresa de Mier among the centralists. Dated January 31, 1824, the Constitutional Act of the Federation was approved, on the basis of Ramos Arizpe’s project. Subsequently a presidential regime was adopted, when the Consti- tution of October 1824 was sanctioned, with a president elected by the majority of the votes of the Legislatures of the federal entities, with a term of 4 years, and could be re-elected the fourth year after finishing their period of office.17 This first federalist antecedent was continued by two which were centralist in character: the Cons- titutions of 1836 and 1843. The conservatives achieved a majority in the 1835 election and transformed the Legislative Power into Constituent and sanctioned the Constitutional Bases Act, establishing a form of centralist government in December of that year. The subsequent Consti- tution of 1836 was composed of 7 Statutes or Laws, which regulated the rights and obligations of the inhabitants, the supreme conservative power, the legislative branch, the executive branch, the judiciary, the division of the territory of the Republic and the local government of its towns. These laws remained for only five years, till the Plan of Tacubaya in 1841 annulled the supreme powers and convened another Constituent Congress. This Congress of 1842 did not complete its work, but saw three reform projects, which did not define precisely the form of state. Mariano Otero participated in one of these projects.18

16 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., p. 83. 17 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., p. 84-85. 18 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., pp. 86-87. Otero would later participate in the Constituent Congress of 1846 where he

289 The Congress was dissolved in December of that year by the decision of Santa Anna, through President Nicolás Bravo, who appointed 80 notables instead as a National Legislative Junta, which drafted a new constitutional text, designated as Organic Bases, promulgated on June 12, 1843. This was a centralist instrument, with the president appointing the governors of the departments, with an aristocratic and corporate Congress, as an expression of constitutional despotism.19 Fortunately, it had a very short lifespan. A new Congress of 1846 and 1847 had distinguished politicians and jurists such as Espinosa de los Monteros, Otero, Rejón, Cardoso and Zubieta in its Constitution Commission, who voted divided, as the majority held that the legitimate Constitution was that of 1824, but in the face of the advance of the American army which had invaded Mexico, any reforms should be left for the future, while the minority with the extensive particular vote of Ma- riano Otero, insisted on the need to produce reforms to the text of 1824. This Congress approved the Constitutive and Reform Act of 1847, based on the Vote of Otero, which was especially significant since, for the first time, the amparo was incorporated into the Federal Constitution as a judicial procedure for the review of constitutionality.20 It also introduced reforms to the electoral system, in rights, in impeachment and constitutional reform, and in the declaration of unconstitutionality of federal and local laws by Congress and state legislatures. Later, there was the last dictatorship of Santa Anna and the Revolution of Ayutla against it, led by Juan Alvarez, who convened a new Congress. The new Constituent Assembly of 1856 and 1857 was made up of a remarkable generation of lawyers who presented a sketch of the amparo trial, which he called a “constitutional claim”. (Cf. p. 87and note 39). 19 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., p. 87. 20 Cf. Héctor Fix-Zamudio & Salvador Valencia Carmona, op. cit., p. 89. The amparo had already reached constitutional level in the State of Yucatan in 1841, with the authorship of Manuel Crescencio Rejón.

290 definitively organized the country, in the opinion of Fix Zamudio and Valencia Carmona.21 That “reform generation” was composed of Ponciano Arria- ga, Ignacio Ramírez, José María del Castillo Velasco, Ocampo, Gó- mez Farías, Guzmán, Prieto and the young ones, Ignacio Vallarta, Vicente Riva Palacio and Francisco Zarco, who were liberals. On the conservative side were Arrizcorreta, Díaz González, De la Fuen- te, Barragán and Castañeda and, on the moderate liberal side, the interim President of the Republic, Ignacio Comonfort, and several of his ministers. The Constitution Commission was dominated by pure liberals and chaired by Ponciano Arriaga, who presented the Draft Constitution on June 16, after 4 months of deliberations. The new Constitution of 1857 was approved on February 5 and enshrined human rights, popular sovereignty, the unicameral system, the amparo trial, the ratification of the form of federal state and of representative, republican and democratic government, and the rules for de-linking the autonomy of the states from the federation.22 Although this Constitution was an expression of classical liberalism, there were particular votes of Arriaga on property and Olivera on social issues, as well as of Vallarta on industrial property, which would later influence the text of 1917, precursor of social constitutionalism. But before reaching the current text, it was amended by incorporating the principles of the reform laws (1873), the restoration of the Senate and the presidential veto (1874), state tax issues (1894), in addition to the vicissitudes of the dictatorship of Porfirio Díaz and the prior French invasion and the empire of Maximilian.

2.3 The 1917 Constitution

The third stage is that of the Revolution of 1910 and of its work, the Constitution of Queretaro of 1917. It has been said that Venustiano

21 Op. cit., p. 89. 22 Cf. Fix Zamudio & Valencia Carmona, op. cit., pp. 90-91.

291 Carranza did not intend to sanction a new Constitution and that this was not mentioned in the brief Plan of Guadalupe of March 26, 1913. But in the additions made to this in 1814, in point 5, it was already established that it was necessary to elevate the reforms made into constitutional principles. After electing delegates for the Constituent Congress, the sessions were inaugurated by Ca- rranza on November 1, 1916 with his message and the delivery of the draft reformed Constitution, which proposed reforms to the text of 1857. In the arduous discussions, 3 groups formed: (a) the radical current, which had the sympathy of Obregón, with Mujica, Jara, Medina, Colunga, Monzón, Recio, Aguirre Berlan- ga and Baca Calderón, promoting social constitutionalism; b) the reform group, close to Carranza, with Macías, Rojas, Palavicini and Cravioto, to whom the writing of the draft Constitution was attributed and (c) the moderate legislators. The single period of sessions ended on January 31, 1917 and the new Constitution was promulgated on February 5. “The main decisions that were taken by the Constituent As- sembly of Querétaro, were the following” according to Fix Zamu- dio and Valencia Carmona23, “a) popular sovereignty, established in Art. 49, which determines that the people are the holders of this power. b) the federal form for the organization of the state and a form of government that must be republican, democratic and representative, as indicated in Article 40. c) the division of public powers, which is established both at federation and at state level, as required by Arts. 49 and 16. d) human rights, called individual guarantees, to which the first chapter of the Constitution is devoted; e) social rights, to protect the collective interest or that of certain groups important to society, in Arts. 3, 27 and 123. f) the separation of church and state, regulated in Art. 130; g) constitutional control, embodied in the incorporation of the amparo and other means of constitutional defense, in Arts. 97, 103 and 105”.

