12 Law & Ethics of Human Rights __ (forthcoming 2018)

Presidential Term Limits in Latin America and the Limits of Transnational Constitutional Dialogue

--David Landau, Florida State University College of Law

Abstract: This piece was written for a symposium on “Global Constitutionalism,” convened at the Clough
Center for Democracy at Boston College Law School in December 2016. Across a number of countries
including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent
presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken
presidential term limits. In some cases, these efforts to extend terms have been part of broader projects
to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of
incumbents. From a legal perspective, these cases are interesting because they highlight the limits of
tools limiting constitutional change, such as eternity clauses and the unconstitutional constitutional
amendment doctrine, to constrain potentially anti-democratic or anti-liberal forms of constitutional
change. Although constitutional texts in most of these cases gave courts ample ammunition to reject
attempts to eliminate term limits or at least to force those changes down more demanding paths, courts
did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate
rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of
doctrines controlling constitutional change may fail to block, and indeed may promote, forms of
constitutional change that threaten liberal democratic constitutionalism. It also suggests possibilities for
deepening the effectiveness of transnational dialogue on these issues.
Many scholars have noted that one of the most successful recent exports in the field of
comparative constitutional law has been the use of design strategies and doctrines that limit certain
forms of constitutional change.1 An increasingly high number of constitutions contain a tiered
constitutional design, where some constitutional provisions are more difficult to change than others, or
eternity clauses, where some parts or provisions of the constitution are made completely unamendable.
Furthermore, courts around the world have increasingly been willing to declare amendments to the
constitution unconstitutional because they infringe on the “basic structure” of the constitution or some
similar concept.
Scholarship often ties the successful migration of these ideas to the protection of liberal
democratic constitutionalism. One strain of scholarship views these devices as a way to protect the
constituent power of the people, by ensuring that certain fundamental changes cannot be made by
constitutional amendment but only in a process of constitutional replacement.2 Another envisions them
as protecting the core identity of a constitutional order.3 Finally, a third justifies these doctrines using a
pragmatic rationale, as a protection against forms of change that may make the regime meaningfully
less liberal or less democratic.4
Recent experiences with presidential term limits in Latin America are a valuable testing ground
for these theories. Latin America is one of the regions of the world in which designs and doctrines

1
See Yaniv Roznai, Unconstitutional Constitutional Amendment: The Migration and Success of a Constitutional
Idea, 61 AM. J. COMP. L. 657 (2013).
2
See, e.g., JOEL COLON RIOS, WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY AND THE QUESTION OF CONSTITUENT POWER
(2012).
3
See Gary Jeffrey Jacobsohn, An Unconstitutional Constitution? A Comparative Perspective, 4 INT’L J. CONST. L. 460
(2006).
4
See Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional
Constitutional Amendment, 13 INT’L J. CONST. L. 606 (2015).

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 12 Law & Ethics of Human Rights __ (forthcoming 2018)

limiting the amendment power have become most commonplace. Across several different countries in
the Andes and in Central America – Ecuador, Venezuela, Bolivia, Colombia, Costa Rica, Honduras, and
Nicaragua – powerful incumbents have recently sought to eliminate or extend their terms, potentially
allowing them to consolidate power, making them harder to dislodge and weakening horizontal checks.
Designs and doctrines limiting constitutional change played a major role in recent fights across the
region to extend or eliminate term limits. Opponents of these changes argued that they altered the
basic identify of the preexisting constitutional order and threatened to erode the extent to which the
constitutional regime was both liberal and democratic.
But widespread consensus about doctrines limiting constitutional change did little to stop this
wave of changes to term limits rules from taking place, and in some cases was actually used to advance
projects removing limits. In Colombia, in a now famous decision, the Constitutional Court deployed the
unconstitutional constitutional amendment doctrine to prevent a powerful president from changing the
constitution to seek a third consecutive term in office (after previously allowing a second term).5 But
across the rest of the Andes – in Venezuela, Ecuador, and Bolivia – courts declined to activate tiered
constitutional designs that might have required the lengthening or elimination of term limits to be
undertaken through more onerous procedural routes, instead allowing incumbent presidents to proceed
by using the easier default mechanisms for constitutional change. In Central America, in Costa Rica,
Nicaragua, and Honduras, courts went further still, holding that presidential term limits previously
placed in the constitution were themselves unconstitutional constitutional amendments, thus turning
doctrines controlling constitutional change into instruments that were used to uproot rather than
protect presidential term limits.
The failure of judicial doctrines limiting constitutional change to protect term limits across most
of the region has important implications. The mere spread of tools such as tiered systems of
constitutional change may do little to prevent practices that are hazardous to liberal democratic
constitutionalism, and indeed those tools may be coopted to advance such practices. There is no easy or
obvious solution to this problem. However, an analysis of the cases presented here suggests several
possibilities for improvement. One is at the level of enforcement – because judicial rulings against core
regime interests will be unlikely where courts lack independence, as in most of the cases surveyed here,
constitutional designers might switch their emphasis towards popular forms of enforcement. A second is
at the level of dialogue. The reasoning of cases allowing or mandating the elimination of presidential
term limits suggests a continued lack of consensus (whether invoked sincerely or not) around the kinds
of provisions and changes that are likely to pose a threat to the core constitutional structure. This points
towards the need for an admittedly difficult task: deepening the normative content of the transnational
dialogue surrounding questions of constitutional change and constitutional identity.
The rest of this essay is organized as follows. Part I reviews how scholars and constitutional
designers effectively have moved towards globalization of designs and doctrines limiting certain forms
of constitutional change. It also shows the application of these norms in the “paradigmatic” case of term
limits in Colombia. Parts II and III explore the limits on these tools in dealing with a wave of attacks on
term limits in the Andes and in Central America in turn, drawing out in detail the narrative from a
number of cases. Part IV draws out the implications of those experiences, while Part V concludes.
II. Transnational Dialogue and the Control of Constitutional Change
In recent years the idea that constitutions place explicit or implicit substantive limits on
constitutional change has become increasingly prevalent. An increasing number of constitutions place

