Notes from Behind the Bench

Yesterday, Manuel Jose Cepeda of Colombia’s constitutional court — widely viewed as one of the more autonomous and innovative courts in Latin America — was in Austin to lead off the series.  Judge Cepeda’s session turned out to offer an enormously engaging peek into the court’s approach to constitutional interpretation in the face of a series of important historical accidents and waxing and waning political firestorms.  

There are too many thoughtful nuggets from Cepeda’s remarks that I won’t have time to represent them here, though I might spend a few blog posts digesting some of them.  But an offhand, almost throwaway, remark by the judge about the Colombian citizenry’s view of the 1991 constitution stuck with me.  Judge Cepeda speculated that a widespread view among the public of the constitution is that the document is far too easily amended.  By contrast, recall that the 1886 constitution that preceded the current one is thought to have turned voters and elites off due to its inflexibility with respect to amendment.  Taken together, it is interesting to note the strong connection between the degree of the public’s attachment to the document and the document’s amendment rules.  As an aside, it is remarkable how little affection the citizenry and elites displayed for the century-old 1886 document — about 90% of the population voted to replace the 1886 constitution.  If the U.S. constitution is venerated excessively here (see Sandy Levinson’s Constitutional Faith — a must read if there ever was one), perhaps the poor 1886 document suffered the opposite problem.  

I’ll write later on the very surprising role of style — or at least the organizational structure of the text — on constitutional adjudication in Colombia.  (To foreshadow: copy editors have more power than we think!).