23 Op. cit., p. 94.

292 The authors add, “Some of these decisions provoked hea- ted debates, particularly those referring to social constitutionalism; constituent deputies, on several issues of critical importance to the country, went much further than Carranza’s draft, as the precepts they approved concerning teaching, work, land and the religious issue marked the new Constitution with their new progressive profile.”24 We particularly highlight the two extraordinary contributions of Mexican constitutionalism to the concert of world comparative constitutionalism: social constitutionalism and the amparo. Indeed, constitutionalism has had 3 major stages: a) classic or liberal constitutionalism, b) social constitutionalism, and c) the current constitutionalism of the internationalization of human rights. Mexico must be recognized for having produced the transition from the first classical or liberal constitutionalism to social constitutionalism, which begins with the 1917 Constitution of Queretaro, the federal constitution still in force. That Constitu- tion, whose centenary we are celebrating, was the fruit of another extraordinary political event: the Mexican Revolution of 1910, with its remarkable and almost mythical political figures, Francis- co Madero, Pancho Villa and Emiliano Zapata.

2.4 Centralized federalism, hyper-presidentialism25, constitutional amendments and anomie

Emilio O. Rabasa26 considered that, “The men of Querétaro, in 1917, would repeat the assurance that Mexico would be a “representative, democratic, federal republic, composed of free and sovereign states in all aspects of their internal regime, but united in

24 Fix Zamudio & Valencia Carmona, op. cit., p. 94. 25 We analyze this concept later, when looking at the Argentine case. 26 “La línea quebrada: el federalismo en México”, in the book “Derecho Cons- titucional Estatal”, Francisco José de Andrea Sánchez, coordinator, UNAM, México, 2001, p. 532.

293 a federation established according to the principles of the constitution.” “The previous rapid brushstrokes indicate the origin and installation, albeit variable, of federalism in Mexico within the constitutions. The context of the constitution was, and is, asssu- red. However, this was not the case in the historical development; again, the line was broken, given what was ideally required by the constitution and what emerged in the harsh reality. Federalism in the rule, centralism in practice”. As for hyper-presidentialism, Rabasa said27: “It is true that we transcribed the presidential regime from the United States and imposed it in our constitutional structure. It is not true that we ordered presidential dominance. Historically considered, since Independence and from 1833 (first presidency of Santa Anna) until 1911 (the last of Díaz), the biographies of three Presidents – Antonio López de Santa Anna, Benito Juárez and Porfirio Díaz - cover the history of Mexico for almost the entire 19th and early 20th century. History would deny, and continued to deny, what the constitutions, all of them, wrote as a core principle: the division and balance of powers. All Mexico’s supreme laws incorporated Montesquieu’s formula of the division of powers, but also, from its imitation of the American Constitution, the federalist system. If they are sent carefully and the two formulas are put together, the so-called “federal cross” appears: horizontally, the division of powers into legislative, executive and judicial (Art. 49 of the current Constitution) and the vertical line, composed of the three orders of government – federation, states (Art. 41), and municipalities – (current Arts. 115 and 116). The breaking of the constitutional balance, that is, of the vertical line peculiar to federalism, gave rise, in the field of reality, to its opposite, centralism- authoritarianism, symbolized by the undisputed dominance of the president of the republic, both with respect to the other two federal powers, as well as to states and municipalities.”

27 “La línea quebrada: el federalismo en México”, in op. cit., p. 532-3.

294 The author28 pointed out that the constitutional amendments to Article 89 on the powers of the president reached the number of eleven, while those on the legislative power in Arti- cle 73 reached forty-one, but this did not produce a balance of powers. This would be brought about – as Rabasa anticipated – by political changes, which began in 2000, with the defeat of the PRI, which had governed for more than 70 years with marked hyper-presidentialism - and the triumph of President Vicente Fox, which brought significant changes to the constitutional system, as there was a strengthening of Congress and of the independence of the Supreme Court of Justice. Later Rabasa29 declared that the “line of federalism is broken both in the constitutions and in reality” and stated: “Contrary to what is often thought, I believe that the more the federation legis- lates about the states, through the so-called “new federalism” and through repeated changes to constitutional Arts. 115 and 116, the less the federal scheme is complied with. The federal pact is violated from and through the federal pact itself. It is the states themselves - through a great and sublime act – their constitution, that must make genuine use of their sovereignty. Sovereignty remains, above all, self-determination and self-determination is called the constitution.” After these general reflections by Rabasa, it is useful to dwell on the thinking of José María Serna de la Garza, who has specifically studied the centralizing logic of the Mexican federal system30. First, the author describes the characteristics of federalism in the light of the 1917 Constitution, based on that of 1857, and its reforms, as follows: “... it establishes a federal system based on states

28 Emilio O. Rabasa, op. cit., p. 533. 29 Op. cit., p. 534. 30 José María Serna de la Garza, “La lógica descentralizadora del sistema federal mexicano”, in the book “Federalismo y regionalismo”, Diego Valadés & José María Serna de la Garza, coordinators, Universidad Nacional Autónoma de México and Tribunal Superior de Justicia del Estado de Puebla, México, 2005.

295 and a Federal District (seat of the federal branches). States enjoy a regime of autonomy defined in terms of freedom and sovereignty in all that concerns their internal regime; as a sign of this autonomy, each state has the power to establish its own governing bodies: executive, legislative and judicial (within the limits set by the General Constitution, in particular Art. 116). In addition, the system of distribution of powers is based on a residual clause in favor of the states (Art. 124. “The powers not expressly granted by this constitution to federal officials are understood to be reserved to the states”). The current Constitution also provides for a bicameral federal legislative power, with a Chamber of Deputies and the Senate. The 1917 Constitution also provides for a one-person Fe- deral Executive, elected by universal direct suffrage, and a Federal Judiciary composed of a Supreme Court of Justice, circuit courts and district courts. Finally, the 1917 Constitution establishes, for the first time in Mexican constitutionalism, a specific -constitu tional basis for municipal organization (Art. 115).” “Mexico currently has 31 states and a Federal District. The 31 States all have the same nature and the same constitutional status. The Federal District has its own constitutional status, distinct from that of the states31. There are also 2,429 municipalities, whose constitutional configuration is the same for all, even though their social, economic and cultural reality is extremely diverse.”32 Then the author discusses the phenomenon of hyper-presidentialism and the logic of centralization, through four institutes: the distribution of powers, collaborative relations, fiscal federalism and the power to sign international treaties, for which “novel formulas should be devised to get out of that logic, in order to enter into a dynamic that allows the states and municipalities of Mexico to be vitalized.”33

31 The former Federal District is now called Mexico City and is a state which has enacted its own constitution. 32 Jose María Serna de la Garza, op. cit., p. 548. 33 Jose María Serna de la Garza, op. cit., p. 549.

