5. Constitutional Review in Mexico: A Best of All Worlds Solution?

Decentralized constitutional review refers to those systems—based on the American model of constitutional scrutiny—where the powers to control the constitutionality of statutes is given to every court in the legal system and not only—as it occurs in systems based on the continental European model—to a specialised constitutional court. For a short comparison in English between both models see Stone Sweet (2008), pp. 217–239.

While colloquially these amendments have been handled jointly as the “Constitutional Reform on Human Rights”, technically they were approved and published separately. The division was based on whether the articles subject to reform concerned procedural or substantive law. See, respectively, Mexican Decree of Constitutional Amendments on Amparo (Mex. Decr. ref. Const. A.) (2011), published in Diario Oficial de la Federación DCXCIII(4) 2011:2–6, and Mexican Decree of Constitutional Amendments on Human Rights (Mex. Decr. ref. Const. DDHH) (2011), published in Diario Oficial de la Federación DCXCIII(8) 2011:2–5.

This term refers to those acts that are in violation of international conventions or treaties.

For a few dissenting voices against these developments see Roldán Xopa (2011).

The writ of Amparo—as it will be further explained in some detail—is a constitutional mechanism developed in Mexico for the judicial enforcement of fundamental rights against acts of authority. It falls exclusively in the jurisdiction of the Federal Judicial Power. See infra Sect. 5.2.

For instance, Cossío Díaz (2011b), A18.

This is the term with which it is referred to the Mexican government’s policy against drug trafficking. Since 2006 it has increased substantially the involvement of the military—army, air force, and navy—in the enforcement of drug laws. For a brief overview in English see Shirk (2011).

There is no exact translation in English for the term ‘ley penal en blanco’. This concept is related to the criminal law principle nullum crimen sine lege scripta (there shall be no felony without a written statute) and refers, in short, to criminal statutes that delegate the establishment of punishable offences to another entity. Since the power to establish crimes in modern democratic regimes is invested exclusively in the legislator, such statutes are considered invalid. For a succinct explanation in English see Bohlander (2009), pp. 18–27.

The trial judge had authorized the detention of the defendants only on the basis of the crime contained in art. 192 of the state’s criminal code (i.e. ‘Crimes against official institutions and public servants’). Even though this part of the ruling was reversed on appeal (which would have turned unnecessary a decision regarding any other offence), the state prosecutor had lodged a joint appeal against the trial judge’s exclusion of art. 224, § V as basis for the detention. Therefore, the appellate judge was compelled to solve this issue as well. See id., pp. 29–30.

These courts belong to the Federal Judicial Power and are essentially responsible for solving the writs of Amparo filed against definitive judgments delivered by local judicial authorities. See infra Sect. 5.2.

See Mex. Inic. L. Cont. Dif. (2011), art. 6.

See Roldán Xopa (2011).

See supra Chap. 2.

See Dworkin (1985), p. 26. Against this position see the classical essay of Raz (2009), pp. 210–229. See, in general, supra Sect. 2.​1.​3.

See Fuller (1969), pp. 81–82; and Raz (2009), pp. 225–226. A classic critique to this position comes from the denial of a substantial difference between an administrative act and a judicial decision. See Kelsen (1929), p. 52. See, in general, supra Sect. 2.​2.​1.

See Stone Sweet (2008), p. 232.

For a short yet insightful overview of these approaches see Cossío Díaz (2011a), pp. 129–132.

While some authors (mostly in Germany) use the terminology ‘unity model’ (Einheitsmodell) in reference to the American and ‘separation model’ (Trennungsmodell) when referring to the European, this semantic distinction just emphasizes whether the constitutional review is carried out by an organ within the ordinary judiciary or rather by a separated entity. See Schlaich and Korioth (2010), pp. 2–3.

For instance, Stone Sweet (2008), p. 223.

See Kommers (1997), pp. 4–7.

In the American model, abstract control of norms is excluded. See Stone Sweet (2008), p. 222.

See Jackson and Tushnet (1999), p. 480.

Fuller (1969), p. 81.

See U.S. Code Title 28 (28 U.S.C.) (2006), § 1257.

This is the rule—developed in common law systems—which binds courts to the authority of superior courts. It forces them to solve a case in the same way it has been previously decided by a higher authority in the judicial hierarchy. See Jackson and Tushnet (1999), p. 458.

This is the so-called rejection monopoly (Verwerfungsmonopol) proper of the continental European model. See Schlaich and Korioth (2010), p. 99.

See Schlaich and Korioth (2010), pp. 244–246.

