Chile or the Impossibility of a Constitution

The second act of Chile’s constituent process is ready to begin. Elections for the 50 members of the Constituent Council, in charge of drafting the text of a new constitution, took place this Sunday, May 7. The results, a clear victory for the far-right Republicanos, may come as a surprise to many. Is it?

I argue that Chile’s last decades has seen an open “political” use of the constitution, that is, a use of the constitution as means to influence or to some extent control the contingent political struggle for power between governments and opposition. From that perspective, the results are less surprising than what they may seem compared to the 2021 election for the Constituent Convention during the last failed process. The results also might show, however, that the fundamental distinction between constituent power and ordinary politics might be theoretically necessary but impracticable.

Breaking Bad

A lot has been said already about Chile’s current constitution. It was established in 1980 during Pinochet’s dictatorship and was designed to petrify some of the main features of the regime put in place after the coup in 1973. What remains remarkable is how candidly that instrumentalization of the constitution was openly explained by its authors. Jaime Guzmán, murdered in 1991 by the leftist terrorist group Frente Patriótico Manuel Rodríguez, is generally seen as the driving force and main ideologist of the new constitution. In 1979, he published a short column called “El camino politico” (“the political road”); in it, he advocates the idea that Chile’s new regime should create a situation in which “if our adversaries govern, they should be forced to follow a course of action not very different from the on would have preferred, because – a metaphor be allowed – the playing field already constrains the possible actions by the players such as to make it very difficult that they would act otherwise” (“Es decir, que si llegan a gobernar los adversaries, se vean constreñidos a seguir una acción no tan distinta a la que uno mismo anhelaría, porque – valga la metáfora – el margen de alternativas que la cancha imponga de hecho a quienes juegan en ella, sea lo suficientemente reducido para hacer extremadamente difícil lo contrario”).

This is, of course, nothing else than the explicit recognition that the new constitutional regime should be such that the scope of politics altogether should be limited to a set of alternatives not completely unpleasant to those in power during the dictatorship. And that the constitution should achieve precisely that. This is, indeed, the argument advanced by Fernando Atria, who has been advocating the need for a new Chilean constitution for many years now: The current constitution’s original plan was to neutralize politics. The liberal ideal of a constitution that limits the powers of the state or of governments is thus exaggerated up to the point of becoming a political farce: the set of institutionally available options is such that progressive political actors are left with the choice between developing a political discourse that they will, if elected, hardly be able to realize, or adapt to the conditions and moderate their political discourse accordingly, limiting the scope of what can be politically achieved.

Emancipation

It was, in part, this rhetoric about the Chilean constitution that sparked the protests of 2019, which made the constituent process in 2021-2022 possible. Under the circumstances mentioned above, it is not entirely surprising that the constitutional question was processed by institutionalized politics only after the “social uprising” on the streets had fundamentally transformed the “playing field”. Of course, the Chilean constitution in 2019 is fundamentally different from the one entering into legal force in 2019, but the constitutional practice that developed from it and the persistent symbolic dimension of a document never really accepted by the general population gave the calls for a new constitutional text particular relevance.

What came after that is known. In the initial referendum on whether a constituent process should begin, the option for a new constitution won by a landslide; in the following elections for the Constituent Convention, the organ in charge of drafting the new text, a wide array of different shades of left won the 2/3-majority required to approve the text. Ironically, at least considering the radically opposed conditions under which the constitutions were drafted, the left was in the position to make the new constitution politically just as one-sided as Pinochet’s constitution. A temptation which proved impossible to resist. The proposed draft had 388 articles, with roughly 100 of them dealing with fundamental rights, and contained detailed provisions aimed at radically transforming Chile’s political, social, and cultural physiognomy. Again, under the draft, ordinary politics would have been confronted with a dilemma: Either devoting itself entirely to a mere execution of the constitution and its ambitious goals for the coming decades or rebelling against the constitutional substance in a struggle for constitutionally undefined spaces.