296 With regard to the distribution of powers, the constitutional rule is that of Art. 124, which prescribes a rigid system typical of a dual federalism, based on residual powers for the states and those expressly delegated for the federal government, as indicated by the author34. But, agreeing with Jorge Carpizo, he indicates that the system is much more complicated, “since the Consti- tution itself establishes a series of rules of attribution that define powers, as follows: powers conferred on the Federation, powers conferred expressly or tacitly to the federative entities, powers prohibited to the Federation, powers prohibited to the federal entities both absolutely (art. 117) and relatively (art. 118), mat- ching powers, coexisting powers, aid faculties and finally, the powers derived from the jurisprudence of the Supreme Court of Justice of the Nation”. Serna de la Garza concludes that “... the Constitution has conferred very few matters to states. This is because the Union Congress has exclusive powers to legislate on a disproportionate number of matters, leaving the federal entities very few areas over which they can exercise their legislative powers. The bulk of the matters on which the Congress of the Federal Union has legislative powers is found in Article 73 of the Constitution (composed of 30 sections), but other articles also confer powers on Congress to legislate, such as Art. 26 (on national development planning), Art. 27 (on agricultural matters and exploitation of subsoil resources, among others), or Article 28 (on monopolies, price control and consumer protection).”35 The author then examines the decentralization laws enacted by Congress such as General Laws of Human Settlements, Health, Education and Ecological Balance and Environmental Protection, inscribed in the centralizing logic indicated. He therefore emphasizes the need to establish more clearly a federalism

34 José María Serna de la Garza, op. cit., pp. 550-1. 35 Op. cit., p. 552.

297 of coordination, to coexist with the principle of Art. 124 in the distribution of powers and so that progress can be made in a process of gradual and selective decentralization. He indicates that in the future this technique of framework laws may be used, but on the basis of the appropriate criteria he proposes for transfers of powers to the states. He also advocates a strengthening of the federal role of the Senate and of the National Conference of Governors.36 As for the scheme of intergovernmental relations, Serna de la Garza states that the Constitution “establishes a system,… visi- bly vertical and tenuously horizontal”37. He highlights framework laws and agreements between the various state levels as tools38 and argues: “Intergovernmental relations have become more important in the real practice of Mexican federalism, and have made it possible to make the formal distribution of powers rather more flexible, which, according to the wording of constitutional Art. 124 (residual powers in favor of the federative entities), is quite rigid. However, the bulk of intergovernmental relations occur with the intervention and under the direction of the federation, and little or nothing occurs in the form of horizontal relations.” He then mentions as examples the National Council of Public Security, the National Council for Civil Protection, the Natio- nal Commission for Physical Culture and Sport and the General Laws of Education, Health and on conurbations39. He indicates that inter-municipal conventions are hampered by the need for

36 See op. cit., pp. 553-8. We also postulate these criteria for the strengthening of Argentine federalism, as will be seen below. 37 Cf. op. cit., p. 558. 38 For a more detailed study of the conventions, see Jose María Serna de la Gar- za, “Descentralización vía convenios: la experiencia mejicana” in “Cuaderno de Federalismo” of the Instituto de Federalismo de la Academia Nacional de Derecho y Ciencias Sociales de Córdoba, Antonio María Hernández, Director, XXV, Córdoba, 2012, pp. 209 ff. Also the web version: www.acaderc.org.ar, in Instituto de Federalismo. 39 See op. cit., pp. 559-63

298 legislative authorization from the respective States.40 That is why he argues the need for a constitutional reform of Sec. I of Art. 117 of the Constitution that prohibits states from “concluding alliance, treaty or coalition with another state” in order to enhan- ce intergovernmental relations41. With regard to the crucial theme of fiscal federalism, Serna de la Garza states that the Constitution did not establish a clear and precise delimitation of the tax powers of the federation and the states, since on the precedent of 1857, “concurrence” between them was enshrined. As Flores Zavala, Sergio de la Garza and Jor- ge Carpizo and the Supreme Court’s own jurisprudence have argued, this meant the recognition of unlimited concurrent powers by the Union Congress, which led to a strong centralization of resources in the Federal Government.42 This resulted in the phenomenon of double or triple taxation, considered in the National Tax Conventions of 1925, 1933 and 1947, which subsequently gave rise to the National Fiscal Coordination System, which is one of tax co-participation. Accordingly, through the conventions signed by all the states, the Federation receives and administers the most important taxes, income and value added, resulting in more than 80% of public resources being held by the Federal Government, “which is an indicator of the degree of financial dependence of states and municipalities...”, as Serna de la Garza states43.

40 Op. cit., p. 563. Here we see another difference with the Argentine municipal regime, which has clearly enshrined municipal autonomy and a broad possibility of intermunicipal and interjurisdictional relations. See our work “Derecho Municipal”, UNAM, Mexico, 2003. 41 Op. cit., p. 564. Here too there is a difference with our National Consti- tution, as will be seen later in the light of the modernization that took place in great constitutional reform of 1994, which had as one of its core ideas the strengthening of Argentine federalism. 42 Op. cit. 565-7. 43 Op. cit., p. 568. These figures are similar to those of the Argentine Federation and serve to confirm the real fiscal unitarianism that both Federations suffer.

299 This Coordination System provides for the formation of several sharable funds such as the General Participation Fund, consisting of 20% of the sharable federal collection. This fund is distributed as follows: “I. 45.17% of the same, in direct proportion to the number of inhabitants that each entity has in the financial year concerned. II. 45.17% in terms of a coefficient that takes into account the collection efficiency of each state, rewarding those who raise the most. III. The remaining 9.66% shall be distributed in inverse proportion to the shares per inhabitant held by each state and these are the result of the sum of the shares referred to in Numbers I and II in the corresponding financial year (countervailing criterion)”.44 The Municipal Development Fund consists of “a fraction of 1% of the sharable federal collection, which corresponds to the municipalities of the country and distributed according to the formula of Article 2-a, section III of the Fiscal Coordination Act”45. The Fiscal Coordination Law also provides for a Fund of contributions for basic and normal education, health, social infrastructure, strengthening of municipalities and territorial de- marcations of Mexico City, multiple contributions, technological education and the public safety of the states and Mexico City. These contributions are conditioned by the Federal Government and finally audited by the Superior Audit Office of the Federation of the Chamber of Deputies of the Congress of the Union46. Therefore, Serna de la Garza notes three proposals that have been made to modify this system: a) an increase in the amounts corresponding to states and municipalities, b) the granting of greater tax powers to subnational governments and c) a constitutional reform spelling out the powers that correspond to each state order.47

44 Cf. José María Serna de la Garza, op. cit., pp. 568-9. 45 That share for municipalities seems almost insignificant, and is similar to the Argentine case, which serves to explain the anemic finances of local governments. 46 Cf. José María Serna de la Garza, op. cit., pp. 569-74. 47 Op. cit., pp. 575-6. Here again there are significant differences with the Ar- gentine system, since the federal reform of 1994 constitutionalized in Art. 75