See, for instance, the Vorlageverfahren in German Basic Law (Ger. GG) (1949), art. 100, published in Bundesgesetzblatt Teil I 1 1949:1–19, the cuestión de inconstitucionalidad in Spanish Constitution (Spa. Const.) (1978), art. 163, published in Boletín Oficial del Estado CCCXVIII(311.1) 1978:29313–29339, and the recently introduced question constitutionnelle in Constitution of the French Republic (Fr. Const.) (1958), art. 61.1, published in Journal Officiel de la République Française 0238 1958:9151–9172, as amended by Constitutional Law to modernize the Institutions of the 5th French Republic (Fr. L. Const. Inst. 5° Rep.) (2008), art. 29, published in Journal Officiel de la République Française 0171(2) 2008:11890–11896.

See Shapiro (2002), pp. 174–175.

See Kommers (1997), p. 42.

See Jackson and Tushnet (1999), p. 458. (“If all courts could decide constitutional questions without stare decisis effect, Capelletti suggests, a chaotic situation with respect to the validity of laws would result.”)

For instance, Cossío Díaz (2011a), p. 132. As it will be shown in infra Sect. 5.2, the Mexican evolution of constitutional scrutiny suggests this misunderstanding.

See, for instance, the explanation of the German system in supra Chap. 4.

While it is often said that the ‘pure’ continental European model excludes constitutional scrutiny of administrative and judicial action and thus several scholars refer to centralized systems that allow it rather as ‘mixed’ (e.g. Germany, Spain, and Italy), in fact not even the first system to ever adopt the centralized model (i.e. Austria 1920–1934) limited this review to acts of Parliament. See Kelsen (1929), p. 58.

Raz (2009), pp. 213–214.

See Dworkin (1985), p. 27.

See Kenntner (2005), p. 786; and Kelsen (1929), p. 59. Even though this statement sounds at first glance like a de facto argument, in its essence it derives from the theoretical impossibility to institutionalize a further obligation in order to review all the acts of the constitutional reviewer. See Cossío Díaz (2011a), pp. 180–181.

For instance, Fix-Zamudio (1987), p. 1006.

See Hoffmann-Riem (2003), pp. 181–182.

See Kommers (1997), p. 51. The ‘constitution’ here includes the constitutional interpretation that the constitutional court has established in its judgments.

Hoffmann-Riem (2003), p. 188 (author’s translation).

A fairly good example of this ‘direct effect’ of the constitution is the collision of fundamental rights carried out by ordinary courts in Germany. See Hoffmann-Riem (2003), p. 188.

The problem of delimitation of duties in regards to administrative action whose statutory grounds are not contested is said to be solved by the usual requirement ‘to exhaust all legal remedies’. See Fleury (2008), p. 64. However, this does not really solve the problem of distribution of tasks between ordinary administrative courts and the constitutional court. See Kelsen (1929), p. 67.

See Herrera (2011). For instance, the German Verfassungsbeschwerde and the Spanish recurso de amparo. While they can be compared to some extent with the American writ of habeas corpus, these are general mechanisms of constitutional protection which are not limited to fundamental rights in the criminal procedure.

Kenntner (2005), p. 786 (author’s translation).

For a critique to the formulas used so far by the German BVerfG see Roth (1996), pp. 548–552.

See Hoffmann-Riem (2003), p. 178.

See Hoffmann-Riem (2003), p. 176.

See Hoffmann-Riem (2003), p. 179; and Jackson and Tushnet (1999), p. 458.

See Kenntner (2005), p. 786.

See Schlaich and Korioth (2010), pp. 128–129; and Kommers (1997), pp. 51–52. See, for instance, Ger. BVerfGG (1951), § 93d, cl. 1, and U.S. Sup. Ct. Rules (2013), 10, available at http://​www.​supremecourt.​gov/​ctrules/​2013RulesoftheCo​urt.​pdf.

See Hoffmann-Riem (2003), p. 187, and 28 U.S.C. (2006), § 2254 (d).

Before 1847 constitutional review was carried out mostly by political organs. See Cossío Díaz (2011a), p. 42.

For instance, Azuela Huitrón (2002), pp. 39–40.

See Rabasa Mishkin (1994), p. 25.

In contrast, in continental European systems that embrace judicial federalism, the bulk of both federal and state controversies are usually solved—in trial and appeal—within the state judicial subsystem. Consequently, in continental Europe the federal courts usually do not have “original jurisdiction” and are rather courts of final appeal. See Kommers (1997), p. 3.

See Rabasa Mishkin (1994), p. 25. The ephemeral yet important constitutional reforms made in 1847—which introduced judicial review into the Mexican system to coexist with the political mechanisms of constitutional scrutiny that were valid at that time—did not alter the judicial structure adopted by the Constitution of 1824. See Rabasa Mishkin (1994), pp. 56–58.

