Constitutions as political insurance: variants and limits

Abstract Some scholars argue that constitutions may include an insurance that aims to protect the political rights of prospective electoral losers and prevents a dominant ruling coalition from undermining the competitiveness of the political system. Although some insurance scholars have recently paid more attention to the conditions that make an insurance more likely to be effective, the scholarship seeking to identify the limits of the insurance is still scarce. The literature on courts and democratization may help us to understand those limits by exploring successful and failed experiences. In this article, I argue that after constitution-makers agree to including an insurance, the incumbent regime may delay its implementation or, if the insurance is implemented, the regime may employ different political and legal strategies to eliminate it. I identify some of these strategies using examples from the Bolivian constitutional system. I argue that the Bolivian 2009 Constitution included an insurance and that the Evo Morales regime eliminated it with the help of the Constitutional Court. Although insurance theory expects constitutional courts to guarantee key institutional arrangements, the Bolivian experience shows that constitutional courts may in fact execute the opposite task, and that after constitution makers negotiate and approve an insurance, the challenge is to secure its implementation and survival.

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Judicial Reform as Insurance Policy: Mexico in the 1990s

Latin American Politics and Society ◽

10.1111/j.1548-2456.2005.tb00302.x ◽

2005 ◽

Vol 47 (1) ◽

pp. 87-113 ◽

Cited By ~ 10

Author(s):

Jodi Finkel

Keyword(s):

Supreme Court ◽

Judicial Review ◽

National Government ◽

Judicial Reform ◽

Insurance Policy ◽

Political Outcomes ◽

State And Local ◽

Local Levels ◽

Ruling Party ◽

Political Insurance

AbstractAfter seven decades of Mexican judicial subordination, President Ernesto Zedillo in 1994 introduced judicial reforms that increased the independence and judicial review powers of the judicial branch. The willful creation of a judiciary capable of checking the power of the president and the ruling PRI appears to counter political logic; but it makes sense as a political “insurance policy” to protect the ruling party from its rivals. PRI politicians, newly unable to control political outcomes at state and local levels and unsure if they would continue to dominate the national government in the future, opted to empower the Mexican Supreme Court as a hedge against the loss of office. This article argues that the likelihood of the reforms' producing an empowered judiciary increases as the ruling party's probability of reelection declines.

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