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Replacing and Amending Constitutions: The Logic of Constitutional Change in L atin A merica
Author(s) -
Negretto Gabriel L.
Publication year - 2012
Publication title -
law and society review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.867
H-Index - 74
eISSN - 1540-5893
pISSN - 0023-9216
DOI - 10.1111/j.1540-5893.2012.00516.x
Subject(s) - constitution , normative , politics , political science , corporate governance , law , law and economics , constitutional amendment , latin americans , power (physics) , sociology , economics , physics , finance , quantum mechanics
Since 1978, all countries in L atin A merica have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power‐concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.