There was a theoretical possibility for the Supreme Court to carry out constitutional scrutiny outside Amparo by solving the controversies between states or between the Union and the states. See Political Constitution of the Mexican Republic (Mex. Const.) (1857), art. 98, available in Mex. Sup. Ct. (1985), pp. 167–171. However, this mechanism did not play any significant role in the Mexican system of the time. See Cossío Díaz (2011a), p. 41. The federal courts that traditionally have enjoyed constitutional review powers in Mexico—as they have had either original or appellate jurisdiction on Amparo—are the District Courts, the Three-Judge Panel Circuit Courts, and the Supreme Court. Other courts within the Federal Judicial Power—such as Unitary Circuit Courts or the Federal Electoral Court—and courts of federal jurisdiction which organically belong to the Executive Power—such as the Federal Administrative Court or the Federal Labour Court—did not enjoy until recently, given the kind of procedures that they usually solve, powers of constitutional scrutiny.

See Cossío Díaz (2011a), p. 26.

See Cossío Díaz (2011a), pp. 30–31. Nonetheless, the great mistrust in the authorities of the states was certainly also decisive for such a choice. While in one of the drafts of this constitutional text the jurisdiction on Amparo was actually conferred not only to courts within the federal judiciary but also to those of the states, the final text banned the local judiciaries from performing any kind of constitutional control. In my opinion, such a proposal to include state judiciaries on these tasks was not as absurd as it has been often described by Mexican legal scholarship. Contra, for instance, Rabasa Mishkin (1994), p. 77.

See Arroyo Moreno (2006), pp. 55–59.

For instance, Fix-Zamudio (1979), p. 306.

See Vladeck (2012), p. 941.

See Oaks (1965), pp. 248–249.

Vladeck (2012), p. 980.

See Ex parte Bollman, 8 U.S. 75 (1807), and Ex parte Watkins, 28 U.S. 193 (1830).

See de Tocqueville (1966), p. 92 (“If the [American] judges had been able to attack laws in a general and theoretical way, if they could have taken the initiative and censored legislation, they would have played a prominent part on the political scene; a judge who had become the champion or the adversary of a party would have stirred all the passions dividing the country to take part in the struggle. But when a judge attacks a law in the course of an obscure argument in a particular case, he partly hides the importance of his attack from the public observation. His decision is just intended to affect some private interest; only by chance does the law find itself harmed. Moreover, the law thus censured is not abolished; its moral force is diminished, but its physical effect is not suspended. It is only gradually, under repeated judicial blows, that it finally succumbs.”). His work was frequently cited in the Amparo debates. See Arroyo Moreno (2006), p. 57.

He introduced Amparo at the state level within his proposal for the Constitution of Yucatán in 1840. See Capetillo Trejo (2001), pp. 478–481. While Rejón also participated in the debates that gave way to the federal constitutional reforms of 1847 and there he explicitly suggested local court involvement in constitutional scrutiny, he abandoned the discussions abruptly and his ideas where only partially adopted. See Capetillo Trejo (2001), p. 481.

He is considered the main developer of Amparo at the national level. As part of the group in charge of the federal constitutional amendments of 1847, he presented a famous dissenting opinion against the majority’s conclusions. See Otero (1985), pp. 127–141. His arguments caused the majority to reconsider and Otero’s proposals—including a combined system of constitutional scrutiny to be carried out both by judicial and political organs—were approved almost word for word as constitutional amendments. See Rabasa Mishkin (1994), p. 56.

See, for instance, Arroyo Moreno (2006), pp. 57–59. This is also the reason why the inter partes effects of Amparo judgments are commonly—yet misleadingly—called the “Otero formula”. See Cossío Díaz (2011a), pp. 31–32.

Otero (1985), p. 137 (author’s translation).

At the time the Mexican Amparo was created the federal writ of habeas corpus in the United States was not effective to review convictions. See Collins (1952), p. 351. Whereas in 1867—after the American Civil War—the federal writ was extended by Congress to those detainees held in custody by the states, it served against state convictions only for lack of jurisdiction for another half a century. Only as of the 1940s the Supreme Court started broadening the scope of federal habeas corpus also to convicts under state law. See, among many, Waley v. Johnson, 316 U.S. 101 (1942), and Brown v. Allen, 344 U.S. 443 (1953). See also supra Chap. 3.

See Oaks (1965), p. 246. As a matter of fact state courts issued habeas corpus writs against federal jailers on a regular basis until this was banned by the Supreme Court in 1859. See Ableman v. Booth, 62 U.S. 506 (1859), pp. 523–524.

