The Promise of Constitutional Democracy

7 The Promise of Constitutional Democracy On November 6, 1985, leftist guerrillas from the Colombian 19th of April Movement overran the Colombian Supreme Court building, taking the justices of the court as hostages. In the ensuing shoot-out with the military, twelve of the judges were killed, along with more than 100 other civilians. The shootings at the court were but the most visible signpost that the country’s background of war and strife could overwhelm even the central institutions of state in Bogotá, the capital. Colombia was, for much of the last half of the twentieth century, a state struggling for control of its territory against powerful private militias, and the resulting loss of state authority left open the terrain for one of the highest murder rates in the world, pervasive extreme poverty, and a stubbornly fl ourishing drug trade. 1 After a civil war that left more than 200,000 people dead during the Gran Violencia of the 1950s, and then the militant uprisings and drug wars of the following decades during which even more suc- cumbed to violence, any prospect of peace and stability seemed nonexistent. 2 Yet in 1991, in the face of overwhelming odds, a democratically elected constituent assembly promulgated a new constitution that served as part of the “profound constitutional moment throughout the Americas.” 3 The fall of military dictatorships across much of South America, most notably in Argentina, Brazil, Chile, and Uruguay, unleashed a democratic revival in the region and a new commitment to limitations on the powers of government. In many ways, the democratic surge in South America paralleled the broader democratic 1 See Manuel José Cepeda-Espinosa , Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court , 3 Wash. U. Global Stud. L. Rev. 529 , 532 n.2 ( 2004 ) . 2 See Centro Nacional de Memoria Histórica , ¡Basta ya! Colombia: Memorias de Guerra y Dignidad 32 (Bogotá og Centro Nacional de Memoria Histó rica, 2013 ) . 3 Miguel Schor , An Essay on the Emergence of Constitutional Courts: The Cases of Mexico and Colombia , 16 Ind. J. Global Legal Stud. 1 , 12 ( 2009 ) . 137 9781107038707book_pi-290.indd 137 3/9/2015 11:54:45 AM 138 Competitive Democracy expansion in Eastern Europe and Asia following the fall of the Soviet Union. In each case, central to the desired democratic restoration was the idea of constraint in the exercise of state authority. Authoritarian rule allowed the direct translation of political power into arbitrary and repressive governmental conduct. In response, the democratic revival sought both to restore civilian authority and to enshrine the primacy of a rule of law. In one sense, Colombia fi t well within the movement to create effective democratic governance by focusing not only on securing civil and human rights that had been compromised, but also on the structures of governmental authority used to secure such rights. The constitution sought to overhaul many of the institutions of Colombian government, but none so much as the judiciary. Among the constitutional innovations was the creation of a constitutional court that was “by any measure one of the strongest courts in the world.” 4 In the words of then President Cesar Gaviria , the court was integral to the new democratic order: an institution with the “mission of preventing any other powerful authority from hampering the transformations [the constitutional leadership is] encouraging with laws, decrees, resolutions, orders, or any other administrative decisions or happenings . The new Constitution requires, in order to be adequately applied, a new system of constitutional judicial review.” 5 While Colombia’s immediate challenges came from armed opponents of any governing authority, the constitutional court’s greatest confl ict arose from within the democratic governing order. Indeed, the new Colombian court introduces one of the central themes of the post-1989 new constitutional order. In this period, we fi nd these apex court s again and again confronting excess concentrations of power in emerging and generally weak democratic states. As in Colombia, these constitutional courts emerge from a process of reforma- tion of states in the aftermath of civil strife or the overthrow of authoritarian rule . But they are not merely creatures of the transition process: constitutional courts are created to be central actors in securing the democratic objectives of the transition in the long term. The model for modern constitutional courts comes from Germany, whose newly created postwar constitutional court oversaw a series of state institutions compromised by Nazism – including the existing judiciary. No country emerging from an authoritarian past is likely to have the human resources to purge from offi ce all individuals tainted by prior association with the deposed 4 David Landau , Political Institutions and Judicial Role in Constitutional Law , 51 Harv. Int’l L.J. 319 , 339 ( 2010 ) . 5 Quoted in Cepeda-Espinosa, supra note 1 , at 550–51. 