For any student of Argentine constitutional law or constitutional history, this volume contains an enormously useful compilation of documents tracing the historical evolution of the Argentine constitution. The collection contains more than 100 documents, starting with the provisional junta’s regulation of May 25, 1810, and ending with the constitutional reform decreed by the military junta in August of 1972. The documents include constitutional drafts, commission reports, treaties, provisional statutes, and all of Argentina’s constitutions and amendments, with the exception of those promulgated by the military junta that ousted Isabel Perón in March of 1976. There is also an interesting Spanish translation of the U.S. Constitution made available to the provisional junta in 1810. The entire volume is unusually well indexed, both by subject matter and proper names.
The documentary section is introduced by a scholarly (308 footnotes in 77 pages) but disappointing essay entitled “Argentine Constitutional Evolution.” Parts of this rambling, unbalanced essay are interesting, but it is long on quotations and short on insight. If one is looking for a credible explanation of why Argentine constitutionalism since 1930 has been such a non-success story, it is not to be found here. Instead of sophisticated, convincing historical explanation, Sampay offers the reader simple-minded excoriation of the twin devils of the ruling oligarchy and foreign investment.
Little attention is devoted to Argentina’s only really important constitution, the 1853 Constitution, which has been in force continuously up to the present with the exception of 1949-1956, when it was temporarily supplanted by Perón’s revised version. That the United States Constitution heavily influenced the 1853 Constitution is not a fact which Sampay deems important enough even to discuss. Instead, he devotes a few pages to describing the events that led to the adoption of the 1853 Constitution, and then writes it off as creating “the juridical structures . . . which guarantee the liberties which European capital requires to take root and develop in peripheral countries” (p. 62).
The Argentine Supreme Court, which has played an enormously important role in constitutional interpretation, is summarily dismissed by Sampay as a tool of the ruling oligarchy and roundly denounced for extending the constitutional guaranty of private property to foreign capital (p. 68). Only when the supreme court was packed with sycophantic supporters of Perón does Sampay have any praise for the institution.
Sampay drafted Article 40 of the Peronist Constitution of 1949, which called for organizing the economy along the lines of “social justice” by authorizing the government to monopolize determined economic activities and by nationalizing all mineral rights and public utilities. He would like to see the Argentine constitution once again modified to emphasize “social justice” at the expense of private property rights. Accordingly, he closes his essay with a twelve-point blueprint for a new constitution; this is essentially a rehash of Perón’s vague justicialist program, a disaster from which the country has yet to recuperate.
Until the warring factions of Argentine society can agree to abide by the rules of a social compact, it probably matters little which principles are enshrined in the nation’s constitution. To paraphrase Judge Learned Hand: A society so riven that the spirit of moderation is gone, no constitution can save.