The monopoly of the federal judiciary on Amparo jurisdiction can be traced back to Otero’s proposal from 1847: “I still have not found a solid reason against this way of putting the rights of man under the aegis of the general power, but those [reasons] which have made me decide in favour of it are not few […] Because of this I have not vacillated in proposing Congress to elevate greatly the Federal Judicial Power, giving it the right to protect all the inhabitants of the Republic in the enjoyment of the rights assured to them by the Constitution and the Constitutional Laws, against every attack of the executive or the legislative, whether from the states or from the Union.” Otero (1985), pp. 131–137 (author’s translation). His ideas in this regard—unlike those concerning constitutional review by political organs—were retaken by those who enacted the Mexican Constitution of 1857. See Rabasa Mishkin (1994), p. 77.

There were in fact several interesting proposals at the time that would have granted state courts some jurisdiction on the writ of Amparo. For instance, compare Arroyo Moreno (2006), p. 59, and Draft of Political Constitution for the Mexican Republic (Mex. Proy. Const.) (1856), art. 102, available in Mex. Sup. Ct. (1985), pp. 163–166, with Mex. Const. (1857), art. 101, § 1.

See supra Chap. 3. Compare Jackson and Tushnet (1999), p. 458 (“…US decisions are frequently described as binding only upon the parties to the litigation. This is far too simplistic and may not be accurate at all with constitutional adjudication in the US Supreme Court…”).

Two of these mechanisms were contained in Otero’s proposal from 1847. They included—parallel to judicial review through Amparo—the constitutional review of state legislation by the federal Congress and, conversely, of federal statutes by state legislatures. See Otero (1985), p. 140. While these mechanisms coexisted with judicial review for a few years, the Constitution of 1857 completely eliminated them from the Mexican system. See, for instance, Cossío Díaz (2011a), pp. 31–32; and Rabasa Mishkin (1994), p. 77.

See Cossío Díaz (2011a), p. 42.

This is most probably where the veneration to the “originality” of the Mexican writ comes from. Some of the better known principles ruling the Amparo procedure include the following: relativity of judgments (i.e. inter partes or relatividad); standing to the offended party only (parte agraviada); decisions based exclusively on the complaint (estricto derecho); exhaustion of ordinary legal remedies (definitividad), and statutory continuation (prosecución). The literature concerning this writ is abundant, quite technical, and frequently specialized into the particularities that have developed within each sub-subject of the constitutional mechanism. For a succinct account of Amparo in English see Fix-Zamudio (1979).

During the validity of the Constitution of 1857—which despite several interruptions due to foreign invasions lasted until the outburst of the Mexican Revolution in 1910—statutes regulating Amparo were enacted in 1861, 1869, 1882, 1897, and 1908. Most of the rules developed during this period outlived the constitution and are still valid today. See Cossío Díaz (2011a), pp. 34–37.

See Barragán Barragán (1987), pp. 189–190. It is very unlikely those who rooted for the American model in the Mexican Congress of 1869—Mariscal and Velasco—were aware of their American counterpart granting the federal courts habeas corpus jurisdiction over state prisoners’ claims just two years before through the Habeas Corpus Act of 1867. Still, this authority was exercised in the United States only for “jurisdictional challenges” until the 1940s. See Vladeck (2012), p. 964. For the evolution of the American Habeas Corpus see supra Chap. 3.

Even though in January 1869—after a long and heated debate—legislation had explicitly made the writ inadmissible to challenge acts of the judiciary, in July of that same year the Supreme Court admitted and granted in a controversial ruling—without even invalidating the respective statute—the first Amparo against a judgment of the Superior Court of Sinaloa. This view finally prevailed and the “judicial Amparo” was allowed explicitly in the statute of 1882. See González Oropeza (2005).

See Otero (1985), p. 137.

See Mexican Amparo Law (Mex. L.A.) (1882), art. 8, available in Barragán Barragán (1993), pp. 558–572.

See Soberanes Fernández (2011), pp. 475–479.

See Serna de la Garza (2009), pp. 132–133.

See Serna de la Garza (2009), p. 133.

Even though the Mexican Senate was reinstated in 1872 and this organ was granted some sort of constitutional control, by that time Amparo had already consolidated as the only mechanism of review and this new possibility had in fact very few practical applications. See Cossío Díaz (2008), pp. 51–53.

Within the 70 years that followed its enactment, article 107—the main provision regulating the writ of Amparo—of the Political Constitution of the United Mexican States (Mex. Const.) (1917), published in Diario Oficial V(30) 1917:1–13, was amended in 1951, 1962, 1967, 1974 (twice), 1975, 1979, 1986 and 1987. See Cossío Díaz (2011a), p. 87.

See Cossío Díaz (2011a), pp. 86–88.

After the incorporation of the so-called social rights to the Mexican Constitution of 1917, the Supreme Court had jurisdiction through Amparo practically against any act of any authority in the system. While on the one hand it had original jurisdiction on the one-instance writ (Amparo directo) against ordinary civil and criminal judgments, on the other hand it enjoyed appellate jurisdiction on the two-instance writ (Amparo indirecto) that was filed against legislative and/or administrative acts—including the quasi-judicial decisions of administrative and labor courts—before the federal District Courts. See Fix-Zamudio (1998), p. 376.

