Tuesday, July 6, 2010

Caminata Nocturna


"La comunidad “El Alberto” realiza esta caminata nocturna en homenaje a los migrantes, con el propósito de hacernos conscientes de su travesía para lograr el “sueño americano” y al mismo tiempo compartir las tradiciones que los han mantenido unidos como comunidad."

In this wildlife preserve, Parque EcoAlberto, located in the state of Hidalgo about an hour and a half from Mexico City, you can discover what it is to cross the border from Mexico to the U.S. in the middle of the night.

The simulation is meant to approximate reality as close as possible: you set off with a group of about twenty at dusk through wild terrain, spotted with hills, ahuehuetes, and rivers. The landscape is tranquil, mysterious, and captivating. The mood, however, is not peaceful. As a member of the group, you are aware of your objective-- to reach the other side-- and of the dangers lurking not far away-- the border patrol, in the form of trucks with spotlights, bullhorns, loaded rifles (here, only with blanks).

According to the park's website, this "nocturnal walk" has been created as a homage to immigrants, with the point of teaching what they experience as they take to the night, with the goal of reaching their dreams. This is a worthwhile experience.

Friday, June 18, 2010

I. Basics of the Mexican Federal System!

Constitutional Supremacy in the Mexican Constitution

From the Mexican Constitution:

Artículo 133. Esta Constitución, las leyes del Congreso de la Unión que emanen de ella y todos los Tratados que estén de acuerdo con la misma, celebrados y que se celebren por el Presidente de la República, con aprobación del Senado, serán la Ley Suprema de toda la Unión. Los jeces de cada Estado se arreglarán a dicha Constitución, leyes y tratados a pesar de las disposiciones en contrario que pueda haber en las Constituciones o leyes de los Estados.

And from Article 6 of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Even for someone who isn't bilingual, be they exclusively English or Spanish speakers, it's not hard to see that there's at least one similarity (though there's many) between the American and Mexican constitutions (of course, there are also many differences).

As seen here, the Mexican Constitution has its Supremacy Clause in Article 133 (there's a total of 136 Articles!), establishing its prominence as the highest law of the land. The two are almost perfect translations. Yet in contrast with its US counterpart, the Mexican Constitution's supremacy doctrine spills over to Articles 39, 40, 41, and 136. A brief description of these follows:

Artículo 39 declares that the national sovereignty originates in "el pueblo" (translated as the people), and that the people has the right to modify the government at all times.
  • Here it's interesting to note that the Article gives very broad leeway as to what changes can be made. The range stretches from the government's structure to social or economic configurations. The government could technically go from a capitalist to a communist system, so long as the change is legally enacted (through legislation, amendments, etc.).

Artículo 40 states that the will of the people is to create a government that is a federal democratic republic.
  • The corollary from Articles 39 and 40 is that any deviation from this type of government would necessarily have to be in the form of an amendment.
  • For a quick detour, the amendment process, found in Article 135: amendments require approval of 2/3 of those present in Congress (meaning 2/3 of both houses, like in the U.S), and approval of a simple majority of the state legislatures (16 of 31). It's interesting how the Mexican Constitution's single amendment process is a similar but more lenient version of its counterpart in the U.S Constitution, where amendments pass either by 2/3 approval of Congress or by a Constitutional Convention-- though the requirements for passage by Convention are much more difficult to meet (2/3 of states must first call a Convention, and then 3/4 of states must approve). In the U.S. Constitution, the amendment must then be ratified by 3/4 of the states, regardless of which method is first used. This is a much higher hurdle than the simple majority of states required by the Mexican Constitution. The different standards are reflected in the number of amendments that have been passed, and as expected there have been many more amendments to the Mexican Constitution.
  • Congress consists of two houses, la Cámara de Diputados {CdD for short} (analogous to the House of Representatives) and el Senado (yep, the Senate). The CdD has 500 members, the Senate 128. How each of the houses is filled is a little complex and it'll have its own entry.
Artículo 41 is extensive. In respect to constitutional supremacy, it states that the people exercise their sovereignty via the various government branches, state or federal, and that under no circumstances may they contravene the Constitution. Article 41 also lays out a thorough skeleton of the electoral system, establishing the Instituto Federal Electoral (Federal Electoral Institute), in charge of policing/regulating the electoral process.

Artículo 136 has no double in the U.S Constitution, and effectively constructs a contingency plan in the case the government is toppled by a rebellion. It's pretty interesting so here is the English in full:
This Constitution shall not lose its force and effect, even it its observance is interrupted by rebellion. In the event that a government whose principles are contrary to those that are sanctioned herein should become established through any public disturbance, as soon as the people recover their liberty, its observance shall be reestablished, and those who have taken part in the government emanating from the rebellion, as well as those who have cooperated with such persons, shall be judged in accordance with this Constitution and the laws that have been enacted by virtue thereof.
  • This provision attempts to secure the survival of the Constitutional order even in the case that the government is violently overthrown and the Constitution denounced. But that is where this Article 136 derives its power, by establishing a point in the future where "people recover their liberty," and the offending regime is brought to justice. This Article, paradoxically, only comes into effect then when the Constitution is allegedly eliminated. It's a phantom article that comes to life and legitimizes violent resistance against an unconstitutional government, calling for the resurrection of the Constitution.
Separation of Powers and Federalism in the Mexican Constitution

The Constitution's Artículo 49 establishes the three spheres of the federal government-- the legislature, the executive and the judiciary. These are standard, and similar to their U.S. counterparts. Artículo 133-- the Supremacy Clause above-- contains the federalism doctrine, setting the boundary between the federal and state governments, but has developed differently than in the U.S, resulting in interesting consequences for the federal judiciary and judicial review.

For those interested, here are useful links:

Sources: (forgive my primitive formatting, haven't decided which of the many to adopt yet)

Please be patient. I am just goi ng to write the titles, authors, and ISBNs for now. With this information you can find any book nowadays. Later, I promise to make it pretty.
  1. Constitución Política de los Estados Unidos Mexicanos, Comentada. J. Eduardo Andrade Sánchez ISBN 978- 607- 426-033-05
  2. What is the Federal Judiciary? Mexican Supreme Court ISBN 978- 970- 712- 898- 9


This summer I have the exceptional opportunity, through a nascent program at Fordham University School of Law, of interning at the Mexican Supreme Court (la Suprema Corte de Justicia de la Nacion), and later at a prominent law firm in Mexico City. In a span of nine weeks, I will receive a crash course on the Mexican legal system, an insider´s perspective on the intricate machinery of the highest court in the land, and a chance to apply my legal skills in the fast-paced environment of one of Mexico´s largest law firms. There is a lot to be done in little time, and I am determined to squeeze as much as I can from these opportunities. This a blog will serve as a record of my progress and hopefully prove useful to those interested in the Mexican legal system-- hence the title of the blog, Mexican Justice/ Justicia Mexicana.

At the Supreme Court, my personal project, detailed in this blog, will consist of three objectives:
  1. Describing the Mexican federal judiciary system,
  2. observing and analyzing current cases before the court,
  3. and studying recent court decisions.
While I pursue these individual aims, I will also intersperse independent entries and commentaries on my experience in Mexico. I hope reading this blog will be as fun and informative as writing it has been.

Thank you,

Arthur Burkle