DIVISION OF LATIN-AMERICAN AFFAIRS EDITED BY IRVIN STEWART CONSTITUTIONAL INTERPRETATION IN MEXICO* HERBERT INGRAM PRIESTLEY Bancroft Library, Berkeley, California The once unique feature of the governmental system of the United States whereby the Supreme Court asserted the right, in which it has been sustained by popular opinion, of passing on the constitutionality of the laws passed by Congress, has its interesting counterpart in the constitutional provisions for the powers of the judiciary in Mexico. Like the United States, Mexico is governed under a drafted constitution, but not under basic laws which developed from the crystallization of customs into immunities from executive aggression, guaranteed by separate and progressive enactments such as constitute the bulk of the English constitution. This accidental evolution is the more remarkable when it is remembered that the Mexican Constitution of 1857 is not only a drafted constitution, but was drafted in the midst of political and military strife, and so was never ratified and accepted through the conscient will of the citizens, but promulgated, as a bolster to a government aspired *This article is a study in brief of Emilio Rabasa's El juicio constitutional, origines, teoría, y extension, Mexico, 1919, 345 pp. Señor Rabasa is the acknowledged dean of the Mexican legal profession; his numerous writings on history and jurisprudence evince a masterly conception of the true theory and actual form of Mexican government; his book on the theory and practice of judicial interpretation in Mexico and the United States should be of interest both to teachers of government and to juris-consults who have to deal with litigation before the Mexican Supreme Court or with the relationships between the two countries. This article is a free translation of parts of the book selected to set forth in briefest form the statements and opinions of the learned jurisconsult without intermingling obvious glosses which will readily occur to the reader. to by a faction and acquiesced in more or less temporarily by an unwilling and disfranchised minority. The enactment of a drafted Constitution by the United States, and the ratification of that document as a governing principle whereby the citizens of separate and independent political entities bound those entities into a union afterwards established as indissoluble, presents a further marked contrast to the Constitution of Mexico. In the latter we have not only no process of ratification, but a development of a fictitious unity of fictitiously separated states into a mechanism of union created by political idealists who had had no experience in either law framing or law enforcing, let alone law interpretation; who had none of the traditions of protecting the individual from executive encroachments through the interposition of the judiciary; who never had evolved, within an historically significant past, any tradition of common law. Here then it is none the less remarkable that the principle of judicial interpretation of the laws should have followed slowly the example of the United States in the development of a theory which not only limits the encroachment of the executive power, but passes at once to the province of interpreting the constitutional validity of legislative enactments. This development has been slow, taking into consideration the span of years since emancipation. In the Mexican Constitution of 1857 the theory is ably expressed, and if it had not been for the limitations imposed at the beginning, it is possible that judicial interpretation might have become as full-fledged in Mexico as it has in the United States. The beginnings of constitution making in Mexico were obscure, hasty, and ineffectual. The notable Constitution of 1812, framed for the revolutionary Spanish empire, and promulgated by Peninsular authorities, contained no germ of expansion of scope through judicial interpretation. Its political history, and that of the Revolution of Independence, made this Constitution a despised and neglected guide even in the realm of political theory when the republican organization of Mexico was first framed in 1824. The same may be said of the crude and insufficient Constitution of Apatzingán, enunciated by Morelos and his adherents in 1814, but never put to practical test and deserving a place in constitutional history only as a monument to the incipient aspirations of a nascent theory of representative government. When the first real Mexican Constitution, that of 1824, was promulgated, there was among Mexican statesmen only scant knowledge of the American Constitution, upon which it was based. De Tocqueville's notable exposition, Democracy in America, had not yet been published, and there was no Spanish edition of the Federalist to guide them. Hence the Mexican document failed to enunciate clearly the doctrine of constitutional supremacy upon which the interpretative power of the American Supreme Court is based. Though the Constitution of 1824 gave the Supreme Court power of decision in cases between states and general control of cases in which the national interests were involved, there was only vague and incidental reference to the power of that body to rectify violations of the Constitution itself. As a matter of fact, the framers of that organ had no cognizance of the principle. The stormy history of