In the previous chapter, I showed how the Venezuelan opposition’s strategic choices helped Hugo Chávez erode democracy. In this chapter, I develop the other part of my argument by highlighting the role of the Colombian opposition in preventing democratic erosion. Between 2002 and 2010, Alvaro Uribe tried to erode democracy in Colombia. Like Hugo Chávez (1999–2013) in Venezuela, he introduced several reforms that sought to reduce the checks on the executive and extend his time in office beyond a second term. He was polarizing, and willing to push as far as he could to increase the powers of the presidency and stay in office beyond a second term. His government harassed opposition members, journalists, and members of the courts and worked in tandem with illegal armed actors to systemically undermine those who criticized the president. Contrary to Chávez, however, Uribe was not able to turn Colombia’s democracy into a competitive authoritarian regime. Despite his attempts to undermine the independence of the courts and the fairness of elections, Colombia’s constitutional order remained fairly strong, and Uribe had to step down after his second term.

The chapter discusses distributional analysis as a method of legal analysis interested in understanding the consequences of rules. While recognizing that this method shares this goal with proportionality analysis, the author intimately discards a reconciliation of both based on their different relationship to a theory of democracy. The author argues that proportionality analysis is wed to a vision of judges as restrained by the commands of legislators (or constitutional lawmakers), while distributional analysis sees judges as political actors entrusted with realizing the goal of redistribution. The case of gender mainstreaming is used to illustrate that arguing in favor of the use of distributional analysis does not mean forcing judges into continually adopting structural injunctions, nor provokes such levels of polarization that the sought-after redistribution is sabotaged by increased levels of countermobilization or backlash.

The Colombian Constitutional Court has decisively undertaken the role of guaranteeing the normative force of economic and social rights. It has devised several tools to that effect, among them a test to evaluate regressive measures. This chapter examines rulings that review statutory norms in the abstract, before arguments that denounce them as illegitimate retrogressions in the enjoyment of social and economic rights. These claims are assessed by applying what we call the “integrated regression test.” The chapter establishes the meaning, structure, operation and efficacy of this test, which uses proportionality analysis as an allocation method. It dissects how it operates to safeguard rights when their minimum core or preexisting associated benefits are withdrawn. The integrated regression test proves to be a strong and complex scrutiny, even if not completely unified in its use, with a wide range of singularities and a tendency to be more protective of social rather than economic rights.

This book explores and critically assesses how proportionality analysis has been understood and used in Latin America over the course of three decades of democratic life. As the different contributions foreground, proportionality has indeed become a key organizing concept in the constitutional law of a region where constitutions with openly transformative aims coexist with appalling degrees of social inequality.

Proportionality analysis is considered a central tool for rights adjudication in contemporary constitutional law. Prevailing academic narrative explains its worldwide spread as a matter of legal migration. This chapter challenges this narrative through the analysis of Argentine constitutional practice. It reconstructs the different variants of proportionality scrutiny that have been applied by the Argentinian Supreme Court from the beginnings of the twentieth century, well before the development of the modern proportionality test by the German Constitutional Court, and surveys its role in the adjudication not only of civil and political rights but also social rights. It ultimately argues that constitutional practices in this domain are better explained under a paradigm of interaction, rather than under one of migration.

This chapter explores the contrasting role of proportionality discourse in the USA and in Latin America. Although the USA provided an important constitutional model for Latin American countries, the latter does not share the former’s disinterest in the proportionality framework, which is considered foreign to the legal tradition of the country despite the fact it is arguably harmonic with the approach to law creation in the common law tradition. The chapter seeks possible explanations for the contrast in four elements: the importance in Latin America of centralized, specialized constitutional jurisdiction; the tradition of borrowing constitutional jurisprudence from abroad; the openness to constitutional change and innovation; and sensitivity to the egalitarian potential of rights review, even if that potential remains largely unrealized, which favors experimentation around proportionality. The USA sits at the opposite end of the spectrum along each of the dimensions that support proportionality analysis.

This chapter explores how proportionality analysis has been incorporated into the case law of the Chilean Constitutional Court and what role it has played in the review of bills that sought the introduction of transformative policies in the country. The analysis contrasts judicial reasoning in cases that are part of ordinary practice and in landmark rulings where important projects of the progressive agenda were at stake. We suggest that, while proportionality has been applied inconsistently in both ordinary and high-profile cases, in the latter, it becomes part of the different strategies that the Court uses to mediate political conflicts. Proportionality works here more as a rhetorical tool than as a method of judicial reasoning, and the outcomes of the cases seem to depend more on the political composition of the Court at the time of the decision, the strength of citizen demand for changes and the influence that interest groups exert on the Court.

This chapter presents an overview of the use of proportionality in the case law of the Mexican Supreme Court, which has used it mainly to analyze human rights restrictions established by the legislator in statutes. The study identifies two periods. In the first period, the Court begins to use proportionality to analyze the constitutionality of legislative classifications that allegedly violated the right to equality, under a syncretic methodology that is applied not always consistently. More recently, the test has been used more often and regarding rights of very different types, providing a crucial support to the enforcement of the 2011 human rights’ constitutional amendments. The chapter documents the reception of proportionality in terms of both substance and methodology but also offers insight on the main difficulties experienced along the process and on the challenges its use in the Mexican judiciary poses for the future.

This chapter explores the emergence (not always explicit), the uses and the misuses of proportionality analysis during a crucial period of Peruvian democracy: the transition of the 2000s, following the collapse of the Fujimori regime. The history of the principle of proportionality in Peru is associated to the development of judicial review and the expansion of constitutionalism. Its increasing presence in judicial reasoning reveals progress in terms of the effectiveness of constitutional rights and the defense of democratic institutions, but also an alarming trend toward its formalistic use. Since the Constitutional Tribunal has been the main actor behind this process, the chapter mainly focuses on its decisions, but some decisions by the Supreme Court and by administrative courts are also covered, given its recurrent use by the judiciary at large and its role in decentralized judicial review, especially in the context of ordinary criminal procedures where the legality of pretrial detention is examined.

In the past two decades, several democracies have slipped into democratic recession. Faced with economic or security crises, democratically elected executives in Latin America, the Middle East, Eastern Europe, and Africa have used their popularity to push for legislation – particularly constitutional amendments – that, over time, destroys systems of checks and balances, hinders free and fair elections, and erodes political rights and civil liberties. Across the world, these heads of government have found ways to subvert democratic norms while simultaneously maintaining a democratic façade. Using and abusing elections and institutional reform, they are turning new and old democracies alike into competitive authoritarian regimes.