In October 2020’s referendum, 78% of Chileans expressed their wish to replace the country’s Constitution, through a fully elected Constitutional Convention. On September 4, 2022, the citizenry was asked by way of a referendum whether it approved the constitutional draft produced by this very constitution-making body. 62% of the electorate said no.
Many commentators have tried to identify what went wrong. According to some, the reason behind this outcome is that there was no fair campaign funding and that expenditure rules demonstrated many flaws. Others considered more carefully why perhaps a referendum is not helpful for this type of constitutional deliberation. However, an aspect that has not received sufficient attention in discussions about the referendum vote in Chile and its aftermath is “constitutional identity,” more precisely, to what extent constitution-making contributes to building constitutional identity in deeply divided societies. This is one of the most difficult issues unfolding within the Chilean case.
For analytical purposes, let me distinguish constitutional identity from national identity by underscoring that the latter is a collective cultural phenomenon that falls within the historical sociology of the social formation of national communities. Hence, this concept is not normative but descriptive. Its subject matter stems from the elements of history, myth, culture, and so forth. National identity is thus a wider phenomenon than constitutional identity. In turn, a key feature of constitutional identity is that it has a normative dimension. According to Rosenfeld’s theory, in order to have a functioning constitutional system, there must exist a constitutional identity, and this must create, just like the national identity, an “imagined community” through the production of narratives that provide the reconciliation between history and constitutionalism (Rosenfeld 2010:25). What I would like to stress here is that it is highly likely that important changes relating to the content of national identity will take place after the adoption of a new constitutional charter (Id.:186). In this way, the Chilean referendum outcome provides an interesting example of the dilemmas of carving out a constitutional identity from a transformative charter that entails the transformation of national identity. However, it seems there is no commonly shared political project capable of sustaining a viable constitutional pact in Chile that may strike a balance between antagonistic interpretations of Pinochet’s legacy, on the one hand, and self-images of both the national majority and national minorities, on the other hand.
The dualistic identity of the Chilean constitutional subject
Chile is a divided society. Part of the reason this has happened lies in Chilean’s indulgent perception of the military dictatorship that governed the country from 1973 to 1989 (Huneeus 2003).
In Chile, the constitution of collective identities has been subject to legal and administrative control and manipulation at least since Pinochet’s dictatorship. Indeed, as Cristi (2018) shows in his remarkable review of the traditional newspaper El Mercurio editorials of the months following the “pronunciamiento,” from 1973 onward creating a “renewed man” remained at the heart of the dictatorial project. From the outset, the armed forces promised to restore “chilenidad” (Chileanism). Moreover, the September 11, Decree-Law No. 1 declared that the Junta’s mission was “the safeguard and defense” of the Chilean “historic-cultural identity.” A general objective and corollary of the regime was thus the promise of a “new society” deeply ingrained in a “new constitution.” Hence, Jaime Guzman at least took one page of Fidel Castro’s playbook as this sort of summary of the ideal-typical “citizen” had its parallel with the “New Man” of the socialist revolutionary discourse (Holbraad 2013). In short, the dictatorship distorted but also effectively reproduced a strong identity-based idea of the political community, which hinges upon the idea that economic freedom needs to be a “total politics” (Cristi 2018). For most of the regime, the role of (protecting) national identity was the dominant logic and means to articulate ways of justifying the dictatorial regime in the pursuit of it.
The Chilean Constitution is still inextricably linked to the “renewed man” as a constitutional subject. For those who refuse to be bound by it because the fact that others agreed to the imposed constitution does not provide legitimacy for it, the tension between Chilean constitutional history and constitutionalism is so sharp that it cannot be managed through the production of conciliatory narratives. In other words, untying the constitutional knot in Chile entails a clash between the collective identity carved out by the Military Junta since 1973 and the collective identity burst out by the 2019 social upheaval. On the one hand, an identity characterized by a self-image of a society vaguely identified with the middle class, which seems to be in frenetic development, but which in-depth reveals certain collective discontent (“malestar”). On the other hand, an identity that not only embodies the social upheaval ethos ––which weaves together diverse “post-partisan” political identities (Melendez 2022:16)–– but also embraces the challenge posed by both feminism and interculturalism to constitutional history. Thus, it is claimed here that the primary subject matter for understanding the defeat of the new charter is the lack of a narrative that fills the gap between these mutually antagonistic constitutional subjects (see Rosenfeld 2010: 25-26), for “a referendum cannot create consensus where none exists” (Tierney 2012:280).
