1 The Constitution of Argentina

A constitution portrays itself with the most accomplished writing. And yet, it is the…text that most captures the attention of reformers and utopians. This is so, precisely, for its being the sum of its transcendent ideals, apparently too far removed, while at the same time being exposed to the permanent interrogation of daily life.

—Horacio González¹

The Argentine constitution² is the story of an institution that was born rather sick, then recovered part of its health, subsequently refused to die despite enduring heavy blows, and eventually found some renewed strength.

Engendered in 1853, and amended a handful of times, the constitution is the oldest of those in force in Latin America (though ascertaining when an amended constitution is still the same as the one before is not straightforward). Still, pointing out the constitution’s nominal longevity may evoke a misleading picture of both its role and stability. The constitution was cast aside under the authoritarian spells Argentina underwent during the twentieth century, and it remained in force during less than fully democratic periods.

The constitution’s underperformance can be viewed as symptomatic of the country’s turbulent political history, though the opposite question remains open: did the constitution itself play a role in creating or exacerbating such turmoil? Since the return to democracy in the early 1980s, this much seems clear: attempts to manipulate the constitution have not been rare, and yet both most of the people and the political factions dominating the political landscape have embraced it as the cornerstone of political and social life. At the same time, the nation carries a heavy load of pending issues, from strengthening checks and balances and reining in the discretionary exercise of power, to solving the still lingering poverty and inequality. In short, a story of overwhelming success this is not, but it is one about a convoluted series of historical developments and modest, though tangible, accomplishment.

This chapter aims to introduce the reader to the origins, role, and structure of the constitution writ large, consisting of the text but also some interpretations of, and expectations around, it. It is divided into three parts. The first (1.2) delves into the origins of constitutionalism in Argentina. It reviews previous attempts at stabilizing political life through constitutional law and discusses the process leading to the 1853 constitution as well as the constitution’s underlying philosophy, ideational origins, main tenets, and reception. The following part (1.3) analyses the constitution’s role in political life and reviews the amendments made to it. The final substantive part (1.4) is devoted to the constitution’s main building blocks. It focuses on the structure of the political branches, the territorial organization of power, the judiciary, and constitutional rights.

Like other countries in the region under the beleaguered Spanish Crown, the people in the territory of what is now Argentina³ started experimenting with constitutionalism in the first decades of the nineteenth century. A proto-constitutional convention assembled in 1813 after the country’s first autonomous administration seized power.⁴ While a full constitution was not drafted, it produced significant outputs, including the emancipation of children born to slave parents. Two years later, a provisional constitution⁵ was adopted organizing power and stipulating rights and duties, though it was rejected by the provinces.⁶

A centralist constitution was drafted in 1819, after the assembly that met in the northern Tucumán province in 1816 and declared independence (and where a monarchic sentiment was widespread)⁷ moved to the port city of Buenos Aires, the dominant centre of the measly colony the Spaniards had established in the southernmost part of the continent. A reflection of Buenos Aires’ interests—what would become a signature issue—the constitution was dead on arrival, outright dismissed as it was by the interior.⁸ Due to the country’s vast expanse, some interior cities had enjoyed a degree of autonomy during the colony, with a ‘cabildo’ or another administrative institution established as part of the intricate colonial system. The constitution strongly weakened that autonomy.⁹

The 1819 constitution¹⁰ established Catholicism as the official religion (disrespect would be ‘viewed as a violation of the country’s fundamental laws’). The constitution’s legislature featured an aristocratic and corporatist Senate. A Director selected by both chambers for five years (and one chance at re-election) would head the executive. The constitution recognized some personal liberties, including the protection against arbitrary searches and freedom of speech; some of this language would find their way into the 1853 constitution.¹¹ To varying degrees, this coexistence of conservative and liberal traits would be a fixture throughout the century.¹²

Months after this constitution was enacted, the nation fell into a period of civil turmoil known as the ‘Anarchy Period’, during which whatever central authority there existed all but dissolved. In the ensuing years, many territories still not constituted as provinces did so and enacted a provisional constitution.¹³ In the mid-1820s, these self-declared sovereign provinces agreed to set up another constituent convention, which eventually would produce the 1826 constitution.¹⁴ Although an improvement over its predecessor, it was disallowed by the provinces for its insistence on centralization.¹⁵ The constitution used the expression ‘Argentine Republic’, one of the official names the country goes by today. It kept some of the rights provisions from the preceding constitution and the establishment clause. In its arrangement of the branches, though not in the organization of the territory, the constitution showed the influence of the United States’ Constitution, including the figure of a president; it would also influence the constitution of 1853.¹⁶

Beginning in the early 1820s, the provinces entered into pacts to provide for their mutual defence. The most important of these was the ‘Federal Pact’ signed in 1831 by Buenos Aires, Entre Ríos, and Santa Fe, forming a loose confederation and inviting others to join down the road.¹⁷ This confederation would recognize the tutelage of J.M. de Rosas, the self-proclaimed ‘Federalist’ leader of the customarily centralist (or ‘Unitary’) Buenos Aires, who had a grip on power for two decades as governor with ‘extraordinary’ powers and, for a period, the representative of this ‘confederation’ in foreign affairs. In their pacts, the provinces recognized a common aspiration to national unity and committed to drafting a federalist constitution soon, a horizon Buenos Aires kept extending out of strategic considerations.¹⁸

In 1852, Rosas’ former ally, governor of Entre Ríos and General J.J. de Urquiza, defeated him and remained in charge of the incipient state’s foreign affairs.¹⁹ Right afterward, the provinces agreed to sign or ratify the 1831 Federal Pact and to call for a constitutional convention. Taking part in the initial negotiations, the Buenos Aires legislature soon denounced them. Apart from a formal issue concerning the governor’s authorization to sign the agreement, articles of contention included the ‘dictatorial powers’ vested in Urquiza as Provisional Director,²⁰ the decision that each province sent two delegates to the convention, and the province’s reticence to give up its customs office.²¹ Buenos Aires would condemn the convention that met at the end of 1852.²² As a result, this dominant player would secede from the ‘confederation’, seriously damaging the convention’s output. A series of armed clashes in 1859–1861 resulted in its final re-incorporation after constitutional adjustments were introduced.

The convention that produced the constitution reflected the country’s elite’s political views. A majority at the convention was liberal-oriented in the European sense—defending a laissez-faire approach to the economy and some personal liberties²³—while more conservative in terms of political participation.²⁴ Most of the remaining delegates were conservative tout-court,²⁵ and some were advocates of commercial protectionism. The liberal views were well articulated in the handbook the convention consulted the most—the work of J.B. Alberdi.²⁶

A lawyer and writer, Alberdi had sought exile in Chile during Rosas’ tenure.²⁷ When Rosas fell, and news broke out that a constitutional convention was likely to meet shortly, Alberdi rushed a volume to kick-start the discussions, and, upon request, complemented it with a draft of a republican constitution.²⁸ Two intertwined principles permeated his work—the need to promote the country’s industry and progress and to populate its vast and desolate territory. The first constitutions after independence had been an ‘expression of the dominant necessity at the time—to end with the political power Europe had exercised…’.²⁹ Questions about ‘wealth, material progress, commerce, population, industry and, in short, all economic interest’ had been ‘second order’.³⁰ The time had come, said Alberdi, to tackle those issues. Constitutions should aim to express the needs of the times, and the times were exceptional in their demand for free commerce, industry, and growth.³¹ Yet, progress³² was inconceivable without expanding the country’s ‘meager’ population, around 1.3 million in 1857 while, according to Alberdi, its territory could easily house 50 million, a measure still not reached as of 2019.³³

The influx of specially-targeted migrants was considered key because of what Alberdi viewed as the locals’ backwardness. In this, he did not spar slurs. Even with a hundred years of education, the local poor, the gaucho, and indigenous people still could not be transformed into an English labourer who worked hard and lived in comfort.³⁴ (Alberdi might have profited from reading his contemporary Dickens.) The locals had been aiming at an overbroad target, disparaging Europeans for the sins of retrograde Spaniards; the best way to sow English freedom, French culture, and the industriousness of the man from Europe or the U.S. was to ‘bring [to the country] living pieces of them’.³⁵

While spontaneous migration was preferable, Alberdi thought that Argentina was not a natural destination for non-Spanish Europeans. The key was to manufacture incentives to invite those migrants. Among these were ample guarantees of property and free commerce and the construction of railroads to take them to the interior. But the cornerstone were religious liberties, so a protestant English or German could express their ideas in the open.³⁶ Notably, this did not mean the Catholic Church should be relegated—Alberdi’s draft would feature an establishment clause according to which the state ‘adopts and sustains’ the Church.³⁷ But everyone should be free to embrace other religions.

