Constitution of Argentina of 1853
Cover of the original manuscript of the 1853 Constitution
Ratified	1 May 1853
Signatories	1853 Constituent Assembly
Full text
Constitution of Argentina at Wikisource

The current Constitution of Argentina dates from 1853. The Constitution of Argentina of 1853 was approved in 1853 by almost all of the provincial governments at that moment (currently Argentina is made up of 24 jurisdictions of which 23 are provinces and one is an autonomous city) with the exception of Buenos Aires Province, which remained separate from the Argentine Confederation until 1859. After several modifications to the original constitution and the return of power to Buenos Aires' Unitarian Party, it was sanctioned on May 1, 1853, by the Constitutional Convention gathered in Santa Fe, and it was promulgated by the provisional director of the national executive government Justo José de Urquiza, a member of the Federalist Party. Following the short-lived constitutions of 1819 and 1826, it was the third constitution in the history of the country.

Despite several reforms of varying importance, the 1853 constitution is still substantially the basis of the current Argentine juridical system.^[1] It was closely inspired by the juridical and political doctrines of the United States Federal Constitution.^[2] It established, for instance, a Republican division of powers, a high level of independence for the provinces, and a federal power controlled by a strong executive government yet limited by a bicameral national congress to balance the population's representation with equity among the provinces. It also drew from the previous constitutions as well as the pioneering works of eminent jurist Juan Bautista Alberdi.^[3][1]

The model has been frequently criticized by historians of the era. The introduction of a federal system had been characterized by several scholars as being unfeasible and unsuitable for Argentina. Others have charged the introduction with being overtly influenced by the United States Constitution, instead of earlier models found in Argentine history. More recently, the constitution has been criticized for placing great power in the presidency.^[4] Nevertheless, the historical importance of the constitutional project has been unquestionable, and virtually all disputes regarding the political theory and practice in modern Argentina include either positive or negative references to the political consequences of the 1853 constitution.

For the Generation of '80, the settlers of the first liberal conventions on Argentine historiography, the constitution represented a true foundational act that broke the long government of Juan Manuel de Rosas. The members of the Generation of '80 especially praised the fact that the Constitution established a European-style liberal political regime. However, at the time that it was sanctioned, it had been strongly opposed by some of them. For the UCR, a group with social-democrat tendencies, the constitution represented an unfulfilled political ideal against the oligarchic government Generation of '80, perpetuated in power through electoral fraud. At the same time, for the nationalist movements of the 20th century, who criticized the liberal conventions and praised Rosas, the constitution had represented the renouncement of the national identity towards the ruin of liberalism. On different fronts, the discussion remains open, and has inspired several of the most important works of Argentine thought.

Background

The political landscape in 1853

The representatives of the provinces, in the Constituent assembly for enactment of the Constitution, 1853

The 1853 constitution was elaborated immediately after the Battle of Caseros, which saw the defeat of Rosas, who held political control in Buenos Aires for two decades.^[5] The shift in the political landscape left Justo José de Urquiza in charge of the national business. On April 6, 1852, Urquiza had a meeting with governors Vicente López y Planes of Buenos Aires, Juan Pujol of Corrientes, and delegates of Santa Fe, where it was decided to call for a Constitutional Congress under the terms of the Federal Pact of 1831. The decision of opening the congress in August of the following year was communicated to the rest of the provinces.

Urquiza was aware of the strong opposition within the Buenos Aires elite to his mandate and any attempt of limiting the hegemony of the port city over the rest of the country. To calm that opposition, Urquiza gave Pujol and Santiago Derqui the assignment of elaborating a constitutional project that would be less harsh to the porteño interests. On May 5, he gathered with some of the most influential characters of Buenos Aires— among which were Dalmacio Vélez Sársfield, Valentín Alsina, Tomás Guido and Vicente Fidel López— to propose revival of the constitutional project of 1826 of Rivadavia, in exchange for support of his authority in front of the national government, but the project was rejected.

The definitive meeting with the provincial delegates took place in San Nicolás de los Arroyos on May 29. Deliberations lasted for two days before they signed the San Nicolás Agreement, which granted provisional Directorship of the Confederation to Urquiza, and set the opening of the constitutional convention for August, to which each province would send 2 representatives. The provinces that were directly represented were: Entre Ríos by Urquiza; Buenos Aires by López y Planes; Corrientes by Benjamín Virasoro; Santa Fe by Domingo Crespo; Mendoza by Pascual Segura; San Juan by Nazario Benavides; San Luis by Pablo Lucero; Santiago del Estero by Manuel Taboada; Tucumán by Celedonio Gutiérrez; and La Rioja by Vicente Bustos. The treaty was also adhered to by Catamarca, who also designated Urquiza as its representative, and Córdoba, Salta and Jujuy, who would ratify it later.

