Constitutional Reform in Latin America?

Yesterday I went over to the Organization of American States (OAS) for a roundtable on “Constitutional Reform in the Americas.” The event featured opening remarks by the OAS Secretary General, followed by country-specific presentations by experts on Bolivia, the Dominican Republic, Ecuador, and Venezuela.

I won’t bore you with the details, but three themes emerged:

1) The ever-expanding constitutions of many Latin American countries, both to strengthen strongmen (Chavez) and to add to the copious list of positive rights (Brazil). This is not good for either constitutionalism or rule of law because on the one hand you have the country’s founding document being changed at the whim of a single man and on the other a constitution bloated with such things as the fundamental right to, e.g., four weeks’ paid annual vacation decreases in legitimacy. To paraphrase an old Argentine lawyer who advised that country’s last significant amendment process in 1993-94, “constitutional inflation leads to rule of law devaluation.” Alternatively, the Latin American counterpart to the old saw about French constitutions being filed in libraries’ periodicals section is that Latin ones are filed as encyclopedias.

2) The desire to constitutionalize (or rebalance constitutional structures relating to) the “special rights” of indigenous peoples. There is nothing wrong per se with wanting to recognize that certain native peoples preceded the arrival of European colonists/conquerors (British-American in the U.S., Spanish and Portuguese in Latin America) and that these people should not be exploited as a result of their having been vulnerable to colonization. But to enact wholesale nationalizations and special privileges on the basis of race, or caste, or tribe — let alone raise these perversities to the constitutional level as is being proposed in Bolivia — is a political and legal travesty.

3) The battle over political reform is no longer, if it ever was, between left and right or socialism and neoliberalism (the common Latin American term for pro-market policies and the Washington Consensus), but rather between democracy and authoritarianism. This may not represent that much of a change from the past — the populist governments that plagued the region in the 20th century could be alternately left or right wing — but it does confirm that the “consolidating democracy” project of the ’80s and ’90s has stalled if not taken a reverse. That is, the narrative that those of us studying Latin America in college and grad school in the late ’90s to early 2000s learned — the Third Wave of democratization, Latin America finally being on the right path but just needing time to grow economically – underestimated some nasty undercurrents of resistance.

In short, the roundtable was equal parts fascinating and frustrating. You can watch it (in Spanish) here.

[Cross-posted at Cato's blog here.]

This Week at the Supreme Court

Notwithstanding last week’s agreement to hear the D.C. guns case — the announcement of which managed to be both later than originally expected and earlier than expected after the decision’s postponement – the Court has gone back to putting itself out of business by reducing its workload to nothingness. (How’s that for judicial restraint?)

The Court has granted review to 51 cases this term, putting it about at the same pace as last year, when only 68 cases were decided after argument. This is down from the 70-low-80s of the previous 15 years (except 92 in 1997-98), which itself is down from the 100-110 pace before that (and, for example, 129 in 1973).

But forgetting the numbers game, this week the Court is hearing four arguments, in cases involving: 1) private causes of action under ERISA (Larue v. DeWolff); 2) the deductibility of financial advisers’ fees from trust/estate taxes (Knight v. Commissioner of Internal Revenue); 3) whether New Jersey may construct a natural gas facility on the Delaware River over Delaware’s objection (New Jersey v. Delaware); and 4) the federal preemption of a (Maine) state law that blocks the delivery of Internet-bought tobacco to teenagers (Rowe v. New Hampshire Motor Transport Assn.). Not too exciting, other than that case 3 comes in under the Court’s rare original jurisdiction (meaning no state or lower federal court first ruled on the matter).

On Friday, the justices are scheduled to hold a private conference to discuss more pending cert petitions, with orders on those expected next Monday. The safe bet is that they’ll deny them all — though there is one interesting case (McDermott v. Boehner) where one sitting congressman is suing another over the latter’s disclosure to reporters of an illegally taped (and embarrassing) phone conversation. Stay tuned.

[NB: I recently started contributing to Cato's blog, so this is cross-posted here.]

Podcast of AFF Panel

You can listen to my take on private military contractors from last week's roundtable here.

AFF Panel

Tonight at 6:30 I'm on the monthly America's Future Foundation roundtable panel, replacing a last-minute cancellation. We'll be discussing private security contractors, with whom of course I had some experience in Iraq. C'mon out, should be fun.

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AFF Roundtable: Are Private Contractors Helping Our Troops?

Remember, next Monday, November 12th, AFF will host a roundtable discussing private security contractors. This isn't our usual day for roundtables, so make sure to note that the discussion will be happening on Monday.

Since private firms started taking a larger role in American efforts in Iraq, critics have dubbed them mercenaries and called for criminal investigations. Proponents of contractors argue that they've been essential to the security of both troops and civilians in a warzone. But are private contractors really private when they take on the powers of the state? Should they be limited? Have they helped us, or hurt us, in Iraq?

Joining us in the discussion will be Mark Hemingway of National Review, Jillian Bandes of Roll Call, Ilya Shapiro of the Cato Institute, and Christian Lowe, managing editor of Military.com.

The event will take place at the Fund for American Studies, 1706 New Hampshire Avenue, NW, near Dupont Circle. Drinks at 6:30; Roundtable begins at 7:00. Roundtables are free for members, $5 for non-members. So join today! Please RSVP to Cindy Cerquitella at cindy@americasfuture.org.

Going Home Again

Last weekend I got to spend some time in New Orleans and Jackson, MS. I gave talks to the Federalist Society student chapters at the law schools of Loyola University and Mississippi College, but, more importantly, I attended the clerks' reunion honoring Judge E. Grady Jolly's 25th anniversary on the bench.

The ranks of Jolly clerk alumni now swell at 74 (plus one deceased), with the clerks currently inhabiting chambers not having been born when the first ones assumed their station. About 55 attended some portion of the weekend's festivities, which formally consisted of a Friday evening reception in New Orleans chambers, a Saturday evening reception and dinner in Jackson, and a Sunday morning brunch at Judge Jolly's house. It was interesting spending so much time with people who have so little in common with each other beyond all being lawyers and all having spent one magical year working for and learning from this judge's judge whom we can never repay.

For me, as for most, it was a character-building year. Beyond the professional skills and knowledge I gained, I absorbed the unique personality and temperament of a man who embodies good-hearted minimalism. "Decide the case on the narrowest grounds possible in the most concise opinion possible," he declaimed, and Lord help you (or, more likely, one of his colleagues on the Fifth Circuit bench) if you strayed from that path.

The path being the one tracking down the Big Coon, of course, a.k.a. the right answer, and the straying being along those darned rabbit trails that always seemed to spring up to distract us loyal coon dogs -- with the Judge directing us as the bemused hunter. As one clerk said during the after-dinner remarks, "he taught us a lot about life and love, and a little about the law too."

It's only been three years since I left Jackson for the wider world of law firms and think tanks in Washington, but I cannot say enough good things about that year in Mississippi.

The Perfect Candidate

Regardless of which party you prefer (or dislike least), there's never a presidential candidate who embodies all (or nearly all) of your preferred policies and character traits. If only you could combine, say, Ron Paul's domestic policies, John McCain's foreign policy, and John Edwards's hair...