5
See Decision C-141 of 2010, Feb. 26, 2010.

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textual limits on amendment that protect certain provisions, parts of the constitution, or types of
change. One approach is to make certain provisions completely unamendable;6 another is to create one
or more special, more demanding procedures for change that must be use to carry out certain forms of
amendment.7 Even where constitutions do not include a tiered approach to change, many courts around
the world have created a doctrine of unconstitutional constitutional amendment. While the precise
contours and justification for the doctrine vary, the key idea is that some reforms to the “basic
structure” or fundamental principles of the existing constitutional text may not be carried out by
amendment. Recent scholarship has traced the spread of this doctrine and found it to be one of the
most successful recent exports in the field of comparative constitutional law.8
Within Latin America, several factors have coincided to give importance to the judicial control of
constitutional change. These include a pervasive distrust of democratic politics within a framework of
fairly flexible constitutions. The fear that amendment power might be misused has led both
constitutional designers and judges to adopt limits on constitutional change. Thus, even before the
recent constitution-making experiences in the Andes, some constitutions in the region already
contained tiered systems of constitutional change. The Costa Rican constitution, for example, has long
distinguished partial and total reform.9 The 1992 Paraguayan constitution likewise inserted a two-track
system of constitutional change to protect certain fundamental norms during its transition to
democracy, including the mode of election, the duration of mandates, and the respective powers of
state actors.10 The 1988 constitution of Brazil contains a number of unamendable core principles.11 More
specifically, the constitutions of Guatemala and Honduras both protected their strict one-term
presidential term limits with an eternity clause, thus making those term limits unamendable.12
Changes in constitutional interpretation (“new constitutionalism”) in recent years, which are tied to
an increasing importance of international human rights law within the region, have allowed scholars and
judges to adopt a more hierarchical conception of constitutional law in which certain parts of the
constitution are entitled to higher levels of protection than others.13 A limited conception of
constitutional amendment also ties in with a vision of constitutional change that has been important in
modern Latin American constitution-making, and particularly that underlies the radical constitution-
making experiences in the Andes. In the Colombian constitution-making experience of 1991, the
Supreme Court invoked “constituent power” theory to allow the president to hold a referendum on
whether to call a Constituent Assembly, even though no such mechanism was explicitly contemplated in

6
See YANIV ROZNAI, UNCONSTITUTIONAL CONSTITUTIONAL AMENDMENTS: THE LIMITS OF AMENDMENT POWERS 235-274 (2017)
(listing all constitutional provisions around the world that are explicitly made unamendable).
7
See Rosalind Dixon & David Landau, Tiered Constitutional Design, 86 G.W. L. REV. __ (forthcoming 2018); Richard
Albert, Constitutional Handcuffs, 42 ARIZ. ST. L.J. 663, 708-09 (2010).
8
See Yaniv Roznai, Unconstitutional Constitutional Amendment: The Migration and Success of a Constitutional
Idea, 61 AM. J. COMP. L. 657 (2013).
9
See C.R. CONST., arts. 195-96 (laying out an amendment procedure for the former and requiring that the latter be
carried out only by Constituent Assembly).
10
See PAR. CONST., arts. 289, 290 (distinguishing amendment and reform).
11
See BRAZ. CONST., art. 60, para. 4 (making “the federative form of State, the direct, secret, universal and periodic
vote, the separation of the Government Powers, and individual rights and guarantees” unamendable).
12
See HOND. CONST., art. 374; GUAT. CONST., art. 281.
13
See Javier Couso, The Transformation of Constitutional Discourse and the Judicialization of Politics in Latin
America, in CULTURES OF LEGALITY: JUDICIALIZATION AND POLITICAL ACTIVISM IN LATIN AMERICA 141 (Javier Couso, Alexandra
Huneeus, & Rachel Sieder, eds, 2010).

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 12 Law & Ethics of Human Rights __ (forthcoming 2018)

the existing 1886 Constitution.14 The Court held that the people retained “original constituent power”
and therefore the ability to replace their constitution; this power logically could not be restricted by the
existing constitutional text. Subsequently the Colombian conception of constituent power became
influential in Venezuela, Ecuador, and Bolivia.15 In the former two cases, constitution making again took
place outside of the existing constitutional order and relied on the power of the people to replace their
constitution. The Bolivian experience was partially regulated by the rules found in the existing
constitutional text (which contained a replacement clause); but the idea of original constituent power
still played a key role in shaping the process, particularly among the supporters of President Morales.16
Across all of these cases, reserving ultimate power to the people was consistent with an ideology that
privileged direct popular participation and deemphasized the power of elite groups or legal institutions.
A sharp distinction between constitutional amendment and replacement, and limits on amendment,
flows naturally from the constituent power theory. While replacement is an unregulated and
revolutionary act carried out by the original constituent power (the people), amendment is a legally
regulated act carried out by the derivative constituent powers (political institutions). The latter is
subordinate to the former. Placing limits on the power of constitutional amendment therefore serves as
a way to protect the original constituent power. It prevents derivative institutions from carrying out
certain forms of change that would contradict core choices previously made by the people. And it
preserves certain fundamental decisions for the people, rather than their delegated institutions.17
This understanding has left an imprint, particularly on the new constitutions written in the Andean
region, where tiered systems of constitutional change have become common. Bolivia distinguishes
“partial” and “total” reform: partial reforms could be carried out through several procedures, including
popular initiative or approval by two-thirds of the legislature (followed by a referendum), while total
reform required a Constituent Assembly.18 Certain kinds of change, including those to its “fundamental
structure,” which affect “rights, duties and guarantees,” or the procedures for constitutional change,
must be carried out by Constituent Assembly.19 Venezuela and Ecuador have a three-tiered system of
change, which distinguishes amendment, partial reform, and replacement. The latter again can only be
carried out by Constituent Assembly, while partial reform requires a procedure that was more
demanding from mere amendment. In Venezuela, for example, the partial reform procedure requires a
supermajority vote in the legislature, while the amendment procedure does not.20 In Ecuador,
amendment can be carried out by the legislature alone, while partial reform requires approval of the
people by referendum.21 And the text of each constitution states that there are limits on any method of
change short of a Constituent Assembly. In Venezuela, for example, amendment cannot be used to
“alter the fundamental structure” of the constitution, while partial reform cannot “modify the structure

14
See JOEL COLON-RIOS, WEAK CONSTITUTIONALISM: DEMOCRATIC LEGITIMACY AND THE QUESTION OF CONSTITUENT POWER 93
(2012).
15
See, e.g., Maxwell A. Cameron & Kenneth E. Sharpe, Andean Left Turns: Constituent Power and Constitution
Making, in LATIN AMERICA’S LEFT TURNS: POLITICS, POLICIES, AND TRAJECTORIES OF CHANGE 61 (Maxwell A. Cameron & Eric
Hershberg, eds., 2010).
16
See David Landau, Constitution-Making Gone Wrong, 64 ALA. L. REV. 923, 952 (2012).
17
See COLON-RIOS, supra note 14. But see David Landau & Rosalind Dixon, Constraining Constitutional Change, 50
WAKE F. L. REV. 859 (2015) (questioning on pragmatic grounds the distinction between amendment and
replacement).
18
See BOL. CONST., art. 411.
19
Id.
20
See VEN. CONST., arts. 341, 343.
21
See ECUAD. CONST., arts. 441, 442.
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and fundamental principles” of the text.22 In Ecuador, amendment cannot “alter the fundamental
structure, the character and constitutive elements of the state, cannot establish restrictions on its rights
and guarantees, and cannot modify the procedure for reforming the constitution.”23 Partial reform has
fewer restrictions, but also cannot “suppose a restriction on constitutional rights and guarantees or
modify the procedure for the reform of the Constitution.”24 The Ecuadorian Court is explicitly given
power to determine which of these procedural pathways a proposed constitutional change must take.25
For purposes of this essay, a particularly salient issue is whether changes or abolition of presidential
term limits alter the fundamental structure, change the constitutive elements of the state, affect
constitutional rights and guarantees, or otherwise trigger provisions requiring the more demanding
procedures of constitutional change, such as partial revision or Constituent Assembly. Even without
explicit textual backing, there is regional precedent for seeing some changes to presidential term limits
as impacting the basic structure and thus as going beyond the scope of the amendment power.
The best-known cases here are two issued by the Colombian Constitutional Court, after then-
President Alvaro Uribe sought successive constitutional amendments allowing him to serve two and
then three consecutive terms in office. Uribe won power as a right-wing “outsider” to the traditional
political system, and achieved high levels of popularity through his perceived successes in combatting
guerrilla groups that had waged a long-running insurgency against the state.26 Each amendment was
challenged, both on procedural grounds and as a “substitution of the constitution,” the Colombian
version of the unconstitutional constitutional amendment doctrine. While the Colombian constitution
distinguishes between a Constituent Assembly and ordinary amendment procedures, unlike the
Venezuelan, Ecuadorian, and Bolivian constitutions it does not establish explicit tiers by stating that
certain forms of change must follow the more demanding or more sweeping procedure.27 Nonetheless,
the Constitutional Court has held that the scope of the amendment power (via any mechanism other
than Constituent Assembly) is limited. Constitutional amendments may not replace the basic principles
of the 1991 Constitution, since those decisions must be made by the people in exercise of the original
constituent power.28
In the first reelection case in 2005, towards the end of Uribe’s first term, the Court reviewed a
constitutional amendment changing the constitution to allow any president to potentially serve two
consecutive four-year terms in office. In a divided decision, the Court rejected procedural objections to
the procedure through which the amendment was passed by the legislature, and rejected the argument
that the change constituted a substitution of the constitution.29 The Court admitted that the new

