Mexico's Supreme Court

Between Liberal Individual and Revolutionary Social Rights, 1867-1934

Timothy M. James

• Publisher: University of New Mexico Press
• Year: 2013
• ISBN:
  9780826353795
• Topic: History
• Subtopic: Mexican History
• Index: History

Although Mexico's Constitution of 1917 mandated the division of large landholdings, provided land for the landless, and guaranteed workers the rights to organize, strike, and bargain collectively, it also guaranteed fundamental liberal rights to property and due process that enabled property owners and employers to resist the implementation of the new social rights by filing suit in federal court. Taking as its main focus the way new and old rights were adjudicated before the Supreme Court, this book is the first to examine the subject through the lens of court documents and the writings and commentaries of jurists and other legal professionals. The author asks and answers the question, how did the judicial interpretation of the Constitution of 1917 become a barrier to implementing agrarian land rights and labor legislation in the years immediately following Mexico's social revolution of 1910?

CHAPTER ONE

The Judicial Protection of Constitutional
Rights during the Porfiriato

When the historians of the future study carefully our epoch and calmly and philosophically judge the complex causes of our interior peace and our growing material progress, they will take into account, without doubt, the energy with which the administration has squashed with an iron fist the first hints of rebellion: but they will also have to take into account that if the pacification of the country has operated to a significant extent it has been, among other important factors, because the amparo suit has permitted, in general, the reparation of an infinity of arbitrary acts, whose effects, without doubt, would have used up, sooner or later, the patience and abnegation of the Mexican people.

—Miguel Bolaños Cacho, 1908

The Porfiriato as a historical period has long been viewed from the perspective of Mexico’s social revolution of 1910. This is no doubt a testament to the scale and scope of the conflagration itself, which intensified and radicalized after 1913 and did not come to an end until at least 1917 but more conventionally 1920, or (with recourse to the notion of a long “Thermidor” between 1917 and 1934) perhaps not until 1940.¹ The events that unfolded after 1910 were by and large unprecedented in the history of Latin America despite the region’s reputation for revolutionary upheavals.² After thirty years of relative political stability consolidated around the shrewd politician and celebrated military hero of the French Intervention, Gen. Porfirio Díaz, the country was plunged into a civil war whose outcome could not have been predicted by anyone in 1910, least of all by those most acquainted with Mexican affairs.³ It would eventually lead to the raising of large Revolutionary armies capable of engaging and defeating federal troops in battles fought along conventional lines. These Revolutionary armies then turned on each other. By 1921, after a little more than a decade of civil war, bullets, disease, and food shortages had combined to kill or displace from Mexican territory more than eight hundred thousand people.⁴ It is hardly surprising, then, that the historical problem of the Porfirian peace, or Pax Porfiriana, alluded to in the quotation by Miguel Bolaños Cacho, has been eclipsed by the question of the Revolution’s Porfirian antecedents and causes. Perhaps for this reason, too, amparo, contrary to Bolaños’s pre-Revolutionary expectations, has been little studied by historians.

This is not to say that constitutional law has not been implicated in a causal account of the Revolution. It surely has. However, many of these accounts leave much to be desired and they have been limited in their conclusions by a neglect of constitutional jurisprudence. Indeed, the vast majority of these accounts have tended to repeat the black legend that “[w]ith porfirianism, the democratic, representative and federal state disappeared to be substituted for an absolutist, personalistic, and dictatorial power; liberties and the Rights of Man, dead on the page, were effective only for a reduced number of the dictator’s friends.”⁵ The intellectual justification for this departure from a liberal constitution was supplied by a new positivist ideology, derived from the philosophy of the French thinker Auguste Comte (1798–1857) and not to be confused with legal positivism. Thus, it is the interruption of Mexico’s constitutional tradition during the Porfiriato that has long been emphasized in most works on the subject.⁶

Although aspects of this narrative have certainly begun to be challenged, it continues to exert a strong influence over our thinking about the period.⁷ To take up but one recent example, Howard Wiarda, evidently relying on an earlier history of Mexican liberalism, has argued that when Porfirio Díaz came to power in 1876 the “most recent of Mexico’s occasional liberal episodes came to an end” and that “positivism supplied a programmatic roadmap for the [new] regime.” Consequently, “liberal constitutionalism” was abandoned and “positivists” redefined constitutional “liberty” so as to make it practically meaningless. Although the regime paid lip service to such key concepts of nineteenth-century liberalism as liberty, their new meanings had “nothing to do with what North Americans would think of as individual civil and human rights.”⁸

