—Verónica Undurraga, Professor at the Faculty of Law, Universidad Adolfo Ibáñez
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
José Antonio Kast took office as President of Chile in March 2026, and there is currently much debate over how to characterize his government. Assessments range widely: some see a far-right administration importing the illiberal playbook of Orbán, Bolsonaro, Bukele, and Trump; others read it as something more homegrown — a revival of the Chilean right’s economic and social project from the dictatorship era, marked by an uncompromising defense of the free market fused with strong moral conservatism. For his supporters, he is simply a right-wing leader “with backbone,” someone willing to confront crime and illegal migration and pull the country out of economic stagnation. Whatever label one prefers, the shift in direction has been unmistakable, and several of the government’s measures have set off alarm bells among constitutional scholars. Javier Couso, drawing on Landau’s work, has warned that Kast’s recent move to amend the Constitution in order to stop the Constitutional Court from constraining his public-security agenda may be shaping up as a fresh instance of “abusive constitutionalism.” I agree with that assessment entirely. What this reform seeks is to weaken constitutional democracy by amending the Constitution itself so as to disable the oversight that constitutional justice exercises over political power.
The reform proposal emerged in the wake of an unfavorable ruling against the Kast government, issued in response to a challenge brought by the opposition seeking preventive review of a bill known as “Protected Schools.” That bill introduced preventive measures and sanctions for acts of violence committed by students on school grounds. It is worth noting that although the initiative followed a shooting by a student with mental health problems, this kind of violence remains rare in Chile. What is common, by contrast, is political protest by secondary-school students — many of the country’s political leaders first emerged from those very movements. It also happens, at times, that such demonstrations turn extremely violent and lose any connection to their original demands. The Court struck down provisions that allowed police to search students’ belongings under adult-level standards, finding a disproportionate impact on children’s and adolescents’ privacy, personal liberty, and due-process rights. It likewise declared unconstitutional a ban on clothing bearing violent imagery, on freedom-of-expression grounds, along with certain sanctions the Court considered disproportionate for students who disrupted classes, on the grounds that they compromised the right to education. Finally, it struck down a provision stripping the right to free education from students who committed certain offenses on school premises, citing the discriminatory impact of the measure on low-income students.
The government recognized that this precedent could easily repeat itself with respect to its security initiatives more broadly. In the wake of that defeat, it accordingly signed a constitutional reform bill on public security, with the explicit aim of shielding its security agenda — the campaign promise that won Kast the presidency — from future findings of unconstitutionality. Although the government has yet to formally introduce the bill for legislative debate, the draft has circulated widely and has caused unease even within the parties that support the government. The presidential message accompanying the bill opens by declaring national sovereignty, as both title and mandate, to be the doctrinal foundation of the reform. On this account, the constitutional amendment is the Nation — sovereignty’s original holder — speaking in its own name. The Nation, the message argues, demands a higher standard of protection from the State against criminal organizations. Invoking the German doctrine of Untermaßverbot — the prohibition of insufficient protection — it asserts that the State cannot be constrained in its protection of fundamental rights. It further argues that the structural tension between the will of democratic majorities, and the limits the Constitution imposes, becomes untenable when the Constitutional Court, in interpreting the Constitution, effectively displaces the democratic legislature in defining public policy. “This reform,” the message states, “restores to the democratic legislature the normative space that popular sovereignty has mandated it to occupy, subject to the express constitutional limits that the provisions themselves incorporate. Accordingly, the Constitutional Court retains its reviewing function in full; what changes is the parameter against which that review must operate, given that this parameter now more faithfully reflects the sovereign will of the Nation…” The message goes on to criticize the Constitutional Court for having interpreted the Constitution through a rights-protective logic centered on the accused or the convicted, one that it says underestimates the positive obligations that rights -including security rights – also generate. This is a strikingly unusual argument to hear from the Chilean right, which has historically been reluctant to recognize positive state obligations, wary that doing so would license state intervention in individual liberties and private property. I return below to what the President means in saying that the reform changes the parameters of constitutional review the Court applies. That change, in my view, is a profoundly illiberal measure and qualifies as abusive constitutionalism.
