American University Law Review
June, 1997

SYNOPSIS

Contrary to arguments of social scientists as far back as Hegel, the adoption of a successful foreign constitution as a model may offer advantages to a country that has not yet consolidated its political institutions. The nineteenth century experience of Argentina with the U.S. Constitution shows that not only may rules from transplanted constitutional models take root, but that such rules may enjoy extra authority because of the prestige of the foreign model. Argentina's elite adopted U.S. constitutional practice not only as a model, but as a source of authority. Sometimes U.S. practice governed regardless of Argentine needs and regardless of the result that textual interpretation of the Argentine Constitution might have prescribed. Although the rules adopted may not always have been suited ideally to Argentina's conditions, the prestige of the model helped consolidate a constitutional system where none had existed previously. Blind copying is inappropriate, but because a foreign model may enjoy greater authority than an autochthonous one, the Argentine example shows that countries emerging from long periods of dictatorship or instability should consider the extent to which foreign models and international law may be harnessed to add to the authority of weak domestic structures.

INTRODUCTION

Scholars studying political development must consider to what extent foreign models matter. With dozens of countries undergoing transitions to democracy, constitution drafters face basic issues of whether, how, and to what extent they should invoke foreign models. The issues are not new. Many countries have used the U.S. Constitution and others as models during the past two centuries.¹ Until now, however, scholars rarely have done more than note the degree to which specific constitutional provisions have been borrowed or have offered comparisons focused on specific government practices.² This Article will examine the issues underlying the constitutional authority and effectiveness of a constitutional transplant, focusing on Argentina's nineteenth century experience with the U.S. Constitution. By examining in detail the experience of a single country, Argentina, the Article will focus on the authority enjoyed by a constitutional transplant. Thus, although this Article will need to establish the degree to which the United States provided a model for specific constitutional provisions, its aim is to establish to what degree previously non-existent rules actually came to operate in practice and the extent to which the authority of a transplant was affected by the fact that it came from abroad. Remarkably, Argentina offers an example not only of the adoption of a foreign constitutional model, but of the foreign model quickly becoming an article of faith, thereby increasing the legitimacy of the Argentine Constitution and the stability of Argentine political life.

Successful constitutionalism usually is ignored in explaining Argentina's enormous economic success in the late nineteenth and early twentieth century. Between 1880 and 1913 Argentina was neck-and-neck with Japan for the title of fastest growing economy in the world,³ and between 1869 and 1914 high European immigration helped boost Argentina's population from 1.7 to 7.9 million people, a growth rate of 3.4% per year.⁴ Real Gross Domestic Product grew at an average rate of at least 5% per year in the fifty years preceding World War I,⁵ and jumped to an average growth rate of 6.7% between 1917 and 1929.⁶ In 1930, Argentines were better fed, healthier, had better access to higher education, and in general enjoyed higher consumption levels, than most Europeans.⁷ Despite its poor road system, Argentina had more automobiles per capita than Great Britain in 1930.⁸ Scholars usually describe this spectacular growth, followed from the 1930s by equally striking stagnation, in terms of economic causes and the responses of different interest groups to changes in the world trading system and Argentina's domestic economy.⁹

One hardly can doubt that political stability is a necessary precondition for extended growth, however. Investors and immigrants could show little long-term interest in Argentina during the civil wars and political murders that characterized post-independence Argentina from the early 1820s through the 1850s.¹⁰ Nor could immigrants and investors have felt comfortable with the cycles of military governments, unrestrained populism, and bloodletting that increasingly dominated Argentine politics from the 1930s through the 1970s. Constitutionalism provided late nineteenth century Argentina with the political stability needed for growth.

Perhaps one reason why social scientists ignore Argentina's constitutionalism is that even in the late nineteenth and early twentieth century it was imperfect. Most elections until the presidential elections of 1916 were fraudulent.¹¹ Major revolts occurred in 1874, 1880, 1890, 1891, and 1905.¹² Federalism, extensively provided for in the Constitution, never became a reality.¹³ Despite its gaps, however, much of the Argentine Constitution did become the basis of Argentine political life. Many important rules having scant Argentine precedent quickly entered into practice. The process is astonishing if one considers the complete lack of institutional and constitutional rights until the 1850s, and is worthy of analysis by the many countries that find themselves needing to establish constitutional government after long periods of chaos or dictatorship.

One of the lessons to be learned is that copying a foreign constitution can work. Moreover, in the Argentine case, one of the reasons why it worked was precisely because it was a copy. As far back as Hegel, many scholars have worked from the premise that a constitution cannot be copied, but must develop from established foundations in each society. For example, Atilio Bor¢n, a leading Argentine sociologist, begins examining Latin America's modern constitutional failure by quoting Hegel's argument that "[a] constitution is not [just something] manufactured; it is the work of centuries, . . . the consciousness of rationality so far as that consciousness is developed in a particular nation."¹⁴ According to Bor¢n and many others, Latin American societies were unprepared for liberal constitutional models at the time of independence.¹⁵ Latin America, with a colonial history of Hispanic authoritarianism, huge landholdings and little self-government, lacked the traditions needed to support constitutions based on liberal values, and as a consequence, the new constitutions lacked the necessary psychological acceptance.¹⁶ By contrast, the United States, with a tradition of colonial self-government and of protecting fundamental rights, was well prepared to establish its own liberal constitution.¹⁷

Hegel, moreover, goes beyond insisting merely that constitutions cannot be copied. For Hegel, constitutions cannot even act as a source of significant change, but rather must reflect the state of the people they govern. "[T]he constitution of any given nation depends in general on the character and development of its self-consciousness. In its self-consciousness its subjective freedom is rooted and so, therefore, is the actuality of its constitution."¹⁸ On this view, copied constitutions must fail, because no constitution can exceed what members of society are prepared to accept in terms of the internalized values of society. The longing of isolated individuals for a better constitution is not enough.¹⁹ The constitution itself must enjoy what this Article describes as a talismanic status.

[I]t is absolutely essential that the constitution should not be regarded as something made, even though it has come into being in time. It must be treated rather as something simply existent in and by itself, as divine therefore, and constant, and so as exalted above the sphere of things that are made.²⁰

A copied constitution hardly would seem "divine," "constant," and "exalted."

In the Argentine case, however, not only is Hegel's premise proved wrong, but it is possible to go a step further and argue that the country's Constitution acquired extra effectiveness precisely because of its foreign origin. For much of the Argentine elite, the recognized success of the U.S. Constitution gave that Constitution a talismanic authority which the drafters of Argentina's Constitution of 1853/1860 took advantage of. Talismanic authority is defined here as authority based on the presumed extraordinary effects of an object or document-authority stemming not from rational acceptance of a document because it has been agreed upon, but from a sense that, if the document is followed, problems almost miraculously will be overcome. The invocation of the talismanic authority of the U.S. Constitution in Argentine political debate augmented the authority of both the drafters and interpreters of the Argentine Constitution during its early years. At times invocation of U.S. practice became exaggerated. Decisions of the Argentine Supreme Court exist that can be explained only as a desire to copy U.S. practice.²¹ However, in the setting of a political system with few widely accepted sources of authority and few entrenched political rules, sometimes the perfect rule is less important than having a less-than-perfect one that enjoys undisputed authority.

In calling for a constitution that seems "divine," Hegel expresses a valid concern that a constitution possess an undisputed source of authority. Hegel falls short by failing to recognize that in addition to a sense of law springing from deep traditions, a variety of sources of authority are accepted by societies as legitimate. A century later, Max Weber's sociology of law offers the first attempt to systematize different types of authority.²²

Although Weber analyzes law primarily in the context of what he calls "rational" grounds of legitimate domination, meaning government that rests "on a belief in the legality of enacted rules and the right of those elevated to authority under such rules to issue commands,"²³ he also describes two other types of legitimate domination-"traditional" domination and "charismatic" domination.²⁴ Under traditional grounds of domination, authority rests on "an established belief in the sanctity of immemorial traditions and the legitimacy of those exercising authority under them."²⁵ Under "charismatic" grounds of domination, authority rests on acceptance of the exceptional sanctity, heroism, or exemplary character of a particular person and corresponding acceptance of the decisions and laws established by that person.²⁶ The individual exercising charismatic authority enjoys the ability to exercise authority outside the limits of formal legal rules and of tradition and to personally set, ignore, or rewrite any rules governing his authority and that of others. Weber also notes that none of the three types of domination-rational, traditional, or charismatic-is usually found in "pure" form.²⁷ Although one form of authority may predominate, societies often exhibit all three types of authority.²⁸

However, even Weber's description of traditional, rational and charismatic authority, although useful in analyzing nineteenth century Argentina, fails to capture the full phenomenon. As Hegel recognizes, constitutions do not work merely on the basis of rational authority, particularly in countries emerging from a long period of political disorder and lacking a tradition of respect for rational authority.²⁹ Similarly, traditional authority counted for little in nineteenth century Argentine politics as, having broken with the Spanish Crown, Argentina faced the problem of a lack of autochthonous political tradition. Moreover, charismatic authority, represented by audacious military figures leading bands of gauchos, was exactly the type of authority nineteenth century Argentina was trying to abandon. The lack or limited availability of traditional, rational, and charismatic authority as the basis for constructing a constitutional system was precisely what led Argentina's political elite to turn to U.S. practice and to raise it as an icon, a talisman.

Given its chaotic past, Argentina had little choice but to adopt an aspirational constitution in seeking to create entirely new governmental institutions and to establish hitherto unprotected individual liberties. The U.S. Constitution was an important model from the beginning of the process that established the Constitution of 1853, and interestingly, the U.S. influence increased, not decreased, during the following three decades. Although Juan Bautista Alberdi, the most important intellectual figure behind the Constitution of 1853, sought to emulate the United States in general terms, he did not believe in blind imitation. In developing its Constitution in 1853 and 1860, Argentina generally adopted only the U.S. practices that it thought convenient. By the 1880s, however, one can point to examples of U.S. practice being followed even when it made little sense in the Argentine context. The tendency toward greater invocation of the U.S. Constitution as authority would suggest that the U.S. Constitution worked as a unifying force. Invocation of the U.S. Constitution and practice began to lessen only toward the turn of the century, by which time Argentina's political institutions were sufficiently well-entrenched so that the U.S. Constitution no longer was necessary as a talisman.

Most of this Article tells the story of nineteenth century Argentine constitutionalism and will follow a roughly chronological approach. Part I focuses on the backward nature of Argentine government prior to the 1853/1860 Constitution-an unstable, authoritarian government that was antithetical to the "liberal" model subsequently adopted.³⁰ Part II examines the Alberdian vision, a vision of the future of Argentina inspired by the rapid growth of California once it became part of the United States in 1848. The vision expounded by Juan Bautista Alberdi in 1852 became the guiding political philosophy of the Argentine political elite. Part III examines the history and politics behind Argentina's Constitutional Conventions of 1853 and 1860, how the constitutional structure made use of the U.S. Constitution, and how the Argentine elite became increasingly exaggerated in its invocation of U.S. constitutional practice. Part IV considers whether the Constitution provided effective rules and will distinguish those rules that actually became part of Argentine practice from those that did not. Part V offers examples of the importance of U.S. practice in interpreting the Argentine Constitution, detailing when rational interpretation of the document sometimes took a back seat to U.S. practice even when it offered no political advantages to the decisionmaker. From this analysis, it can be observed that the Argentine elite, and particularly its courts, took the U.S. model so seriously that they would overrule reasonable interpretations of the Argentine Constitution solely because the precedent involved was contrary to their increasing understanding of U.S. practice. Moreover, although the significance of U.S. practice began to decline in the late 1890s, the Court relied heavily on contemporary U.S. practice on critical occasions in the 1920s and 1930s when changes to long-established readings of the Argentine Constitution were necessary. Changes in U.S. practice gave the Court a basis for re-interpreting Argentine law. Finally, this Article concludes that not only can foreign models provide constitution writers and interpreters with practical suggestions, but, that under the right conditions, foreign models may offer authority that otherwise would be lacking. The analysis of the origins of the Argentine Constitution and early practice will be quite extensive, but it is only by examining those origins that one can begin to appreciate the extent of the Argentine elite's leap of faith.

Two important asides are necessary before delving into Argentine history. First, it must be understood that the relative success of a constitutional system can be measured in a variety of ways. For example, nineteenth century Argentine constitutionalism was a failure if analyzed in terms of social and economic equality, the democratic nature of its elections, or the implementation of all aspects of its written text. It was an enormous success, however, in terms of what its designers wished to accomplish-to encourage immigration and to stimulate economic growth. It also was successful in establishing a system of mutual security under which the political opposition, even in the absence of democratic elections, knew that it would suffer only limited oppression, and where the parties in power knew that even if the opposition came to power, it would not do them serious harm.³¹ In recognition that not all parts of Argentina's written Constitution were equally effective-or, as will be seen, were intended to achieve equal effectiveness-rather than discuss rights, liberties, and restraints on government power in terms of constitutional rights and limitation, this Article will instead often use the term "rules of mutual security." Argentine constitutionalism successfully established rules of mutual security that gave both those in government and in opposition the sense that certain rules limited government repression. Full compliance with the Constitution is a different matter.

Second, although this Article will focus on U.S. constitutional practice as a source of authority, it was not the only source of authority. Rational authority, invoking the text of the Constitution and the intent of its Framers' was always important. Likewise, past practices that were not in conflict with the Constitution inevitably continued to enjoy authority as the way that things had always been done. What makes the Argentine case fascinating, however, is that for several decades the authority derived from its foreign talisman was equally if not more important than both rationalism and tradition.

I. ARGENTINE LAW AND GOVERNMENT PRIOR TO 1853

In 1850, while exiled in Chile, future Argentine President Domingo F. Sarmiento lamented:

North America separated from England without renouncing the history of its liberties, its juries, its parliaments and its letters. We, the day after the revolution, had to turn our eyes to all parts searching for something to fill the vacuum inevitably left by the destroyed inquisition, the absolute power defeated, religious exclusiveness flattened.³²

Little in Argentine colonial history, or in the decades following independence in 1810, indicated that Argentina would find itself poised in 1853 to adopt much of the U.S. constitutional model successfully. During the colonial period, governmental structures left Argentina unprepared for independence, let alone for a liberal system of government. In the decades prior to 1853, civil war and dictatorship left Argentina even further afield from the U.S. model. Although the philosophy of the European Enlightenment found followers among a small sector of the colonial elite, its impact was theoretical, not institutional. An examination of the legal institutions that governed Argentina during its colonial period and from independence through 1852, reveals that the protection of individual liberties and the appearance of judicial review in the 1853/1860 Constitution are surprising innovations, not products of Argentine political tradition.