Alberdi’s dream was half-realized. Argentina is in part a nation of immigrants. In several waves from about 1870 to 1970, the nation received a net influx of 5.5 million migrants. (Until the 1960s, immigration was chiefly European.)³⁸ At the beginning of the twentieth century, one in three men was foreign-born.³⁹ Yet the average migrant was Italian or Spanish instead of English or German.

Three other issues in Alberdi’s seminal text are worth-mentioning. The first concerns executive power. Alberdi would take inspiration, and borrow at large, from the U.S. Constitution. However, he considered that the U.S. President would be too weak for Argentina. He suggested instead to turn the attention to Chile,⁴⁰ where, in 1833, a conservative constitution had been adopted featuring a strong president.⁴¹ Though his concrete proposals for the president were shy of that constitution’s stipulations, Alberdi viewed the latter as suggesting that ‘between an absolute lack of government and a dictatorial government’ there stood ‘a constitutional president able to exercise the powers of a king at the moment that anarchy defies him’.⁴²

A second important issue was federalism. Although a supporter of centralized power as an ideal notion, Alberdi considered it ill-suited for such a vast country.⁴³ The other extreme was even more dangerous, as the experience in the U.S. under the Articles of the Confederation had shown.⁴⁴ The solution, he said, was to strike a balance.⁴⁵ Yet, when turning to concrete proposals, Alberdi favoured centralization beyond the Philadelphia model—e.g., conditioning the entry into force of local constitutions to Congress’ approval.⁴⁶

A third issue concerned the electoral system, on which ‘the fate of the republican system’ rested.⁴⁷ Alberdi thought that the country needed a ‘grave alteration’ of its electoral rules, not through the expansion of the franchise but a restriction of it.⁴⁸ To ‘obviate the inconveniences a brusque suppression of the rights the multitude had enjoyed would bring’, he suggested a system of indirect elections, the best way to ‘purify universal suffrage without reducing it or suppressing it, and to prepare the masses for the future exercise of direct vote’.⁴⁹

A constitutional convention composed of twenty-four delegates from thirteen provinces met in Santa Fe City from 20 November 1852 to 1 May 1853, though the bulk of the text was rushed in the final month.⁵⁰ The final draft was the main responsibility of Santiago del Estero province delegate J.B. Gorostiaga, head of the drafting committee, with the input of Entre Ríos province delegate J.M. Gutiérrez.⁵¹ Miller argues that there was ‘little explicit discussion’ of Alberdi, but that the drafting committee heavily relied on his text.⁵² The text bore an obvious resemblance to the U.S. Constitution,⁵³ though it deviated from the latter in important respects. The delegates resisted a proposal from the convention’s president, F. Zuviría, to put off discussions because of the absence of, and hostility from, Buenos Aires.⁵⁴

The constitution created a republican government with a strong president as the ‘supreme chief of the confederation’. Elected through an electoral college, the president would serve for a single six-year term with the possibility of non-immediate re-election. A bicameral Congress would be composed of a lower house (Diputados), with representatives elected by the people of each province taken as a single district under plurality voting, and a Senate, where provinces were each represented by two senators elected by local legislatures. Under a federal arrangement, the provinces retained all non-delegated powers and were guaranteed political autonomy upon conditions. Still, the convention adopted most of Alberdi’s proposals reinforcing centralization and added others like Congress’ power to impeach local governors. Following the U.S. Constitution, a Supreme Court was created at the apex of the federal judiciary. With the memory still fresh of the ‘extraordinary powers’ ceded to Rosas, who had taken over the three branches (i.e. suma del poder público), the constitution banned Congress from making similar concessions.

The convention embedded several civil liberties, partially contained in the previous constitutions. Unsurprisingly, one of the most divisive issues concerned freedom of religion and the separation of church and state. In the end, the liberal wing—represented by such delegates as Zapata, Seguí, and Gorostiaga—clearly prevailed. A statement was introduced that the state ‘sustains’ the Roman Catholic Church,⁵⁵ resisting the conservative demand (coming from such delegates as M. Leiva and P. Zenteno) to establish the church as the state’s religion (even as the ‘only true religion’).⁵⁶ The text also included a guarantee of freedom of religion. As a consolation prize after ‘so many concessions regarding religion’, stipulations were added that the president and vice-president embrace Catholicism. But a request from their proponent, delegate Leiva, was rejected to extend this requirement to all public servants.⁵⁷ (Delegate Zapata opposed the proposal for its being ‘unconstitutional, useless, and unusual’.⁵⁸)

Since it did not provide for the provinces’ ratification, the text was promulgated by provisional president Urquiza on 25 May 1853 and sent to the provinces so they pledged allegiance to it.⁵⁹ A month later, a priest from the northwestern Catamarca province, M. Esquiú, famously endorsed the text—considered too liberal by many—for its promise of unity after decades of internecine conflict.⁶⁰

One notable absence in the convention was D.F. Sarmiento, a liberal writer and politician who would become president (1868–1874). Initially elected to the convention (by unanimity, he liked to add),⁶¹ the centralist Sarmiento penned the first commentary of the constitution months after its inception.⁶² He noted that the preamble followed, almost verbatim, the U.S. Constitution’s,⁶³ but thought that the new country should embrace the similarity. Argentina’s politicians would surely find inspiration in the seasoned U.S. statesmen, and the new Supreme Court should follow the U.S. Supreme Court’s case-law (which it initially did).⁶⁴ In a reply, the more traditionalist Alberdi retorted that the constitution was far from being a copy, and rightly so—a foreign model should not be imported without considering local needs.⁶⁵

Sarmiento criticized both Alberdi’s and the constitution’s use of the word ‘confederation’ to describe the pre-1853 situation. No document emanating from the provinces’ true will had created a genuine confederation; the existing arrangement had been an imposition of ‘tyrant’ J. M. Rosas.⁶⁶ The constitution was instead a creature of the whole nation. Sarmiento also argued, against Alberdi, that a state had no power to ‘adopt’ a religion and that the ‘sustain’ clause should be read as imposing a financial obligation to support the church—⁶⁷ the preferred interpretation since, and one that delegate Gutiérrez had defended.⁶⁸

Surely, a constitution is as good as the quality of the political, social, and individual life that springs under it. With the reincorporation of Buenos Aires in 1860–1861, the constitution got off to a good start. Nevertheless, constitutionalism and democracy would demand considerably more time to mature.

In 1862, B. Mitre, a Buenos Aires centralist, was elected as the first president of the united nation. Starting in the mid-1870s and up to 1916, however, the country would be ruled by a loose coalition of politically conservative (mostly secular) provincial leaders, in a period often known as the ‘oligarchic regime’ coinciding with others in the region.⁶⁹ These decades were characterized by fairly sustained growth (led by exports of wool and cattle hides and, later, cereals and meat) and the violent expansion of the agricultural frontier against indigenous communities.⁷⁰ They also marked a period of modernization of the almost non-existing national infrastructure.⁷¹

At the political level, voting was neither secret nor mandatory, turnout was low, and elections were rigged. Until 1912, the election of both legislators and delegates to the electoral college took place, almost without interruption, under the so-called ‘complete list’, with the party receiving more votes taking all seats in the district.⁷² Toward the end of the nineteenth century, vote manipulation and the lack of alternation were denounced by the incipient Radical Civic Union (UCR) Party.⁷³ The party would win the election of 1916, placing its popular leader H. Yrigoyen in power after it extracted from the previous administration the passage of a statute establishing secret, mandatory, and ‘universal’⁷⁴ voting.⁷⁵ Also, an ‘incomplete list’ system would give one-third of legislative seats in the lower house to the party with the second-largest yield.⁷⁶ Democracy beyond its most minimalist form of periodic (though not necessarily transparent) elections was born in 1916.⁷⁷

Heavy clouds would loom in the horizon, however. The period initiated also signaled the moment when, after its first electoral defeat, the conservative establishment gave up on the constitution’s transfer of power regulations. On 6 September 1930, a military coup orchestrated by a coalition of conservative forces ousted Yrigoyen, who had been returned for a second term two years earlier.⁷⁸ The Supreme Court did not rise to the occasion, and neither would after a subsequent coup in 1943. Overstepping its jurisdiction, it issued a sua sponte ruling validating the coup.⁷⁹ The coup inaugurated a series of military interruptions of elected governments (1943, 1955, 1962, 1966, and 1976), the banning of parties, and intra-elite splits within the military, lasting until 1983.

