Exclusion Doomed The ‘Inclusive’ Chilean Constitution

Chile’s experience shows both the pitfalls and promise of direct democracy.

Mikyung Lee for Noema Magazine

Nathan Gardels is the editor-in-chief of Noema Magazine.

The winner-takes-all mentality in politics is always a losing proposition for society. Sooner or later, any practice of democratic governance that does not take into account the legitimate interests of everyone in society — not just those with the upper hand at the moment — will end, at best, in a reactive electoral rout and, at worst, in social unrest or even military coups. Chile has just gone through that cycle again. 

On Sept. 4, a proposed constitution drafted by what was heralded as the “most inclusive” assembly ever was crushingly rejected in a popular plebiscite where voting by all citizens was mandatory. 

The Military And The Market

Some background. In the wake of massive demonstrations in 2019 against persistent social inequality, Chileans voted in a referendum to draft a new constitution that would supplant the standing document promulgated during the transition to civilian rule from Augusto Pinochet’s authoritarian junta, which overthrew the socialist government of Salvador Allende in a brutal military coup in 1973.

Though that constitution was significantly amended in 2005 by then-President Ricardo Lagos to remove the most egregious clauses that privileged the military, he did not have sufficient clout in the Chilean Senate at the time to get rid of the basic clause that, by restricting the state’s role in the economy, severely limited its capacity to address social concerns. 

During the dictatorship, laissez-faire ideologues, determined to purge society of any residue of socialist sentiment from the Allende years, joined the rule of the military and the market at the hip and enshrined it in law.

As Lagos explains in an interview with Noema this week, it was those constraints of “the subsidiary state” imposed by the free-market dictatorship that laid the seeds of the 2019 social explosion and the demand for a new constitution. “That explosion took place,” the former center-left president told me, “despite so many advances in other areas including steady economic growth and reducing the Gini coefficient of inequality under the center-left governments of myself and Michelle Bachelet — because the ratio of tax revenue to GDP remained at around 20%, thus crippling efforts to expand the social safety net and public goods.” 

The Left Behind Get Their Chance

It comes as no surprise, then, that when the left-behind finally got their chance to get ahead, they went too far.

Instead of handing the constitution-crafting task to the political class, 155 ordinary citizens of various political stripes, from dentists to auto-mechanics, half of whom had to be women and 17 of whom had to be from Indigenous groups, were elected to draft a document that would govern society going forward. 

In the lead-up to the election of those delegates last year, the conservative political forces that normally win 35-40% in the polls insisted on a two-thirds vote for any proposed constitution to be presented in a plebiscite. But when delegates were chosen, the right-wing got only 20% or so of the vote, making them virtually voiceless with no veto power in the convention.  

Absent any brakes on their wish list of correctives to all of Chile’s very real social ills, the assembly skewed far left, proposing everything from a “plurinational” country with a different set of governing rules for the various Indigenous communities to the abolition of the Senate. In the mix among such extreme ideas were more broadly appealing progressive measures such as eliminating the “subsidiary state” clause to strong environmental protections and a 50% quota for women in government positions.

When the text was put up to a plebiscite of the whole public, it was rejected by a resounding 62% and approved by only 38% — curiously, almost the same percentage of the vote (36.6%) that Allende got in 1970 when he came to power with that plurality.

Constitutions Can’t Be Partisan

“Constitutions need general acceptance so we can turn to their rules to manage our differences,” says Lagos. “Only in this way — arguing within the limits of the constitution and not about it — can countries make changes within the framework of reasonable stability. In the end, what was proposed was a partisan document, which is why it failed.”  

In short, the attempt to write a constitution inclusive of the previously disempowered and marginal while effectively excluding the concerns of key constituencies from the mainstream is no less viable, stable or sustainable than its opposite. 

The Princeton political philosopher Philip Pettit put it this way in the Berggruen Institute’s 2020 report on “Renewing Democracy In The Digital Age”: 

The need for participants in public discussion to accept the constraint of invoking only reasons accepted as relevant on all sides (that is, not your self-interest alone) is a special case of the general need for people in a democracy to abide by the rules that allow them to compete with one another for victory. Indeed, this constraint may be the rule that is most fundamental to the possibility of democracy. If and only if it is accepted can there be a hope of people finding a common framework under which to pursue their competitive political ends in a peaceful way.

In other words, it is the operational constraints of the rules and practices of deliberation and “competitive collaboration” through elections that guarantee an inclusive democracy in which the values and interests of all citizens are weighed in any decision-making process — and not just those of the organized special interests, plurality or majority in a given situation. 

Fortunately, the flawed manner in which the direct democracy of the constitutional convention was conducted was corrected by its other aspect, a popular plebiscite which, in rejecting the extreme tilt, displayed an admirable civic maturity.

Democracy Requires Depoliticized Platforms

The lesson here is that the platforms for deliberating and writing the rules of governance must be de-politicized and impartial in the way they themselves are constituted. Otherwise, they are not so different from the echo chambers of peer-driven social media, but with far greater consequence.

As Lagos sees it, the process toward a new constitution should not come to an end but continue through the establishment of just such an impartial commission that would take the most reasonable proposals from the rejected constitution and get rid of the extreme measures. The new document would then be put to a plebiscite.

Lagos, whose stature as an elder statesman will influence the next steps, was open in our conversation to the idea of a citizens’ assembly that would take on the task. Like the Irish assembly in 2018 that reached consensus on removing an abortion clause from their constitution after 15 months of deliberation, it could be composed of a limited number of representatives from the main parties along with key social stakeholders and constitutional experts combined with citizen representatives selected randomly by sortition (a lottery in the way of early Greek democracy) instead of election to prevent the kind of echo-chamber distortion that afflicted the recent convention.

In these times, when all democracies are struggling against assertive autocracies to demonstrate they are the best system for governing human affairs, Chile’s experience bears watching closely. It shows very clearly the pitfalls of direct democracy, which the inclusive ethos of today’s world is demanding, as well as its promise.