Originally published on July 9th, 2009 at the New Republic.
David Fontana is associate professor of law at George Washington University.
Here in the United States, the removal of President Manuel Zelaya of Honduras has prompted disparate reactions from the political right and political left.Conservatives (fearing the influence of Hugo Chavez and his authoritarian brand of politics, with which Zelaya had aligned himself) have tended to side with the coup leaders. Liberals (fearing a return to the era of Latin American military coups) have tended to side with Zelaya.
But both sides are missing a layer of complexity, one that suggests the Honduras crisis isn’t an easy case of heroes and villains. What is taking place in Honduras is actually a debate over an old and difficult question: Can a democratically enacted change to a constitution be itself unconstitutional?
The crisis started when Zelaya called for a vote to determine whether or not a convention should be held to amend the constitution–and allow him to serve another term. The problem was that Article 239 of the Honduras constitution clearly prohibits a president from serving more than one term and indicates that anyone who tries to amend Article 239 should be removed from office and disqualified from performing any public responsibilities for ten years.
So was Zelaya acting unconstitutionally? Different democratic traditions diverge considerably on this question. The American legal tradition would tend to look favorably on Zelaya’s efforts. Article V of the U.S. constitution lays out the rules to be followed for constitutional amendments. It specifies only two limitations: Until 1808, no amendments could alter some of the constitutional provisions protecting slaveholders; and no amendment can deprive a state of its two seats in the Senate without the consent of that state. But apart from that, the U.S. constitution can be changed to require or permit just about anything, so long as you have the votes. This has been clearly established for roughly the past hundred years, if not longer. In the early twentieth century, the Supreme Court heard two cases raising challenges to the constitutionality of major amendments–the Eighteenth Amendment (Prohibition) and the Nineteenth Amendment (which granted women the right to vote). In neither case did the Supreme Court have any problem with the fact that these amendments created major substantive changes to the constitution: If an amendment could pass, the court seemed to say, it was by definition constitutional.
But this approach isn’t shared by all democratic countries–or even by many state constitutions in the United States. In Germany, where the rise of the Nazis demonstrated how a determined group could exploit the democratic process to horrific ends, the post-war Basic Law–equivalent to a constitution–prohibits any amendments violating foundational norms like human dignity, regardless of how many votes such amendments might attract. In American state constitutions, foundational changes (constitutional “revisions” as opposed to less significant constitutional “amendments”) must sometimes pass a higher bar than a simple popular vote in order to be enacted. This was the legal substance of the (unsuccessful) challenge to California’s Proposition 8–with gay marriage supporters arguing, in effect, that Prop 8 was an unconstitutional constitutional amendment.
So where you come down on Honduras really depends on which view of constitutions you favor. If you favor the dominantAmerican view, you would tend to side with Zelaya. True, the Honduras constitution prohibits amendments related to presidential terms, but this rule flies in the face of the American notion that a constitution should be amendable in just about any direction–and Zelaya was simply exercising his right to try and correct that. If you favor the German view, you would tend to side with the supreme court and the military. After all, the changes Zelaya was seeking to the constitution were foundational and revolutionary. And a constitution should be able to protect against certain kinds of constitutional changes.
There is an irony here. In the recent past, American political conservatives have (with some exceptions, such as in the area of gun rights) defended the prerogatives of democratic majorities in the face of supposed constitutional limitations (think of their opposition to Roe at the federal level or decisions legalizing gay marriage at the state level). By contrast, it has been political liberals (again, with some exceptions) who have defended the importance of anti-majoritarian devices like judicial review. In other words, in the inherent tension between liberalism and democracy that characterizes any free society, Republicans have erred more on the side of pure democracy, while Democrats have erred more on the side of liberalism and rights.
The Zelaya debate has flipped this dynamic. It is the group that tends to support majoritarianism domestically which is now opposing a democratically-elected president pushing democratically-enacted change; and it is the group that tends to support limits on majoritarianism which wants the reinstatement of a president deposed because of his commitment to majoritarianism. All of which leads to at least one clear conclusion: The search for easy heroes and villains in Honduras might be harder than anyone wants to believe.