The Risks of Wholesale (and Ideologically Tilted) Constitutional Replacements: Lessons from Chile’s Rejections 

♦ ♦ ♦ This article is part of a series where experts provide insights into Chile's constitution-making process. Read more. ♦ ♦ ♦

Chile's second rejection of a draft constitution within two years highlights the significant risks associated with such divisive and resource-intensive efforts. What lessons can be learned from the two rejections, and is there a more prudent approach for aligning constitutions with citizens’ needs and demands? Dynamic constitutional reforms and continuous citizen engagement offer viable alternatives to drive societal change while upholding democratic legitimacy – writes Aldo Valle

Introduction

In this piece, the hypothesis that I will analyse, based on Chile’s recent experiences of two failed attempts to replace its constitution, is that the path of replacing an entire constitution in a single democratic act exposes the political system to significant risks, or at the very least, may lead to ineffectiveness. 

Given that the socio-political and cultural factors relevant to Chile may also apply to other countries, the most advisable approach to constitutional change seems to be through targeted reforms with limited political and institutional objectives, and with guaranteed public participation in the democratic ratification to enhance the legitimacy of these reforms.

Key Context for Chile’s Constitution-Making Processes

To understand the internal legal and political landscape in which these processes unfolded, it is necessary to recall that in Chile, since the restoration of democracy in 1990, an ongoing debate have revolved around the legitimacy of the 1980 Constitution crafted during the Pinochet dictatorship, and its normative content.

Against this historical backdrop, the 2019 "social outburst" caused serious damage to social and political coexistence. This turmoil was eventually channelled through a political agreement to replace the constitution, which included an entry referendum allowing the constitutional reform process to start. About 50 per cent of Chilean voters participated in this referendum, with almost 80 per cent voting in favour of replacing the 1980 Constitution. Subsequently, a Constitutional Convention was elected, but the proposal it generated was rejected in another, this time mandatory, referendum held in September 2022, with 62 per cent of the electorate voting against it. This was a surprising result since in the entry referendum the option to completely replace the current constitution received almost 80 per cent approval.  

The rejection of the constitutional proposal via referendum was followed by another agreement in the National Congress in December 2022, which called for a second process, albeit with a different design.

The rejection of the constitutional proposal via referendum was followed by another agreement in the National Congress in December 2022, which called for a second process, albeit with a different design. This process also included the democratic election of a new constitution-making body, the Constitutional Council. In this election, the Partido Republicano (Republican Party), a new right-wing political organisation, won a plurality of the vote and had sufficient seats in the Council to block any provision they did not consider acceptable.

While the left and centre-left’s main objective in this second process was to reform the 1980 Constitution in order to advance towards a social and democratic state under the rule of law, the proposal endorsed by the majority in the elected Constitutional Council not only failed to realize this institutional objective but also sought to prevent any future legislative majority from promoting policies in line with the principles of such a state. Additionally, the proposal introduced a culturally regressive project impacting the individual rights of women and young people.

In summary, the text proposed by the Constitutional Council expressed a combination of neoliberal and outdated conservative principles, and it was also rejected in another mandatory referendum, this time by 56 per cent of the electorate.

Analysis of Common Issues and Defects in the Failure of Both Processes

Unpredictable and Shifting Majorities. In both processes, the same mistake was made. The respective majorities, despite having opposing ideological orientations, failed to restrain their aspirations for political dominance, which prevented them from embracing more cross-cutting projects that would have allowed political pluralism in areas with significant differences. This behaviour can be largely explained by the emergence of identity politics associated with ideas of nation, race, religion, ethnicity, traditions, gender, or social class, as well as the preservation of power dynamics or economic interests that were not open to democratic negotiation and deliberation.

A More Diverse Citizenry than the Momentary Majority. The failure of both processes clearly highlights that the general public, for various reasons and motivations, when faced with constitutional proposals of opposite content and ideological biases, preferred the continuity of the known institutional reality regardless of whether they approved or disapproved of the origin and ideological content of the reformed 1980 Constitution. Even social and political sectors that had tirelessly advocated for its replacement chose its continuity in this second process.

