Argentine Constitution of 1853

Original version of the present day Argentinian constitution

The current Constitution of Argentina dates from 1853. The Constitution of Argentina of 1853 was approved in 1853 by almost all of the provincial governments at that moment (currently Argentina is made up of 24 jurisdictions of which 23 are provinces and one is an autonomous city) with the exception of Buenos Aires Province, which remained separate from the Argentine Confederation until 1859. After several modifications to the original constitution and the return of power to Buenos Aires' Unitarian Party, it was sanctioned on May 1, 1853, by the Constitutional Convention gathered in Santa Fe, and it was promulgated by the provisional director of the national executive government Justo José de Urquiza, a member of the Federalist Party. Following the short lived constitutions of 1819 and 1826, it was the third constitution in the history of the country. Despite several reforms of varying importance, the 1853 constitution is still substantially the basis of the current Argentine juridical system. It was closely inspired by the juridical and political doctrines of the United States Federal Constitution. It established, for instance, a Republican division of powers, a high level of independence for the provinces, and a federal power controlled by a strong executive government yet limited by a bicameral national congress to balance the population's representation with equity among the provinces. It also drew from the previous constitutions as well as the pioneering works of eminent jurist Juan Bautista Alberdi. Nevertheless, the historical importance of the constitutional project has been unquestionable, and virtually all disputes regarding the political theory and practice in modern Argentina include either positive or negative references to the political consequences of the 1853 constitution. For the Generation of '80, the settlers of the first liberal conventions on Argentine historiography, the constitution represented a true foundational act that broke the long government of Juan Manuel de Rosas. The members of the Generation of '80 especially praised the fact that the Constitution established a European style liberal political regime. However, at the time that it was sanctioned, it had been strongly opposed by some of them. For the UCR, a group with social democrat tendencies, the constitution represented an unfulfilled political ideal against the oligarchic government Generation of '80, perpetuated in power through electoral fraud. At the same time, for the nationalist movements of the 20th century, who criticized the liberal conventions and praised Rosas, the constitution had represented the renouncement of the national identity towards the ruin of liberalism. On different fronts, the discussion remains open, and has inspired several of the most important works of Argentine thought.

The legal system that was accepted by the United Provinces of the Río de la Plata, formed after the May Revolution from the Viceroyalty of the Río de la Plata, was one of the main concerns after the resignation of the last viceroy. Even though the more urgent concern of establishing sovereign control effective against the resisting Spanish royal forces put the organizational decisions of the republic on hold, much was discussed and written on the matter that would later be taken into account. The formation of the Primera Junta, and its continuation in the Junta Grande, gave testimony to the disparity of interests between Buenos Aires and the other landlocked provinces. In part, such a division already existed during colonial times, when the port of Buenos Aires gave the city commercial interest far different from the artisanal and agricultural countryside. Buenos Aires benefited from the flow of goods brought by ships from the United Kingdom, for which it paid with the taxes collected from the exportation of the country's agricultural production, that being mainly raw leather and minerals. The discrepancies between the merchants that brought industrialized goods from Britain and the businessmen of the provinces which lacked such industrial capacity, spurred debates in the Viceroyalty of the Río de la Plata over the lack of modernization. With the Declaration of Independence in 1816, the first juridical bases had a marked Unitarian characteristic. The first project to converge the successive attempts, that defined the different organs of the national executive power in the first years of organization, was the convocation in 1812 of the Assembly of the Year XIII, also known as the Constituent General Assembly; its purpose was to write the fundamental law for the national organization. It gathered on January 31 of 1813 and worked for over 2 years until 1815. It dictated the regulations for the administration, the statute for the executive power, and promulgated several norms of regulation for the legislature, that would be in use for the following years. However, the assembly was unable to dictate the national constitution. There were 4 constitutional projects; one written by the Patriotic Society, another one by the assessorial commission designated by the Second Triumvirate, and two anonymous republican projects. These last two introduced the division of powers on the model of the French Revolution, even though they were still strongly centralist, delegating most of the public power to the hands of