On Magical Constitutionalism
As far as I can tell, the word “vape” appears in only one national constitution on Earth. In Mexico, vaping is opposed by health officials, banned by school headmasters, and unconstitutional since January, as recorded in the now august Article 4 of the United Mexican States’ Constitution:
“To guarantee people’s right to the protection of their health, the law shall penalize any activity related to electronic cigarettes, vape pens, and any other analogous systems or devices specified by statute.”
It’s hardly “We the people” or “Liberté, Egalité, Fraternité”, but maybe we can learn to live with “analogous systems” as constitutional poetry. Some charters provide principled inspiration for common life, others consider the risks of mango flavoured smoke.
For more than a century, Mexican politicians have developed a habit of changing the law and treating it as an accomplishment in itself. The current Constitution, promulgated in 1917 during the series of coups, assassinations, famines and battles now remembered as La Revolución, has been edited 841 times. It has become an ever expanding basket where governments keep whatever policy they want to celebrate as “historic reform”. The result is what scholars like Juan Jesús Garza Onofre (a researcher at Mexico’s National University) call magical constitutionalism: the belief that writing something into the supreme law conjures it into reality.
Recent amendments show the magic not working. Mexico has passed major human rights reforms, yet the country’s humanitarian crisis deepens. The Constitution says every Mexican has the right to high speed connections, but most people still use their mobile phones to access the internet.
Norma Piña, former President of the Supreme Court, criticised the excessive number of reforms and called Mexico’s tradition of amendments a two-faced Janus. “On one hand, adaptability: a living, dynamic text, rightly open to new and emerging rules of the game,” she said. “But it also means that excessive flexibility in how it is amended erodes its stability and legitimacy, undermining its attributes as a protective mantle of certainty, trust, security, and, above all, unity.”
One of the most menacing faces of this Janus is prisión preventiva oficiosa, or mandatory pre-trial detention. Article 19 now orders judges to jail suspects not only for the expected serious crimes like murder or kidnapping, but also for a series of far lesser offences, including burglary, using welfare programmes to buy votes, stealing a truckload of cargo, or filing fake tax invoices.
Since prosecutors struggle to build cases and prove accusations in court, the rule has become a handy shortcut: imprison first, prove later, without taking a moment to consider the same human rights that are enshrined in another article of the Constitution. Some 86 thousand people sit in prisons without a verdict, around 44 % of the prison population. In 2023 the Inter-American Court for Human Rights ordered the Mexican State to abolish the mechanism, but this, predictably, has not happened.
Magical constitutionalism seems to be something of a Latin American tradition. According to one estimate, the regional average is 70 fundamental rights per constitution, many described with lyrical, aspirational language. This brings to mind Nicaraguan writer Sergio Ramírez, who supposedly said that if someone in the 23rd century were to read the constitutions in place during the worst dictatorships, they would think people lived in Arcadia, because every aspect of human reality was perfectly regulated. The great writer Carlos Fuentes said that Latin Americans created “countries legal in appearance but which disguised the real countries abiding, or festering, behind the constitutional facades.”
Reality hardly ever responds to verbose amendments with no policy considerations. Even if one was in favour of fewer vapes, for example, simply amending the Constitution does nothing to actually decrease their use. Three months after it became unconstitutional, roughly 6.5 percent of Mexicans still exhaled fruit flavoured clouds, and neither chamber of Congress had started to discuss secondary legislation that would set penalties for manufacturers and distributors of vape pens.
Without clear rules, authorities have no actual mandate to stop people buying and selling vapeadores. Even with them, Mexico is a low capacity state, with more than 90 percent of crimes going unpunished. This is simply the latest instalment in our national romance with the belief that changing the constitutional text is enough to modify people’s preferences and actions. While that might make for good speeches, actual progress is iterative. Policies should be piloted to measure intended outcomes, and reveal unintended consequences.
By printing every passing whim and hope into the national charter, Mexican politicians have set out for a destination without considering the map. A better instinct would control the vape market by taxing cartridges and regulating their import, or make the country safer by fighting corruption instead of incarcerating everyone and their cat. Trade magical constitutionalism for incremental, reality tested reformism.