Unlike the British colonies of North America, the Spanish colonies in Central and South America received almost no experience in self-government during their colonial period. Apart from its desire to convert and offer limited protection to the local native populations, Crown policy in the Americas was designed to maximize government revenues, particularly from gold and silver mining,³³ and hence sought to maximize its control over sources of income.³⁴ The Crown therefore virtually always appointed Spaniards born in Spain to be viceroys, and assigned peninsular Spaniards to most lower offices.³⁵ To deter its officials from developing local attachments, the Crown did not even permit senior officials or their children to marry in the colonies without its consent.³⁶ When it did grant permission, the officials often were transferred to another territory.³⁷

The concept of separation of powers did not exist in colonial Spanish America; rather, the system emphasized multiple functions.³⁸ Checks on viceroys and governors existed, but from other organs that also exercised multiple functions.³⁹ Officials who exercised executive functions were subject to the residencia, an inspection by an examiner named by the viceroy or the Council for the Indies (the senior body advising the King on colonial affairs). The residencia was conducted at the conclusion of the official's term in office, although special investigations often were ordered during an official's term.⁴⁰ Further, because all officials acted in the service of the King, abuses by one official could be reported by another to the King or to the Council for the Indies.⁴¹

At that time, the closest thing to a judicial body was the audiencia. This board was presided over by the viceroy or governor and heard appeals in a variety of cases. As time went on, the audencia's powers increasingly were restricted to judicial functions, although it retained important non-judicial functions.⁴² Its members acted as advisors to the viceroy or governor, approved emergency spending by the viceroy or governor, played a role in the appointment of lower government officials, and took over the viceroy's functions in the event of his absence.⁴³ The system contained nothing remotely similar to judicial review. Because the Crown possessed absolute authority and colonial officials were merely agents of the Crown, there was no need for judicial review or for the concept of division of powers-controls existed only to prevent abuse of the King's authority.⁴⁴

In 1777, Spain created the Viceroyalty of the River Plate and designated Buenos Aires as the capital. Until the 1770s, Buenos Aires had been a minor military garrison and a center for illegal smuggling with the Portuguese and the British.⁴⁵ But the creation of the viceroyalty, which included all of modern day Argentina, Bolivia, Paraguay, and Uruguay, as well as part of Chile, dramatically changed its status.⁴⁶ Buenos Aires became the viceroyalty's sole legal center for trade with Spain, and when wars cut-off supplies from Spain, a center for trade with foreigners as well.⁴⁷ As a consequence, the city's population grew from 20,000 in 1766 to 42,000 in 1810.⁴⁸ During this period, the interior cities of northern Argentina also thrived, both as sources of supplies for silver mining activities in Potos¡ (in present day Bolivia) and as stops along the trading routes to Potos¡.⁴⁹

However, the Argentine independence movement did not result from local economic and political development, but from external forces. Independence would have lagged for many years were it not for the turmoil that enveloped Spain during the Napoleonic Wars.⁵⁰ In 1808, Napoleon held the Spanish monarch, Ferdinand VII, prisoner in France, placed his brother, Joseph Bonaparte, on the Spanish throne, and then invaded Spain to maintain his brother in power. Consequently, Argentina's elite, like elites across Latin America, was forced to choose among allegiance to a new French ruler, allegiance to the Spanish Resistance, or independence, with independence offering the lure of free trade with Great Britain.⁵¹ On May 25, 1810, prompted by the Spanish Resistance's loss of Seville to French forces, the Buenos Aires creole elite overthrew the viceroy, whom the Spanish Resistance had appointed the previous year, and established an independent government that claimed to rule in the name of Ferdinand VII.⁵² By 1816, the pro-independence forces had solidified their position sufficiently to declare independence in spite of Ferdinand VII's return to the Spanish throne.⁵³

Independence resulted in war and chaos. Spanish America's wars for independence from Spain lasted much longer than the United States' war for independence from Great Britain. The wars lasted from 1808 to 1824, and not only caused tremendous destruction, but also dislocated all previous political and trading arrangements.⁵⁴ Buenos Aires lost the hegemony it had enjoyed as the capital of the viceroyalty.⁵⁵ The City of Buenos Aires was too small and too distant to maintain effective authority over the Argentine interior, let alone over Bolivia, Paraguay, and Uruguay, all of which soon broke away. Argentina, with an area approximately the size of the United States east of the Mississippi, had a population of only 500,000 in 1816⁵⁶ and had no political group that could generate a military force large enough to control the entire expanse. Local caudillos-ranch owners who formed mounted militia with their own peons and those of allied or client ranch owners-seized power in the interior and acted as warlords over as much territory as their militia could control.⁵⁷

Civil war plagued Argentina starting well before Bolivar's final victory over Spanish forces in Per£ in 1824. In general terms, the battles were between federalists-rural caudillos who wished to maintain their autonomy-and unitarians-members of the professional and commercial class in Buenos Aires who sought a centralized system of government with themselves in charge.⁵⁸ The 1820s were marked by nearly continuous warfare until a federalist, General Juan Manuel de Rosas, established a dictatorship over the City and Province of Buenos Aires.⁵⁹

The reign of General Rosas constituted the ultimate submission of Buenos Aires to caudillo government. He believed in order through authority and fear, and openly despised the liberal values that some of his unitarian opponents espoused.⁶⁰ When Rosas assumed the governorship of Buenos Aires in 1829, he did so on the condition that the provincial legislature formally grant him "the entire sum of public power."⁶¹ In 1832, when the legislature hesitated at renewing such sweeping authority, he resigned rather than rule subject to any legal controls.⁶² He assumed the governorship again in 1835 only after he had sufficient political control over the legislature to receive a new grant of absolute power.⁶³ The Decree of March 7, 1835 which appointed him announced:

Brigadier General Rosas is appointed Governor and Captain-General of the Province for the term of five years. The entire sum of public power is deposited in his hands, without further restrictions than the following:

1. He shall defend and protect the holy Catholic religion.

2. He shall sustain and defend the national cause of federation as proclaimed by all the people of the Republic.

3. This extraordinary power shall continue for such time as the Governor-elect shall judge to be necessary.

4. He is to appear on the 11th and swear to exercise faithfully the power entrusted to him, in the way that he believes most suitable for the well-being of the province and the Republic in general.⁶⁴

Rosas' power exceeded that of the most absolutist Spanish mon-archs of the colonial period, and he used it to the fullest. Rosas legislated by decree and decided many judicial cases himself. His justices of the peace, who generally were restricted to handling minor matters, also were his political agents in their districts.⁶⁵ Starting in 1831, Rosas ordered the justices of the peace to create lists recording the names of opposition members along with the property they owned in their respective districts.⁶⁶ Property confiscations grew to the point that land became worthless, because no landowner, unless a friend of Rosas, had security of tenure.⁶⁷ Moreover, friends of Rosas had little need for the market, as they usually could acquire land through confiscations, sales under pressure, or grants of newly opened territories along the Indian frontier.⁶⁸ Rosas pronounced 2000 confiscations during his tenure, including 500 estancias and approximately one million head of cattle.⁶⁹ He eliminated all opposition press early in his regime,⁷⁰ and his terror squad, known as the Mazorca,⁷¹ openly brandished long knives that were used to cut the throats of adversaries, frequently killing them in public and leaving their bodies in the street.⁷²

The bloodshed diminished in the later years of the regime, as all opposition had been killed or had fled, and the lessons of earlier years made discipline easy to maintain.⁷³ Nevertheless, even in those more subdued times, John Pendleton, the newly-arrived Charg‚ d' Affaires from the United States, began his first Despatch to the Secretary of State on September 22, 1851, with this harsh indictment:

The government of Buenos Aires and of those states originally forming the Argentine Confederation-and not now in open rebellion against them, is I suppose the most simple and rigorous despotism in the entire world. . . .

[Rosas] unites in his own person all the powers of the state-makes the laws-executes them, controls in every possible respect the whole subject of the finances and currency . . . settles disputes as he pleases . . . causes to be shot any citizen of that State at his pleasure-and such is the terror of his system that no subject dare ever speak of it, much less complain.⁷⁴

When Rosas was forced from power in February 1852, it was not due to internal dissent. Indeed, he maintained substantial support within the lower classes until the very end.⁷⁵ Known as a figure who governed and raised armies based on the strength of his character, his toughness made him a popular figure among the rural poor.⁷⁶ Most of his terror tactics were not aimed at the rural poor, but instead focused on keeping the commercial and professional elite in line.⁷⁷

Rosas' defeat came at the hands of General Justo Jos‚ de Urquiza, the caudillo of the Entre Rios province, who led a combination of forces from the provinces of Entre R¡os, Santa F‚, and Corrientes, with support from Uruguay, Brazil, and a contingent of unitarian exiles.⁷⁸ Urquiza, a rich estanciero and longtime federalist, apparently was provoked in part by Rosas' decision in 1848 to close the River Plate system to upriver foreign traffic.⁷⁹ But he also justified his attack on Rosas, arguing that the time had come to give Argentina its first real national constitution.⁸⁰

Until this time, Argentina had never had a successful experience with liberal governmental institutions even with a national government. Colonial rule, existing primarily to siphon wealth to Spain and offering no self-government, at least had offered stability and administrative recourse against capricious conduct by colonial officials.⁸¹ The previous four decades had provided only wars with Spain and Brazil, civil wars, and dictatorship. A National Constitution, sanctioned in December 1826, by a unitarian-dominated Congress, had provided for a powerful central government and a system of division of powers based on the U.S. Constitution,⁸² but that Constitution was rejected almost immediately by most of the provinces.⁸³ An earlier unitarian Constitution drafted in 1819 never went into effect because of a federalist invasion of Buenos Aires.⁸⁴ Other provisional organic statutes and regulations, passed by congresses acting both as constitutional assemblies and as ordinary legislative bodies, never lasted more than two or three years.⁸⁵ Some zeal for reform certainly existed during the first years after independence,⁸⁶ with prohibition of slavery,⁸⁷ elimination of prior censorship of the press,⁸⁸ some protection against arbitrary searches and criminal prosecutions,⁸⁹ and the beginning of a sense of the need to limit executive power.⁹⁰ But the reformers' political dominance was limited to very short stretches of time.

The situation of the judiciary was particularly bleak. During the period of predominantly unitarian control of Buenos Aires immediately following independence, a court of appeals took over the judicial functions of the audiencia, including, in some periods, the critical areas of customs disputes and other tax matters.⁹¹ In most provinces between 1810 and 1852, as in Buenos Aires under Rosas, what justice existed was exercised personally by the local caudillo.⁹²

II. THE ALBERDIAN VISION

The Argentine Constitution of 1853/1860 emerged from the intellectual vision of a small group of Argentine thinkers who lived in exile during Rosas' reign and were inspired by the model of the United States. Unlike the U.S. Constitution, which enshrined governmental institutions that already had strong roots, the Argentine Constitution was a forward-looking vision of what its drafters wished Argentina to become. Juan Bautista Alberdi and Domingo Faustino Sarmiento, the two leaders of the group, had important academic and political differences, although both shared a basic constitutional vision consisting of free immigration, economic growth, and the full protection of the individual liberties necessary to encourage immigration and investment. The vision did not, however, include political rights, and regarded federalism-the burning political issue of the post-independence period-as a necessary evil that could be omitted from the model if it were possible politically.⁹³

Alberdi (1810-1884) and Sarmiento (1811-1888) often have been associated with a literary circle formed in Buenos Aires in 1837, referred to as the Generation of '37, although Sarmiento lived in the province of San Juan in 1837 and participated only vicariously. The literary circle, led by poet Esteban Echeverr¡a, sought inspiration in European and U.S. culture and believed that through the power of their ideas a small intellectual elite could transform the country.⁹⁴ The circle did not last very long with Rosas in power. Organized in May 1837, the circle met for conversation in a Buenos Aires bookstore. Starting in November 1937, the group published a literary magazine which although it prudently lauded Rosas and his policies, was shut down anyway in April 1838. Most of the circle left the country shortly thereafter. Alberdi and Sarmiento, as well as most group members, wrote the bulk of their work while in exile. In 1852, Alberdi provided the single most important statement of the Generation of '37's political vision in Bases y puntos de partida para la organizaci¢n pol¡tica de la Rep£blica Argentina (Bases and Points of Departure for the Political Organization of the Argentine Republic),⁹⁵ probably the most politically influential book in Argentine history. His vision was fundamental at the Constitutional Convention of 1853, and was essentially realized in the following years.

Alberdi published Bases in Chile in May 1852,⁹⁶ and immediately sent a copy to General Urquiza,⁹⁷ the key figure for making any constitutional innovation a reality. Bases examined what Alberdi perceived to be the fundamental ills besetting Argentine society, offered a manifesto of fundamental constitutional principles to cure them, and in the second edition published later that year, included a draft constitution in an appendix. Urquiza responded to Bases enthusiastically in a public letter⁹⁸ and immediately ordered the printing of an edition in Argentina.⁹⁹ Sarmiento called it a "monument," "our banner, our symbol" and forecast that "it will become the Argentine decalogue."¹⁰⁰

Bases argued that an Argentine constitution should not be limited to a legal framework incorporating the status quo because the status quo in Spanish America was a failure.¹⁰¹ "[F]or these republics of one day, the future is everything, the present, hardly anything."¹⁰² Thus Alberdi's constitution unavoidably was a project to remake the country. "There are constitutions of transition and creation, and definitive constitutions which conserve. The [constitutions] which America asks for today are of the first type; they are for exceptional times."¹⁰³ Alberdi's goal was prosperity,¹⁰⁴ and he argued that to realize the goal, a constitution must seek to "organize and establish the great practical measures to take emancipated America out of the dark and subordinate state in which it finds itself."¹⁰⁵

Alberdi offered a straightforward program. With only one million inhabitants, Argentina was an empty, under-utilized expanse with little agriculture, no railroads, and no vibrant cities except for Buenos Aires.¹⁰⁶ Facilitating progress required encouraging European immigration to fill the empty expanses and improve the cultural level of the country, permitting free commerce, and attracting the investment needed to build railroads and establish industry.¹⁰⁷

He argued that immigrants could be attracted to Argentina by offering them ample individual liberty. The rights conferred on immigrants would include: tolerance of their religious practices,¹⁰⁸ legislation allowing marriage of persons of different religions,¹⁰⁹ freedom of movement within Argentina,¹¹⁰ equal rights in private law matters,¹¹¹ access to the lower ranks of public employment,¹¹² the right to property,¹¹³ freedom to work and engage in industry,¹¹⁴ freedom of commerce,¹¹⁵ easy transfer of property,¹¹⁶ and an efficient judicial system to provide redress.¹¹⁷ The model for this program was the State of California, which in the few years since it had been seized by the United States from Mexico had achieved spectacular growth through the opportunities it offered to newcomers-opportunities unavailable under Mexican rule.¹¹⁸ In the draft constitution included as an appendix to Bases, Alberdi afforded both citizens and foreigners essentially the same rights as those of the U.S. Bill of Rights, but with a greater emphasis on economic liberties than in the U.S. Constitution.¹¹⁹

Alberdi further extended his argument for protection of civil liberties to encourage growth in Sistema econ¢mico y rent¡stico de la Confederaci¢n Argentina seg£n su Constituci¢n de 1853 (Economic and Tax System of the Argentine Confederation under the Constitution of 1853),¹²⁰ published two years after Bases. In Sistema econ¢mico, all individual liberties in the 1853 Constitution were described in terms of the contribution they make to economic growth. For example, Alberdi argued that a free press is required because the press itself is a type of industry, because it improves productive techniques by spreading knowledge, and because it acts as a watchdog "to denounce and combat . . . the errors and abuses which hinder industry."¹²¹ Personal security is required because without it there can be no confidence in the promises made by a merchant who might be attacked at any time and thrown into prison, no agricultural production or mining if workers might suddenly be pressed into army service, and no confidential business dealings if private correspondence might be opened.¹²² In the political economy of Alberdi's Constitution, individual liberties were a means for achieving economic prosperity, the essential mission of the Constitution,¹²³ rather than ends in themselves.¹²⁴

At their heart, both Bases and Sistema econ¢mico are adaptations of liberal, laissez faire capitalism to an empty land populated largely by Indians and gauchos too uncouth (or perhaps too free-spirited?) to form a stable workforce. Significantly, the vision did not include free suffrage or a widening of the ranks of those wielding political power.¹²⁵ In Bases, Alberdi argued that "[i]t is utopian, it is a dream and pure falsity to think that our hispanic-american race as formed by the hands of our dreadful colonial past can today realize a representative republic" when in the entire world only the United States and the Swiss cantons have succeeded in doing so.¹²⁶ In Sistema econ¢mico, Alberdi carefully distinguished "economic liberty," which all are capable of exercising, from "political liberty," which "requires education, if not science" and affects the future of others, not just oneself.¹²⁷ "I do not participate in that fanaticism, inexperienced when not hypocritical, which asks for abundant political liberties for peoples who only know how to employ them to create their own tyrants."¹²⁸ He sought only the individual liberties necessary for "those endeavoring to populate, enrich and civilize these countries, not the political liberties, an instrument of agitation and ambition in our hands, never longed for or useful to the foreigner, who comes to us seeking well-being, family, dignity and peace."¹²⁹ Alberdi's approach toward political rights is central to understanding the rules of mutual security that actually were established in the Argentine Constitution, because as will be seen, political rights, although formally part of the Constitution of 1853/1860, were not operative as rules of mutual security until at least 1912.¹³⁰

