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Minnesota Journal of International Law

Abstract

Foreign constitutional models can transform a country thanks to the power of ideology. The comparative constitutional literature maintains that successful constitutionalism requires credible commitments to essential rules by all major political actors so that those out of power can avoid persecution that will drive them into rebellion, and those in power can feel assured that if they relinquish power, the opposition will respect their core interests. The literature also assumes that the process of reaching credible commitments is a slow one, but that over time civil society, courts and government bureaucracies will strengthen the commitments and act against unconstitutional power grabs. Foreign legal transplants are not seen as a tool toward credible commitments. Much scholarship on the transplant of legal rules assumes that rules allocating political power will be especially resistant to transplantation, and no scholarship theorizes how such transplants might take root—though the transplants clearly exist. This article explains how a constitutional transplant may sometimes establish the credible commitments necessary for stable constitutionalism. Rapid adoption of a constitutional transplant becomes plausible if its adoption is understood as an ideology—the use of ideas for social domination. The chance to become known as a leading constitutional exponent or lead a political movement creates incentives for ideological entrepreneurs to invoke attractive foreign models, especially when existing ideologies don’t align with economic opportunities or social reality. These entrepreneurs do not necessarily promote a text; instead, they market a package of ideas, values and approaches, which combined with the foreign text get embodied as legal rules. Indeed, if the entrepreneurs are successful, constitutional debates may sometimes become unanchored from the recipient country’s text if its existing text does not fully match the model. Credible commitments emerge from the model, not the text. But most important, if the ideologist obtains power, then a selfreinforcing constitutional commitment may result. The ideological entrepreneur in power cannot easily escape the rights and institutions created by their own ideology and must protect the rights of their political opponents accordingly. Argentina in the 1860s shows how elites may harness a foreign constitutional model to realize effective credible commitments. Sometimes dubbed “yankee-mania,” an ideology took root insisting that Argentina needed to treat the U.S. constitutional model as binding. Domingo Sarmiento, who served as President from 1868-1874, built much of his political career as the best-known ideological entrepreneur boosting the U.S. model, sometimes going to farcical extremes. By the time Sarmiento became President, the U.S. model already dominated Argentine constitutional debate, and on the question of emergency Presidential powers during civil unrest, Argentina’s constitutional text, which actually came from Chile’s on this issue, simply got ignored. But while Sarmiento constantly invoked the model, it also constrained him in the suppression of rebellions, particularly when the Supreme Court ruled against him, and under the U.S. model he needed to accept its decision. Every ideology has its limits, and sometimes Sarmiento overreached in his invocation of the U.S., as when he turned to a departing (and intellectually unimpressive) U.S. ambassador to explain the martial law powers of Lincoln. But the ideology of yankee-mania worked to establish credible commitments. Argentina’s adoption of the U.S. model is important not just for Argentine historiography and for how Argentina attained the stability for late 19th century economic growth, but for understanding constitutional transplants broadly, particularly for countries at moments that demand institutional change.

Volume

34

Issue

1

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