300 Finally, on the power to sign international treaties and the federal system, the author analyzes the debate, both in the doctrine and jurisprudence, about the impact that such treaties may have on the distribution of powers reserved to the states. He states that “in the interpretation of the obscure and ambiguous constitutional Article 133, we believe that there are practical reasons that advise the desirability of considering that the President can conclude international treaties in matters that, under the residual clause, correspond to the states. Not to do so would involve Mexico withdrawing from a series of international treaties and agreements and isolating the country from a highly dynamic international reality”48. But to avoid the centralizing logic, Serna de la Garza makes two proposals: a) to revitalize the Senate as a federal body and b) to enable it to intervene not only in the process of approving the treaties, but in the previous stages of negotiating the instrument.49 He concludes by arguing that “the best guarantee of real federalism is the strengthening of our democratic institutions and culture”.50 We conclude this analysis of Mexican federalism with the authoritative opinion of Diego Valadés: “With some historical parentheses, federalism has been a decision formally in force since 1814. After almost two centuries, however, it continues to be half-built. A heavily centralized presidential system and a preca- riously articulated representative system have prevented federal life from reaching its fullness. The basic question we must ask

Sec. 2 a system of tax-sharing, in addition to confirming the distribution of powers in tax matters between the federal government and the provinces. We deal with this matter later. 48 Cf. op. cit., pp. 579-80. 49 Cf. op. cit., pp. 581-2. In this important issue also, a significant distance from the Argentine Federation can be seen, since as a result of the great constitutional reform of 1994, Article 124 enables the provinces to sign international conventions, without affecting the Government’s own powers in foreign relations. 50 Serna de la Garza, op. cit., p. 583.

301 ourselves concerns the possibilities of development offered to federalism in the context of a hypertrophied presidential system and an atrophied representative system, while the spatial decentralization of power is seen to be obstructed by the political concentration of power”51. Later, he acutely notes: “Federalism in the world is approa- ching its third century of life; this is enough time to identify some of its constants. The first thing is not to confuse the multiple cases of formal federalism with those of federalism in the material sense. The latter have never occurred in authoritarian systems. By definition, these are exclusionary processes. Federalism works only in participatory democratic systems (such as Swiss) or in representative systems, but not in authoritarian systems. In the Mexican case, we find two factors that must be considered: that the Executive Branch is deposited in a single person and that Congress remains structurally weak.” “Mexican federalism was limited by the processes of concentration of power that it went through as from the Constitution of 1857, and now it seems threatened by a reverse tendency, in the sense of turning governors into the new axes of Mexican authoritarianism”...”I don’t think in this case you can speak, properly, of a new stage of federalism in Mexico, but simply of a new form of authoritarianism. In most of the states, the structure of their congresses and of the courts remains very weak. Numerous factors have combined to foster the growing political strength of governors”. “In other words, as the verticalism that characterized the functioning of Mexican institutions for several decades is overcome factica- lly but not juridically, all that has been achieved is to move the authoritarian model toward the states.”52

51 Diego Valadés, “Consideraciones preliminares”, in “Federalismo y Regio- nalismo”, Diego Valadés & José María Serna de la Garza, Coordinators, Uni- versidad Nacional Autónoma de México and Tribunal Superior de Justicia del Estado de Puebla, México, 2005, p. IX. 52 Op. cit., pp. X and XI.

302 This remarkable constitutional, political science and sociological perception of Valadés is complemented by his proposals for the future: “To strengthen federalism and avoid as much as possible the effects of new attempts by local strongmen, a reform of the state will be indispensable that includes the strengthening of the representative system and the adoption of cabinet government, but it will be equally necessary to renew the organization and functioning of local power. In this regard, it is worth considering a broad agenda of reforms, including, inter alia, the following aspects: 1. Civil service ... 2. Fundamental rights.... 3. Rebalancing the organs of power and 4. Relationships between the federation and the states.”53

3. Similarities in the historical constitutional process of the two countries

3.1 The same form of government and state

A comparative view of both countries shows up, as we said in the Introduction, the similarities in the form of representative, republican and presidential government and federal state which the respective constitutions have enshrined. It also confirmssimilar historical processes around the debates and experiences for the adoption of republican government in the face of monarchical attempts, and in the confrontation between the federalist and centralists or unitarians. It should perhaps be noted that the debate around the form of government in Mexico was more complex, given that they even went through experiences of monarchical government, starting with that of Iturbide and then, although by special circumstances, that of Maximilian. However,

53 Op. cit., pp. XV to XVII. See there also in more detail each of the author’s proposals. We also have problems in Argentina of serious violations of the republican and democratic system, including indefinite re-elections of governors.

303 there is more similarity as regards the very extensive confrontation between the federalists and centralists or unitarians in both countries, with varied legal backgrounds. There seems to have been a greater exercise of interprovincial pacts in Argentina than in Mexi- co, giving more vigor to its provincial sovereignty and autonomy.

3.2 The original roots of federalism

Fix Zamudio and Valencia Carmona54 argue that federalism runs through the history of Mexico and became present in the three largest social movements: Independence, the Reform and the Revolu- tion, enshrined in the constitutional texts of 1824, 1857 and 1917, corresponding to each of these moments. They point out that the first steps in political decentralization were in the colonial era and in the Cadiz provincial councils. “In this way,” they say55 “we can find a common thread... which starts from the intendancies, is recreated in the cabildos, is strengthened by the emergence of provincial councils and intensified in the period from September 1821 (proclamation of Independence) to 1824 (the year of the first federal constitution), as in that period the provinces, which reached the number of 23, fought firmly for their existence and autonomy to be recognized, sometimes threatening to secede, at other times turning their provincial councils into independent legislatures and even challenging the Constituent assembly itself meeting in Mexico City, to which certain provinces granted only the character of convener”. But to this must be added the Inde- pendence movement, with its defence of constitutions with Ame- rican and European influence, which struggled for federalism. It is clear that Miguel Ramos Arizpe, one of the great forerunners of Mexican federalism in the text of 1824, was an advocate of the U. S. constitutional experience.56

54 Op. cit., p. 1049. 55 Op. cit., pp.1050-1051. 56 Fix Zamudio & Valencia Carmona, op. cit., p.1052

304 Fix Zamudio and Valencia Carmona state that federalism has “the rank of constitutional political dogma, in that it is rightly considered a guarantee of freedom, democratic development and effectiveness in a territory as vast as ours”.57 As for Argentina, several origins of federalism have been identified. A thorough description exceeds the scope of this work, but we will mention some authoritative opinions. Juan Bautista Alberdi, in the Bases, attributed this question to a mediate cause, the Spanish municipal regime through cabildos that gave rise to the provinces, and to an immediate cause, the absence of a national sovereignty that led to local sovereignties from 1820. Francisco Ramos Mejía58 argued that the federal system was inherited from the Spanish and adapted with characteristics typical of our historical development. Arturo M. Bas59 also stressed the importance of the colonial background, which consisted in his view of a) the particularistic spirit of the Spanish people, b) the different origin of the conquest and population of the different cities and territories that today form the Argentine Re- public, (c) the commercial isolation imposed on the provinces of Cuyo, Tucumán and Rio de la Plata. (d) the conflicts that became armed struggle in some cases between provinces that functioned as distinct and independent, e) the constitution of cabildos, which fostered an individualist and democratic spirit in the capital cities of the historical provinces, and f) the organization of intendancies by the Royal Charters of 1782 and 1803. Juan Agustín García, Antonio Sagarna, Juan González Calderón and Ricardo Levene particularly mention the importance of cabildos in the formation of our form of state60.

