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Liberal Jurisprudence, Labor Tribunals, and Mexico's Supreme Court, 1917–1924
T. M. JAMES
| Within the last decade there has been a resurgence of scholarly interest in Mexican legal topics that relate to the Porfirian (1876–1910) and Mexican Revolutionary (1910–1940) periods, an especially formative time in the history of modern Mexican law.1 As Peter Reich has recently written, the great merit of this new literature has been to treat the law in its "social context," a commonplace of legal studies in the United States, but one not typical of traditional approaches to modern Mexican legal history, which have "focused narrowly on code or other legislative changes."2 Unfortunately, these methodological gains of recent years have not yet been applied to the history of Mexico's Supreme Court or its system of judicial review.3 One of the barriers to renewed interest in this area as a legal-historical topic, no doubt, has been the characterization of supreme courts in Latin America in general, and Mexico in particular, as "dependent, weak, parochial, conservative and decisionally unimportant."4 |
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Here I hope to spark scholarly interest in the history of Mexico's Supreme Court and its powers of review by challenging the assumption of an uninterrupted judicial subservience to the decisions and policies of the executive branch of government. Specifically, I focus on one particular episode of decisional importance—the Supreme Court's original interpretation (and subsequent reversal) of a newly created system of labor arbitration—and its import for the history of constitutional change following the Mexican Revolution. |
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The story in brief is as follows: as a consequence of the revolutionary upheavals of 1910 and 1913, radical social legislation was raised to the level of constitutional law in 1917. Article 123 of the Constitution of 1917, an exceptionally advanced labor codification for its time, set out a series of guidelines for state regulatory law intended to favor workers and reconfigure the country's system of industrial relations. These included: a priori employer liability with respect to all work accidents; limits on maximum hours; a minimum wage; a system of arbitration boards; a system of profit sharing; collective bargaining; and the right to strike. Nonetheless, many of these provisions were not fully realized in practice. |
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One of the barriers to the implementation of Article 123 was the Supreme Court's constitutional interpretation of the newly created system of labor arbitration boards. This interpretation allowed factory owners and industrialists to successfully file in federal court a kind of constitutional injunction, known as amparo, against the implementation of state labor laws regulating the boards. After 1917, the Supreme Court repeatedly found these state level efforts at implementation in violation of constitutionally guaranteed civil rights, most importantly Article 16's guarantee of constitutional competency.5 However, in 1924 and in the context of a rebellion that threatened to topple Mexico's nascent revolutionary state, the Supreme Court dramatically reversed its earlier jurisprudence, breaking with its precedent of the last six years over the legal character of the boards within the constitutionally guaranteed division of powers. The importance of this shift was widely recognized at the time and the new powers of the labor boards were quickly translated into concrete gains for organized labor in its conflicts with employers over the scope and intent of Mexico's post-revolutionary social legislation. |
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This conflict between the Supreme Court and state regulatory law has been subject to at least two competing scholarly interpretations. The first, written predominantly by political and social historians of the revolution, has denied agency to the Supreme Court altogether, explaining these jurisprudential shifts in terms of changes in executive policy and assuming judicial subservience to the will of the executive.6 The second, written predominantly by legal scholars and generally ignored by historians of the revolution, has argued for the relative autonomy of the Supreme Court from executive interference at least for the period after 1917 but prior to the constitutional amendments of 1928 and 1934.7 This second literature has frequently interpreted the Court's original jurisprudence on the labor boards (if not its subsequent reversal) as evidence for an activist and obstructionist jurisprudence in support of its more general claim about judicial autonomy. In this article, I will argue against this second literature's characterization of the Court's original jurisprudence as intentionally activist and obstructionist on this question. A careful examination of the content of this jurisprudence shows that it was very much in line with past precedent and nineteenth century conceptions of the place of the judiciary within the constitutional division of power. However, I will also argue that the absence of judicial-executive conflict, a point highlighted by political and social historians of the revolution, should not be interpreted as support for judicial subordination to the executive. The kind of judicial subservience that would emerge later in the twentieth century, as many legal scholars have claimed, did not characterize executive-judicial relations during this particular period. |
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The Political and Social Historiography of the Revolution and the Legal Scholarship | |
| The legal scholarship just mentioned does not, for the most part, focus on the revolutionary period exclusively. Rather, it takes a much longer view, beginning in the 1860s, a period when Mexico's Supreme Court began to make use of its powers of amparo, an important innovation of the Constitution of 1857.8 Though a similar kind of power had been given the status of constitutional law in the Reform Acts of 1847, it was not until 1857 that the Court's power of amparo would take on its most important and enduring characteristics: a constitutional suit restricted to the Constitution's charter of individual rights and the federal structure, capable of nullifying executive, judicial, and legislative acts, both federal and local.9 As it developed, amparo was initially restricted to the rights claims of private individuals and a suit could only proceed against the positive acts of the public power (i.e., it was a classic formulation of liberalism's emphasis on negative rights in protecting a sphere of private autonomy). Another distinctive feature of amparo was that, even in the case of unconstitutional laws, a favorable decision of the Supreme Court for the complainant only provided relief in that particular case and did not extend to other individuals unless they also filed a suit of their own (no erge omnes effect). Though this system was far more indirect than the better known system of U.S. judicial review, it was sufficiently robust to be the constitutional power that was at stake in several conflicts with the other branches of government. These have been offered as evidence by scholars interested in qualifying the assumption of an uninterrupted judicial subservience.10 |
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The first of these conflicts occurred in the early years of the Restored Republic (1867–1876). In 1868, and with the support of the executive, Congress rewrote the Organic Law for amparo explicitly barring the federal judicial power from admitting amparo cases asked against local judicial authorities. In a case filed by Miguel Vega against Sinaloa's highest court, the Supreme Court disregarded this new provision, in effect declaring it in conflict with the Supreme Court's own interpretation of Article 101 of the Constitution.11 Congress responded by indicting the seven ministers responsible for the majority decision. The indictment proceedings were never carried through, but the political crisis provoked by the Court's decision was real enough. The Supreme Court, for its part, did not reverse itself on this point of law and it continued to admit suits asked against acts of state judicial authorities. With the amparo law of 1882, Congress removed the offending provision acknowledging the unconstitutionality of the earlier law. This judge-made expansion of the sphere of the prerogatives of the federal judiciary in the face of legislative and executive resistance indicates an important margin of judicial autonomy and power during this period. |
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Another important issue that brought the Supreme Court into conflict with the other powers of government was the Court's early policy of admitting amparo against the outcomes of contested elections.12 This converted the Court into the final arbiter of several highly charged political conflicts during the 1860s and 1870s. Probably one of the Court's most important decisions came in 1876 when it nullified the results of President Adalberto Tejeda's reelection, unwittingly aiding in the triumph of General Porfirio Díaz (whose victory the Court also opposed). The first Supreme Court to function under Díaz's tenure as president reversed this jurisprudence in 1879 and, along with the removal of the Chief Justice from the presidential succession (via a constitutional amendment), the Court and the adjudication of amparo suits was effectively depoliticized. This was probably a precondition for amparo's subsequent consolidation but it probably also facilitated the efforts of Porfirio Díaz to ensure a compliant and even subservient judicial power in the years following 1888. The key to this control of the judicial power was Díaz's control of the electoral process itself and the constitutional requirement that justices be reelected every six years. In 1893, Díaz also defeated the attempt by the Liberal Union of that year to bolster the independence of the Supreme Court through the establishment of a constitutional amendment granting the justices lifetime tenure.13 Díaz is thus credited with eroding the decisional independence the Court had enjoyed during the period of the Restored Republic. |