Scholars have noted that constitutions are more likely to take root the more they become self-enforcing—the better off factions and stakeholders are within its structure than outside it.⁸⁰ The election of Yrigoyen, and more clearly so Lieutenant-General J.D. Perón later, opened the door to much needed social inclusion, which triggered the establishment’s reaction to free itself from the constitution’s strictures. As is well known, these years also marked the emergence of the armed forces as a political actor with its own interests and agenda. Many would come to see the military option as a valid way to address political crises, side-stepping the constitution at their convenience.

The sophistic justification that accompanied the overthrow of governments was often the restoration of the force of the constitution. The leader of the 1930 coup, the arch-corporatist General J.F. Uriburu, declared to be moved by the ‘respect for the Constitution…and [a] desire for a return to normalcy’.⁸¹ In 1955, the military said that ‘[Perón] ha[d] destroyed constitutional rights and replaced the legal order with his despotic and incontrollable will’.⁸² In no case, however, would the constitution fully recover its force and, in most, it would be made subservient to the coup leaders’ aims. This happened in 1955, 1966, and 1976. In 1976, a coup inaugurated a period (today simply identified as ‘the dictatorship’) that put into work a systematic plan of state repression resulting in the illegal arrest, torture, murder, and disappearance of thousands. The Junta responsible for it declared that officials would ‘adjust their action’ to the ‘basic objectives set by [the Junta]…as well as the national and provincial constitutions insofar as they do not contradict the former’.⁸³

In 1983, the dictatorship imploded due to economic crisis, international pressure concerning human rights abuses, and the utter failure of the ill-advised military effort to recapture the Malvinas Islands (Falklands). All political bans were lifted, and R. Alfonsín, a center-left Radical Party leader and former human rights lawyer, was elected with the promise to investigate and punish human rights violations. The battered constitution of 1853 played a significant role in the transition. It symbolized for many the promise of a return to democratic rule and the respect for everyone’s liberties.⁸⁴ Alfonsín’s stomp speeches used to end with an enunciation of the text’s preamble, to everyone’s cheer.

The ever-recurrent economic crises account for other key political events. In 1989, an inflationary spiral motivated Alfonsín’s exit from power months ahead, allowing the incoming Menem (1989–1999) to launch an aggressive neoliberal programme to ‘normalize’ the economy by privatizing state enterprise and dismantling most forms of state intervention. In 2001, a very serious economic, social, and political crisis led to scandalous spikes in poverty and inequality levels and citizens’ mobilization to denounce the entire political class. This pushed President De la Rúa to resign; in the absence of a vice president, Congress chose a transitional president for two years, after which N. Kirchner was elected. In the past, such crises would have been faced with tanks in the street, but the military was by now weakened and reined in by a democratic consensus.⁸⁵

References to ‘democracy’ in Argentina are usually circumscribed to the period of continuous normal (or quasi-normal) power transfers started in 1983. This year marked a moment of enormous hope, later thwarted in part by the events described above. Yet, it was the dawn of a new era. For the first time, it could be claimed that people were free to choose among political options without forced exclusions and that anyone’s rights would in principle be protected under the constitution.⁸⁶ For most people, democracy and constitution went hand in hand.⁸⁷

The text adopted in 1853 is the backbone of today’s constitution, though important clauses were either replaced or incorporated into it. Comparatively, the constitution of Argentina has been subject to few alterations—and even fewer of consequence. Either regular or irregular change took place in 1860, 1866, 1898, 1949, 1955–1957, 1972, and 1994, some of which transient.

The original constitution’s Section 30, still in force, establishes the amendment process. The text can be amended entirely or in part through a convention after Congress passes a statute declaring the need for its revision with a two-thirds vote of ‘its members’. This section’s language left questions relatively open. One was whether the majority should be counted against all sitting members or those present, though scholars have tended to embrace the former and straightforward view since the constitution is explicit when it refers to present members. The section did not stipulate how the convention would be selected, though the prevailing interpretation required a popular vote. At a more fundamental level, it did not establish whether amendments other than those included in the statute could be discussed at the convention. Scholars have been inclined to interpret that the statute indeed sets the convention’s boundaries, a criterion supported by the Supreme Court in 1999.⁸⁸ In 2017, however, a majority at the Supreme Court concluded that only a grave departure from the statute by the convention would violate the constitution.⁸⁹ These gaps would prove problematic, but even more so would the existence of legally and politically irredeemable amendments, enacted as they were by authoritarian governments.

Two questions are not treated at length. The first is about intangibility. While, in the past, commentators defended the existence of unamendable clauses (particularly those concerning the privileged status of the Catholic Church),⁹⁰ most contemporary commentators arguably reject that view. In a 2017 decision, however, a justice at the Supreme Court implied in dicta that some rights may be unamendable.⁹¹ The second question concerns the discussion of whether some of these episodes of change amounted to the enactment of a new constitution. From a positivistic standpoint, any alteration to the constitution’s text yields a new constitution.⁹² Other than this, one may adjudicate that question on multiple grounds, among which are the following: (a) whether the changes made were of sufficient magnitude to speak of a new text; (b) whether the text’s founding philosophy or principles were altered; (c) whether the delegates declared they were enacting a new text; (d) whether there is agreement or quasi-agreement on the point among scholars.⁹³ Judging the most important changes under these criteria, only those introduced in 1949 would appear to have produced a new constitution, since all criteria suggest so.

In 1859, the national government faced off militarily against Buenos Aires, giving an indecisive win for the former resulting in the reincorporation of the latter. Following two pacts, a local convention in Buenos Aires suggested several modifications that a national convention (selected in proportion to each province’s population) subsequently enacted with some changes in September 1860.⁹⁴

Most of the changes introduced decentralized power to the benefit of Buenos Aires.⁹⁵ The then city and province thus went from proposing a centralized constitution in the 1820s to demanding a degree of decentralization decades later, while many of the remaining provinces followed the opposite trajectory. In the view of Gibson and Falleti, what explains the about-face is that the provinces had come to see in a strong central government the best shield against the hegemony of Buenos Aires.⁹⁶ The capital city moved back from Paraná City (in Entre Ríos province) to Buenos Aires City. Yet a decision in 1880 to federalize the district capital and split it from the rest of the namesake province somewhat softened Buenos Aires’ primacy.⁹⁷

Among the changes, the reasons justifying the national government’s ‘intervention’ in a province’s affairs were made more restrictive. In the seven previous years, all but two of the provinces had been ‘intervened’ by decree;⁹⁸ politically-motivated interventions would continue.⁹⁹ Scholars debated the nature of these changes. The constitution had introduced a gag rule banning amendments for ten years. A question was whether the changes had been an amendment, and hence contravened the constitution, or, rather, a final expression of ‘original’ constituent power.¹⁰⁰

The election of Perón in 1946 shook the incipient party system in place.¹⁰¹ Armed with a redistributive agenda, Perón quickly consolidated power, benefitting from the electoral system in force (the so-called ‘incomplete list’ system) and his control of the party.¹⁰² He also resorted to such legally questionable strategies as the impeachment of most Supreme Court justices and the subsequent packing of the court. The central motive alleged for impeachment was both weighty and suspect—the justices’ sua sponte upholding of the 1930 and/or 1943 coups, which Perón himself had supported.