a central executive branch located in Buenos Aires. This, added to the absence of some provincial deputies, prevented an agreement on the subject. The lack of definitions from the Assembly, after two years of deliberations, was one of the arguments from which Carlos María de Alvear proposed the creation of a temporal one man regime, known as Directorio (Directorate). The Assembly voted favorably, but since it had no support from the civilian and military leaderships, it forced the creation of a project for the Congress of Tucumán of 1816. The action of the congress in that sense was limited, though fruitful in other aspects; it declared independence on July 9, 1816. Deliberations regarding the form of government proved harder. In its struggle liberal thinkers compromised with a republican government, and those in favor of a constitutional monarchy. Among the latter was José de San Martín, who proposed to establish a descendant of the Incas on the national throne. The monarchic followers claimed it impossible to erect a republic without historically developed institutions, and that it would form an unstable and weak government, while its opponents pointed to the lack of inherited prejudices as one of the main reasons to attempt a democratic government. The congress had to be moved to Buenos Aires at the beginning of 1817 after the threat of the Spanish royal forces advancing over the northern part of the country. On December 3 of that year, the provisory regulation was sanctioned. The provincial delegates considered that moving the congress to Buenos Aires was oriented to put pressure on the congressmen to secure benefits for the Buenos Aires porteño in the concluding constitutional text. In 1819, these fears became true in the project of the Argentine Constitution of 1819, characterized by strong centralism around Buenos Aires. The text didn't even aboard the subject of the method of election of the Director of State, but guaranteed him wide competencies, including the designation of the provincial governments and the heads of the national administration. The congress also ordered San Martín and Manuel Belgrano to return to the capital with their armies, to defend the authority of the Directory. Both generals refused to follow those orders. San Martín held his troops in Rancagua (present Chile) and dictated the Act of Rancagua, for which he ignored the authority of the Directory after such orders. Belgrano behaved differently, making a pact with the federal forces of José Gervasio Artigas and he and his Northern Army had put themselves under the orders of the governor of Córdoba. The tension was finally broken at the Battle of Cepeda of 1820 when the united tropes of the provinces defeated the Director José Rondeau. As a result, the Treaty of Pilar was signed, establishing a federally organized government in which Buenos Aires would be one of the 13 provinces. Even though defeated in combat, the Unitarian idealism was kept vigorous in Buenos Aires. Bernardino Rivadavia, Minister of Governor Martín Rodríguez, redesigned the project of the constitution of 1819 in more republican terms: The Argentine Constitution of 1826 was approved by the legislature of Buenos Aires on September 1, 1826, but rejected by the rest of the provinces. The following years represented the temporal decline of the Unitarian and the rise of provincial Caudillos. They saw in the project of the constitution an administrative option to displace the Buenos Aires hegemony. The governors of Santiago del Estero, Córdoba and La Rioja, (Mariano Fragueiro, Juan Felipe Ibarra and Facundo Quiroga, respectively), at the beginning of the 1830, urged to create a representative assembly. This new assembly was to be directed by Quiroga, who even used the writings of the young author of Bases, Juan Bautista Alberdi, for the 1853 constitution project. The first attempt of consent was achieved with the Federal Pact of 1831, signed by Buenos Aires, Entre Ríos, and Santa Fe, to which the rest of the provinces would eventually subscribe. The main opposition to a constitutional assembly was from Buenos Aires, yet not from the literate citizens and Unitarian businessmen, but from the Buenos Aires caudillo Juan Manuel de Rosas, who claimed it was too soon to seal a constitution. The assassination of Quiroga in Barranca Yaco put an end to the initiative of the caudillos of the interior. The Federal Pact stipulated the formation of a Representative Commission with the seat in the city of Santa Fe. Each of the subscribed provinces would send a delegate with certain powers of decision, such as war and peace declarations, and the selection of the heads of the battalions. Delegates would also add voice to the national subjects decided by the Federative Congress, such as the country's administration, internal and foreign bossiness, and the range of each province's independence. Many points of the Federal Pact were never followed; though it is mentioned by the 1853 constitution as one of the pre existent pacts, it was not in effect during the Rosas hegemony who insisted on the inadequacy of a premature constitution. This attitude became evident in 1847 when Alberdi, from exile, invited the members of the exiled intellectual ambient to collaborate with Rosas to intercede for the desired constitution. Rosas seemed to completely ignore the petition, but other federal caudillos, especially Justo José de Urquiza, paid attention to it.

