These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the social bases of democracy by constructing rights. This essay argues that the constitutional changes that occurred are a necessary but not sufficient explanation for the role these two courts play. The agenda courts undertake is shaped both by short-term political bargains and by long-term societal transformations. As a result of both the bargains that led to the adoption of a new constitution and broader intellectual transformations regarding the role of courts in effectuating constitutional guarantees, the Colombian Constitutional Court has pursued a more ambitious agenda than the Mexican Supreme Court.

The participants in the Symposium included scholars and practitioners from the United States and abroad. They were: Adeno Addis, Tulane University Law School; Sarah Altschuller, Foley Hoag LLP, Washington D.C.; Larry Catá Backer, Pennsylvania State University Dickinson School of Law; Tim Baines, Dewey & LeBoeuf LLP, London; Michael Ewing-Chow, Faculty of Law, National University of Singapore; Faina Milman-Sivan, Professor of Law, University of Haifa; Muna Ndulo, Cornell Law School; Sarah Phillips, Professor of Anthropology, Indiana University; Blake Puckett, Ph.D. candidate, Indiana University Maurer School of Law — Bloomington; Gustavo Ribeiro, S.J.D. candidate, Indiana University Maurer School of Law — Bloomington; Miguel Schor, Suffolk University Law School; Michael Szporluk, Mercy Corps; Robert Wai, Osgoode Hall Law School; and Timothy Waters, Indiana University Maurer School of Law — Bloomington.

This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism—that of Islam. The object will be to examine the great variation of Islamic and Islamic-influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, if it is possible within this system to distinguish between legitimate and illegitimate constitutions, and if there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. Part I critically reviews the main currents of twenty-first century notions of constitutionalism and focuses on theocracy as a principle of governance. Part II suggests the possibility of fusing the legitimating structures of modern constitutionalism with the substantive framework of theocracy to produce a possible set of characteristics that would mark a legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Part III then applies this understanding of theocratic constitutionalism to the constitutional “families” of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism.