The Chilean constitutional process carries a bag of expectations. In October 2020, 80% of the electorate voted in favor of drafting a new Constitution that would be able to peacefully and institutionally channel the “social outbreak” unleashed in the streets since October 2019. Already then it was possible to identify two types of arguments to inaugurate a constitutional process: a procedural argument, which underlined the importance of having a framework for the distribution of power and structural rules of the game legitimized by the governed, as an authentic contractualist fantasy of liberal origin; and a substantive argument, which highlighted the opportunity to dismantle the neoliberal state and advance in the construction of a more supportive model, in line with the ideological thickness of the demands of the “social outbreak”. Both arguments celebrated as their own the overwhelming triumph of the “Approval” in the entry plebiscite. With such a margin, it was taken for granted that the Approval would also be imposed in the exit plebiscite, set for September 4, 2022, which must ratify or repudiate the text proposed by the Constitutional Convention.
And yet, opinion polls show that the “Rejection” option takes the lead, reviving fears of Brexit or the Peace Accords in Colombia: races that were thought to be run and are trapped in the final stretch. What happened? It is not a merely communicational problem, or a campaign of fake news of the powers that be. The reputational disaster of the work of the Constitutional Convention can be explained by factors of substance and form. Basically, because the proposed institutional innovations are more daring than expected. In many cases, because processes and institutions that were not problematic are modified, such as the Senate or the functioning of the Judicial Power.
That is, the Convention “scratches where it doesn’t itch”. Perhaps the most controversial innovation is the recognition of the plurinationality of the Chilean State, which gives indigenous peoples a series of special rights of self-government and representation that generate noise in the rest of the population, which had not been socialized on the merit of these innovations. Many wonder if such a vindictive and identitarian Constitution respects equality before the law. All these changes arouse natural uncertainty.
There are also controversies of form. The casts that star in the constituent process are more representative of the cultural diversity of Chile than we were used to. That’s welcome. But so much performativity has generated conservative criticism as a counterpart. So much activism has generated a technocratic backlash. The fall from grace of the leader of the so-called People’s List, promoter of a fierce speech against the elites in power, when it was discovered that he had faked cancer to finance his campaign, was fatal for the prestige of the nascent body. But the most pointed criticism is the virtual exclusion of the right from the big deals. Although it is true that these are fastened with 2/3 of the members of the Convention (103 of 154), and that many articles have been approved with an even greater margin, there are no proposals from the right that have been accepted. Given the political fragmentation of the organ, at the beginning a “variable geometry” was thought of: in some things the left would win, in others the right. That way, everyone would have their fingerprints on the result. It has not been the case. The hardest left, led by the Communist Party, managed to articulate a third and notified the rest of the left that the agreements were without the right or there would be no agreements.
This returns us to the initial point about procedural and substantive arguments that converged in the entry “Approbation”, but reformulated under two alternative understandings of the constituent process. On one side, we have a consensual understanding, which suggests that the legitimacy of the norm stems from its ability to identify an overlapping consensus between the different ideological visions that populate a pluralistic society. It is the idea of a Constitution as the lowest common denominator, as a meeting point, as a common home. Its premise is that the parties offer reasons that are rationally considered and deliberate, keeping passions and particularities at bay. On the other hand, we have the agonistic understanding, which maintains that the legitimacy of the norm emanates from its ability to prevail in a democratic confrontation between passions and interests. For this adversarial logic, there is no valid impartial rationality, and any appeal to consensus is a defense of the dominant hegemony. It is Mouffe’s and radical literature’s well-known critique of liberal theorists of deliberative democracy such as Rawls and Habermas.
In the Chilean case, both understandings are in tension. The historical irony is that the right, which for decades took advantage of a constitutional order imposed by force, invokes consensual understanding, while the left, which charged that the Constitution “neutralized” democratic politics, forcing all governments to follow the path ideology of the dictatorship, now he sees no contradiction in constitutionalizing a government program. This change in position is due to a new balance of forces: the left does not want to miss this unprecedented and contingent favorable correlation to fasten the ideological transformation of the state. Although the new president Gabriel Boric has said that he does not want a “partisan” constitution, the agonistic dynamic of the Convention, following Mouffe, vindicates the partisan nature of politics.
The scenario is complex for the Boric government, who was key in the political agreement that gave rise to the constituent process. The fate of his government is symbolically tied to the fate of the Convention. He will make every effort to highlight his virtues: his radically democratic character, that the burden is settled along the way, and that the alternative continues to be the Pinochet Constitution. The majority of Chileans reject this dichotomy: if the Rejection wins in September, it does not revive a politically deceased Constitution, only the work of the Convention is disapproved. The task for Boric is to think of a plan B to generate a new text.
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