22
See VEN. CONST., arts. 340, 342.
23
See ECUAD. CONST., art. 441.
24
See id. art. 442.
25
See id. art. 443.
26
See, e.g., Ana Maria Bejarano, Politicizing Insecurity: Uribe’s Instrumental Use of Populism, in LATIN AMERICAN
POPULISM IN THE TWENTY-FIRST CENTURY (Cynthia J. Arnson & Carlos de la Torre, eds., 2013).
27
See COL. CONST., art. 374 (“The Constitution can be reformed by the Congress, by a Constituent Assembly, or by
the people through a referendum”), 276 (contemplating the calling of a Constituent Assembly to reform or replace
the constitution).
28
The seminal case on the theory of the doctrine is Decision C-551 of 2003, although the Court did not use the
doctrine to invalidate an amendment in that case. See Carlos Bernal, Unconstitutional Constitutional Amendments
in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement
Doctrine, 11 INT’L J. CONST. L. 339, 341-42 (2013).
29
See Decision C-1040 of 2005, in MANUEL JOSE CEPEDA ESPINOSA & DAVID LANDAU, COLOMBIAN CONSTITUTIONAL LAW:
LEADINGS CASES 343 (2017).
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amendment would increase presidential power, for example by allowing him to potentially appoint
many of the officials charged with monitoring the executive branch, such as the judiciary,
ombudsperson, chief prosecutor, and inspector general, all of which are independent officers in the
Colombian constitutional scheme. However, it also noted that two-term presidencies were not unusual
by regional and international standards, and therefore did not constitute a sufficient threat to the
constitutional scheme to necessitate invalidating the amendment.30
After Uribe was reelected and towards the end of his third term in office, allies approved a
referendum question that would have amended the constitution to allow him to seek three consecutive
terms in office. This time, the Court struck down the proposal both on procedural grounds and as a
substitution of the constitution.31 The Court held that the proposed amendment exceeded the
competence of the derivative constituent power, largely because it would have radically transformed
the separation of powers found in the original 1991 scheme. The Court noted that through a
combination of formal and informal factors, a president who had already held power for eight years
would have immense advantages over potential opponents that would make him difficult to dislodge,
and if reelected to a third term would be likely to control all of the institutions supposed to be exercising
control over the executive branch.32
Significantly, the Court referred to international and regional standards transgressed by the
proposal. It noted variance in the length of term limits within Latin American and elsewhere, but also
argued that allowing more than two four-year terms was exceptional both in domestic history and
contemporary regional practice.33 In reaching its conclusion that the proposal violated basic principles of
the Colombian constitution, the Court thus leaned heavily on a careful analysis of transnational practice.
The unusual nature of the proposed change, in other words, helped provide confirmation that it would
have a significant impact on the separation of powers and therefore could not be carried out by a mere
constitutional amendment.34 At least in the Colombian political context, the decision proved effective,
and Uribe left power peacefully in 2010. The decision is thus widely credited internationally with
preventing a potential erosion of the democratic order.35 A coda to this story is also worth mentioning:
in 2015, after himself winning one presidential reelection, the new President Juan Manuel Santos
pushed through an amendment that restored the one-term limit on Colombian presidents, and gave
special entrenchment to this provision by providing that it could only be changed by a process that
included a Constituent Assembly or a popular referendum initiated by citizens, rather than the
Congress.36 The Colombian political process thus backed new limitations on presidential reelection with
a tiered constitutional design.

30
See id. See also Dixon & Landau, Unconstitutional Constitutional Amendment, supra note Error! Bookmark not
defined. (arguing that the Court rejected a standard that would have authorized it to strike down any possible
threat to the democratic order).
31
See Decision C-141 of 2010, in MANUEL JOSE CEPEDA ESPINOSA & DAVID LANDAU, COLOMBIAN CONSTITUTIONAL LAW:
LEADINGS CASES 353 (2017).
32
See id.
33
See id.
34
See Dixon & Landau, Unconstitutional Constitutional Amendment, supra note Error! Bookmark not defined.
(arguing that transnational practice can act as a check against overuse of the doctrine and as confirmation that a
change actually does pose a significant threat to the democratic order).
35
See, e.g., SAMUEL ISSACHAROFF, FRAGILE DEMOCRACIES: CONTESTED POWER IN THE ERA OF CONSTITUTIONAL COURTS 150 (2015)
36
See Acto Legislativo 2 de 2015 (July 1, 2015), at
http://wp.presidencia.gov.co/sitios/normativa/actoslegislativos/ACTO%20LEGISLATIVO%2002%20DEL%2001%20J
ULIO%20DE%202015.pdf.
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III. Tiered Constitutional Design and Judicial Review of Constitutional Changes to Term Limits in the
Andes
The Uribe example stands as one of a modern wave of efforts to stretch or remove presidential term
limits in Latin America. Many of these efforts were associated with the radical Andean constitutions that
were subsequently put in place in Venezuela, Ecuador, and Bolivia between 1999 and 2009.37 These
constitution-making experiences were undertaken in each case by newly elected leaders who won
power at the head of insurgent movements and as outsiders. In each case, they argued that existing
political regimes and constitutions were an impediment to political programs that would reverse historic
patterns of economic and social exclusion, and reform corrupt and discredited political classes.38 These
constitutions have at times been praised for their innovative designs, including expansive and non-
traditional rights provisions, as well as structural innovations.39 However, they have also been critiqued
for consolidating power in the hands of the respective leaders – Presidents Chavez, Correa, and Morales
– who promulgated the new constitutional texts. Most notably in the case of Venezuela (but also to a
lesser degree in the other two countries), scholarship has argued that these constitutional changes have
eroded the power of other institutions to check presidential power and have forced the opposition to
compete on a very tilted electoral playing field.40 These maneuvers did not render any of the three
regimes authoritarian in nature, but arguably did move them closer to a “hybrid” or “competitive
authoritarian” status lying between fully liberal democratic and fully authoritarian regimes.41 Again, this
was particularly clear in the Venezuelan case.
For our purposes, it is interesting to note that none of these new constitutions initially rejected
presidential term limits or otherwise would have allowed presidents to stay in power indefinitely. They
instead relied on subtler maneuvers to extend the terms of the incumbent presidents who had pushed
the constitution-making processes forward. Thus, terms were often extended and term limits loosened
but not eliminated. All of the new constitutions now allowed one consecutive reelection, which had
previously been banned in all three countries, and they sometimes lengthened presidential terms (in
Venezuela from 5 to 6 years and in Bolivia from 4 to 5 years).42 Likewise, transitional provisions in new
texts, or interpretations by supportive courts, often made clear that terms begun before the new
constitutions had gone into effect would not count towards their term limits, effectively giving these
incumbents extra time in office.43