57 Op. cit., p. 1056. 58 “El federalismo argentino”, Cultura Argentina, Buenos Aires, 1915, pp. 29 ff. 59 “El derecho federal argentino”, Valerio Abeledo, Buenos Aires, 1927, pp. 17 ff. 60 Cf. Pereira Pinto Juan Carlos, “Los antecedentes constitucionales argentinos”, El Coloquio de Económicas, Buenos Aires, 1968, pp. 95 ff.

305 Juan P. Ramos61 indicated that the historical roots of federalism must be sought “in the astonishing blindness and ineptitude of the men who ruled the country from Buenos Aires after 1810, whether they were from the port or the provinces”. Alberto Demi- cheli, the distinguished Uruguayan jurist,62 particularly noted the influence of José Gervasio de Artigas in the Argentine provinces, through his Instructions to the Oriental Deputies who attended the Assembly of 1813, which would later influence the interprovincial pacts. He explained that the unitarian and federal initiatives were inspired respectively by the ideology of the two great revolutionary currents of the eighteenth century: the French, with its indivisible national sovereignty and the doctrinal contribution of Rousseau, and the United States, with its dispersed state sovereignty, decentralization of power and the doctrinal contribution of Montesquieu. He argued that the centralizing trend took flesh suc- cessively in the statutes of the directories, in the dynastic attempts, in the constitutions of Funes and Rivadavia (1819 and 1826), in the customs and port policy of Rosas, in the constitutions of Uru- guay of 1830 and of Buenos Aires of 1854. In contrast, the federalist tendency manifested itself in almost a hundred interprovincial pacts, in 20 local charters prior to the sanction of the National Constitution of 1853 and in four major general agreements, achieved by adhesion (Federal Pact of 1831), by convention (Agreement of St. Nicholas of 1852) and by transaction (Pacts of San José de Flores of 1859 and Paraná of 1860), culminating in the enactment of the Constitution of 1853, amended in 1860 with the incorporation of the Province of Buenos Aires.63 Demicheli’s important book argues that the Argentine nation was formed in a 50-year process in three stages: a) the first,

61 “El derecho público de las provincias argentinas”, T. I, Facultad de Derecho, UBA, 1914, p. 52. 62 “Formación nacional argentina”, Depalma, Buenos Aires, 1971, p. 36. 63 Cf. Demicheli Alberto, op. cit., pp. 5-6.

306 of quasi-federal law (between 1813 and 1820) where the littoral provinces affirmed their autonomy, concluded pacts and - initia ted a particular federalism derived from the contradictory U.S. constitutions but adapted to our reality; (b) the second, of syna- llagmatic public law (between 1820 and 1831), the result of interprovincial pacts between the historical provinces, based on their constitutions, seeking a general organization through this special form of public law, of vernacular extraction; and c) the third, of pre-constitutionalism (between 1831 and 1853), as a result of the adhesion of the provinces to the Federal Pact of January 4, 1831, which converged into the compound or mixed National Cons- titution of 1853 and then the extensive federal reform of 1860 , with a return to the early canons of 1813.64 Ricardo Zorraquín Becú65 disbelieved the monocau- sal theses of the origin of federalism and included the ideas of Dean Funes or the influence of Artigas. Rather, he wrote, “racial background, geographic environment, religious and social concerns, economic struggles, and received political doctrines affect the explanation of the problem” and that our form of state was born from the “gut of the Argentine people” and “constitutes a phenomenon as complex as life itself, with its nuances and its imbalances”. Juan Carlos Pereira Pinto66, in turn, concluded: “1) that the root causes of our federalism were different from those in the United States, 2) that these causes were the “regional isolation, the need to defend the local economy from the power of the commercial oligarchy of the port of Buenos Aires, and the opposition of the men of the provinces, with popular support, to the absolutism and centralism of Buenos Aires”, and 3) “without ignoring the importance of precursors such as Gorriti, the Dean Funes, Artigas, López and others, the two fundamental facts that

64 Cf., op. cit., p. 1. 65 “El federalismo argentino”, Perrot, Buenos Aires, 1958, p. 14. 66 Op. cit., pp. 99-100.

307 determined the triumph of the federal system were the emergence and consolidation of the provinces, and the fall of the central government with the resignation of Rondeau, the last Director of State, on February 11, 1820. The direct consequence of this was the signing of the Pact of Pilar on February 23, 1820, the first formalization of the push for federal ideas”. Finally, Germán José Bidart Campos 67 attributed the origin of our constitutional process to the mutual influence of medium, man and ideology and explained: “a) The medium (mesological influence) is the cities, the provinces and Buenos Aires, since the former gave rise to the second and these to the federal system, while Buenos Aires acted as a centralizing and unifying pole. b) The influence of the medium is interlaced with that of man, who will give “a sociological and cultural style of his own to the life, the ideas, the customs of each province, which will be the raison d’etre of the local autonomy.” “The man will be the people, will be the warlords, will be Artigas.” c) With man in the center, ideology will arise, which was of emancipation, of democracy, of republican government, of federalism and that germinated in the Constitution of 1853. Bidart Campos also argued that the “disposition and mutual influence of human, ideological and mesological elements was achieved by interprovincial pacts”, which served as a “river- bed” for the constitutional organization of the provinces. While we value the contributions of those who pointed out one specific cause as originating Argentine federalism, we consider that there was a plurality of reasons for this, as stressed by the last authors mentioned. For us, federalism was the form of state chosen to resolve the serious political, economic and social conflicts that occurred and the result of our historical evolution, which examined earlier. But because federalism is a “process” of that line rather than a political and state “stereotype” - as Friedrich said - since there is a permanent struggle between the center and

67 “Manual de la Constitución reformada”, Vol. I, Ediar, Buenos Aires, 1996, p. 290.

