“What is the difference,” went an old joke in the Soviet Union, “between the Soviet and U.S. constitutions? The Soviet constitution guarantees freedom of speech; the U.S. constitution guarantees freedom after speech.” The joke captures the common intuition about the function (or dysfunction, rather) of constitutions in authoritarian regimes. Many other examples abound: citizens of North Korea might be surprised to learn that they are guaranteed rights to free speech, assembly, and association, while the constitution of Niger guarantees each citizen the right to health and education, notwithstanding the fact that the country ranks 182nd out of 182 countries rated by the Human Development Index.

If we are to generalize from these phenomena, we might expect that there is little difference between constitutions written by dictators and those written by democrats. There is certainly anecdotal evidence to support this expectation. The entrenchment of human rights in constitutions has been nearly universal, with both authoritarian and democratic constitutions incorporating an increasing number of rights. Similarly, the vast majority of constitutions at least mention the word “democracy” (approximately 90 percent of those in force in 2006). We are not the first to note the commonality between institutions in authoritarian and democratic regimes. An entire literature in comparative politics has evolved to understand why dictators adopt multiparty legislatures (Gandhi and Przeworski 2007), elections (Schedler 2006), and relatively autonomous judiciaries (Ginsburg and Moustafa 2008). In general, it is thought that such institutions provide information that is used by dictators to prolong their tenure.

Latin America is a region characterized by a high level of constitutional instability. Since independence, constitutions have been drafted and redrafted following successive changes between governments with different partisan interests and programmatic goals. During the twentieth century, military dictatorships contributed to this pattern by replacing a large number of constitutions enacted during both authoritarian and democratic periods. This proliferation of constitutions under military rule is somewhat paradoxical given that military regimes are provisional in nature and usually justified by the need to restore constitutional order under a civilian government. Why would military rulers invest time and resources in drafting constitutions?

This chapter argues that military leaders want to adopt new constitutions when their intervention in politics seeks broad transformations in the political, social, and economic order. Given these objectives, a constitution makes possible the adoption of effective and enduring reforms by providing the regime with a more solid legal basis and involving a plurality of institutional actors in the decision-making process. Constitutions also facilitate imposing constraints on the functioning of the future democratic regime, something military rulers typically intend to do to preserve their reforms and protect their personal and corporate interests after leaving power. Yet the capacity of military rulers to achieve these goals through constitution making is always limited. In order to adopt and maintain their constitutions, military dictators must be able to mobilize popular and partisan support for the authoritarian regime. Because this condition is rarely met, military rulers often fail to perpetuate their institutional legacy.