37
See Maxwell A. Cameron & Kenneth E. Sharpe, Andean Left Turns: Constituent Power and Constitution Making, in
LATIN AMERICA’S LEFT TURNS: POLITICS, POLICIES, AND TRAJECTORIES OF CHANGE 61 (Maxwell A. Cameron & Eric Hershberg,
eds., 2010).
38
See id.
39
See Phoebe King, Neo-Bolivarian constitutional design: Comparing the 1999 Venezuelan, 2008 Ecuadorian, and
2009 Bolivian Constitutions, in SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS 366 (Denis J. Galligan & Mila
Versteeg, eds., 2013).
40
See, e.g., Steve R. Levitsky & James Loxton, Populism and Competitive Authoritarianism in the Andes, 20
DEMOCRATIZATION 107 (2013); CARLOS DE LA TORRE, POPULIST SEDUCTION IN LATIN AMERICA 171-73 (2d ed. 2010) (noting the
“ambiguous” relationship between populism and democracy).
41
See STEPHEN R. LEVITSKY & LUCAN WAY, COMPETITIVE AUTHORITARIANISM: HYBRID REGIMES AFTER THE COLD WAR (2010)
(defining a competitive authoritarian regime as one where elections are held and are not shams, but incumbents
force challengers to compete on a very tilted playing field); Larry Diamond, Elections without Democracy: Thinking
about Hybrid Regimes, 13 J. DEMOC. 21 (2002) (defining a hybrid regime as one that combines characteristics of
democratic and authoritarian regimes).
42
See VEN. CONST., art. 230 (1999); ECUAD. CONST., art. 144 (2008); BOL. CONST., art. 168 (2009).
43
See, e.g., ECUAD. CONST., trans. art. 10 (holding that the first post-constitutional electoral period would be
considered the first one “for all legal purposes”).
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

Over time each incumbent began to run up against the term limit found in the new
constitutional order, and each of them sought changes in order to remain in office for a longer period of
time. In 2007 and again in 2009, President Chavez in Venezuela moved to eliminate term limits for
presidents as well as certain other federal and local offices. In 2014, allies of President Correa in Ecuador
made the same proposal to completely eliminate term limits; and President Morales of Bolivia called a
2016 referendum allowing presidents to hold office for three consecutive terms. In all three cases, the
presidents and their allies made similar arguments, which resonated with the ideology of their overall
constitutional projects and presented term limit extension as a continuation or deepening of those
projects. Their argument was essentially one of reluctant necessity – in a perfect world, the leaders
would have preferred to turn over power, but the radical constitutional projects embodied in their new
constitutional texts were unfinished. If they were unable to extend their terms, representatives of the
old regimes would come back, thwarting their programs of economic and social inclusion.
As noted above, each of these three constitutions showed imprints of the design trend towards
tiered mechanisms of constitutional change. Yet judicial enforcement of these design choices had little
influence on the movements for constitutional change. In Venezuela, the first attempt to eliminate term
limits in 2007 was packaged as a “constitutional reform” (the middle tier of constitutional change) and
was included along with a long list of reforms intended to “deepen” the project begun with the
Constitution of 1999. After that referendum was narrowly defeated at the ballot box, Chavez conceded
that “for now, we couldn’t” and the next year announced plans for a second referendum, this one
narrowly focused on the issue of term limits.44 The second referendum passed with 54 percent of the
vote. This second attempt was done as an amendment, the lowest tier of constitutional change.
Challenges alleging that both amendments “alter[ed] the fundamental structure” of the constitution and
“modif[ied] the structure and fundamental principles” of the text, thus requiring more stringent
methods of constitutional change such as a Constituent Assembly,45 were defeated by the Supreme
Court, which was widely seen as controlled by Chavez. 46 The Court held, for example, that the principle
of alternation in power was a basic principle of the constitution, but that it merely required voters to
have a periodic opportunity to vote incumbents out; it did not require term limits. The Court found that
the elimination of term limits “reaffirms and strengths the mechanism of participation” found in the
1999 Constitution, and thus was harmonious with rather than contrary to basic principles found in that
text.47 Furthermore, the Court rejected an attempt to invalidate the second referendum on the ground
that it was an illegal attempt to resuscitate a proposal that had already been rejected by the people in
the first referendum.48
In Ecuador, a very similar situation obtained. Allies of President Correa sought the constitutional
change as part of a broader package using the lowest level mechanism for change – the amendment
mechanism. This allowed them to approve the change via a two-thirds supermajority of the Congress,
which Correa could easily muster, rather than needing to go to a referendum. Opponents of Correa
sought a referendum, while supporters feared it, precisely because the elimination of term limits polled

44
See Rickard Lalander, Neo-Constitutionalism in Twenty-First Century Venezuela: Deconcentrated Decentralization
or Centralized Populism, in NEW CONSTITUTIONALISM IN LATIN AMERICA: PROMISES AND PRACTICES 163, 173 (Detlef Nolfe &
Almut Schilling-Vacaflor, eds., 2012).
45
See VEN. CONST., arts. 340-343.
46
See Supreme Federal Tribunal of Justice, Decision 1974/04; Decision 1610/08.
47
See Decision 1974/07.
48
See Decision 1610/08.
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