Like Alberdi in Bases, Sarmiento also wrote a book in the early 1850's directed in part toward General Urquiza and his aspiration to offer the country a constitution.¹³¹ Titled Argir¢polis, some aspects of this book are spur of the moment fantasy from a writer who writes provocatively but leaves loose ends. Thus, his proposal to move Argentina's capital to Mart¡n Garc¡a, a deserted island in the middle of the River Plate, safely can be ignored¹³²-as it was by Sarmiento himself in his later work. Like Alberdi two years later, however, Sarmiento argued that Argentina must imitate the progress of the United States,¹³³ and particularly of California,¹³⁴ to become the United States of South America.¹³⁵ He argued that Argentina needed a national government "which proposes as its sole objective to devote itself to populating the country and creating riches."¹³⁶ Argentina's present population would need five hundred years to fill up its empty spaces through reproduction and would only fill them with more of the same-people lacking in knowledge and industry.¹³⁷ The European immigrant would bring his arts and sciences with him.¹³⁸ Commerce needed to be freed by eliminating internal tariff barriers¹³⁹ and by opening the interior to international trade.¹⁴⁰ Foreign capital could be attracted to build canals and railroads if Argentina became a more stable environment, thereby limiting the risks capital would face.¹⁴¹ Sarmiento did not discuss individual liberties in depth in Argir¢polis, but he clearly intended that they be part of any future constitution.¹⁴² In later work he would describe liberty as a type of "capital," arguing that it was through the liberty offered to their citizens that the great economic powers achieved their success.¹⁴³

Sarmiento also shared Alberdi's preference for government by men of reason and not by Argentina's uneducated populace.¹⁴⁴ In newspaper articles written in the 1840s, he advocated "democracy by national intelligence and not by national will."¹⁴⁵ In fact, in a later work he argued that the Constitution did not exist for the Argentine masses, because they were not prepared to understand a liberal constitution.¹⁴⁶ The bulk of the population only needed to deal with ordinary civil and criminal matters, the judges who decide their cases, and the police.¹⁴⁷ "It is the educated classes that need a Constitution which assures freedom of action and thought, the press, public speech, and property," because unlike the masses of the population, these classes can "understand the rules of the institutions which they adopt."¹⁴⁸

Alberdi and Sarmiento's vision of federalism is harder to establish, but both were frustrated unitarians at heart. Alberdi opted for a federal system based on the U.S. Constitution,¹⁴⁹ but only because geographical distances were too great¹⁵⁰ and local bases of power too strong to allow a unitary system of government.¹⁵¹ Alberdi also insisted that historically "unity is not the point of departure, [but] it is the final achievement of governments."¹⁵² The unitarians, who failed in their 1826 attempt to establish a unitary system of government, did not present "a bad principle, but a principle impractical in the country in the period and manner that they desired."¹⁵³ In Alberdi's view, they were not wrong, just too precocious.¹⁵⁴ Further, Alberdi would have been a Hamiltonian in the United States. He expected the nation to embark on great projects, and in his draft constitution indicated that Congress shall:

Provide for the prosperity, defense and security of the country; for the advancement and well-being of the Provinces, stimulating the progress of education and industry, immigration, the construction of railroads and navigable canals, the colonization of empty lands and those inhabited by Indians, the establishment of new industries, the importation of foreign capital, [and] the exploration of navigable rivers, through laws directed towards these ends and through the concession of temporary privileges and enticements for progress.¹⁵⁵

Alberdi does not desire to limit the powers of the federal government merely to temporarily permit a structure allowing provincial government.¹⁵⁶

In Argir¢polis, Sarmiento is less precise but little different. A federal system is necessary not because of its merits, but because the unitarians have failed politically.¹⁵⁷ Sarmiento called for Argentina to copy U.S. federalism,¹⁵⁸ but never suggested that any limits be placed on the federal government's powers and called for the federal government to contribute to the country's growth.¹⁵⁹ He certainly did not place much faith in the administrative capacity of the provinces. In other writings, he argued that most provinces in the interior of the country were too backward even to administer their own judicial systems.¹⁶⁰ Like Alberdi, he saw federalism as a political necessity given the provinces' aversion toward Buenos Aires. Although he appreciated the success of federalism in the United States, his basic political tendencies were unitarian and his conduct, once he began to hold posts in the federal government, was consistently unitarian.¹⁶¹

III. THE GENESIS OF THE ARGENTINE CONSTITUTION OF 1853/1860

In 1852, General Urquiza commanded an army of 30,000 men, the largest army hitherto assembled in Argentina.¹⁶² He saw the establishment of a national constitution as his fundamental task, but it took ten years to establish the national unity necessary to make the constitution a national reality. Two features would mark the process. First, Buenos Aires would move from occupation by Urquiza's army following the defeat of Rosas in 1852 to control of the national government in 1861. This change would set back the cause of federalism permanently. Second, although the Argentine Constitution increasingly would come to look like that of the United States, the effective rules of mutual security would become those of Alberdi's vision: ample individual liberties, but only limited federalism and little protection of political rights.

A. The Agreement of San Nicol s and the Constitutional

Convention of 1853

In September 1852, only seven months after defeating Rosas, General Urquiza lost control of the Province of Buenos Aires. Many of the exiled unitarians who had accompanied him rejected him after his victory for having once been Rosas' lieutenant, accusing him of being too similar to the federalist caudillo he replaced.¹⁶³ Sarmiento was perhaps the most vociferous in his condemnation.¹⁶⁴ Some of Urquiza's actions showed a certain sympathy towards Rosas. When Urquiza's army entered the city, he limited executions to a handful of high ranking officers and a regiment that revolted.¹⁶⁵ Urquiza refused to confiscate Rosas' property,¹⁶⁶ and with the help of the British Ambassador, Rosas himself escaped to Britain aboard a British naval vessel.¹⁶⁷ Further, in a move with enormous symbolic importance, Urquiza encouraged the population to wear a scarlet ribbon-the traditional symbol of Argentine federalism-emphasizing that despite opposing Rosas, he remained a federalist.¹⁶⁸

At the core of the liberal exiles' objections, however, was the concern that Urquiza represented caudillos from the interior provinces who sought to retain their own power as a condition of national unity, whereas they wished to control the nation themselves from Buenos Aires.¹⁶⁹ Further, and of concern not so much to the former exiles as to Buenos Aires' estancieros and trading interests, Urquiza actively sought a national constitution that would federalize the City of Buenos Aires as the nation's capital and would place its customs revenues in the hands of the national government.¹⁷⁰

In May 1852, Urquiza met with some of the leading political figures of the Province to test their reaction to his plan to federalize the City of Buenos Aires, a test balloon that met strong resistance.¹⁷¹ In June of that same year, he held a summit with governors and representatives from all the provinces that resulted in the Agreement of San Nicol s.¹⁷² This Agreement had two important aspects. First, it established Urquiza with the title of Provisional Director of the Argentine Confederation. Although the provinces previously had designated him as responsible for handling the nation's foreign affairs, as the temporary national Executive he was now granted the authority to quash any disorder.¹⁷³ Second, and more important, it provided for a Constitutional Convention that would draft a Constitution without any subsequent ratification by the provinces,¹⁷⁴ with decisions at the Convention made by majority vote,¹⁷⁵ and with all provinces at the Convention receiving equal representation.¹⁷⁶ As the largest province in the country and the one with the most to lose from a Constitutional Convention where each province had one vote, Buenos Aires' reaction was predictable. The treaty, which Urquiza's puppet Governor of the Province had signed,¹⁷⁷ was rejected vociferously by the provincial legislature and led to a successful provincial coup by anti-Urquiza forces.¹⁷⁸ Rather than enter into a new battle with Buenos Aires, however, Urquiza decided to continue with the plans for the Constitutional Convention, in the hope that Buenos Aires eventually might be coaxed into participating.¹⁷⁹ The Convention began in November 1852, without delegates from the Province of Buenos Aires, and in the midst of a war by proxy between Urquiza and the Province.¹⁸⁰ During most of the Convention, dissident rural Buenos Aires forces, with military support from Urquiza, engaged in a failed blockade of the City of Buenos Aires.¹⁸¹

The absence of the Province of Buenos Aires from the Constitutional Convention probably had minimal impact on the product that resulted. The 1853 text conflicted with Buenos Aires' interests only in its declaration of the City of Buenos Aires as a federal capital forming an independent federal district¹⁸² and its nationalization of customs revenues.¹⁸³ If anything, the absence of the Province of Buenos Aires motivated the delegates to adopt a more unitarian text than otherwise, so that the Confederation would be better able to stand up to Buenos Aires.¹⁸⁴ Roughly two-thirds of the text used the same approach as Alberdi's draft, and approximately two-thirds originated in the United States' Constitution-often by way of Alberdi.¹⁸⁵ With respect to a number of individual liberties, the 1853 Constitution looked to France's Declaration of the Rights of Man and Citizen of 1789.¹⁸⁶

Like the U.S. Constitution, the 1853 text provided for a federal system of government¹⁸⁷ with the power of the federal government divided between a President,¹⁸⁸ a Judiciary,¹⁸⁹ and a bicameral Congress,¹⁹⁰ with a Senate having equal representation for each province¹⁹¹ and a House of Deputies having representation based proportionately on population.¹⁹² Unlike the U.S. Constitution, there was no separation of Church and State,¹⁹³ the Executive enjoyed comparatively stronger powers¹⁹⁴ but sat for only a single consecutive six-year term,¹⁹⁵ and the federal government possessed broader authority vis-...-vis the states and explicit authorization to take over provincial governments in the case of unrest.¹⁹⁶ The 1853 Constitution's only draconian aspect was a grant of authority to the President to declare a state of siege to suspend most constitutional rights in the face of external attack or internal disorder, with the consent of the Senate required if it was in session,¹⁹⁷ and authority for the President to detain individuals who threaten public tranquility for up to ten days while waiting for a sitting Senate to declare a state of siege.¹⁹⁸ The list of individual liberties protected is more extensive than that of the U.S. Constitution and places particularly heavy emphasis on economic rights.¹⁹⁹ Under the framework, foreigners enjoyed equal rights²⁰⁰ and freedom from military service.²⁰¹

Most of the delegates to the Constitutional Convention of 1853 were liberals who shared the Alberdian vision and its admiration for the United States. Although Sarmiento and many other liberals who recently had returned from exile allied themselves with the interests of Buenos Aires, enough remained loyal to Urquiza to help him develop a progressive document. Alberdi missed the Convention, remaining in Chile as Urquiza's ambassador²⁰² and defending Urquiza against attacks by Sarmiento in the Chilean press.²⁰³ However, the two key draftsmen at the Convention, Juan Mar¡a Gutierrez and Jos‚ Benjam¡n Gorostiaga, were likewise indistinguishable from the liberals allied with Buenos Aires in their political values and fascination with the United States. Gutierrez, a novelist and critic, attended high school with Alberdi,²⁰⁴ actively participated in the activities of the Generation of '37 literary circle,²⁰⁵ and later traveled with Alberdi in exile in Europe.²⁰⁶ Gorostiaga was much younger than the members of the Generation of '37, but certainly read English²⁰⁷ and was influenced heavily by U.S. constitutional practice.²⁰⁸ Even Urquiza himself was captivated by the United States and its history.²⁰⁹ He looked to George Washington as his model²¹⁰ and appointed his eldest son the Ambassador to the United States.²¹¹ According to John Pendleton, the U.S. Charg‚ d' Affaires, he received privileged treatment compared with other diplomatic representatives because of Urquiza's eagerness to approximate the United States' model of government.²¹² He accompanied Urquiza to the summit of Governors at San Nicol s,²¹³ was given the first copy of the resulting agreement,²¹⁴ and later received one of the first copies of the 1853 Constitution.²¹⁵

The delegates to the Constitutional Convention of 1853 clearly were aware both that they were drafting a forward-looking document to create a system of government that had not existed previously in Argentina and that the United States, as a successful constitutional model, could provide authority for their endeavor. There was surprisingly little explicit discussion of Alberdi or his vision, given the extent to which the Drafting Committee and Convention relied on his draft. During the debate on freedom of religion, Guti‚rrez responded to conservative critics from an Alberdian perspective, arguing that it would be impossible to attract foreigners without allowing them to practice their religion.²¹⁶ His opponents, alarmed by this aspect of the Alberdi draft, indicated that the people of their provinces were distressed by Alberdi's emphasis on religious freedom²¹⁷ and that Catholic immigration could satisfy Argentina's needs.²¹⁸ Other references to Alberdi are minimal.²¹⁹ However, as even the above discussion of religious freedom and immigration indicates, the delegates to the Convention understood that a plan of action for the future was at stake, not the consolidation of an existing system. This focus on hopes for the future surfaced most clearly in a debate generated at the beginning of the Convention when Facundo Zuvir¡a, the President of the Convention, asserted that it was inappropriate to draft a Constitution with Buenos Aires still separated from the other provinces, with an uneducated populace unprepared for liberal government, and with the country facing constant hostilities both with Buenos Aires and within the provinces.²²⁰ Guti‚rrez, however, responded that "[t]he Constitution is the solution for these evils: it is the best element for order because it indicates to everyone their duties and their rights."²²¹ If one waits, "it is like waiting for the sick patient to recover before giving him medical treatment."²²² If the people lack republican customs, then it is necessary to "enroll them as soon as possible in the school of constitutional life."²²³ Another delegate then added that "the Constitution is a powerful tool for pacifying and instructing the People,"²²⁴ and a third delegate described the need to be forward-looking as a necessary difference between United States and Argentine constitutionalism:

Constitutions are sometimes the result and many other times the cause of the moral order of Nations.-In England, in the United States, the Constitution has been the result of [existing] order and good custom.-Among us, as in many other parts, the Constitution will be the cause, she will be the instrument which tempers our habits and which educates our Peoples.²²⁵

Zuvir¡a's proposal for delay did not receive significant support.²²⁶

In 1853, the invocation of the United States as authority was not nearly as pronounced as it would become in 1860, but it certainly was apparent. Thus, Gorostiaga introduced the Drafting Committee's draft to the Convention indicating that it was "cast in the mold of the Constitution of the United States, the only model of a true federation which exists in the world,"²²⁷ and Guti‚rrez repeated Gorostiaga's statement almost verbatim later in the same session.²²⁸ Once the Convention had approved the constitutional text, even Zuvir¡a, who had earlier insisted that the time was not yet ripe for a constitution, remarked that Argentine federalism "would be well understood if understood as that of the United States of the North, the only model of a federation which exists in the civilized world."²²⁹ Gorostiaga also cited U.S. practice on the critical issue of import and export duties, to justify these being placed in the hands of the federal government,²³⁰ and on two occasions delegates felt it necessary to explain variations between their proposals and the U.S. Constitution, because of specific differences in local conditions.²³¹ The number of references to the U.S. Constitution during the Convention of 1853 is insufficient to prove that it had a talismanic function, but the references constitute an important trend that would become marked in 1860.²³²

The Convention approved the new Constitution on May 1, 1853, and its approval ushered in both a new rivalry between Buenos Aires and the Confederation and a unique debate between Alberdi and Sarmiento regarding the nature of the Argentine Constitution.

B. Alberdi (and the Confederation) Versus Sarmiento (and Buenos Aires)

The Alberdi-Sarmiento constitutional debate, as opposed to mere scrapping over whether Urquiza was fit to govern the country, began when Sarmiento published Comentarios de la Constituci¢n de la Confederaci¢n Argentina (Commentaries on the Constitution of the Argentine Confederation) in September 1853.²³³ Although Comentarios displays Sarmiento's partisanship for the Province of Buenos Aires against the Confederation, it is less partisan than most of Sarmiento's writing. Sarmiento begins by congratulating the delegates at the Constitutional Convention of 1853 for their wise decision to follow the model of the U.S. Constitution,²³⁴ a surprising start, because he admits he boycotted the Convention due to his differences with Urquiza.²³⁵ Sarmiento's thesis is that the Argentine Constitution must be interpreted precisely in accordance with U.S. constitutional law.²³⁶ To show how this should be done, he offers extensive citations to The Federalist,²³⁷ to Joseph Story's Commentary on the Constitution of the United States,²³⁸ and to other works. Although Comentarios is not one of Sarmiento's most cited works, the book has the virtue of foreshadowing the approaches that the Argentine Supreme Court would come to take once it was established in 1863.