Perón and his supporters claimed that the constitution needed revision since it reflected the extreme individualism embraced by the founding generation; they advocated instead for a document committed to social justice and the defence of the national interest.¹⁰³ As it was, the constitution erected a barrier to Perón’s political project, since it banned immediate re-election.¹⁰⁴ A statute declaring the need for the reform eventually passed in August 1948. The Peronist Party had enough votes to support the measure at the lower house (Diputados) by a majority of two-thirds of its membership, but not on the day of the voting session.¹⁰⁵ Short of achieving that majority, the bill was passed by over two-thirds of those present, but under two-thirds of total members, with the opposition of the UCR Party.¹⁰⁶

The convention met in Buenos Aires City from January to March 1949,¹⁰⁷ introducing sweeping changes to the existing constitution. With 70 per cent of the seats, the Peronist would control the agenda and votes.¹⁰⁸ Although Perón fathered the constitution, he benefitted from the intellectual input of A.E. Sampay, a nationalist scholar turned Peron’s advisor who had drafted an initial proposal and sat at the convention.¹⁰⁹ (Perón would declare that Sampay’s speeches at the convention ‘were part of the authentic doctrine of the 1949 Constitution’.¹¹⁰)

The new constitution was characterized by a redistributive bent, the concentration of executive power, and a degree of social conservatism.¹¹¹ The original preamble was adjusted to reflect the need to create ‘a socially just nation, economically free and politically sovereign’. A new chapter was devoted to the rights of the worker, the family, the old, education, and culture. Property rights were subjected to a social function, and capital was put in the service of the national economy and domestic welfare. The state was authorized to intervene in the economy and to create monopolies to protect the national interest. Most natural resources were declared national property. A section established that the state ‘does not recognize the liberty to attack liberty’.¹¹² And a new power to deal with loosely defined emergencies (the ‘state of prevention and alert’) was added.¹¹³ Under it, the enjoyment of rights could be temporarily restricted instead of suspended (as already authorized by the state of siege), a distinction without a difference.¹¹⁴ The real difference was that this new institution sidestepped Congress.¹¹⁵ The clause concerning the state’s support of the Catholic Church was preserved (Perón would clash with the Church years later.)

In terms of the separation of powers, the reform made uniform the tenure of diputados and senators (six years), gave Congress the power to approve a budget for up to three years, and replaced the electoral college for the election of the president by direct election under a plurality system.¹¹⁶ It forced provinces to adjust their constitutions to enhance cooperation with the national government;¹¹⁷ And it authorized re-election (immediate and unrestricted). In early March, the Radicals left the convention protesting the latter.¹¹⁸ Such was the government’s majority that it did not need those delegates to obtain a quorum to adopt the constitution.¹¹⁹ A temporary provision was finally added outside the debate to force judges to obtain a new Senate confirmation of their appointments.¹²⁰

In September 1955, a coup (self-proclaimed as the ‘Liberating Revolution’) deposed Perón and replaced most officials, including Supreme Court justices.¹²¹ In April 1956, the military government issued a ‘proclamation’ cancelling the constitution of 1949 and declaring the constitution of 1853 in force with all the amendments up to that year insofar as they did not contradict the ‘revolution’s aims’.¹²² According to the military government, drafting or amending a constitution was ‘the most transcendent act in the institutional life of states’, and demanded ‘authentic, absolute freedom’. The constitution of 1853 had been the result of such free determination, while the 1949 constitution, whose ‘sole aim [had been] to obtain [Peron’s] unlimited reelection’, had not.¹²³

The constitution of 1949 had arisen from a questionable procedure and lacked the pluralism desired of a constitution-making moment. The irony cannot be lost on anyone, however—the authority of those who cancelled it was nil. One of the five justices appointed in 1955, J. Vera Vallejo, resigned in protest, claiming he had sworn to honour that constitution, then still in force.¹²⁴ Invoking its ‘revolutionary powers’, the government identified various clauses whose revision a convention should consider and the direction a hypothetical reform should take, and called for an election to select delegates.¹²⁵ The Peronist Party was prevented from taking part. In this ‘most transcendent act in the institutional life of states’, the amendment procedure was flatly ignored.¹²⁶

The convention met in Santa Fe City for over two months but barely accomplished anything since the second largest party seated at it (the UCR Intransigente) abandoned it.¹²⁷ Other delegates followed suit, leaving it with a fragile quorum.¹²⁸ Virtually all the ill-fated convention had to show was the incorporation of three important paragraphs to the constitution (at the end of section 14) recognizing work-related rights, the legitimacy of union activity, and social security rights.¹²⁹ The convention was reclaiming some of the social justice principles from the 1949 constitution, which to date remains dead without any democratic official pronouncing it.

In 1966, a right-wing military coup ousted the Radical Party President A. Illia. After intra-elite splits, the military committed to holding elections in 1973. For the first time since 1955, they would include the Peronist Party, though Perón himself would be unable to run.¹³⁰ (Another election in 1973 put him back in the presidency after his surrogate won and resigned.)

Allegedly to prepare the country for a return to democracy, though in part to tie the Peronists’ hands, the military government changed the (already subservient) constitution without bothering to set up a convention.¹³¹ The change was meant to die out within a few years unless a convention chose to keep it. Among the alterations introduced, the president’s tenure was shortened from six to four years with the possibility of one re-election, and the electoral college was abolished. The Senate’s composition and mode of election were changed to three senators directly elected, two of which would go to the plurality and the third to the party with the second-largest yield. No convention ever ratified this amendment, though these specific changes would be adopted in 1994.

The latest amendment to date (1994) was the most plural of all, although the process leading to it would be criticized on political grounds. An amendment had been on everyone’s agenda. President Alfonsín (1983–1989) planned to have the constitution changed to address the political system’s instability and reinforce democracy, and probably also to lift the ban on re-election. In 1985, he set up the Council for the Consolidation of Democracy. Headed by the liberal legal philosopher C.S. Nino, it would be tasked with proposing inputs for a reform. The council’s main verdict¹³²—in vogue during the third wave of democratization in the 1980s and early 1990s—was that so-called hyper-presidentialism was the main culprit.¹³³ Too much power accrued in the Argentine president, as head of state and chief executive, commander in chief, the appointer of Buenos Aires City’s mayor and, often, the president’s own party’s leader. The public directed all their hopes toward this official, ultimately leading to disappointment.¹³⁴ Also, the presence of two organs with a democratic pedigree, the executive and Congress, made politics a zero-sum game.¹³⁵ The president’s fixed mandate led to a crisis when faced with a defying Congress.¹³⁶

Though these proposals (including a switch to semi-presidentialism¹³⁷) never materialized as a reform package,¹³⁸ some would feature in discussions around the 1994 amendment.¹³⁹ In the early 1990s, new President Menem floated a proposal to lift the ban on immediate re-election. The UCR (still headed by Alfonsín) initially criticized the change.¹⁴⁰ After the midterm elections of 1993, Menem had the reform package approved in the Senate and devised a strategy to circumvent the UCR’s opposition in the lower house.¹⁴¹ He threatened to call a non-binding referendum and, if the outcome was auspicious, to follow the lead of Perón and have the bill passed by two-thirds of those present.¹⁴²

Likely fearing electoral defeat and alleging that he wanted to minimize the institutional damage Menem could inflict, Alfonsín met with him to negotiate a deal.¹⁴³ The UCR would give the green light to re-election in exchange for measures to soften the executive’s gravitational force. Alfonsín achieved the support of his UCR Party when the proposals arising from the negotiation were bundled together, limiting the future convention to a blanket ‘yes’ or ‘no’ vote.¹⁴⁴ Apart from the blanket package, the statute would authorize the convention to consider other issues. Though third parties and public opinion reacted negatively to the secret negotiation (nicknamed the ‘Pacto de Olivos’, where the president’s residence is located), the bill passed. The election of delegates gave Menem’s centre-right alliance a majority, though not an absolute one.¹⁴⁵

The convention mostly met in Santa Fe City for three months and, after lively discussions, approved the text in August 1994. The changes introduced were considerable (see 1.4). Unsurprisingly, the blanket package was approved, but changes were also made outside it. Though initially perceived as the product of a behind-closed-doors pact, the amendment would eventually gain acceptance.¹⁴⁶

This last part briefly discusses the constitution’s main tenets, starting with the elected branches and then turning to federalism, rights, and courts, and judicialization. Throughout, temporal references point to the situation before and after 1994.