poorly despite Correa’s high levels of personal popularity.49 Under the Ecuadorian constitution, the
Constitutional Court was automatically tasked with figuring out which route (amendment, partial
reform, or constituent assembly) a given change would need to take.50 Scholars and opponents of the
regime made strong arguments that the proposal completely eliminating presidential term limits would
“alter the fundamental structure [and] the character and constitutive elements of the state,” and thus
could not be done by amendment.51 Indeed, they also argued that the proposal implied “a restriction on
constitutional rights and guarantees” since it affected the rights of the electoral opposition, and thus
could not even be carried out via the intermediate partial reform procedure, but only by the most
stringent mechanism of a Constituent Assembly.52
The Constitutional Court rejected these arguments and allowed the Congress to deal with the issue
via an ordinary constitutional amendment. In contrast to the Colombian Constitutional Court, it argued
that there was broad diversity of approaches within the region to term limits, and thus held that there
was no single appropriate model. Indeed, it relied on Venezuela and Nicaragua (explored in detail
below) as examples of countries which allowed indefinite consecutive presidential reelection.53 Like the
Venezuelan Court, the Ecuadorian Court accepted the argument that indefinite reelection reaffirmed
rather than limiting basic democratic principles under the new constitution because it increased the
ability of the electorate to make a free choice as to which political program it favored.54
Likewise, in Bolivia both the Supreme Electoral Tribunal and the Constitutional Tribunal heard
challenges to the proposed amendment loosening term limits after it passed Congress by the requisite
two-thirds majority and before it was submitted to the public for a referendum. The two courts held
that the change at issue did not require the total reform procedure necessitating a Constituent
Assembly, and instead could use the partial reform procedure because it did not affect the
“fundamental structure” of the existing constitution or its “rights, duties and guarantees.”55 Like the
Venezuelan and Ecuadorian courts, the Bolivian Supreme Electoral Tribunal again emphasized the
congruence between the proposal of loosening term limits and the goals of participatory democracy
underlying the 2009 Constitution. The Tribunal initially requested minor changes to the wording of the
question for lack of clarity, but then allowed it to go forward.56
What is perhaps striking in all three of these cases is not only that courts rejected arguments based
on tiered systems of constitutional change, but that opponents of the three incumbents saw very little
chance of winning by convincing the courts. Indeed, there is evidence across all three cases that
opponents saw the judiciary as lacking independence from the executive. Judicial enforcement of the
constitutional architecture controlling constitutional change was seen as relatively unimportant in these

49
See Term Limits in Ecuador: If You Can’t Beat ‘Em, Referendum, THE ECONOMIST, Nov. 15, 2014, available at
http://www.economist.com/news/americas/21632575-vote-could-cost-president-correa-his-jobin-2017-if-you-
cant-beat-em-referendum.
50
See ECUAD. CONST., art. 443.
51
See Carlos Bernal Pulido, There are Still Judges in Berlin: On the Proposal to Amend the Ecuadorian Constitution
to Allow Indefinite Presidential Reelection, Int’l J. Const. L. Blog, Sept. 10,
2014, at http://www.iconnectblog.com/2014/09/there-are-still-judges-in-berlin-on-the-proposal-to-amend-the-
ecuadorian-constitution-to-allow-indefinite-presidential-reelection/.
52
See id.
53
See Case 0001-14-RC (2014), available at
http://especiales.elcomercio.com/documentos/2014/11/Sentencia_Corte.pdf.
54
See id.
55
See Constitutional Tribunal, Decision 0194/2015; Supreme Electoral Tribunal, Decision R.A.L.P. 017/2015-2016.
56
See id.
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

contexts. Where opponents of removing term limits won victories, they instead did so through political
means. Even though all three leaders had high popularity ratings, proposals to eliminate or ease term
limits often proved much less popular than the leaders themselves. In Venezuela, the initial 2007 effort
to remove term limits and to undertake other major changes to the 1999 constitution failed, and the
subsequent 2009 effort only narrowly succeeded.57 In Bolivia, likewise, the 2016 referendum to allow
Morales to run for a third term failed by several points in a close vote, although he and his allies
continue to look for ways to extend his term in office.58 In Ecuador, finally, while opponents of Correa
failed in their attempt to have the courts force him to hold a referendum on term limits, the issue
became a major focus of popular mobilization. Massive protests during the congressional approval
process did force a significant change (ostensibly at the behest of Correa): the proposal eliminated all
term limits, but because of a temporary constitutional provision would now only take affect after the
next presidential election, thus preventing Correa from running for immediate reelection in 2017 (but
potentially allowing him to return after that date).59
III. The Unconstitutional Constitutional Amendment Doctrine in Opposition to Term Limits in
Central America
In the Andean cases above, a tiered model of constitutional change played little role in blocking or
altering attempts to stretch or remove existing term limits. In three other cases from Central America –
Costa Rica, Nicaragua, and Honduras – the unconstitutional constitutional amendment doctrine was
actively used not to protect term limits but instead to remove them from the constitution, thus clearing
an obstacle for incumbents seeking to extend their terms.
The earliest case stems from Costa Rica in 2003, and formed a challenge to the country’s strict one-
term limit on presidential mandates. The 1949 constitution originally provided that presidents could not
serve a second consecutive term, but could only return to power after an eight year absence. In 1969,
however, the provision was tightened into allowance of only one lifetime term, thus prohibiting either
consecutive or non-consecutive reelection.60 Supporters of ex-president Oscar Arias Sanchez promoted
an action to hold that the amendment strengthening the term limit was an unconstitutional
constitutional amendment, in order to facilitate his potential return to power in 2006. They sought this
declaration as an alternative to a legislative pathway to constitutional change that was likely blocked
because of a lack of votes and more generally, lack of legislative prioritization of the issue.61

57
See supra text accompanying note 44.
58
See Daniel Ramos & Monica Machicao, Bolivia's Morales Accepts Defeat in Term Limits Referendum, REUTERS,
Feb. 24, 2016, available at http://www.reuters.com/article/us-bolivia-referendum-idUSKCN0VX09E.
59
See Taylor Gillan, Ecuador Lawmakers End Presidential Term Limits, JURIST, Dec. 4, 2015, at
http://www.jurist.org/paperchase/2015/12/ecuador-lawmakers-end-presidential-term-limits.php. There may be a
specific reason why Correa was willing to make such a significant concession: An unusual aspect of constitutional
design, at least for a presidential system, could potentially allow him to return to power very quickly. Under certain
conditions, the “crossed death” provision in the Ecuadorian constitution allows the president to immediately
dissolve the Congress and to call snap elections for both Congress and the presidency before their fixed terms have
expired. See ECUAD. CONST., art. 148. Given the way the constitutional amendment was drafted, Correa would
seemingly be able to return if such an election were held, even if the “crossed death” provision were invoked
shortly after the presidential election of 2017.
60
See C.R. CONST., art. 132.
61
See Elena Martinez-Barahona, Constitutional Courts and Constitutional Change: Analysing the Cases of
Presidential Reelection in Latin America, in NEW CONSTITUTIONALISM IN LATIN AMERICA: PROMISES & PRACTICES 289, 297
(Detlef Nolte & Almut Schilling-Vacaflor, eds., 2012).
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