I begin with this particular historiography not only because it has emphasized the interruption of Mexico’s constitutional tradition and therefore has tended to obscure important elements of Porfirian history but also because it cannot be reconciled with a peculiar paradox of the history of the Constituent Congress of 1916–1917, a point I will substantiate in a later chapter. As several revisionist scholars have argued, not only was ideological consensus within the Congress more significant than many traditional accounts would have us believe, it was a consensus profoundly shaped by constitutional developments and debates that took place during the Porfiriato.⁹ In other words, the constitutionalism of the Constituent Congress did not hark back to liberal understandings common during the Restored Republic (1867–1876). This is especially clear with respect to amparo and the federal judicial power, although it is also evident with respect to the Constituent Congress’s treatment of other key provisions, including the division of powers, especially a strengthened executive. If the Constitution was revered only in theory and ignored in practice, as Daniel Cosío Villegas asserted more than half a century ago, then how do we explain the very real constitutional changes that took place during this period and that seem to have informed so much of the work of the constitutional deputies who wrote the new Constitution of 1917? Any preliminary answer that engages seriously with the kinds of reforms made in 1916–1917 must admit that although some constitutional norms were ignored in practice during the Porfiriato, others were not. Constitutional practice put constitutional norms “in play” and often brought about, sometimes deliberately, sometimes not, constitutional change. Indeed, one of the principal tasks in what follows is to chart some of the most important constitutional changes as these relate to amparo and individual constitutional rights during this period.

Although it is tempting to test Bolaños’s claim that the protection of constitutional liberties to property and person provided by amparo was a key factor in the making of the Pax Porfiriana, I will not treat the functional relation of amparo to political stability here. Bolaños’s words may nonetheless be considered as a first piece of evidence in substantiating my argument in the first section of this chapter; its content is indeed illustrative of the high regard with which most jurists of this period regarded amparo. This section therefore argues that the suit’s apotheosis (in the works of Bolaños and other jurists) must be understood at least in part as a Porfirian accomplishment. Because such a periodization, one that locates the apotheosis of a suit protecting individual constitutional rights in the middle of the Porfiriato, will strike many as odd or simply unlikely, a third section attempts to reconcile it with a more traditional understanding of Porfirian history. It does so by emphasizing how some of the most significant changes made in the constitutional interpretation of the suit and the suit’s protection of individual constitutional rights appear to complement more than they contradict the predominant tendencies of the Porfirian state-building project between 1884 and 1910. These include the inadmissibility of the suit for settling political questions (especially those political questions that related to contested elections) and, perhaps less well known, the suit’s increasing admissibility in settling property disputes and other questions relating to the application of the civil law of the states. Although some of my conclusions (especially with respect to the adjudication of property disputes) must be considered tentative, it seems unlikely that Díaz was able to directly control or manipulate these complex jurisprudential developments. Nonetheless, Díaz benefited from these developments in his quest to consolidate power in a strong centralized state. By glossing these two developments and prominent legists’ and jurists’ responses to them, I hope to make the day-to-day practice of amparo “thinkable” to those who are more familiar with the regime’s acceptance of Comtean Positivism (privileging “order and material progress” over individual rights) than with its (simultaneous) affirmation of a constitutional jurisprudence protecting liberal individual rights.

A fourth and final section takes up the question of whether amparo and the constitutional rights that it most consistently protected were effective only in protecting members of the oligarchy or whether they had an application beyond the narrow strata of the political and economic elite. Again, these conclusions must be considered preliminary, but there is sufficient anecdotal evidence culled from judicial sources to suggest that amparo, although no elixir stone, was in fact used quite regularly by the nonelite as well as the elite. However, it must also be acknowledged that lack of access to the courts or knowledge of one’s rights created insurmountable barriers for some. This fourth section may be thought of as a qualification of the argument of the third section that suggests a very close relationship between amparo and the very processes of modernization that favored the political and economic power of the Porfirian oligarchy under the guise of liberal constitutionalism. Amparo was thus simultaneously implicated in these processes and yet not simply reducible to them, which also helps explain why a strengthened and independent amparo court could be considered a Revolutionary reform by Conventionalists and Constitutionalists alike in the years after 1910.

