Constituent Process and Dignity
The reasons behind the rejection of the Chilean constitutional draft by the majority of Chileans are complex and hard to pin down. Many excellent contributions to this symposium provide interesting elements for a careful analysis. But there might still be one element that, perhaps, cuts across the entire constituent process, from its beginnings in the protests in October 2019 until the rejection of the draft on September 4, and that might help explain the outcome.
From the very start, the claims for which the constituent process served as a vehicle were coined in moral language. The early stages of the process can actually be best described as a demand for dignity, which is, in fact, the name spontaneously given to the square where every week thousands of people met to protest: plaza dignidad, or dignity square. This moral dimension is, of course, not particularly shocking in the context of contemporary constitutionalism, which has been largely influenced by “moral readings” and in which the concept of dignity has played a significant role.
The character of the Chilean process as a quest for (moral) dignity, however, seems to have had a corollary in the formal process of drafting the new text within the Convention. As has been already noted, the composition of the Convention included a vast majority of independents. What is significant about that is that those independents were often elected based on single-issue platforms. Dignity, for these groups and in the context of the Convention, could mean nothing else than the recognition of the constitutional relevance of the specific problems they were raising. There were certainly many other claims that were in fact universalizable but independent groups running on political platforms based largely on particularistic agendas were bound by them to a significant extent. Any negotiation between or with them presupposed an acceptance of the inclusion in the constitutional text of the specific consequences of dignity as each of the groups saw them. Indeed, agreements between groups could only be reached if the fairness of the particular claims that provided the foundation for the group’s political identity was accepted.
Finally, the terms of how the draft was defended from criticisms during the final stages prior to the referendum also had a certain moral flavour. When presenting the final version of the text, the President of the Convention, María Elisa Quinteros, referred to it as a “new, fair constitution for Chile” (“una nueva Constitución justa para Chile”). Further, a series of columns written by Chilean academics with the aim of explaining and supporting the draft opened each of its 29 pieces with the line: “To the Chileans citizens that wish for a fair constitution” (“A las ciudadanas y ciudadanos de Chile, que anhelan una Constitución justa”).
Constitution as a Political Decision: The Self-Understanding of Chile’s Constituent Process
What should be the problem of a rhetoric that depicts a constitution as fair or just? After all, it could be argued, a moralizing rhetoric is common in politics, and characterizations as fair or just are often used in the context of political decisions. That is exactly the point. From the outset, the constituent process was conceived by its most influential participants as a process in which the Chilean people would democratically, collectively decide on a new constitution. This was the position of Fernando Atria, a prestigious scholar, member of the Constitutional Convention and arguably the main figure in the campaign for a new Chilean constitution for quite some time now. In his opening speech as member of the Convention, he described the new constitution as a product of the people’s sovereignty and liberty to give themselves their own political order: A constitution can only be given by the people themselves (“la Constitución solo se la puede dar el pueblo a sí mismo”). The largely inorganic protests and its demand for dignity turned into a formalized political process with a special organ, one that, due to its alleged enhanced representative character, would decide what dignity meant in terms of a new constitution as if it were the people themselves deciding. Morals turned into politics.
This is precisely where a context like the Convention, in which, as mentioned above, a large portion of its members saw themselves as advocates for particularistic issues, that is, for the application of the standard of dignity to specific causes, becomes particularly problematic. The fact that they conceived their political function in terms of advancing concrete interests led them to the belief that a draft that would recognize the particularistic claims to dignity they represented would be, as an aggregation, fair and just for everyone. This is precisely why rejections of particularistic claims were considered, by the groups that were advocating them, betraying the people. In a process that operated to some extent as a reciprocal recognition of the justice of particularistic claims for dignity, what would count as fair and just was already outlined from the very beginning. Defining the finalized draft as fair and just was thus nothing else than a self-fulfilling prophecy for most of the groups within the Convention and its supporters outside.
This is also exactly why the transition from morals to politics was truncated. Every decision, and even more so in the realm of politics, operates based on a series of reductionisms, differentiations, and distinctions, and finally opts for one of the available alternatives. This is particularly true for a constitution as a single document of limited length. Even the most inclusive text will fail to acknowledge all possible and justifiable claims for dignity and justice. A decision that could have become succesfully attributable to the people as a whole, which is, as has been said, the way the Chilean process was largely conceived, would have had to justify the inclusion of some claims to dignity and justice, of some particularistic issues, and the exclusion of the rest. Only a process of explaining why the content of the draft did in fact appeal to everyone, why generalizable rationales underlying its text addressed the concerns of large majorities, would have allowed for the draft to be considered a deliberate collective decision. This would have been, in fact, nothing else than actively trying to generate a majority for the specific reductionisms, differentiations and distinctions the draft expressed. Only then the process could have overcome the logic of the self-fulfilling prophecy of dignity and become something more like what it was advertised to be: the people consciously deciding on their own social transformation. Presenting it prominently as a moral exercise that expresses dignity – or for that matter, as the mere realization of international standards of human rights – transforms what should appear as a conscious and deliberate political decision into alienating moral or legal technique, discourses that can too easily remain particularistic. The fundamental problem thus, is that it is possible to consider that all the particularistic issues included in the draft, all the specific consequences of dignity as applied to specific problems, were actually just and fair while at the same time being of the opinion that the draft that included them is not adequate for a constitution in terms of a collective decision that should appeal to the Chilean people as a whole. And the critical point is: A discourse based exclusively on dignity, on justice and fairness, will necessarily remain blind to precisely that fact.
The Limits of Moral Language
If this assessment is correct, what does it mean for the next constituent process in Chile? One might ask about the convenience of understanding the constitution as the institutional locus of dignity. Questioning that certainly doesn’t mean that the goal of a social transformation towards a fairer society should be abandoned but it might be important to reflect as to whether the constitution, in need of a much broader acceptance than ordinary legislation, is the right institutional place for thick claims to dignity and their risk of particularism. The process of satisfying claims to dignity for some or even for many necessarily goes hand in hand with the exclusion of other claims to dignity and it might be reasonable not to burden a constituent process with them. If commitments to dignity are structurally connected to ordinary legislation, the exclusions created by political decisions and social transformations can never be definitive: legislating, in contrast to constitution making, is a never-ending process, designed to constantly question and reverse past decisions and the specific distinctions on which they were based. Dignity-based claims served their purpose in igniting the spark for protests but constitution making and a functioning constitutional order seem to require an understanding of constitution not as expressing dignity, as fair and just, but as a foundation on which dignity can be negotiated over and over again. And a different type of language might be better suited for that endeavour; one not only capable of assessing the justice or fairness of particularistic claims but one that can put those claims in the broader context of a diverse political community that operates based on different conceptions of dignity and its institutional consequences: the language of politics.
Suggested citation: Rodrigo Kaufmann, On Morals and Politics: The Chilean Constituent Proces, Int’l J. Const. L. Blog, Oct. 12, 2022, at: http://www.iconnectblog.com/2022/10/i-connect-symposium-on-the-chilean-constitutional-referendum–on-morals-and-politics-the-chilean-constituent-process/