The Buenos Aires opposition reacted quickly. Alsina, Bartolomé Mitre, Vélez Sársfield and Ireneo Portela confronted López y Planes, who they considered had ideals too close to those of Urquiza. They denounced López y Planes' vote as having no validity and affirmed he had no attributions to sign it in name of the Buenos Aires government, and they argued the treaty jeopardized the rights of the province while giving despotic attributions to Urquiza. The following debates, known as the Jornadas de Junio, concluded with the resignation of López y Planes on June 2, 1852. The legislature elected Manuel Pinto to replace him, but Urquiza made use of the attributions given to him by the treaty to call a federal intervention that dissolved the provincial legislature and reestablished López y Planes at its head. When López y Planes resigned for the second time, Urquiza assumed the government of the province himself, naming a state council of 15 members as deliberating organ.

Urquiza personally controlled the government of the province until September, when he left to Santa Fe for the constitutional convention together with elected deputies Salvador María del Carril and Eduardo Lahitte, leaving General José Miguel Galán as provisional governor.

Three days later, on September 11, Mitre, Alsina, and Lorenzo Torres revolted against Galán's forces and restored the legislature. On September 22 they would revoke their adhesion to the treaty, and rejected the authority of Urquiza. They also sent José María Paz to extend the revolt to the provinces of the interior, who did not succeed, but they acquired certain support that prevented Urquiza from directly attacking the revolt, and forced him to negotiate with the revolters, sending Federico Báez to Buenos Aires for that purpose.

Buenos Aires recalled its deputies from the Constitutional Assembly and incited the other provinces to do the same. They received a negative response from the governments of the other provinces to cancel the assembly, and so Alsina and Mitre attempted to weaken Urquiza's position and power. They sent forces to attack the provinces of Entre Ríos, Santa Fe, and Córdoba. On November 21 an army under the command of Juan Madariaga attempted to take over the city of Concepción del Uruguay, but was repelled by the forces of Ricardo López Jordán, who quickly informed Urquiza of the situation. Also, Paz could not advance over Santa Fe, and Mitre didn't succeed in convincing Corrientes governor Pujol to attack Entre Ríos, for Pujol joined Urquiza.

Without the representatives of Buenos Aires but with the support of all the other provinces, the Constitutional Convention started its sessions in November 1852. The convention, which was held in Santa Fe followed the precedent set by the 1787 Philadelphia Constitution.^[5]

Constitutional delegates

The San Nicolás Agreement established equal representation for all provinces of the Confederation, with two delegates for each. This was one of the points of rupture with Buenos Aires, the most populated of all the provinces, which hadbsought representation proportional to population. Proportional representation would have granted Buenos Aires 18 delegates, a near majority.

The differences between provinces resulted in diverse delegates. Many did not have education in law but rather military, religious, or literary experience. Some of them had also been in exile during the government of Rosas, while others were politically active in that period. These differences would translate into discrepancies, such as the religious posture of the Constitution, and the problem of the Buenos Aires hegemony.

After Salvador María del Carril and Eduardo Lahitte left, the assembly as ordered by the Buenos Aires government installed after the revolt the members of the Constitutional Convention were:

Some of the delegates were not native to the provinces they represented, and others had not resided in them for a long time, which the opposition of Buenos Aires exploited, calling them alquilones (rentals).

The historical revisionism in Argentina has emphasised this, suggesting that these congressmen were not completely representative of the provincial population, to which others point out that the selection of the delegates of all the provinces was not precisely popular, since it was composed of jurists and intellectuals, many of which had been in the exile for years during the government of Rosas.

The president of the convention was Zuviría, who received his doctorate in law at the National University of Córdoba and was a participant in the redaction of the first constitution of its province on August 9, 1821. Domingo Crespo, governor of Santa Fe, inaugurated the sessions on November 20, 1852, in the absence of Urquiza, who was fighting the Buenos Aires forces. Zuviría then pointed out the difficulties the convention would have to face, especially regarding the armed confrontation with Buenos Aires, and the lack of a constitutional background. To this, Santa Fe delegate Manuel Leiva asserted that it was imperious to move forward with celerity, before the urgency of a constitution. After a tense deliberation, Leiva's position prevailed.

