DISCOVERING THE BASIC STRUCTURE OF THE MEXICAN CONSTITUTION: A COMPARATIVE

CONSTITUTIONAL ANALYSIS

Jaime Olaiz-González

José Mario de la Garza-Martins

Abstract

This academic paper embarks on a comprehensive study of the evolving constitutional landscape in
Mexico, driven by critical judicial decisions and the absence of a well-defined constitutional basic
structure doctrine. Significance is attributed to recent judgments, including Mexico's Supreme Court
rulings on the National Guard's constitutionality, the Inter-American Court's recent decisions on
Mandatory Preventive Detention, and the Mexican Supreme Court's assessments of electoral law
amendments, all of which collectively highlight the pressing need for the recognition of the basic
structure of the Mexican Constitution as a conceptual and analytical framework for constitutional
adjudication in “hard cases”. The central contention posited is that the absence of a coherent
constitutional basic structure doctrine in Mexico lies at the heart of the complexities surrounding
these pivotal judicial decisions.

Drawing from international jurisprudence, a comprehensive examination of the Basic Structure

Doctrine (BSD) and its varying applications across different legal systems is provided. A
comparative analysis is undertaken, drawing parallels with the experiences of India, Colombia, and
Kenya, while distinguishing BSD from the concept of constitutional unamendability.

This study adopts a historical synthesis approach to trace the emergence and evolution of Mexico's
constitutional foundations through key documents such as the Constitution of 1824, the Organic
Laws of 1836, the Constitution of 1857, and the Constitution of 1917. Identification of common
trends aims to uncover the embryonic elements of a Mexican Basic Structure Doctrine. Navigating
the complexities of articulating a BSD in modern Mexico, distinctions are drawn between the
constitutional block and constitutional politics. Boundaries of existing features that may contribute
to a nascent BSD are outlined, and strategies for formalization are proposed, including
constitutional interpretation, federal statutes regulating constitutional amendments, and the
incorporation of incremental constitutional amendability.
Finally, an examination of the potential implications of a well-defined BSD for Mexico's
constitutional endurance, stability, and predictability is conducted. This study anticipates and offers
insights into the future trajectory of constitutional development in Mexico, emphasizing the
importance of a well-founded BSD in promoting constitutional coherence and resilience. Through
this rigorous comparative analysis, illumination is cast upon Mexico's constitutional journey,
highlighting the imperative of developing a robust Basic Structure Doctrine to address pressing
constitutional challenges in the contemporary era.

Jaime Olaiz-González is Professor of Constitutional Theory, International Law and American

Jurisprudence at Universidad Panamericana Law School in Mexico City.

José Mario de la Garza-Martins is Assistant Professor of Constitutional Theory at Universidad

Panamericana Law School, and Associate at Von Wobeser y Sierra, in Mexico City.