Comentarios can be read in two ways, and each echos later in the Argentine Supreme Court's style. One way to read Comentarios is as an excessively rational work. Noting the identical content of the preambles of the U.S. and Argentine Constitutions, Sarmiento argues that "it would be monstrous, if not to say ridiculous, to pretend that the same ideas, expressed with the same words, for the same ends, might produce different results in our Constitution or have a different meaning."²³⁹ Having appreciated the success of the United States, it was the intention of the legislators to assure the same results.²⁴⁰ Further, because the Constitutional Convention adopted a text based on that of the U.S. Constitution, he argues:

North American constitutional law, the doctrine of its statesmen, the declarations of its tribunals, the constant practice in analogous or identical points, are authority in the Argentine Republic, can be alleged in litigation, . . . and adopted as genuine interpretation of our own Constitution. The [Constitutional] Congress wanted the young Federation, inexpert in the practice of the form of government which it embraced, not to launch itself on a new path blindly and without a guide, and therefore gave it all the science and all the practice of the only federation which exists.²⁴¹

Just as a judge often will look to legislative intent for assistance in interpreting the law, anyone interpreting the Argentine Constitution may look to the United States, because the intent upon adopting a Constitution modeled after that of the United States was to copy its constitutional system in all relevant detail.²⁴² "North American commentary becomes Argentine commentary; North American practice, Argentine rules, and the decisions of its federal tribunals become antecedents and norms for our own."²⁴³ The interpreter is not expected to focus on Argentine reality, but to trust U.S. law to construct a new Argentine reality. One must understand every sentence, every period of the U.S. Constitution because it forms an interrelated whole.²⁴⁴ Sarmiento's approach is entirely consistent with an excessively rational approach toward law, that views law as independent of society and able to operate to shape behavior regardless of the situation of the society in which it operates. Law shapes society, society does not shape law.

A second way to view Comentarios, which is probably much closer to Sarmiento's mind-set, is that it turns to the U.S. Constitution and its interpreters because of their talismanic authority. It is obviously a big stretch for Sarmiento to assert that because the Argentine Constitution's Preamble tracks the language of that of the United States-"to form a more perfect Union, establish Justice, insure domestic Tranquility"²⁴⁵ etc.-it also adopts all of U.S. constitutional practice. Although Sarmiento leaves room for variation from U.S. practice when the Argentine Constitution specifically provides otherwise,²⁴⁶ U.S. constitutional law is more than an interpretive aid, it must be followed even when one does not understand its reasoning. At one point Sarmiento compares the U.S. Constitution to an herbal remedy, and its commentary to the package insert-if you follow the instructions you can be assured of a fine medicinal brew.²⁴⁷ The U.S. Constitution and its interpretation have produced enviable results and therefore a cure for Argentina's past failure.²⁴⁸ Its success has eliminated the possibility of error and taken away authority to interpret the same provisions differently. "What arbitrariness or error can be admitted in the execution of the same dispositions, conceived of in the same terms?"²⁴⁹ Sarmiento acknowledges that the reader could dismiss a book on constitutional law if it consisted merely of Sarmiento's own opinions, but "to inspire the necessary confidence" he turns to the authority of the U.S. commentators of the U.S. Constitution.²⁵⁰ The U.S. Constitution exercises authority not just because Sarmiento understands its reasoning and an objective reader will appreciate that reasoning, but because Sarmiento-and presumably his reader-believes in the U.S. Constitution as a source of authority for the proper way to organize a government. The U.S. Constitution is more than a source of new ideas, it is a talisman.

Sarmiento's fawning over the U.S. Constitution was too much for Alberdi. In Bases, he called for a forward-looking Constitution to transform Argentina and to create a modern society, but he did not simply copy the U.S. Constitution.²⁵¹ Alberdi viewed the Constitution of 1853 as an original work that took into account Argentina's political history in seeking to create a liberal society. His reply, in Estudios sobre la Constituci¢n Argentina de 1853 (Studies on the Argentine Constitution of 1853),²⁵² appeared only three months after Comentarios²⁵³ and begins with blast after blast at Sarmiento's use of the U.S. Constitution as authority. "To dissolve the unity or national integrity of the Argentine Republic, it is enough to apply the exact letter of the Constitution of the United States, converting into States entities which are and were provinces of a single state."²⁵⁴ "To falsify or bastardize the National Constitution of the Argentine Republic, one need only interpret it with the commentaries of the Constitution of the United States."²⁵⁵ Sarmiento's work is "anarchist"²⁵⁶ and Estudios must re-establish the understanding of the Argentine Constitution after the "disorder and anarchy" created by Comentarios.²⁵⁷

Estudios has no purpose other than to rebuff Sarmiento, and Alberdi does so by making two principal points. First, he asserts that Sarmiento is foolish if he thinks a foreign model can be imported and made to work ignoring all local history. Citing Alex de Tocqueville, he argues that every nation has a constitution consisting of its past governmental practices, and that this past inevitably carries forward into a new constitution.²⁵⁸ He notes that Joseph Story, the writer Sarmiento cites most often, devotes long sections of his treatise to American constitutional history before and after the Revolution before analyzing the Constitution itself.²⁵⁹ In Argentina's case, constitutional scholars must recognize its long experience with Spanish public law, where all power resided in the King. It is "the product of this legislation; and while we should change the ends, the means for a long time must be those under which we were educated."²⁶⁰ That difference in public law traditions between the United States and Argentina explains why Argentina needs a stronger Executive Branch than the United States,²⁶¹ and why Argentina needs greater control by the central government over the provinces.²⁶²

Second, Alberdi argues that Sarmiento misreads and distorts the Argentine Constitution of 1853 in thinking it is the same as the U.S. Constitution, because many provisions were written with Argentine history in mind.²⁶³ Sarmiento's ingenuous focus on the Preamble to insist that the constitutions are similar, ignores the fact that the Preamble recites only the ends of the Constitution, not the means by which it will achieve those ends.²⁶⁴ Argentina's lack of strong traditions of local government led the Convention of 1853 to require that each Province write its own constitution and to allow the national Congress to review the consistency of each provincial constitution with the national constitution.²⁶⁵ Such a provision would have been inappropriate in the United States with its tradition of state autonomy.²⁶⁶ Joseph Story interprets the U.S. Constitution as preventing the federal government from intervening in a state to restore order if the state's legislature is in place and has not requested federal intervention. The Argentine Constitution of 1853, given Argentina's past of provincial rebellions and disorder, allows federal intervention to put down sedition and to restore public order without a request from provincial authorities.²⁶⁷ Sarmiento can only claim that the two constitutions are the same by ignoring their text and the reasons for their differences.²⁶⁸

If Comentarios and Estudios are judged as a debate, then any modern day reader will judge Alberdi's Estudios the winner. The Argentine Constitution of 1853, while inspired by and modeled after the U.S. Constitution, varied from it substantially in many areas.²⁶⁹ Moreover, Sarmiento's insistence that a similar preamble means that the two constitutions must be interpreted alike is obviously ludicrous. But the tide at that time was moving against Alberdi. Sarmiento was noted, even among his contemporaries, for his exaggerated admiration of the United States.²⁷⁰ Yet he was able to accurately indicate that members of the Drafting Committee at the Constitutional Convention (specifically, Gorostiaga and Guti‚rrez) declared that the Argentine Constitution was an adaptation of the U.S. Constitution.²⁷¹ With even Urquiza, an old federalist, liking to compare himself with Washington,²⁷² Sarmiento's approach, not Alberdi's, is the approach that prevailed in the constitutional reforms that later followed.

Confrontations between the Confederation and Buenos Aires continued both during and after the Alberdi-Sarmiento debates. After an election in which he ran unopposed, General Urquiza assumed the presidency of the Argentine Confederation in March 1854. He then established a temporary national capital in Paran , the largest city in his home province of Entre R¡os.²⁷³ The next six years were a period of constant intrigues by Buenos Aires and the Confederation against each other, with each seeking to obtain foreign support and to de-stabilize the other.²⁷⁴ The Confederation, however, suffered from a shortage of cash. Despite Urquiza's efforts, almost all foreign shipping continued to go to Buenos Aires, a city with over 100,000 inhabitants and the means to pay for goods. None of the Confederation's river ports had more than 10,000 inhabitants, and all lacked the merchant houses and market needed to attract foreign shipping.²⁷⁵ Starting in 1856, the Confederation began to apply a two-tiered tariff system, requiring goods that entered its territory after passing through Buenos Aires to pay twice the tariff of goods entering directly, but this measure mainly increased smuggling and did little to improve Confederation finances.²⁷⁶

Nevertheless, the Confederation continued to muster superior military forces. In October 1859, armies from the two sides again met in battle and Urquiza won.²⁷⁷ The Province of Buenos Aires was not left prostrate, because much of its army was able to retreat to the City of Buenos Aires, but loss of the battle did lead to the resignation of the hard line anti-Confederation faction that had dominated the government of Buenos Aires, and led to the opening of negotiations.²⁷⁸ Urquiza conditioned peace on the incorporation of the Province of Buenos Aires into the Confederation, and Buenos Aires agreed, but with conditions. Under the resulting Pact of San Jos‚ de Flores,²⁷⁹ signed on November 11, 1859, the Province of Buenos Aires agreed to incorporate itself fully into the Confederation²⁸⁰ and to turn over its customs operations,²⁸¹ but it was also agreed that Buenos Aires would retain all existing provincial institutions,²⁸² would have its entire provincial budget paid for by the Confederation for the next five years (to compensate for the lost customs revenues),²⁸³ and could block the loss or division of any of its territory without the consent of its legislature (thereby blocking any attempt to separate the City of Buenos Aires from the Province as the federal capital).²⁸⁴ Most importantly, however, Buenos Aires retained the right to review the Constitution before accepting it.²⁸⁵ Within twenty days of signing the Pact, Buenos Aires was obligated to convoke a convention to recommend constitutional changes,²⁸⁶ and in the event that changes were recommended, the Confederation would hold a new Constitutional Convention to which-unlike the Convention of 1853-each province would send delegates in proportion to its population.²⁸⁷

C. The Constitutional Changes of 1860

Remarkably, events proceeded almost exactly as planned. The Province of Buenos Aires held a Convention, which ran from January through May 1860, to recommend changes to the Constitution.²⁸⁸ That Convention's debates and reports were more extensive than those of the Constitutional Convention of 1853.²⁸⁹ The Convention was dominated by Bartolom‚ Mitre and his allies.²⁹⁰ Mitre had been part of the group of liberal exiles who initially fought at Urquiza's side against Rosas before rejecting him after the victory as a federalist caudillo.²⁹¹ He led a "nationalist" wing of Buenos Aires politics which, like Urquiza, desired a national government, but unlike Urquiza, wanted one that Buenos Aires could use to control the country.²⁹² During the course of the Convention he was successful in a bid for the governorship of Buenos Aires, and took office on May 2, 1860, just as the Convention was coming to a close.²⁹³

Most of the work of the Buenos Aires Convention was done by a Committee to Examine the Federal Constitution (hereinafter "Examining Committee") of seven persons chosen by the Convention. Mitre presided over the Examining Committee and he and his allies held five votes.²⁹⁴ Sarmiento and Dalmacio V‚lez S rsfield, Buenos Aires' most prominent jurist, were the most active members of the Examining Committee in defending its work on the floor of the Convention. Both supported the Mitre line of sincerely seeking a national government and avoiding changes unacceptable to the Confederation.²⁹⁵ Mitre and his allies won all votes at the Convention except for an amendment from the floor from more parochial forces that placed export tariffs in provincial hands starting in 1866, the end of the period under which the federal government was obligated under the Pact of San Jos‚ de Flores to pay for the Provincial budget.²⁹⁶

Perhaps even more interesting than what the delegates at the Convention actually did is the manner in which they used the U.S. Constitution to justify their actions. The Report of the Examining Committee reads as though it were Sarmiento's rebuttal to Alberdi's Estudios, though Sarmiento would state on the Convention floor that Mitre was the author.²⁹⁷ According to the Committee, its criteria "in formulating its reforms has been the science and the experience of the analogous or similar Constitution which is recognized as most perfect,-that of the United States-because it is the most applicable and is the standard of the Constitution of the Confederation."²⁹⁸ Moreover, along with the U.S. Constitution, the Committee used U.S. legislation and constitutional doctrine, without which the Argentine Constitution would "lack meaning."²⁹⁹

The Committee then justified its approach in natural law terms. It admitted that "every People has its own way of being," with its own customs, history, and unwritten institutions, and that no nation can be organized without recognizing these features.³⁰⁰ However, it also insisted that constitutional principles based on reason took precedence over the actual situation of society.³⁰¹ "[R]ather than capitulating before the facts" the legislator must recognize that "just as custom may influence the law, law may influence custom."³⁰² "Free peoples share a political morality and certain fixed principles whose essence cannot be modified."³⁰³ But then the Committee went a step further and equated the U.S. Constitution with natural law! The Committee concluded that:

Given that up to the present the democratic government of the United States has been the ultimate result of human logic, because its Constitution is the only one that has been made by the people and for the people, without taking into account any bastard interest, without compromising with any illegitimate element, it would have been as much presumption as ignorance to pretend to innovate in constitutional law, casting aside the lessons given by the experience, the truths, accepted by the conscience of humankind.³⁰⁴

The United States comes closer to eternal constitutional principles than anything Argentina might write on its own. Particularly in the area of federalism, where the United States has been unique, Argentina has "no right to amend or mutilate the laws of that nation."³⁰⁵ Moreover, according to the Committee, nothing is lost in ignoring Argentine practices because there are none. "The Argentine Republic does not have a single surviving historical antecedent in the field of national public law."³⁰⁶ Argentine public law dates only from the Constitution of 1853.³⁰⁷

The Examining Committee's statements offer a powerful indication of the thinking of Argentina's political elite, since its composition included Mitre and Sarmiento-both of whom later would become President of the Nation-as well as Velez Sarsfield, who would become Mitre's Secretary of the Treasury and Sarmiento's Secretary of the Interior, and who later would write the Civil Code. This elite maintained that the U.S. Constitution offered a superior form of government to anything Argentina could possibly design. An Argentine creation could be questioned, but not the U.S. Constitution. V‚lez S rsfield introduced the Examining Committee's work with the suggestion that the Convention of 1853 took the U.S. Constitution as a model, "but . . . did not respect this sacred text, and an ignorant hand made deletions or alterations of great importance, pretending to improve it."³⁰⁸ He asserted that the Commission had "done nothing more than restore the constitutional law of the United States in the part that was changed."³⁰⁹ According to V‚lez S rsfield, Argentines were ignorant compared to the drafters of the U.S. Constitution. The failure of the delegates at the Convention of 1853 to incorporate the ninth Amendment of the U.S. Constitution into their document demonstrated only that "those who deleted it knew less than those who made that great Constitution."³¹⁰ Acceptance of language from the U.S. Constitution rose to a matter of faith during the debate regarding the jurisdiction of the Argentine federal courts. Sarmiento admitted that he was unable to answer several questions about the proposed text that were put to him on the Convention floor, but asserted that it was sufficient "to know that it is literally copied from the Constitution of the United States, and [because it is an exact copy,] if there is anything which is clear and luminous, it is this part which seems nebulous and obscure to us right now."³¹¹ Sarmiento further insisted, as he had in Comentarios,³¹² that U.S. constitutional case law should be binding on Argentine courts.³¹³ He believed that the Argentine Constitution should track the language of the U.S. Constitution as closely as possible "not because it is more or less applicable to us, but because we will find ourselves with a case law to which no one will be permitted to say, 'this is my opinion'."³¹⁴

The U.S. Constitution became the currency of debate. Mitre party opponents raised some minor opposition to the glorification of the U.S. Constitution, but even they sought to cite its text and U.S. practice, though often in error. Thus one delegate sarcastically criticized Sarmiento's admission that he did not understand the jurisdiction of the federal courts in the United States,³¹⁵ but later tried to support his own proposal that the provinces retain authority to impose export tariffs by incorrectly asserting that the states in the United States retained this power.³¹⁶ Another delegate complained about excessive praise of the U.S. Constitution and then subsequently cited it, erroneously, for the proposition that surplus provincial funds revert to the federal treasury.³¹⁷ Perhaps most absurd, however, was a proposed amendment that required Argentina's inhabitants to show the Catholic Church "the highest respect and the most profound veneration,"³¹⁸ that was defended by a conservative delegate with extensive discussion of how the religious origins of America's colonization were responsible for its success.³¹⁹ The amendment was rejected,³²⁰ but only after extensive debate between Sarmiento and conservative delegates regarding the role of religion in the United States.³²¹ Such difficulties illustrate that the liberals' invocation of the U.S. Constitution was a double-edged sword.