the first Republic in Mexico, with its reversion to reactionary centralism in the Constitution of 1836, and its establishment of the anomaly of a "constitutional despotism" under Santa Anna in the Constitution of 1843, offered little opportunity for the development of constitutional interpretation. Yet there was one faint glimmer. In 1840, when the "Seven Laws" or Constitution of 1836 were still the supreme charter, a commission was named by the Congress to suggest constitutional amendments. During the deliberations of this commission a solitary vote was cast in favor of suppressing the ridiculous Conservating Power-a committee of five as a check on the several branches of government set up by the "Seven Laws”—and bestowing its functions upon the Supreme Court. The specific proposal was that the latter body should have the power, whenever called upon to do so by the Chief Executive or a certain number of the Deputies or Senators, to declare any law unconstitutional. While this proposal, which persisted in various projected constitutional reforms until the Constitution of 1857, indicates a tendency to repose confidence in the supreme judiciary, its form makes patent the fact that the American procedure of constitutional interpretation was still unfathomed. Nor was there, in Mexican law making, anything approximating a desire to curb the executive or the legislative power until the idea appeared in a proposed constitution for the State of Yucatan formulated in 1840. In this document first appeared a brief list of guarantees of the individual comparable to the so-called Bill of Rights comprised in the American first ten constitutional amendments. These were a direct reaction to the current hazards of life in an anarchy-torn land where despotic encroachments were of daily occurrence, and not a theoretical formulation of principles based on study of foreign documents. This projected Yucatecan Constitution proposed in its introductory passage that the Supreme Court should give succor (amparo) "in the enjoyment of their rights to all who might ask its protection against the laws and decrees of the legislature in contravention of the constitution, or against the procedure of the government or the executive, when the latter had infringed the Fundamental Code." In each case the action of the court was to be limited to reparation of the grievance whereby the laws or the constitution might have been violated. Here for the first time appears the word amparo in Mexican legislation, a word since used to designate the process whereby judicial interpretation of the laws and Constitution of Mexico is accomplished. It was suggested that this aid should be rendered by judges of the courts of first instance, in forgetfulness of the fact that it was through the lower courts that violations of personal guarantees were usually effected by executive and legislative encroachments. At any event there was no Yucatecan Edward Cope to defend personal guarantees, and the suggestion did not prevail. Again, when the Constituent Congress of 1842 met to frame a new Constitution, its committee of seven delegated to report a project contained a minority of three federalists. These three men, before they were disbanded by the disgruntled centralist Santa Anna, offered a suggestion for constitutional interpretation which became the model used in the Constitution of 1857. Their proposal was posited upon the hitherto unacknowledged basis of individual rights. The declaration was made that "The Constitution recognizes the rights of man as the basis and object of social institutions. All laws must respect and assure these rights, and the protection conceded by them is equal for all individuals." It was also declared that "the Constitution authorizes the following guarantees for the rights of man." Then followed the guarantees, under penalties for which there was to be no amnesty or indult. "This project fixed the intervention of federal justice as the real guarantee of individual rights," but determination as to the constitutionality of a law was made the function of the Chamber of Deputies or of the legislatures, according to whether the law was federal or local. This proved that the proponents of the amendment were ignorant of the American system, and did not understand that the Supreme Court, in reviewing a complaint alleging violation of personal guarantees, would often necessarily have to pass upon the constitutionality of laws which might permit an aggression. As the Congress was dispersed by military revolts engineered for Santa Anna's benefit, the minority report was lost sight of, but when the political pendulum swung toward federalism in 1847, the Constitution of 1842 was amended by an Acta de Reformas which was the exclusive work of Mariano Otero. These reforms or amendments were intended chiefly to affirm and establish personal liberties by fixing limitations upon the arms of the government as the basis of social security and public peace. The preamble of Otero's amendments recognized the importance of the functions of the judiciary in phrases which exalt it, but still leave its field of operation narrower than that of the judiciary of the United States. There is history, as well as political science, in the passage at point: Frequent attacks by the Federal and State authorities upon individuals make urgent the demand that |