Early Limits to Amparo and Its Porfirian Apotheosis

It was not until the return to a federal constitutional system in 1847 that the protection and enforceability of constitutional rights became an exclusively judicial process inspired not by European precedents (as in the creation in 1836 of a Poder Conservador, which can be traced to the ideas of the French liberal Benjamin Constant) but by the North American example of judicial review.¹⁰ According to article 25 of the reforms to the 1824 Constitution (drafted by the well-known Mexican jurist Mariano Otero), “The federal tribunals will protect all inhabitants of the republic in the exercise and conservation of those rights that the Constitution and constitutional laws provide, against all violations by the legislative and executive powers, whether of the federation or of the states; said tribunals shall be confined to providing redress in the particular case to which the complaint refers and shall not make any general declarations with respect to the law or act that motivates it.”

A similar provision was later to be incorporated into the Constitution of 1857. Article 101 specified that amparo was to proceed against any public authority that infringed one of the first twenty-nine articles of the Constitution (titled “Of the Rights of Man”) or that represented an invasion of the jurisdiction of the states by the federation (or vice versa, an invasion of the jurisdiction of the federation by the states). Article 102 retained the original formulation of Mariano Otero, explaining that these controversies were always to take the form of a judicial suit and “[t]he sentence shall always be so drawn as to affect exclusively private individuals, and shall be confined to affording them redress in the special case to which the complaint refers, without making any general declarations with respect to the law or act that motivates it.” According to the jurist Ignacio Vallarta, amparo was “the legal process intended to summarily recover any of the rights of man set forth in the Constitution and attacked by any authority of whatever category or to release them from the duty to comply with a law or command of an authority that has invaded the federal sphere or local sphere, respectively.”¹¹ The rights protected by amparo included the now-classic bourgeois freedoms of speech, press, thought, life, industry, property, labor, and association. Amparo also protected the inviolability of domicile, papers, and possessions without just cause and the rights of the accused to a fair trial and defense and prohibited the creation of special courts, the use of torture, and the retroactive application of the law.

Although promulgated in 1857, these particular provisions did not find their way into practice until the passage of regulatory legislation in 1861. This legislation (the “organic law of amparo”) was soon suspended in the face of the French Intervention (1862–1867), which in 1864 established a constitutional monarchy under the reign of the Austrian archduke Maximilian von Hapsburg. In 1868, following the 1867 reestablishment of republican government in Mexico City, new legislation was drafted that made amparo a suit of two instances, a first instance at the district level with a second, mandatory revision before the Supreme Court.¹² With this legislation, and with the elimination of the Court’s handling of civil and criminal cases from the Federal District and federal territories on appeal, deciding amparos was to become the Supreme Court’s most important jurisdictional function.¹³ In short, the Supreme Court became an “amparo court” and the uninterrupted practice of amparo adjudication from 1867 until 1914 meant that by the twentieth century Mexico was one of the few countries in the world with an established legal tradition of the judicial defense of liberal constitutional rights.

Although institutions similar in kind to amparo have become a commonplace of twentieth-century constitutional law the world over, it must be remembered that in the last third of the nineteenth century this kind of institution was a substantial innovation and one that involved a significant break with an earlier paradigm. While amparo directly guaranteed a classic bundle of individual rights under the rubric of the “Rights of Man,” it indirectly substituted a regime of constitutional adjudication for the supremacy of the popular legislature by making amparo a judicial process. This challenge to a key liberal value on the French model (i.e., the apotheosis of popular sovereignty) proved especially controversial among the framers of the Constitution of 1857. Indeed, it should not be forgotten that articles 101 and 102 of that constitution passed only after the insertion of a jury requirement, a substantial check on the creation of a strengthened judicial power charged with the control of constitutionality through the protection of liberal individual rights and the federal structure. That the jury provision was eliminated in the final version of the Constitution by the draft committee in consultation with the Committee of the Constitution reinforces the general impression that despite the strong precedent for these two articles in the 1847 reforms to the Constitution of 1824, the grafting of a system of “judicial supremacy” onto the Constitution of 1857 was the work of an “enlightened” minority within the Congress.¹⁴

Prior to the establishment of amparo in the Mexican constitutions of midcentury, the ideal of a limited government was to be realized principally through the active political participation of its citizenry (especially their use of the franchise), penal sanctions for authorities who overstepped their legally circumscribed spheres of action (juicio de responsabilidad), and in a federal republi...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• Chapter One The Judicial Protection of Constitutional Rights during the Porfiriato
• Chapter Two From the Plan of San Luis Potosi to the Constitution of 1917
• Chapter Three Liberal Jurisprudence and Article
• Chapter Four The Third Revolutionary Court and Legal Obstacles to the Implementation of Article
• Conclusion
• Notes
• Selected Bibliography
• Index