9781107038707book_pi-290.indd 138 3/9/2015 11:54:46 AM The Promise of Constitutional Democracy 139 government. Positions requiring advanced education and professional certi- fi cations almost invariably bring individuals into contact with the state and likely compel either membership in the ruling party or other forms of acqui- escence with state authority. Efforts at complete lustration not only would deplete the society of those with experience in the technical administration of the society, but would likely force large parts of the society into active opposition to the attempted democratization – as the United States learned to its chagrin in Iraq. 6 Judges are no exception to this dilemma. Of necessity, they require legal training, which brings them into close proximity to the ruling regime, often- times no doubt much closer than they truly desire. Yet even authoritarian regimes need some form of legal regularity in the everyday lives of the citizens . There are still marriages and divorces, exchanges of goods or services as per- mitted by law, and the settling of affairs at death. Authoritarian regimes are typically brutal and self-aggrandizing, but even the worst cling to some form of order in the commonplace interactions among the citizenry. Inga Markovits tells a compelling account of the efforts at humanity and decency of East German family court judges under communism, even in the face of ideo- logical intolerance from above. 7 Undoubtedly, there were moments of party interference or politically motivated retaliation against disfavored individuals. As a result, these same judges might be conscripted to enforce laws that no democratic society could tolerate. But in the great run of cases, the state had no particular stake in the resolution of the domestic woes of any particular family, and matters of divorce or child custody had to be resolved with the accumulation of knowledge and experience that is the judge’s craft. Germany presented both the problem and potential resolution most clearly. Prewar Germany was home to one of the world’s most sophisticated legal cultures, replete with fi rst-rate legal instruction in its universities and a centuries-old body of jurisprudence. Few, if any, societies could rival the rec- titude of German legal proceedings, nor the integrity of the judicial system. At the same time, German legal doctrine was highly formalistic and boasted a strong positivistic commitment to the application of the law as the command of the sovereign, not as refl ecting normative aspirational claims. In the familiar 6 Brendan O’Leary , How to Get Out of Iraq with Integrity 7–8 ( Philadelphia : University of Pennsylvania Press , 2009 ) (describing the “de-Baathifi cation” policy as “thoughtless . A better policy would have found means to avoid alienating the entirety of the party’s active cadres (many of whom had joined as the sole means to achieve a professional career) which had reasons to be opposed to [the old regime] as much as the United States.”). 7 Inga Markovits , Imperfect Justice: An East-West German Diary (New York : Oxford University Press , 1995 ) . 9781107038707book_pi-290.indd 139 3/9/2015 11:54:46 AM 140 Competitive Democracy jurisprudential debate on the “is/ought” divide in legal authority, German jurisprudence defi ned law as that which “is” as commanded by the sovereign, rather than any transcendent command of a normative “ought” in what laws must guar- antee. This formalism was only as strong as the state that backed it: with the surrender of Germany in the First World War and the establishment of the com- paratively much weaker Weimar Republic, judges found themselves implicated in the social struggle over the “ought” of law with relatively little jurisprudence or history to guide them. Conservative voices – especially those of the Nazis themselves and of legal philosopher Carl Schmitt – promised a return to positivism, a claim that found signifi cant support within the judiciary. With the beginnings of the Third Reich in 1933, the judiciary as an institution, and overwhelmingly the judges as individuals, allowed their technical expertise to be exploited in the service of the new totalitarian order. The relation between the German judiciary and Nazi power is a source of great controversy, even after more than a half century has passed. 8 Some judges were notoriously disposed toward the Nazis even in the Weimar period, as evident in the weak judicial response to the both the Kapp putsch of 1920 (which very nearly brought down the Republic) and the Munich beer hall putsch of 1923, all of which resulted in little or no sanctions, including for Hitler himself. 9 Indeed, many of the Weimar judges were holdovers from the German monarchy and shared the extreme nationalism and anti-Semitism of the Nazi opposition to Weimar. 10 Further, the weak institutions of the Weimar Republic led to a breakdown of the positivist consensus undergirding German legal thought after German unifi cation.

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