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Origins Of The 1853 Argentine Constitution, Explained

By | [email protected] | July 11, 2016 10:45am

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Write an explainer on Argentina’s Constitution and how it borrowed from the United States’ one, they said. Don’t make it long, they said. Don’t make it boring, I thought.

The task at hand was clear, except for the small detail of the subject. After all, Argentina has had multiple Constitutions and numerous important revisions, like those of 1949 and 1994 fame, amirite?

Clarification was needed, and duly sent. It’s the 1853 one we want. That helped. The 1853 Constitution was the most important one, the one that walked all over those half-baked attempts that came before it, morphed and eventually birthed into being the future social-democratic modifications, Articles and laws us earnest citizens and immigrants know so well (obvio) — this is what it looks like 200 years after independence.

Freedom of speech, freedom of association, scores of other liberties and rights: The Constitution guaranteed them, piece by piece, in the years after its base of scribbling was first penned in haphazard fashion by Juan Bautista Alberdi, its Dad (or Mom, depending on what we call Justo José de Urquiza). It was revised many times since then, but the 1853 first edition that followed Alberdi’s Bases… essay was the cornerstone of them all.

Alberdi’s book on the new “Republic of Argentina” borrowed heavily from the 1787 US Constitution and formed the blueprint for Argentina’s own. Image: en.wikipedia.org

In 1853, independence was long won. Argentina existed. But more than 30 years later things were not going all that great in San Martín, Belgrano, Moreno et al’s promised land.

Civil wars (between Unitarians and Federalists), dictatorial rulers like proto-fascist Juan Manuel de Rosas, an almost flat-lining economy, virtually no infrastructure in Argentina all meant that freedom from the Spanish yoke had not yet delivered the long-dreamed of national utopian paradise that as it turned out (like most utopias) meant something different to more or less anyone you cared to ask.

Clearly this would take time and a lot of work. Luckily, the budding Constitutional authors — who agreed on many important things and became known as the “Generation of 1837” — had examples to look at and draw from. Namely France and, for the sake of this article, the United States, as legal expert Jonathan Miller described:

“Argentina’s elite adopted US constitutional practice not only as a model, but as a source of authority.

So when we’re looking at Argentina’s Constitution (and this applies to US Constitution too) we should keep two main ideas in mind:

First, it was an ideological beacon for vogue liberal and 18th century Enlightenment values. It was filled with lofty rhetoric about freedom, justice and autonomy rooted in the ideas of the popular philosophy of the age about the best way to structure an ostensibly liberal, ostensibly democratic state with the bourgeois elites of the era behind the wheel (one person, one vote came much, much later than 1853).

Second, Argentina’s 1853 Constitution was also a set of solutions to many immediate contemporary problems faced by the infant nation at the moment in time it was drafted, redrafted and finally ratified. These included a minuscule population-to-landmass ratio, stunted economic growth and a deep-seated authoritarian political culture — caudillismo — that made the new democracy vulnerable to capture by powerful individuals and even dictators like Rosas, whose personal tyranny won him a place on the back of the current AR $20 note and whose fall from power immediately preceded the publication of the Constitution and was celebrated by the men responsible for writing it.

Population

Population was the key trait shared by the United States and Argentina on the moment they gained independence in that they didn’t have any. A new sovereign nation state, unimaginably vast and filled with untold wealth of resources to be used for achievement of that most bourgeois of 19th century virtues: “progress.” But who exactly was going to do the using?

After all, the nation state more than anything else was a collection of people who shared or imagined a common history, culture and (supposedly) a set of values to boot. And there were no people. Next to none, at least, if we’re talking about Argentina. Think Icelandic — Huhh! — levels of population with slightly more people and much more empty space.

The enormous swathes of territory Argentina won from Spain in 1816 were initially populated by just 500,000 or so people who made up post-independence Argentina. By the time that Alberdi and the boffins were pitching and drafting the Constitution, this had risen to around 1,000,000 according to the history journals.

Population would be the motor of economic development, just as it had been in the first industrial nation on Earth — Britain — and everywhere else from the as the long nineteenth century marched onwards. Immigration would be combined with the vogue and still trendy bourgeois capitalism that together had been such a force behind economic growth in the United States as to guarantee Argentina’s ascendancy in the world, or so Alberdi anticipated:

Article 25: The Federal Government shall foster European immigration; and may not restrict, limit or burden with any tax whatsoever, the entry into the Argentine territory of foreigners who arrive for the purpose of tilling the soil, improving industries, and introducing and teaching arts and sciences 

Federation

So, new country, new population. Hey presto? Not quite, despite what Alberdi’s Generation of ’37 said.

The size of the United States and Argentina as geographical spaces had been a governing issue long before San Martín gathered his cavalry for the first time against Imperial Spain in 1813. Both previous empires that ruled these lands employed varying degrees of a devolved system of governance — using local elites such as landowners or caudillos to rule — to get things done the way they wanted.

