Chile’s ‘Procedurally Regulated’ Constitution-Making Process

Abstract

After tracing the social, intellectual, and political origins of Chile’s demand for a new Constitution (which started in circumscribed circles as early as the late 1990s, but got momentum towards the end of the 2000s), this article describes the semi-sovereign democracy established by the Constitution of 1980, a feature designed by its framers to prevent the dismantling of the particularly radical version of neoliberal economics left in place by the military regime. Then, the piece analyses how the Constitutional Court’s conservative jurisprudence contributed to make clear to most Chileans the link between an increasingly unpopular economic model and the constitutional status quo, something which, in turn, led President Bachelet to attempt to introduce a new charter in her second administration (an effort which failed due to the refusal of the conservative parties to replace a fundamental law that was, in fact, largely biased towards their political and economic ideas). The second half of the article is devoted to analyse the way in which the social uprising of October–December 2019 transformed the old demand for a new Constitution into a critically important institutional way to channel what at the time seemed to be a potentially catastrophic social and political crisis. Noting the—rather impressive—capacity of the political party system to agree on the path towards a new charter, the article then argues that Chile’s highly regulated constitution-making process represents an instance of what Colón-Ríos (2020) calls a ‘procedurally regulated’ one, that is, one where an existing constitution is amended to authorize its complete replacement according to the procedures it establishes, but leaving the constituent body leeway to autonomously decide on the content of the new charter. While in tension with traditional understandings of the exercise of the constituent power in cases of complete constitutional change, this feature of Chile’s ongoing constitution-making process represents a promising path to introduce a new Constitution in a manner that promotes the rule of law.