Constitutional Reasoning in Latin America and the Caribbean: A Critical Analysis

Introduction

Thank you to Dr. Paula Garat for publishing a chapter in "Constitutional Reasoning in Latin America and the Caribbean," edited by Johanna Fröhlich, Sebastián Umpierrez de Reguero, and Carlos Meléndez Guerrero, released by Hart Publishing in 2024. This ambitious empirical study examines constitutional reasoning practices across 15 jurisdictions in Latin America and the Caribbean, showcasing how courts in the region have become pivotal in addressing human rights and social justice issues.

My goal is to use this book, analyzed in several short essays, to examine whether Uruguay indeed has a constitutional tradition of courts protecting human rights or addressing structural transformation. My thesis is that any claim that Uruguayan courts do so is false, given Uruguay's complete failure to apply the control of conventionality to the constitutional interpretation advocated by scholars like Drs. Jaime Sapolinksi, Ruben Correa Freitas, and Rubén Flores Dapkevicius that denies nationality to legal citizens in Uruguay, those found to be stateless, and stateless children. No national court system that allows such an interpretation to stand can be said to "defend" human rights, let alone promote societal and structural transformation.

Overview of the Book's Opening Chapter

The first chapter, titled "Introduction: Conceptualising and Measuring Constitutional Reasoning in Latin America and the Caribbean Commonwealth," argues that Latin America is emerging as a leader in constitutional theory, particularly in terms of human rights and structural transformation. The authors suggest that constitutional reasoning is becoming the primary mechanism through which courts across the region address deep-seated societal deficiencies, often resulting from fragile legal and institutional structures.

The authors present the idea that constitutional courts in the region have undergone an "ideological shift," empowering judges to play a more proactive role in societal transformation. They point out that Latin American courts are increasingly viewed as protectors of human rights and agents of social justice. While this shift has been observed by scholars, there has been little research on the effectiveness of these courts or the actual methods of reasoning that judges use to arrive at their decisions.

Methodology and Scope

The chapter serves as a prelude to an empirical study involving 40 landmark cases from each of the 15 jurisdictions selected for analysis. This study seeks to identify trends in judicial reasoning and explore the extent to which courts have adopted a transformative approach to constitutional interpretation.

The authors present a detailed methodology for their empirical study, which analyzes constitutional reasoning across jurisdictions such as Argentina, Brazil, Mexico, and Uruguay, as well as the Caribbean Commonwealth and the Inter-American Court of Human Rights (IACtHR). By examining these cases, the authors seek to uncover patterns in how courts interpret the law, the extent to which they engage with human rights principles, and the effectiveness of their reasoning in addressing societal problems.

Uruguay's Position

Uruguay is specifically mentioned as one of the jurisdictions selected for analysis. The authors note that Uruguay's Supreme Court differs from some of its counterparts in the region, as it is the highest ordinary court responsible for constitutional review, rather than a specialized constitutional court. This positions Uruguay as an outlier of sorts, with a more traditional judicial model that emphasizes procedural concerns over substantive, transformative interpretations.

Given Uruguay's lack of compliance with human rights standards demanded by its signature and adoption of statelessness conventions, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities, all of which demand nationality be available to legal citizens, or that natural citizens be allowed to renounce nationality, Uruguay's record on human rights compliance fails at a fundamental level.

Conclusion and Future Implications

The real question approaching Uruguay with great speed is what happens when a constitutional interpretation, or even a clause in a Constitution, in a member state signatory to the American Convention, violates a fundamental, non-derogable human right. What is the effect? What is the reparation order from the Inter-American Human Rights Court? What form will it take?

Resolution 2/23 of the Inter-American Commission of Human Rights indicates that the right of naturalized citizens, the stateless, and stateless children to obtain nationality within Uruguay is a fundamental and non-derogable human right. Human rights are not subject to plebiscites and Uruguay's collision with the future approaches.

Paula Garat RUBÉN FLORES DAPKEVICIUS PhD y Post Doctor. Futurist Ruben Correa Freitas Jean-Paul Tealdi Correa

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