—Benjamin Alemparte, Duke Law School, and Joshua Braver, University of Wisconsin Law School
Three months into its deliberations, on October 7th, the Chilean Constitutional Convention finished approving its internal regulations. Most significantly, the Convention infringed its legal mandate by tampering with the threshold for its voting rules. In so doing, the Convention claimed that its legitimacy no longer derives from the Constitution, but from the people themselves. These flirtations with illegality are at this point mostly symbolic, but in time they might be the starting point for weightier legal violations in the constitution-making process.
Up until now, the process had been completely legal. In response to massive protests known as the “social outbreak,” and with the support of all the major political parties, Congress had amended the Constitution to permit the calling of a constitutional convention. Those amendments laid out a detailed structure for how the process would unfold.
Most importantly, the amendments limited the Convention’s to the task of drafting and proposing a new constitution. Article 133 of the current Constitution required that “the Convention shall approve the provisions [of the draft constitution] and its voting rules by a quorum of two-thirds of its members in office.” The amendment also states that the Convention “may not alter the quorum or procedures for its operation and for the adoption of agreements.” Article 135 prohibits the Convention from claiming the “exercise of sovereignty” by “assuming other powers than those expressly recognized by this Constitution.” In other words, the Convention could not usurp the powers of the government, such as legislating, executing, or applying the law. In drafting these provisions, the Congress had in mind previous experiences in the region, specifically in Venezuela and Ecuador, where constitutional conventions claimed they were sovereign, outside all law, and had purged the governments. For these reasons, many have argued that the Chilean process is a legal one based on an aversion to the Bolivarian model of Venezuela or Ecuador.[1]
We call attention to three possible infringements on these rules. First, the Convention approved its voting rules by a majority vote, not the 2/3 required by Article 133 of the Constitution. This is perhaps the clearest infringement.[2] But what’s remarkable is even as the Convention used majority vote to approve the rules, they set super-majoritarian rules blunting the radicalism of the gesture. The second infringement concerns the voting threshold for the approval of the provisions of the Constitution. There would now be two routes to approving a provision of the new constitution. The first adhered to the amended Constitution’s legal guidelines of a 2/3 vote as required by the Constitution. But a new second route would allow provisions that could not meet the 2/3 threshold but were able to garner in a second vote the approval of 3/5 of the members to go to a binding referendum or plebiscito dirimente.[3] However, the alteration may not be illegal as many supporters of the change say for a binding referendum to be effective, the Constitution would have to be amended. Such an amendment would make the referendum perfectly legal. Lastly, Article 1 of the general regulation states that the Convention has “an autonomous nature” and is “convened by the people to exercise original constituent power.” This claim signifies the Convention no longer believes that its authority derives from the amendments to the Constitution, but from the people themselves.[4]
In this blog post, we examine the theoretical conundrums raised by the Convention’s actions. First, we explore the pattern of constitutional conventions violating their pre-set rules. Second, we argue that Chile departs from the pattern in one respect because this current violation was unnecessary for the achievement of a new constitution.[5] Lastly, we distinguish sovereignty from autonomy to cast doubt on whether this is a prelude to the Convention usurping the other branch’s powers as occurred infamously in the creations of the 1999 Venezuelan and the 2008 Ecuadorian Constitutions.
- Constitutional Boot-strapping and Legal Exhaustion in Paris, Philadelphia, and Sucre
In his classic 1993 article, Jon Elster explained why the potential for conflict between a government and a constituent assembly is often present.[6] Since the old constituted power calls into being the constitutional assembly, it also tends to greatly structure it. That structure in turn will likely greatly determine the content of the constitution. Not surprisingly, the government tries to structure the assembly to mitigate the threat the new constitution poses to the Government’s power. But the Assembly, convened in response to demands for revolution, will favor a different set of rules. To be clear, much empirical work remains to be done on how often and under what conditions this exists, but this inherent tension between the constituted and constituent powers has been an important feature of many of the prominent cases of popular constitution-making.[7]
To free themselves from the government’s yoke, the constitutional assembly might declare its right, on behalf of the people to violate the government’s rules. Jon Elster calls this “constitutional boot-strapping” or “the process by which a constituent assembly severs its ties with the authorities that have called it into being and arrogates some or all of the powers to itself.” After all, constituent assemblies are normally convened in the midst of a crisis, which has drained the constituted authorities of its legitimacy. As Elster states, “If the regime is flawed, . . . why should the assembly respect its instructions?”[8]
Elster focuses on the voting threshold set by the governments in creation of the 1789 U.S. Constitution and the 1791 French Constitution. In both of these cases, the government’s pre-set voting rule meant that minority and more conservative parties would wield a veto over constitutional change. In the U.S., the Continental Congress specified a voting rule approved by all thirteen state legislatures. But instead, the Convention violated the Articles of Confederation and the state constitutions by proposing ratification if nine state conventions agreed. Similarly, in France to raise taxes, in 1789 the King called the long dormant Estates-General, composed of the three estates of the clergy, the nobility, and the commoners. The voting rule was that each Estate had one vote, which meant the clergy and nobility who favored the old regime could vote together to veto any changes. The Third Estate of Commoners objected as they were the most numerous in the country and the Assembly. Ultimately, the Third Estate seceded from the Estates-General, and established a new constitutional assembly with their preferred voting rule that created the 1791 French Constitution. In both cases, the conventions violated the government or constitution’s pre-set voting rules for the assembly because those rules blocked the possibility of any real change.
