In this article we would like to point out that the philosophy underlying the Argentine Constitution expresses a combination of traditions present throughout the country’s history that allow for very different public policies, but not simply any policy. The constitution is incompatible with racial or sexual discrimination initiatives; since it is not compatible with communism (understood as the abolition of private property) or libertarianism (understood as the abolition of the state). This is consistent with the claim that the Constitution obviously protects the most diverse personal ideals (religious, philosophical) and allows the implementation of completely different economic programs (more or less strict economic regulations; export or import policies, etc.).
What we want to emphasize here, however, is that the philosophy of the Constitution opposes or rejects, rather than tolerates, the public philosophy of this administration, which is based on ideals of “destruction of the state from within” and on disregard for the most basic principles of social justice (“social justice is an aberration”). As we will say, the philosophy of the Constitution requires the presence of an active state on issues of fundamental social rights and supports equality and social justice as some of its fundamental principles. To support these statements, allow us to begin these lines with a short story aimed at recognizing “what we have” in constitutional matters.
The Argentine Constitution, like most Latin American constitutions, emerged from a mix of traditions historically relevant to the region. The original Constitution of 1853 painstakingly combined the ideology of two of the country’s most influential post-independence ideas: a liberal current, daughter of the North American Revolution of 1776 and the Constitution of 1787; and a conservative current, a legacy of centuries of Hispanic rule in the region. Meanwhile, echoes of a third, republican tradition still reverberated in the distance, stemming from the other great revolution of those years, the French Revolution (and its constitutional legacy, reflected notably in the Constitutions of 1791, 1793 and 1795, with its Jacobin influence in tow).
Drawing on these diverse sources, the 1853 Constitution ultimately established a Declaration of Rights that combined very liberal commitments (e.g., the “harm principle” of Article 19 protecting “private” actions, freedom of speech, religious tolerance, or “checks and balances,” which included presidential vetoes and judicial control of the Constitution) with other more conservative commitments (a strengthened executive branch, a state of siege, federal intervention, etc.).
The result of this combination was certainly imperfect, but the practice developed since then helped to “smooth” and “polish” some of these imbalances and to consolidate other features that had not been clearly defined in this first draft of 1853. For example, Article 19 protecting private actions has tended to be interpreted in accordance with its liberal content (rather than in relation to its conservative features) and has therefore tended to be an article that essentially protects personal morality. Meanwhile, other radically conservative aspects of the 1853 Constitution, such as mandatory evangelization of indigenous peoples, were forgotten until they were eventually deleted from the document.
Our current constitutional text is no longer that of 1853, although it clearly appears to have been “composed” from that original text. From then to now, the Constitution underwent some important changes that gave it its current profile. First, the Constitution underwent a significant amendment in 1957 to resume some of the “social content” of the repealed Peronist Constitution of 1949. More generally, it can be said that from this moment and through Article 14bis, the Argentine Constitution regained the social aspects typical of the old republican tradition that had been pushed off the table of constitutional negotiations in the mid-19th century. Our social republicanism was adapted to the language and needs of the 20th century and was expressed in commitments that we wanted to maintain despite their demanding nature: “dignified and just working conditions”; “profit sharing”; “Social security”; “Access to adequate housing”; etc. These are undoubtedly demanding ideals that are difficult to achieve. What is no longer possible, however, is to view such demands as if they had not been written, or to interpret the Constitution as being “mute” or indifferent to economic programs. On the contrary, and with any labor or social security reform, the first question should always be: “Does it contribute to the realization or undermining of constitutional ideals?” If the latter is the case, it should be considered a constitutionally impermissible policy.
Finally, in 1994, our Constitution underwent a new reform that finally defined its current identity. Since then, our Magna Carta, which expressed a “mixture” of the three great traditions of modernity – liberalism, conservatism and republicanism – has responded to some of the key demands of its time and remedied some of its most objectionable omissions. Certainly, the main commitment of our Constitution since the end of the last dictatorship has been to give a constitutional level to the human rights treaties already signed by our country. Likewise and for example, the 1994 Constitution finally granted recognition of the deferred rights of indigenous communities; and is openly committed to an equal opportunities policy, insisting twice on the anchoring of the principle of “genuine equal opportunities”. We are once again talking about constitutional clauses with an enforceable character and not about “poetry” or “statements of wish” and – let alone – about “woke ideology”.
In contemporary terms, the philosophy of our constitution can be understood as a confluence of egalitarian liberalism, a Christian social aspect and a social democratic attitude. However, both the President and his key business leaders have unequivocally and systematically insisted on expressing an institutional philosophy that is very directly opposed to the Constitution’s core ideals. This is done, for example, by considering “social justice” to be “deviant”; on social rights as “garbage”; on human rights as a “job”; or the state as a monster that must be undermined from within (“like a mole”). Furthermore, if we look at the individual policies adopted or proposed by the government (labour, pension, criminal justice reform, etc.), we see in these insults more than just provocations. It is the practical expression of a public philosophy that actually views the Constitution as the enemy. So, to give just a few examples, by ignoring the privileged place that the Constitution gives to children, the elderly and the disabled (Articles 14 bis and 75 inc. 23); by promoting the defunding of science and the university in a constitution that regards education as a fundamental right and requires the promotion of “research” and “scientific and technological development” (Articles 14 and 75 incl. 19); by disparaging the strong constitutional demands for genuine equality and affirmative action in relation to gender (Articles 37 and 75 incl. 23) as flamboyant or “woke” policies; by promoting penal reforms within the framework of a remarkably guaranteeing constitution (Article 18); by seeking counter-reform in labor law, an essential part of social justice (strongly supported by Article 14bis). In short, as long as the current Constitution governs, there are clear limits on government action that require outright rejection of any proposal that seeks to violate that Constitution. In other words, if we adhere to the philosophy of the 1994 Constitution, we will be forced to oppose a government that rejects it in words and deeds.
Gargarella, doctor of law and senior researcher at Conicet; Alegre, Professor of Legal Philosophy at UBA
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