In 2000, the Constitutional Chamber of the Supreme Court had narrowly rejected such a demand,
however, in the 2003 case it accepted it by a 5-2 vote.62 The Court’s reasoning focused on the textual
distinction in the Costa Rican constitution between partial and total reform.63 The Court held that the
distinction limited the amendment power in order to protect the original constituent power of the
people.64 Moreover, it held that this provision prevented the legislature from using the partial
amendment procedure to “reduce, amputate, eliminate, or limit fundamental rights and guarantees,
political rights of citizens, and essential aspects of the political and economic organization of the
country.”65 It held that the prohibition on reelection reduced fundamental rights, in part because it
argued that the right of the candidate to be reelected and of the voters to reelect were human rights
protected in regional and international instruments.66
The Costa Rican Supreme Court is typically categorized as an activist and independent court, often
compared to the Colombian Constitutional Court.67 In this instance close analysis by scholars has
suggested that supporters of Arias understood the composition of the Court and filed a second case in
2003 because they were confident of winning, after a close loss in 2000, due to changes in the Court’s
composition.68 The maneuver succeeded, and after Arias’s allies won the case he successfully ran for
president in the 2006-2010 period. However, one notable difference between the Costa Rican case and
many of the others studied in this essay is the effect of the decision on the constitutional order. The
Court invalidated the 1969 term limit, thus leaving Costa Rica not with any term limit at all (as in
Nicaragua and Honduras below), but with its original constitutional provision prohibiting consecutive
reelection until after two subsequent terms. Moreover, Costa Rica was not experiencing other formal
and informal changes that undertook a significant concentration of political power. Thus, the decision
served Arias’s goals, but did not threaten to wok a significant erosion of the liberal democratic
constitutional order.69
The Costa Rican decision was followed by two other courts in Central America, which used similar
concepts and reasoning in more troubling contexts. In Nicaragua, President Daniel Ortega, who had
aligned himself ideologically with the radical democratic regimes in the Andean region, sought removal
of a constitutional provision limiting presidents to only one consecutive term in office and two total
terms as president during one’s lifetime.70 The provision was added to the 1987 Constitution in 1995.
Ortega had held the presidency back in the 1980s and won power again in 2007. Thus the existing

62
See Decision No. 2003-2771, Supreme Court of Justice, Constitutional Chamber (Apr. 4, 2003). The Court also
struck down the 1969 amendment on procedural grounds.
63
See C.R. CONST., arts. 195-96.
64
See SABRINA RAGONE, EL CONTROL JUDICIAL DE LA REFORMA CONSTITUCIONAL: ASPECTOS TEORICOS Y COMPARATIVOS 82-83
(Rodrigo Brito Melgarejo, trans., 2012).
65
See Decision No. 2003-2771, § VII.
66
See id. § VI.D.
67
See, e.g., Bruce Wilson, Institutional Reform and Rights Revolutions in Latin America: The Cases of Costa Rica and
Colombia, 1 J. POL. LAT. AM. 59 (2009) (arguing that rights revolutions have occurred in both countries and giving
examples).
68
See Martinez-Barahona, supra note 61, at 298-99.
69
Cf. Martinez-Barahona, supra note 61, at 292 (quoting President Arias as saying that the difference between the
Costa Rican and Nicaraguan contexts meant that the two cases were “as similar as a drop of water is like a drop of
oil”).
70
See NIC. CONST., art. 147 (1995).
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

constitutional provision would have prevented him from serving another term as president. He lacked
the necessary supermajority to push an amendment to the existing term limit through Congress.71
However, in 2009 the Constitutional Court issued a decision holding that the term limit was an
unconstitutional constitutional amendment.72 In issuing its decision, the Court laid out an orthodox
statement of the unconstitutional constitutional amendment doctrine, relying on the distinction
between original and derivative constituent power and an understanding that the derivative power
must respect certain fundamental principles laid out by the original constituent power. It then held that
the term limit violated fundamental constitutional principles, using reasoning that was very similar to
that of the Costa Rican Supreme Court. According to the Court, it violated the rights of incumbent
politicians to equality in the enjoyment of political rights, and it violated the rights of the electorate to
exercise sovereignty through a free choice of their representatives.73 The decision was issued under
highly unusual conditions – the Court met in the middle of the night, and three opposition judges were
not present and were replaced by an equal number of pro-government judges.74 At any rate, the Court’s
decision left the country with no term limit, allowing Ortega to run for and win a second consecutive
term in office. In 2013, a pro-government congressional supermajority passed a formal constitutional
amendment eliminating term limits, and Ortega in 2016 won yet another term in office.75 Such a long
tenure in office aided Ortega in consolidating power and, along with a slew of other formal and informal
changes, in constructing what is sometimes viewed as a competitive authoritarian regime in the country,
where the opposition can compete but faces grave disadvantages in seeking to win power.
The Honduran example offers a similar but somewhat more complex story. The 1982 Honduran
Constitution limited presidents to only one four-year term in office, and made this limit completely
unamendable by any means.76 This prohibition was reinforced by another one punishing anyone who
sought to change the limit with “immediate” removal from office and loss of political rights.77 In 2009,
President Manuel Zelaya (who also modeled his presidency on the radical Andean political orders)
sought to convoke a Constituent Assembly in order to replace the existing constitution.78 Critics argued
that his intent was to change the one-term limit, although Zelaya denied this and stated that any change
to the term limit would not benefit him.79 After Zelaya pushed forward with plans to hold a “non-binding
poll” assessing support for a Constituent Assembly despite court orders to the contrary, military officials

71
See Martinez-Barahona, supra note 61, at 301.
72
See Supreme Court of Nicaragua, Constitutional Chamber, Decision No. 6 of 2010, available at
http://www.poderjudicial.gob.ni/prensa/notas_prensa_detalle.asp?id_noticia=916.
73
See id.
74
See Rosalind Dixon & Vicki C. Jackson, Constitutions Inside Out: Outsider Interventions in Domestic
Constitutional Contests, 48 WAKE FOREST L. REV. 149, 203 (2013).
75
See Joshua Partlow, Nicaragua’s Daniel Ortega Wins Third Consecutive Term Amid Questions about Democracy,
WASH. POST, Nov. 7, 2016, available at
https://www.washingtonpost.com/news/worldviews/wp/2016/11/05/nicaraguas-daniel-ortega-headed-for-third-
consecutive-term-amid-questions-about-democracy/?utm_term=.0b31c637da8d.
76
HOND. CONST., art. 240 (establishing a one-term limit); 374 (making that limit unamendable by any means).
77
See id. art. 239 (“A citizen who has previously served as President cannot be President or Vice President of the
Republic. Whoever breaks this provision or proposes its reform, as well as those who support him directly or
indirectly, will immediately cease in the performance of their respective offices and will be barred for ten years
from the exercise of any public function.”).
78
See Noah Feldman, David Landau, Brian Sheppard, and Leonidas Rosa-Suazo, Report to the Commission on Truth
and Reconciliation of Honduras: Constitutional Issues 10-11 (March 2011), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915214.
79
See id. at 10 (quoting Zelaya as stating that he would “govern for four years”).
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