The country’s president is the head of state, the chief executive, and the commander in chief. Since 1994, presidents serve for four years with the possibility of one immediate re-election.¹⁴⁷ The electoral college was eliminated that year. The resulting system struck a middle ground between a plurality formula, favoured by Menem’s Peronists, and a majority runoff, favoured by the Radicals.¹⁴⁸ A candidate is elected president without a runoff if her share of the vote is at least 45 per cent or at least 40 per cent if she is ahead by a 10-point difference. The latest amendment removed the requirement that the president embraced Catholicism.¹⁴⁹

The constitution features a single way out for a president and vice president—impeachment. The corresponding sections are borrowed from the U.S. Constitution, though the grounds are looser in the Argentine case.¹⁵⁰ The lower house, Diputados, accuses and the Senate judges; to convict, two-thirds of present senators must agree. The power of impeachment has never been used against those officials; for decades, the establishment just found it less burdensome to topple the government.

Negretto has pointed to a tendency in amendments in the region—a reduction of the president’s government powers, particularly appointing powers, with a simultaneous increase in the president’s legislative powers and the introduction of re-election clauses.¹⁵¹ Argentina is not an exception, with qualifications.

A difference between the U.S. President and its Argentine counterpart is that the latter has never needed congressional confirmation of cabinet or ministerial appointments. This includes the Chief of Cabinet (Jefe de Gabinete), a coordinating ministry created in 1994 to appease the opposition by relieving the president from some of his duties and acting as a liaison with the legislative.¹⁵² Yet the Chief’s office is considerably less salient than that of a prime minister—what the opposition aspired to.¹⁵³ The Chief is an appendix of the executive, appointed and removed¹⁵⁴ by the president.¹⁵⁵ The official is supposed to appear before Congress ‘at least once each month’, something most often replaced by written reports.¹⁵⁶

The president appoints other officials, some with the Senate’s confirmation, like all federal judges, ambassadors, and ranked military officials. Since 1994, the Senate confirms appointments of Supreme Court justices by a two-thirds vote of present senators (instead of simple majority) in a public session; other federal judges are preselected by a special council. That year, the president lost the power to appoint the Buenos Aires City mayor, now directly elected. It is indeed the case that the president’s appointment powers have been curbed.

The 1994 amendment altered the president’s legislative powers in a way that reflected the weight of the players at the negotiation.¹⁵⁷ The opposition got less that it wanted; the resulting stipulations are either imprecise or leave central aspects for Congress to regulate.¹⁵⁸

The president is a relevant player in the ‘normal’ legislative process and her legislative powers reach beyond it. Starting with the former, the president ceremonially opens a now-expanded legislative period, may extend Congress’ sessions and call for extraordinary sessions during recess, signs bills and have them published, and issues decrees to put them into work. The president can also veto a bill within ten working days, after which it is considered non-vetoed. The chambers can cancel a veto by a two-thirds vote.

Before 1994, the validity of line-item vetoes was in question. (The fleeting constitution of 1949 had authorized them.) Since the constitution only mentioned package vetoes, many thought they were banned. Yet some presidents, and particularly Menem, had resorted to them, cherry-picking portions of a bill and chipping away the rest.¹⁵⁹ The amendment started by announcing a general ban (‘If a bill is subject to a line-item veto, the remaining part will not be deemed approved’) only to allow for ample exceptions.¹⁶⁰ The non-vetoed parts can be signed into law if they have ‘normative autonomy’ and if doing this ‘does not alter the spirit or the unity of the bill passed by Congress’. Compared to the actual use of line-item vetoes without any guidelines, this was a step forward, though both requirements are open to interpretation.¹⁶¹

The most controversial of the president’s powers concern law-making powers outside the ordinary legislative process. Most democratically-elected presidents had issued the now-called ‘decrees of necessity and urgency’ to circumvent Congress in matters that fell within the purview of the latter, though, up to Menem, the use had been sporadic.¹⁶² Presidents’ incentives for doing so are high. When Congress is controlled by the opposition, they allow the president to sidestep it. When it is not, they let the president save the time and effort the legislative process involves, avoid an elongated discussion of possibly uncomfortable issues, and solve collective action problems.¹⁶³ A likely result is a loosening of checks and balances and a further concentration of power, though some dispute this conclusion.¹⁶⁴

Before 1994, the constitution was silent about these decrees, though the Supreme Court had upheld its use in an important case concerning the freezing of bank deposits.¹⁶⁵ Similarly to the case of line-item vetoes, the amendment banned them as a general rule but allowed for exceptions that risked hollowing out the ban.¹⁶⁶ The president ‘shall in no event issue provisions of legislative nature, which shall be considered absolutely and irreparably null and void’. Yet the ban is lifted under ‘exceptional circumstances’, when it is impossible to follow regular legislative procedures. The constitution does impose a non-negligible limitation—decrees cannot regulate tax matters, criminal or electoral law, or political parties.

The president jointly signs these decrees with the cabinet, and the joint congressional committee that also supervises line-item vetoes and delegated decrees issues a report for Congress to discuss. The constitution mandated Congress to regulate the effects of this oversight, though it did not establish whether the lack of oversight would void the decree. The Supreme Court chose an interpretation favourable to the president. Shielded in it, incumbents delayed the passing of the statute, which only saw the light in 2006, and in a deficient fashion.¹⁶⁷ Presidents following Menem would continue to resort to this tool,¹⁶⁸ though the Court placed some limitations.¹⁶⁹

The amendment regulated delegations from Congress to the president.¹⁷⁰ The trajectory was the same—a liberal use in the past against the constitution’s silence, a partial endorsement by the Supreme Court, and a seeming blanket prohibition allowing for exceptions.¹⁷¹ Says the constitution: ‘Legislative powers shall not be delegated…save for issues concerning the administration and public emergency’, in which case Congress sets a time frame and imposes conditions. The joint committee intervenes.

In sum, the amendment revised the president’s legislative powers. Does this amount to an expansion of such powers, as Negretto observes? Possibly, though the answer is not crystal-clear. One may have concluded from the previous text’s silence regarding line-item vetoes, delegations, and emergency decrees that they were banned. On the other hand, the amendment recognized powers already in use that did not face any supervision. Faulty as it was, the new regulation in part tamed them, and the admittedly vague principles introduced can still be employed to limit their exercise. Surely, the amendment should have been more careful in the wording of the relevant clauses, though it is not surprising if it was not.¹⁷²

Argentina’s bicameralism is symmetrical.¹⁷³ Both chambers (the lower house, Diputados, and the upper house, the Senate) must explicitly concur for legislation to pass, so they are coequal in their veto capacity. Save for exceptions, they also share the power to initiate bills and control the executive. The houses are also incongruent.¹⁷⁴ While both diputados and senators are elected in districts as large as each province, they differ in terms of the length of their tenure their qualifications, and their mode of election. (Presidential elections only partially coincide with legislative ones.) In Llanos and Nolte’s view, these two traits, symmetry and incongruence, make disagreement to be expected within Congress.¹⁷⁵ At a more general level, the traits would in principle allow Congress ‘to represent interests different from those in the lower house, contribut[e] to the system of checks and balances, improv[e] the quality of legislative production, and produc[e] more stable legislative results’.¹⁷⁶ On paper, the Argentine Congress is a powerful actor.

