Appendix. About Constitutional Development Laws
Such laws are conceived as legal rules that in the system of sources of law would be located in an intermediate position between the Constitution and ordinary laws. Their main function would be to serve as a technical tool to relieve the Constitution of rules of a regulatory nature that make it lose coherence in content, altering its general character of supreme law, requiring the constant modification of its precepts, and limiting its adaptation to the needs and demands of a dynamic society.
Constitutional development laws are not alien to Mexican legal doctrine or the Mexican legal system. The first one to mention them as constitutional laws, was Mariano Otero, who along with Manuel Crescencio Rejón, was one of the creators of the amparo suit. Both are among the most eminent jurists of the 19th century.
In 1847, the unitary or central republic entered into a crisis and Mexico faced war with the United States. A Constituent Congress was convened, composed of a large majority of pure and moderate liberals. From that Congress and amid the hardships imposed by the war, the Reform Act of 1847 emerged. Although it has been a constitutional text that is usually referred to for having restored the Constitution of 1824 and introduced the amparo suit at the federal level, it made several other contributions.
In only 30 articles, the Act of 1847 provided several innovations. In addition to the amparo suit (Article 25), it included a constitutional remedy that empowered the President of the Republic, in agreement with his cabinet, a minimum of ten deputies, six senators or three state congresses, to challenge laws deemed unconstitutional (Article 23). In this sense, the Act was a precedent of the reforms in this area that took effect in 1995, almost 150 years later. The Act was also the first constitutional document that established in Mexico the possibility of direct universal suffrage (Articles 1 and 18). In this, it was also ahead of its time by nearly 70 years, since the Constitution of 1857 maintained the system of indirect election, which was not modified until 1912.
Among the institutions adopted in 1847 there is another whose recovery by the constitutional system is still pending: the idea of “constitutional laws”. According to Mariano Otero, these laws would occupy an intermediate level between the Constitution and the ordinary laws of Congress. In his dissenting opinion to the majority project of the Drafting Committee, and which, because of the haste in which the Committee worked, only proposed to restore the the Constitution of 1824, Otero made an extensive plea in favor of constitutional reform. In fairness to other colleagues, he acknowledged that two eminent liberal jurists, Joaquín Cardoso and Juan José Espinosa de los Monteros, had helped shape his text. Cardoso, considered one of the most learned men of the time, was a deputy, senator, judge of the Supreme Court, director of the National Library and founder of the Mexican Language Academy. He wrote little, but was respected for the elegance of his prose. His fundamental legal work is in the judgments and in the votes cast in the Court. Espinosa de los Monteros, who also had a broad public and liberal career, was one of the closest advisors of Valentín Gómez Farías, then acting vice-president of the Republic and one of the forefathers of the liberal reforms in the country.
Mariano Otero claimed that the leyes constitucionales would serve to complement the generality of the constitutional principles and that they would be placed hierarchically above the ordinary rules, because their development would be different. In this case, the difference did not consist in a qualified vote for its approval, amendment or repeal, but for an additional period of reflection:
But like this law (the electoral), the one about guarantees, the one about (public officials’) responsibilities and the others that regulate the action of the Supreme Powers, should not be equal, but above all other secondary laws; it is established that they be characterized and distinguished with the special name of constitutional, and that they not be reformed within a period of six months from the submission of the proposal and its discussion. This measure will free such laws from the ill effects of haste, and will provide Congress with the aid of a deliberate discussion by means of the press, and of all the organs of the public will. Let us hope that such a measure could be adapted to all laws!
Otero’s arguments convinced his peers, and the Constitutive and Reforms Act, whose text was based substantially on Otero’s dissenting opinion, was adopted on May 21, 1847. Article 27 provided:
The laws addressed in Articles 4 [citizenship], 5 [fundamental rights] and 18 [electoral system] of the present Act, that of the freedom of the press, the organic law of the National Guard and all those regulating the general provisions of the Constitution and of this Act, are constitutional laws and cannot be altered or repealed within a period of six months between the submission of the bill and its discussion in the Chamber of origin.
This Act, which was crucial in the evolution of our constitutional law, was passed by a majority vote of the constituent deputies. Among this group, in addition to Otero and the aforementioned Cardoso and Espinosa de los Monteros, were José María Lafragua, Ignacio Comonfort, José Joaquín de Herrera and Benito Juárez.
In addition to what was pointed out by Otero, constitutional laws can serve as a correction to a problem that he had no occasion to experience, because his constitutional era – the first half of the 19th century– in contrast to ours, was marked by the so-called immutability clauses , i.e, clauses in the Constitution prohibiting any amendment to particular provisions, for example regarding freedom of the press, and the extreme rigidity of constitutional reform. In the Mexico of our time we suffer the opposite problem: the extreme frequency with which we amend the Constitution, thus generating a degree of volatility incompatible with the objectives of a basic set of laws. This phenomenon has resulted in the overload of the Constitution with laws of a regulatory nature.
It is true that the openness of the Constitution towards the changes that the country needs largely explains the political stability of Mexico. However, the appeal to reform the Constitution has evolved into a routine that can threaten the functionality of the Constitution itself as a model of the public, economic and social order. To include new needs of the Mexican State among the 136 existing articles, it has been necessary to develop extremely extensive provisions to address issues specific to the ordinary rules and regulations.
The introduction of intermediate laws to mitigate the overload of the Constitution without affecting the pace of the necessary institutional evolution reflects the experiences of constitutionalism of our time.
In 1958, France was the first European country to recognize different types of law in its system of sources of law, including the organic laws, which are the functional equivalent to the laws proposed by Mariano Otero and which the Reform Act of 1847 called constitutional laws. The French Constitution used this legal modality, which is formally different from the rest of the ordinary laws, to create and establish the structure, jurisdictions and procedures of its main public bodies. The French example has been followed by other constitutional democracies of our hemisphere and of Europe, including Portugal, which identifies them as “constitutional laws,” and Spain, which also calls such laws “organic laws”.
In Latin America, the French-inspired organic laws have also been adopted by a majority of constitutions. They are called “organic laws” in Ecuador, Peru and Venezuela; “constitutional laws”, in Guatemala and Nicaragua; “constitutional organic laws” in Chile; “supplementary laws” in Brazil; “statutory laws” in Colombia; and they do not have a specific name in Argentina, Costa Rica or El Salvador. The following table shows the current provisions of each of these constitutions and the particularities of each type of laws.