Liberty of the Press Forever?

Constitutions are linked both to the past and to the future. The former is often preservational, embodying our heritage, which we want to preserve; the latter is their aspirational element, where we, as a polity, aim to go, which is often transformative, attempting to create a distinct political community. A central constitutional mechanism in the attempt to mark a dividing line between the past and the future, to represent a new era are unamendable provisions (or ‘eternity clauses’).

Unamendable provisions are an important feature of modern constitutionalism, existing in about 40% of the world’s constitutions nowadays. These constitutional provisions protect the most fundamental values of the constitutional order, placing them beyond the reach of constitution-amending power.

When drafting unamendable provisions, constitution-makers often react to past events and the previous regime’s failures, atrocities, abuses and injustices. They are an institutional negation of the past – the paradigmatic case of ‘never again constitutionalism’.

Perhaps the best example is Article 79(3) of the German Basic Law, which stipulates that the basic values of the state as a constitutional democracy and human dignity cannot be affected by a constitutional amendment. This unamendability must be understood against the background of the Weimar Constitution, Nazi rule, and the Holocaust.

Unamendable provisions, in this sense, play a “negative” role, serving as a lasting reminder of recent past devastations – a concept Kim Lane Scheppele calls ‘aversive constitutionalism’ – and as a constitutional/institutional attempt to transform and never return to past injustices.

It is within this framework of ‘never again constitutionalism’ I wish to examine one of the most unique and interesting unamendable provisions in the world: the protection of ‘Liberty of the press’ in the Mexican Constitution of 1824.

A Unique Unamendable Provisions

To the best of my knowledge, there was one single constitution in world history that included freedom of the press as an unamendable value – Mexico’s first sovereign Constitution of 1824. Mexico was constituted as a union of States, free and sovereign in their internal administration. The type of government was designated as “republican, representative, popular and federal”.

This Constitution had three main sources of inspiration: the US Constitution, which inspired the federal idea; the Spanish Cadiz Constitution of 1812, which defined “freedom of the press” as a limited freedom; and the French Revolution, wherein the French Constitutions of 1791 and 1795 already included  provisions on “freedom of the press”. But there is one unique feature: unlike the Spanish, American or French constitutions at that time, the Mexican Constitution forbade amending the fundamental ideas of the constitution.

Article 171 of the Constitution of 1824 stipulated the following:

“Those articles of this constitution and of the constitutive act which establish the liberty and independence of the Mexican nation, its religion, form of government, liberty of the press and the division of the supreme powers of the Union and of the states can never be changed.”

These articles, according to this provision, can never be changed. Liberty of the press forever.

It is unique because it is the only constitution in the world, to my knowledge, that declared specifically that freedom of the press (or “liberty of the press”) cannot be subject to revision.

In fact, Mexico’s Constitution of 1824 addressed freedom of the press in three articles: Article 50 stated that it is the power of Congress “To protect and regulate the political liberty of the press in such a manner that its exercise can never be suspended, and much less be abolished in any of the states or territories of the confederation.” According to Article 161: each state is bound “To protect its inhabitants in the enjoyment of the liberty of writing, printing and publishing their political ideas, without license, or previous revision or approbation, causing however the laws relative to this matter to be duly observed.” And, as aforementioned, Article 171 made liberty of the press an aspect of the Constitution not subject to modification.

Professor Hector Amaya, Director of the School of Communication at the University of Southern California, states that “this is the only Mexican constitution in which freedom of the press is clearly liberal.”

But when reading closely, the picture is slightly different: while articles 50 and 171 appear to be a remarkably strong statement of the fundamental nature of such a right — it can never be abolished or suspended – this protection is explicitly limited to “political ideas”, excluding other forms such as religious content, and remains subject to the “laws”, which suggest a considerably ambiguous protection.

Why There?

The question that immediately comes to mind is how come it was this constitution that included unamendability of liberty of the press?

I contend that this was a direct response to the Inquisition censorship established during the Ancient Régime. In November 1570, a branch of the Inquisition was established in Mexico, and it exercised a highly efficient jurisdiction for two hundred and fifty years. One central occupation of the Inquisition was the censorship of books and pictures, and these functions became more important when the outbreak of the French Revolution led to the spread of a spirit of liberalism throughout the world.

The Inquisition was on the watch for every book or pamphlet that came from the press, requiring prior licenses from both civil and religious authorities. The inspection searched for anything contrary to the laws, critical of the royal family, or contrary to the dogma of the Catholic Church. An additional restriction was that no book about the Indies could be published or sent to America without prior approval of the Council of the Indies. To prevent the introduction of blasphemous or imaginative works into the New World, all books had to be registered before leaving Spain and were subject to inspection by the Inquisition authorities upon arrival to ensure that prohibited volumes were not unloaded at the ports.