Members of the lower house, Diputados, are elected in twenty-four multi-member districts corresponding to each province plus Buenos Aires City.¹⁷⁷ The constitution has always established that legislators are elected by ‘simple plurality of votes’. The country has experimented with different systems, including the already mentioned ‘complete’ and ‘incomplete’ list systems and even a first-past-the-post method in single-member districts (from 1903 to 1905, when the first socialist was elected to the house, and from 1951 to 1955, under Perón).¹⁷⁸ The latter contradicted the mandate that districts are coextensive with the provinces.¹⁷⁹

The country adopted proportional representation employing a d’Hondt formula for the first time for the 1957 election of delegates to the constitutional convention (with the Peronist Party proscribed), and this is the system currently in place to elect diputados.¹⁸⁰ According to the legislation, representatives are elected from closed lists arranged by the parties, something often criticized for obstructing accountability.¹⁸¹ The lower house’s apportionment follows a regulation enacted under the dictatorship that amplifies the membership of small provinces (each province has a minimum of five seats) and does not reflect the latest censuses. This makes Diputados one of the twenty most malapportioned lower chambers in the world.¹⁸²

The 257 diputados now serve for four years. They are renewed in halves every two years and can be re-elected (the former creates a buffer between current popular sentiment and the house’s membership).¹⁸³ In 1991, Congress passed a gender-quota statute; at least 30 per cent of candidates on a list had to be women.¹⁸⁴ While the number of female legislators increased as a result, it was still considerably behind male representation.¹⁸⁵ In 2017, a new statute established that the lists of candidates for both houses must be compiled alternating a woman and a man.¹⁸⁶

Since 1994, the Senate is composed of seventy-two directly-elected members, three for each of the twenty-three provinces plus Buenos Aires City.¹⁸⁷ The most-voted party in each province receives two seats and that with the second-largest yield receives the third.¹⁸⁸ Senators serve for six years¹⁸⁹ and a third of the provinces’ delegations are renewed every two years.¹⁹⁰

Both the equality in representation and the dramatic variation in population density in the country make the Senate the most malapportioned upper house in the world.¹⁹¹ The Senate reflects the country’s federal structure, but upper houses in a few other federal countries are much less as malapportioned.¹⁹²

Congress has a broad mandate to legislate, so there is no point in detailing its enumerated powers, several of which mirror the U.S. Constitution. The houses have some exclusive powers. Bills dealing with tax reform and military recruitment as well as those arising out of popular initiative originate in Diputados. Bills concerning the provinces’ interests (a tax-sharing scheme and those on local development) initiate in the Senate. The Senate has controlling functions. It authorizes the president to declare a state of siege in cases of foreign attack and consents to appointments. As noted, Diputados accuses in impeachment processes, while the Senate judges.

Since 1994, citizens can introduce a draft bill that Congress is supposed to discuss, though the requirements imposed by both the constitution and the legislation discourage participation; consequently, this power has rarely been used. The same applies to binding referenda, which Congress can call at the initiative of Diputados (nonbinding referenda is also on the menu).

Taking stock of the elected branches’ work and interactions is a normatively-charged enterprise in which some ends or values can be privileged over others—the efficacy or speed of state action, horizontal accountability, responsiveness to majorities, democratic deliberation, pluralism, and so on. Also, while the constitution is short of honouring some of these ends or values, other pitfalls come from without, either from legislation or the way politics has evolved in the shadow of it.

The Argentine constitution has vested extensive authority in the president. On paper and in practice, the president has an ample repertoire of tools at her disposal either to circumvent Congress or to obstruct it. This decreases the influence of the otherwise powerful-looking Congress.¹⁹³ Now, as commentators have noted, Congress is not in practice a rubber stamp. Rather, following Cox and Morgenstern, it seems a ‘reactive’ institution, without a lot of latitude to pass legislation on its own but with the power to ‘accept[], amend[], or reject[]’ the executive’s proposals.¹⁹⁴

Expectedly, the actual balance between the branches, and within the houses, depends on the electoral yields of the president’s party.¹⁹⁵ If the president’s party has a majority in both houses, the odds are clearly in her favour. Still, this does not always ensure a completely subservient Congress, since intra-coalition divergences (particularly across the houses, a function of incongruence) often forces the president to bargain.¹⁹⁶ Other elements are key, especially economic crises. Crises have usually entailed power redistributions away from Congress, as in statutes delegating powers to the executive that do not always return to Congress after the worst has passed.¹⁹⁷ Additionally, the president does not face stout legislative oversight. To have teeth, instances of control typically demand a majority in both chambers or close to it.¹⁹⁸ Having said this, it is far from obvious that a switch to a parliamentary or semi-presidential system, which some have recommended, would solve these issues.

In 2001, Congress helped normalize a power transition after President De la Rúa’s resignation within the context of a serious economic crisis, thus reclaiming a new function. For some scholars, this means that local presidentialism can acquire quasi-parliamentary traits in times of such crisis,¹⁹⁹ so it is not impossible for it to deal with serious challenges within normal constitutional boundaries, messy as the solutions may be.²⁰⁰

In short, the constitutional regulation of the electoral branches is tilted toward the president while leaving Congress with relatively feeble mechanisms of oversight. This favours unilateral action and weakens checks and balances and deliberation. A more balanced (and carefully-worded) constitution may be a step forward. Yet, as Negretto says, the recurrence of crises will always give the executive a reason (or excuse) to accumulate power, much as the absence of electoral uncertainty will provide incentives for the incumbent to discount the future and act in ‘constitutionally provocative ways’.²⁰¹ The constitution can only achieve so much.

Riker’s model of sovereign units ‘coming together’ to form a bigger state seems to fit the origins of Argentina’s federalism.²⁰² However, Gibson and Falleti have claimed that this model conflates different moments—national unification, the adoption of a federal system, and the subsequent centralization of the system—and does not take into account an ‘interprovincial conflict dimension’.²⁰³ As noted, both the interior provinces and Buenos Aires came to reverse their initial—and opposing—preferences concerning centralization.

Each of the country’s twenty-three provinces is an autonomous unit, with the power to enact a constitution, elect their own officials, and pass legislation; since 1994, this is true of Buenos Aires City as well. Relative to other federal systems, like the U.S. or Mexico, the provinces’ legislative power is curtailed since they cannot enact criminal, civil, commercial, or labour codes. In principle, provinces retain non-delegated powers, but Congress has advanced over some of these. The national government guarantees a province’s autonomy conditional upon it adopting a constitution with a ‘republican and representative system of government’, in line with the principles and guarantees of the federal constitution.²⁰⁴

The national government ‘intervenes’ in a province’s affairs to guarantee ‘the republican form of government or repeal foreign invasion’ or, if requested by local authorities, to support them in case of invasion or sedition.²⁰⁵ It takes over some or all its institutions, with restrictions in the exercise of their power mostly placed by case law. In 1994, the amendment specified that only Congress can authorize such intervention.²⁰⁶ In the nineteenth and twentieth centuries, federal interventions were used as a partisan tool. For example, faced with the remnants of an oligarchic regime, Presidents Yrigoyen and Alvear ordered the intervention of several provinces in the 1910s and 1920s, in most cases by decree.²⁰⁷ Since the return to democracy, they have been more infrequent, though still controversial.²⁰⁸

The national government has the power to levy indirect taxes jointly with provincial governments and to levy direct taxes ‘for a limited period’, since they fall under the purview of the provinces.²⁰⁹ Early in the 20th century, however, the provinces started to cede taxing powers to the national government.²¹⁰ In 1932, the latter implemented an income tax, but the revenues were not enough to offset the drop in revenue coming from a dwindling foreign trade.²¹¹ A tax-sharing scheme, the so-called coparticipación, was created in 1935, under which the national government collects and reallocates revenue to the provinces.²¹² Apart from the government’s need to increase its collection, the system was also meant to compensate for socioeconomic disparities in the country, as is usual under federal systems.²¹³ The scheme went through different stages, and rules setting objective allocation criteria have coexisted with discretional allocations.²¹⁴

In 1994, the amendment established that all monies not expressly earmarked are to be distributed, and that a statute to be passed with a qualified majority and approved by each province must set criteria for distribution, taking into account each province’s provision of services and functions and ensuring the automatic transfer of funds.²¹⁵ A temporary provision set the year 1996 as the deadline for enactment, which, unsurprisingly given the extraordinary political will required, has not taken place yet.