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According to much of the political historiography on the revolution, Díaz's subordination of the judiciary was also to characterize executive-judicial relations after 1917. According to the legal scholarship on the judiciary, however, a new judicial power after 1917 gained an important margin of autonomy as a result of several important constitutional reforms insulating the judiciary from executive interference and evidenced, among other things, by the Court's labor jurisprudence.14 Unlike the examples just mentioned, however, this jurisprudence, though it provoked the ire of certain state governments, did not provoke much of a response from the authorities of the federal executive. Indeed, it is not clear that this was a jurisprudence that the federal executive ever opposed, at least not prior to 1924. The executive's switch to a more pro-labor policy in 1924 happened during the same time as the Court's dramatic reversal of its original jurisprudence. This simultaneity lends support to political and social historians of the revolution who have assumed that the revolutionary era Supreme Court was, like the late-Porfirian Court, subservient to the executive branch of government on all important political issues. Does this mean that the legal scholarship has been wrong in suggesting that judicial autonomy followed in the wake of the constitutional reforms of 1917? The absence of an open conflict between two powers of government is, of course, not a definitive answer. It thus behooves us to enter into the question a little more deeply, paying special attention to the judicial sources themselves. |
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The Content of the Court's Original Labor Jurisprudence | |
| When the Supreme Court reopened its doors on June 1, 1917 (they had been closed by the revolution in August 1914), it was to do so under a new constitution, the Constitution of 1917, best known for its radical innovations in agrarian and labor reform. Its membership was also overwhelmingly drawn from the ranks of the victorious revolutionaries.15 In this respect, the new Court was very different from the Supreme Court that had functioned prior to 1914 and had sympathized with forces hostile to the revolution.16 Another important difference was institutional. The Constituent Congress of 1916–17 had made several constitutional reforms in an effort to bolster the independence of the Court vis-à-vis the executive. The new Constitution reduced the size of the Court to eleven justices and changed the appointment process. Justices were now to be appointed by the Congress with nominations coming from each of the state legislatures following a procedure to be fixed by state law. A proposal to allow the executive branch to intervene in the nomination process was roundly defeated by the Congress. Moreover, after two trial periods, the first ending in 1919 and the second in 1923, the justices to the Court were to enjoy lifetime tenure and the Court had gained back the right to nominate circuit and district judges (appointed by the executive branch during the Porfiriato). |
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However, there were also important continuities. In particular, the Constitution of 1917 largely preserved the system of amparo as it had taken shape prior to the revolution.17 In short, the revolutionary experience, said to be so important for shaping the new labor law, did not have an immediate impact on the amparo suit. Indeed, the obvious continuities linking amparo as it was practiced during the Porfirian era to the post-revolutionary period allowed the new Supreme Court to adjudicate and decide amparo suits filed since May 1917 despite the conspicuous absence of new regulatory legislation. In its act of June 6, 1917, the first Court also ordered district level judges appointed since the summer of 1916 to begin doing the same. These judges had been barred from doing so by a previous executive decree.18 In fact, enabling or regulatory legislation that would take into account changes made to amparo by the new Constitution would not be passed by Congress until the fall of 1919. |
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This decision on the part of the new justices meant that they would also begin to hear amparo suits filed against the new social legislation and the new labor law in particular. The first of these decided by the new Court was in a suit filed by the company J. Crasseman against actions taken by a new kind of constitutionally recognized institution, the boards of conciliation and arbitration (Article 123, Fractions XX–XXI). The facts of the case are as follows: an ex-employee of the company, Ignacio Guerra Casares, had filed a complaint for unpaid wages before the state of Yucatan's military commander. The commander, however, was not competent to decide the matter and referred the complaint to the Labor Department who in turn passed it onto the recently created labor arbitration board. At the request of Guerra, the board petitioned the company for access to its account books and, though the company refused, the board persisted. The company, after failing to get the order stayed at the local level, filed amparo citing a number of constitutionally guaranteed individual rights including Article 16, retained from the liberal Constitution of 1857.19 |
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Three main points structured the Supreme Court's brief decision. The first was the question of whether the system of labor boards created by Article 123 was intended to handle the conflict that had arisen between the company and its employee after the cited labor contract had lapsed. The Court answered this question in the negative explaining, "Article 123 of the Constitution and the labor legislation in force, treats laborers, wage workers, employees, domestics and artisans, such that in the present case they are not applicable, from the moment when the aggrieved society, and the injured third party Ignacio Guerra Casares, no longer have the character of employer and worker respectively." Second, the Court did not consider the board's perceived need to see the company's books as part of the legally defined functions given to the boards by the Constitution. In the words of the decision, the main object of the boards was "to reconcile (avenir) employers and businessmen with the workers," and so by ordering the company to display its books against its will, the board had overstepped its legally circumscribed purpose. Third, the Court cited Fraction XXI of Constitutional Article 123 as providing the employer, as well as the worker, the right to refuse to submit to arbitration before these administrative agencies. Therefore, the board was not competent to force the company to comply with its request and consequently this authority had clearly violated in the person of the company the guarantee provided for in Article 16 of the Constitution.20 |
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Of the three, it was the Court's interpretation of Fraction XXI that was to have the most important repercussions for the subsequent functioning of the labor boards. This fraction read, "If the employer refuses to submit their differences to arbitration or to accept the decision pronounced by the board, the effect is the termination of the labor contract and he will remain obliged to indemnify the worker with three months salary as well as the responsibility that results from the conflict. If the refusal is on the part of the worker the effect is the termination of the labor contract." For the Court, the decision to include sanctions for non-compliance implied that the decision to submit to arbitration was optional. Indeed, the possibility that the Constituent Congress had actually intended to create a system of labor boards that enjoyed the same powers as a tribunal, that is, jurisdiction with the power to pronounce sentences and make them respected, was in the Court's own words, "inconceivable."21 But it was not just the wording of Article 123 itself that led the Court to refuse to recognize in the boards (an administrative not a judicial entity) jurisdictional powers of a binding sort. There was also an important interpretation of Article 16 and the division of powers that was at stake. |
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Certainly Article 16 was not the only article cited by lawyers in their briefs or by judges in these early decisions but it was the past precedent established around Article 16 that most clearly conditioned the Court's interpretation. Article 16 as it existed prior to the revolution was by all accounts the most adjudicated and probably one of the most effective constitutional rights claimed before the courts of the time. This was one of the reasons why the Constituent Congress of 1916–17 left the most important wording of this article unchanged despite two proposals for extensive amendment by the constitutional reforms committee. According to Porfirian legists, Article 16 provided, among other things, a guarantee of "constitutional competence," a concept that presupposed a particular understanding of "the nature of the public functions given the division of sovereign power for its exercise in legislative, executive and judicial power."22 Though an examination of Mexico's constitutions might lead one to conclude that the theory of the division of powers has changed very little over the last two hundred years, a nineteenth century liberal conception of this division differed profoundly from later welfare state conceptions in at least one crucial respect. The line between the administrative sphere and that of the judicial was mediated by a concept of the contentious that tightly circumscribed the actions of the executive from intervening in the sphere of economic life. |