Notwithstanding the use of the U.S. Constitution as a talisman, the constitutional changes proposed by the Convention were entirely consistent with the needs of the Buenos Aires political elite. Although U.S. practice often was cited as a justification, the final Argentine Constitution was largely the product of concrete political interests. The most significant constitutional changes generally fell within three overlapping categories: (1) provisions designed to protect specific interests of the Province of Buenos Aires not common to all provinces; (2) provisions taken from U.S. practice to augment the federal nature of the Argentine Constitution; and (3) provisions inspired by U.S. practice designed to limit the power of government or to increase its responsiveness.

The amendments proposed by the Buenos Aires Convention to protect Buenos Aires' interests were the most predictable. Buenos Aires needed to protect its economy, and as a result the Convention provided: (1) that no port could be favored over any other, meaning that customs duties had to be kept uniform across the entire nation³²² (a concern prompted by differential tariffs the Confederation had used to increase its own commerce at the expense of Buenos Aires);³²³ (2) that the federal government could not eliminate the customs facilities of existing ports of entry³²⁴ (thereby eliminating Buenos Aires' ability to continue to act as an international port);³²⁵ (3) that the provinces would administer export tariffs after 1866³²⁶ (when Buenos Aires would no longer have the right to have its budget paid for by the federal government, as provided in the Pact of San Jos‚ de Flores);³²⁷ (4) that customs duties could be paid in the currency of the province where the customs house was located³²⁸ (to create a demand for Buenos Aires paper money);³²⁹ and (5) that the Province of Buenos Aires would only be obligated to comply with international treaties entered into after the Pact of San Jos‚ de Flores³³⁰ (to put an end to complaints that in drumming up foreign support against the Province of Buenos Aires, the Confederation had improperly agreed to demands by Spain that it exempt the children of Spanish citizens born in Argentina from military service and other obligations of Argentine citizens).³³¹ There were also several provisions that were authorized by the Pact of San Jos‚ de Flores: (1) that the Capital could not be established in a province without its consent;³³² (2) that the City of Buenos Aires' deputies to Congress would be selected with those of the province, treating the City of Buenos Aires as part of the province and not as a separate district as the Federal Capital as provided in 1853;³³³ and (3) that the provinces would retain all authority conferred by pre-existing pacts,³³⁴ preventing the federalization of provincial institutions such as the Bank of the Province of Buenos Aires.³³⁵

The proposals to increase the federal nature of the Argentine Constitution are more surprising, because the liberals allied with Mitre had previously usually taken a unitarian position, and Mitre and his allies would return to that perspective during his presidency.³³⁶ However with Urquiza's recent military victory over Buenos Aires, the liberals became enthusiastic federalists for a few months, since they worried that Urquiza would control the national government, and not themselves.³³⁷ They justified virtually all of their federalist proposals in whole or in part on U.S. constitutional practice.³³⁸ Thus relying on U.S. practice: (1) The Convention eliminated a provision in the 1853 Constitution giving Congress the right to examine the constitutionality of provincial constitutions,³³⁹ because the courts could judge the constitutionality of any norm.³⁴⁰ (2) The Convention eliminated a requirement that the provinces provide free public education,³⁴¹ in deference to the provinces' right to develop their institutions as they saw fit.³⁴² (3) The Convention tracked the U.S. Constitution to narrow the language dealing with federal interventions,³⁴³ allowing the federal government to take over the government of a province only if necessary to "guarantee the Republican form of government, repel a foreign invasion, or establish order if so requested by provincial authorities."³⁴⁴ (4) The Convention required that senators and deputies be natives of the province that they represent or residents of the province for at least three years.³⁴⁵ (5) The Convention established that federal officials could not hold provincial positions simultaneously and could not vote in provincial elections if they were not normally residents of the province,³⁴⁶ thus eliminating the risk that officials sent by the federal government might dominate provincial government.³⁴⁷ (6) The Convention provided that the existing constitutional provision authorizing Congress to write civil, commercial, criminal and mining codes would nevertheless leave jurisdiction over these areas and family law matters to provincial courts.³⁴⁸ (7) The Convention eliminated federal jurisdiction over conflicts between branches of a provincial government.³⁴⁹ (8) The Convention barred the federal government from passing laws that would restrict the freedom of the press or establish federal jurisdiction over the press³⁵⁰ (out of concern that the federal government could smother local expression).³⁵¹ (9) The Convention eliminated the authority of Congress to impeach provincial governors.³⁵²

Urquiza's control of the federal government not only motivated Mitre and his allies to augment Argentine federalism, but also encouraged them to introduce provisions limiting the power of government and preventing its abuse. Facing an adversary in power, their arguments were consistent with the liberal postures that always had been part of their program. Here as well, the delegates defended proposed changes on the grounds that the Constitution needed to be adapted to match U.S. practice, but they also discussed the rationale behind U.S. practice and its applicability in Argentina. Thus: (1) Sarmiento obtained the incorporation of an article protecting unenumerated rights enjoyed by the people,³⁵³ explaining that, as provided in the Ninth Amendment to the U.S. Constitution, it would protect the multitude of rights inherent in natural law too numerous to list in a constitution.³⁵⁴ (2) The Drafting Committee expanded the grounds for congressional impeachment and removal of Executive Branch officers and judges from only including serious crimes to include "bad conduct,"³⁵⁵ because the people required greater control over the acts of officials and the U.S. Constitution provided for impeachment for "misdemeanors."³⁵⁶ (3) The Convention cited U.S. practice to provide that officers named to posts during a Senate recess would lose their posts automatically if not confirmed during the next legislative session.³⁵⁷ (4) Sarmiento obtained changes to the provisions governing the Supreme Court to make it more flexible, as in the United States, so that its judges might be made to ride a circuit and thereby brought closer to the people.³⁵⁸ The Convention also made several liberal changes consistent with U.S. practice without specific discussion of the United States, such as: (1) modifying the general prohibition of slavery to declare the freedom of all slaves from the moment they set foot in Argentine territory;³⁵⁹ (2) eliminating the president's authority to detain persons threatening public order temporarily, unless he declares a state of siege;³⁶⁰ and (3) limiting the president's authority to delegate to his ministers³⁶¹-to prevent the exercise of excessive authority by individuals lacking accountability.³⁶²

Regardless of their pledges of fidelity to the U.S. model, the delegates to the Buenos Aires Convention did not pursue changes that were inconsistent with the interests of Buenos Aires and its governing liberal elite. Many differences with the U.S. model remained, particularly with respect to the authority of the president.³⁶³ The impression that the Convention used the U.S. Constitution as its model, however, helped confer legitimacy on its work.

No significant disagreements or discussions occurred in September 1860, at the National Constitutional Convention held to review the Buenos Aires Convention's proposals and virtually all of its proposals were adopted.³⁶⁴ Rather than allowing the provinces to apply export tariffs after 1866, the delegates agreed to eliminate the authority of both the federal government and the provinces to apply export tariffs after that date,³⁶⁵ a change sought by Buenos Aires estancieros.³⁶⁶ They also agreed to eliminate federal jurisdiction over disputes between provincial governments and their citizens, maintaining it only for disputes between a province and citizens of another province,³⁶⁷ and agreed to lower the proposed provincial residency requirement to become a member of Congress from three years to two.³⁶⁸ No one mentioned the illegitimacy of the entire reform process in the face of an article in the 1853 Constitution which barred any amendment for ten years.³⁶⁹ The Buenos Aires Convention amended this prohibition in its proposed reforms, so as to eliminate the issue, although eliminating the article obviously does not mean that it was not violated.³⁷⁰ The proposed reforms contained nothing to which the Confederation could object. The Treaty of San Nicol s already had resolved the key issue of the nationalization of the Buenos Aires Customs House and payments to Buenos Aires to make up for the lost revenues. Further, provincial caudillos were interested primarily in maintaining their autonomy, and the changes proposed by Buenos Aires only increased the federalist character of the Constitution. No one objected to proposals that slightly weakened the president's powers, because General Urquiza had finished his six-year term as president and had turned the government over to a weaker successor, Santiago Derqui.³⁷¹ All of the principal figures present at the Convention, Gorostiaga, Guti‚rrez, Sarmiento, and V‚lez S rsfield, shared the Alberdian vision, and all made comments at the Constitutional Convention of 1853 or at the 1860 Buenos Aires Convention invoking the U.S. model.

The unity of 1860 disintegrated rapidly in 1861. Buenos Aires was unwilling to give up its sovereignty to a national entity that its elite did not control. Buenos Aires' deputies were never incorporated into the National Congress because Buenos Aires insisted on holding its elections under a provincial electoral law that permitted its governor, Bart¢lome Mitre, to retain control, rather than a national electoral law as required by the Constitution.³⁷² Further, although President Derqui initially brought prominent Buenos Aires figures into his government to use as a counterweight to General Urquiza,³⁷³ who remained the commander of the army and retained the support of many provincial governors,³⁷⁴ the Buenos Aires elite continued to engage in conspiracies and develop alliances in the interior provinces to try to gradually win control of the country.³⁷⁵ Ultimately, a battle for control of the Province of C¢rdoba ended Buenos Aires' integration into the Confederation,³⁷⁶ and in June 1861, Buenos Aires stopped sending funds from its Customs House to the national government.³⁷⁷ In September 1861, Buenos Aires forces under Mitre again met the Confederation army under Urquiza, but this time the battle was fought to a draw.³⁷⁸ Urquiza then withdrew to his home province of Entre R¡os with those forces that were loyal directly to him, and reached an understanding with Mitre that he would respect Entre R¡os' provincial autonomy. In return, he then allowed the national government to fall into Mitre's hands.³⁷⁹

Mitre, after taking de facto control of the national government, re-established constitutional authority on the basis of the Constitutions of 1853 and 1860, and, in 1862 became the first president chosen on the basis of a national election including Buenos Aires. During Mitre's term of office and that of Sarmiento, his successor, governors/caudillos led significant revolts under the banner of federalism, but they always were overthrown by national government forces.³⁸⁰ Moreover, although initially the City of Buenos Aires became the seat of the federal government but remained under the jurisdiction of the Province of Buenos Aires,³⁸¹ ultimately even the Province of Buenos Aires was forced to submit to national authorities. After a short but bloody military confrontation in 1880, the Province ceded control of Buenos Aires to the federal government, and by constitutional amendment the City became a special federal district governed directly by national authorities.³⁸² Mitre's 1861 victory and the final establishment of Buenos Aires as the Federal Capital ushered in a remarkable era of stability compared to the chaos that reigned during the period following independence, and led to the entrenchment of a number of long-lived rules of mutual security.

IV. THE "REAL" ARGENTINE CONSTITUTION: CIVIL LIBERTIES WITHOUT POLITICAL RIGHTS

To find the real Argentine Constitution from 1862 until shortly before World War I, one needs to look to the Alberdian vision in addition to the constitutional text. Argentina in the late nineteenth and early twentieth centuries initially offered ample civil liberties combined with little political participation, as one would expect under the Alberdian vision. Assuming that an important part of constutitionalism involves the establishment of rules that provide sufficient security to all politically significant groups in society so that they join the system rather than engage in armed revolt, Argentine constitutionalism was only a partial success. The entrenchment of civil liberties and property rights, however, ultimately gave the elite the security it needed to expand political participation as well.

In 1910, Joaqu¡n V. Gonz lez, cabinet minister in two different (fraudulently elected) administrations and one of the country's leading legal scholars,³⁸³ aptly described Argentina as possessing "two completely distinct ways of life,"³⁸⁴ a liberal economic and social order, and a corrupt political order.³⁸⁵ From Gonzalez's perspective, the country's success was due to its economic structure,³⁸⁶ and its adoption of many progressive initiatives, including: relaxed immigration standards; legislation assuring protection in personal affairs and work; and protection of "the fundamental liberties which do not affect the political mechanism of the country."³⁸⁷

Economic liberty and social mobility lay at the heart of the liberal economic order. The phrase "the business of America is business"³⁸⁸ could have been applied equally to Argentina. Foreign visitors described Argentina as "the United States of the Southern Hemisphere,"³⁸⁹ a place where people came to work and became rich. Money, not bloodline, counted in the social order, and it was a place where many penniless immigrants made enormous fortunes.³⁹⁰ Even the sharpest critics of the political elite who dominated the political life of the country admitted that it was an open caste.³⁹¹ Most commerce and industry was in the hands of foreign immigrants.³⁹² Although creole estancieros made fortunes from the rising value of their lands,³⁹³ many immigrants joined them at the elite Jockey Club and at the Sociedad Rural Argentina, the organization that brought the largest landowners together.³⁹⁴ Laissez-faire capitalism governed, and the corresponding constitutional provisions protecting property and commerce from state control were respected.³⁹⁵

This protection of civil liberties inevitably influenced the political process. For example, the Constitution barred the death penalty for political crimes and required due process of law for criminal defendants.³⁹⁶ Within a few years of the Constitution's adoption, earlier practice, in which rebel leaders ended their careers with their heads displayed on stakes, was relegated to historical folklore. In 1863, Angel Vicente Pe¤aloza, a popular caudillo in La Rioja, was executed by an army officer without trial after leading a revolt that President Mitre had charged Sarmiento with putting down.³⁹⁷ But the times had changed sufficiently so that Sarmiento found himself sharply criticized both for the severity with which he put down the revolt and for the execution, which he claimed not to have authorized.³⁹⁸ No official execution for an act of political rebellion would occur from the 1860s until 1955.³⁹⁹ The change in attitude toward executions is particularly striking given uprisings in the 1860s and 1870s of federalist caudillos, frequent provincial disturbances, and revolts with national political significance in 1874, 1880, 1890, 1893, and 1905. Although heated situations abounded, the government accepted the need for tolerance. In most instances rebels received an amnesty or pardon within a few years of their defeat and often returned to full participation in political life.⁴⁰⁰ Even active military officers who revolted, who conceivably faced the death penalty under the Code of Military Justice, suffered lesser punishments and sometimes retained or later regained their ranks.⁴⁰¹ Limits on repression following an armed revolt became part of the political system.

There is little doubt that competition for political power was primitive and corrupt. "Representative" government in Argentina had two essential characteristics: (1) provincial governors controlled their provinces, not only controlling access to provincial government employment and exercising influence over the state legislature, but also choosing the membership of the legislature and determining electoral outcomes; and (2) the president controlled the governors. Jos‚ Nicol s Matienzo in El gobierno representativo federal en la Rep£blica Argentina, a classic political analysis first published in 1910, describes Argentine governors as exercising the "mando"-the power of command, over all political activity in their province, and as maintaining control through a Tammany Hall style combination of electoral fraud and patronage.⁴⁰² The governor controlled most elections in the province, both for provincial and national offices, through links that he in turn developed with local political bosses and officials.⁴⁰³ Voters were rounded up and taken to the polls in groups for better control.⁴⁰⁴ Electoral laws required voters to choose among closed lists of candidates, each list appearing on a separate voting ballot,⁴⁰⁵ and the local political boss then would ensure that voters were given the "right" ballot before entering the polls.⁴⁰⁶ If the governor enjoyed the loyalty of the local chief of police, the mayor, the tax collector, and the justice of the peace, then he could count on that district following his orders on election day.⁴⁰⁷ Each of those officials, who usually owed their loyalties to the local political boss, could use the powers of their office to the detriment of recalcitrant voters or to the benefit of cooperative ones.⁴⁰⁸ Voter rolls were a farce, excluding many eligible voters and including the names of nonexistent ones.⁴⁰⁹ Double voting was common, as were payments for votes.⁴¹⁰ In the rare event that the opposition won a significant number of seats in the provincial legislature, staggered legislative terms, which were common in most provincial legislatures, permitted continuing legislators to vote to reject the credentials of incoming opposition members.⁴¹¹ Though a pre-eminent figure in the political establishment, even Joaqu¡n V. Gonz lez admitted that "suffrage in the Republic has only been an ideal aspiration of the revolution of ideas, a written promise in the constitutional documents of the nation and provinces" but never a reality.⁴¹²

However, Argentina was not a repressive place. A. Stuart Pennington, an Englishman who spent more than twenty years in Argentina,⁴¹³ described Argentina in 1910 as a place where, unlike England, a man was free to do what he wanted.

