Enforcement of Fundamental Rights by Lower Courts: Towards a Coherent System of Constitutional Review in Mexico

Abstract

This article reviews the evolution of constitutional judicial review in Mexico. It claims that while the Mexican legal system has fluctuated between two fairly consolidated constitutional review models —the American and the continental European— it has so far disregarded at least one major factor strongly embedded within the rules of both. Stated differently, most constitutional scrutiny regarding fundamental rights —the essential prerogatives and freedoms to which every person as such is entitled under the constitution— should be fulfilled by lower courts empowered for such purpose within ordinary adjudication procedures. For this reason, constitutional jurisdiction should play only a guiding role —even when solving a specific controversy on its merits— in the enforcement of these rights. While the rules of these two models leave the vast majority of legal controversies regarding fundamental rights outside constitutional jurisdiction, they guarantee that the interpretation of the few leading cases that are formally reviewed impact the rest of the legal system. Instead, the Mexican rules of constitutional scrutiny have fostered excessive dependence on specialized constitutional courts. Simultaneously, they have weakened — through artificial differentiations regarding the review of statutes— the guiding role of constitutional interpretation in the legal realm. This results in a complex system that is neither effective in making constitutional rules guide conduct nor in wholly enforcing fundamental rights.