Elaboration of the Constitutional text

The commission in charge of the redaction for the project was composed of Leiva, Gutiérrez, Gorostiaga, Colodrero and Ferré.

Even though most provinces already had their own constitution which could have been used as a model, these were judged inconvenient for the national organization, for they followed a centralized model whereas the delegates wished to procure a federal organization.

The models to follow were the few available constitutions: the Constitution of the United States of 1787, the Spanish Constitution of 1812, the Constitution of Switzerland of 1832, the Chilean Federal Laws of 1826 and the Political Constitution of 1833, and the republican constitutions of France of 1793 and 1848, but also in the work of Juan Bautista Alberdi. Exiled in Chile, months before he had sent a project of constitution to Juan María Gutiérrez, and towards Rivadavia's Unitarian constitution of 1826, which was adapted to the federal form, but also kept several parts untouched.

Gutiérrez and Gorostiaga, as part of the Constitutional Business Commission, were in charge of the redaction of the fore-project. Gutiérrez had already part of it through correspondence with Alberdi, to whom he suggested to include the second edition of his Bases, a developed project, to facilitate the constitutional work. The main job was in Gorostiaga's hands, who worked on it from December 25 to mid-February. Gorostiaga consulted mainly the Unitarian constitution of 1826 from which he took the sections on individual guarantees, the composition of the legislative, and the competence of the executive power. He also consulted the Constitution of the United States, from a poor but only available translation of Venezuelan military man Manuel García de Sena, and the work of Alberdi.

Once finished the project found the resistance within the commission by Leiva, Díaz Colodrero and Ferré, particularly on the status of the Catholic Church within the state, and the position of the Buenos Aires city.

The composition of the commission, in charge of the redaction of the text, was not very representative of the entire assembly. It had to be modified in the session of February 23 to let the project move forward, though there was a delay of two months due to the political situation. On March 9 Ferré and Zuviría, who had been sent to negotiate with the revolved porteños, made a pact to reinstitute the deputies of Buenos Aires to the Convention, with representation according to population. The negotiations though didn't finish positively, and after a long wait, the sessions were restarted on April 15 as requested by Urquiza, who pretended to have the full text by May.

The similarity of the constitutional text with that of the United States was not welcomed by all the congressmen; Zuviría read, at the inauguration of the sessions of April 20, a long speech against the indiscriminate application of foreign principles to a country whose organization, he said, was not habituated to it. He proposed instead to make a study of local institutions and use it as a base. Zuviría with Centeno, Díaz Colodrero and Friar Pérez, were the only ones to vote against the fore-project. The rest of the congressmen, either for ideologic reasons or for the political urgency of establishing a national constitution, decided to support the initiative of the commission; the text would be worked out in the following ten days.

The boycott started by the porteños revived an already traditional conflict between Buenos Aires and the other provinces, sharpened by the strong hand of Rosas who had governed the country favouring the porteños. One of the most controversial issues was the customs taxes, which with being Buenos Aires having the main deep-water port of the country, and the only one with active traffic of goods with Europe, were collected almost entirely in that city.

The negation of sharing those profits for the national finances had always been one of the main points of controversy between Urquiza and the oligarchy of Buenos Aires; at the same time, it confronted the interests of the businessmen of the city, supporters of a liberal commerce, and the artisans and small industries of the interior, who without any kind of protection or importations restrictions could not compete and develop.

Most of the constitutional delegates, especially Gorostiaga and Gutiérrez, urged to take measures in order to end the hegemony of the port city, federalizing the territory of the city of Buenos Aires, and separating it that way from the interests of the Buenos Aires Province. At the same time a moderate group, headed by Zuviría and Roque Gondra, considered such federalization wouldn't be convenient, for it would upset the porteños and void any attempt of negotiation to pacifically reincorporate it into the Confederation. The major fraction affirmed that the opportunity to expose their reasons had already been rejected when Buenos Aires withdrew its representatives, and that the constitutional will would not hesitate to take arms against the very capital of the country if it were necessary for the future country's welfare.

After arduous negotiations they arrived at a compromise solution, in which Buenos Aires was made capital by the 3rd article, but tied to a special law, approved together with the constitution, to facilitate a possible future modification. Nevertheless, the affirmation of the sovereignty of the Convention over the territories of Buenos Aires and Buenos Aires Province was made explicit in several articles, including the 3rd, 32nd, 34th, and 42nd. The 42nd article states the election of senators and deputies also for the capital (federal district), the 64th stipulated for the National Congress the exclusivity of the legislation in the territory of the federal capital, the 83rd conceded to the President of the Nation the control over the capital, and the 91st stated there the residence of the National Supreme Court. The law for a federal capital was finally approved with prescriptions for the case of being unable to immediately set the capital in Buenos Aires, as indeed happened.

