Getting on the Wrong Side of Constitutionalism

The Chilean new constitution will be voted on a general plebiscite on September 4, 2022. While a few months ago the plebiscite might have looked like a formality, the approval rates for the Constitutional Convention and what is known of the proposed text so far have been dropping for some time now. According to recent polls, the rejection of the new text is becoming more and more likely, putting the constituent process under even more pressure. How did it come to this?

The Politics of Constituent Power

Different reasons have led to this situation. For a start, there are the various scandals around members of the Convention. Only shortly after its start, one of the Convention’s members, Rodrigo Rojas Vade, resigned his position. He had been a relatively prominent figure in the street demonstrations that sparked off the constituent process and had claimed that he had leukaemia and was protesting against high medical costs in Chile; later on, he confessed that he actually had syphilis, not cancer, which generated wide criticism. The latest scandal, only a few days old, involves two rivalling members of the Convention, a birthday party, and a piñata with the face of one of them being repeatedly hit…

Turning to more fundamental issues, the members of the Convention were elected according to an ambitious programme of political representation, including reserved seats for indigenous peoples and allowing independent groups to compete under equal conditions as political parties. The goal was to have the diversity of Chile represented in the Convention. The result of that ambitious design has proven challenging in practice. One of the largest independent groups elected to the Convention, the Lista del Pueblo (People’s List, to which Rojas Vade belonged) with 27 elected members, quickly fell apart, with new, smaller groups constantly emerging and disappearing. As a result, the landscape within the Convention is permanently adjusting. That adds further complexity to an already particularly inorganic picture and to the high threshold required to pass provisions (2/3 of the 154 members). The diversity and inorganic internal structure have led to growing fragmentation, which has been difficult to overcome as to generate the conditions necessary for collective decisions. Just one example: A few months ago, it took nine rounds and two days of voting to elect a new President and Vice-President of the Convention. The rounds of voting and subsequent interruptions and discussions were broadcasted live, followed closely and widely criticized in Chile. There is, in general, a growing sentiment that the Convention has not been up to the tremendous challenge it is facing.

The biggest challenge of all, however, might be that the Convention appears to be operating under the assumption that there is a symbiotic relationship between it and “the people”. An inflamed rhetoric against the Constitution of 1980, which was set in place by Pinochet in order to petrify the economic and social reforms passed during his dictatorship, next to an overwhelming victory in the plebiscite that opened the constituent process – roughly 78% voted to initiate the drafting of a new text – might have created the illusion that the Convention was, in fact, “the people” themselves. That would, at least, be one way of explaining why certain members of the Convention grandiloquently declared from early on that it was the originary and not derivative constituent power that was vested in them. Such declarations amounted to openly challenging the (institutional) conditions under which the Convention was called upon to perform its task: The constituent process was the result of a constitutional reform agreed on by the vast majority of Chilean political parties represented in Congress as a way out of the political and institutional crisis in which the country found itself after October 18, 2019. The reform foresaw the drafting of a new constitutional text, but also defined boundaries for it: It would in any case have to respect the republican and democratic character of Chile, final judicial decisions, and ratified international treaties which are in force. Thus, it appears as if the Convention has failed to appropriately acknowledge the political and institutional setting that decisively shapes its relationship to “the people”.

Constituent Power and Majoritarian Politics: Politics Always Finds a Way

Particularly with regards to the final plebiscite, which will determine whether the proposed text shall be adopted as the Chilean Constitution, it should be evident that the constituent endeavor is subject to similar conditions as ordinary democratic politics and its constant need for a majority. This is true for the dynamics within the Convention – particularly the commission working on the political system has had huge problems to come up with an institutional set up capable of gaining majoritarian support within the respective commission as well as the Convention – and, of course even more so, for the plebiscite. The ethereal, ever-changing character of “the people” refuses to be pinned down; its process of constant self-constitution is the result of an internal struggle that takes the form of permanent political contestation in a democracy. And while it is obvious that a large majority of Chileans does not see itself reflected in the current Constitution, it seems that a growing number of them does not see itself reflected in the political, social, economic, and cultural overhaul the proposed constitutional text – as much as is known of it so far – is aiming for.

There is yet another interesting point to be observed regarding the situation Chile’s constituent process is facing: Constitutionalism has traditionally organized, and to some extent thus limited political action. Over the last decades, constitutionalism – particularly in Latin American – has (also) been understood as a project of (social and economic) transformation, as a way of shaping and guiding political action, binding it to the achievement of specific goals, typically overcoming poverty, discrimination, and exclusion. In this light, the normative force of constitutions is the key to making sure that such political action operates rapidly, effectively and goal-oriented. And such was the common understanding that underpinned the Chilean constituent process. The new constitution was meant to finally organize in a way that would serve “the people”. That is probably the reason why the Convention’s intent – so far – seems to be to draft a normatively dense text for the new constitution. It is therefore particularly ironic that this entire transformative endeavor might be thwarted by the fact that no electoral majority can be gained in support. This is precisely the point at which it becomes essential to acknowledge the deep political nature of the issues the Convention is deciding upon. They, too, are part of the politics the Convention seeks to reign over through the new constitution. And by adding more and more content and normative depth to the draft, it is opening up more and more political struggles, some of them heavily contested, regarding each of which “the people” will have to find its identity on September 4.  Politics always finds a way.

Less Might Be More, As So Often

The rejection of the new proposed text would probably have catastrophic political consequences in Chile. It therefore seems critical that the Convention realizes the deeply political nature of the task it has been entrusted with and starts acting accordingly. A good starting point could be limiting the constitutional transformation to a number of specific key issues, on which preliminary consensus already existed. A clear and strong communicational and political campaign, with the explicit goal of finding a majority, could be based upon those. And while it is true that Chile requires deep reforms in several areas, the core constitutional competence of laying the foundation for a functioning political organization should be considered the main priority of the proposed text. There are enough examples of political and institutional dynamics in the world in general and South America in particular, which the future Chilean constitution should at least try to prevent. Economic, social, and cultural transformation detached from democratic support runs the risk of exploiting the wrong side of constitutionalism’s countermajoritarian dimension. Even if only narrowly approved, a deeply transformative but unpopular new Chilean constitution might sooner than later become unable to fulfil its function appropriately. It should thus be clear, even while drafting the new constitution, that the political challenges for the Chilean constitutional endeavour will not end on September 4, 2022.