removed him from the country.80 The political elite who supported this coup largely defended their
actions on the argument that Zelaya was seeking to change the unamendable one-term limit, and thus
had been properly removed from office.81
In 2015, however, after the actors who had removed Zelaya from office had consolidated power and
packed the Supreme Court through irregular means, the Court held that the term limit, the provision
making it unamendable, and the provision punishing anyone seeking to change it with removal from
office, must all themselves be held inapplicable. 82 In so holding, the Court invoked something like the
unconstitutional constitutional amendment doctrine, although all of these provisions set aside were part
of the original 1982 constitution and not later additions.83 The Honduran Court suggested that the
constitution must be read hierarchically, with those provisions that were tied to fundamental norms of
international human rights law at the top, potentially controlling other pieces of the Constitution. If
necessary to harmonize the constitutional text, provisions in tension with fundamental human rights
norms could be held inapplicable. The Court’s substantive argument was similar to that made by the
Nicaraguan and Costa Rican Supreme Courts: the provisions violated fundamental rights like the right to
free choice of voters and the political rights of elected officials.84 Further, it argued that the automatic
punishment clause burdened fundamental rights to freedom of speech.85
The direct effect of the decision has been the same as that in Nicaragua – presidential term limits
were completely excised from the constitution, allowing potentially indefinite reelection. As in virtually
all of the cases studied here, the case was promoted by allies of the incumbent and clearly served his
interests – current President Juan Orlando Hernandez is now able to stand as the National Party
president in 2018. The longer term effects of the decision are less clear – it does not appear that
Honduras is in immediate danger of becoming a hybrid regime because no actor has succeeded in
consolidating sufficient power, but it rather is likely to remain a poorly functioning democracy ruled by a
small group of competing elites. The ruling further destabilizes and delegitimizes a constitutional order
already reeling from the 2009 coup against Zelaya.
In addition, the Honduran example is particularly rich in suggesting the limits of constitutional
design and constitutional theory in limiting extensions and removal of presidential term limits. The
constitutional architecture in Honduras specifically protected the term limit, and did so in the strongest
possible way both by making it completely unamendable and punishing any attempt to change it.86 The
provision was not a dead letter, but rather played a major role in the 2009 coup that removed Zelaya.87
And yet, at the behest of actors who were instrumental in removing Zelaya using this argument only six

80
See id. at 15-17.
81
See Dixon & Jackson, supra note 74, at 177-78.
82
In 2012, the new National party incumbents removed four of five members of the Constitutional Chamber from
power using dubious legal grounds. See David Landau, Honduras: Term Limits Drama 2.0 - how the Supreme Court
declared the Constitution Unconstitutional, ConstitutionNet, May 27, 2015, at
http://www.constitutionnet.org/news/honduras-term-limits-drama-20-how-supreme-court-declared-constitution-
unconstitutional.
83
See Supreme Court of Justice, Constitutional Chamber, Decision of Apr. 23, 2015, at
http://www.poderjudicial.gob.hn/Documents/FalloSCONS23042015.pdf.
84
See id.
85
See id.
86
See supra text accompanying note 76.
87
See Dixon & Jackson, supra note 74, at 177-78; Albert, supra note 7, at 692 (calling the unamendable clause the
“impetus” for the crisis).
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

years earlier, the Supreme Court now held that a threat to basic constitutional principles stemmed not
from an attempt to undermine the term limit in order to entrench power, but from the limit itself.
IV. Implications for the Transnational Dialogue on Control of Constitutional Change
Close consideration of the many battles over constitutional changes to term limits in recent
Latin American history suggests the limits of the spread of ideas regarding control of constitutional
change for protecting liberal democratic constitutionalism. The paradigmatic case of Uribe’s third term
in Colombia has become a core case in the scholarly literature,88 but it appears to be an unusual case in
regional terms. This is true even though the concepts of a tiered or multi-track amendment rule, and the
unconstitutional constitutional amendment doctrine, have now become well accepted in the region. In
Colombia’s neighboring Andean countries, the tiered design was not activated to limit changes
eliminating or easing term limits; across Central America, the unconstitutional constitutional
amendment doctrine was actually used to eliminate rather than protect term limits.
These cases highlight two important problems with reliance on the spread of doctrines limiting
the amendment power. The first is that such a strategy relies heavily on courts, which acted predictably
to serve incumbent interests in many of these cases. The second is that the spread of these doctrines
and ideas has not appeared to carry with it much of a normative sense in when and how these tools
should be deployed.
The limits of a strategy of judicial enforcement in these cases are obvious. In the Colombian
case, where the Constitutional Court used the doctrine to prevent President Uribe from seeking a third
term, the Court maintained considerable independence from the president throughout his term.89
Moreover, Uribe himself was in a relatively weak position: he was a popular president, but was not
backed by a cohesive political movement.90 In contrast, in most of the other cases considered here,
incumbent political leaders had far more influence over the courts who were being asked to deploy
these doctrines. Political leaders in these cases were also stronger than Uribe; they had more control
over other levels and branches of government, and were supported by stronger parties and
movements.91 The courts in Venezuela, Bolivia, Ecuador, Nicaragua, and Honduras were all widely seen
as controlled by the ruling party at the time the key decisions were made. A court that lacks
independence is ordinarily unlikely to rule against incumbents, particularly on issues like this one that
raise the very continuity of those incumbents in power. In many cases, powerful political actors are
undertaking corrosive changes in contexts where they have already consolidated considerable power
over the courts and other institutions. In those contexts where political leaders are able to carefully
sequence their actions to take over the judiciary early on, judicial enforcement of even the best
designed constitutional scheme may be unrealistic.
The cases considered here suggest at least a grain of hope for the alternative strategy of primary
reliance on popular enforcement, rather than judicial enforcement. In Venezuela and Bolivia, for
example, popular presidents actually lost referenda seeking to eliminate or ease term limits; their
personal popularity appeared to exceed the popularity of indefinite reelection. In Ecuador, the

88
See, e.g., ISSACHAROFF, supra note 35 (presenting the case as a prominent example of a high court defending the
democratic order).
89
See Dixon & Landau, supra note 4, at 614.
90
See id.
91
See David Landau, Term Limits Manipulation across Latin America – and what Constitutional Design could do
about it, ConstitutionNet, Jul. 21, 2015, at http://www.constitutionnet.org/news/term-limits-manipulation-across-
latin-america-and-what-constitutional-design-could-do-about-it.
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

Constitutional Court’s ruling allowed Correa to avoid a referendum; however, the opposition rallied
around the argument that the people should have a say and massive street protests perhaps helped to
induce the ruling party to change the provision abolishing presidential term limits so that it would not go
into effect until after the 2017 election, forcing Correa to step down for at least one term. Most
recently, in Paraguay, a strategy of popular enforcement seems to have worked. Allies of the incumbent
president sought to amend a provision limiting presidents to one-five year term in order to allow
reelection; opponents rallied around Paraguay’s two-track mechanism which stated that changes “to the
duration of mandates” should only be carried out by Constituent Assembly.92 The situation led to a
serious constitutional crisis, but after large-scale protests the proposal was withdrawn by its proponents
after it had passed the Senate.93
The importance of popular enforcement of these provisions may have important implications
for constitutional design, implications which are too complex to discuss here.94 For example, it may be
that constitutional clauses creating a tiered design should be written differently if the primary audience
is the public rather than the courts. It is possible that more rule-like language and simpler schemes
facilitate enforcement; it also may be that higher-tiered procedures involving the public, such as
referenda, are more likely to spark public interest. These questions, at any rate, merit more research.
The second problem is that, as the examples here demonstrate, the use of tools controlling
constitutional change has become quite well-accepted within the region, migrating fairly easily from
country to country, and influencing both courts and constitutional designers. But the migration is fairly
superficial – it includes only the concepts themselves, and not a clear sense of when they should be used
or how they should be deployed. Scholars who encourage the spread of doctrines and designs limiting
constitutional change often do so on teleological grounds. Some work, for example, has argued that
these tools are useful to protect the core institutions of liberal democracy against democratic erosion.
These scholars envision tiered systems of constitutional change or the unconstitutional constitutional
amendment doctrine as being deployed against actions by state actors that threaten the independence
of courts or the separation of powers. The use of the basic structure doctrine of the Indian Supreme
Court during and after Indira Gandhi’s emergency, or the use of the substitution of the constitution
doctrine during the Uribe reelection cases, can reasonably be viewed as examples of this kind of use.95
Other scholars emphasize the use of these doctrines as stabilizing core elements of a constitutional
system, thus serving to protect core values that if changed would alter a country’s basic constitutional
identity.96
The recent experiences with these doctrines in Latin America suggests that the concepts of
controlling constitutional change can easily spread without such a teleology attached. Across several of
the Andean countries, courts declined to deploy these doctrines even though the changes to
presidential term limits were significant and plausibly threatened both democratic erosion and the basic
stability of the constitutional system. And the Central American experiences in particular are a reminder