308 the periphery with their respective convergent and divergent forces, in our country we have gone through serious and protracted vicissitudes that have produced a marked gap between the formal and the material constitution.68 To the cultural problems of anomie,69 we have added a failure to resolve the most dramatic relationship in history, in the words of Felix Luna70, which is that of Buenos Aires and the country, a matter intimately linked to the fate of our federalism71. We conclude this comparison of the two Federations with the similar reasons that led us to adopt this form of state.

3.3 The influence of the U.S. federal model

In both cases, this influence can be observed, through Miguel Ramos Arizpe, Mexican delegate of 1824, as well as through José Benjamín Gorostiaga, Argentine delegate of 1853, who, reporting on the work of the Drafting Commission, stated that our Consti- tution was emptied in the mold of the U.S. Constitution, which was the only true federal Constitution in the world. Moreover, this is clearly confirmed by analyzing federalism in the constitutional texts, that of Mexico of 1917 and that of Argentina of 1853 with its 1860 reform.

68 See our books: “Federalismo, autonomía municipal y ciudad de Buenos Aires en la reforma constitucional de 1994”, Depalma, Buenos Aires, 1997, and “Fede- ralismo y Constitucionalismo Provincial”, Abeledo Perrot, Buenos Aires, 2009. 69 See Hernández, Zovatto & Mora y Araujo, “Encuesta de cultura constitucional. Argentina: una sociedad anómica”, UNAM, Méjico, 2005 and “Segunda Encuesta de Cultura constitucional. Argentina: una sociedad anómica”. It was Carlos Santiago Nino, in his “Un país al margen de la ley”, (Bs.As, 1992) who developed the concept of anomie, as a breach of legal and social norms. 70 “Buenos Aires y el país”, Sudamericana, Buenos Aires, 1982, pp. 7-8. 71 We presented “20 propuestas para fortalecer el federalismo argentino”, in the book “Propuestas para fortalecer el federalismo argentino”, Hernández, Rezk & Capello, Coordinators, Instituto de Federalismo, Academia Nacional de Dere- cho y Ciencias Sociales de Córdoba, Córdoba, Argentina, 2015.

309 In fact, Fix Zamudio and Valencia Carmona highlight the principles of Mexican federalism in Art. 40; the distribution of powers in Art. 124, with the powers reserved for states; the elements of the federal State, with the autonomy of states (art. 41) and their participation in federal constitutional reform (art. 135); the subjects of the Federation (Arts. 42 and 48) and the rules for federal entities (Arts. 115 and 116)72. To this must be added the institutional role of the Senate, as the organ of the states, and of the Supreme Court of Justice, which must resolve conflicts between the Federation and the state and local entities. In the Argentine case, it is clear that the U.S. model was followed in the principles of federation, the distribution of powers, the Senate, the role of the Supreme Court of Justice of the Na- tion, federal intervention and the subjects of the federation.73

3.4 The tendency toward centralization

Unfortunately, both federations have suffered a similar tendency toward centralization, seen in the gap between normative federalism and the real, sociological federalism, with notable advances of the so-called federal government over the powers of states and provinces and local governments, in all aspects and especially in the prosecutors, which produces profound political, economic, and social dependence.74

72 Op. cit., pp. 1053-1056. 73 For a thorough study of this subject, see our “Federalismo y Constitucional- ismo Provincial”, op. cit. 74 Fix Zamudio & Valencia Carmona, op. cit., pp. 1056-1057, and Emilio O. Rabasa, Jose María Serna de la Garza y Diego Valadés, ops. cit., and Antonio María Hernández, “Federalismo y Constitucionalismo Provincial”, op. cit., and “The distribution of competences and the tendency towards centralization in the Argentine Federation”, in “Decentralizing and Re-centralizing trends in the distribution of powers within Federal Countries”, Institut D’Es- tudis Autonomics, 2008 IACFS Conference, Barcelona, September 19-20, Generalitat de Catalunya.

310 3.5 Hyper-presidentialism

Added to this is the phenomenon of hyper-presidentialism, found in both federations75. This phenomenon is characterized by the concentration of power in the Presidency, regardless of the powers established by the Constitution, to the detriment of the division and balance of powers and constitutional democracy. We owe Carlos Santiago Nino the naming and the deepest study of this institutional deformation, which produced immeasurable negative effects for the federal republic. In 1992 he described the hypertrophied presidency: “This brief review of the powers that presidents have acquired by an extensive interpretation of constitutional clauses, by the surrender of the other powers of the State, or by the ou- tright exercise of political muscle, shows that, from a normative point of view, the Argentine president is, as Alberdi envisaged, a true monarch, although unlike what he assumed, these royal faculties have been no obstacle to the instability of governments and abuses of power over the rights of citizens.” Many of his concepts remain valid, and this problem became more serious later, since the aim of the 1994 reform was to mitigate this, as the violation of the letter and spirit of the Constitution was seen more clearly. We think that the 2015 election results have ended the hegemony of Peronism and there is a greater balance between the various political forces, in addition to greater protagonism of the Congress and of inter-party agreements, which has meant a profound change in this pathology. The results provide a great opportunity for the country’s democratic future, so we look forward to deepening

75 See Antonio María Hernández, “Federalismo y Constitucionalismo Provin- cial”, op. cit., Ch. VIII “Sobre presidencialismo y federalismo en la República Argentina” and “Reformas constitucionales y los sistemas de gobierno presiden- ciales “, La Ley, Buenos Aires, February 19, 2016, in which we analyze hyper- presidentialism in some countries of Latin America, presented in the Congreso Iberoamericano de Derecho Constitucional, in Bogotá, in 2015. We also included the opinions of Fix Zamudio, Valencia Carmona, Rabasa, Serna de la Garza, Carpizo and Valadés in this work with respect to the Mexican case.

311 dialogue at all levels, to find substantive solutions to the structural problems that Argentina suffers. True change means first of all a closer link between politics and ethics, to move away from the most regrettable phenomena of structural corruption, enhanced by impunity, which have characterized our national decline.76 Fulfillment of the republican federal democratic political project defined in the National Cons- titution is the great objective to be achieved in near future. This phenomenon is similar to that experienced by Mexi- can democracy since 2000 and this can strengthen a federalism of coordination, as has begun to be exercised now in Argentina. But the process described by Valadés of hyper-presidentialism remaining in Mexican state governments is similar to that in some Argentine provinces, which constitute true fiefdoms, with no republican government and in some cases, even with indefinite re-election of the governors. The same is also true of not a few municipalities of the country.

