Chile's constitution: back to square one

Plaza de la Constitucion, Santiago, Chile

Twice in recent months I have had speaking events related to Chile, an unusually long and thin Spanish-speaking republic stretching along the Pacific coast of South America bounded to its east by the Andes Mountains and Argentina. On sunday, 4 September, Chilean voters rejected the new constitution proposed by the administration of the country's 36-year-old president Gabriel Boric by a substantial margin of 62 percent over 38 percent. This new draft, intended to replace the 1980 constitution introduced by former dictator Augusto Pinochet, boasted a whopping 388 articles, making it one of the longest, if not the longest, constitutional documents in the world. After unrest in 2019 over price rises, the government decided to hold a plebiscite on a new constitution, which 80 percent of voters supported the following year. The next two years were spent drafting the document, which was to be placed before Chileans for their approval. While Pinochet's constitution had enshrined a neoliberal market-oriented economic régime, ordinary Chileans became increasingly dissatisfied with it, culminating in the mass protests of three years ago.

The new constitution was billed a "progressive" document and claimed to guarantee more than a hundred rights:

In addition to housing, health care and education, the new constitution would enshrine the right to freedom of expression, religion and worldview. There would be the right to free time, physical activity, sex education, cybersecurity, the protection of personal data and “free and full legal advice” for anyone “who cannot obtain it.”

Chileans would have the right to “adequate, healthy, sufficient, nutritionally complete and culturally relevant food”; the right to develop their “personality, identity and life projects”; and the right to “live in safe and violence-free environments,” to “age with dignity” and to die “a dignified death.”

Workers would have the right to “equitable, fair and sufficient” pay and to unionize and strike. And citizens would have the right to choose their identity, “in all its dimensions and manifestations, including sexual characteristics, gender identities and expressions.”

Chileans would also have “sexual and reproductive rights,” including that women could have “a voluntary interruption of their pregnancy,” language that would enshrine the right to an abortion more explicitly than any other national constitution, Mr. [Tom] Ginsburg [of the University of Chicago] said.

Moreover, the new constitution

enshrined gender parity across government and other organs of the state – for the first time anywhere in the world – prioritised environmental protection and recognised Chile’s Indigenous peoples for the first time in the country’s history.

The majority of Chileans, whose voting in this plebiscite was mandatory, decided not to approve this document, which sends the government back to the proverbial drawing board. Presumably the overwhelming popular mandate for a new constitution stands, but its new architects may have to scale back their ambitions and settle for something that can more realistically represent a consensus.

Three thoughts come to mind, as I look at the events in Chile.

First, those claiming the progressive label for their proposals should perhaps exercise more caution in using it. What is thought in advance to be progressive may not turn out actually to be so over the long term. I suspect that many of the items that are part of the contemporary North American progressive agenda will appear much less so in a few generations. We need only remind ourselves that a century ago "enlightened" opinion viewed eugenics as progressive, using such euphemisms as "racial hygiene" and "applied biology," prompting G. K. Chesterton to write an entire book on the subject. Much of today's progressive agenda is driven by what Charles Taylor and others have called expressive individualism and what I have called the choice-enhancement state. Many of the new rights that Chile's proposed constitution claimed to guarantee are conditioned by this worldview, which is no longer limited to the west.

Second, the new constitution seemed to conflate genuine rights, which virtually any government is in a position to guarantee, with desirable goods that government may facilitate through public policy but can by no means guarantee. It is not clear that any government can ensure affordable energy (article 59), sport, physical activity (60), "personal autonomy, the free development of [one's] personality, identity and . . . life projects" (62), the right to a "dignified death" (68), and so forth. These goods are in a different category from such basic rights as freedom of speech, of the press, of assembly, of religion, and of association. Claiming to guarantee too many rights is likely to put all such rights into the category of worthwhile goals which may or may not be feasible. The quest to provide good health may not meet with success, something that could place in doubt the guarantee of the more basic freedoms of speech, religion, and so forth.

Third, Canada's experience with its Meech Lake and Charlottetown Accords offers a cautionary tale to Chileans. The Meech Lake Accord (1987) represented an effort by then Prime Minister Brian Mulroney and the provincial premiers to formulate a series of constitutional amendments that would enshrine the special place of Québec in Confederation. It failed because not enough provincial legislatures approved the accord before the expiration of the three-year deadline. Because Meech Lake was an élite agreement negotiated without consulting the citizens of Canada, Mulroney's follow-up plan incorporated ample grassroots input into the process of amending our Constitution Acts. However, even with popular participation, the Charlottetown Accord failed in the referendum of 1992. Why? Primarily because it tried to do too much. It tried to satisfy as many groups of Canadians as possible but ended up alienating too many people and for different reasons. Many voters saw themselves approving, not so much an agreement that might end a constitutional stalemate, but a series of amendments many of which they thought flawed.

I wish Chileans God's blessing as they undertake to put together another constitution that will command more popular support. A written constitution should be a consensus document. It should do what a constitution does best, namely, to establish the proper legislative, executive, and judicial institutions; to invest them with their respective spheres of authority; to list the basic rights of citizens; and to provide a process for amendment. It should leave everything else to be hammered out in the ordinary processes of formulating public policy amidst the shifting winds of public opinion.