A Minute to Midnight: On the Necessity of Defining a Basic Structure of Mexico’s Constitution and the Role of the Supreme Court in Such an Undertaking

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Jaime Olaiz-González 
Visiting Fellow
Fulbright-Garcia Robles COMEXUS Mexico Studies Chair

There is an overt and incremental assault on Mexico’s constitutional institutions and  procedures. Over the last years, the Supreme Court has analyzed a series of laws enacted  by the governing coalition in unmistakable contravention of constitutional dictates. An  array of judicial over rulings -ranging from the powers of the Executive branch to assign  ordinary policing functions to the armed forces; aLempts to cripple the existing  independent electoral authority; or the regulation of the so-called automatic pre-trial  detention- has put the Court in route collision with the governing majority that persists  in defying the limits of political power within a constitutional democracy. The tension  between political and legal constitutionalism is increasing as a new package of  constitutional amendments aims at the absolute dismantlement of the Judicial branch by  sacking all its incumbent members -judges, magistrates, and Supreme Court Justices- for  their replacements to be elected by the people should the amendment be approved. Such  a concerning and unprecedented undertaking in Mexico’s constitutional politics, raises  an important question: In times of abusive constitutionalism, what are the options that  constitutional courts have at hand to protect democracy and the constitution itself against  the uLer obliteration of its fundamental consensus and principles? This paper aims at  bringing to the table the necessity of extrapolating this inquiry to the Mexican case as an  aLempt to discover if there is such a thing as a basic structure doctrine in its constitutional  history and whether it can be articulated in light of the contemporary progeny of  precedents set by the Supreme Court over the last quarter of century. Because if  something is clear, sooner than later, Mexico will be confronted with a colossal  predicament: The [un]constitutionality of constitutional amendments; and when that  happens, it should beLer have an answer.