STUDIES IN COMPARATIVE FEDERALISM 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 cha- llenge, 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 methodologi- cal 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 federa- lism of Argentina with that of the United States, where we devote our attention to that important debate and other cultural, institu- tional, and political aspects in which we differ. Finally, Chap. III compares Argentina with Mexico, a cou- ntry 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 previous- ly: 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 feder- al 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 influ- ence 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 ex- periences 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 fe- deralism, 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.