The system, instead, is guided by an assortment of rules²¹⁶ allowing for a level of discretion in the allocation of funds that can be used to punish or reward politicians, although this level is arguably not very high.²¹⁷ Today, provinces provide such central public functions as education, health care, security, and justice,²¹⁸ and a large share of their expenditure comes from the national government.²¹⁹

Small provinces are key players in the national stage. Dividing the country’s provinces into three groups based on their population, the one with the smallest population has around 7 per cent; yet, it has 33 per cent of seats in the Senate and 16 per cent of seats in Diputados. The overrepresentation has significant consequences in terms of both the equality of citizens’ voting power and the shape of national politics. Gibson and Calvo have noted that small provinces are low-maintenance constituencies where the money spent in electoral support produces a greater payoff than in bigger provinces.²²⁰ Any governing coalition will attempt to curry favour with these provinces, particularly through exchanges aimed at obtaining support in Congress via the influence of governors.²²¹ (That the latter influence exists has been partly disputed.²²²)

Ostensibly in line with the rationale behind federalism, forcing the government to consider the needs of the smallest provinces would ensure they are not ignored. However, as Gervasoni has claimed, large transfers risk turning small provinces into rentier units.²²³ The exchange of money for political support and/or the fact that transfers are mostly not earmarked further concentrate the executive’s power and weaken accountability and contestation both at the national and local levels.²²⁴ Perhaps most important, these allocations do not always target the worst off—the large Buenos Aires province houses half of the country’s poor.²²⁵

As Suárez Cao has noted, scholars argue about whether Argentina’s federalism is weak or strong.²²⁶ In the author’s view, the truth lies somewhere in the middle, since the system presents ‘clashing traits’.²²⁷ For example, she maintains, the 1994 amendment nationalized politics by establishing the direct election of the president and senators, but party politics still has a strong local component.²²⁸ Perhaps one conclusion is that however strong or weak, Argentina’s federalism is in a muddle.

This section offers a brief overview of the judiciary and judicial review, with a focus on the Supreme Court.

The constitution of 1853 created the Supreme Court at the apex of the federal judiciary and gave Congress the power to set up federal courts below it, which it did. In structuring the judiciary, the delegates borrowed at large from Article III of the U.S. Constitution. The Court was left in charge of hearing appeals involving the application of the constitution and federal laws, as well as hearing a handful of fresh cases in original jurisdiction. This is still the case. Due to the political turmoil stemming from the secession of Buenos Aires in 1852–1853, the Court began its operations in 1863.²²⁹ It has always sat en banc. The original constitution established that it would have nine members, but the 1860 amendment left the question unspecified. The prevailing arrangement has been five justices or ‘ministers’, except for some periods. They are appointed by the president with the Senate’s confirmation. Justices select a president among themselves.²³⁰

In 1888, the Court asserted the power to strike down a statute—for the case at hand—for conflicting with the constitution.²³¹ Due both to constitutional and legal regulations and Supreme Court case-law, Argentina has a system of decentralized judicial review. Within the purview of her jurisdiction, any judge, federal or local, can invalidate a legal rule. Judicial review is concrete. Although not so strictly today, litigants must show that the ‘federal’ question brought to the judges harms them. The Court has deemed as non-justiciable countless claims regarding the separation of powers and the oversight of the political process, among others, though it has relaxed its criteria as of late. In principle, the effects of a declaration of unconstitutionality are limited to the parties.²³²

The constitution adopts safeguards to protect judicial stability or independence. Supreme Court justices now serve until turning seventy-five (like all other federal judges)²³³ and can only be removed by impeachment. Also like other federal judges, their salary cannot be reduced during their tenure. These safeguards notwithstanding, the Court’s fate has tracked that of other institutions in the country.²³⁴ It enjoyed stability until the 1930s,²³⁵ though usually undergirding the government’s policies. Yet, the Court’s validation of the 1930 and 1943 coups, and, later, the sacking of most justices under Perón, inaugurated a period of instrumentalization.²³⁶ The military governments would object to the permanence of justices appointed under democracy (1955, 1966, and 1976), and some democratically-elected governments replied in kind regarding those appointed by the military (1958, 1973, and 1983).²³⁷ Turnover was normally achieved by resignations through pressure (or a military decree).²³⁸

During the 1976–1983 dictatorship, the Court validated the coup and dismissed dozens of writs of habeas corpus filed by relatives of the disappeared.²³⁹ In the dictatorship’s last years, the Court liberalized somewhat, ordering lower judges and authorities to take ‘reasonable’ steps to find the person in question.²⁴⁰ (Responding to international pressure, it also freed journalist J. Timerman.) In Helmke’s view, the Court wanted to ingratiate itself with an incoming democratic administration,²⁴¹ though the strategy, if there was one, proved unsuccessful. In 1983, Alfonsín encouraged the resignation of the five justices and went on to appoint a plural array of new ones, with a liberal-leaning majority.²⁴²

In 1990, to ensure that a friendly Court upheld his neoliberal reforms—some in tension with the constitution—President Menem expanded its membership to nine and appointed as many as six new justices within a short span. Relative to the previous appointments, these justices were more conservative and much closer to the president.²⁴³ They fell into disrepute as members of an ‘automatic majority’ eager to endorse Menem’s measures. This discredit increased with the ‘zigzagging’ they exhibited in cases related to the economic crisis of 2001.²⁴⁴

In 2003, newly-elected President N. Kirchner took advantage of this low public esteem and targeted the four most questioned justices for impeachment seriatim.²⁴⁵ Before filling the ensuing vacancies, Kirchner accepted a proposal by NGOs to establish a non-binding open consultation period before the president sends a candidate to the Senate.²⁴⁶ (The Senate agreed to hold public hearings with the candidates.) These measures were well-received. Subsequently, four new justices were appointed in 2003–2004, including two women for the first time under democracy.²⁴⁷ These justices tended to be more liberal than the outgoing, and some perhaps had a more social bent than those appointed by Alfonsín.²⁴⁸ In 2006, the Court’s membership was reduced again by statute to five members.

On balance, the Supreme Court has not always been at the forefront of the country’s social and political discussions—it has ducked important controversies and has tended to uncritically accompany the government—although this has changed somewhat in the last decades. It would be remarkably unfair, however, to conclude that the Court’s role has been negligible. Nowhere is this clearer than in the realm of rights, where it has addressed relevant questions. Its liberal majority in the 1980s played a part in the transition to democracy by helping to erase the remnants of authoritarianism in both society and law.²⁴⁹ In their place, it offered a view of the constitution—from conscientious objection to the right to remarry, from the protections of those subject to criminal investigation to individual autonomy—that moved the legal system in a more progressive path.²⁵⁰ Some of these achievements were weakened years later, but the period starting in 2003 meant a return to that path, reinforced with the denser and socially-oriented constitutional text arising from the 1994 convention.²⁵¹

More recently, both the Supreme Court and other courts have been playing an expanding role in the redefinition of public policy.²⁵² The Court has heard a handful of cases with structural implications; in some, it has chosen to enlist Congress and other stakeholders in the remedial stage.²⁵³ Success in these cases has been uneven, yet such intervention likely has increased the information available as well as public participation.²⁵⁴ A new personnel change operated in 2016 at the Court brought questions about the Court’s future orientation.

The 1994 amendment aimed to reinforce judicial independence by creating a council in charge of nominating federal judges below the Court and managing the judiciary’s administration, the Consejo de la Magistratura.²⁵⁵ After candidates sit an examination, the council makes a list of three from which the president selects one and sends it to the Senate for confirmation. The amendment gave the council a plural composition but, given political divisions at the convention, left gaps that would be fought over. The council only started to work in 1998, since the Menem-controlled Congress expressed faint interest in passing the required legislation.²⁵⁶ The amendment created a similar body to discipline judges.

The federal judiciary has generally benefitted, with better-trained and less clearly partisan judges. This does not mean, however, that politicians and powerful groups have lost their influence, which they keep via residual influence in appointments²⁵⁷ and informal pressure among other ways. Neither does it mean that the judiciary as a whole is well-respected, since clearly it is not.²⁵⁸ It is still seen as a slow-moving and corporatist institution lacking accountability and often acting strategically.²⁵⁹

In 1994, the amendment established the autonomy of the Ministerio Público, the office grouping federal prosecutors and defenders, hitherto dependent on the executive. (The legislation divided this office into two different institutions.) Finally, although the constitution has always established, as a rule, jury trial for criminal cases, Congress still has not set up the institution at the national level.²⁶⁰

This final section centres on constitutional rights—the original enumeration, the expansion of them, the use of regional adjudicatory bodies, judicialization, and limitations.

