by Roberto Gargarella. New York : Cambridge University Press, 2010. 288pp. Hardcover. $85.00/£55.00. ISBN: 9780521195027. E-Book format. $68.00. ISBN: 9780511740794.

Reviewed by José Antonio Aguilar Rivera (CIDE), División de Estudios Políticos, CIDE, Mexico City. Email: joseantonio.aguilar [at]


Roberto Gargarella’s book, THE LEGAL FOUNDATIONS OF INEQUALITY, has two undeniable merits. On the one hand it considers constitutions as important elements to explain political outcomes in Spanish America. For a long time constitutions in that part of the world were easily dismissed as irrelevant pieces of paper with no impact on real governance. Gargarella knows better: “the documents despite their mistakes and defects, actually defined the main features of the institutional structure of the countries in question” (p. 5). On the other, it sets out to give a proper account of constitutionalism in both Americas in the 18th and 19th centuries. Gargarella rightly examines American constitutionalism as a broader phenomenon that comprises both the American constitution and the Latin American charters. Very often the American case is analyzed in isolation as if the numerous Latin American constitutions were not part of the same political and legal experiment.

Gargarella asserts that constitutional democracies are in trouble since significant numbers of people do not trust their representatives and do not participate in party politics. One of the factors that might explain this situation, he claims, is the structure of the institutional system, as organized by its constitution. Thus Gargarella probes the historical origins of American constitutionalism. He finds three constitutional models: radical, conservative and liberal. Populist or radical constitutions were characterized by their political majoritarianism and their defense of moral populism, conservative models were defined by their defense of political elitism and moral perfectionism and liberal charters emphasized political moderation and moral neutrality. Gargarella divides the book in four sections. In the first three chapters he accounts for each one of these models as they gave life to the American charters. In the last one he makes a plea for egalitarian constitutionalism. The thesis of the book is clear: “I claim that, after the founding period examined here, the structure of most American constitutions reflected the liberal ideals or, as occurred in many Latin American countries, a combination of liberal and conservative ideals. I also claim that, in the end, these constitutions undermined, at least in part, the egalitarian commitments that were present at the time of the various revolutions seeking independence a commitment to the idea that all men are created equal as much as a commitment to the idea of collective self-government” (p.8). Yet, it is very difficult to place each constitution neatly in a single category. The author is well [*407] aware of this, since he acknowledges that “most American countries represented strange mixtures” of the three models. However he still proceeded as if such distinction could be tenable in most cases.

This is an ambitious work and the issues that Gargarella discusses are indeed important, yet this is a flawed book. There are four critical problems. The first one is a lack of proportion between the models discussed in the book. While acknowledging that “the history of radical constitutionalism in America is the history of failure” (p. 49) he still devotes a third of the book (82 pp) to its examination. The historical significance and importance of cases such as the 1776 Pennsylvania constitution or the 1814 Mexican Apatzingán constitution (which actually never ruled the country) is blown out of proportion. What concerns Gargarella is not so much the actual historical importance of constitutional radicalism as the unfulfilled promise of radical politics. However, by idealizing radicalism he distorts beyond recognition the historical record. Not only does he concoct an ideological entity of dubious existence (radicalism), but the differences between political ideologies are magnified. For instance, Gargarella asserts, that radicals “placed congress as the most important branch” (p. 56). They aimed to “preserve the authority and popular character of congress: no other institution represented the popular will like the legislature” (p. 59). Indeed “because of their confidence in the people’s capacities and their general distrust of representatives, radicals defended an institutional system that not only allowed but also encouraged the people’s active participation in politics” (p. 45). In contrast, the “countermajoritarian bias of liberalism was reflected in the adoption of antimajoritarian institutions, namely, institutions that retained an opaque role for popular majorities within the decision-making process. The liberal’s defense of proceduralism implied a defense of institutions that were hostile toward both collective meetings and collective discussions” (p. 167). Thus, Gargarella equates radicalism with a defense of the supremacy of the popular assembly. Yet this a questionable claim. Liberals did not dispute the idea that popular sovereignty was the only rightful source of political authority. What many liberals, such as Benjamin Constant, feared was not the idea of giving sovereignty to the people, “but the practical implication that particular individuals or assemblies would claim the right to exercise that sovereignty on behalf of the people.” Indeed, the “abstract idea of a sovereign people tended to become concrete in the form of demagogues claiming to rule in the name of the people” (Garsten, 2010, p.99). It is a serious misunderstanding of many American liberals to regard their suspicion of government efforts to directly enact popular sovereignty as a suspicion of the people itself. Many of them were far from favoring the rule of elites, they were suspicious of those who claimed to represent the people, those who used the language of popular sovereignty to justify their own rule.

Besides the problem of balance between the three models there is a second significant problem with the argument. Constitutions are dealt with as if they came out of the blue. The issue of institutional origins is not addressed at all in the book. This is an important issue since it explains the ideological [*408] make-up of many of the post independence constitutions. The reactionary atmosphere of Restoration Europe subjected Spanish American leaders to more conservative ideological influences than they had known before 1815. Gargarella’s analysis of constitutional ideas is ahistorical. Ideas are discussed in abstract terms. Clearly, not only normative concerns but events such as the French Revolution are important to explain why certain constitutional ideas were more favored by constitution-makers than others. Pre revolutionary Americans had a different outlook than post Restoration Spanish Americans. The lack of a proper historical framework critically impoverishes the book. As a result, Gargarella adopts many of the old clichés of the nationalistic historiographies of Latin American independence. For instance, historians have recently claimed that many of the early independence movements were in fact struggles for autonomy within the Spanish monarchy, not struggles to establish self-government as it was later claimed (Rodriguez, 2005). Likewise, scholars have established that centralists were not necessarily conservatives, as the author asserts.