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In 1879, for example, the Supreme Court extended federal protection to Carlos Alvarez Rul and Luis Miranda e Iturbe against unconstitutional acts of the city government of the Federal District. The complainants had celebrated a contract with the city government on September 4, 1878 for the construction of several rail lines in the city. For reasons that do not appear in the published decision, the municipal government declared this contract null and void in March of the following year and, furthermore, ordered Alvarez and Miranda to remove all works already begun so as to return the streets to their original condition. Against these two administrative accords, Alvarez and Miranda filed amparo, citing among other violations those rights contained in Article 16 of the Constitution.23 The first Porfirian Supreme Court argued that a contract with a state authority was a special case, not reducible to civil law rules of contract and involving the public interest. However, it did not believe that these considerations justified the administrative authority's unilateral termination of this particular contract. Though there were several important exceptions enumerated by the Court, the majority did not feel that administrative authorities could decide matters of a "contentious" nature. Where the contentious began, so, too, did the jurisdiction of the courts and in this way the courts limited the power of the executive. According to the Court, "one cannot declare that the lapse of the contract [caducidad] exists without resolving a matter of a contentious nature in which one has to define facts, apply the law relevant to the cause, and decide in this way a true litigation between the authority that sustains that this lapse exists and the concessionaires who deny that it does."24 As a general rule, all contentious questions of rights and duties were to be referred to the judicial branch. They could not be decided by the administrative branch of government, and when the administration acted in these cases without first waiting for a judicial decision to resolve the contentious matter, this was a violation of Article 16's competency clause actionable through amparo. |
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This interpretation as expressed in the Alvarez and Miranda case became a fixed feature of late nineteenth century jurisprudence and the adjudication of Article 16 in literally hundreds of cases.25 Since Porfirio Díaz came to control both the appointments of judges at the district level and justices to the Supreme Court, it could easily be objected that this compliance with an older theory of constitutional competence was a merely formal exercise lacking the substance of a true system of checks and balances. No doubt this was the case. Yet even as a formal exercise, the federal state's compliance with this jurisprudence was impressive. All the more when we consider that this was a time of an important expansion of administrative bureaucracy and the increasing intervention of the national-state in waters, lands, mining, and industrial policy.26 On those occasions when the executive branch of government did overstep these limits as established by this jurisprudence, the assertiveness of the Court seems to have been unequivocal. In an amparo filed in 1896 over a dispute related to the declaration and survey of public lands, the Supreme Court told the Secretary of Development (Fomento) that, as an administrative body lacking "the constitutional jurisdiction for resolving contentious issues only to be resolved by the authorities of the Judicial Power, [their determination] violates the most generally established principles of jurisprudence."27 |
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That this jurisprudence strongly conditioned the Supreme Court's initial interpretation of Article 123 seems even more likely when we jump ahead to the debates of the Constituent Congress of 1916–17. Indeed, one of the authors of the draft law that would later become Article 123 was quite explicit on two important points: first, the main innovation of this particular draft law was the creation of a system of labor boards and, second, the labor boards were not to be considered tribunals.28 For those justices who had been present during these debates, this was surely enough. The new labor boards were not to be regarded as an exception to the division of powers; they were to be considered commensurate with the jurisprudence around Article 16's guarantee to constitutional competence that limited the administrative sphere to the non-contentious. |
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A "Practical System" of Labor Arbitration? | |
| Was it possible to sanction an important expansion of administrative power into the sphere of industrial relations and remain committed to a traditional interpretation of Article 16? By the standards of twentieth century welfare states this seems unlikely. It is the purpose of this section, however, to render this vision plausible by judging this jurisprudence not in the light of the modern administrative state as it would later develop but as the justices themselves understood it in the years 1917–19. That the majority interpretation of the labor boards was not—as we shall see—an interpretation considered to be incompatible with the full implementation of a vigorous labor law also cautions us against imputing to it the predilections of an anti-labor president or executive policy more generally. It is not beside the point to reiterate here that one of the main mechanisms of executive control of the judiciary was conspicuously absent in these early years, namely executive control of judicial appointments. Congress had the final say on Supreme Court appointments and, as we know from recent work on the history of the Chamber of Deputies, none of the early presidents effectively controlled the Congress.29 Most importantly, however, it was simply not clear at the time what consequences the Court's early jurisprudence around Article 123 would have. |
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Not only did the Court in its early decisions openly countenance all of the new principles and in general sanction the expansion of state power into the formerly "private sphere" of industrial relations, but if events had gone differently at the local level, it is quite possible that the Court's original jurisprudence would not have created a problem for implementation at all. This, then, would have been the first Court's "practical system" of labor arbitration as it was initially intended. In accordance with this self-understanding: Fraction XVI recognized the right to form unions and for the right of employers to form associations; Fraction XVII stipulated that these associations could act coercively against each other using either the strike in the case of workers or the "paro" (lockout) in the case of employers; Fraction XVIII and Fraction XIX defined and limited these actions with additional restrictions placed on the "paro." This kind of legal inequality was justified as an attempt to balance the economic power of employers, but wages (with the exception of the minimum wage) were still to be determined in a "market," albeit one in which collective bargaining was to play a decisive role. If Fraction XVIII and Fraction XIX set forth the parameters for these new rules of the game, Fraction XX created an organ to deal speedily and effectively with the conflicts that would inevitably arise from these new legalized modes of direct action. Fraction XXI placed the burden of failed arbitration squarely on the shoulders of the employers. |
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The need for such provisions were, as the first revolutionary Court explicitly recognized, a result of industrialism and the concentration of private power that had resulted in the patent inequality of the workers in their day-to-day relations with employers, a diagnosis that was shared by Congress. "The equality of the legal position of boss and worker" was the very first in a list of revolutionary accomplishments presented by the Chamber of Deputies in the first draft labor law for the Federal District.30 As in Europe, then, the new labor law found its principal justification in the changing social context brought about by industrialism. As one justice repeated before the Court:
All of the justices know that the two characteristics of capitalist organization consist first, in the concentration of work, in grand concentrations and, second, in the predominance of the capitalist over the workers. These two elements that are characteristic of the capitalist regime bring within an enormous injustice: that of breaking the equality of parts in a labor contract; the worker obliged by the necessity to live sacrifices his independence in order to receive a salary that permits him to live; the capitalist not by ill will, but by the necessary subjection to the inevitable principle of every capitalist business to obtain the greatest profit at the least effort and with the least cost, sacrifices the wage of the worker in favor of his profit; thus the worker who goes to agree to a contract submits himself to the necessity of living and ends up subjected to the will of the capitalist; from here the constant conflict between the worker and the capitalist. The new legislation in its orientation towards social reform, has intended to create a means to guarantee the rights of workers in order that they can form part of human society.31
Such an understanding would hardly have permitted a jurisprudence that intended to leave the labor boards without legal sanction. Indeed, their understanding of this sanction was in fact not much different from the one in force during the Weimar Republic, whose system of labor arbitration is still lauded by European scholars as a milestone in the history of labor law but is treated in Mexico as intentionally obstructionist and reactionary. The same justice explained:
Justice González has already informed us of the sanctions that they have applied and explored in diverse countries of the world to make effective as possible the resolutions of the labor boards. For our part we have followed a practical system: When, in a conflict, one of the parts to the conflict does not want to submit to the basis of arbitration, this fact produces the following effects: first, it causes the rescission of the contract, consequently those that formed the labor contract are at liberty to comply with it and they are at liberty to comply with it or not and should deduce their rights before the civil courts. Consequently, it is cause for indemnity in favor of the worker the fact that the employer has refused to comply with the contract. So that by the fact of the employer refusing to comply with the contract, the right to request three months salary arises in the worker but it is not the job of the Board of Arbitration to enforce this right. A right springs forth which should be claimed before the tribunals.32