While these examples are illustrative, they are of a different time and a different region. In 21st century South America, the closest analog to Chile’s Convention is the Bolivian one that met in Sucre in 2006. It too was convened by the government by following the constitution’s procedures and that legal method set a super-majority rule voting threshold for the Convention.[9] In the elections to the Constituent Assembly, the Movimiento al Socialismo (MAS) and its allies won 61.5% of the seats, leaving it short of the two-thirds necessary to pass the Constitution.[10] For almost six months, the Assembly viciously fought over the voting rule. MAS repeatedly tried to approve its own proposed majoritarian rules by majority vote. Shortly after one such attempt, Samuel Doria Medina, the president of the most important centrist party, the United National Front, began a hunger strike with seven other members. MAS responded with massive demonstrations of their own. While the issue was ultimately resolved in favor of the two-third rule, this incident heightened tensions and set the stage for later breakdowns in the process, including the opposition holding referenda for declaring independence, seizing airports, gas pipelines, and a massacre that left 20 MAS protesters dead and between 50 and 80 injured.[11] In Philadelphia, Paris, and Sucre, the majority in the convention decided to break the voting rule because it gave a veto power to opponents of more radical change.
2. Legal Exhaustion in Santiago
What is odd in the Chilean process is that the infringements of the voting threshold may have been unnecessary to pass the majority’s preferred constitution. Unlike in Philadelphia, Paris and Sucre, in Santiago, the center-right minority parties lacked the numbers to block proposals for a progressive new Constitution. It was not supposed to be this way. As one of us, Benjamin Alemparte, argued in a previous post, the two-thirds majority was one of the conditions negotiated in the political agreement that led to the approval of the constitutional amendment allowing for a constitutional convention.[12] The center-right coalition, Chile Vamos, agreed to the amendment only after putting on the negotiation’s table the condition of a 2/3 rule. Given that they had far more than a 1/3 representation in Congress and had long been a powerful and cohesive alliance, Chile Vamos assumed they would be able to win enough seats to veto the most radical proposals. And for that reason, the Communist party was the only major political party to not agree initially to the new constitution-making process. But Chile Vamos and the Communists were wrong. Chile Vamos won only about 24% of the seats, a shockingly low number and one that put them at the mercy of the center-left and farther left parties who combined have more than 2/3 of the Convention’s seats.
We are concerned about the normative legitimacy of these infringements. One of us, Joshua Braver, for example, in a forthcoming book, has argued that constitution-makers should only violate the legal framework if the legal system is systematically blocking a near consensus about the need for constitutional change.[13] He calls this criterion “legal exhaustion.” For example, in the late 18th century United States, the Articles of Convention’s unanimity rule for constitutional change foiled two separate attempts at change. The situation has been similar in much of post-Cold War South America. Before the callings of constitutional assemblies in Bolivia, Colombia, and Venezuela, those countries legislatures had repeatedly tried and failed to radically change the constitution through the amendment method; once in Bolivia; twice in Venezuela; and five times in Colombia. In these cases, violating the legal framework was the only path to enact a near consensus about the need for change.
Not so in Chile. The benefit is much lower because the left parties and movements have sufficient seats to approve a new constitution. And the cost here might be substantial. Under the Constitution, with the support of 1/4 of the Assembly, a member can appeal to the Supreme Court, with five members chosen randomly by drawing lots to hear the case and decide any controversy regarding the Convention’s rules of procedure, including the 2/3 rule. Members of Chile Vamos within the Convention stated that they would take advantage of this appeal. However, so far they have been unable to obtain the support of the quarter of the Convention’s member required by this appeal procedure. But that may change once it becomes clearer what proposals are likely to be approved through the alternative route of 3/5 and a referendum. If the Supreme Court strikes down this change, it would likely become embroiled in a conflict that would drag down the legitimacy of the Convention and distract it from its primary task of writing a new constitution. Such a fight is worth having if the entire project is at risk, but that was not the case here.
