Reviews | What Chile Could Teach America About Constitutions and Democracy

On July 4, just over a week after the United States Supreme Court, in a both unsurprising and tragic decision, struck down the federal right to abortion, Chile’s Constitutional Convention finalized and submitted a draft of a new Magna Carta. Its implementation will depend on the results of an upcoming referendum on September 4.

The idea of ​​elected citizens deliberating and arguing over what kind of constitution and judicial system they want — however messy the process may be — seems an appealing alternative.

Chile’s draft constitution is the product of year-long deliberations by a popularly elected citizens’ assembly, made up mostly of leftist and independent delegates. It emphasizes progressive principles such as plurinationalism, gender equality, decentralization and sustainability, as well as the “social” role of the Chilean state in areas such as education and health.

In these and other ways, it represents a firm rebuke to – and an effort to undo at least some of the worst effects – of the elite-dominated neoliberal system imposed at gunpoint under the regime of Augusto Pinochet backed by Washington (1973-1990). The current constitution was ratified in a sham referendum organized by the regime in 1980 and largely maintained after the return of electoral democracy.

Just as Chile embarks on the promising but potentially difficult path of reform and inspires progressive movements around the world in the process, the American constitutional order is suffering from a deep crisis of legitimacy. Indeed, the so-called sacrosanct “guardian” of the US Constitution – the Supreme Court – has proven, in its current incarnation, to be right-wing swayed and hostile to the very liberal-democratic values ​​that it claims to save.

What can we learn by juxtaposing the distinct constitutional processes taking place in these two longtime hemispheric allies?

American politics and the myth of the apolitical order

Although the American public is accustomed to (if not entirely sympathetic to) the many eccentricities that permeate the country’s institutional framework, such as the Electoral College, similar arrangements are, to put it mildly, far from the international norm.

Indeed, in many ways, the United States is an outlier compared to its peers. Attempts to explain to foreign audiences the existence of such democratic deficits within the world’s so-called leading democracy are usually met with a mixture of confusion, disbelief and dismay.

Particularly telling examples include the fact that residents of the nation’s capital are being denied federal legislative representation, the last two Republican presidents have taken office despite losing the popular vote and unelected judges appointed for life – who claim the impartiality but were appointed precisely to promote partisanship – have recently launched a wave of repeal of popular legislation based on highly idiosyncratic, minority and dubious legal “philosophies”.

A common rationale for the American constitutional order is the oft-repeated notion that the Court and the Constitution exist “above politics” and the quagmire of ideological conflict.

Perhaps the most common point of reference for this sentiment is Chief Justice John Roberts’ assertion during his confirmation hearing in 2005, “that it is my duty to call balls and strikes, and not throwing or hitting”. In practice, of course, the Roberts-led tribunal did an enormous amount of hyper-partisan pitching and batting — as evidenced not only by the overturning of Roe v. Wade, but also, among other things, pro-business and anti-environmental rulings, as well as its systematic failure to protect the very voting rights that are at the heart of the liberal-democratic order that the Court ostensibly exists to uphold.

Indeed, although it has long weaponized the term “judicial activism” against its opponents, the right has spared no effort in its attempts to reshape the country’s politico-legal institutions in its own image and to constrain the popular will .

Right-wing rhetoric aside, the staunchest proponents of the misguided idea of ​​an apolitical Supreme Court appear to be centrist elites such as Vice President Kamala Harris, as evidenced by the curious response she gave when he was asked in a recent interview if the Democratic Party had “failed[ed]by failing to pass (or even seriously attempting to pass) pro-choice legislation over the previous five decades.

Invoking the chimerical notion that Americans inhabit a post-political sphere in which key rights can be taken for granted, she said, “I believe we should have rightly believed, but we certainly believed that some issues were simply settled.

That the Biden administration and Democratic Party leadership reacted so lukewarmly and insecurely to the overturning of Roe v. Wade – this, despite the fact that a draft ruling was released over two months ago, and it has long been the stated mission of much of American law to end the rights to abortion by legal and/or other means can be partly explained by ideology.

