AND
It’s curious that Two of the arguments against the popular election of judges, ministers and magistrates of the Judiciary were born in a still aristocratic world: the balance of powers
seen as counterweight
and social identity as a political issue. Both arguments arose in mid-17th century England, after the civil war between Parliament and the king, which ended with the execution of Charles I.
They involve a confusion between two different fields: sociology and politics, and are based on the aristocratic and feudal idea that societies are made up of organic groups – aristocrats, bourgeois, and the rest – and that, therefore, political representation must obey them. This gives rise to a series of confusions that, although the French Revolution does not resolve, it does make them positive. Let’s take it step by step.
The idea is that the judiciary is one part of a kind of machine that reaches a balance with two other parts: the king – the executive, in modern terms – and Congress or Parliament. It comes from the fact that the person who invented it, Montesquieu, conceived it by seeing how the classes were composed in England: nobles in the House of Lords, people in the House of Commons, the king, and in the judiciary the aristocracy who had studied law.
This idea flows into the arguments that the Supreme Court judges have given in this 21st century: a popular election does not address the virtuosity of the eminences in the science
of the law. What the judges are basically saying is that if the people contaminate it with their vote, the Judiciary becomes how they see the same people: ignorant, improvised, irresponsible, if not purchasable.
The latter has to do with how the matter has been handled by Prian: in the narco states
–we assume Sinaloa or Tamaulipas–, the criminals will choose as judges to his own
This anti-popular and anti-regional ideological bias in the country is precisely what has the judiciary on its knees in front of the 36 million voters. What the judges do not seriously discuss is who they represent at this moment.
According to them, they embody justice and the spirit of the Constitution, but when we see their sentences, we see a third party represented that is neither the State nor justice: interest groups, foreign companies, and the criminals themselves. Hidden in the basements of the lobbyingare visible in the sentences.
So it does not matter where their appointment comes from, what is important in the case of these judges is their performance on behalf of the Mexican State, which, as the Constitution says, emanates from popular sovereignty, and which they have corrupted in the eyes of public opinion.
When the idea of political representation as something sociological came to France, in the midst of the Revolution, the distinctive feature that representatives must have was not merit or belonging to a social typology, but another of a moral nature: trust. Initially, the French Revolution put forward an ideal of representative coming from the people, which is not a sociological category but purely political: the people do not pre-exist politics but are constituted in the exercise of their liberties.
For the French revolutionaries, who were already in power, there were no social groups that had to balance each other out, but rather a discourse about the general interest, the nation, the shared collective future. When it came to having representatives, they had ideologies, not typologies. They had invented the citizen, who was not an individual body or an identity group, but a majority, a representation of a future and a mandate under which they must act. They called it popular sovereignty. It would be enough to universalize suffrage for it to express itself. And the electable trait in a representative is not where he comes from, but what decisions he makes in the name of the people or the State. It is trust.
The French moment is very different from the English one. The latter are coming out of a civil war that has lasted almost a decade and is the bloodiest in their history, only to restore the monarchy. The French have decapitated the monarchy and, for a few years, are living a moment of collective future. This creates a way of seeing the nation as open to possibilities and not wary of provoking a new confrontation.
But let us return to the current discussion. The division of powers
has become a paralysis of both executive initiatives and legislative decisions. The judiciary in the time of Norma Piña has supplanted the other two powers of the Republic.
Montesquieu would have been horrified, since he thought of the three-legged table as a system in which powers were monitored in order to harmonize, not hinder, one another. He would also be shocked by the notion that the judges invoke with such levity: We are counter-majority
that is, they go against the decisions of the other powers, which are elected and have popular representatives. Going against the elected majority is simply going in favor of the hidden minority.
It is spoken of autonomy
as if that meant distinguishing themselves from the majority, from the people who are unaware, confused, and ignorant. They will say that it is their very experienced conscience science
of the law, which leads them to be interpreters of the written law, a kind of aristocracy of law firms protected by the two parties, now moribund.
Oracles of the message of a deity that is not understood only in writing. Not trust, but eminence, an anti-democratic notion like few others: merit hides privilege. In the case of our Judiciary, it is even a family privilege, not to mention having dinner with the PRI and the PAN.
That is why, in our Mexican debate, confidence should be taken from the French version of representation. A certainty that is demonstrable, that comes not from the boasting of titles, but from sentences in favor of and not against the general interest. Montesquieu’s answer would be that simple, and then he would leave the forum.