So, when the Cadiz Cortes recognized freedom of the press for the first time in Spain through a decree from 1810, writers eager to test this new freedom could hardly believe it. Carlos María de Bustamante, one of the first journalists to take advantage of the situation, opened El Juguetillo by asking “So now we can speak?”. However, two months later, the free press was again suspended.

Consider just one example that is close to the heart of Verfassungsblog readers: a Royal Decree of May 22, 1816, banned constitutional law books: “[the decree]…orders that the propaganda publications of the constitutional principles be collected, prohibits their reading and teaching, and orders that violators be punished of said prohibition.”

Thus, the revolution in Mexico put an immediate end to the systems of licensing and censorship that had characterized Spanish rule. It exemplified a feature of never-again constitutionalism or Traumatic constitutionalism. Just as the unamendability of democracy and human dignity in the German Basic Law must be understood against the background of the Weimar Constitution, Nazi rule, and the Holocaust.

Never-again constitutionalism highlights and condemns the evils of the prior regime, defining the core of what the new constitutional order and its identity by repudiating the horrors of the past. This explains the unamendability of the liberty of the press in Mexico.

The aftermath

The Constitution of 1824 remained in effect for 11 years, during which it was affected by a series of civil wars, coups d’état, and temporary dictatorships. In 1835, when the Mexican Congress started debating modifying the Constitution of 1824 in order to change the form of government from a Federal one to a Centralized one, the very nature of the power of Congress to make such a change was questioned. A committee, chaired by Carlos Bustamante, was set up to advise on the extent to which the representatives were actually authorized to make such constitutional changes. In the preface to the committee report, Bustamante argued that popular opinion was demanding constitutional reform of the Federal system. The committee made two recommendations: first, that the existing Congress enjoyed all the necessary powers to change the 1824 Constitution; second, that Congress should acknowledge that its powers did not extend to changing Article 171. In other words, the form of government was protected from change, but also liberty of the Press! Both proposals were approved in Congress by a vast majority. Thus, in March 1835, the Mexican Congress decided that “it was empowered by the electorate to make changes to the existing federal constitution but not to the actual form of government.”

A few months later, in July 1835, this approach was abandoned when Congress declared itself fully empowered to change the form of government. Accordingly, a new charter known as the Seven Laws was enacted in 1836, which recognized the establishment of a “democratic centralized republic”.

In 1843, a second Constitution – the Organic Basis – was adopted. It was republican, pro-church, and centralist. Thus, the document did not include an unamendable protection for liberty of the press, and in fact, freedom of the press was reduced.¹⁾

In 1846, the Constitution of 1824 was restored, with some substantial modification effected by the Laws of Reform adopted in 1847. It recognized liberty of the press,²⁾ but not as an unamendable right, although it preserved the unamendability of the form of government.³⁾

The next constitutional document was the 1857 Constitution, which enjoyed a relatively long life before it was replaced by the Constitution adopted in 1917, which is still in force. In the Constitution of 1857, the formulation of freedom of the press followed that of the Spanish Cadiz Constitution. Article 7 established freedom of the press and the illegality of prior restraint or coercion, but it also stated the limits of this freedom, which included “respect of privacy, morality, and public peace.” This Article served as a basis for the Constitution of 1917. In contemporary Mexico, the 1917 Constitution allows for the restriction of expression, culture, and information if they are deemed immoral, harm third parties, promote crime, or threaten the harmony of society, which is safeguarded by the state.

Both constitutions did not include any unamendable provisions.

Liberty of the press forever?

So, to conclude, the Mexican story is not one of ‘liberty of the press forever’. The term  ‘eternity clause’ is misleading – constitutions are not eternal. The Brazilian or Portuguese terminology, which refers to these provisions as cláusulas pétreas — meaning ‘stone clauses’ or ‘petrous clauses’ — to express their rigidity, is more accurate. Because even rocks cannot withstand the volcanic outburst of the constituent power, of a new revolution or coup d’etat. Thus, the Mexican example highlights the importance of freedom of the press to the revolutionary liberal thinking in Mexico, but also the limits of constitutional design.

The 250 years of Inquisition had an age-long influence over the national character and modes of thought in Mexico. And even the absolute entrenchment of liberty of the press did not endure. Apparently, beyond any constitutional design, liberal-democratic culture is important: “in the end, constitutions cannot save democracy: Only (small d ) democrats can.”

The author would like to thank Noya Matalon for useful research assistance. An early version was presented at T.M.C. Asser Institute, UNESCO, Free Press Unlimited Forum for Judges & Prosecutors in Africa and Latin America, on Freedom of the Press (Asser Institute, 2022).