A More Autonomous Civic Majority. In both processes, a diverse and non-militant civic majority from various social and cultural backgrounds expressed opposition to the respective projects. In both cases, the electoral majorities in power failed to reach an agreement with the respective minorities on a pluralistic project that would represent the social and cultural diversity of Chile. Neither side was willing to relinquish their pursuit of hegemony, which they considered legitimate, as each was acting with a democratic mandate. However, the proposals ultimately clashed with the civic maturity and restraint that a significant portion of the population possess and demonstrated in both processes.

Shortcomings in the Offerings of the Political System. The political party system, but also Congress and other state powers, are responsible for not realizing that by allowing certain ideologically biased doctrines to be imposed through electoral representation, they have distanced themselves from the majority of citizens, who remain diverse, plural, and less ideologically driven.

Confusion between Constitutional Norms, Public Policies, and Government Programs. This defect arises because the constituent majorities failed to restrain themselves from including not only the foundations and principles of a new political and economic order in the constitution, but also the procedural rules and distribution of powers among constitutional bodies. They even extended their reach to regulations related to public policies and measures that should be part of government programs.

In all instances, these are defects or consequences associated with the path of total replacement of the text in a single democratic act.       

Risky Effects on the Legitimacy and Stability of Political Systems

Emergence of New and Old Conflicts. The decision to completely replace the constitutional order also has the effect of awakening and stirring up unresolved differences and conflicts that were dormant or ready to surface at the first political opportunity, especially if this opportunity takes the form of an institutionalized process. This leads to a proliferation of disputes or controversies that could previously coexist, but that now the political system can hardly control. The diversity and number of issues under discussion, in turn, hampers key stakeholders finding consensus.

Unmediated Representation. A political phenomenon, quite typical of our times, is the emergence of new political movements. Many of these movements are driven by identity-based or populist narratives that are as seductive as they are simplistic and often radical. The difficulty lies in the fact that they engage in institutional politics without the mediation or moderation typically provided by political parties. This leads to constitutional replacement proposals that clash with well-established socio-cultural and evolving norms. The removal of these norms is not supported by the majority of citizens, who are not as ideologically polarized.

Democratic Legitimacy and Limited Constitutional Reforms. A critical aspect of this analysis is that limited constitutional reforms should not necessarily lack legitimacy, but changes are needed in the design of the procedures for parliamentary initiation and adoption. In this regard, I include a proposal for such changes in the concluding paragraph of this piece.

Conclusion

The Chilean process highlights the risk that the political system may be perceived as a self-referential loop, where constitutional debates become arenas of political conflict, isolated from any societal needs and hindering social development. This perception undermines the essential role of political systems: providing stability and legitimacy to democracy.

In today’s increasingly polarized political landscape, wholesale constitutional replacements may not be the wisest strategy for reform.

In today’s increasingly polarized political landscape, wholesale constitutional replacements may not be the wisest strategy for reform. The main political organisations often prioritize their need to connect with momentary demands and emergencies, and often do so in a simplistic or populist manner. Pursuing constitutional replacement processes in such an environment can become an opportunity to fuel intolerance.

Considering that the factors driving these risks within our political system cannot be quickly changed, I propose alternative strategies for constitutional action:

1) Dynamic Constitutional Reform: Political systems should proactively use constitutional reform mechanisms to respond to evolving circumstances, preventing the accumulation of conflicts or their intensification.

2) Sustained Citizen Engagement: Constitutional frameworks should adapt or adjust their reform procedures to incorporate citizen ratification mechanisms like plebiscites or referendums regularly, not just as exceptions. This ensures that even limited reforms gain the democratic legitimacy required to drive societal change.      

Aldo Valle was the vice-president of Chile’s Constitutional Council, and is a professor at the Law Faculty of the Universidad de Valparaíso.

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Suggested citation: Aldo Valle, ‘The Risks of Wholesale (and Ideologically Tilted) Constitutional Replacements: Lessons from Chile’s Rejections’, ConstitutionNet, International IDEA, 22 December 2023, https://constitutionnet.org/news/voices/risks-wholesale-constitutional-replacement-chile

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