The new Argentina between the Declaration of Independence and the 1853 Constitution was still far from whole — a collection of far-flung regions known loosely as the United Provinces of Rio de la Plata.

What was more, civil wars had been fought repeatedly up to Rosas’ fall from power between leaders like Alberdi and Urquiza on the one hand, who were on the whole Unitarians advocating a centralized government, and Federalists like Rosas, who wished individual provinces to retain their sovereignty over any national government in most things. (NB: Just to confuse you, “federalists” were the centralized “Unitarian” side in the US).

A bias towards the most powerful provinces like Buenos Aires in the “federalist” system was attacked by the Unitarians’ before Urquiza brought them together at a General Constituent Assembly. This was convened soon after Rosas fell. It would eventually create the Constitution. (In fact, Buenos Aires Province refused to recognize the Constitution for some time after it had been ratified).

Surrounded by bitter divisions that threatened to open old wounds, the ’37 generation knew that a compromise was needed. Again, what better place to look to than the United States? The Articles of Confederation (1781), which preceded the US Constitution, documented how great the fear of centralised government — just as the Argentine Federalists had — was among states the new nation. state representatives in the US played a large role in drafting the Constitution and many fervently backed devolved political power.

In the end, a muddy compromise was agreed to, which gave states sweeping legal and economic powers while leaving key political frameworks and structure at the national level. It seemed like as good a solution as any available in the Argentina of 1853. So the men of ’37 borrowed judiciously once more:

Article 5: Each province shall enact its own constitution under the republican, representative system, in accordance with the principles, declarations, and guarantees of the National Constitution, ensuring its administration of justice, municipal regime, and elementary education. Under these conditions, the Federal Government shall guarantee each province the full exercise of its institutions.

Separation Of Powers

One of the central reasons for fighting and dying for independence from Spain was one that had been birthed in the great revolutions which preceded Argentine independence in the United States and France. In a disgustingly gross over-simplification, the idea was “down with tyrants.”

The colonists on the Eastern seaboard of what became the US mainland had enjoyed degrees of autonomy from Britain for centuries before independence and so were well-versed in the importance of “negative” liberty, the rights of the individual and degrees of self-governance.

These ideas were popular in Latin America and Argentina too, but unlike the Thirteen Colonies, they had been ruled under the mailed fist and iron boot of the Spanish Empire. That meant the vision of philosophers like John Locke, Jean Jaques Rousseau and Montesquieu that had so influenced the founding documents of the French and US revolutions enjoyed somewhat less traction in Argentina (and the mere hundreds of thousands who lived here during the mid-nineteenth century), as Rosas’ lengthy dictatorship underlined.

All the more reason to take a leaf out of the Franco-Yankee trendsetters example with gusto, and for the authors of 1853 to embrace them wholeheartedly to speed up the development of progress.

Birthing a new nation state in the world-changing examples of France and the US had been a tricky thing to do. It would be no different in Argentina.

In the bitter civil wars which broke out soon after 1816, democratic development had taken a back seat. Argentina wouldn’t get a genuinely elected president until the 1860s (Bartolome Mitre), and even then only with a fantastically limited number of people actually permitted to vote.

If a representative republic was really going to work from scratch, so the Constitutionalists reasoned, it would have to make sure its laws and rights couldn’t be (easily) forced to kowtow to a Rosas-type strong man backed by the military and a virtual hegemony over the legislative and judicial branches of the state.

Sixty years prior, these same fears about power concentration had been articulated to such extreme degrees at the 1787 meeting in the Pennsylvania statehouse that the US Constitution and as a result the unified nation itself almost died in infancy. Nonetheless, with virtually limitless possible routes to take, what the Philadelphia Convention agreed upon would become the most popular political model of the coming centuries and be replicated to a great extent in Argentina’s 1853 Constitution.

It was a republic. That meant that the three main elements in the state — the Executive (Presidency), Legislature (Congress) and Judiciary (judges, laws and that) would all be separated and able to check and therefore balance abuses of power in either of the other two branches (many of the founding fathers were as petrified of a popular Congress as they were of tyrants). This structure made sense to its creators at the time, even if it would later hamstring countless future US presidential administrations faced with a hostile legislature.

And yes, the US Constiution was also a copy. It copied the Roman republic, it copied the 1688-9 English “Glorious Revolution” treatise, which evolved into the current “constitutional monarchy” the UK has and was called by none other than Alexander Hamilton himself “the greatest model the world has ever produced.” See? Even Hamilton got things wrong.

But I must presume we have run out of have sufficient space, time or patience for an infinite regress in the art of constitutional thievery. Suffice to say, Alberdi and co. made sure Argentina continued the noble art of borrowing other people’s good ideas and enshrined the following lines at the very top of the new constitution, turning Argentina into a Republic, at least on paper, overnight.

Article 1: The nation of Argentina adopts for its government the federal republican representative form, which is established according to this Constitution.