3.6 Weak constitutional culture and legality

Here too, there is a more than worrying similarity, as demonstrated by the interdisciplinary studies conducted in Mexico and in Argentina through the two Constitutional Culture Surveys in each country, based on the regional proposal initially formulated by Diego Valadés, in 2004, when presenting the work “Cultura de la Constitución en Mexico”.77

76 See Antonio María Hernández, “Fortalezas y debilidades constitucionales. Una lectura crítica en el Bicentenario”, Abeledo Perrot, Buenos Aires, 2012, where we examine these issues of corruption, impunity and violence, in the context of constitutional violations affecting democratic, republican and federal principles and with poor institutional quality. We agree with Guillermo O’Don- nell and Carlos Nino who pointed out respectively the delegative and corporate nature of our democracy, which must urgently be changed. 77 Co-authored by Concha Cantú, Fix Fierro, Flores and Valadés, published by the Instituto de Investigaciones Jurídicas of the UNAM.

312 We directed and published together with Daniel Zovatto and Manuel Mora and Araujo the “Primera Encuesta de Cultura Constitucional Argentina: una sociedad anómica”, published by the Instituto de Investigaciones Jurídicas of the UNAM, in 2005. And in September 2016, we published the book “Segunda En- cuesta de Cultura Constitucional Argentina: una sociedad anó- mica”, Antonio María Hernández, Daniel Zovatto and Eduardo Fidanza, Compilers, Eudeba78, which confirms serious problems in our constitutional, political and legal culture, as well as a notable lack of confidence in the institutions. We refer readers to these Surveys for in-depth analysis of these important issues, which affect our respective republican and federal democracies.

4. The most notable constitutional differences between the two federations

4.1 In the system of constitutional reform

The 1917 Constitution, which maintained the same system as Art. 127 of the 1857 Constitution), in Art. 135, corresponding to Title Eight, prescribed: “This Constitution may be subject to amendments. The vote of two-thirds of the present members of the Congress of the Union is required to make amendments or additions to the Constitution. Once the Congress agrees on the amendments or additions, these must be approved by the majority of state legislatures. The Congress of the Union shall count the votes of the legislatures and shall announce those additions or amendments that have been approved.” In the current text, after two reforms made during the Presi- dencies of Díaz Ordaz and Peña Nieto, it is ordered: “This Consti- tution may be subject to amendments. The vote of two-thirds of the

78 Editorial Universitaria de la Universidad Nacional de Buenos Aires.

313 present members of the Congress of the Union is required to make amendments or additions to the Constitution. Once the Congress agrees on the amendments or additions, these must be approved by the majority of state legislatures and of the City of Mexico. The Congress of the Union or the Permanent Committee, as appropriate, shall count the votes of the legislatures and shall announce those additions or amendments that have been approved.” This constitutional reform system enabled 700 reforms or additions to the 1917 text79 and a simple comparison with the current text shows the magnitude of the changes made. Although the number of articles did not increase from 136, their length increased enormously. Today the Constitution of Mexico is the second longest after that of India. This had serious consequences, linked to the very concept of a Constitution as the Basic Law, which must not be confused with a common law or even the regulation of the constitution. It is advisable, as a constitutional drafting technique, for the constituent power to write general rules, thinking in the future, de- ferring their regulation to the powers constituted.80. That is why there is a project of the UNAM Institute of Legal Research to produce a constitutional reform that maintains those principles of 1917, but with a more concise version. In the Argentine case, Art. 30 of the current National Cons- titution contains the text from the constitutional reform of 1860, which in turn maintained the same system envisaged by the original Constituent Assembly in 1853, although it also made corrections. This norm says: “The Constitution may be amended in its

79 As stated by the deputy César Camacho at the presentation of “Fuentes históricas de la Constitución de 1917”, op. cit., August 22, 2016 in the National Historical Archive, in Mexico City. The reforms or additions can also be seen in Volume III of that work. 80 We have addressed these issues of constitutional theory in Chapters I and II of Volume 1 of the study “Derecho Constitucional”, op. cit., dir. Antonio María Herández, La Ley, Buenos Aires, 2012.

314 entirety or in any of its parts. The need for its amendment must be declared by the Congress by a vote of at least two-thirds of its members; but the amendment shall not be accomplished except by a Con- vention called for such purpose.” It is a procedure then in which the Congress exercises a pre- constituent power to declare the need for constitutional reform, by an aggravated quorum that must be interpreted as all the members of each House. This declaration establishes whether the reform will be total or partial, the period of the mandate and the manner of choosing the Constituent delegates. The people then democratically elect the members of the Convention, as the highest representatives of the popular will. And it is the National Constituent Convention that exercises sovereign constituent power, within the temporal and material limits set by declaratory law, to reform the Constitution or otherwise81. Our experience as a legislator and as federal constituent delegate, provincial delegate in Córdoba, and municipal delegate for the charter of the City of Córdoba, reinforces our conviction about the superiority of this system of constitutional reform by Convention. A Constituent Convention cannot be compared to an ordinary legislative body. The Convention is not governed by same system of incompatibilities as the ordinary legislature. The most qualified citizens are elected for this Assembly because of the importance of the task. This is the exercise of an architectural policy based on agreements to formulate the most important political project of a society, which is its Constitution. The political Constitution is the quintessence of architectural policies. It is not the same to draft and sanction a Constitution as another law.... In the Argentine case, it is very clear that the process of

81 For a thorough analysis of the constituent power, see Ch. II “Derecho Cons- titucional”, Vol.1, op. cit. We have also analyzed the constituent power of the provinces in “Federalismo y Constitucionalismo provincial”, Ch. XIV, op. cit., pp. 397 ff., and the municipal constituent power in “Derecho Municipal”, Ch. III and VI, published by UNAM.

315 modernization in public law was the result of great agreements between political and social forces, as from the recovery of democracy in 1983. Then we went back to the usual agonic politics, and that is why our aim must be to comply with the constitutional mandates agreed. So I suggest that this system of constitutional reform be considered for the Mexican case, for convoking a National Constituent Convention, to modify the current text, as the great Conventions of 1857 and 1917 did in their time. As we said in the Constituent Assemblies, this requires, in addition to respect for democratic legitimacy, that the Convention applies special techniques for formulating constitutional norms, such as those set out by Segundo V. Linares Quintana82.

4.2 The effects of the amparo on the federal system

In both the Mexican and Argentine cases83, following the U.S. model, there are federal and state or provincial judiciaries, in addition to those corresponding to the cities of Mexico and Buenos Aires, which act according to their respective material and territorial powers. These are among the most decentralized federal models in judicial matters. With regard to the system of fundamental rights and guarantees, the role of state and provincial constitutions is also crucial in recognizing these, in both cases. Since the constitutional

82 See Antonio María Hernández, Ch. II “El poder constituyente”, in “Dere- cho Constitucional”, Vol 1, La Ley, Buenos Aires, 2012, p. 130 and “Derecho Municipal”, UNAM, Mexico, 2003, Ch. III, point X, “La sanción de Cartas Orgánicas Municipales”, where we describe the techniques indicated by the former Professor of the University of Buenos Aires: 1. Adaptation to institutional reality. 2. Stability. 3. Flexibility. Fundamentality. 5. Prudence and 6. Style. 83 For a thorough analysis of these issues, see Antonio María Hernández, “Ju- dicial Federalism and the protection of fundamental rights in Argentina”, in Rutgers Law Journal, Volume 41, Issue 4, published by the Rutgers School of Law-Camden, University of New Jersey, Camden, New Jersey, 2011.

