Deepening Democracy? Promises and challenges of Chile’s Road to a New Constitution

Abstract

As a response to mass mobilizations against the political and social status quo, a multiparty agreement activated a process to replace the constitution in Chile, three decades after the country’s transition to democracy. I argue that this process has three features that are not only desirable on normative grounds but also shared by successful episodes of constitutional replacement in democratic regimes: the drafting of the new text in an assembly bound by preexisting rules, inclusive mechanisms of representation and decision making, and direct citizen involvement. These features, in interaction with the popular repudiation of the elite-biased institutions inherited from the Pinochet era, might lead to a new constitutional arrangement that deepens democratization by expanding citizen rights, strengthening executive constraints, and removing restrictions on majority rule. Yet the realization of the full democratic potential of this constitutional change depends on the still uncertain ability of constitution makers to compromise on a text that is not only seen as legitimate among ordinary citizens but also promotes coherent goals, effective institutions, and good governance.

Shifting Electorates and Preferences in Chile’s Constitutional Process

“…The delegates drafted a constitutional proposal that significantly expanded social rights, decentralized power, strengthened the power of the legislature vis-à-vis the executive, protected minorities, established gender parity, and allowed citizens direct participation in policy making. In broad terms, most of these changes responded to widely shared criticism of the 1980 constitution (Negretto 2021). Yet, when the proposal was submitted for popular ratification in September 2022, 62% of the electorate rejected it.…”

Parity constitutionalism

“…Additionally, 65.1 per cent of the convencionales had a distinctly 'feminist' profile, 55 which suggests that parity may have contributed to shifting the median convention delegate further to the left, compared with the median voter in Chile. 56 Landau, for example, suggests that some of the Constitution's gender-related provisions, like those on reproductive rights and voluntary termination of pregnancy, might have played a 'single issue' role in voting decisions. 57 A 2021 poll among Chileans showed that although 73 per cent of respondents were in favour of abortion, only 41 per cent thought it should be completely free, 58 whereas the constitutional draft put to Chilean voters contained no clear limitation on reproductive rights or the voluntary termination of pregnancy.…”

“…60 The independent nature of many convencionales might have also made it less likely that they would be willing, or able, to compromise on a text that could gain support from ordinary citizens. 61 Independent, non-aligned women (and men) constitution-makers may have fewer incentives to engage in compromise than women and men counterparts who are subject to party discipline. Independents do not have the same incentives to follow majority attitudes and may see a decision to do so as departing from their mandate as independents elected to represent a particular community of interest.…”

Can Constitutional Change Transform Society?

“…9 Efforts have been made to strike a balance between popular demands, political elites' participation, and institutional continuity in the current Chilean constitution-making process. 10 Yet, as with other processes of this nature, we still need to wait for the constitution-making exercise to conclude and for the resulting constitution to be implemented to evaluate whether these succeed in practice, and to what degree.…”