However, such dangerous passivity also stems naturally from the misconception – which is certainly not shared by their right-wing opponents – that the courts are neutral, apolitical spaces populated by technocratic elites who exist only to enforce rules without passion, and never to participate. in the elaboration of the rules, or draw inspiration from their own ideological inclinations to interpret them and enforce them.

Contrary to the understanding of the leadership of the Democratic Party, the upcoming constitutional referendum in Chile clearly recalls the issues of the establishment and functioning of legal, political and institutional orders.

A Chilean road to social democracy?

In the October 2020 national plebiscite, nearly 80% of Chileans voted in favor of both drafting a new constitution and giving the power to do so to a citizens’ assembly, whose members were chosen by subsequent popular vote.

Only 21% of voters opted for the pro-elite alternative of handing over drafting power to a mixed assembly, made up equally of elected delegates and congressmen. The vast majority of Chileans have thus chosen to express their dissatisfaction with the status quo constitutional order, to open the door to the implementation of a new order and to put on the table an alternative that meets the demands, hopes and desires of ordinary citizens as opposed to entrenched political interests.

Certainly, Chile’s path to a new constitution – and a fairer, more egalitarian and more democratic society – faces many obstacles.

Chilean elites and mainstream media, true to form, have engaged in a relentless campaign of opposition to present the draft constitution not as a potential threat to their own financial interests and privileges, but as a weighty Magna Carta , bloated and cost-insensitive that enshrines invented economic, social and cultural rights of little interest to ordinary Chileans. As one skeptical analyst commented, “the result is both silly and deeply concerning for Chile’s long-term political and economic health.” It is perhaps unsurprising that recent polls indicate that a narrow majority would reject the new constitution.

The same narrative prevails in mainstream circles abroad. For The Economist, the project represents a “fiscally irresponsible left-wing wish list” (and, at 388 items, is “absurdly long”). Leaving little to the imagination, the accompanying image consists of a roll of toilet paper which features lines of text and an official seal.

Even a more sympathetic Washington Post assessment refers to Chile’s “woke constitution.” This despite the fact that some of the more “radical” proposals, such as a partial nationalization of the highly lucrative mining industry, were not incorporated into the final draft. Moreover, even the centrist Christian Democratic Party has expressed support for the document.

The opposition’s fearmongering rhetoric aside, the upcoming ratification vote presents several valid reasons for concern – beyond the usual caveat that any constitution-drafting process requires tackling fundamental political, social, economic and cultural issues on which there is often a lack of consensus.

A housing guarantee in the Chilean constitution can satisfy a key progressive demand. Yet the words on a page do not necessarily translate into a concrete enjoyment of the rights set forth. Indeed, the Brazilian constitution of 1988, promulgated in the same way to replace a predecessor of authoritarian origin, also guarantees the right to housing (as well as food, assistance to people in poverty, etc. ), although in practice homelessness, food insecurity and economic hardship persist. tirelessly.

By itself, and without accompanying legislation, the new constitution – if approved – would only be the first step in ushering in the new social order for which so many Chileans have fought and sacrificed. Especially given the divided status of Chile’s current congress, and with a vocal right-wing opposition working to sabotage the whole enterprise, there is ample opportunity for disillusionment to supplant the optimistic spirit that has leads to this hopeful process.

Beyond apolitical politics

Whatever the outcome, the Chilean experience demonstrates that there is no respite in politics. In the United States, by contrast, conservative jurists extol the “original intent” of the Framers by dispassionately applying their supposedly timeless and universal wisdom to situations and contexts that would have been completely foreign to them. Meanwhile, Harris called out those who oppose the overturning of Roe v. Wade to elect a “pro-choice Congress,” but without offering concrete solutions to the voter suppression tactics and pernicious forms of gerrymandering that make such an outcome increasingly unlikely in the first place (with acquiescence, though). course, of the Court itself).

The Chilean constitutional process, whatever its limitations and flaws, is more honest (not to say more democratic). For it reveals how constitutions are not only legal documents but also political documents that reflect distinct ideological positions and worldviews. As a result, they are always open to political contestation.

Unlike the rule by decree of a Supreme Court that values ​​gun ownership over bodily autonomy (or personal security), the idea of ​​elected citizens deliberating and arguing over what kind of constitution and legal system they want – however messy the process – seems an attractive alternative.