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This "practical system" envisioned by the Court was one that recognized in the boards the power to decide industrial conflicts in a manner that bypassed the formalities and delays of civil litigation. However, since it was an administrative agency, constitutional jurisprudence and sound constitutional interpretation dictated that the powers of the boards ceased whenever a private individual considered his or her private rights were being decided by an administrative action. In other words, though both the need and social justification for the new labor provisions were recognized by the Court, the justices insisted that this new social demand must also be reconciled with the constitutional interpretation of a delineated and limited division of powers as understood in the last third of the nineteenth century. To make the labor boards an exception to this conception of judicial control, in short, to recognize in the boards an "administrative tribunal," would have been to undermine the constitutional guarantee contained in Article 16, quite explicitly left intact by the work of the Constituent Congress. |
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Though various aspects of the Court's original jurisprudence on the constitutional competency of the new labor boards were contested by one or another of the justices at the time, there was nonetheless complete consensus with regard to the crucial question of the administrative nature of the labor boards and their consequent limits. They were not, everyone agreed, an exception to the constitutional interpretation of the division of powers and Article 16 of the Constitution. Any persistent doubts over this point are put to rest by an examination of the particular controversies that did divide the first Court in the early months of 1918. |
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In what appears to be the first sustained controversy over the juridical nature of the labor boards, the Court split over the question of whether these new agencies could be considered "authorities" for the purposes of amparo. If they were not, then the suit under consideration, filed by one Manuel Reyes, could not be admitted. Justice Pimentel, for one, thought that this particular position sustained by Justice González and Justice Truchuelo was simply untenable, though he did recognize the need to establish firm criteria on this question since "we are going to continue to have many cases filed against the labor boards." He felt that, "the boards of conciliation and arbitration do not have jurisdiction, that is to say, they are not tribunals, they are not judges that have the faculties to admit cases of litigants, of differences between private individuals and execute their resolutions; but that they do not have jurisdiction, that they are not tribunals, does not result in them not being authorities for the purpose of amparo."33 Justice González disagreed, saying that the boards were "an auxiliary board to the administration ... it has never been thought that they have public authority; in the case they are nothing more than arbiters and they have the duty of finding as arbiters, arbitradores and amigables componedores in law. The decisions of the arbiters only have value between the persons or parties that subject themselves to the rules in the case."34 The majority agreed with González that both parties had to submit to make the resolutions binding but it was Justice Pimentel's position that was to become the established jurisprudence of the Court. Though Justice Truchuelo also thought that the Court should stay all suits filed against the boards, he agreed with the majority when he said that those who are opposed to such a settlement simply do not have to accept it, "and then, they go before the judge."35 Despite being divided on the capital question of the suit's admissibility, it was obvious to all parties to the debate that the boards could not treat contentious questions of right as if they were tribunals.36 Though other aspects of the Court's original jurisprudence regarding Article 123 would be changed by a second revolutionary court installed on June 1, 1919, these limits imposed on the labor boards would remain a constant of judicial practice until 1924. |
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The Original Jurisprudence and the Rise of Organized Labor | |
| The obstructionist consequences of this jurisprudence for the implementation of Article 123 were not immediately obvious. Moreover, the obstacles that did arise were not exclusively the product of judicial decisions. The growing power of organized labor in state and national politics was also a contributing factor. |
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According to the labor historian Jeffrey Bortz, prior to the revolution, "unions were mostly not legal, often persecuted, and generally disdained by authority."37 There were none of the modern protections of labor law and factory owners could count on the violent arm of the state to enforce their interests. In 1906 and 1907, strikes were put down violently in the states of Veracruz and Sonora. With the revolution, however, the legal status of workers and industrial workers in particular was vastly improved.38 This did not happen to the same extent in every region but the states where industrial violence during the revolution was especially severe were also the states where workers became important political constituencies.39 |
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One important factor in the rise of organized labor in Mexico, as elsewhere, was the creation of legal labor organizations. Mexico's first national labor organization, the "Regional Confederation of Mexican Labor" or CROM was created in 1918 and a leader of one of the early electricians' unions, Luis Morones, was elected as its secretary general.40 Under the leadership of Morones, the CROM plunged headlong into the political fray, signing a secret pact with presidential candidate Alvaro Obregón and founding a political party (the Labor Party) in order to launch candidates for national office.41 Obregón's support was qualified but there can be little doubt that the CROM gained strength with his ascendancy to the presidency in 1920.42 The CROM also benefited from its political links to Plutarco Elías Calles. Indeed, under Calles, Morones would be appointed Minister of Industry, Commerce, and Labor. During the early 1920s, a Labor Party candidate also controlled the governorship of Mexico City for a time and six Labor Party candidates made it into the national legislature, including Morones himself.43 |
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However, the real laboratories for revolution with respect to Mexico's nascent labor law were in the states and not in the Federal District. Though the various state laws were diverse (a principal complaint of industrialists lobbying for a national labor code), all of them privileged the labor boards as a central institution in the implementation of new social norms. According to Article 123, labor boards were required to have a tripartite structure, giving equal representation to employers and workers, with a deciding vote to be cast by a government official.44 This aided in the politicization of the workers' organizations of which the CROM is the best example. The new unions had an important stake in controlling which workers were to be elected to the new labor boards. Unions with representation in the new state governments increasingly came to control the appointment of the presiding government official who could potentially favor the demands of one group of workers over those belonging to a rival organization.45 Under the new state laws, boards were charged with fixing minimum wage and profit sharing arrangements, settling indemnities over work-related accidents, and, perhaps most importantly, settling conflicts that arose over the labor contract. The 1918 Veracruz labor code even required a board's approval before an employee could be fired.46 Large factories were also required to get approval before posting work rules regulating the shop floor.47 Yucatan's new labor code made the decisions of the boards the one and only instance in any work-related conflict, against which "no appeal is allowed" (no cabe recurso alguno).48 In other words, they were the key institution charged with implementing the new social provisions. |
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It is hardly surprising that those states with strong labor backing expanded the powers of this institution as much as possible and this also explains why state-Supreme Court controversies on the question of the labor boards centered on the states that they did. As Kevin Middlebrook has concluded, "the organization of conciliation and arbitration boards increased the labor movement's ability to translate its growing political importance into workplace gains."49 In states like Yucatan, Veracruz, and Puebla, employers began filing suits against the decisions of local labor boards and after 1918 routinely received federal protection rendering these administrative actions null and void on the basis of the Court's established precedent. The Court decided against the administrative authorities even when they were acting within the bounds set by state law, declaring many of these new state laws unconstitutional.50 Yet few of these state laws were changed to bring them into line with the Court's jurisprudence. |
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It is with this background in mind that we can begin to see how the Court's jurisprudence became the obstacle that it did. As organized labor pushed to expand the powers of the boards beyond what the Court had established were its constitutional limits, employers and industrialists, though alienated from the centers of political power, nonetheless found an invaluable tool for resisting the implementation of the new redistributive principles in the Supreme Court. In response, workers put direct political pressure on the Court. Protests were staged by organized labor,51 petitions directly addressing the Court were written,52 anonymous threats (most certainly written by workers) were addressed to the Court,53 and Mexico City's press concluded that the Court's jurisprudence bore much of the responsibility for the current crisis around regulating and implementing the new labor law.54 In the national legislature, one deputy complained that, "Article 123 has been scandalously violated; in effect it is not in force, we all know it; it is the Supreme Court of Justice, to a significant degree, who is at fault since they have made the labor boards completely useless."55 |