See Fix-Zamudio (1998), p. 386. See also U.S. Circuit Courts of Appeals Act (1891), § 2, published in Stat. 26(517):826–830 (creating the United States Courts of Appeals to serve as intermediate federal courts between the district courts and the Supreme Court).

After a series of intricate formulas that initially distributed Amparo jurisdiction between the Supreme Court and the Three-Judge Panel Circuit Courts depending on whether the alleged violations were, respectively, substantive or procedural, in 1968 the basic criterion of distribution surrounded the economic or social relevance of the specific Amparo. See Mex. Const. (1917), art. 107, §§ V-IX, as amended by Mexican Decree of Constitutional Amendments (Mex. Decr. ref. Const.) (1967), published in Diario Oficial de la Federación CCLXXXIV(45) 1967:1–5. Additionally, the administrative chamber of the Supreme Court could take over cases discretionally. See Mexican Amparo Law (Mex. L.A.) (1936), art. 84, § I (e), published in Diario Oficial de la Federación XCIV(8) 1936:15–39, as amended by Decree of Amendments to Mexican Amparo Law (Mex. Decr. ref. L.A.) (1968), published in Diario Oficial de la Federación CCLXXXVII(51) 1968:1–6.

By 1986 there were already 35 federal Three-Judge Panel Courts distributed in 18 circuits. See Fix-Zamudio (1998), p. 395.

See García Sarubbi (2011), p. 42.

For instance, Fix-Zamudio (1998), pp. 394–395.

De la Madrid Hurtado (1987), p. 29 (emphasis added). This document uses explicitly the wording “Constitutional court”. See De la Madrid Hurtado (1987), p. 28.

In contrast to the United States—where lower federal courts are established by Congress—the number and distribution of inferior federal courts in Mexico can be determined by the federal judiciary itself since 1987. See Fix-Zamudio and Fix-Fierro (1996).

See Mex. Const. (1917), art. 107, § VIII, as amended by Mexican Decree of Constitutional Amendments (Mex. Decr. ref. Const.) (1987), published in Diario Oficial de la Federación CDVII(6) 1987:3–5, and Mex. Const. (1917), art. 107, § IX, as amended by Mex. Decr. ref. Const. (1967). The Supreme Court, however, could still take on discretionally a “transcendental case” whose original jurisdiction corresponded in principle to the Three-Judge Panel Circuit Courts. See Cabrera (1990), pp. 482–484.

See Cossío Díaz (2011a), pp. 105–106.

See Fix-Zamudio (1995), p. 59.

For instance, Fix-Zamudio (1993), p. 502.

By means of this reform the Supreme Court returned to its original configuration of 11 members. See Mex. Const. (1917), art. 94, as amended by Mex. Decr. ref. Const. (1994).

See Mex. Const. (1917), art. 105, § II, as amended by Mex. Decr. ref. Const. (1994).

See Mex. Const. (1917), art. 105, §§ I and II, as amended by Mex. Decr. ref. Const. (1994). While this mechanism already existed as a normative possibility of constitutional review since the Constitution of 1857 and was retaken almost in the same terms by the framers of 1917, its limited wording had resulted in a lack of practical application. See Cossío Díaz (2008), pp. 108–111.

See Mex. Const. (1917), art. 105, § I, as amended by Mex. Decr. ref. Const. (1994).

The statement of legislative intent of President Zedillo did not give any argument to justify the need for a qualified majority for such a decision to achieve erga omnes effects. See Mexican Bill of Constitutional Amendments (Mex. Inic. ref. Const.) (1994), published in Diario de Debates del Senado 1(11) 1994:14–32. While the original bill actually envisaged a majority of nine Justices, the Senate reduced it to eight arguing the need for the new mechanisms to be “viable”. See Mexican Senate’s First Opinion on Constitutional Amendments to the Judiciary (Mex. Dict. ref. Const. 1a.) (1994), amend. XXI, published in Diario de Debates del Senado 1(14) 1994:1–42.

Compare Hoffmann-Riem (2003), p. 189. The problem with the qualified majority requirement is treated separately in infra Sect. 5.4.

See Mex. Const. (1917), art. 107, § VIII, as amended by Mex. Decr. ref. Const. (1987).

See Mex. Const. (1917), art. 107, § IX, as amended by Mex. Decr. ref. Const. (1967).

See Mex. Dict. ref. Const. 1a. (1994), pt. A (author’s translation).

See Mex. Const. (1917), art. 94 as amended by Mex. Decr. ref. Const. (1994).

