Lessons From Chile: How Not To Write A Constitution

The task should fall to a citizens’ assembly instead of elected delegates.

Ibrahim Rayintakath for Noema Magazine

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

“Constitutions need general acceptance so we can turn to their rules to manage our differences,” the former left-of-center Chilean President Ricardo Lagos told me in September 2022 after the first attempt to ratify a proposed new constitution by referendum. “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.”

The same could be said of the second failed attempt late last year when 55.8% of the public voted against the newest constitutional proposal. In the first case, the largely far-left and single-issue independents who dominated the final drafting of the text went too far, excluding other interests in society. In the second case, the right symmetrically mimicked their error. In both cases, the interested factions sought not so much to set out fair rules to govern political competition and constrain the use of power as to enshrine their agenda in the state’s founding document.

By rejecting both proposed constitutions, a body politic more civically mature than the polarized political/activist class hewed to the center. In doing so, they struck at the perennial malady afflicting governance across much of Latin America: weak institutions. 

Too often, elections in the region have meant a winner-takes-all transfer of power where the entire governing apparatus — from administrative personnel to the courts to constitutions — is molded to the interests of the victor. Noting that Latin American nations since their founding have had some 200 constitutions, 10 on average per country, political scientists have come to regard their fundamental charters as “ad hoc” and “disposable.” Institutions have tended to conform to political power, not the other way around.

The Problem Of Elected Delegates

A key flaw in the constitutional process in Chile has been how the body charged with finalizing a text to be presented to the public in a referendum is chosen. In the first go-round during 2021-22, delegates to the Constitutional Convention were elected through an optional vote by the public after campaigning for the posts with all the distortions that involves, including asymmetries in time and money, media spin and ancillary political factors, such as the popularity or unpopularity of the current government, unrelated to the framing task at hand. The low turnout of 43% of voters skewed the elected delegates toward activist constituencies tuned in to the process.

The second time around, voting for delegates to a body renamed the Constitutional Council was compulsory. The resultant participation of 85% of voters (not all complied with the legal requirement) in the delegate election revealed a more conservative slant among the public at large, in no small measure registering their disaffection with the current young leftist president, Gabriel Boric, as well as with the overreach of the previous draft constitution. This emboldened the rightwing delegates who dominated the council to then reach further than warranted in their final text.

In both cases, the constitution was regarded as a policy platform for a particular set of elected interests instead of a document that defines basic rights, the terms of fair political competition and checks and balances on power.

In the first attempt, the far-left leaning and formerly left behind delegates tried to put everything from self-rule by the Indigenous population to nationalization of key sectors into the constitution, along with some more broadly appealing measures such as gender equality and rolling back the core provision promulgated in the authoritarian era of General Augusto Pinochet that subordinated the state to the market, including in the provision of social services. In the second effort, the right sought to codify the reverse, for example underscoring the market’s superior role and seeking to restrict abortion rights.

Taking into account concerns expressed in the 2022 text, a drafting committee of constitutional experts presented a set of fundamentals to the 2023 Constitutional Council that actually laid out a balanced compromise. It explicitly declared a “social” state — removing the most contested remaining clause of the original Pinochet constitution. But it also made clear the protection of property rights and a vague commitment to “the right to life.” It affirmed the Chilean state as “unitary,” but “decentralized” that, as one “indivisible” nation would “respect and promote” the “rights and culture” of Indigenous peoples. The drafting committee further recommended that Chile should be “constitutionally committed to the care and conservation of nature and its biodiversity.”

When the right-leaning council got hold of the drafting committee’s document, they reworked it to bolster their agenda and diminish the popular elements of the last proposed constitution in the ways noted above.

The Obstacle Is The Way

In the end, the saving grace for Chile has been that voting in the referendum to ratify a proposed constitution is mandatory for all eligible voters.

That the body politic as a whole rejected both efforts when their voices were fully heard suggests that the obstacle to ratifying a new constitution is actually the way forward: Instead of electing delegates to a Constitutional Convention or Constitutional Council, a citizens’ assembly should be selected through sortition — a random lottery, as in the ancient Greek way of democracy, to choose delegates that would comprise a conclave more indicative of the public as a whole. In consultation and collaboration with knowledgeable constitutional experts, they would deliberate clauses of the constitution from a politically disinterested perspective and submit the document to their fellow citizens.

This approach to amending constitutions has proven successful elsewhere where partisan polarization has paralyzed political life, such as when a citizens’ assembly in soundly Catholic Ireland in 2018 resolved the highly controversial issue of abortion. After weeks of deliberation, 64% of the members of the assembly voted in favor of repealing the extant constitutional clause outlawing abortion, recommending legalizing it without restrictions up to certain gestation limits. The public referendum that followed affirmed the assembly verdict by 66.4%. 

The Chilean experience holds lessons for addressing the legitimacy crisis across all democracies today. In a starkly polarized environment, elections where partisans vie for power by any means necessary only deepen divisions. Particularly in an age when peer-to-peer social media fragments the public square as never before, what is needed is to bring the broader civil society, advised by non-partisan expertise, into governance through new deliberative institutions like citizens’ assemblies that foster negotiation and compromise to reach consensus.

As Lagos wisely observed with respect to Chile, a founding constitution should establish the rules for fair partisan competition, not become the ground for competition itself. Turning to the collective intelligence of citizens selected by sortition and advised by impartial technocrats, instead of handing the task to a polarized political class, would seem the most promising way to accomplish that.