Another thing which soon reconciles a stranger to residence in Argentina is the freedom which is so conspicuous an element in everyday life there. . . . [U]nless a man be absolutely unreasonable, he finds that he can do pretty much what he likes without anyone interfering with him. . . . Where at home he has been expected to go to church regularly, or with something approaching regularity, he finds that, in Argentina, no one troubles as to what he does with his spare time, so long as he turns up to business at the right hour.⁴¹⁴

This freedom to do what one wanted certainly included freedom of worship, freedom of the press, and freedom of association. The restrictions on religious freedom of the colonial period disappeared.⁴¹⁵ Furthermore, although the secularism of Argentina's presidents in the 1880s and early 1890s made relations between Church and State a tumultuous issue and led to rupture of diplomatic relations with the Vatican,⁴¹⁶ Georges Clemenceau, writing in 1911 after a visit to Argentina, commented that even the Church had accepted a situation close to separation of Church and State.⁴¹⁷ In examining freedom of the press, the contrast between Argentina before 1853 and Argentina after 1860 is equally dramatic. It is difficult to find a foreigner writing about Argentina during the late nineteenth and early twentieth century who does not comment on the variety, freedom, and power of the press.⁴¹⁸ La Prensa had an international network of journalists ideally placed for a country that considered itself closer to London, Paris, and New York than to the rest of Latin America. La Naci¢n, a newspaper edited by former President Mitre, played a major role in encouraging the revolt of 1890, and along with the Socialist newspaper La Vanguardia, was almost always conspicuous in its opposition to the government in power.⁴¹⁹ Freedom of association was extensive. The Radical Party participated in rebellions against the government in 1890, 1893, and 1905, but never faced limits on its activities for very long once a rebellion was over. The Socialist Party-with newspapers, a deputy in Congress, and workers' co-ops-was well established by the early 1900s.⁴²⁰ Although until 1912 the political system may have depended upon fraud, only anarchists were subject to serious political persecution.⁴²¹

Furthermore, the government realized several constitutional objectives requiring government action rather than mere forbearance. Although it does not create a right to an education, the Argentine Constitution assigns responsibility for education to both the federal and provincial governments.⁴²² Education figured prominently in Alberdi's social objectives⁴²³ and was vital to Sarmiento.⁴²⁴ Due in part to enormous efforts by Sarmiento and U.S. school teachers that he imported into Argentina during his presidency (1868-1874),⁴²⁵ Argentina developed an extensive network of primary and secondary schools that received favorable comment from foreign observers,⁴²⁶ although primary education remained less than universal.⁴²⁷ Illiteracy dropped from 78% in 1869 to 35% in 1914 among individuals over the age of fourteen,⁴²⁸ and after 1884, public education became strictly secular, with religious instruction permitted only after normal class hours.⁴²⁹ The government also respected a constitutional requirement that it maintain healthy and clean prisons designed for security rather than for punishment.⁴³⁰ In 1911, Georges Clemenceau commented that the federal penitentiary in Buenos Aires offered state-of-the-art facilities and the most advanced program for rehabilitation of prisoners anywhere in the world,⁴³¹ an observation shared by other foreign observers.⁴³² He also observed that the city's insane asylum put those of Paris to shame.⁴³³

It would be wrong to paint Argentina as a paradise in the protection of individual rights. Individual rights probably were not as well protected in some interior provinces as in the cities, and foreigners complained about lack of judicial protection from provincial judges beholden to local caudillos.⁴³⁴ Further, anyone suspected of anarchist sympathies was subject to political persecution, particularly starting in 1910, after a bomb exploded in the Col¢n Theatre.⁴³⁵ Women were seriously discriminated against in civil legislation,⁴³⁶ and the combination of lack of opportunities for women and large numbers of single male immigrants led to the development of extensive prostitution and white slavery.⁴³⁷ Workers' strikes were frequently repressed,⁴³⁸ and declarations of a state of siege often undercut rights. During the operation of a nationwide state of siege-approximately 4.5% of the time between 1870 and 1930⁴³⁹-the government censored and closed newspapers and detained rebellion-prone elements of the opposition. But even with the states of siege, which were concentrated largely in the early 1870s and early 1890s, the situation compared favorably with the United States and many Western European countries during the same period. Moreover, the states of siege, declared on twenty separate occasions between 1862 and 1930, rarely lasted more than two or three months and were directed at quelling some immediate disturbance.⁴⁴⁰ Rights other than habeas corpus and freedom of the press were hardly affected, and even habeas corpus and the press often continued with little change when the individuals and newspapers involved were not connected to the disturbances motivating the state of siege.⁴⁴¹

Not only did the government follow the Alberdian vision, but it produced the desired results. Argentina received more than 600,000 permanent immigrants from 1881 to 1890, and after a reduction during a depression in the 1890s, the flow reached over 1.1 million during the years from 1901 to 1910.⁴⁴² By 1895, foreign-born individuals represented 34% of the population of Argentina⁴⁴³ and more than half the population of greater Buenos Aires.⁴⁴⁴ In 1914, the percentage of the population born abroad peaked at 42.7%.⁴⁴⁵ Total population doubled every twenty years, growing from 1.7 million in 1869 to almost 4 million in 1895 and nearly 7.9 million in 1914.⁴⁴⁶ Although agriculture provided the engine of the economy,⁴⁴⁷ land was expensive and land colonization schemes were limited,⁴⁴⁸ so most immigrants eventually settled in urban areas.⁴⁴⁹ Argentina attracted enormous amounts of foreign investment, particularly from Great Britain,⁴⁵⁰ and by 1914 had 31,000 kilometers of mainly British owned railroads to facilitate its agricultural exports.⁴⁵¹ As Carlos Waisman explains in his book, Reversal of Development in Argentina, comparisons between Argentina and other Latin American countries are less appropriate than comparison to other lands of recent settlement like the United States, Canada, and Australia.⁴⁵² However, it was the Alberdian vision, which the country's leadership followed enthusiastically starting in the 1860s, that created a political climate hospitable to development of Argentina's natural endowments. Argentina's elite chose the model of California as it grew under the United States rather than California as it stagnated under Mexico. Electoral fraud prevailed, and the president imposed his will on the provinces. However, free elections were never part of the Alberdian vision, and federalism was viewed more as a temporary political necessity than as a practice offering tangible benefits to the development process.⁴⁵³ Perhaps to avoid military service, and perhaps because corrupt elections made citizenship less meaningful, fewer than five percent of immigrants became citizens between 1850 and 1930.⁴⁵⁴ Nevertheless, citizenship was unnecessary for immigrants to achieve their principal aim of making money. The individual liberties protected under the vision attracted the needed immigrants, drew in foreign capital, and sparked the necessary domestic initiative for a long period of rapid growth.⁴⁵⁵

Although the Constitution of 1853/1860 was the product of liberal intellectuals, the Buenos Aires elite, and caudillos from the interior, the Constitution and the rules actually established by the Alberdian vision enjoyed wide acceptance among most active participants in Argentine politics until the 1930s. When the liberals in power passed effective electoral reform laws in 1911 and 1912,⁴⁵⁶ and when they handed over the Presidency to Radical Party leader Hip¢lito Yrigoyen in 1916, they knew that their opponents accepted the constitutional rules underlying the economic system. The Radical Party's primary agenda was free suffrage, and its revolts in 1893 and 1905 invoked the Constitution as a means to support their claims for free suffrage. During both revolts, and in meetings held with President Jos‚ Figueroa Alcorta in 1907 and 1908, the Radical Party questioned the legitimacy of the government, because it depended on electoral fraud in violation of the Constitution.⁴⁵⁷ They did not, however, question the Constitution itself.⁴⁵⁸ Not only did most of the Radical Party membership come from the middle class, which agreed with the Constitution's protection of property and commerce, but many of its leaders were landowners, sharing the same agricultural-export orientation as the elite who governed the country until 1916.⁴⁵⁹ Moreover, the Radical Party leadership generally did not betray the elite's confidence that the Radicals would respect their economic interests. During the Radical Party's years in power, first under Hip¢lito Yrigoyen (1916-1922), then under Marcelo T. de Alvear (1922-1928), and again under Yrigoyen (1928-1930), the state became slightly more interventionist, but it never seriously threatened the elite.⁴⁶⁰ Examining Argentina generally during the time from Mitre's election to the Presidency in 1862 through the coup which displaced Hip¢lito Yrigoyen in 1930, Argentina generally lived in accordance with the Alberdian vision.

V. THE ROLE OF THE TALISMAN

The Alberdian vision, although clearly summarizing the philosophy that guided the Argentine elite, was hardly ever cited for constitutional authority, perhaps because Alberdi spent most of the rest of his life as a political dissident in self-imposed exile in Europe after Mitre defeated the Confederation in 1861. Alberdi's work is generally only cited in Argentine Supreme Court decisions and legislative debates starting at the turn of the twentieth century.⁴⁶¹ By contrast, cites to U.S. court decisions, treatises and legislative practices formed the staple of constitutional debate. Writing to the U.S. Secretary of State in 1891, the U.S. Ambassador to Argentina commented that "[n]o leading lawyer here is without his complete set of our U.S. Supreme Court reports."⁴⁶² Even as late as 1900, Argentina published more translations and adaptations of works by U.S. authors writing on the U.S. Constitution than Argentine treatises on the Argentine Constitution.⁴⁶³ Furthermore, usually only the U.S. works were cited by the Supreme Court.⁴⁶⁴ The Alberdian vision as expressed in Bases summed up what the Argentine elite wanted, but it was not a source of authority; the U.S. Constitution was.

The use of the U.S. Constitution as authority is illustrated in many nineteenth century legislative debates. For example, one of the toughest political issues in the 1860s and 1870s was the extent of the federal government's authority within the City of Buenos Aires. One of the sharpest debates arose regarding the construction of a new port for the City of Buenos Aires, by far its most important engineering project. Initially the federal government under President Sarmiento sought to undertake the entire project without any participation by the province, which raised a host of constitutional issues regarding which government entity possessed the authority to embark on the project and under what conditions. Former President Mitre, leading the Senate debate for those opposed to the project, sounded like Sarmiento in his invocation of the U.S. Constitution, arguing that because the Argentine Constitution is almost identical to that of the United States, it is inevitable that Argentina examine U.S. constitutional practice.⁴⁶⁵ "Our written law is the Constitution, and our subsidiary law, where we must search to discover the true doctrine, is the case law of the Constitution which we took for a model."⁴⁶⁶ While Mitre criticizes V‚lez S rsfield, then Minister of the Interior, for showing a frivolous attitude toward U.S. precedent, discussion of U.S. authors and cases during three days of debate made up the bulk of the constitutional argument on both sides.⁴⁶⁷ In the give-and-take of a legislative setting, it is difficult to evaluate the respective weight of principle and partisanship. There is no proof that invocation of the U.S. Constitution actually won votes. Nevertheless, most of the membership of the Senate listened to several hours of discussion of U.S. case law and practice on the exercise of eminent domain and on sovereignty over waterways before voting to return the government's bill to the committee for reconsideration.⁴⁶⁸ U.S. practice was the intellectual currency of the debate.

The most powerful examples of U.S. influence appear in decisions of the Argentine Supreme Court, however, because in the case of the Supreme Court's decisions one can demonstrate not only that U.S. practice was an important source of authority, but that it was binding. Beginning in the late 1890s, the U.S. influence begins to decline, but from the 1870s through the mid 1890s, Sarmiento clearly was the winner in his debate with Alberdi on the binding nature of U.S. practice. For example, in 1877 the Supreme Court asserted:

The system of government which governs us is not of our own creation. We found it in action, tested by long years of experience, and we have appropriated it. And it has been correctly stated that one of the great advantages of this adoption has been to find a vast body of doctrine, practice and case law which illustrate and complete its fundamental principles, and which we can and should use in everything which we have not decided to change with specific constitutional provisions.⁴⁶⁹

Cynics may respond that this is nothing but "lip service," however, many situations exist in which U.S. practice seems to have been decisive in the Court's decisions. One of the best examples is the de la Torre/Acevedo/Sojo line of cases in the 1870s and 1880s, discussed below, in which Congress ordered the detention of various journalists. Because the results of these cases varied according to the Argentine Supreme Court's understanding of U.S. Constitutional law, and not according to the political situation, and because the result in Sojo simply makes no sense outside the United States, there cannot be much doubt about the authority of U.S. practice in this period.

A. de la Torre, Acevedo, and Sojo

De la Torre,⁴⁷⁰ Acevedo,⁴⁷¹ and Sojo⁴⁷² all involved habeas corpus actions brought before the Supreme Court by journalists detained by order of the Senate or the House of Deputies. In de la Torre, the Supreme Court exercised jurisdiction but held against the journalist;⁴⁷³ in Acevedo the Supreme Court required the release of the journalist;⁴⁷⁴ and in Sojo, the Supreme Court held that it lacked jurisdiction to hear habeas corpus actions as a court of first instance.⁴⁷⁵ De la Torre and Sojo both depend on U.S. constitutional practice, but Sojo exemplifies something further: a decision that makes sense only in the context of U.S. practice. Sojo can only be explained by the fact that the Argentine Court finally learned that the U.S. Supreme Court had decided that it could not exercise original jurisdiction in situations not expressly provided for in the Constitution. The rule denying the Supreme Court jurisdiction made little sense in the Argentine context, because it was adopted by the U.S. Supreme Court due to the unique political circumstances Chief Justice Marshall faced in Marbury v. Madison,⁴⁷⁶ but apparently this did not matter. In Sojo, U.S. practice was followed solely because the Argentine Supreme Court considered itself bound by the U.S. model.

Institutionally during this period, the Argentine Supreme Court functioned much like the U.S. Supreme Court, but with greater stability. The constitutional and legislative provisions governing the jurisdiction of the Supreme Court and the lower federal courts were almost identical to those of the United States.⁴⁷⁷ The Argentine Court consisted of five judges from 1863 through 1960,⁴⁷⁸ and until 1947, its members enjoyed life tenure without political interference. (In 1947, President Per¢n had all but one member impeached and removed from office.)⁴⁷⁹ Unlike U.S. practice, even the chief representative of the government before the Court was a lifetime appointee.⁴⁸⁰ This individual, the Procurador General, was the head of all federal prosecutors and prepared opinions for the Court on most issues of public interest.⁴⁸¹ Members of the Court in the nineteenth and early twentieth century tended to come from the highest ranks of the political elite.⁴⁸² Moreover, the Court's authority to engage in judicial review of congressional and executive action was widely recognized even before the appointment of its first members.⁴⁸³

1. de la Torre

The three cases are best considered consecutively. In de la Torre, the House of Deputies ordered the imprisonment of Lino de la Torre, the editor of a small Buenos Aires newspaper, El Porte¤o, for revealing the proceedings of a secret session of the House of Deputies in July 1877. During the preceding years, the Chilean government had begun to settle scattered points in the Argentine Patagonia,⁴⁸⁴ and the House of Deputies had called a secret session for the interpellation of Bernardo de Irigoyen, the Minister of Foreign Relations.⁴⁸⁵ Despite the secrecy, however, El Porte¤o, a newspaper edited by Lino de la Torre, offered a general report on the session. It described Irigoyen as calling for diplomatic negotiations prior to any use of force, and indicated that F‚lix Fr¡as, a former foreign minister and now President of the House of Deputies, replied with a passionate speech calling for expulsion of the Chileans.⁴⁸⁶ The House of Deputies responded to El Porte¤o's article by having its Vice-President write a letter to each newspaper in the city to advise it that it would consider any future publication of its secret sessions an act of contempt against its authority.⁴⁸⁷ El Porte¤o, however, although publishing the House's letter and stating that it would comply with the demand, in practice did not. Instead, it published the satirical headline, Special Telegraph Despatch for El Porte¤o, A Secret Session in China, Brilliant Speeches by the Minister of Foreign Relations and Non-Nan Friaj. The text that followed then described the second day of the secret sessions, but replaced references to Argentina and Chile with references to China and a fictitious neighbor.⁴⁸⁸ The House of Deputies responded by ordering de la Torre's detention.

