Constitutional Review and the Boundaries of Constitutional Reform

A Comparative Analysis of jurisprudential developments in Argentina and Colombia

Abstract

In Latin America, constitutional review is exercise by the judiciary branch and seek to ensure the dispositions of the National Constitution over the rest of the legal system in order to give effect to the principle of constitutional supremacy. But what happens when the controlled norm is at the same time, the controlling norm? Is it possible to declare unconstitutional a provision incorporated in the constitutional text through a constitutional reform? In other words, Can a judge (part of the constituted power) exert control over the Constitutional Convention (the constituent power)?

This paper intends to address these issues from a comparative analysis of the jurisprudential models born from the judicial decisions of the Argentine Supreme Court and the Colombian Constitutional Court. While in this last case, the Constitution itself recognizes the faculty of the Constitutional Court to control the Constitutional dispositions (sections 241 and 379), and consequently, there are numerous judicial pronouncements of this Court, in Argentina the Constitutional Charter does not say anything at all on the matter, and we can find only three pronouncements, in which the Supreme Court was changing its position regarding this complex matter.

The main aim is to compare these two models focusing the analysis on the arguments put forward by both Courts in exerting (or not) their control over the production of the constituent power