92
See PAR. CONST., art. 290 (requiring that this change be carried out by a reform rather than amendment
procedure, using a Constituent Assembly).
93
See, e.g., Ignacio González Bozzolasco, Reeleccion presidencial y crisis politica en Paraguay, 4 REVISTA POLITICA
LATINOAMERICANA 1 (2017).
94
For a more in-depth discussion of these issues, see Rosalind Dixon & David Landau, Tiered Constitutional Design,
86 G.W. WASH. L. REV. __ (forthcoming 2018).
95
See Dixon & Landau, supra note 4 (containing detailed case studies based on these and other examples).
96
See, e.g., ROZNAI, supra note 6, at 17; Jacobsohn, supra note 3.
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

that doctrines controlling constitutional change can be viewed as neutral tools, ones which can
potentially be used for both pro- and anti- democratic and constitutional ends.
A key question is whether the dialogue surrounding these doctrines could be deepened. This
would require a dialogue encompassing not only the doctrines themselves, but the methodology for
their use. Rosalind Dixon and I have suggested for example that in making decisions as to whether a
given constitutional change affects fundamental constitutional values or the basic structure, judges
ought to consult transnational practice.97 As the Colombian Constitutional Court noted in its second
reelection decision, a showing that a practice is unusual or unprecedented may bolster a case that it
violates fundamental structural norms; a showing that the institutional reform is common elsewhere
may weaken such a showing.98 Such a methodology may have been useful in grounding the doctrines in
the various judicial decisions surveyed in this paper. It may have suggested, for example, that reforms in
presidential regimes wholly eliminating term limits or stretching them beyond two terms were
traditionally unusual by regional and international standards and thus should have been viewed with
particular suspicion. Beyond this, the consistent attention of domestic courts to regional human rights
norms such as the jurisprudence of the Inter-American Human Rights Court (however disingenuously
carried out) suggests that human rights tribunals themselves are increasingly relevant to issues of
constitutional structure. Clear statements about the nature and limits of political rights in electoral
matters may be useful in showing the weaknesses of the no-term-limits arguments that have been made
by courts throughout the region.
At the same time, reaching any deeper consensus about the use of tools controlling
constitutional change may be quite difficult. Transnational practice itself is not a cure all, particularly
once the practice of eliminating those limits grew and courts were thus able to point to examples of
similar decisions within their own region. The evidence does suggest at least the movement of
jurisprudential ideas within sub-regions; the unimportance of term limits to the basic structure in
Venezuela, Ecuador, and Bolivia, and its hindrance of core human rights norms in Costa Rica, Nicaragua,
and Honduras. Across many of the cases studied here, courts made arguments that limitations on
presidential power were not simply inessential to their political systems, but actually hindered
constitutional projects. Under this vision, the elimination of term limits enhances the free choice of
voters on key issues of governance; it is a pro- rather than antidemocratic act. This vision is consistent
with other aspects of the radical Andean constitutionalism found in Venezuela, Ecuador, and Bolivia:
traditional priorities of liberal democracy such as restraint on power are to an extent deprioritized in
exchange for a substantive project of equality and other goals such as political participation.
One can, of course, be quite skeptical of these arguments. Aside from the fact that they are
being pushed by tribunals who are largely controlled by the leaders seeking reelection, it seems
problematic that the continuance in office of a particular individual would be seen as necessary to
advance broader constitutional goals. The absence of political competition over time may in fact hinder
advancement towards those goals by increasing levels of corruption and other problems that divert
public resources.99 And the arguments referring to the free choice of voters are easily critiqued; as the
Colombian Constitutional Court noted in the second reelection decision, over time presidential
incumbents may gain immense advantages over their challengers, tilting the playing field ever more

97
See Dixon & Landau, supra note 4.
98
See supra text accompanying notes 30-33.
99
See ISSACHAROFF, supra note 35, at 135 (arguing that the perpetuation of one-party or dominant party rule over
time frustrates the broader goals of political transition).
 12 Law & Ethics of Human Rights __ (forthcoming 2018)

strongly in favor of continuance in office.100 The notion running across many of these decisions that
equality requires that incumbents be allowed to seek reelection thus ignores the increasingly large
advantages that they tend to gain over their challengers through time.101 Furthermore, the experiences
studied here suggest that when able to vote on term limits via referendum, even very popular
presidents often fare poorly.102 The desire to eliminate term limits seems to be motivated more clearly
by a quest to retain power and associated patronage networks than by adherence to broader
constitutional or social objectives.
But irrespective of the merits of these arguments, the fact that they are made so consistently by
courts in the region and linked to a broader constitutional vision suggests difficulties in reaching
consensus about constitutional basic structure or identity. Even in a region with a relatively
homogenous legal cultures and political systems, there still appears to be no consensus on the nature or
even existence of presidential term limits. This is a disconcerting reality.
IV. Conclusion
This essay has traced recent legal disputes involving constitutional changes to presidential term
limits across Latin America. It has done so to highlight ongoing divergence about the use of tools to
control constitutional change, even as those tools themselves have become very well accepted in the
region. In particular, it has shown that a number of courts across the region have not accepted the
argument that the elimination of term limits in a pure presidential system poses a threat to liberal
democratic constitutionalism; instead, they have suggested that term limits themselves should be
removed because they pose such a threat. In this sense, the celebrated and well-studied decision of the
Colombian Constitutional Court blocking Alvaro Uribe’s third term appears both as more isolated and
more anomalous.
The sharp divergence of legal opinions on the term limits question might serve as a microcosm
for larger disagreements about the meaning of democratic constitutionalism in Latin America. The
radical Andean systems in Venezuela, Ecuador, and Bolivia, for example, claim to deemphasize some
traditional concerns of liberal democracy in return for other goals like popular participation and social
transformation.103 This is not simply a manipulation of liberal democracy; it is a partial challenge to it.
And the continued existence of strong regional disagreement about the nature of the political system
surely complicates the very worthy task of spreading constitutional designs and doctrines in order to
better protect liberal democratic constitutionalism.

100
See Decision C-141 of 2010, in Cepeda & Landau, supra note 31, at 356 (arguing that allowing indefinite
reelection harmed the constitutional principle of equality because the incumbent would over time gain “greater
negotiating power and higher political recognition”).
101
See id.
102
See supra Part II (recounting referendum defeats in Venezuela and Bolivia).
103
See Cameron & Sharpe, supra note 15.