USING THE CONSTITUTION AGAINST ITSELF. ON THE (AB)USE OF CONSTITUTIONAL INSTITUTIONS AND PROCEDURES TO SUBVERT DEMOCRACY AND THE RULE OF LAW (SPANISH).

In The Open Society and its Enemies, Popper exposed the paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. Or in other words: if a society is unlimitedly tolerant, its capacity to tolerate will be reduced or destroyed by the intolerant. The paradox can be overcome if tolerance finds limits: if intolerance is exercised with the intolerant. The paradox of tolerance can easily be applied to other public contexts of deliberation and decision such as democracy. If a democratic practice is unlimitedly tolerant with anti-democrats, they will reduce and destroy it. To overcome the paradox of unlimitedly tolerant democracy, Loewenstein proposed the militant democracy model: an interpretation of democracy that describes it as the most legitimate and effective system of deliberation that can best preserve a series of pre-political goods and values, thus the main inquiry is: What constitution would be appropriate for a militant democracy?

Latin American constitutionalism is passing through momentous transformations. The enduring tradition of constitutional borrowing from the western and northern liberal models in the 1990s and the early 2000s has yielded to a growing practice of overt authoritarian borrowing or abusive constitutional borrowing –in terms of the recent studies of Dixon and Landau- subverting the foundations of liberal democratic constitutionalism in the region. By implementing an array of sophisticated strategies to put the blame of present failures to liberal democracy, incumbent governing coalitions in Latin America have consolidated massive popular support to usher reforms to concentrate power in their hands. At the same time, these coalitions are gradually dismantling the liberal model of separation of powers, and most of the times, with the acquiescence of the courts. This paper will explore the illiberal backlash in the region and the potential responses to its inherent predicaments.

In recent years, a series of constitutional amendments have introduced mechanisms of direct democracy in Mexico—in particular, referendums (2012) and Presidential recall elections (2019). The first referendum in Mexico‘s contemporary constitutional history took place last year and the first recall election will take place this coming April. This paper describes the ways in which mechanisms of direct democracy in Mexico so far have been hijacked by the ruling party while effectively excluding the citizenry. It will then discuss why this development is problematic both from a theoretical and constitutional law point of view.

Constitutional courts play a fundamental role in liberal democracies. Through their rulings, they limit the abusive power that certain agencies can exercise and protect the constitutional and international uniformity of the legal system. In recent years, Mexico has experienced a rapid erosion of various institutions that channel and protect the democratic rules that uphold the rule of law. This erosion has been promoted by the ruling party, which has used institutional mechanisms to weaken the country's democratic pillars. Some of these apparently democratic decisions have been challenged before Mexico's Supreme Court, mainly by political minorities and independent agencies. This paper will address the behavior of the Constitutional Court in the context of decisions that have been implemented through the institutional and democratic mechanisms provided by the Constitution itself, but which undermine and denaturalize the democratic regime, separation of powers and the rule of law.