About three years ago, bedlam erupted across Chile, widely considered one of the most stable and prosperous countries in Latin America. In a country of 18 million, about four million took to the streets, some of whom resorted to violence and vandalism. The incineration of the El Mercurio building, home to the world’s oldest continuously published Spanish-speaking newspaper, the cancellation of the COP25 UN Climate Change Conference in Santiago, and the loss of 34 lives, about 300,000 jobs, and over $3 billion in property damage, all seemingly pointed to the end of an age. On September 4, 2022, Chileans will vote to either accept or reject a new draft constitution, written by a constitutional committee elected last year, with the goal of enacting a new social contract through which the country may restore its stability, strengthen its democracy, and embark on a new path towards progress. At least, that was how this project was sold to them.
The constitutional committee was inaugurated with robust popular support. In a 2020 plebiscite, nearly 80% of the Chilean electorate voted for the drafting of a new constitution, and as recently as January of this year, polling data projected that 56% of Chileans would vote to approve the new constitution, with only 33% rejecting it. Yet, the polling numbers have since tightened drastically, and by June, a new poll projected that only 37% would vote to approve the constitution, against 46% who would vote to reject it. While there are many reasons for this reversal, they all point to a common issue — that millions of Chileans, though dissatisfied with the status quo, no longer feel represented by the future they are being promised.
The initial support for the constitutional committee can only be understood in light of Chile’s current constitution. First enacted in 1980 under the right-wing dictatorship of Augusto Pinochet, it has since been drastically reformed to ensure the political freedoms expected in a modern and pluralist democracy. In 1989, a year before Pinochet stepped down, prohibitions were lifted on the promotion of ideologies deemed totalitarian, including Marxism, and the presidential prerogative to shut down the lower house of Congress was abolished. Between 1994 and 2005, the length of the presidential term was reduced gradually from eight to four years. Finally, also in 2005, unelected senators were removed from Congress, some of whom were previously appointed by the Chilean armed forces. Despite its dictatorial origin, the reformed Constitution of 1980 has provided the basis for one of the healthiest democracies in the Americas. Indeed, by 2019, The Economist deemed Chile more democratic than the United States, France, Belgium, and Portugal, among other advanced democracies. Yet, the old stain of dictatorship has proven a powerful rhetorical tool to transform popular discontent against inequality and economic stagnation into demand for an overhaul of the nation’s institutional order. Indeed, while other Latin American countries, such as Ecuador, Colombia, and Peru, have also seen explosions of social unrest in the past three years, none of them have experienced such fervent and widespread demands for a new constitution. While each of these countries enacted its current constitution with varying degrees of popular support and institutional legitimacy, the bottom line is that they all did so under the supervision of presidents chosen in free and fair elections, unlike Chile.
As the details of the draft constitution under consideration became publicly known, many of its clauses proved controversial. The new document stipulates that all “women and birthing people” have a constitutional right to a “voluntary interruption of their pregnancy,” broadly legalizing abortion in a country where 49.6% of people believe that abortion is never or almost never justifiable. For perspective, the same figure is just 37.1% in the United States, where abortion is nonetheless a deeply controversial issue. Along similar lines, it mandates the right to a sexual education that “promotes the free and unfettered enjoyment of sexuality,” further alienating social conservatives.
In the realm of political institutions, the draft constitution empowers the “judicial systems of indigenous peoples” to exist on “an equal footing with the national judiciary,” raising concerns about the consistent application of the rule of law if the scope of these indigenous tribunals is not clearly determined. It also replaces the national senate with a new upper house of Congress, known as the “Chamber of the Regions.” While the approval of the former is currently required to enact any laws through Congress, the approval of the latter would only be required in certain areas, granting more uncontrolled legislative power to the House of Representatives.
Finally, in the realm of economics, the new document would weaken Chile’s constitutional protection of private property, currently among the strongest of any constitution in the Americas. While the 1980 constitution deems that the government can only expropriate on the specific grounds of “national security, utilities, public sanitation, or environmental conservation,” and that any expropriation can be challenged by “ordinary tribunals,” the draft 2022 constitution would allow expropriation on much broader grounds of “public interest,” stipulating that expropriations may be challenged only by “those tribunals that are determined by the law.” These broader grounds would potentially allow elected governments to carry out tenuously justified expropriations, to be challenged only by courts of their choosing. This concern is especially relevant in a region where, within the past twenty years, arbitrary expropriations have been essential to the erosion of democracy and the immiseration of the economy in Venezuela.
These concerns about the draft constitution have been further amplified through exaggeration and misinformation by its political opponents. For instance, right-wing polemicist Axel Kaiser characterized the aforementioned change in property protections as the “effective abolition of the right to property.” He ignores the fact that the new clause, while much less stringent than its equivalent in the 1980 Constitution, would still offer property rights comparable to those of most advanced market economies, such as the United States and Germany. Therefore, the erosion of these rights, though possible, would also require a degradation of Chile’s political culture and institutional norms. The draft constitution has been further delegitimized by the publication of proposed clauses which did not make it into the final draft but nonetheless raised suspicion about the intentions of the constitutional committee. One such proposal sought to replace the three branches of government with a single “Plurinational Assembly of the Workers and Peoples.”
In conjunction, all of these factors have created the perception that the new constitution, far from a unifying and pluralistic document meant to overcome the legacy of authoritarianism, represents the desires of a narrow-minded Chilean left, overrepresented in the constitutional convention, to transform society in its image with no regard for the social, economic, and institutional concerns of the right. This places it in stark contrast with those projects for institutional renewal that have succeeded elsewhere in Latin America. For instance, Colombia’s Constitution of 1991, though undoubtedly more progressive than the Constitution of 1886 that preceded it, was conceived of as an “agreement on the fundamentals,” as Conservative leader Álvaro Gómez Hurtado described it. Liberals, conservatives, and the institutional left alike could agree on and cherish the 1991 Constitution because it left room for politics to decide on controversial matters while taking firm positions on issues where there was broad consensus. Neither the current constitution nor the constituent convention’s draft, whatever other merits they may possess, are documents of that nature, and until Chile can produce such a document, its constitutional legitimacy will remain in question.