De la Torre's detention by the House of Deputies was not due to his political preferences. El Porte¤o's politics essentially favored the governing coalition of then President Nicol s Avellaneda.⁴⁸⁹ The reports on the secret session, although satirical, avoided taking sides and complimented both Irigoyen and Frias for fine speeches.⁴⁹⁰ De la Torre was detained solely because the House wanted to establish its authority, and the House ordered his release the day after the Supreme Court decided the case in its favor.⁴⁹¹

The Argentine Supreme Court reached its decision on the basis of U.S. law.⁴⁹² In fact, the Supreme Court took advantage of the case to make the pronouncement quoted earlier that "[t]he system of government which governs us is not of our own creation" and therefore Argentina "can and should use" U.S. doctrine, practice, and case law "in everything which we have not decided to change with specific constitutional provisions."⁴⁹³ Even without this statement, however, U.S. influence would have been clear. Unlike the political tradition of the United States or Great Britain, Argentina and Hispanic political tradition had no history of parliaments ordering detentions for contempt. Reliance on U.S. practice in this area meant acceptance of an innovation. The Argentine Court noted that in the U.S. case of Anderson v. Dunn,⁴⁹⁴ decided in 1821, the U.S. Supreme Court held that Congress could imprison or fine an individual on the basis of its contempt powers.⁴⁹⁵ Furthermore, Kent's and Story's treatises on constitutional law both insisted that congressional contempt powers were necessary for Congress to maintain its authority, and that such powers existed for acts occurring both inside and outside the legislative chambers.⁴⁹⁶ Naturally, if the U.S. Congress enjoyed contempt powers so did the Argentine Congress.⁴⁹⁷ The situation, according to the Argentine Court, would have been different if Congress had sought to exercise ordinary criminal jurisdiction,⁴⁹⁸ but the conduct here was not covered by a criminal statute.

The one dissent in de la Torre, by Judge Laspiur, only heightens the importance of the case as a landmark on the role of the U.S. Constitution. Judge Laspiur's dissent focuses on his disagreement with the binding nature of U.S. precedent.⁴⁹⁹ Although he recognized that the U.S. Supreme Court favored Congress in Anderson,⁵⁰⁰ Judge Laspiur argued that, because British practice here was superior, Argentina appropriately could follow the British practice instead.⁵⁰¹ Under British practice, a prior law was required identifying the circumstances under which an individual would be held in contempt of parliament,⁵⁰² thus avoiding arbitrary use of congressional power and improper punishment through an ex post facto legislative decision.⁵⁰³ Most of the Court insisted on U.S. precedent, however, which meant creation of a new Argentine practice-detentions ordered by a House of Congress.

2. Acevedo

United States law also helped ensure that the new practice turned out to be very limited in scope, however. In 1885, the Argentine Supreme Court ruled in Acevedo that Congress could not hold a journalist in contempt for defaming a member of Congress, because such defamation was penalized under federal criminal law.⁵⁰⁴ In de la Torre, the Court had specifically noted that it was not ruling in a situation where Congress sought to usurp ordinary criminal jurisdiction, but in a case involving breach of congressional secrets where there was no statute on point and Congress had no other way to protect itself.⁵⁰⁵ Acevedo involved this exception, and the Court held that the existence of a criminal statute penalizing defamation of a member of Congress meant that Congress had granted jurisdiction over defamation to the courts and could not reclaim it whenever it wished to exercise jurisdiction itself.⁵⁰⁶

Unlike the Court in de la Torre, the Court in Acevedo did not focus on U.S. practice. The Argentine Supreme Court, however, was aware that its opinion was at least generally consistent with recent trends in U.S. law that took a restrictive view of Congress' contempt power.⁵⁰⁷ The Procurador General's opinion had favored Acevedo's release, emphasizing that Congress did not need to use its implicit contempt powers when the conduct in which the individual was engaged was already penalized in criminal legislation. Moreover, the U.S. Supreme Court recently had declared a congressionally ordered detention unconstitutional in Kilbourne v. Thompson,⁵⁰⁸ in a move that limited the scope of its earlier decision in Anderson v. Dunn.⁵⁰⁹ Kilbourne involved the failure of a witness to appear at a congressional hearing and explicitly limited Anderson, stating that Congress could not use its contempt power when the matter at issue was outside its competence.⁵¹⁰ Kilbourne, a poorly written decision, never indicates the scope of congressional competence, nor fully explains why the investigation of a local real estate scandal is outside of Congress' competence. Nevertheless, the U.S. Supreme Court did emphasize that the matter at issue already was the subject of a judicial investigation, and in finding that Congress had exceeded its authority, it seems to have been influenced heavily by the fact that the judiciary already had intervened.⁵¹¹ Acevedo-by stating that Congress' contempt power does not extend to cases subject to judicial jurisdiction-is more precise than Kilbourne and could almost be described as a refinement and elaboration of its underlying principles. Although only the Procurador General's brief analyzed Kilbourne, the Argentine Supreme Court at the very least was aware of the decision from the Procurador General's brief, and in practice wrote an improved version of the Kilbourne holding.

3. Sojo and Marbury's shadow

The Acevedo decision is of interest primarily for the contrast it offers to the Court's 1887 decision in Sojo, only two years later. Both Acevedo and Sojo involved defamations that generated anger in Congress, decisions by Houses of Congress to detain the responsible journalist, and habeas corpus petitions filed directly with the Supreme Court.⁵¹² In Acevedo, El Debate, a newspaper owned by Eliseo Acevedo, had accused a Senator of manipulating legislation for his own self interest, claiming that he sponsored a bill creating a reward for anyone introducing pink salmon into Argentine rivers in order to share in the reward himself.⁵¹³ In Sojo, the offense consisted of a political cartoon that defamed a Deputy.⁵¹⁴ If anything, Sojo presented the more attractive case for blocking Congress. The Deputy defamed in Sojo cut a particularly unsympathetic figure when he raised the issue of Sojo's cartoon on the House floor, coarsely calling Sojo a "fetid flea" and a "galleguito" (an offensive twist on the term "gallego," itself a moderately offensive term used to refer to Spanish immigrants).⁵¹⁵ Moreover, there is no difference in the political circumstances surrounding the two cases that would lead one to expect greater Supreme Court support for Congress in Sojo than in Acevedo.⁵¹⁶ Due to U.S. practice, however, Sojo resulted in dismissal for lack of subject matter jurisdiction.⁵¹⁷ Moreover, the issue was not raised by the parties, but on the Supreme Court's own motion, and only then was it briefed by the Procurador General.⁵¹⁸

Articles 100 and 101 of the Argentine Constitution of 1860 closely follow Article III, Section 2 of the U.S. Constitution,⁵¹⁹ and U.S. practice dating back to Marbury v. Madison⁵²⁰ has long held that the list of situations in Article III under which the U.S. Supreme Court exercises original jurisdiction is comprehensive.⁵²¹ Under U.S. practice, the only instances in which the Supreme Court enjoys original jurisdiction are those where the case affected "Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party."⁵²² Otherwise the Supreme Court could hear cases only as an appellate tribunal.⁵²³ As almost all U.S. law students today learn in their constitutional law courses, however, the reason for this interpretation has much more to do with the political events surrounding Chief Justice Marshall's opinion in Marbury in 1803 than with the constitutional text.

Marbury concerned a demand by William Marbury, appointed a justice of the peace for the District of Columbia during the closing days of the Adams Administration, that the Jefferson Administration deliver his commission and allow him to assume office.⁵²⁴ President Jefferson opposed the principle of judicial review and regarded Chief Justice Marshall as a political opponent. When Marbury brought his case directly to the Supreme Court, Marshall realized that Jefferson was likely to ignore any writ of mandamus by the Court that ordered him to give Marbury his Commission. Marshall, however, wished to use Marbury to establish the principle of judicial review yet not leave the Court vulnerable to subsequent defiance by the President.⁵²⁵

Marshall's response was politically brilliant. Instead of issuing an order that could be defied, Marshall declared the Judiciary Act of 1789 unconstitutional when it authorized the Supreme Court to issue a writ of mandamus. He argued that writs of mandamus were a function of courts of first instance, and given the limited list of occasions of original jurisdiction listed in Article III of the Constitution, the Supreme Court lacked jurisdiction to issue the writ demanded.⁵²⁶ Marshall's argument was questionable in its interpretation of both the Judiciary Act of 1789, as providing for original jurisdiction,⁵²⁷ and of the Constitution, as not allowing Congress to expand the Supreme Court's original jurisdiction. However, the argument had the virtue of allowing the Supreme Court to declare a law unconstitutional under a circumstance in which the Court's authority could not be questioned.⁵²⁸ Given that the Court's ruling involved a refusal to hear a case,⁵²⁹ the Executive had no order that it might refuse to refuse to enforce.

One side effect of Justice Marshall's political brilliance in Marbury was to bind the U.S. Supreme Court to the rule that Congress could not expand the Supreme Court's original jurisdiction to allow it to hear habeas corpus actions as a court of first instance. The importance of Marbury as a precedent meant that the Court could never read Article III of the Constitution as allowing Congress to expand its original jurisdiction, even though the Article certainly may be read as allowing it.⁵³⁰ The Court could have read Article III as providing a list of when original jurisdiction must be permitted, creating an irrevocable privilege for Ambassadors and States to litigate before the Supreme Court, but not barring Congress from adding other types of cases to the Court's original jurisdiction. Subsequent case law and commentary following Marbury, however, consistently maintained that the Supreme Court lacked original jurisdiction to hear habeas corpus petitions or any other kind of action not involving an ambassador or a state.⁵³¹ Regardless of the ambiguity of Article III of the Constitution, Marbury's political importance made it too central a constitutional precedent to overturn.

What is remarkable, however, is that the Argentine Supreme Court was similarly bound to Marbury. The circumstances surrounding Marbury certainly had nothing in common with those in Sojo in 1887.⁵³² Considering that the defamed Deputy cut a very unsympathetic figure both law and politics argued in favor of jurisdiction in Sojo, and unlike Marbury, there was no risk of non-compliance with any Court order. The police had complied with the Argentine Supreme Court's order immediately in Acevedo only two years before, and when Sojo subsequently refiled his habeas corpus petition before the federal district court, the district court judge ruled in his favor, and the police immediately released him.⁵³³ In holding that it lacked jurisdiction to hear the case, the Argentine Supreme Court followed U.S. practice because it felt obliged to follow U.S. law, not because political convenience dictated avoiding jurisdiction.

In the absence of the U.S. precedent, the arguments in favor of jurisdiction in Sojo would have been overwhelming. Those arguments were developed fully by both the Procurador General and by Calixto de la Torre, one of two judges who dissented in Sojo.⁵³⁴ First, Law 48 leaves no doubt that Congress intended the Supreme Court to exercise habeas corpus jurisdiction. Article 20 of Law 48 states that "[either] the Supreme Court or the district court judges will have the power, at the request of a prisoner or his friends or relatives, to investigate the origins of the imprisonment, and . . . to order that the prisoner immediately be placed at liberty."⁵³⁵ Second, this law was drafted by jurists who presumably were acting consistently with the intent of the Constitutional Convention,⁵³⁶ having been members of the first Supreme Court.⁵³⁷ Third, there is no reason to read the text of the Constitution as limiting the original jurisdiction of the Supreme Court in the event that Congress decided to expand it. Article 101 of the Argentine Constitution (like Article III of the U.S. Constitution) creates a privilege for foreign diplomats and provincial governments to litigate before the Supreme Court.⁵³⁸ It states that "in matters concerning foreign ambassadors, ministers and consuls and those in which a province is a party [the Supreme Court] will exercise exclusive original jurisdiction."⁵³⁹ It does not state that Congress cannot extend this privilege.⁵⁴⁰ Fourth, as a general rule of constitutional interpretation, it was inappropriate for the Argentine Supreme Court to declare a law unconstitutional, in this case Article 20 of Law 48, unless Congress had clearly violated the Constitution. Reasonable congressional interpretations of the Constitution should be respected, and the congressional interpretation of Article 101 in passing Law 48 is at least as reasonable as that of the Supreme Court.⁵⁴¹ Fifth, the Supreme Court's precedents consistently had permitted jurisdiction. The Court already had heard habeas corpus actions as a court of first instance on five different occasions.⁵⁴² The Procurador General's opinion begins by listing the many habeas corpus cases that the Supreme Court already had decided under its original jurisdiction, and concludes with an almost sarcastic note that "now the doubt has arisen that we have all been mistaken all along."⁵⁴³

The Argentine Supreme Court's decision simply ignores these arguments by focusing on U.S. case law and commentary.⁵⁴⁴ It discusses Marbury as the original source of the doctrine that Congress cannot expand the Supreme Court's original jurisdiction.⁵⁴⁵ The Court did not ignore the Argentine constitutional text, but merely compared both constitutional texts and applied all the same arguments used by the U.S. Supreme Court.⁵⁴⁶ Apparently, the Argentine Court felt that it now properly understood U.S. practice and, therefore, wished to correct its past errors.

Citation to U.S. case law was not limited to the majority opinion. In spite of the other arguments at their disposal, Sojo's attorney and the Procurador General both felt obliged to argue that U.S. law permitted jurisdiction.⁵⁴⁷ Probably sensing the direction of the Court's inclination, both cited U.S. precedents that they claimed supported Supreme Court original jurisdiction in habeas corpus cases.⁵⁴⁸ The Argentine Supreme Court examined their citations, however, and correctly noted that they all involved habeas corpus petitions against judicially ordered detentions, and therefore involved only appellate review.⁵⁴⁹ Only Calixto de la Torre's dissent admitted that "[o]ne cannot in truth ignore the weight of authority that supports the [majority's position], having as it does as a basis various decisions of the North American courts."⁵⁵⁰ He insisted, however, that merely because the U.S. Supreme Court found itself trapped by stare decisis did not mean that the Argentine Supreme Court had to be bound by its mistakes.⁵⁵¹

The decisions in de la Torre, Acevedo, and Sojo not only illustrate the Argentine Court's willingness to follow U.S. case law, but also, in Sojo, to put its own precedents aside in order to follow U.S. law. Traditionally, both the Argentine Supreme Court and lower courts took the Argentine Supreme Court's precedents seriously. At least through the 1890s, Argentine Supreme Court precedents were regarded as binding on the lower courts.⁵⁵² There was some dispute as to whether they were legally binding⁵⁵³ or only morally binding due to the Supreme Court's prestige and the desire to avoid unnecessary appeals;⁵⁵⁴ but as a practical matter there is little difference between the two approaches.⁵⁵⁵ Regarding the Supreme Court itself, the Court regularly cited its own precedents and sought to follow them,⁵⁵⁶ and the Procurador General's opinions often simply referred the Court to its own precedent.⁵⁵⁷ There are many early examples of the Argentine Supreme Court carefully parsing its earlier precedents in much the same manner as a common law court might.⁵⁵⁸ Remarkably, however, for three of the Court's five members, Argentine precedent was secondary when it conflicted with U.S. Supreme Court case law.

