—Sergio Verdugo, Professor of Constitutional Law, Universidad del Desarrollo / JSD candidate, New York University; and Jorge Contesse, Assistant Professor of Law, Rutgers Law School
Five days before stepping down as president of Chile, Michelle Bachelet sent a bill to the Chilean Congress proposing a new constitutional text aimed at replacing the current Constitution. The adoption of a new constitution was one of Bachelet’s key promises when she gained the presidency (for the second non-consecutive term) with a 62 percent vote, in 2013. Despite the high popular support for a constitutional replacement in Chile, we argue that Bachelet’s recent constitution-making process failed. Her innovative and complex constituent process, which sought to channel the demand for a new constitution, ended up demobilizing it and excluding political parties. Uncoupled with an active role for political parties, a “bottom-up” rhetoric for public participation is not sufficient to successfully bring about serious constitutional change. Although we claim that the demand for a new Constitution is not irrelevant in Chile, it has been harmed and weakened.
The Rise of the Constitutional Moment
During the 2013 Presidential campaign in Chile, Michelle Bachelet endorsed the popular demand for a new Constitution and proposed to replace the current Chilean Constitution by an entirely new constitutional document. The Chilean Constitution was enacted during the Pinochet dictatorship in 1980 and is a document that still divides Chileans. Even though bipartisan agreements resulted in major reforms to it, including the prominent 1989 reform (which was key to the transition to democracy), and the 2005 reform (which removed the authoritarian enclaves), and the final modification to the electoral system during Bachelet’s administration, among many others, the demand for a new Constitution persists, and the polls show that it is high. Scholars have offered different explanations for this. Some suggest that the Constitution has too many veto mechanisms for advancing legislation, while others claim that the demand for a new Constitution is associated with a demand to strengthen rights protections, or with symbolic reasons associated with the need to change a constitutional identity that still somehow connects to its authoritarian origin. This is the reason that seems to have persuaded most of foreign scholars that have studied the Chilean constitutional process. Whatever the reasons behind the support for a new Constitution are, and although it seems that popular support for constitutional change has remained high, constitutional replacement is not a priority in Chile’s public agenda today.
Once in office, with the advice of both domestic scholars and foreign consultants, Bachelet pursued an unprecedented constitution-making process. The process, which spanned from October 2015 to January 2017, consisted in a complex itinerary—“a long and winding road”— of self-convened meetings at the local, provincial and national levels called cabildos and encuentros. Over 200,000 citizens, both in Chile and abroad, met up with fellow citizens to discuss on constitutional issues that were previously assigned by the government’s experts, such as political institutions, principles, rights, and many others. These meetings finished with a report that gathered the agreements. Social scientists then coded and quantified the number of mentions that each right, institution or principle received, and produced a document summarizing the contents of the meetings. To supervise the process’ transparency and impartiality, Bachelet created a Citizens’ Council tasked with the responsibility to overview the organization of the cabildos and encuentros. The administration also set up a parallel process of consultation with indigenous peoples regarding constitutional issues.
In January 2017, the experts submitted their final reports containing the systematization of all cabildos and encuentros to the president; and in May 2017, Bachelet received the final report on the indigenous consultation. Between May 2017 and March 2018, behind closed doors, Bachelet drafted a bill allegedly including the results of the participatory stages of the process. The President justified her bill in a direct appeal to the citizenry. Although the text sent to Congress keeps verbatim large parts of the current Constitution, it also introduces important modifications, such as: extending the Presidential term from a four-year term to a six-year term; incorporating new rights (e.g., children’s rights and housing); refineming already recognized rights (e.g., the right to assemble); granting recongition to indigenous peoples; lowering the supermajority requirements for special pieces of legislation, and for future constitutional amendment; establishing the possibility of a constitutional convention for total constitutional replacement; introducing a new judicial remedy to protect constitutional rights, and reforming the powers of the Constitutional Court while also introducing new appointment mechanisms for its judges, among proposed changes.
The Fall of Bachelet’s Constitutional Project
Congress might not even debate Bachelet’s bill. In Chile, the President is the most important veto player in matters of constitutional reform—virtually no reform can be adopted without her (now, his) approval. Sebastián Piñera, the new right-wing President, does not endorse a total constitutional replacement, but gradual and moderated reforms that do not aim at transforming the tenets of Chile’s constitutional structure. President Bachelet’s constitutional project is therefore doomed.