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Initially, the political mobilization of labor and its threats of direct action foreclosed the possibility of a reconsideration of the Court's previous jurisprudence. The majority did not want to appear swayed by open political pressure or political intimidation. However, at least one justice broached the question of whether the justices should revisit their earlier position on the labor boards in response to workers' mobilization. In a discussion of January 30, 1922, with the Court already falling behind in its ability to decide the thousands of suits that were being filed against administrative officials, the majority moved to give preference to labor cases in order to speed their resolution. While not opposed to the initiative, Justice González (one of the few justices retained from the first revolutionary Court) did object that the proposal did not go far enough. If the Court wanted to be responsive to the needs of the workers, he argued, the justices could not speed up the resolution of a handful of suits only to "repeatedly vindicate an industrialist who doesn't want to pay three months salary to the worker that he fired."56 He proposed that the Court consider recognizing the boards as tribunals. Such a proposal meant an important modification of the doctrine of constitutional competence, the division of powers, and due process of law as guaranteed by Article 16. His proposal was rejected by the other justices. (Justice Moreno, also retained from the first Court, was to be especially emphatic on this point in the months that followed: "the Court cannot give the boards more attributes than they have been given [constitutionally].")57 It is significant, however, that this proposal came from Justice González, the same justice who in March 1918 had elaborated upon the "practical system" of labor arbitration originally intended by the Constituent Congress and had been opposed to the creation of labor tribunals. |
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Thus, by 1922, there were an increasing number of reasons for the Court to reconsider one of the central postulates of nineteenth century constitutional theory that had guided the early jurisprudence on labor. To begin, several of the assumptions that had supported this vision of a "practical system" were no longer plausible, given the way the system had evolved in practice. For example, it had been widely assumed in 1917–19 that the boards would eventually be perceived as benefiting both owners and workers alike by providing an extra-judicial process that by-passed the delays associated with the local justice system, saving time and money and avoiding the costs of a strike. As with the newly sanctioned collective contracts,58 the public law that created the boards contained both carrot and stick so that even though Article 123 clearly benefited workers, it was argued, employers would soon find it in their interest to comply. This was critical since the success of the system required the ultimate consent of both parties to make them legally binding. However, in the case of the boards, the incentives simply did not outweigh the costs and the employers found it in their interest to avoid, by any means possible, the intervention of the boards. |
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Another key assumption of the early jurisprudence was that workers would take an employer's refusal to submit to arbitration to the local courts. In practice this rarely happened. It is probable that the prospect of never-ending litigation59 acted as a powerful deterrent to workers' suits. Instead, workers and their unions continued to insist on the immediate enforcement of any resolution that came down from the labor authorities in favor of an individual or group of workers. In other words, they wanted the labor boards to have jurisdiction. |
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The Reversal of the Original Jurisprudence | |
| It was the constitutional vision of the boards promoted by the state legislatures and organized labor (especially the CROM) that would eventually triumph, though not until the appointment of a third Supreme Court. The election itself, drawn out over several months in the summer of 1923, was the most openly contested of the period, partly because these justices would now enjoy lifetime tenure but also because there was a significant fissure developing among various revolutionary groups over the presidential succession of 1924. So severe was the contestation that it led to a stalemate between the National Cooperativist Party (PNC) majority in control of the Chamber of Deputies and the opposition majority in the Senate during which time the Supreme Court ceased to function (its constitutional powers ending on June 1, 1923). Eventually the PNC majority was able to push through their list of candidates against both the wishes of President Obregón60 and the Senate, reconstituting the Court on July 27, 1923 with several openly declared PNC favorites including Francisco M. Ramírez, Sabino Olea, Manuel Padilla, and Ricardo B. Castro. Only Ernesto Garza Pérez and Gustavo A. Vicencio were retained from the previous Court. There is no evidence that the question of the labor boards was an explicit criterion for selecting these new justices (in fact, quite the opposite). Indeed, Victoriano Pimentel, one of the justices most responsible for the original jurisprudence but not reelected in 1919, was reappointed to the Court in 1923. Also, Justice González, who openly declared for a reversal of the old jurisprudence in 1922 and 1923, was not reelected. Finally, those justices who were retained from the previous Court were initially against altering this established jurisprudence. By electing a majority of new justices, however, a new Supreme Court was to address this question of the labor boards with new eyes and at a time when the importance of the political support of organized labor had become a central feature of a new mass politics. |
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In December 1923, the crisis over the presidential succession had devolved into an open rebellion led by President Obregón's former treasury secretary, Adolfo de la Huerta and key leaders of both the PNC and the Liberal Constitutionalist Party or PLC. A majority of the army had rallied to De la Huerta's cause and Obregón had been forced (albeit reluctantly) to rely heavily on irregulars such as armed peasant militias and the support of organized labor.61 In the month of January, at the high tide mark of the rebellion, the Court was faced for the first time with two cases that openly begged the question of the constitutional limits to the labor boards. The first of these was the Carlos Díaz Ordaz case admitted by the Court by an eight to two majority vote on January 12, 1924, but reserved for substantive discussion at the first secretary's next turn.62 On January 18, 1924 another case from Veracruz, this one filed by the Companía Mexicana Holandesa "la Corona," was brought for discussion before the Court. Since it presented the same questions of law as the Díaz Ordaz case, the Court voted to reserve "la Corona" pending a resolution of the earlier case.63 On January 24, 1924, Carlos Díaz Ordaz was denied federal protection as was the Companía Holandesa "la Corona" settled one week later. Though both were unanimous decisions, the very different approach in interpretation and reasoning that the new justices brought to the question of the labor boards is especially clear in the transcripts of "la Corona" and its principal thesis. |
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The debate that took place between the old and new justices, culminating in the Court's February 1, 1924 decision to revoke the District Judge's grant of federal protection, though not as apparent in the legal considerations themselves, clearly reveals that the Court was willing to invest the boards with broad new powers, in effect making them administrative tribunals and giving their decisions the obligatory force of "the thing judged." Two new justices in particular, Justice Padilla and Justice Castro, openly declared for a reconceptualization of the Court's old jurisprudence on the boards, a position questioned but not opposed by one of the justices who had been retained from the previous Court, Ernesto Garza Pérez.64 According to the transcript, Justice Garza inquired if there was in fact evidence that the executive branch had attempted to enforce the determination of the board against the complainants. If not, it was clear to him that the amparo could not be granted even on the basis of the previous jurisprudence and the decision of the district judge who had initially granted federal protection had to be revoked. For this reason, he suggested it was not necessary to go into the complexities of the Court's earlier interpretation of Fractions XX and XXI of Article 123. He then went on to explain the basis of the original jurisprudence and to even remind the Court that Justice González, a member of the Jacobin wing of the Constituent Congress, did not believe that the boards had the same powers as a tribunal. Yet, he did leave the door open by suggesting that the old jurisprudence did not seem to adequately reconcile Fractions XX and XXI to his satisfaction, an objection that he was apparently voicing for the first time. |