The fact that the draft text that resulted from the 2021-2022 process incorporated many of the left’s political goals was, to some extent, a political vendetta. Daniel Stingo, one of the members of the Convention that most radically advocated this vendetta, put it this way: “The great agreements are going to be defined by us now, and the rest will have to join us. Just to be clear. And ‘us’, that’s everyone who is not the right”. But the course of action also went further in the political road announced by Jaime Guzmán: the constitution, understood as means to pursue political goals, as defining what politics can be about, and thus what the political opponent can do.

Fall from Grace

The end of that first draft for a new constitution is also known: The text was rejected by more than 60% of Chileans in a referendum held in September 2022. It took months of hard negotiations to enable a second constituent process, which was conceived in radically different terms.

The process foresees different stages: The first one, during which an Expert Commission, elected by Congress, drafts a first proposal for a new constitutional text, is close to finishing; the second one, during which the Constituent Council will work on the proposal and define the final draft, will soon begin. And as a result of the elections held on May 7, this Council, in charge of preparing the final version of the new constitutional text, will be controlled by far-right, conservative Republicanos.

Constitutional politics: necessary and impossible at the same time

What is one to make of these results? Within two years, Chile went from wanting the new constitution to be drafted by a strong left-wing majority, to wanting a far-right, conservative party to perform that very same task. Is this because politics is always irrational? Not necessarily. In fact, the results can very well be read as another chapter in the tradition that has been briefly sketched above: a decision on a constitution, or, for that matter, on who should draft it, is no different than ordinary politics, that is, than the election of representatives or presidents. It’s all about different political forces trying to get a hold on power. If that happens through elected representatives, that’s great, but even if it doesn’t: constitutionally constraining the political adversaries to do something not very different from one’s own political program will also do just fine. This is what the last decades in Chilean constitutionalism have been about.

In light of that, the dynamic that unfolded during the electoral campaign leading up to the elections for members of the Constituent Council can be hardly surprising. Polls showed that the interest in the new process had been falling. There is, certainly, some degree of constitutional fatigue after the first failed process. But there were also doubts as to how the constitution will actually contribute to solving the country’s problems. This could have been used to advance an idea that should be in everyone’s interest but, given the understanding of a constitution as loot, actually is in no one’s: the idea that a constitution needs to function at a certain distance from day-to-day politics and that its task is not to provide solutions for contingent political problems, but to generate the conditions that allow for the political system to do so. Instead, the reaction by political actors was the exact opposite: further politization of the campaign. And so, public security and migration, two of the most pressing issues right now in Chile, were at the very heart of it, notwithstanding the fact that, arguably, they require answers rather different than constitutional provisions. The “ordinary politization” of the electoral process went as far as having right-wing parties, usually operating under the name of “Chile Vamos”, similar to “Let’s Go Chile”, changed their name to “Chile Seguro”, “Safe Chile”, to make the connection between public security and the election for the members of the Constitutional Council even more explicit. And, a Senator for Renovación Nacional, a moderate right-wing party, called for the elections of members of the Constitutional Council to serve as a referendum on President Boric’s performance so far.

Under these circumstances, it’s hard to be optimistic about Chile’s constitutional future. Roberto Gargarella, a renowned Argentinian Professor, writing after the referendum in September 2022, claimed that, since it was impossible to separate the question actually being voted upon from all other politically relevant questions, it was better to discard referendums on whether to adopt a constitution altogether. It is, in fact, difficult not to share the view that there is something fundamentally flawed about these elections and their disjunction between substance and form. But instead of dismissing referendums on constitutions, I would argue – not without recognizing the naivety of this position – that what is needed is a broad, shared, and general understanding of what a constitution is, of its unique characteristics, and of its role within the system of constitutional democracies. Accordingly, an understanding should be developed as to why talking about constitutional matters is different than talking about general political matters, and, particularly, as to why it should be accepted that in some cases, the political irrelevance of the constitution is the way to protect the entire system. When drafting a constitution, the key question should be about a set of arrangements and institutions that allow us to institutionally process problems and not about offering solutions, imposed on the political adversaries.

In the case of Chile, the tendency to use the constitution as a political weapon quickly reminds of the end of García Márquez’ Love in the Time of Cholera: “And how long do you think we can keep up this goddamn coming and going?” One can only hope that the current process will produce a draft that allows for an answer different from that in the book.