The delegates embedded a bundle of civil rights in the original constitution. Property rights—including the regulation of eminent domain and a ban on confiscation—received a fairly detailed formulation. The same was true of some safeguards for those subject to a criminal investigation and the protection of the home, papers, and personal goods against arbitrary searches. The delegates banned slavery; declared capital punishment for political crimes, flogging, and torments abolished; and established that jails would be clean and healthy.²⁶¹ A section extended rights to foreigners,²⁶² and another committed the government to ‘promote European immigration’.²⁶³

One of the centrepieces of the enumeration was the protection of private actions. The language (of Section 19) was borrowed almost verbatim from the proto-constitution of 1815:²⁶⁴ ‘[T]he private actions of men which in no way offend order or public morality, nor injure a third party, are only reserved to God and exempted from the authority of magistrates.’ Some would claim that an action could offend ‘public morality’ even if it did not injure anyone or that only actions performed in private were protected; yet others, and gradually the courts, have read the section as something akin to Mill’s harm principle.²⁶⁵

This relatively generous approach to civil liberties combined with the constitution’s political conservatism. Absent from the enumeration were the right to vote, the recognition of parties, and a reference to ‘democracy’. Only rights to petition and association and to have one’s ideas published gained recognition. A section discouraged political participation by establishing that ‘[t]he people neither deliberate nor govern except through their representatives’, and that it would be seditious for any group to petition on people’s behalf.²⁶⁶

The short-lived constitution of 1949 introduced several social rights that were pared down after it was cancelled. In its place, the amendment of 1957 introduced a more modest list that, for decades, courts and scholars would consider not directly operative or justiciable but dependent on legislative regulation. Other than this, the enumeration remained untouched until 1994.

The statute setting up the 1994 convention only authorized it to expand the enumeration, leaving the existing one untouched. And expand it did, enriching the list of rights and making existing protections more specific. First off, the convention opened the floodgates by placing ten human rights treaties hitherto adopted by legislation on par with the constitution, of which they are since part. The treaties were incorporated ‘in the full force of their provisions’ to ‘complement’, not repeal, previously enumerated rights.²⁶⁷ Debates ensued about what to do in case of ostensible discrepancies between the new and the old, and they have persisted over the years.

This move—which probably improved public perception about the amendment—was supported by center-left delegates. One of its alleged aims was to bring the country closer to the international legal community concerning human rights.²⁶⁸ The other was to mark a symbolic break with the country’s history of authoritarianism.²⁶⁹ The convention also inserted a self-referential clause contemplating the event of a hypothetical coup. It establishes that the constitution will remain in force and mandates punishment for its authors.²⁷⁰

The amendment tackled the original deficit by enumerating political rights on top of those already in human rights treaties. Embedding the principles of the 1912 statute, it recognized voting as universal, equal, secret, and mandatory.²⁷¹ The convention underscored political parties as ‘fundamental institutions of the democratic system’; they receive public financing and must function transparently.²⁷² It established that the state must take positive steps to achieve equality between men and women in access to offices, something touched upon above.²⁷³ As noted, the amendment also recognized citizens’ right to present bills for Congress to discuss and regulated referenda.²⁷⁴

Economic, social, and cultural rights gained prominence. Among other regulations, the amendment mandated that Congress recognize the ethnic and cultural preexistence of indigenous communities; guarantee their identity and intercultural education; recognize the property and possession of their communal lands; and ensure their participation in decisions involving them.²⁷⁵ The convention embedded environmental rights. Officials are to protect everyone’s right to ‘a healthy and balanced environment fit for human development’ and the protection of future generations. They must provide for ‘the rational use of natural resources, the preservation of the natural and cultural heritage and of biological diversity;’ the national government regulates minimum protection standards.²⁷⁶ Finally, the delegates introduced consumer protections.

Another important change pertains to remedies. This book contains references to the amparo, a writ originated in Mexico in the mid-nineteenth century. In Argentina, it was recognized by the Supreme Court a century later, in 1957. A rule enacted in 1966 by a military government regulated it at the national level. In 1994, the amendment embedded both this writ and the writ of habeas corpus, as well as a more specific amparo (the habeas data) to ensure access to, and rectification of, personal information housed in data banks.²⁷⁷ It established wide standing to file an amparo writ concerning discrimination and collective rights.

Litigation and judicialization in all matters constitutional have increased in the last decades and have been prominent in the sphere of rights. Smulovitz argues that judicialization has taken place despite public negative perceptions about courts.²⁷⁸ The recognition of the amparo and the expansion of rights provided new tools to plaintiffs. Improvement in the support structure for litigation (public defense offices, NGOs, and some legal clinics) opened new opportunities.²⁷⁹

Placing international human rights documents on par with the constitution indeed managed to bring the domestic legal system closer to the international legal sphere. (Or, adapting the logic of the usual joke, it brought the international sphere closer to Argentina.) In 1995, the Supreme Court said that, in interpreting the clauses of the American Convention on Human Rights, its main adjudicatory body, the Inter American Court of Human Rights, should be taken ‘as a guide’.²⁸⁰ While victims of human rights abuses during the dictatorship had resorted to regional and international bodies, this recourse markedly increased over the years, as would also increase the invocation of those bodies’ decisions in domestic litigation.²⁸¹

The constitution does not offer guidelines to assess rights restrictions. Courts often resort to something akin to proportionality review, with varying degrees of success; in a few cases dealing with ‘suspect categories’, the Supreme Court has applied a strict scrutiny test.²⁸²

A single tool regulates blanket restrictions of rights or, more precisely, legal remedies: the state of siege. This tool was used repeatedly during the 20th century—Argentinians lived the whole period of the last dictatorship under a state of siege.²⁸³ Legal scholar C.S. Nino has dubbed it the ‘cemetery of liberty’,²⁸⁴ and rightly so. Its latest use was during the crisis of 2001, when President De la Rua employed it to face an escalating social protest, with a score of about three dozen dead. As in other topics, the regulation is outdated; it is insufficiently detailed and oblivious to the minimum core of rights to be safeguarded.²⁸⁵ The constitution bans the president from passing judgment or applying penalties during a state of siege, limiting her to ‘arrest or transfer a detained person’ if the person does not choose to leave the country.²⁸⁶ Generally speaking, the Supreme Court was reluctant to oversee the declaration of a state of siege or the measures taken during one. During the dictatorship, it upheld a restriction of the option to leave the country.²⁸⁷ The 1994 amendment improved the text slightly—a writ of habeas corpus can be filed during a stage of siege.

Despite a tumultuous past, constitutional democracy in Argentina is in reasonably good health. This is oceans away from negating that serious problems persist. Uneven progress in poverty and inequality alleviation, personalization of power, the instrumental use of institutions, corruption, a crisis of political representation, obstacles to access to justice, and subsisting traces of conservatism and authoritarianism are some of them. Most of these deficits may clearly be addressed without revising the constitution. Yet, a revision might delimit the president’s functions, further enhance the writ of amparo and access to justice, open new channels of participation, and remove remaining vestiges of the state’s embrace of religion, to mention a few issues where progress can be made. Delegates at a hypothetical convention should strive for a carefully-worded text and avoid delegating sensible matters. Vagueness and delegation can foster agreement; they can also contribute to defeating innovations.

It would be an error to conceive of the Argentine constitution as a sacred, immutable document. Still, only a plural and open convention should put its hands on it. As Negretto and others have claimed, to the extent a small clique dominates the process, the result will likely benefit it to the detriment of the rest.²⁸⁸ An energetic and genuinely plural civic movement and the ensuing convention committed to gender parity can go ways toward reinvigorating constitutional democracy. Absent a promise of pluralism and openness, however, we had better leave it as is. Better the devil we know than the devil we don’t.

Thanks to Jorge A Filipini for valuable assistance and Marcelo Alegre for helpful remarks. Last revised in December 2019.