It could be argued that her project failed before she submitted the bill. Bachelet’s plan was to approve the constitutional replacement after her administration finishes. Thus, it could be claimed that her project failed when her supporting coalition lost the presidential elections by a significant margin, last December. However, Bachelet and her constitutional advisers never truly involved the relevant political parties—a political agreement was never truly advanced. Public participation was demobilized and the administration decided to silence the constitutional debate during the election.
Unsurprisingly, when Bachelet announced that she was sending the bill to Congress, political leaders from all sides—including individuals who support the idea of a constitutional replacement—publicly criticized her. Many decided to miss the public ceremony where the president signed the bill—an unimaginable move two years ago. The former President of the Citizens’ Council, who was appointed by Bachelet, criticized the lack of transparency and the exclusion of political parties during the drafting process. The opposition complained that the funding of the process was wasted. Supreme Court Justices disapproved the process, observing that the Supreme Court was not invited to comment on the draft regarding the important changes proposed to the remedy aimed to protect rights. Some politicians even claimed that the bill does not belong to her supporting coalition’s project.
How did the project fail? How did a vibrant constituent process end up in a ceremony that political leaders preferred to skip?
President Bachelet relied on an inchoate bottom-up process that left out the ruling elites. Political parties were not invited (some were not available) for negotiation. A few constitutional scholars from the right and the left were convened to oversee the process, but they integrated a council that ultimately had little relevance in the process—and, more tellingly, was not even informed of the drafting process. The participatory process that Bachelet promised was transformed into a secretive law-making experiment conducted by unknown experts and advisers. It demobilized the very movement for constitutional change that was partially responsible for putting her back in office. Partly for this reason, many politicians that support the demand for constitutional replacement reacted with skepticism, criticized the timing of the bill and the lack of inclusion of the process. What failed is not the demand for a new Constitution; but Bachelet’s experiment. However, that failure has influenced the underlying claim for a new Constitution: today both political elites and social movements seem less concerned with the matter.
What to Learn?
Scholars have suggested that the feasible way to advance a constitutional replacement in Chile is by initiating some kind of wide political agreement on the process. Andrew Arato, for example, has proposed that Chileans advance some sort of modified version of a roundtable negotiation procedure. Tom Ginsburg has suggested that Chileans should think of creating a “National Conference” and that the drafting process should include existing political parties. In general, the call for an inclusion of the political parties is based on a pragmatic reason associated with the need to have an effective and successful process—that is, a process that can end on an actual constitutional replacement.
Constitution-making normative literature generally favors promoting popular participation, sometimes suggesting the creation of constituent assemblies or other types of mechanisms. However, most empirical studies on constitution-making are typically based on successful processes, that is, when constitutional change in fact occurs. The experience of Iceland, idealized by some scholars promoting forms of popular participation, is an exception—and one that shows how excluding mainstream political parties makes constitutional processes fail. Bachelet’s attempt to replace the Chilean Constitution seems to be another example that we can add to the literature. The challenge for both scholars and politicians is how to combine the lessons of these failed attempts with the normative ideal of popular participation.
When democracies are stable and competitive, such as the cases of Iceland and Chile, it seems unlikely that bottom-up processes promoted unilaterally may end up successfully. This may be because in competitive democracies political parties keep some form of veto power over the process, and political institutions must be strong enough to be functional to those forms of veto power. Engaging political parties in political agreements that result in a constitutional replacement is necessary to represent their constituencies, to elevate the deliberative character of the process, and to give guarantees of stability to the competitive feature of the democratic system.
The major lesson from this case is the need to have a more pragmatic approach to constitution making. Popular participation is required for both normative and practical reasons, and an elite political consensus is required to secure the effectiveness of the process. So far, political consensus without public participation had been the norm for constitutional change in Chile. Bachelet aimed to change it, but the pendulum swung too far. The challenge for successful constitution-making while keeping the legitimating elements of public participation remains.
Suggested Citation: Sergio Verdugo & Jorge Contesse, The Rise and Fall of a Constitutional Moment Lessons from the Chilean Experiment and the Failure of Bachelet’s Project, Int’l J. Const. L. Blog, Mar. 13, 2018, at: http://www.iconnectblog.com/2018/03/the-rise-and-fall-of-a-constitutional-moment-lessons-from-the-chilean-experiment-and-the-failure-of-bachelets-project
 Between 1990 and 2010, the Constitution was amended 24 times, and 91 out of its 120 articles were modified. See Claudio Fuentes, Shifting the Status Quo: Constitutional Reforms in Chile 57 Latin American Politics and Society 99, 104 (2015).