What seems to be driving these gestures towards illegality are politics. The center-left parties are the plurality, and they tend to adhere to the legal framework. However, that framework’s 2/3 voting threshold requires them to negotiate with and retain the support of more radical parties and movements, such as the Communist Party, who objected to the legal framework in the first place. Hence, the center-left conceded to the radicals on symbolic gesture or small alterations but have also tried to minimize their importance.
3. Sovereignty vs. Autonomy
The Constitutional Convention has legitimized its deviations from the constitutional amendments by declaring that its legitimacy no longer derives from the Constitution, but instead from its acting “in the name of the peoples of Chile.” Hence it is “autonomous” and can exercise “the original constituent power.” Since the Convention derives its authority from the people, they are not subordinate to the government or even the Constitution. If the government for example would amend the Constitution to shut down the Convention, the Convention might ignore it. The declaration then is illegal.
However, the Convention did not declare itself to be sovereign. Article 135 of the Chilean Constitution forbids “the Convention . . .from claiming the exercise of sovereignty, assuming other powers than those expressly recognized by this Constitution.” In the same spirit, the Chilean Convention explicitly recognized in Article 1 of its general regulation that sovereignty does not reside with them, but with “the peoples” and that the Convention’s “mandate is to write a Constitution to be submitted to a plebiscite.” There is some ambiguity as the Convention did invoke the term “original constituent power.” “Original” might be interpreted as an invocation of sovereignty, but that does not seem to be the intention of the Convention nor how it has been understood thus far. Both the Constitution and the Convention recognize that at best, any one body can only imperfectly represent the people. For that reason, the branches of government are limited in their powers and subject to checks from either other institutions or the government.
The location of sovereignty in the people is the foundational logic for the separation of powers, which still holds sway even at the moment of constitution-making.[14] Under it, the Convention is a kind of temporary fourth branch of government. Just as the other three branches have a primary power, so too the Convention has a mandate of proposing a draft constitution. And each is independent of the other. Hence, when the Convention now declares that it has “an autonomous nature,” it merely is establishing that it has its own independent sphere in which the other branches should not interfere. What if, for example, Congress passed a law shutting down the Convention because it disliked the content of the Constitution? Or required a specific constitutional provision? Such laws would impinge upon the “autonomy of the Convention” and should be resisted. The exact boundaries of the different branches is a notoriously difficult question and made even more difficult in the context of a rare constitutional assembly. Nonetheless, no one should mistake the Convention’s autonomy for a usurpation of the people’s sovereignty.
Nor does there seem to be the political will for a declaration of sovereignty. In Venezuela and Ecuador, charismatic presidents campaigned on convening sovereign assemblies, won massive electoral victories in those elections, and then won again crushing victories in the elections to the constitutional assemblies. The far-left parties of Chile who are pushing for a sovereign Convention lack that kind of support. Conditions are not ripe for that kind of total break with all legality.
Conclusion
So far, the gestures towards illegality have been mostly symbolic. But that may change in the coming months. As the Convention turns its attention to drafting the constitution, the possibility for conflict, both within the Convention and between it and the government, will rise. Further raising the prospect of conflict is that elections are coming in a couple months. How might such campaigns change public perceptions of the Convention? How would a newly elected and perhaps popular president react if the Convention proposes a constitution that threatens their power? And Article 135 of the Constitution declares that the Convention must respect the courts “final judgments” and “current international treaties.” What happens if the Convention wants to nullify investment treaties or constitutional decisions of the Court? And the invocation of the 3/5 voting threshold might also cause a storm. Any of these events might help conservatives gather the requisite ¼ votes of the Convention necessary for an appeal to the Supreme Court. Only time will tell whether the Convention stays mostly legal. But if it radicalizes, these small infringements will likely be seen as the foundation for much more extreme violations of the Constitution’s limitations on the Convention.
Suggested citation: Benjamin Alemparte and Joshua Braver, Constitutional Boot-strapping in Chile? Int’l J. Const. L. Blog, Nov. 2, 2021, at: http://www.iconnectblog.com/2021/10/constitutional-boot-strapping-in-chile/.