The use and abuse of “tradition” and the populist revival in Chile
The result of any constitutional referendum as such is inchoate, in the sense that its implications are unclear to voters (Tierney 2012:265). Constitutional issues are far from the everyday life of most citizens. In Chile, campaigns deceitfully reduced the decision to a few issues on which voters were taken to a dead-end road. Perhaps the most instrumentalized topic was that of the plurinational state. The draft constitution begins with the commitment to the plurinational nature of Chilean society made up of autonomous Indigenous nations and communities. Indeed, it is an indisputable sociological descriptive claim that the Chilean constitutional moment is bringing together differentpolitical agents rather than one national people. In the process, national minorities have shown patterns of identification with, and loyalty to, a plurality of imagined communities, exploring shared and multiple national identities (Tierney 2007:233). But here, while an ethic of socioeconomic rights was secondary to an ethic of identity, in the end, at the moment of decision-making, the interests of minorities fell easy prey to the simple force of numbers that compose the majority will (Tierney 2012:271). In this way, the failure by voters to ratify the proposed constitution seems due simply to the power of the dominant national society, which sees no reason to better accommodate minority interests, and more particularly to recognize the reality of national pluralism (Id.: 279).
The Convention not only lost its control over the messaging, but its whole narrative seemed inadequate. For instance, there was no need to use the expression “legal pluralism” for “a special jurisdiction which takes account of Indigenous customs and traditions,” or “sentient beings” for simply “animals,” when that was unintelligible for (most of) the population. Thus, as the message seemed too complex and insubstantial, the political and communicative link between the convention and the electorate dissolved.
Although the Convention failed in messaging discourses oriented by a clear ethic of distributive justice or social solidarity, it is undeniable that unscrupulous elites reduced the referendum to simplistic campaign slogans, appealing to populist sentiments which ignored the complexity of the issues involved. Many right-wing representatives contended that the creation of a plurinational state by the Convention constituted “unfair privileges” for Indigenous peoples, that it was like creating first- and second-class citizens, and that the proposal was a “partisan constitution.” People should reject the constitutional draft because, according to campaign slogans, it would produce inequalities (e.g. between Indigenous groups and middle-class mestizo Chileans), as well as, more importantly, because it would lead to the erosion of the historical nation. As they mistakenly rendered it as monocultural and exclusive, the plurinational state would jeopardize the Chilean nation. In this, slogans such as “we must recognize ourselves as Chileans, with the same rights” was how some Rechazo supporters justified barring any recognition for collective identities –be they ethnic, subnational, or linguistic– in the public sphere.
As has become abundantly clear, a prominent political discourse among those who prompted the rejection vote was grounded in an interpretation of Chilean constitutionalism as the expression of a common tradition and the need for its preservation. Above all, voters were told, it was good to preserve and propagate such “constitutional parochialism.” This brought about certain hostility towards a number of international organizations which were engaged in helping draft the constitutional proposal. Along similar lines, there is a very frightening parallel between these slogans and one of the standard moves from contemporary populist leaders, as a way to legitimize illiberal policies which continuously exclude distinct groups from meaningful participation in the polity. Perhaps intuitively, rejection campaign managers copied the tactics of the far-right leaders Víktor Orban and Andrzej Duda, attacking the constitutional draft because it would divide the polity and open it up to international influence, fetishizing “tradition” in ways that put it beyond the reach of critical analysis (Blokker 2019:541; 550). With that said, what is striking here is that they were using the idea of “constitutional identity” as any up-to-date would-be autocrat does, that is, intending to exclude national minorities, and essentializing the idea of collective identity as the property of a majoritarian group.