Sojo also is the first case in which the Argentine Supreme Court, at least implicitly, declared a federal law unconstitutional. The Court purported to read Law 48 consistently with the Constitution, and therefore interpreted it as not providing for jurisdiction.⁵⁵⁹ Because the language of Law 48 explicitly provided for original jurisdiction in habeas corpus actions, the Court's interpretation of Law 48 really was just a way of saying that the law was unconstitutional. Unlike Justice Marshall in Marbury, however, the Argentine Supreme Court had no need to tread cautiously. Cases like Acevedo, decided only two years before, and many others, were at least as politically controversial as Sojo.⁵⁶⁰ Moreover, unlike the U.S. Supreme Court during Justice Marshall's tenure, the principle of judicial review was never under attack. The first case in which the Court would explicitly declare a law unconstitutional already was pending and would be decided only seven months later.⁵⁶¹ In historical terms, what Sojo stands for is the binding power of U.S. constitutional law. U.S. constitutional practice provided more than just a source of ideas that influenced the Argentine framers, it was a source of authority in itself.

B. The Gradual Decline of the United States as Authority (1897-1930)

The Argentine Supreme Court never explicitly declared its independence from U.S. practice. Rather, the process involved gradual divergence. First, aspects of the Alberdian vision that varied from the U.S. model inevitably required Argentine solutions. Although the Alberdian vision behind the Constitution supported U.S.-style protection of individual rights to attract immigration and investment, as noted earlier, it had little concern for political rights or for federalism-beyond the degree of federalism necessary to keep local caudillos at peace with the central government.⁵⁶² These divergences from U.S. practice generally did not require variances from U.S. case law, as most questions that arose were nonjusticiable under the U.S. political question doctrine,⁵⁶³ but some significant differences did arise. Second, there was a gradual decrease in the talismanic authority of U.S. practice as Argentina's growth gave it self-confidence and as nationalism increased. Third, the Argentine Supreme Court always also focused on the rational interpretation of the text of the Argentine Constitution. The introduction of a Civil Code in 1869⁵⁶⁴ pushed Argentine legal education in the direction of continental rationalism.⁵⁶⁵ In the nineteenth century, U.S. practice often was recognized as binding, as demonstrated by the 1887 opinion in Sojo.⁵⁶⁶ By the turn of the century, U.S. authority was cited with less frequency, but remained influential. U.S. practice continued to offer the Court important additional authority when it addressed difficult political issues, but it clearly was supplanted by rational authority as the primary source of authority of the Court.⁵⁶⁷

Only in 1897 did the Argentine Court openly recognize a major divergence from U.S. constitutional practice.⁵⁶⁸ In Ferrocarril Central Argentino c/Provincia de Santa F‚,⁵⁶⁹ the Argentine Court held that the General Welfare clause of the Argentine Constitution offered the federal government a general source of authority for legislation affecting the provinces. The Court recognized that the United States utilized the clause only as a source of authority for federal taxation and spending, not for general legislation, but recognized differences in the two constitutions. Unlike earlier cases discussing U.S. constitutional practice, in Ferrocarril Central Argentino the Alberdian vision dictated a constitutional interpretation at variance with U.S. legal standards.

The plaintiff in Ferrocarril Central Argentino, a railroad, protested the imposition of a provincial property tax in the Province of Santa F‚.⁵⁷⁰ The railroad passed through several different provinces and had received a federal exemption from all federal and provincial taxes when it initially obtained its concession from the federal government in 1863.⁵⁷¹ Three decades later, however, the Province began to impose various taxes on the railroad's property. The Province countered the railroad's claim of tax exemption by arguing that the federal government had exceeded its constitutional powers by granting an exemption from provincial taxes.⁵⁷² The Supreme Court decided the case in favor of the railroad⁵⁷³ and focused on Article 67, Section 13 of the Argentine Constitution, which authorizes Congress to:

Provide for that which is conducive for the prosperity of the country, to the advancement and welfare of all the provinces, and to the progress of enlightenment, providing curricula for general education and university instruction, and, promoting industry, immigration, the construction of railroads and navigable canals, the colonization of public lands, the introduction and establishment of new industries, the importation of foreign capital, and the exploration of the interior rivers, through laws directed towards those ends and through temporary concessions of privileges and bounties for initiative.⁵⁷⁴

Although delegates to the Constitutional Convention of 1853 emphasized U.S. federalism as a central feature of the U.S. model for Argentina to copy,⁵⁷⁵ no delegate expressed concern about placing limits on the power of the federal government to legislate in the national interest.⁵⁷⁶ Article 67, Section 13 was not taken from the U.S. Constitution, but from the draft Constitution that Alberdi included as an appendix to Bases.⁵⁷⁷ To the extent that the U.S. Constitution offered a model for this clause, it is in the first paragraph of Article I, Section 1: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States. . . ."⁵⁷⁸ The U.S. Supreme Court and commentators consistently have rejected this clause as a source of legislative authority for the federal government, however, reading it instead as referring to the power to "collect taxes, duties, imposts and excises" for the "general welfare of the United States."⁵⁷⁹ The U.S. Supreme Court, hearing the same case under the U.S. Constitution, would have agreed with the province and declared that the federal government lacked authority to issue a blanket tax exemption. An examination of U.S. case law would have encountered precedents almost exactly on point.⁵⁸⁰

Had the Argentine Supreme Court wished to, it could have come up with an interpretation of the Argentine clause that, at least for the case at hand, minimized differences from U.S. practice. Article 67, Section 16 contains a specific reference to the development of railroads as a federal function that the Court could decide the case. Instead, the Court developed, in broad strokes, the general role of the federal government in drafting legislation and embarking on grand projects to promote the general welfare.⁵⁸¹ The Court insisted that unlike the U.S. Constitution, the Argentine Constitution "charges the federal government to promote everything that concerns . . . the advancement and general welfare of all the provinces,"⁵⁸² and that in doing so, it could enact any necessary legislative measure, such as an exemption from provincial taxation.⁵⁸³ This was entirely consistent with Alberdi and the vision of the Argentine elite, which took a Hamiltonian view of the role of the federal government in attracting capital and promoting commerce and industry, during the 1850s, as well as the 1890s.⁵⁸⁴ The Supreme Court's broad interpretation of the general welfare clause in Ferrocarril Central Argentino established a precedent eliminating any hint of restrictions on federal initiatives in the name of federalism and eliminated the need for Argentina to ever emulate the U.S. Supreme Court's gradual expansion of the Commerce Power as the vehicle for expansion of federal authority.⁵⁸⁵

Twentieth century Argentine constitutional scholars and political scientists clearly did not offer the unified front in support of the U.S. model that they had in the nineteenth century. Whereas in the nineteenth century it had been a matter of Constitutional dogma that the Argentine Constitution was modeled after the U.S. Constitution, in the twentieth century it became an issue of debate as many scholars sought to de-emphasize U.S. influence.⁵⁸⁶ By the 1920s and 1930s Argentine intellectual circles were becoming increasingly nationalistic,⁵⁸⁷ and even among liberals, the intellectual pendulum had swung away from Sarmiento and back to Alberdi. For example, in one of the period's leading works in political science, La Constituci¢n Argentina y sus principios de ‚tica pol¡tica, Rodolfo Rivarola begins his book with a recap of the Alberdi-Sarmiento debate on the importance of U.S. case law.⁵⁸⁸ For Rivarola, Alberdi is the clear winner in this controversy, and he invokes Alberdi to exhort against scholars still afflicted with the "North American fixation."⁵⁸⁹

The rejection of the U.S. model was only partial, however. At least one of the Ministers on the Court in the 1900s, Mauricio Daract (1901-1915), demonstrated his enthusiasm by procuring and reading the advance sheets of U.S. Court decisions.⁵⁹⁰ Moreover, the Court frequently cited U.S. case law as the basis for declaring legislation unconstitutional. Such decisions, involving excessive taxation,⁵⁹¹ arbitrarily discriminatory taxation,⁵⁹² and property rights/freedom of contract issues,⁵⁹³ are not surprising, since they are fully consistent with the emphasis on property rights of the Alberdian vision, but cites to U.S. cases presumably still added to their persuasiveness.

U.S. practice was most significant in the one pre-1930 case in which the Court varied significantly from the Alberdian vision. In Ercolano c/Lanteri de Renshaw,⁵⁹⁴ the Court held constitutional a 1921 law temporarily freezing apartment and commercial rents nationwide. In this instance, the Argentine Court relied on Block v. Hirsh,⁵⁹⁵ a U.S. Supreme Court decision handed down only a year before, which held a similar rent freeze in the District of Columbia constitutional.⁵⁹⁶ The Argentine rent freeze, enacted in response to a housing shortage caused by materials shortages and an economic downturn during World War I, was one of the most controversial pieces of legislation passed during the first government of Hip¢lito Yrigoyen.⁵⁹⁷ The law pitted the populism of the first Argentine President elected in clean elections against the economic elite's concern with protection of property. The U.S. decision clearly strengthened the President's hand. When Jurisprudencia Argentina, the leading legal journal, published the text of the legislation, it included the full text of Block in a long footnote,⁵⁹⁸ so the Argentine Court's focus on the U.S. decision is hardly surprising.

Moreover, U.S. case law was significant once again in 1925, when the Supreme Court reconsidered the rent freeze and this time held it unconstitutional on grounds that too much time had passed to continue to consider it a temporary, emergency measure, and that the emergency had ceased to exist.⁵⁹⁹ The Argentine Court's decision once again relied on a U.S. Supreme Court ruling, Chastleton Corp. v. Sinclair,⁶⁰⁰ decided three years after Block and holding the same District of Columbia rent freeze unconstitutional because it had gone on too long.⁶⁰¹ The Argentine Court followed the approach taken by the U.S. Supreme Court a year later. There is no indication in the two Argentine cases that the Argentine Court regarded U.S. case law as binding. Those days were far behind. But U.S. case law provided a source of authority in a politically delicate situation. The situation would repeat itself in 1934, when the Court needed authority to permit the government to suspend mortgage payments during the Depression.⁶⁰² Although the days of magical faith in U.S. practice had long ended, even its lingering effects underline its earlier vitality.⁶⁰³

CONCLUSION

In insisting that "it is absolutely essential that the constitution should not be regarded as something made," but rather as "divine," "constant," and "exalted above the sphere of things that are made,"⁶⁰⁴ Hegel makes a good point about the weakness of rationalism. He fails, however to recognize two factors that are particularly important in the modern world: (1) the demonstration effect of foreign practices; and (2) the possible talismanic authority of a foreign model.

Today's world is full of models moving from one country to another. Today, most non-Western countries strive to emulate the Western model of industrial production, a model that requires dramatic changes in lifestyles and attitudes. These changes include: (1) regular work hours; (2) participation in a monetary economy; and (3) division of labor in societies formerly based on subsistence agriculture. But many countries have adopted Western economic models with success. Hegel's statements, carried to an extreme, would imply that one nation's constitutional structure can never influence that of another, a position that should have been apparent as false even in Hegel's day. Cultures inevitably interact.

Identifying foreign talismans may prove more difficult in the late twentieth century than in the nineteenth, but even today such talismans exist. Argentina, for example, recently has granted ten international human rights instruments constitutional hierarchy by wholly incorporating them into its Constitution.⁶⁰⁵ Most delegates to its 1994 Constitutional Convention probably were hardly aware of the specific content of these ten declarations and treaties, but their inclusion involves yet another Argentine attempt to cure its institutional defects with a foreign symbol-this time the symbol of international law.⁶⁰⁶ In the Eastern European context, George Fletcher has described a 1990 Hungarian constitutional decision banning capital punishment as a "yearning to join the 'European House,'" where the death penalty has been eliminated.⁶⁰⁷ Although difficult to perceive from the United States, which long has enjoyed sufficient stability to reduce the need for foreign models, the banner of international human rights may offer a modern talisman for countries in transition from dictatorship that need an extra source of authority for establishing new rules of behavior. Like the imported constitutions of the nineteenth century, international human rights instruments seek to establish rights with only limited local roots, but like the U.S. Constitution in Argentina in the nineteenth century, they also are free of local critique.⁶⁰⁸

One possible critique of this Article could be that the Argentine experience does not describe cultural interaction, but rather the cultural submission of a small elite to the expectations of British imperialist interests.⁶⁰⁹ Parts of what happened in Argentina may certainly be described in the context of imperialism and the world trading relationships of the late nineteenth and early twentieth century. Although Argentina never was a colony of Great Britain, the enormous amount of British investment in Argentina created an economic relationship of great import to the British Empire, one that far overshadowed investments from other countries.⁶¹⁰ Short of accepting Queen Victoria as its sovereign, adopting the U.S. Constitution as its model probably was the best thing that Argentina could do to reassure British investors that their property would be protected.

Describing Argentine constitutionalism as imperialist dependency ignores both Argentine realities and present day tendencies throughout the world, however. First, any British participation in nineteenth century Argentine constitutionalism was minimal. The British never told Alberdi and Sarmiento what to write, and their rare attempts to intervene politically in Argentina ended poorly.⁶¹¹ The Argentine elite determined its model without foreign interference. Second, the economic elites of many of today's emerging democracies probably would love to copy the Argentine constitutional experience of the nineteenth century if they similarly could comfort potential investors. The emerging democracies of Eastern Europe seek economic integration into the European Union in much the same manner that Argentina once incorporated itself into the trading and investment flows of the British Empire. Eastern European countries also face the same issues of establishing investor confidence. What is noteworthy about the Argentine experience is that its elite was so successful in its goal of attracting immigrants and investors.

When Argentine constitutionalism began to break down in the 1930s, it had little to do with its focus in earlier periods on the United States as a model. Argentina's coups of 1930 and 1943 and the rise of Per¢n in the wake of the 1943 military government involved issues of political participation. The coup of 1930 was provoked in part by conservative distrust of forces brought to power by popular elections. Reluctance by the military to continue upholding the electoral fraud of the conservatives⁶¹² provided one motivation for the 1943 coup. Per¢n emerged in the 1940s in part due to the mobilization of the working class as a political force.⁶¹³ One can argue that part of the failure of post-1930 Argentina stemmed from an inability to modify the nation's rules of mutual security in light of seventy years of social and political change since 1860. Such an analysis requires an article in itself.⁶¹⁴ But these issues, although showing a lack of adaptability in the political system, do not undercut the utility that the U.S. model initially offered to attain political stability in the nineteenth century. Sixty-eight years of unbroken constitutional government, from 1862 to 1930, is a good record in comparison with most of the world during the same time period.

To the extent that one views the Argentine Constitution of 1853 and 1860 as successful, and little doubt exists in terms of their establishment of basic rules of mutual security, one also must concede that Argentina benefitted from its "faith" in U.S. constitutionalism. For although Argentine constitutionalism contained its distinctive elements, the talisman of U.S. practice so inspired the elite's concept of constitutionalism that Argentine constitutionalism simply cannot be understood in isolation from its U.S. influences. Certain characteristics probably aided Argentina in its use of the United States as a model. First, Argentina was fortunate to have an endowment of resources capable of luring foreign immigrants and capital, and hence could keep most politically relevant groups satisfied with its model. Success breeds support. Second, because the group of individuals who were politically relevant was small, with the mass of Argentina's largely rural population simply outside the political process, generating support for the model was easier than if a multitude of disparate groups had to be satisfied. But neither of these observations change the fact that the consolidation of the Constitution ended the chaos and bloodshed of the past.

Obviously the key for the success of an emerging democracy is not to copy the constitutional practice of a selected foreign state blindly. Even Argentina's practice consciously varied from parts of the U.S. model. But political leaders and constitutional scholars must realize that they may require more than rational acceptance and interpretation of a text to attain political stability. If the jurisdiction is unaccustomed to reducing political disputes to legal arguments, rational interpretation of a constitution may not provide legal rules or sufficient authority to maintain stability. Rational authority often needs a crutch, and under the right circumstances, the talisman of a foreign model may lend authority to a rule of law that it otherwise would lack. Hegel was correct in noting the inherent vulnerability of a visionary constitution that seeks to establish new rules of political conduct, but he failed to note the possibility of sources of authority outside of a country's own political traditions. Countries emerging from long periods of dictatorship have no choice but to adopt visionary constitutions. The life of the law in such a country often is not "logic" or "experience,"⁶¹⁵ but faith.