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The decision itself appears to have been decided on the basis of Garza's argument that the complainant had simply not demonstrated through evidence that the board had in fact attempted to enforce its decision. However, the willingness of the new justices to recognize in the boards the power of the thing judged when deciding a contentious question of conflicting rights signaled an important transformation in the Court's interpretation of Article 123 and the place of the boards within the division of powers. The next day's headline in the Mexico City paper, El Universal, "Boards will have character of authorities," while only reiterating what had been a staple of the Court's jurisprudence all along, thus announced to the public the radical new stance the Court was about to bring to the question of the boards. The confusion of terms (the new justices had spoken of "imperio") highlights the extent to which the original basis of the Court's jurisprudence had come to be misunderstood or at least misrepresented and, therefore, the way revolutionary public opinion had shifted, successfully pigeonholing the old jurisprudence as obstructionist and anti-revolutionary. According to Justice Castro of the new Court, "The truth is that if you negate authority and jurisdiction to the labor boards we would have to conclude that the Constituent Congress did not do anything to avert the conflicts between labor and capital."65 The implication, of course, is the justices who concluded otherwise must have been hostile to the interests of workers, setting forth a precedent that was intentionally obstructionist and counter to the intentions of the Constitution's founders. This is essentially the understanding of the Court's original jurisprudence that is remembered today. |
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Following "la Corona," the Supreme Court moved far beyond the terms and precepts of the original labor jurisprudence, placing all work-related matters under the jurisdiction of the boards and investing them with broad new powers of a judicial nature. The system established by the new jurisprudence recognized in an administrative agency the power to pronounce sentences and make them respected, that is, it gave them jurisdiction, a possibility that had been blocked by an older conception of the division of powers and the judiciary's monopoly on the adjudication of right. |
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The anecdotal evidence suggests that cases before these labor tribunals were very much decided on a case-to-case basis with no regard for precedent and with frequent violations of the constitutional requirements that were considered actionable prior to the revolution.66 For workers at this particular moment, it mattered little whether the calculability that flowed from establishing precedent based on fixed legal rules, an intrinsic concern of bourgeois institutions of justice67 and Mexico's liberal tradition, existed as a feature of board's decisions or not. What the workers did want was favorable decisions and by the early 1920s, if not before, they knew that they could ensure such decisions through their new found control of the political process. For employers and many legal commentators, these new administrative "tribunals" were not tribunals at all. Instead, what had before been the province of adjudication had now been converted into pure administration.68 If the 1924 reversal made the functioning of the boards immediately more effective in terms of vindicating the new social provisions in favor of workers as laboring groups claimed, then it did so by transforming what had previously been understood as a critical piece of constitutional law unaltered by the Constitution of 1917. This new jurisprudence, therefore, was interpreted by more conservative commentators as the negation of a fundamental constitutional right. |
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The fact that this highly politicized reversal advocated by the new justices actually favored and complemented executive policy at the time, however, should not lead us to conclude that it was simply the foregone conclusion of a subordinated judiciary. The justices to the third revolutionary Court not only possessed lifetime tenure, they had been appointed by President Obregón's opposition. It therefore seems unlikely (though we will never know for sure) that Obregón actually approached the Court prior to its January decision requesting a favorable resolution of this particular issue. On the one hand, it cannot be overemphasized that Obregón was occupied with an open rebellion that left him little extra time or motivation to negotiate with a majority of justices associated with the opposition over an issue that would have had little direct affect on the rebellion itself. The CROM's support was already committed and the Court too had promised to remain neutral in the conflict even if the actions of several individuals implied otherwise.69 On the other hand, those justices who were considered sympathizers with the opposition must have been well aware that this kind of decision would be interpreted favorably by the executive branch at a time when the tides were beginning to turn in favor of government forces. In other words, though executive interference cannot be disproved, to treat this reversal as a straightforward case of judicial subservience makes too many unwarranted assumptions. |
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If this is a plausible redescription of the politics and law of the original jurisprudence and its reversal, then the Court's clear reliance on past precedent inherited from the nineteenth century (and the way this precedent structured the Court's labor jurisprudence) seems especially significant.70 That this precedent came into conflict with the redistributive claims of the labor movement and was then reversed and transformed should not, in any way, diminish this significance. On the contrary, it highlights the larger social context within which the fate of Mexican judicial review needs to be understood. In Mexico, as elsewhere, processes of industrialism and an expansion of political representation to new groups led to important constitutional transformations at the beginning of the twentieth century. These changes could be brought about in many different arenas but at least some of them were a consequence of judicial practice and constitutional adjudication. In the Mexican case, then, the constitutional creation of labor tribunals provided one kind of legal answer for how an expanding administrative branch of government, being called upon to perform novel and conflict-ridden functions in the realm of economic life, was to be accommodated in this new social context. This answer was given by the Supreme Court and marked an important break with past conceptions of the division of powers and the prerogatives of the judiciary. It resembled changes in continental Europe more than the Anglo-American countries to its north but it was by no means unique as far as a new conception of the division of powers was concerned. Even England and the United States, arguably the two countries touched the least by a twentieth century crisis of liberal law,71 were moving decisively away from just such a conception of the division of powers.72 |
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In sum, several of the most important constitutional changes that followed the reversal of the Court's jurisprudence in 1924 do not seem that surprising in light of comparative examples. However, it is usually the peculiarities of the Mexican case that are highlighted by those scholars focusing on legislative changes to amparo, at least when the Mexican case is compared to the better-known case of U.S. judicial review. It is certainly true that the politicization of Mexico's system of judicial review in the immediate post-revolutionary period led some to propose stripping the justices of their lifetime tenure and even to abolish amparo. Similar proposals were also made in the United States during the same period but none of these proposals were successfully translated into legislation.73 In Mexico, however, these proposals became law in 1928 when the legislature packed the Court and in 1934 when the justices were stripped of their lifetime tenure. Though amparo was never abolished, its scope was further limited through a constitutional amendment in 1931. It is possible to explain this change in policy with reference to a weak or denigrated tradition of judicial review in Mexico. This article has at least suggested that if Mexico's system of judicial review was as weak and unimportant as it is commonly assumed, we would be hard pressed to explain the revolutionary Supreme Court's original interpretation of the Constitution of 1917 and the crisis it provoked over the implementation of the new labor law. |
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T. M. James is assistant professor of history at the University of South Carolina Beaufort <tjames@uscb.edu>. He would like to thank Elizabeth Heath, Robert Landrum, and the journal's anonymous reviewers for their helpful comments and suggestions. Thanks also go to Blanche Premo-Hopkins and the University of South Carolina Beaufort for providing travel funds for research critical to the completion of this project. Work on this article was begun as part of a doctoral dissertation completed at the University of Chicago and generously supported by the Mellon Foundation.
Notes
1. Robert M. Buffington, Criminal and Citizen in Modern Mexico (Lincoln: University of Nebraska Press, 2000); Elisa Speckman Guerra, Crimen y Castigo. Legislación penal, interpretaciónes de la criminalidad y administración de justicia, Ciudad de México, 1872–1910 (Mexico: El Colegio de Mexico, Universidad Nacional Autónoma de México, 2002); Pablo Piccato, City of Suspects. Crime in Mexico City, 1900–1931 (Durham: Duke University Press, 2001); see the review of these and other recent works by Peter L. Reich, "Recent Research on the Legal History of Modern Mexico," Mexican Studies/Estudios Mexicanos 23 (Winter 2007): 181–93.
2. Reich, "Recent Research on the Legal History of Modern Mexico," 182. Also see Jaime del Arenal Fenochio, "Derecho de juristas: un tema ignorado por la historiographía jurídica Mexicana," Revista de investigaciónes jurídicas 15 (1991): 149.
3. Reich, "Recent Research on the Legal History of Modern Mexico," 192. According to Reich, traditional legal scholarship on the judiciary has tended to be institutional in its focus. An important exception to the above, however, is Charles Hale, "The Civil Law Tradition and Constitutionalism in Twentieth-Century Mexico: The Legacy of Emilio Rabasa," Law and History Review 18, no. 2 (Summer 2000): 257–79, also cited by Reich.
