The Argentine Constitutional Reforms of 1949 were approved during Juan Domingo Perón's government. This new constitution was a major revision of the Constitution of Argentina. Its goal was to modernize and adapt the text to the twentieth century's concepts of democracy, with a bill of social rights, including better working conditions for the working class, right to education, etc. It also allowed for the indefinite reelection of the president.
It was suppressed by the military and civilian uprising known as Revolución Libertadora.
Background Social constitutionalism and second-generation rights After 1930, several Argentine provinces reformed their constitutions to incorporate the new trends of social constitutionalism (San Juan, Entre Ríos, Buenos Aires, etc.), and calls to reform the Constitution of 1853 became increasingly frequent. In 1937, the Radical Civic Union resolved that it was necessary to reform the Constitution.
In 1931, a book by Rafael Emiliani appeared, titled Bases para la reforma de la Constitución Argentina. In 1936, Rómulo Amadeo published Hacia una nueva constitución nacional and in 1943 Roberto Podestá wrote Antecedentes y puntos de vista para una revisión constitucional.
Among the reform projects presented in the National Congress is that of convention delegate John William Cooke. https://carasycaretas.org.ar/2024/04/13/la-mas-profunda-reforma He precisely explains the ideological foundations for state intervention in the economy that would inspire the 1949 reform:
The creation of the International Labour Organization (ILO) in 1919, with a tripartite structure of governments, trade unions, and employers, and the statements in the preamble of its Constitution, of worldwide validity, were factors that strengthened workers' demands around the world to include social rights in national constitutions. Practically all constitutions in the world reorganized their texts to incorporate the rights and guarantees that characterized social constitutionalism and to reorganize the state to actively pursue those aims.
Social constitutionalism is a consequence of the Industrial Revolution, the emergence of the working class, and its organization into trade unions and workers' parties to demand specific labour rights. Social constitutionalism and the constitution of the welfare state that characterized the 20th century are inseparable processes. Labour law became the central axis of the welfare state. In the United States, the process was better known as the New Deal, a term that literally means "New Deal", but which is closer to the idea of a new social contract.
The core principle of social constitutionalism is social justice, understood as the need to go beyond purely formal declarations of human rights and to assign the state an active role to ensure that constitutional rights are effectively enjoyed by all citizens.
Social constitutionalism goes beyond the field of labour law to include economic, social, and cultural norms. Among the economic norms is the notion of the social function of property; among the social ones, specific guarantees concerning housing, health, social security, and old age; and among the cultural ones, the guarantee of free public education.
The Argentine Constitution of 1949 is part of a Latin American movement inspired by social justice. Some scholars have described these movements as "populism" because of their connection with the people,Mecle, Elina and Fernández, Beatriz. La Justicia Social Hoy: un dilema. Proyectos de investigación "Reforma Constitucional, Poder Político, Justicia Social y Políticas Sociales 1949-1994." "Políticas Sociales y Democracia en el Neoliberalismo, Argentina en la década de los ´90". UBA. Secretaría de Ciencia y Técnica. "...En América Latina, el desarrollo de la Justicia Social, surgirá de un movimiento regional, político y altamente movilizador conocido con el nombre de Populismo; el nuevo Estado Populista, acompañado por los movimientos obreros del siglo XX, se convertirá en una fuerza política decisiva que, aliado con algunos sectores de las clases medias y de la burguesía industrial le disputarán al Estado oligárquico su papel hegemónico...." a term questioned by others for its pejorative meaning or for its Eurocentric generalization.Escudero, Laura. In Manuel Alcántara Sáez and Flavia Freindenberg (eds.), Partidos políticos de América Latina: Cono Sur. Ediciones Universidad de Salamanca, 2001, p. 72.
Debate over "total" or "present" members One of the first debates was whether Congress should meet in joint assembly or whether each chamber should deliberate separately in declaring the need for reform, and whether the points to be reformed should be specified, even if the constitutional modification was total.
Regarding the interpretation of Article 30 of the Constitution of 1853–1860, particularly how the two-thirds majority should be calculated, since Article 30 did not clarify whether it referred to present or total members: one sector of the UCR argued that the constitutional requirement of two-thirds of Congress should be interpreted by adding the word "total" to the phrase "of its members" in the original article. Peronism and other opposition parties, however, maintained that Supreme Court rulings and constitutional precedents should be followed, since all reforms had been approved with two-thirds of the members present; the 1853 framers had not included the word "total", and therefore it was not the role of legislators to alter the meaning of the Constitution by adding requirements that did not exist in the original. This position held that the UCR argument lacked legal basis beyond attempting to obstruct legislative debate. On this issue, the UCR split between the Balbín faction, which supported the "total members" thesis, and the group of Moisés Lebensohn and Julio César Oyhanarte, which supported the "present members" thesis.Constitución de 1949 – Javier Azzali, El constitucionalismo popular en Argentina, ISBN 978-987-4465-15-3, Buenos Aires, 2019.
The interpretation of Article 30 had never been questioned: laws no. 234 of the Confederation (1860) and no. 171 (1866), declaring the need to reform the Constitution of 1860 and 1866 respectively, had been enacted with a two-thirds majority of "members present", not total members.