The anti-politics machine and the road ahead
Another aspect that seems not at the forefront of most interpretations of the referendum results is the magnitude of the anti-politics machine in Chile. Except for Guatemala, Chile is the Latin American country with the lowest level of individuals who identify themselves with political parties (Lupu 2015:235). Based on the analysis of electoral tendencies, it can be argued that the ideological axis of the Convention was displaced to the Left. And, of course, elite accommodation is the only viable way of arriving at constitutional solutions for divided societies. Yet here caution is necessary. The “problem” that the right didn’t get 1/3 of the seats sounds as if such electoral results were a statistical error and puts in doubt, not just the wisdom of the electorate, but also that the mainstream political parties, both on the left and the right, have exhausted themselves, whilst fewer voters were voting for somebody than voting against them. In other words, pivotal to such electoral results was what Melendez (2022) terms “an anti-establishment political identity.” This embraces those individuals with strong identities based on predispositions against all political parties simultaneously. This should be a clue, that we are not witnessing a right-wing turn, but a vote against whichever political figures are in place.
Once this perspective is placed at the center of the analysis, it is possible to see how the main problem in Chile today is that the level of public trust in political parties and democratic institutions is very low. And when people stop believing in democratic processes, they begin to listen more seriously to populists and maybe even openly authoritarian figures. Thus, if the negotiations for a new Convention do not end well, and then Chileans think that the whole process was disappointing, this anti-establishment political identity can be interpreted by an ideological doctrine or by a populist discourse. In this sense, whether the referendum campaign could have set the stage for a populist regime is something we may soon discover. Yet, it is easy to predict that if the new Convention and the Boric government are unpopular, then Chileans will turn to an outsider, that very someone who denounces the entire political elite.
Congressional leaders are now discussing options to continue the constitution-making process. There are many proposals on the table, such as the idea of a panel of experts appointed by political parties. However, this is likely to represent the epitome of an elite pact and instill even more animosity toward the Chilean “political class.” For one thing, in such a scenario, it is highly likely that people will campaign against rather than for whichever text the committee comes up with. For another, within the international political culture paradigm (Klug 2000:24), a primary symbol of modernism is that individuals ceased to be “given” a constitution–written by prophets or experts– for each to feel a sense of ownership over it and accept domination as rational. Again, the hazard here is that the people, long excluded from what they envisage as an undemocratic process of elite bargaining, may further turn to someone who promises to punch the elites in the gut. The danger is greater if the entire elite does not forge some sort of a consensus to set up a sufficient harmonization of the two different poles of collective identity that correspond respectively to the two facets of the constitutional subject that were identified above. Thus, negotiations over a new Convention should not mimic the historic tension between those concerned about the legitimacy of the constitution-making process and those concerned that their interests will not adequately be protected if decisions are taken by a majority in a democratically elected constitution-making body (Klug 2000:106). At this moment, all sides must recognize the perils of an “anti-establishment political identity” and reject the right of any party to insist on maneuvers implicitly intended to guarantee a share of power to particular groups which will frustrate an effective outcome and the future of constitutional democracy in the country.
*. A version of these remarks was presented at a symposium on “Populism and Contemporary Democracy” at the University of São Paulo on October 22, 2022. I am grateful to the Global Challenges to Democracy (GCD) Research Grant (University of Chile, Internationalization for Doctoral Students Project UCH-1866) for support for a visiting period at the Florida State University College of Law between May and August 2022. I would also like to thank Alexandra Huneeus for helping me troubleshoot the framing of these ideas as well as David Landau and Mark Tushnet for their insightful comments on this post.
Suggested citation: João Vitor Cardoso, The Problem of “Identity” in the Chilean Constitutional Referendum, Int’l J. Const. L. Blog, Oct. 7, 2022, at: http://www.iconnectblog.com/2022/10/i-connect-symposium-on-the-chilean-constitutional-referendum–the-problem-of-identity-in-the-chilean-constitutional-referendum/