This study compares the decisions of the Supreme Court of Nicaragua and and the Central American Court of Justice in resolving the legality of proposed amendments to the Nicaraguan Constitution. It looks at three theories to explain how courts behave when presented with issues of formal constitutional change. First, judicial review of constitutional change may be explained by the courts’ “accountability function.” Under this theory, courts play a role in democratization and check on government actions because courts view themselves as having the responsibility of reining in government abuse of power (Gloppen, 2004). Second, judicial review may be a manifestation of “hegemonic preservation”, where political actors secure the cooperation of legal elites to shape policy changes in accordance with their interests (Hirschl, 2000). Third, judicial review may be an application of the “insurance theory” --drafters of the constitution who believe that they are likely to lose elections after the constitution is adopted, seek to entrench judicial review as a form of political insurance—to give themselves a forum in which to challenge the legislature after the Constitution is adopted. (Ginsburg, 2003). This study will determine whether the courts resolving the amendments designed to reduce presidential prerogatives can be explained by these theories.