The 1853 constitution was elaborated immediately after the Battle of Caseros, which saw the defeat of Rosas, who held political control in Buenos Aires for two decades. The shift in the political landscape left Justo José de Urquiza in charge of the national business. On April 6, 1852, Urquiza had a meeting with governors Vicente López y Planes of Buenos Aires, Juan Pujol of Corrientes, and delegates of Santa Fe, where it was decided to call for a Constitutional Congress under the terms of the Federal Pact of 1831. The decision of opening the congress in August of the following year was communicated to the rest of the provinces. Urquiza was aware of the strong opposition within the Buenos Aires elite to his mandate and any attempt of limiting the hegemony of the port city over the rest of the country. To calm that opposition, Urquiza gave Pujol and Santiago Derqui the assignment of elaborating a constitutional project that would be less harsh to the porteño interests. On May 5, he gathered with some of the most influential characters of Buenos Aires— among which were Dalmacio Vélez Sársfield, Valentín Alsina, Tomás Guido and Vicente Fidel López— to propose revival of the constitutional project of 1826 of Rivadavia, in exchange for support of his authority in front of the national government, but the project was rejected. The definitive meeting with the provincial delegates took place in San Nicolás de los Arroyos on May 29. Deliberations lasted for two days before they signed the San Nicolás Agreement, which granted provisional Directorship of the Confederation to Urquiza, and set the opening of the constitutional convention for August, to which each province would send 2 representatives. The provinces that were directly represented were: Entre Ríos by Urquiza; Buenos Aires by López y Planes; Corrientes by Benjamín Virasoro; Santa Fe by Domingo Crespo; Mendoza by Pascual Segura; San Juan by Nazario Benavides; San Luis by Pablo Lucero; Santiago del Estero by Manuel Taboada; Tucumán by Celedonio Gutiérrez; and La Rioja by Vicente Bustos. The treaty was also adhered to by Catamarca, who also designated Urquiza as its representative, and Córdoba, Salta and Jujuy, who would ratify it later. The Buenos Aires opposition reacted quickly. Alsina, Bartolomé Mitre, Vélez Sársfield and Ireneo Portela confronted López y Planes, who they considered had ideals too close to those of Urquiza. They denounced López y Planes' vote as having no validity and affirmed he had no attributions to sign it in name of the Buenos Aires government, and they argued the treaty jeopardized the rights of the province while giving despotic attributions to Urquiza. The following debates, known as the Jornadas de Junio, concluded with the resignation of López y Planes on June 2, 1852. The legislature elected Manuel Pinto to replace him, but Urquiza made use of the attributions given to him by the treaty to call a federal intervention that dissolved the provincial legislature and reestablished López y Planes at its head. When López y Planes resigned for the second time, Urquiza assumed the government of the province himself, naming a state council of 15 members as deliberating organ. Urquiza personally controlled the government of the province until September, when he left to Santa Fe for the constitutional convention together with elected deputies Salvador María del Carril and Eduardo Lahitte, leaving General José Miguel Galán as provisional governor. Three days later, on September 11, Mitre, Alsina, and Lorenzo Torres revolted against Galán's forces and restored the legislature. On September 22 they would revoke their adhesion to the treaty, and rejected the authority of Urquiza. They also sent José María Paz to extend the revolt to the provinces of the interior, who did not succeed, but they acquired certain support that prevented Urquiza from directly attacking the revolt, and forced him to negotiate with the revolters, sending Federico Báez to Buenos Aires for that purpose. Buenos Aires recalled its deputies from the Constitutional Assembly and incited the other provinces to do the same. They received a negative response from the governments of the other provinces to cancel the assembly, and so Alsina and Mitre attempted to weaken Urquiza's position and power. They sent forces to attack the provinces of Entre Ríos, Santa Fe, and Córdoba. On November 21 an army under the command of Juan Madariaga attempted to take over the city of Concepción del Uruguay, but was repelled by the forces of Ricardo López Jordán, who quickly informed Urquiza of the situation. Also, Paz could not advance over Santa Fe, and Mitre didn't succeed in convincing Corrientes governor Pujol to attack Entre Ríos, for Pujol joined Urquiza. Without the representatives of Buenos Aires but with the support of all the other provinces, the Constitutional Convention started its sessions in November 1852. The convention, which was held in Santa Fe followed the precedent set by the 1787 Philadelphia Constitution. The Unitarian Doctors —Rivadavia, Echeverría, Alberdi— would represent the first option, of whose plumes would flow the constitution; the federal caudillos —Quiroga, Güemes, Rosas— the second, reluctant to fix once and for all the political bonds. For these authors, the alternative reflects one of the clashes effectively existent in the Argentine politics of that time: between the illustrated classes, based on the principles of the theoretic right