[1] See, e.g. Sergio Verdugo & Marcela Prieto, The dual aversion of Chile’s constitution-making process, 19 Int. J. Const. Law 149–168 (2021); The author most associated with developing and arguing in favor of the round-table model is Andrew Arato, Post Sovereign Constitution Making: Learning and Legitimacy (2016).
[2] For an analysis on this particular infringement see Rodrigo Correa, La votación tramposa, available at https://www.theclinic.cl/2021/09/15/columna-de-rodrigo-correa-la-votacion-tramposa/
[3] For a critique of the plebisicite on practical grounds Javier Couso, Constitucionalista Javier Couso y plebiscitos dirimentes:, El Mostrador (2021), https://www.elmostrador.cl/nueva-constitucion/2021/10/01/constitucionalista-javier-couso-y-plebiscitos-dirimentes-parece-una-mala-idea-porque-probablemente-en-un-ano-recargadisimo-de-elecciones-participara-muy-poca-gente/.
[4] The Convention’s infringements are in tension with what has been described as a “reformist” constitution-making process. See Renato Cristi, ¿Reforma o revolución? El Mercurio, 23 de Septiembre, available at https://www.elmercurio.com/blogs/2021/09/23/91781/reforma-o-revolucion.aspx
[5] For an examination of illegalities in contemporary South American popular constitution-making, see Braver, Joshua, Introduction- We, the Mediated People: Popular Constitution-Making in Contemporary South America (October 25, 2021). (Oxford University Press, forthcoming), available at SSRN: https://ssrn.com/abstract=3949633
[6] Jon Elster, Constitutional Bootstrapping in Philadelphia and Paris, 14 Cardozo Law Rev. 549 (1992).
[7] For empirical perspectives, see Tom Ginsburg, Zachary Elkins & Justin Blount, Does the Process of Constitution-Making Matter?, 5 Annual Review of Law and Social Science 201–223 (2009); Gabriel L. Negretto, Constitution making and constitutionalism in Latin America: the role of procedural rules, in Comparative Constitutional Law in Latin America (Rosalind Dixon & Tom Ginsburg eds., 2017).
[8] Elster, Constitutional Bootstrapping at 559.
[9] There is some disagreement about whether this method is truly legal. In 2004, the Congress amended the Constitution to create a pathway to call Some have argued that it was legal as the government followed the procedures laid out in the Constitution to call a Constitutional Assembly. One of us, Joshua Braver, has argued that the amendment, passed less than two years earlier, was itself illegal. See Joshua Braver, Constituent Power as Extraordinary Adaptation (June 30, 2018). Available at SSRN: https://ssrn.com/abstract=3022221 or http://dx.doi.org/10.2139/ssrn.3022221
[10] Franco Gamboa, Dilemas y Conflictos sobre la Constitución en Bolivia: Historia Política de la Asamblea Constituyente 144 (2009).
[11] For the complete story of the process, see Gamboa, Dilemas; Salvador Schavelzon, El Proceso Constituyente en Bolivia (2006-2009): Entre en Acuerdo Moderado y la Ruptura Revolucionaria. For shorter more law-centric accounts Joshua Braver, Constituent Power as Extraordinary Adaptation (2018), https://papers.ssrn.com/abstract=3022221 (last visited Sep 7, 2021); David Landau, Constitution-Making Gone Wrong, 64 Ala. L. Rev. 923 (2012).
Landau and Braver have reflected on their differences about the significance on process for the Iconnect blog, see http://www.iconnectblog.com/2018/07/putting-abusive-constitutionalism-and-populism-in-perspective-2/
[12] Benjamin Alemparte, The Institutional Interest of Political Parties in Chile’s Constitution-Making Process, Int’l J. Const. L. Blog, Nov. 17, 2020, at: http://www.iconnectblog.com/2020/11/the-institutional-interest-of-political-parties-in-chiles-constitution-making-process/
[13] Joshua Braver, We, the Mediated People: Popular Constitution-Making in Contemporary South America(Oxford University Press forthcoming), Introduction available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3949633.
[14] As Joel Colón-Ríos notes the confusion between sovereignty and constituent power in the same constituent body, as was the case of Franco’s Spain or Pinochet’s Chile “can also serve to justify important departures from democratic principles.” See Joel Colon-Rios, Constituent Power and the Law (2020) 228. Joshua Braver argue that is the logic at play in the making of the 1991 Colombian constitutional convention. Introduction- We, the Mediated People: Popular Constitution-Making in Contemporary South America (October 25, 2021). (Oxford University Press, forthcoming), Introduction available at SSRN: https://ssrn.com/abstract=3949633
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