Sobre fracaso constitucional, constitucionalismo transformador y utopismoOn constitutional failure, Transformative Constitutionalism, and Utopianism

Abstract

Abstract In this brief epilogue, we reflect on the articles in this symposium to ask two questions that are particularly important to transformative constitutionalism. First, what is constitutional failure? While this symposium focuses on constitution-making episodes that never result in a final text, projects might be seen as failures even if they formally go into effect, because they fail to produce on the ground change. Transformative constitutional projects often pay more attention to the articulation of rights than the pathways through which these rights are implemented. Such a text can fall prey to structural utopian constitutionalism, where there is no path to implement ambitious programmatic content. Second, we ask: what causes constitutional failure? The essays in this symposium highlight essentially political reasons, particularly the failure to build sufficient political support from parties and other stakeholders. Constitution-making without such support from political insiders, such as the 2022 Chilean draft or the Icelandic draft, risks falling into sociological utopian constitutionalism and may fail to launch. Examining the failures in this symposium, particularly the overwhelming loss of the 2022 Chilean draft, may help avoid situations where transformation slides into utopianism.