The consequence of the absence of a proper institutional account beyond constitutional provisions is that several of the conclusions of the book seem unwarranted. The subtitle of the book is “The legal foundations of inequality.” Indeed, Gargarella asserts that: “the constitutional models adopted in most American countries, I believe, dishonored the egalitarian premises associated with the revolutionary movements”. Most constitutions in America “…failed to guarantee collective-self-government and to ensure its preconditions” (p.216). However, the electoral laws of some of early republics tell a very different story. Recent historical studies on comparative elections in the early nineteenth century show that one of the peculiarities of Spanish America was the precocious adoption of modern forms of representation and universal suffrage when restrictions to vote were predominant in Europe. Studies such as those of Richard Warren (1996) on popular participation in early elections in Mexico show that the selection of representatives by universal suffrage often had an impact on popular participation that challenges the usual depiction of elections as an exclusive elite affair. For instance, in Mexico, at the beginning of the early republican period (when a “liberal” constitution ruled), representation was so democratic that not even the “principle of distinction” (Manin, 1997), key to representative government, was followed. This is quite different from what happened in older representative governments. For instance, in England perhaps 4.2% of the adult population could vote in 1833. Meanwhile, in Mexico City turnout for municipal elections in the period from 1829 to 1831 hovered around 27% of the city’s estimated total male population (Warren 2001). Likewise, in the first constitutions and electoral laws of Argentina (the 1821 Ley de Elecciones de la Provincia de Buenos Aires) and the first provincial constitutions of Colombia very low property restrictions (or no restrictions) were adopted. In some Latin American countries restrictions were later adopted (Colombia) while others preserved a very broad franchise (Mexico). Expansive electoral laws were not the [*409] “foundations” of inequality, at least in the legal formal sense. While Gargarella claims that “many radicals defended the adoption of system of direct democracy” (p. 46) he does not provides a single example of a radical constitution that provided for this method. In contrast, the Mexican revolutionary priest, Morelos, who called for the congress that drafted the “radical” Apatzingán constitution conducted elections using a very similar method of the Spanish 1812 constitution. It relied on indirect elections.

Thirdly, the use of the philosophical concepts that Gargarella employs to account for the political ideas of the era is often anachronistic. His analysis of liberalism is a good example of this flaw. He claims that a trait of liberalism was “neutrality.” Yet, this is a modern idea, more widely accepted in anglo American accounts of liberalism. Very few Latin American liberals in the 19th century believed that the state should remain neutral. They supported an idea of the “good”: the normative ideas that made a liberal polity. Likewise, the idea of checks and balances was not the monopoly of the liberals. In fact, many liberals (as well as non liberals) ignored at the time that there were two models to choose from at all (strict separation of powers and checks and balances). Their understanding was historical, not theoretical. They were more familiar with the 1812 Spanish constitution that inherited from the 1791 French charter the idea of functional boundaries. Many of them had only a vague understanding of the American model. In a similar fashion, Gargarella claims that “liberals taught us to fear the power of the state” (p. 209). This might be true elsewhere, but in Latin America liberals actively engaged in using the state to further their purposes. They needed state power to fight entrenched corporate privileges. This is why Merquior dubbed it “nation-building liberalism” (Merquior 1991). Likewise, claiming that all conservatives were “perfectionists” seems to be similarly inaccurate.

Finally, while Gargarella levels some critiques towards radicalism it is clear that he considers it the forerunner of the egalitarianism that he advocates. His normative commitments are explicitly and forcefully asserted. As he sees it, “egalitarianism aims at strengthening, rather than eliminating or weakening, the possibility of achieving popular collective agreements. By doing this, it tries to reestablish an egalitarian dimension that disappears when the collective life of the community begins to depend on the initiatives of a powerful minority.” On the contrary, liberal and liberal-conservative constitutions reflect an anticollectivist bias since they “disregard the importance of collective agreements” (p. 231). Egalitarianism might be a plausible ideology to defend, but why should we resort to history to prop it up? Perhaps, because Gargarella finds in the constitutional past of the Americas an obstacle to the adoption of his program. Thus, the weak history of radicalism is magnified as a source of inspiration against the hegemonic and victorious liberal-conservatives. It is as if egalitarianism needed a proper past to assert itself in the ideological arena, as if its absence from the constitutional history of the Americas would weaken present claims to political action. Thus, history is reinterpreted to bring radicalism into the picture. Yet, such ideological operation does a disservice to both egalitarians and the historical record. A compelling ideology does not [*410] need to rewrite the past to secure a place in the future.

Garsten, Bryan. 2010. “Representative government and popular sovereignty,” in POLITICAL REPRESENTATION, by Ian Shapiro, Susan C. Stokes, Elisabeth Jean Wood and Alexander S. Kirshner (eds.). New York: Cambridge University Press.
Manin, Bernard. 1997. THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT. New York: Cambridge University Press.
Merquior, J.G. 1991. LIBERALISM. OLD AND NEW. Boston: Tawyne.
Rodríguez, Jaime E. (ed). 2005. REVOLUCIÓN, INDEPENDENCIA Y LAS NUEVAS NACIONES DE AMÉRICA. Madrid: Mapfre Tavera.
Warren, Richard. 1996. “Elections and Popular Political Participation in Mexico, 1808-1836” in LIBERALS, POLITICS AND POWER by Vincent Peloso and Barbara Tenenbaum (eds). Athens, GA: The University of Georgia Press.

© Copyright 2011 by the author, José Antonio Aguilar Rivera.