One of the security bill’s measures strips anyone convicted of organized-crime offenses, terrorism, or drug trafficking of any state-funded benefit tied to the constitutional rights to health, education, work, and social security — for the duration of the sentence and for up to fifteen years afterward. To take just one example: a person imprisoned for these offenses would receive no healthcare while incarcerated or after release, would not be vaccinated, could not study in public institutions, and would have no state-funded pension. Asked whether he believed offenders retain fundamental rights, the Minister of Security replied that “the only real fundamental rights are first-generation rights,” adding: “let’s run a poll and ask people what they think” about funding health, education, and pensions for convicts with their tax money.
The new parameters of review that the President refers to are, in fact, an effort to neutralize the Constitutional Court’s capacity to conduct constitutionality review at all. To keep the Court from finding these rights infringements unconstitutional, the reform bars it from applying the Constitution’s limitations clause, found in Article 19 No. 26. That clause, modeled on Article 19(2) of the German Basic Law, sets out the standard for distinguishing legitimate restrictions from unconstitutional ones: preservation of the “essential core” of rights, and a prohibition on conditions or burdens that would prevent their free exercise. The Constitutional Court has increasingly relied on the principle of proportionality to determine whether a right’s essence has been violated or whether burdens placed on its holder are unconstitutional. The bill states plainly: “the disqualifications and restrictions established herein do not affect rights in their essence, nor do they impose conditions, levies, or requirements that prevent their free exercise.” And to head off any finding — following the reasoning of the Protected Schools ruling — that stripping convicted persons of all state benefits in health, education, work, and social security amounts to a breach of the equality clause, the bill further provides that any resulting differences in treatment, whether direct or indirect, shall never be deemed arbitrary (the term Chilean constitutional law uses for discriminatory treatment). What the government is attempting, in short, is to foreclose the Constitutional Court’s powers to review these measures for rights violations — by declaring, ex ante, through a constitutional amendment, that its contested security measures are constitutional. This is not a change of parameter; it is an explicit attempt to weaken the Constitutional Court’s function as a check on political power.
Sanctions consisting of the deprivation of social rights have been a recurring feature of this executive’s proposals. The President has sent Congress a separate bill creating a registry of vandalism and incivility, aimed at stripping anyone included in it of a long list of social benefits and freedoms — among them, access to social housing or rental subsidies, the ability to obtain a driver’s license or passport, and eligibility to apply for cultural funding, among many others. In the most serious cases, loss of free education and pension benefits is added as well. The registry lumps together a strikingly heterogeneous group of people — from those who have committed serious offenses against public safety, such as the murder of a prosecutor, to minor acts like writing on public or private furniture or spray-painting a wall without authorization. That bill is currently making its way through Congress and will likely end up before the Constitutional Court as well.
Note: On the evening of August 17, the President submitted the bill to the Senate, but with substantial changes to the original version he had signed and that is discussed in this column. In the new version, the references to the restrictions that would have been imposed on the Constitutional Court have been removed. The provision concerning the deprivation of social rights of convicted persons has also been softened, leaving it to legislation, which must be approved by an absolute majority, to determine whether such rights may be withdrawn. However, the bill has sparked a new debate because it introduces a new state of constitutional exception in cases of a serious and imminent threat to public security or when public security has been seriously compromised. The President may declare this state of exception without congressional authorization for a period of up to 240 days. It allows the President to restrict the rights to personal liberty, assembly, and association, as well as to intercept all forms of communications and requisition property. Powers of this kind are contemplated under the current Constitution only in cases of external war, and even then the declaration of the state of exception requires congressional approval. The bill will therefore likely undergo changes during the legislative process. Nevertheless, both the original bill and this new version reveal a troubling tendency on the part of the current government to push the limits of Chile’s constitutional democracy as far as possible, warranting continued vigilance on the part of the legal community.
Acknowledgment: The author used Claude (Anthropic) as a writing aid for translation and language editing purposes. All ideas and conclusions remain the author’s own.
Suggested citation: Verónica Undurraga Valdés, Is Chile Facing Abusive Constitutionalism?, Int’l J. Const. L. Blog, Aug. 19, 2026 at: http://www.iconnectblog.com/is-chile-facing-abusive-constitutionalism/