Mex. Const. (1917), art. 94, as amended by Mexican Decree of Constitutional Amendments (Mex. Decr. ref. Const.) (1999), published in Diario Oficial de la Federación DXLIX(9) 1999:2–4 (author’s translation). Whereas these amendments were argued again under the discourse of the specialized constitutional court, the Senate mentioned that the idea was rather inspired by the American writ of certiorari. See Cossío Díaz (2011a), pp. 115–116.

Compare Kommers (1997), pp. 51–52.

Compare Schlaich and Korioth (2010), pp. 128–129.

See Fix-Zamudio (1998), p. 407.

See García Sarubbi (2011), p. 42.

While the organ responsible for the administration of the federal judiciary is—also since 1994—the Federal Judicial Council (Consejo de la Judicatura Federal), one of its seven members is the Chief Justice of the Supreme Court itself and three more are appointed by the Supreme Court sitting en banc. See Fix-Zamudio and Fix-Fierro (1996). Furthermore, a qualified majority of the court can overrule the council’s decisions. See Mex. Const. (1917), art. 100, as amended by Mex. Decr. ref. Const. (1999).

Whereas in 1994 there were 83 Three-Judge Panel Circuit Courts distributed in 23 federal circuits, in 2009 there were 195 of these courts distributed in 31 federal circuits. See Consejo de la Judicatura Federal (2009), p. 8.

See, among many, Zaldívar Lelo de Larrea (2002), pp. 2–13.

In 1999 the Supreme Court had appointed a commission of academics and practitioners to elaborate a draft for a new Amparo bill. In 2001 the commission’s proposal was fundamentally approved by the court and it was sent—as the judiciary lacked initiative right—to the other two federal powers. However, it was not until 2004 that a group of senators actually introduced the court’s draft as a bill. See Cossío Díaz (2011a), p. 118.

Zaldívar Lelo de Larrea (2002), p. 10 (author’s translation).

See Cossío Díaz (2011a), p. 118, and Mexican Senate’s Opinion on Constitutional Amendments on Amparo (Mex. Dict. ref. Const. A.) (2009), consideration 1, published in Gaceta del Senado 68(I) 2009:66–97.

See Mex. Decr. ref. Const. A. (2011), art. 1, and Mex. Decr. ref. Const. DDHH (2011), art. 1. Compare Zaldívar Lelo de Larrea (2002), pp. 10–13 (a summary of the Supreme Court’s draft of 2001), with Bill to Amend Articles 94, 100, 103, 107 and 112 of the Mexican Constitution (Mex. Inic. ref. Const. A.) (2009), published in Gaceta del Senado 352(I) 2009:80–99 (the senators’ bill that resulted in the constitutional amendments of June 6, 2011).

See Mex. Const. (1917), art. 103, § I.

See Mex. Const. (1917), art. 103, § I.

Mex. Const. (1917), art. 107, § I (author’s translation).

See Mex. Const. (1917), art. 107, § X.

See Mex. Const. (1917), art. 107, § III (a). This new requirement aimed at reducing the length of ordinary procedures. For a succinct explanation of the specific reasons that led to this change see Zaldívar Lelo de Larrea (2002), pp. 129–133.

See Mex. Inic. ref. Const. A. (2009), p. 81.

See Mex. Const. (1917), art. 107, § II. See also infra Sect. 5.4.

See García Sarubbi (2011), p. 42.

Whereas for reasons that had more to do with judicial federalism than with the enforcement of fundamental rights, the senators’ bill that proposed the constitutional amendments to Amparo explicitly addressed this problem. They originally suggested—naming several examples from centralized systems of constitutional review—the establishment of discretional rejection powers for the Three-Judge Panel Circuit Courts in order to limit the filing of Amparo directo against judgments of state supreme courts. See Mex. Inic. ref. Const. A. (2009), statement of legislative intent 1. Nonetheless, specifically that part of the proposal was rejected by the congressional commissions in charge of giving the first opinion to the draft and, consequently, it was removed from the bill. See Mex. Dict. ref. Const. A. (2009), amend. 3. (“[…] however, these commissions do not share the proposal contained in the bill in the sense of limiting in some cases the admissibility of amparo directo (sic), setting as admission criteria [the cases’] importance and transcendence.”) (author’s translation, emphasis on the original).

See Zaldívar Lelo de Larrea (2002), p. 129.

See Mex. Const. (1917), art. 107, § III (a).

See Mex. Const. (1917), art. 94.

See Mex. Const. (1917), art. 107, § XIII.

See Mex. Inic. ref. Const. A. (2009), statement of legislative intent 2, and Cossío Díaz (2011b), A18.

Compare Hoffmann-Riem (2003), p. 176.

See id., p. 75. While this complicated resolution included different majority constellations depending on each of the multiple issues that were dealt with, the specific decision concerning the introduction of diffused control into the Mexican system was only approved by a majority of seven Justices. See id., pp. 77–78.