4. Joel G. Verner, "The Independence of Supreme Courts in Latin America: A Review of the Literature," Journal of Latin American Studies 16 (1984): 468. Though it has been more than twenty years since Verner's review of this literature, his argument that these generalizations simply cannot be substantiated on the basis of the extant literature remains true today. They, nonetheless, are still core assumptions of much recent work including Hale's significant contribution cited above. An important exception to the neglect of this topic since Verner's review is Linda Arnold, Politíca y justicia: La Suprema Corte Mexicana, 1824–1855, trad. Jose Luis Soberanes Fernandez y Julian Bunster (Mexico: Universidad Nacional Autónoma de México, 1996).
5. Similar in content to the Fourth Amendment of the U.S. Constitution, Article 16 mandated, "No one shall be molested in his person, family, domicile, papers or possessions, except by virtue of an order in writing of the competent authority, setting forth the legal cause upon which the measure is taken." Translations from the text of both constitutions have been taken from H. M. Branch, Mexican Constitution of 1917 Compared with Constitution of 1857 (Philadelphia: The American Academy of Political and Social Science, 1917). All other translations from the Spanish are mine unless otherwise specified.
6. Stephen Haber, Armando Razo, and Noel Maurer, The Politics of Property Rights: Political Instability, Credible Commitments, and Economic Growth in Mexico, 1876–1929 (New York: Cambridge University Press, 2003), 71–75; María del Carmen Collado Herrera, Empresarios y Políticos, entre la Restauración y la Revolución 1920–1924 (Mexico: Instituto Nacional de Estudios Históricos de la Revolución Mexicana, 1996), 325–26; Kevin Middlebrook, The Paradox of Revolution: Labor, the State and Authoritarianism in Mexico (Baltimore: Johns Hopkins University Press, 1995), 58. An important exception remains Ernest Gruening, Mexico and Its Heritage (New York: D. Century Co., 1928), 509.
7. For a succinct review of this literature, see the recent article by Pilar Domingo, "Judicial Independence: The Politics of the Supreme Court in Mexico," Journal of Latin American Studies 32, no. 3 (Oct. 2000): 705–35.
8. For a survey of these relations prior to 1860, see Arnold, Politíca y justicia.
9. To mention just a few of these, Article 2 prohibited slavery, declaring that simply by entering national territory, chattel in a person was dissolved. Article 4 established the right to work in one's chosen profession, "provided it be lawful," and reserving traditional restrictions of "police" as to be determined by the law. The right to assemble was guaranteed by Article 9, but restricted to citizens when the purpose was "taking part in the political affairs of the country," and was denied as a right to armed assemblies. Article 13 established the equal protection of the laws, abolishing all fueros or special jurisdictions with the exception of the fuero militar (military court) and only in cases related to "military discipline." Article 14 prohibited the retroactive application of the law and Article 27's right to property mandated that expropriation must follow a declaration of public utility and indemnity.
10. For example, Hector Fix-Zamudio, "Ejecutivo Federal Y El Poder Judicial," in El Sistema Presidencial Mexicano (Algunos Reflexiónes) (Mexico: Universidad Nacional Autónoma de México, 1988), 273.
11. Miguel González Oropeza, "El Amparo en negocios judiciales. El caso de Miguel Vega," Anuario Mexicano de Historia del Derecho 10 (1998): 385–98.
12. Miguel González Avelar, La Suprema Corte y La Política (Mexico: Universidad Nacional Autónoma de México, 1979).
13. Charles A. Hale, The Transformation of Liberalism in Late Nineteenth-Century Mexico (Princeton: Princeton University Press, 1989), chap. 4.
14. Lucio Cabrera, for example, suggests that the autonomy and political importance of the first revolutionary Supreme Court was equal to that of the Restored Republic and the early years of the Porfiriato (1876–1882). Lucio Cabrera, La Suprema Corte de Justicia durante los años constitucionalistas (1917–1920) (Mexico: Suprema Corte de Justicia de la Nación, 1995), 19.
15. Chief Justice Enrique de los Ríos, considered himself a revolutionary first and only secondarily a Supreme Court justice. He had been passed over by President Madero as a Supreme Court justice in 1911. Ironically, Madero preferred an old stalwart of Porfirismo, Demetrio Sodi. Justices Moreno and Urdapilleta had both fought in various military capacities for the revolution. Alberto M. González, Jose Maria Truchuelo, and Enrique Colunga, had all been members of the Jacobin wing of the Constituent Congress. The one apparent exception to a court made up of revolutionaries, then, seems to have been Justice Victoriano Pimentel who served in one minor capacity under the Victoriano Huerta government. However, it should also be noted that his appointment was backed by several prominent revolutionaries including the radical Luis Sanchez Pontón and ex-constitutional deputy, Hilario Medina. Diario de los Debates, Cámara de Diputados, Leg. XXVII, 26/5/17. Additional biographical details covering the life of Victoriano Pimentel, which do not however mention his work in the Huerta government, can be found in the Seminario Judicial de la Federación (hereafter SJF), 5, XII, p. 389.
16. On this earlier history, see Lucio Cabrera Acevedo, "La revolución Mexicana y la Suprema Corte de Justicia, 1910–1914," in Diplomacia y revolución: homenaje a Berta Ulloa, ed. Anne Staples et al. (Mexico: COLMEX, Centro de Estudios Históricos, 2000).
17. One important reform to the amparo provisions related to suits filed against local judicial decisions but even this change largely confirmed pre-revolutionary practice as did other additions to Article 102, now Article 107 in the new Constitution.
18. Archivo Suprema Corte de Justicia de la Nación, México, (herafter ASCJ) Actas, Primer Periódo, Junio 1917, Acuerdo Pleno del Día 6 de junio de 1917.
19. SJF, 5, I, p. 775, noviembre 1917.
20. Ibid.
21. SJF, 5, II, p. 772, marzo 1918.
22. Eduardo Ruiz, Curso de Derecho Constitucional y Administrativo (Mexico: Oficina Tip. De La Secretaría de Fomento, 1888), 1:174–86.
23. Ignacio L. Vallarta, Cuestiones constitucionales: votos del Sr. Lic D. Ignacio L. Vallarta, edición económica (Mexico, 1894), 1:187.
24. Ibid.
25. See, for example, SJF, 2, X, p. 331, enero 1886; SJF, 2, X, p. 876, junio 1886; SJF 2, XIV, p. 307, febrero 1888; SJF, 2, XIV, p. 321, febrero 1888; SJF, 2, XIV, p. 350, febrero 1888; SJF, 2, XIV, p. 739, abril 1888; SJF, 3, III, p. 813, junio 1891; SJF, 4, XXVIII, p. 440, septiembre 1906. For the importance of this jurisprudence in conflicts over pueblo lands, see Robert J. Knowlton, "Tribunales Federales y Terrenos Rurales en el Mexico del Siglo XIX: El Seminario Judicial de la Federación," Historia Mexicana 46.1 (1996): 90, 93, 96.
26. Indeed, these changes brought with them the first continuous elaboration of modern administrative law in Mexico according to Gustavo R. Velasco, "Derecho Administrativo," in Evolución del Derecho Mexicano, Tomo I (México: Editorial Jus, 1943), 50.
27. Sentencia pronunciada por el Tercer Tribunal de Circuito en autos seguidos por la extinguida Comunidad de Villa Unión contra los denunciantes del predio 'Siqueros' publicada por el lic. A Yriarte (Mazatlan: Tip. Y Casa Editorial de M. Retes y Cía., 1897) with reference to a sentence of August 11, 1896.
28. Diario de los Debates del Congreso Constituyente, 1916–17, 2nd ed. (México: Tallares Graficos de la Nación, 1960), 1:1040.