of the millenary European tradition; and the pragmatic provincial leaders, men of action rather than theory. Given the intellectual ambient of the moment, in which the ideologists of the French revolutionaries had given place to the illumining positivism, it was natural that the thought of the first inclined for the defence of the liberal order, in which the abolition of the historical and traditional limits gave in for a new era of cooperation between people. The free market would give way to a specialisation of the countries in their areas of comparative advantage, resulting in the common improvement. The interpretation that the revisionists make of this posture in terms of direct personal interest — the illustrated bourgeois was at the same time holder of the porteño commercial capital, that directly benefited from the importation of goods; in several instances the visible hand of foreign business interests influenced the invisible hand of the free market, offering support both economic and social to political elements which would be more amenable to their economic interests. The Marxist interpretations—that even though centred on explaining the logic of the event that took place rather than the individualities, haven't ignored this criterion— also leave several aspects unattended. To understand the fractions that converged in the dictation of the 1853 constitution, two aspects have been distinguished that the conventional historiography has simplified in the dichotomy between Federals and Unitarians. On the one hand, it is necessary to note that the high class had several fractions in unstable equilibrium: the commercial bourgeois of the port, the cattle bourgeois of the Littoral Mesopotamia, the small bourgeois layers of the cities of the landlocked provinces; and on the other hand, to understand the process of economical and cultural world integration —since by then, 150 years before the common use of the word, the state problem had already the view of globalisation in virtue of the expansion of the world market in the European economical potencies— did not necessarily imply, as it did in the Argentine history, the complete abandonment of the national production, and therefore of the country's modernisation would have been taken place without the loss of the national identity. Even if the ideals of the 1853 constitution, and Alberdi's writings that served as its base, depended in great part on the project of integrating Argentina into the world processes, the compromise with the economic liberalism was not necessarily coded in them. The expressed objective of the constitutional project, as that of the political projects exposed shortly before and after, was that of modernising the nation; which in an emerging state, meant little more than creating it. An important part of the national thinkers considered that the project of modernisation imposed an almost total rupture with the Spanish colonial past; since Esteban Echeverría to Sarmiento and the Generación del '80, the search for the Argentine insertion in the modern world was based on the importation of theories, practices and even people. Such a rupture demanded certain kinds of conditions and dispositions; the complementation of the European markets would benefit the merchants of the port and the higher classes, capable of consuming material and symbolic luxury goods that this commerce provided, but affecting the rural and lower classes, which were displaced from the productive system in which they were situated. Aware of this, the leaders most opposed to Rivadavia's program concealed the task of formation of the state as a 'restoration' of the state that Rivadavia's reforms had broken: therefore, Rosas's title of "Restaurateur of Laws" that referred not to the Positive laws of the Right of Indias, but to the Natural law of the traditional nationals. The problem of this view was the impossibility, for a long time in Rosas' period, of effectively developing the national state. The restoration of the order, that in previous years had dissolved in the successive confrontations between the caudillos and the hegemony of the new Buenos Aires metropolis, resulted in a paralyzing of the process of building a state. When the sanction of the constitution broke that phase, and searching to introduce the new governmental system, the matter returned with all sharpness. Alberdi, usually considered liberal by revisionists and therefore an enemy of the country's interests, harshly criticized Urquiza from his exile, who left the national structure in the hands of the porteños, and of Mitre, who used in the years of the police war against the provinces and in this action the achieved triumph of extreme liberalism of the capital over the integrationist federalism of the provinces of the littoral. Mitre's politic would eliminate the possibility of resistance from the provinces, making impossible Alberdi's, Andrade's and José Hernández's attempts to guarantee the union. When under Julio Argentino Roca's government a unified Argentina became a reality, it was at the expense of the disappearing of the social layout of the provinces and their productive capacity. The federal shape of the constitution was, during the years of modern Argentina, a simple coalition of the illustrated classes throughout the country. It would not be until immigration produced its effects and mobilized the masses against the oligarchy that this order would be altered.