Constitutionalism in South America

The 2009 Constitution of Bolivia took a radical plurinational turn by enshrining the Indigenous jurisdiction withing the constitutional order, placing it on an equal footing with the state-centric ‘ordinary jurisdiction‘. Ten years later, a study of the administration of justice by four Indigenous communities in Bolivia suggests that some of the benefits of this legal recognition are offset by resistance to structural adjustments that it requires. On the one hand, the change has empowered Indigenous actors seeking to solidify and amplify the significance of Indigenous legal traditions within their communities, and the constitutional court has proven resourceful and creative in mandating respect for Indigenous cosmovisions that are at variance with Western law. On the other hand, a desire to quickly press ahead raised issues of coordination, with legislative and judicial maneuvers to stifle or derail efforts to implement Indigenous justice locally.

All over the world, democratic innovations are taking place, particularly at the constitution-making level (Szmulewicz 2012, Eisenstadt 2017). In this context, research has focused on the role of citizens input on the content of the new Constitution, referendums and online digital channels (IDEA 2021). Less attention has been paid to the relationship between citizens participation at the local/grassroots level and the legitimacy of the constitution-making process (Hudson 2018, 2021). This paper addresses this gap by accounting the several democratic innovations that have characterized Chile‘s constituent process from its onset: a decentralized working of the Constitutional Convention in several parts of the country, the so-called “territorial week“ every month for Convention members, local “cabildos“ (town meetings), and direct citizens initiatives (online) for constitutional norms. The advantages as well as the challenges that these examples provide are then analyzed and balanced.

The judicial creation as a source of law, in the Ecuadorian case, has been underdeveloped in relation to other Laws of the countries in this region. Based on this hypothesis, this research poses a new perspective of the status of the Law and, specifically, about the Constitutional Precedent, its importance, and its functions in the System of Sources. It analyzes, from the conceptual framework of the scope of judicial creation, in the families of origin in the Civil and Common law, how the transformation of the legal status of the Constitutional State stablishes a rethinking on the sources of Law, under the determination of the ontological and epistemological status of this source of Law and how this new paradigm imposes the rethinking of the classical theory of separation of powers. These transformations are linked to the need of legal argument, as a necessary limit in the lawmaking. The conclusion is that there exists a revaluation of Jurisprudence in the Constitutional State.

Since 2016, Brazil has experienced a growth of neoliberalism, bringing great changes on the protection of social rights in the country's Constitution and legislation. In addition, the impeachment against Dilma Rousseff for political reasons generated a major impact on the quality of democracy in the country. This research aims to analyze the bills and constitutional amendment proposals during the post-impeachment period, from Rousseff‘s to Jair Bolsonaro‘s government, investigating the role of the Congress in the erosion of Brazilian democracy. It includes both amendment proposals and bills aimed to stop or reverse the democratic erosion of the past years, and also amendment proposals and bills aimed toward accentuating the authoritarian advance and reducing the democratic content of national legislation. Thus, the research problem consists of the critical and comparative analysis between these propositions, in order to highlight the directions given by Congress to Brazilian democracy.