Peronism maintained that the constitutional requirement was two-thirds of the members present, as had been the case in the constitutional reforms of 1860 and 1866.
In the Radical Civic Union there were two opposing positions. On the one hand were the unionist radicals—José P. Tamborini, Enrique Mosca, Ernesto Sammartino, etc.—who maintained a strongly anti-Peronist stance and proposed an outright rejection both of the constitutional reform and of participation in elections. Another sector, including the intransigent radicals—Ricardo Balbín, Arturo Frondizi, Moisés Lebensohn, Crisólogo Larralde, Arturo Illia, Amadeo Sabattini, etc.—although opposed to Justicialism, expressed support for measures of social progress and economic nationalism, arguing that they should participate in elections and attend the sessions of the Constituent Convention. The radicals took part in elections and attended the first ordinary session. At the time the 1949 Constitution was enacted, the main opposition party, the Radical Civic Union, debated whether its representatives in Congress should swear allegiance to the 1949 Constitution or refuse to do so, as proposed by Miguel Ángel Zavala Ortiz. The head of the radical bloc, Ricardo Balbín, maintained that the UCR should swear to the 1949 Constitution; Balbín's position prevailed and the entire radical bloc took the oath to the 1949 Constitution.http://www.saij.gob.ar/jose-ignacio-lopez-legalidad-legitimidad-constitucion-nacional-1949-enfoque-historico-dacf120169-2012-09-18/123456789-0abc-defg9610-21fcanirtcod
The radicals argued that the phrase "two-thirds, at least, of its members" should be interpreted literally.
The debate between present and total members was never fully resolved. The approval of this rule by two-thirds of those present, according to Bidart Campos, fulfilled the requirement of a correct interpretation of Article 30 of the Fundamental Law, since it does not establish any special majority in its text, applying the Latin maxim "ubi lex non distinguit, nec nostrum est distinguere"—where the law does not distinguish, neither should we—so that approval by two-thirds of the quorum required by Article 56 was sufficient to meet the constitutional requirement.Bidart Campos cited in Ziulu Adolfo Gabino, Derecho Constitucional, Vol. I, Depalma, Buenos Aires, 1997, pp. 58–59 In 1994, the conservative deputy Francisco de Durañona y Vedia drafted a bill establishing that, to declare the need to amend the Constitution, two-thirds of the present members of the chambers of Congress would suffice; it obtained half approval in the Senate.
The Supreme Court accepted the legitimacy of the 1853 Constitution and, from 1949 onward, also the legitimacy of the 1949 reform, applying its provisions in various rulings.The cases "Comercial Staudt" (Fallos, 229:368, 1954), "Eléctrica del Norte" (Fallos, 224:706, 1952), "Banco Nación" (Fallos, 226:408, 1953), "Oleaginosa Cipo" (Fallos, 226:453, 1953), "Goodyear" (Fallos, 229:456, 1954), and "Torrá" (Fallos, 232:134, 1955) apply the principles on abuse of rights and the social function of property established in the 1949 constitutional reform. In the case "San Miguel" (Fallos, 216:606, 1950), the 1949 Constitution was applied to accept an action for amparo.
Constitutionalists Arturo Sampay, considered the "father of the Constitution of 1949" Domingo Mercante José Espejo Ítalo Luder Pablo A. Ramella Eduardo Colom Moisés Lebensohn A. Aráoz de Lamadrid Alfredo D. Calcagno R. Lascano
The 1949 Constituent Convention
Composition of the Convention Among others, the following delegates participated:
Peronists: Arturo Sampay, jurist and constitutional scholar trained at the National University of La Plata, where he taught, with a social Christian background. Politically, he belonged to the group of Yrigoyenist radicals close to FORJA that in 1946 formed part of the Radical Civic Union Junta Renovadora, one of the parties that founded Peronism. A follower of the thought of Jacques Maritain, after the 1930 coup that overthrew the constitutional president Hipólito Yrigoyen, he became one of the main critics of the Constitution of 1853. In 1949 he himself presented the Justicialist Party with a draft that closely resembled the final reform. During the Constituent Convention he chaired the Constitutional Revision Commission and drafted the report read to the Convention on 8 March 1949. He is unanimously considered the ideologue or "father" of the 1949 Constitution. He authored works such as La crisis del Estado democrático liberal burgués (1942), Introducción a la Teoría del Estado (1951), and Constitución y Pueblo (1974).
Domingo Mercante, a military officer and son of an important trade union railway leader of socialist background and former Secretary of Labor, who together with Perón designed the strategy of alliances with the labor movement in 1943. José Espejo, trade union leader, elected Secretary General of the CGT in 1947. Ítalo Luder, jurist, professor of constitutional law at the universities of Buenos Aires, Catholic, Litoral, and La Plata, later provisional President of the Nation in 1975. He wrote La Jurisprudencia (1951), El Sistema Jurídico de la Ejecución Penal (1959), La Argentina y sus Claves Geopolíticas (1974).