Another problematic issue was the Freedom of religion, to which a group of a few, though influential, delegates firmly opposed, headed by Centeno, Pérez, and strongly supported by Zuviría, Leiva and Díaz Colodrero. The arguments ranged from theological-juridical, for which Centeno affirmed the freedom of cult to be a natural right, to the pragmatic-historical, with Díaz Colodrero and Ferré stating that the existence of other cults could irritate the people and foment the apparition of new caudillos that would predicate in opposition to the constitution.

On the contrary, those more influenced by Alberdi and the ideas of the Generation of 1837 pleaded for the freedom of cults, pointing out that it would encourage immigration to Argentina, simplify the relations with foreign nations, and that the conscience was not a matter of legislation but of public acts.

The liberal sector prevailed 13 against 5, but the argument was dragged down to the abolition of religious privilege statutes; the obligation of professing the Catholic religion for all the state functionaries; and the conversion of the Native Americans. Finally, it was decided that only the president had to be Catholic, a condition that was held until the constitutional reform of 1994.

The constitution

The final text consisted of a preamble and 107 articles, organized in two parts: one on the rights of the inhabitants, and one on the organization of the government.

The preamble was destined to affirm the legitimation of the Constitution, synthesizing the legislative and political program of the conventional delegates. To clear doubts about their interests it reminded them that the dictate of the constitution followed the pre-existing pacts subscribed by the provincial authorities; affirmed the project of guaranteeing the unity and inner peace and the formation of a common front towards the rest of the world; it stated the objective of populating the territory mentioning all men in the world who wish to inhabit the Argentine land; and invoked God's authority in a form acceptable both to religious persons and to illustrated deists.

The 1853 Constitution and Argentine political history

The 1853 constitution was a fundamental step towards Argentine unity. The events that followed gave it —as with all symbolically foundational moments— an importance that does not necessarily correspond with the actual impact it had at that time. It was, after all, rejected by Buenos Aires, and questioned by some of the most traditionalist constitutional delegates. Regardless, constitutional delegates were aware of its impact. Facundo Zuviría, in his speech following the original declaration, said "You have just exercised the most grave, most solemn, most sublime act that is given to a man in his moral life".

The biggest prize fell on Domingo Faustino Sarmiento and his contemporaries, who saw in the adoption of federalism a victory of their liberal principles. When the historical revisionism —criticising the devastation of the national industry, the flourishing of large estates, and the internal colonialism resulting from the liberal politic of the Generation of '80— revised the origins of constitutional text, it referred to the same general criteria idea but in an inverse sense. Sarmiento and Roca describe the constitution as a means to modernise the country through free commerce, European immigration, the abolition of provincial political leadership, and the dislocation of the traditional cultures inherited from Spain and adapted during centuries to the local peculiarities.

On the other hand, revisionists see in that constitution the means of destruction of the national Argentine identity due to; the destruction of the national industry by the introduction of foreign companies, merchants and investors; the displacement of populations from their own lands and way of life by waves of immigrants and the consequent social and economic turbulence; and the restriction of political representation to the literate and mercantile bourgeois.

Both alternatives adopt the same structure, exposed with magistral rhetoric in Sarmiento's exhortation Civilization or Barbarism. The revisionists didn't just revise history limited to the barbarian character of Sarmiento's civilization. That being a civilization that was founded from; the displacement of the aboriginals, the massive sacrifice of gauchos and morenos conscripted for the successive wars of the Triple Alliance and the Conquest of the Desert, the brutal accumulation of lands for the formation of latifundios or large estates for agricultural export, and the destruction of the emerging national industry and the systematic electoral fraud.

Historian José María Rosa pointed out the linguistic game of the lemma:

Civilisation —related to our city—, was understood in an opposite sense: as of the foreigners; whereas Barbarism —from the Barbarians, that is foreigners— signified, in the liberal language, the Argentine in contraposition to the European.

J. M. Rosa, Análisis de la dependencia argentina, IV:36

Later authors, some of them close to revisionism, have nevertheless pointed out that by accepting the opposition of its general terms, revisionism lost the opportunity to re-evaluate the opposition on which it is based: the liberal porteño bourgeoises and that of the provincial capitals on one side, and the semi-literate rural population on the other.^[6] The Unitarian Doctors —Rivadavia, Echeverría, Alberdi— would represent the first option, of whose plumes would flow the constitution; the federal caudillos —Quiroga, Güemes, Rosas— the second, reluctant to fix once and for all the political bonds.