See id., pp. 68–69. The new constitutional wording is the following: “Article 1. In the United Mexican States all the persons will (sic) enjoy the human rights acknowledged in this Constitution and in the international treaties to which the Mexican State is a party, as well as the guarantees for their protection, whose enjoyment cannot be encroached or suspended but in the cases and under the circumstances that this Constitution establishes.

The norms related to human rights will be interpreted in conformity with this Constitution and with the international treaties on the subject favouring at all times the widest protection to the persons.

All the authorities, within the framework of their competences, have the obligation to promote, respect, protect and guarantee human rights in conformity with the principles of universality, interdependence, indivisibility and progressivity. Consequently, the State shall prevent, investigate, punish and repair the violations to human rights, in the terms the law establishes…” (author’s translation, emphasis added).

For instance, Fix-Zamudio (2011), p. 462.

For instance, Fix-Zamudio (2011), p. 471. But see Roldán Xopa (2011).

The issue was brought up originally in May 2010 by the Chief Justice of the Supreme Court as a consultation to the court sitting en banc. See Expediente Varios 912/2010, Mex. Sup. Ct., D.O.F. DCXCVII(2-Segunda Sección):51–112 (2011), p. 51.

The opinion holding that alleged obligations could be gathered from the whole international judgment was shared by eight of the court’s Justices and had been decided already in September 2010. See id., p. 52. Nonetheless, the full resolution with the extent of these obligations was voted by the Supreme Court only after the “Constitutional Reform on Human Rights” had already been approved. See id., pp. 64–65.

See Expediente Varios 912/2010, Mex. Sup. Ct., D.O.F. DCXCVII(2-Segunda Sección):51–112 (2011), pp. 69–71, and Fix-Zamudio (2011), pp. 470–471.

Cossío Díaz (2011b), A18 (author’s translation).

This was precisely one of the reasons for three Justices to vote against the majority’s opinion. See, for instance, Expediente Varios 912/2010, Mex. Sup. Ct., D.O.F. DCXCVII(2-Segunda Sección):51–112 (2011), pp. 110–111 (Justice Pardo Rebolledo, dissenting).

See supra Sect. 5.2.2.

What is more, the few proposals that—to some extent—could have been interpreted this way were deliberately eliminated from the bill. See Mex. Inic. ref. Const. A. (2009), statement of legislative intent 1, and Mex. Dict. ref. Const. A. (2009), amend. 3.

See Expediente Varios 912/2010, Mex. Sup. Ct., D.O.F. DCXCVII(2-Segunda Sección):51–112 (2011), pp. 93–94 (Justice Aguirre Anguiano, dissenting). This is independent of the fact that the constitutional amendments also introduced in the same paragraph an explicit duty for the State “to prevent, investigate, punish, and repair the violations to human rights, in the terms the law establishes.” Mex. Const. (1917), art. 1, as amended by Mex. Decr. ref. Const. DDHH (2011) (author’s translation, emphasis added). This requirement for a regulatory legislation has been rather understood only related to State liability (i.e. damages) and not to the rules of constitutional scrutiny. See Mex. Decr. ref. Const. DDHH (2011), trans. art. 3. Still, the fact that after the amendments regulatory legislation is required for pecuniary reparation does not mean that such legislation is now unnecessary when it comes to the specific mechanisms to grant relief.

Contra, for instance, Mex. Inic. L. Cont. Dif. (2011), statement of legislative intent 1.

This statement of course does not pretend to imply in any way that the respective amendments should be a task of the Supreme Court.

See id., pp. 75–82. The references to the Federal Criminal Code within the judgment were made in regard to the material definition of the crime ‘forced disappearance of persons’. See id., pp. 88–91.

The Inter-American Court was not categorical on this regard. While it concluded that the writ of Amparo was in this case not an effective mechanism to challenge military jurisdiction—which constituted a violation of art. 25 (1) of the American Convention—, the court did not censor explicitly the rules that led to this lack of effectiveness. See id., pp. 82–84. The judgment’s reasoning suggests that the Amparo writ through which Radilla’s daughter had challenged the allocation of jurisdiction to military courts failed because art. 10 of the valid Amparo Law banned victims to file this writ on issues that did not relate directly to the reparation of the damage. See id., pp. 82–83. Nonetheless, the final dismissal of the Amparo en revisión filed by Radilla’s daughter against this military allocation was based exclusively on the grounds that this issue had already been resolved by the same Three-Judge Panel Circuit Court in a former ‘conflict of jurisdiction’ (i.e. in an ordinary federal appeal that was filed independently by the military prosecutor against the initial referral of the case to military courts). See id., p. 83. If that previous ‘conflict of jurisdiction’ was of a non-constitutional nature, then the final dismissal of the Amparo filed by Radilla’s daughter was evidently a mistake from the corresponding Three-Judge Panel Circuit Court and thus not necessarily a legislative flaw. It was perhaps for this reason that the Inter-American Court did not make further reference to the Amparo Law in its operative paragraphs. See id., pp. 105–107.

