In studies on democracy and constitutionalism, two oft-cited letters exchanged between Thomas Jefferson and James Madison in 1789 and 1790 reveal a perennial debate about constitutional change. Let us summarize the arguments with the Federalist Papers, which have much in common with the Argentine political and economic context.

Jefferson sustains that the people, as the holders of sovereignty, should not be bound by inherited norms without the right to revise or repeal them at will. “By the law of nature,” he says, “one generation is to another as one independent nation to another.” As well, “no generation can contract debts greater than may be paid during the course of its own existence,” so no society “can make a perpetual constitution, or even a perpetual law” (emphasis added).

Briefly stated, his proposal foresaw the possibility of periodic constitutional conventions (more precisely, every 19 years according to his calculation, based on the tables of Leclerc de Buffon) so that each generation could express and eventually free itself from the past, if necessary. That is, as he had written in his Notes of the State of Virginia, whenever “any two of the three branches of government concurring in opinion, each by the voices of two thirds of their whole existing number.”

In his response, Madison offers at least five reasons to oppose Jefferson’s proposal. Firstly, it is “too subject to the casualty and consequences of an interregnum” if each generation or even each new government could undo what their predecessors did. Second, the difficulty emerges in retaining the common prejudices, which serve as “a salutary aid to the most rational Government.” Third, the debts a government assumes may relate to purposes that interest future generations, as is the case with defensive wars. Fourth, the adherence to laws may be undermined from one generation to another if they are recurrently abrogated. Lastly, the regular revision of laws would generate uncertainty for property rights, as well as for industrial efforts and long-term investments.

Previously, in Federalists #49 and #50, Madison had argued similar points when speaking against the possibility of occasional, or, rather, periodic (with fixed intervals) appeals to the people for the purpose of protecting one department of power against the invasion of another, which some considered the best way of correcting infractions of the Constitution. As is known, in Federalist #51, Madison opts for internal controls to prevent the abuses of government, so that ambition could counteract ambition or, in Montesquieu’s words, power could be a check to power. Therein lie the “auxiliary precautions” to the sovereignty of people, which Madison considered “the primary control on the government.”

For the purpose of this essay, I will only focus on three of Madison’s points in Federalists #49 and #50: 

1) The fear that frequent appeals to the people “would, in a great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”

2) The firmness and confidence that human reason, which is “timid and cautious when left alone,” acquires in proportion to the number of past or present examples due to the “strength of opinion in each individual, and its practical influence on his conduct.”

3) The fact that the prospect of a future review or public censure of present decisions “would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives” (italics are mine).

Beyond the circumstances that have given it immediate significance, this debate leaves us with a timeless lesson about the motives of political action and the difficulties that always come with the pursuit of what Madison called “the requisite stability,” when laws are temporary instead of permanent.

In countries like Argentina, with a history built more on ruptures than on continuities, the allusion to “the force of present motives” is revealing of a way of thinking about political decisions, deliberately based on the day’s urgencies, which, though we are not the only ones who indulge in such vice, has become chronic in our territory. Hence, the long list of laws that have inaugurated radical changes in Argentina, duly sanctioned and the product of careful consensus, which, however, years later end up being partly repealed by the same protagonists who have sanctioned them.

Nowadays, changes of huge magnitude are being debated in Argentina in many areas (such as taxation, electoral reform, pensions, privatization of state-owned companies, energy, public debt, education, political parties financing), which are expected to be imposed through a so-called Omnibus Law (whose official name is “Law of Bases and Points of Departure for the Freedom of Argentinians”). Many of us believe that these changes will bring long-awaited benefits to citizens to the extent that they will significantly reduce the asphyxiating weight of the state apparatus, which has been hindering our possibilities of economic growth through confiscatory taxes, price controls, endless regulations, the uncontrollable growth of the public spending, and a central bank usually submitted to political vicissitudes.

This being the case, pausing to think about “present motives” seems to be timely. Are our legislators thinking about the future? Do they understand what the recurrent reconstruction of a basic framework of coexistence means for our economy and for politics and institutions? Are they aware that respect for the rules generates incentives and opportunities for action, also strengthening social bonds? Will future generations and their representatives also be aware of the importance of maintaining intergenerational bonds to pursue, for example, long-term objectives (such as economic investments) that, under changing legislation and, therefore, a lack of legal certainty, would not be achievable?

Even Jean-Jacques Rousseau himself, who argued that every rule emanating from the people is revocable, even the social contract, went so far as to recommend to Genevans to avoid “dangerous innovations” and to refrain from proposing “new laws at pleasure,” because “it is above all the great antiquity of laws which makes them sacred and venerable.” However, in Argentina, laws are anything but venerable, which is supported by a civic culture that is massively transgressive, even ending up rewarding those who evade the law, not those who comply with it.

Certainly, paraphrasing John Elster, we cannot expect imperfect legislators to enact perfect laws that serve, among other things, to prevent the imperfections of future legislators. In other words, the possibility that any law, or even the Constitution itself, may be revised in the future is always open. That is why Madison, in Federalist #50, made a clear distinction between people’s aptitude for “enforcing the Constitution” through periodic appeals, as a means of “preventing and correcting” potential breaches of it, and the aptitude “for altering the Constitution itself.” He rejected the former, in fact, proposing checks and balances or “internal controls on governments,” but not the latter, even though it could be prevented by foreseeing, for example, the need for special majorities or other procedural requirements that compel each generation to weigh its decision carefully.

In Argentina, the Omnibus Law will have enormous implications in several fields, which will only be fully known after some years and will certainly not be free of difficulties, especially for the most vulnerable sectors of society. However, there may not be a shared commitment from our politicians to sustain these reforms over time. If “the force of present motives” makes them think in the short term and not in future gains, the threat that a coming majority will undo what has been done will hang over us like the sword of Damocles.

 As previously mentioned, we have the opportunity to rid ourselves of an omnipresent state, whose patrimonial practices (i.e., those in which public servants appropriate government agencies as if they were the property of those who administer them), together with a quite generalized and predatory web of corruption have hindered Argentina’s economic development, and risen our poverty rates to exorbitant percentages.

The legislative debate surrounding this legislation will be long and arduous, and will surely require reciprocal concessions from the entire political spectrum. However, wasting this opportunity would be akin to collective suicide because the present path is not sustainable. It is time for Argentinians to return to a government that guarantees basic individual rights, without which a liberal democracy would not be possible.

Benjamin Constant wrote that the multiplicity of laws “is a sickness of States which claim to be free.” He wrote as well that the absence of laws is “the sickness of governments which make no pretense of being free.” Similarly, we could say that erratic legislation, subject to being amended or even revoked with each new Argentine government and based on opportunistic and party-driven criteria, not only threatens government stability, but also fails to establish a civic culture among citizens, in which the classic principle of “government of law, not men” can take root.

It is true that our Constitution provides the executive branch the power to issue “decrees on grounds of necessity and urgency,” whenever the ordinary procedures for the enactment of laws are impossible, and “when rules are not referred to criminal issues, taxation, electoral matters, or the system of political parties.” However, to impose by a decree the modification of more than three hundred laws does not seem to be the most appropriate means to achieve that long-term objective. To establish more lasting reforms, legislative support is needed, which is necessary as it is for our legislators to rise to the occasion, thus “maintaining in practice,” as we read in Federalist #51, the partition of power which is “essential to the preservation of liberty.”