For these authors, the alternative reflects one of the clashes effectively existent in the Argentine politics of that time: between the illustrated classes, based on the principles of the theoretic right of the millenary European tradition; and the pragmatic provincial leaders, men of action rather than theory. Given the intellectual ambient of the moment, in which the ideologists of the French revolutionaries had given place to the illumining positivism, it was natural that the thought of the first inclined for the defence of the liberal order, in which the abolition of the historical and traditional limits gave in for a new era of cooperation between people.^[7] The free market would give way to a specialisation of the countries in their areas of comparative advantage, resulting in the common improvement.

The interpretation that the revisionists make of this posture in terms of direct personal interest — the illustrated bourgeois was at the same time holder of the porteño commercial capital, that directly benefited from the importation of goods; in several instances the visible hand of foreign business interests influenced the invisible hand of the free market, offering support both economic and social to political elements which would be more amenable to their economic interests. The Marxist interpretations—that even though centred on explaining the logic of the event that took place rather than the individualities, haven't ignored this criterion^[8]— also leave several aspects unattended.

To understand the fractions that converged in the dictation of the 1853 constitution, two aspects have been distinguished that the conventional historiography has simplified in the dichotomy between Federals and Unitarians. On the one hand, it is necessary to note that the high-class had several fractions in unstable equilibrium: the commercial bourgeois of the port, the cattle bourgeois of the Littoral Mesopotamia, the small bourgeois layers of the cities of the landlocked provinces; and on the other hand, to understand the process of economical and cultural world integration —since by then, 150 years before the common use of the word, the state problem had already the view of globalisation in virtue of the expansion of the world market in the European economical potencies— did not necessarily imply, as it did in the Argentine history, the complete abandonment of the national production, and therefore of the country's modernisation would have been taken place without the loss of the national identity. Even if the ideals of the 1853 constitution, and Alberdi's writings that served as its base, depended in great part on the project of integrating Argentina into the world processes, the compromise with the economic liberalism was not necessarily coded in them.^[9]

The expressed objective of the constitutional project, as that of the political projects exposed shortly before and after, was that of modernising the nation; which in an emerging state, meant little more than creating it.^[10] An important part of the national thinkers considered that the project of modernisation imposed an almost total rupture with the Spanish colonial past; since Esteban Echeverría to Sarmiento and the Generación del '80, the search for the Argentine insertion in the modern world was based on the importation of theories, practices and even people. Such a rupture demanded certain kinds of conditions and dispositions; the complementation of the European markets would benefit the merchants of the port and the higher classes, capable of consuming material and symbolic luxury goods that this commerce provided, but affecting the rural and lower classes, which were displaced from the productive system in which they were situated.^[11] Aware of this, the leaders most opposed to Rivadavia's program concealed the task of formation of the state as a 'restoration' of the state that Rivadavia's reforms had broken:^[12] therefore, Rosas's title of "Restaurateur of Laws" that referred not to the Positive laws of the Right of Indias, but to the Natural law of the traditional nationals. The problem of this view was the impossibility, for a long time in Rosas' period, of effectively developing the national state. The restoration of the order, that in previous years had dissolved in the successive confrontations between the caudillos and the hegemony of the new Buenos Aires metropolis, resulted in a paralyzing of the process of building a state. When the sanction of the constitution broke that phase, and searching to introduce the new governmental system, the matter returned with all sharpness.

Alberdi, usually considered liberal by revisionists and therefore an enemy of the country's interests, harshly criticized Urquiza from his exile, who left the national structure in the hands of the porteños, and of Mitre, who used in the years of the police war against the provinces and in this action the achieved triumph of extreme liberalism of the capital over the integrationist federalism of the provinces of the littoral.^[13]

Mitre's politic would eliminate the possibility of resistance from the provinces, making impossible Alberdi's, Andrade's and José Hernández's attempts to guarantee the union. When under Julio Argentino Roca's government a unified Argentina became a reality, it was at the expense of the disappearing of the social layout of the provinces and their productive capacity. The federal shape of the constitution was, during the years of modern Argentina, a simple coalition of the illustrated classes throughout the country. It would not be until immigration produced its effects and mobilized the masses against the oligarchy that this order would be altered.

Notes

References

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