The Impact of Formal Authority in Latin American Constitutional Justice

This dissertation provides a comparative study of Latin American systems of constitutional adjudication and a case-study of Peru to explore when and how the institutional design of constitutional review affects the ability of high courts to influence public policy. This study focuses on how rarely studied judicial institutions shaping the type of cases that courts hear and affecting courts’ discretion to respond to constitutional challenges account for differences among levels of courts’ assertiveness. I argue that these rules, conjunctively, encourage courts’ assertiveness and moderate the negative effect of government concentration of power.
In the first part of the dissertation, I present the index of Formal Authority for Constitutional Adjudication which I created by aggregating 12 different characteristics of constitutional review, using Multiple Correspondence Analysis. To construct this index, I collected original data on multiple instruments through which constitutional review operates within countries in a sample of 18 Latin American countries. This index improves the existing literature, capturing the full range of within-country variance as well as using an aggregation method that allows the data to inform the model about the weight of each component into the final index. Next, I re-examine previous literature related to the constraining effect of power concentration on the willingness of courts to influence public policy. I use case outcomes of the Peruvian Constitutional Tribunal to show that power concentration in government affects the likelihood of unconstitutionality through three different causal mechanisms. I find that executive control over the legislature and its partisan support within the court decreases courts’ assertiveness, while concentration of power in the legislature has the opposite effect. Finally, I use constitutional review decisions adopted by courts of last resort from nine Latin American countries to show that granting courts greater formal authority increases judicial assertiveness and moderates the effect of power concentration on courts’ behavior. These findings suggest that choices in the design of courts generate costs and benefits affecting when and how courts assume active roles as policymakers. This research identifies a combination of rules that encourage courts to check other political actors and protect constitutional rights, and in so doing, it suggests the best practices for institutional design.