316 reform of 1994, with the incorporation of the internationalization of human rights, there are three different sources for rights and guarantees: international, federal and provincial and that of the Autonomous City of Buenos Aires. The extraordinary Mexican contribution to the concert of comparative constitutional law through the creation of the amparo, as a generic guarantee for the validity of rights, is well known. Our country incorporated this guarantee first in provincial constitutions and then in federal legislation and the National Consti- tution itself, as from the constitutional reform of 1994. We must stress that the amparo within Argentine provincial jurisdiction, just as any other judicial case, must be fully dealt with within that jurisdiction and, in accordance with the corresponding procedure, may finally through appeals reach the High Court of the respective province or of the Autonomous City of Buenos Aires. Only when there is a federal “issue” or “case” can the appeal be made to the Supreme Court of the Nation, under the Federal Extraordinary Appeal procedure. But the requirement of “final judgment” which, after the “Strada” case of the Supreme Court of Justice of the Nation, requires the intervention of the highest court of the respective province or of the Autonomous City of Buenos Aires, must always be complied with. Consequently, the amparo has two distinctive characteristics: a) it does not proceed against acts of the judiciary and (b) the review by federal justice in respect of an amparo before local justices, can be conducted only by means of extraordinary federal appeal before the Supreme Court of Justice of the Nation. There is thus a marked difference with the Mexican case, since by allowing the intervention of federal judges lower than the Supreme Court of Justice, which may also review court rulings, has a very serious impact on state judicial powers and on judicial federalism.84

84 This is also noted by José María Serna de la Garza.

317 4.3 In the respective Federal Constitutions as regards the decentralization of power

The previous analyses clearly show significant differences in both supreme federal texts. In relation specifically to the decentralization of power, it is clear that, with the 1994 Federal Constitutional Reform, Argentina saw a decisive breakthrough in the strengthening of federalism, seen in the amendments mentioned above in this particular issue, as well as the recognition of municipal autonomy and full autonomy for the Autonomous City of Buenos Ai- res. Before the reform, the texts were similar, because of the common influence of the American model, but the 1994 Reform provided a clear modernization of the Argentine republican and federal Cons- titution, even though it is not yet complied with by our weak constitutional culture, which has not occurred in the Mexican text. Indeed, just comparing the new institutions incorporated in Argentina by this Reform with the Mexican Constitution shows clear differences. We believe that the future amendment of this Constitution should be considered to modernize issues particularly concerning the decentralization of power. Despite the differences identified, similar advances have been made, such as that of Mexico City, which is a new state of the Federation, as occurred with the Autonomous City of Bue- nos Aires. There have also been substantial changes in state constitutionalism with the introduction of the proportional election system for the membership of the Legislatures, the reconstruction of constitutional control by local judicial bodies and the opening of states to International Human Rights Law, as Daniel Barceló points out in the book “Percepciones sobre el Federalismo en Méxi- co. Encuesta Nacional de Federalismo”.85

85 Coordinated by Daniel Barceló Rojas, José María Serna de la Garza and Die- go Valadés, edited by UNAM, Mexico, 2015. See “Principales desarrollos en el sistema político y en el derecho constitucional de los Estados”, in Ch. II “El federalismo en los Estados”, by Daniel Barceló Rojas, pp. 57-60.

318 But we cannot ignore what happened in the Constitution with regard to the Free Municipality in Art. 115, which for us is a clear example of centralization which impels us to advocate the incorporation of the principle of municipal autonomy in both the federal and the state constitutions. In a country of the size and diversity and wealth of Mexico, there can be no uniform municipal regime... their variety and asymmetry, as we have argued, require different municipal regimes, always based on the overall principle of local autonomy, because this is essential for republican and federal democracy. In this context, special care needs to be taken with regard to the strengthening and modernizing of federalism, according to the above and more recent proposals86. Here, the interdisciplinary research by the UNAM Institute for Legal Research is worth noting, which carried out the first National Federalism Survey on this crucial issue for the country’s change.87 Without making a comprehensive analysis of this Survey, we cite one of its most significant conclusions, in the opinion of Die- go Valadés. Commenting on the responses to question 24 about how important decisions in the country should be made, he says: “... Every legal order is an artificial creation of the social body and is

86 José María Serna de la Garza in Ch. I “Evaluación y caracterización del sistema federal mexicano”, by Daniel Barceló in Ch. II “El federalismo en los Esta- dos”, from the book “Percepciones sobre el federalismo en México” and Diego Valadés, in Ch. III “El federalismo mexicano: una perspectiva empírica”, op. cit. 87 The survey is from 2014 and was conducted by Julia Flores, of the Applied Research and Opinion Department of the UNAM Institute of Legal Research. It was the first dealing exclusively with federalism and was the joint work of the sociologist with the law professors Diego Valadés, José María Serna de la Garza and Daniel Barceló. It was published as the book cited above, in 2015. Just as the Institute was a forerunner in surveys of the culture of the Constitution and legality in Latin America, the same is now true in this area. Other Latin Amer- ican federal countries should follow this example, as an interdisciplinary view is essential to our object of study, as we highlighted in Ch. I. The significance and value of a survey, as a specialized sociological tool for gaining more accurate knowledge of such a complex reality as that of federalism, cannot be doubted.

319 related to cultural processes. In the case of federalism, our first version of which dates from 1824, it has gradually become a reference pattern for the life of the country. Responding to the question about how important decisions should be made for Mexico, 42.4 percent prefer the federal and local governments to do so together and another 32.2 percent in another way depending on its content. This is a way of understanding that Mexico is a state in which functions are differentiated but does not exclude collaboration. It clearly proposes that there should be no centralization of power by the federal government.” The tenor of the responses indicates that there is already an awareness of what federalism implies and that there are possibilities to take new steps towards building an advanced federal system”.88 This confirms the federal awareness and sentiment of the Mexicans, who support the modernization proposals on the decentralization of power. We believe that in both countries we must enforce our respective current constitutional rules, which have a long history of enshrining federal states, but which in reality have shown acute processes of centralization, which it is urgent and essential to change.

88 Cf. Diego Valadés, Op. cit., Ch. III, pp. 112-3.

320