Porfirio Muñoz Ledo said that Mexico has had four constitutional definitions in the form and manner of a Republic. That of Independence, with the liberal Constitution of 1824; that of the Juarista Reform, in 1857; the social Constitution of 1917, which inherited the aspirations of the brief democratic episode of Maderismo and the Mexican Revolution, and the democratic Republic that – naively or self-interestedly – he himself made the effort to frame historically in Obradorism. “The ‘4T’ is the fourth Republic,” he said before undertaking the testimony of critical dissent that he took to the grave.
That democratic Republic that Muñoz Ledo wanted to materialize in a new Constitution is the pluralist regime of the transition. That is why he insisted on reordering in a new refoundational pact the gradual evolution of the consensus that shaped the democratization of the country, but also on legally safeguarding the mistrust that explains it. And the fact is that the reformist promiscuity of our constitutionalism is explained more by the intention of protecting content and institutions from the unpredictable will of volatile and changing political majorities, than by a “consensualist spirit” of our pluralism. The Constitution is full of details, deadlines, exceptions and transitional rules because the techniques of rigidity and supremacy guaranteed, precisely, the stability of fragile agreements. Petrify today to discipline the legislator of the future.
The democratic Republic did not necessarily have to die after June 2nd. It is undeniable that the President’s intervention altered the conditions of equity in the contest. We are back to the times of state elections with cartloads of public money and captured referees. Representation was certainly falsified with the trick of coalitions of transfers of triumphs. But it is also true that the will of the citizens was clearly expressed. Democracies, taken seriously, can legitimately configure hyper-majoritarian situations, complete carsoverwhelming arithmetic of political prevalence of some expressions over others. But majorities are not suspicious because of their size, they are self-destructive because of their way of proceeding: when they defeat, when they impose themselves on restrictions, limits and counterweights, and become factions that only seek their own interest.
The end of the democratic Republic, of that fallible, imperfect regime with repeatedly frustrated expectations, but which has generated the greatest period of freedom, prosperity and political, economic and social stability in the history of the nation, will shake as we have known it until today, if the purpose of reestablishing a new hegemonic State party is successful and if, through judicial reform, the majority curtails the function of the Constitution to protect consensus and restrict the arbitrary will of the powers. Of that vicious circle: the majority that uses its power to unleash its contentions and rewrites or reinterprets the Constitution to guarantee its hegemony.
As history suggests, the hegemonic state party is not only the consequence of a set of incentives or rules that make competition symbolic, but of an attitude of political self-submission to the political leadership of the majority, living in the National Palace or in a distant ranch in Chiapas. The clienteles and corporations that join together to dispute favors and privileges. The great alliance of parties that the qualified majority has given away seems to be the first step. Empty parties that only color a univocal will. Will the military, union and business sectors of the new big party of Mexico come next?
The risk of judicial reform is that we will be left without a judge to stop arbitrariness. Not only the Court that expels the unconstitutional law, but the judge who paralyzes its effects while the reason for the affectation or damage is resolved. This reform is the end of transitional constitutionalism: of the doctrine, practice and patriotism of subjecting all our differences to the axiological and organizational framework of a pact that includes us all, because it excludes no one. Of the Republic that was a democracy with a Constitution, popular will and freedom, form and mode of government.
2024-08-29 10:43:33