See Caso Nuevo León, Mex. 4th Nuevo León St. Crim. Ct. App., TOCA Penal Artículo 43/11, Sentence of 08/08/2011, pp. 2–24, and Bohlander (2009), pp. 18–27.

Mex. Nuevo León St. Crim. Code (1990), art. 224, § V, as amended on January 29, 1997 (author’s translation).

As mentioned, these are still being debated and are more a task for specialized criminal legal scholarship. See Roldán Xopa (2011).

Compare Dworkin (1985), p. 26.

Compare, for instance, 28 U.S.C. (2006), § 1257.

Compare Jackson and Tushnet (1999), p. 458.

Compare Hoffmann-Riem (2003), p. 179.

Still, if there would have been a victim, such Amparo would have probably been dismissed on the grounds of Mex. L.A. (1936), art. 10. As mentioned before, this rule bans the victims of a crime to file Amparo when the challenged decision does not relate directly to the reparation of the damage. See Radilla Pacheco v. Mexico, Inter-Am. Ct. H.R., 12.511, Sentence of 23/11/2009, pp. 82–83.

See Mex. Inic. L. Cont. Dif. (2011), statement of legislative intent (author’s translation).

See Mex. Inic. L. Cont. Dif. (2011), art. 5.

See Mex. Inic. L. Cont. Dif. (2011), art. 6.

See Mex. Inic. L. Cont. Dif. (2012), arts. 5–8.

See Cossío Díaz (2011a), p. 179.

For instance, Cossío Díaz (2011b), A18; and Fix-Zamudio (2011), p. 471.

Compare Kenntner (2005), p. 786. See also supra Chaps. 3 and 4.

So far this chapter has referred to the different treatment to constitutional control of general norms when the Supreme Court solves an Amparo by a qualified majority of eight votes; when the same court solves an Amparo by just a simple majority; when it solves a mechanism of abstract control of norms, and when it solves an Amparo related to tax law. See supra Sect. 5.2.2.

See Mex. L.A. (1936), art. 193, and Mex. L.A. (2013), art. 224.

See Mex. Const. (1917), art. 105, § I, para. 2 and § II, para. 3.

See Reforma al artículo 373 del Código Penal de Veracruz, Mex. Sup. Ct., Acción de Inconstitucionalidad 29/2011, Sentence of 06/20/2013. See also Criminal Code for the State of Veracruz (Mex. Cód. Pen. Veracruz) (2003), art. 373, published in Gaceta Oficial del Estado de Veracruz 223 2003 (“To whom, by any means, falsely affirms of the existence of explosive artifacts or others; of attacks with firearms; or of chemical, biological or toxic substances that may harm public health; causing the perturbation of public order; a penalty shall be imposed of between one and four years of imprisonment and a fine between 500 and 1000 days of minimum wage considering the actual alarm or public disturbance that was actually caused.”) (author’s translation).

See Mex. Const. (1917), art. 107, § II, paras. 2 and 3.

See Mex. Inic. ref. Const. (1994), art. 105, § 1, para. 2, and § 2, para. 3.

See Mex. Dict. ref. Const. 1a. (1994), amend. XXI.

See Mex. Decr. ref. Const. A. (2011), art. 1.

See Mex. L.A. (2013).

See Mex. Dict. ref. Const. A. (2009), consideration 1. It must be said that in the original bill, presented on March 19, 2009, by the senators from the PRI party, there was no such requisite. See Mex. Inic. ref. Const. A. (2009), art. 107, § II.

It must be emphasized, though, that apart from the Amparo writ, since the so called “Expediente Varios 912/2010” there is diffused constitutional and conventional review. See Expediente Varios 912/2010, Mex. Sup. Ct., D.O.F. DCXCVII(2-Segunda Sección):51–112 (2011), p. 75.

See Mex. Const. (1917), art. 96, para. 1.

See Reforma Antiaborto en Baja California, Mex. Sup. Ct., Acción de Inconstitucionalidad 11/2009, Sentence of 09/28/2011, and Reforma Antiaborto en San Luis Potosí, Mex. Sup. Ct., Acción de Inconstitucionalidad 62/2009, Sentence of 09/29/2011.

See Mexican Supreme Court (2014a).

See Mexican Supreme Court (2014b).

Mex. L. Reg. §§ I & II art. 105 Const. (1995), art. 43.

See, for instance, Raz (2009), pp. 213–214, and supra Chap. 2.

See Dworkin (1985), p. 27.

See Kau (2007), pp. 1–2.