The Cortes of Cádiz embarked on an unusual constitutional project from 1810-1812. With Napoleon’s troops occupying most of Spain and King Ferdinand VII a French prisoner, the resistance forces needed to strike a bargain to keep both Spanish America and liberals in the resistance camp while at the same time satisfying conservative monarchists. The Cortes functioned as both a constitutional assembly and a legislature in Cádiz, one of the areas that Napoleon’s troops failed to occupy, and included an important American presence. The Constitution that the Cortes produced has received almost no attention from U.S. scholars. Its direct impact was limited, since it only functioned during two short periods, from March 19, 1812 until May 4, 1814, when Ferdinand VII renounced it upon returning to power, and from March 9, 1820 to June 1823, when liberal military forces initially obligated Ferdinand VII to swear by it but then were thwarted by a French Bourbon invasion that restored him as an absolute monarch. Further, even in 1812, the Cádiz Constitution did not apply in some portions of Spanish America, like the Viceroyalty of the River Plate, which had already effectively rejected Spanish control, and by its second period of application, independence movements had already routed Spanish forces in much of Spanish America. However, that does not eliminate the Cádiz Constitution’s significance as a transitional document. As Mirow emphasizes in his book, the Constitution represents an interesting set of compromises among liberal, conservative and American forces. He also makes a convincing argument that the Cádiz Constitution shows important continuity in Spanish American constitutionalism, offering what might be thought of as a missing link, so that we need not view post-Independence constitutionalism as a stark liberal change from earlier absolute monarchy. Mirow’s focus on this unique document is a welcome academic contribution. The final third of the book, while lacking a strong connection to the Cádiz Constitution discussion, offers snapshots of Latin American constitutionalism since the independence period. It usefully draws out the regional influence of the Mexican Constitution of 1917 as the first constitution in Latin America to focus on social rights, and also develops the familiar problems of states of exception that were often used to suspend rights, the problem of excessive constitutional amendment for short-term political goals, the frequency of extra-constitutional arrangements that make the written constitution a façade, and common battles to reduce the power of the Catholic Church. Mirow also correctly notes modern tendencies to continue strong presidentialism, but to innovate with increasing social and economic rights, respect for international human rights tribunals, specialized constitutional courts, and new accelerated mechanisms for bringing constitutional claims, often with decisions having an erga omnes effect. The book has some weaknesses. Perhaps inevitably, the book relies almost exclusively on secondary sources – the exceptions being its discussions of the text of the Cádiz Constitution and of the work of Juan Bautista Alberdi, Argentina’s great nineteenth century political theorist. But excessive reliance on secondary sources combined with the amount of ground covered in limited space leads to distortions. For example, Mirow argues that many of the atrocities of Argentina’s “dirty war” of 1976-83 were “cloaked with the constitutional authority of the state of siege.” (p. 225). Given that the greatest atrocities were disappearances, torture and the fraudulent adoption of babies whose parents were murdered by the government, all illegal acts even under state of siege, the statement does not hold true. Similar questionable statements appear at various points in the book – an unsurprising problem in a book that seeks to summarize long periods of time and by its nature must rely on secondary sources, but a reader who knows a particular country very well will sometimes take issue. Finally, while everything that Mirow develops on the history behind the Cádiz Constitution and its immediate impact is fascinating, he makes broad claims about its role in the migration of constitutional ideas and culture that he fails to support, except in the case of Mexico. First, some of the provisions adopted at Cádiz appear in earlier models, like the French Constitution of 1791 or the U.S. Constitution. That makes any tracing of the Cádiz Constitution’s influence on nineteenth century Spanish American texts guesswork unless research includes primary sources from the period like floor debates and committee reports. Unfortunately, not all of the secondary sources that Mirow relies upon do that or are of equal quality. Second, Mirow repeatedly insists that the 1814 and 1823 retractions of the Cádiz Constitution by Ferdinand VII created deep-seated assumptions in Spanish America about constitutions as political tools that could be modified and suspended based on the needs of those with political power (pp. 2, 3, 7, 8, 269, 273, 274). Maybe the Constitution of Cádiz represented a lost opportunity for Spain and Spanish America, but it is far-fetched to claim that Ferdinand VII’s ineptitude led to Spanish America’s constitutional instability, especially since some constitutions, like the Chilean Constitution of 1833 and the Argentine Constitution of 1853/60, enjoyed long periods of continuity. Mirow’s book should be read primarily for the fascinating story it tells of the forces that gathered in Cádiz to try to save the Spanish Empire and the nature of constitutional continuity during times of change, and read in that vein it provides an important service to U.S. academia, which has largely ignored the events at Cádiz. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
American Journal of Legal History – Oxford University Press
Published: May 3, 2018
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