It is my impression that the notion of “constitutional performance” refers to an evaluative rather than to a statistical process. But, of course, everything depends on how we define the terms we want to use. In my view, in order to determine whether a Constitution is performing “well” we need to initiate a complex theoretical reasoning, which I shall begin to explore. Alternatively, however, we may stipulate that (say) the idea of “constitutional success” means something like (say) constitutional stability – this being a historically important candidate for playing this role, as I shall suggest. In this way, we gain the possibility of measuring the concept but – this is my opinion – at the risk of undermining the attractiveness, complexity and richness of the notion of “constitutional performance.” Of course, it is absolutely important to compare Constitutions according to (say) the stability they achieved, and to measure such things. But it is not clear to me that, in this way, we will be measuring “constitutional performance.” In association with the notion of “constitution,” the idea of “performance” appeals to a complex process, which – it is my impression – should not be simply reduced to a statistical analysis.
In what follows – and based on previous studies about constitutionalism in the Americas – (Gargarella 2010, 2013), I will explore this discussion with some more detail, and propose an approach to “constitutional performance” that is both contextually and normative sensitive, and which is based on the teachings of nineteenth-century constitutional scholars. I will illustrate the potential of this alternative understanding through four examples related to early constitutional history in the Americas.
WHEN IS A CONSTITUTION DOING WELL? THE EXAMPLE OF THE CHILEAN CONSTITUTION OF 1833
After the independence years – around 1810 in Latin America– most countries in the region began to explore ways to (re)organize their institutional structure, usually with the help of a new Constitution. The conditions within which these new Constitutions grew were extremely difficult for a variety of reasons, including the fact that the new societies were socially divided and characterized by profound inequalities; the presence of strong caudillos who represented, in many occasions, a serious “internal” threat to the new projects; and also the existence of the “external” threat posed by foreign countries (most typically Spain, trying to re-built its lost Empire).