Juridical Traditions and Oeconomic Survival in a Constitutional Genealogy. The Case of Tucumán in 1820

Abstract

The nineteenth-century Spanish-American constitutionalism was inextricably related to the emancipatory process. The constitutional texts sought to establish limits to public powers that were forming in the independent territories, in mined paths of crossroads on which the newest historical and legal studies are elucidating motivations and objectives. From there, it is being discovered that constitutional projects did not ignored a four-hundred-yearold public order, but incorporated elements, subjects and above all, purposes: what is the objective of putting functions and limits to a public power separate from the domestic sphere? Can we trace the survival of an old domestic order —oeconomic— in the constitution, social and political order that should not be confused with the colonial fact? Therefore, it is important to periodize the constitutional journey, since although in the final products, the constitutions that came into force in the nascent Latin American States, the traces of an old mentality are not easily discernible, in the earliest projects they were not only the view but they were determinants in the definition of the subject of law and in the values —catholic, oeconomic— that had to be protected. The nineteenth-century Spanish-American constitutionalism was inextricably related to the preeminent place of the Spanish householder, catholic and land owner. On nineteenth-century Spanish-American constitutionalism, the prescriptive capacity of the catholic economy has weighed, like a sword of Damocles, for the determination of juridical principles.
To highlight this hypothesis, it is necessary to perform an almost archaeological tracking of concepts and themes in the first debates on the fundamental law and the resulting texts. For this, we have chosen a provincial constitution, that of the province of Tucumán, written in 1820. Located halfway between the Peruvian space and the River Plate, Tucumán wanted to insert itself in the debate on the formation of the State by dictating its own constitution, as cover letter for a game of powers that was yet to be defined.