 See a summary of the relevant polls in PNUD, Opinión Ciudadana y Cambio Constitucional. Análisis Desde La Opinión Pública (Programa de Naciones Unidas Para el Desarrollo 2015).
 See, for instance, Claudia Heiss, ‘Legitimacy Crisis and the Constitutional Problem in Chile: A Legacy of Authoritarianism’ (2017) 24 Constellations 470.
 Indeed, for instance, Tom Ginsburg observes that the problem of the Chilean Constitution seems to be connected to its biographical identity; Andrew Arato suggests that the main reason for constitutional replacement “has to do with legitimacy” (“today’s constitution still bears the title of the Constitution of 1980”), and George Tsebelis suggests that the need for its replacement responds largely to symbolic reasons. See Tom Ginsburg, ‘¿Fruto de La Parra Envenenada? Algunas Observaciones Comparadas Sobre La Constitución Chilena’ (2014) 113 Estudios Públicos 1, 19. Andrew Arato, ‘Beyond the Alternative Reform or Revolution: Postsovereign Constitution-Making and Latin America’ (2015) 50 Wake Forest Law Review 891, 915. George Tsebelis, ‘Veto Players and Constitutional Change. Can Pinochet’s Constitution Be Unlocked?’ (2018) XXV Política y Gobierno 3, 4.
 The principles, justifications and strategies of the process have been summarized by some of the governmental advisors for the constitutional reform in: Tomás Jordán Díaz and Pamela Figueroa Rubio, ‘El Proceso Constituyente Abierto a La Ciudadanía: El Modelo Chileno de Cambio Constitucional’ (2017) 16 Hemiciclo. Revista de Estudios Parlamentarios 46.
 Alberto Coddou Mc Manus, The Chilean Constituent Process: A Long and Winding Road, Int’l J. Const. L. Blog, May 4, 2016, at: http://www.iconnectblog.com/2016/05/the-chilean-constituent-process-a-long-and-winding-road/
 See, for example, the recent description provided in English by Tsebelis (n 7).
 Poltitical leaders from Bachelet’s own coalition regretted their exlusion from the process. Some called the bill “a political gesture,” a “tongo” (a Chilean jargon for “scam”), an “act of vanity,” an “unnecessary salute to the flag” (a Chilean expression that means that the bill is meaningless).
 Patricio Zapata, “Continuará,” La Tercera, 3/7/2018: http://www.latercera.com/opinion/noticia/continuara/90391/ [accessed 3/7/2018]
 S. Muñoz, M.E. Sandoval, C. Aránguiz and A. Prado, “Reforma al recurso de protección en proyecto de nueva Constitución,” El Mercurio, 3/10/2018: http://www.elmercurio.com/blogs/2018/03/10/58598/Reforma-al-recurso-de-proteccion-en-proyecto-de-nueva-Constitucion.aspx [accessed 3/11/2018]
 For example, some leaders from the Frente Amplio (“Broad Front” –a coalition that seems to be Chile’s equivalent to the Spanish Podemos), said that Bachelet’s project was an “irresponsibility” that lowers or ruins the level of the discussion, and that they will continue working on a proposal for a constituent assembly.
 “Participation in this negotiations should be broad, conceding the primacy of political parties in Parliament, but including some without current parliamentary mandates […].” Arato (n 6) 918. Also, see Andrew Arato, ‘Democratic Legitimacy and Forms of Constitutional Change’ (2017) 24 Constellations 447, 454.
 Ginsburg (n 5) 33.
 In Chile, a good example of the debate on this issue can be found in the contributions of the collection edited by Claudio Fuentes and Alfredo Joignant (eds), La Solución Constitucional. Plebiscitos, Asambleas, Congresos, Sorteos y Mecanismos Híbridos (Catalonia 2015). Almost all the articles that suggest a procedure for constitutional replacement involve some sort of participatory mechanism.
 Tom Ginsburg, Iceland: End of the Constitutional Saga, I-Connect Blog, April 5, 2013, available at http://www.iconnectblog.com/2013/04/iceland-end-of-the-constitutional-saga
 See, for instance, Fuentes (n 2).