29. Ignacio Marván Laborde, "De instituciones y caudillos: las relaciones entre la Cámara de Diputados de la XXVIII Legislatura y el presidente Carranza," Historia Mexicana 51, no. 2 (2001): 261–323; Jeffrey Weldon, "Political Sources of Presidencialismo in Mexico," in Presidentialism and Democracy in Latin America, ed. Scott Mainwaring and Mathew Soberg Shugart (New York: Cambridge University Press, 1997), 225–58.
30. Dictamen de la primera comisión especial para el estudio y presentación de leyes reglamentarias que consulta una iniciativa de ley del trabajo (Mexico: Imprenta de la Cámara de Diputados, 1917), 2–3.
31. ASCJ, Versiónes Taquigráficas, pleno, agosto y septiembre 1918, 31 de agosto de 1918.
32. Ibid., emphasis added.
33. ASCJ, Versiónes Taquigráficas, pleno, enero y marzo 1918, 12 de enero de 1918.
34. Ibid.
35. Ibid., emphasis added.
36. Both justices Truchuelo and González were members of the Constituent Congress of 1916–17.
37. Jeffrey Bortz, "'Without Any More Law Than Their Own Caprice': Cotton Textile Workers and the Challenge to Factory Authority during the Mexican Revolution," International Review of Social History 42 (1997): 256.
38. Ibid.
39. This is especially true for Veracruz, which has traditionally been singled out for the large number of "labor disturbances" that took place during the revolution and was one of the first to pass regulatory legislation for Article 123, which, "was in some respects more favorable to labor than was the constitution." Marjorie Ruth Clark, Organized Labor in Mexico (Chapel Hill: University of North Carolina Press, 1934), 53–54. Also see Aurora Gomez, "Impact of Revolution: Business and Labor in the Mexican Textile Industry Orizaba, Veracruz, 1900–1930," (Ph.D. diss., Harvard University, 2000); and Jeffrey Bortz, "The Revolution, the Labour Regime and Conditions of Work in the Cotton Textile Industry in Mexico, 1910–1927," Journal of Latin American Studies 32 (2000): 671–703.
40. Barry Carr, El Movimiento Obrero y la Politica en Mexico, 1910–1929 (Mexico: Ediciónes Era, 1981), 82–91.
41. This was a significant break from the "a-political" stance in electoral contests that the anarcho-sindicalist leadership of many of the early organizations had tried to maintain. For the influence of anarchism and other radical ideologies on the Mexican working class, see John M. Hart, Anarchism and the Mexican Working Class, 1860–1931 (Austin: University of Texas Press, 1978).
42. Collado, Empresarios y Políticos.
43. Jorge Basurto, El Proletariado Industrial en Mexico (Mexico: UNAM, 1975), 221–24.
44. Article 123, Fraction XX.
45. Middlebrook, The Paradox of Revolution, 62.
46. Jeffrey Bortz, "Authority Re-Seated: Control Struggles in the Textile Industry during the Mexican Revolution," Labor History 44, no. 2 (2003): 171–88.
47. Jeffrey Bortz, "The Legal and Contractual Limits to Private Property Rights in Mexican Industry During the Revolution," in The Mexican Economy, 1870–1930: Essays on the Economic History of Institutions, Revolution, and Growth, ed. Jeffrey Bortz and Stephen Haber (Stanford: Stanford University Press, 2002), 270.
48. SJF, 5, III, p. 1337, diciembre 1918.
49. Middlebrook, The Paradox of Revolution, 56.
50. It is important to remember that such declarations did not have erge omnes effect. For one of the first of such resolutions, see SJF, 5, II, p. 772, marzo 1918. Also for a decision against a Michoacan law, see SJF, 5, III, p. 728, septiembre 1918. However, just because they did not have erge omnes effect does not mean that they did not present a significant barrier to implementation, which concerned legislative and executive officials alike.
51. Gruening, Mexico and Its Heritage, 365.
52. ASCJ, Versiónes Taquigráficas, pleno, abril II 1922, "Solicitud de la Unión Minera Mexicana."
53. El Universal, 22 febrero 1922.
54. El Universal, 11 marzo 1922. However, the same newspaper also blamed the Congress for not passing regulatory legislation. See El Universal, 21 febrero 1922.
55. Diario de los Debates, Cámara de Diputados, Leg. XXIX, 7/10/21.
56. Lucio Cabrera, La Suprema Corte de Justicia durante el Gobierno del Presidente Obregón (Mexico: Suprema Corte de Justicia de la Nación, 1996), 439.
57. El Universal, 21 febrero 1922.
58. For a useful discussion of the importance of the new collective contracts, see Jeffrey Bortz, "The Genesis of the Mexican Labor Relations System: Federal Labor Policy and the Textile Industry, 1925–1940," Americas 52, no. 1 (1995): 43–67.
59. Eduardo Delhumeau, La administración de justicia. Nuevo sistema de enjuiciamiento civil (Mexico: Imprenta 'la editor nacional', 1917).
60. Weldon, "Political Sources of Presidencialismo in Mexico," 231.
61. Enrique Plasencia de la Parra, Personajes y escenarios de la Rebelión Delahuertista, 1923–24 (Mexico: Instituto de Investigaciónes Históricas, UNAM, 1998).
62. ASCJ, Actas, Acuerdo Pleno, 12 de enero de 1924.
63. Ibid., 18 de enero de 1924.
64. Born in Coahuila, Ernesto Garza Pérez was a member of the state congress that had refused to recognize the Huerta government, beginning the Constitutionalist revolution of 1913. He held a cabinet post in the Carranza government as secretary of foreign relations prior to being elected to the Supreme Court. Gustavo Vicencio, president of the previous Court, also expressed reservations about recognizing the labor boards as labor tribunals.
65. Quoted in Lucio Cabrera, La Suprema Corte de Justicia durante el Gobierno del Presidente Plutarco Elías Calles (Mexico: Suprema Corte de Justicia de la Nación), 262.
66. Clark, Organized Labor, 248–51.
67. Max Weber, Economy and Society: An Outline of Interpretative Sociology, ed. Guenther Roth and Claus Wittich (Berkeley: University of California Press, 1978), 2:980.
68. "In sum, exception made for a few domestic or individual conflicts of little importance, the labor boards particularly in the states do not exist as tribunals (son tribunales inexistentes); rather it is the government that resolves these conflicts administratively." El Problema Obrero-Patronal conferencia sustentada por el Lic. Benito Javier Perez Verdia, bajo los auspicios del Centro Patronal de Jalisco, de la Confederación Patronal de Jalisco, de la Confederación Patronal de la Rep. Mexicana (Guadalajara, Abril de 1936), 5.
69. The Chief Justice, for his part, had aided the escape from Mexico City of one of the more important generals implicated in the rebellion in December. See Plasencia, Personajes y escenarios, 221.
70. Indeed, the significance of precedent itself is frequently downplayed by legal scholars of amparo in general, who choose to focus instead on legislative changes and legislative texts. Yet amparo is overwhelmingly a creature of judge-made law and judicial precedent. Moreover, much of this case law, which has come to define amparo's legal character in practice, was first established in the last third of the nineteenth century, though only rarely subjected to historical investigation.
71. H. S. Jones, The French State in Question: Public Law and Political Argument in the Third Republic (Cambridge: Cambridge University Press, 1993), 15.
72. Antonio Carrillo Flores, La defensa juridídica de los particulares frente a la administratión en México (México: Porrua y Hermanos y Cía., 1939).
73. At least not at the federal level. See William M. Wiecek, "The Liberal Critique of the U.S. Supreme Court," in German and American Constitutional Thought: Contexts, Interaction, and Historical Realities, ed. Hermann Wellenreuther (New York: Berg, 1990), 373–92.
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