Jennifer Piscopo is an associate professor of politics at Occidental College. Recently, she coauthored a paper with Peter Siavelis in the Journal of Democracy called “Chile’s Constitutional Chaos.”
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I think voters right now, remember the circus of the convention over the substance of what it did. I think there is a bit of an amnesia over the mandate for change that existed in 2019 and 2020 that the Constitution delivered on, that voters had moved away from that mandate to change by the time the Constitution went for approval.
Jennifer Piscopo
Key Highlights
- Introduction – 0:42
- Demands for a New Constitution – 3:04
- The Constitution Making Process – 17:18
- Substance of the Constitution – 33:29
- Why Voters Rejected it – 36:53
Podcast Transcript
Widespread protests in Chile in October 2019 led to calls for a new constitution. A year later 80% of voters chose to move forward with the process for a new constitutional convention. Many of the guests on the show had a lot of optimism for the process. They felt it was about time for Chile to move past the constitution written under the Pinochet dictatorship. However, when voters got the chance to vote on the constitution the convention produced, more than 60% voted against it.
Since then a lot has been said about the process and its final outcome. But I wanted to revisit it because it offers some lessons for us about constitutions, democracy and a window into Chilean politics. So, I reached out to Jennifer Piscopo. She is an associate professor of politics at Occidental College. Recently, she coauthored a paper with Peter Siavelis in the Journal of Democracy called “Chile’s Constitutional Chaos.”
Now long time listeners will remember an episode from a year and a half ago with Aldo Madariaga where we did a deep dive into the reasons for the protests and the constitutional convention. So, this episode really focuses on the convention, the draft constitution it produced, and the reasons voters rejected it. For listeners who want the longer backstory I recommend listening to the earlier podcast as well. I’ll make sure to include a link in the show notes.
If this is your first time listening to the podcast, thanks for tuning in. We move fast, so if it helps you can follow along with a full transcript at www.democracyparadox.com. If you like the podcast, please show your support with a 5 star rating and review at Apple Podcasts or Spotify. You can also send me questions or comments to jkempf@democracyparadox.com. But for now… This is my conversation with Jennifer Piscopo…
jmk
Jennifer Piscopo, welcome to the Democracy Paradox.
Jennifer Piscopo
Great. Thank you for having me.
jmk
Well, Jennifer, I’m really excited to have this conversation because I’ve talked to a few guests about the Chilean constitution, but I haven’t really had a chance to talk to anyone about its final outcome. But before we do, I’d like to just revisit some of the reasons for a new constitution in Chile. You wrote in your recent piece, “Chile’s Constitutional Chaos,” “Workers, pensioners, feminists, indigenous peoples, and other groups condemned Chile’s neoliberal economic model, demanded more equal and just treatment, and denounced political elites as insular and unresponsive. Demonstrators ultimately trace these myriad social ills to one source the 1980 Constitution which was written under dictatorship.” Why did so many believe the Constitution itself was the source of so many problems?
Jennifer Piscopo
That’s a great question to kick off and a great opportunity to dig a little bit more into the background that we don’t always have a chance to do. So, Chile’s democratic transition happened from 1988 to 1990, but when Chile initiated this democratic transition the 1980 Constitution was in place and really governed what the return to democracy and specifically elections would look like. So, this constitution, that was written by 12 individuals during the Pinochet Dictatorship, really laid out what Peter Siavelis and I have called in other work a sort of vision of an authoritarian style of democracy. Meaning a democracy where there would be elections, there was an election system put in place, but that contained extremely high barriers to any type of reform to the institutions.
So, it really prioritized stability and a long-term status quo making reform very difficult. The election system that the 1980 Constitution put in place and then was in effect until 2015-2016 was a really unique system, if we think comparatively about how countries run elections. It was called the binomial system. It created two seats in every district for the chamber and for the Senate. The way that the votes were counted meant that if a party running in one of those districts was to win both of the seats, they would only get that second one if they had double the vote of the second-place party. So, it was a really high threshold for any party in any district to gain both seats.
What this meant in practice was that parties were incentivized to run in coalitions, a coalition of parties on the left and a coalition of parties on the right. They would usually end up dividing the vote in the district with one seat going to the left and one seat going to the right, because it was so difficult for a party to get enough votes to win. But that meant that you could then have an overrepresentation of a party, because you could get that second seat with a small proportion of the vote which is what happened. So, for a long time, then you have left and right sort of dividing the vote in Chile because of the election system design which produces a lot of stability.
But also, can start to brew what over time became what we called a crisis of representation, because these large coalitions with their member parties weren’t doing a very good job of representing the actual ideological distribution of voters in the districts and particularly a sense that the right was overrepresented in Congress relative to its support. So, the kinds of reforms over time that voters looked for, which would be reforms that would engage in more distribution, would offer more public services rather than private services, were not getting passed because the right essentially had a very large block in Congress to block reforms. So, when the protests happened, the diagnosis was that there was this pent-up demand for social reforms, for progressive reforms that couldn’t get through the Congress because of the way the constitutional design was essentially stymieing the ability to pass reforms.
jmk
Now, you just mentioned that that specific method of voting though had changed just a few years ago. The Chilean constitution, even though it was written in 1980 under the Pinochet dictatorship, had been amended a large number of times. So, I wonder how much of that authoritarian constitution was still left compared to what existed by the time we get to 2019 when there start to be new demands to completely rewrite the constitution?
Jennifer Piscopo
That’s exactly right. So, I mentioned the election system was a big aspect of the 1980 Constitution. There were also other aspects of the Constitution like concentration of power in the presidency, a longer term for the presidency, there were members of the Senate that were appointed by the military that over the first 20 to 25 years of democracy, sort of 1989 through 2010s, did get reformed. So, there was a piecemeal slow reform. When the parties of the left and parties of the right could come to an agreement, they would start taking away some of those more anti-democratic elements of the constitution.
Then the big piece was the reform of this binomial system. That was a huge piece, because any election system creates a set of rules in which parties know how to operate. They understand the rules of the game. They can use those rules for their benefits to continue winning. So, the election system is really this huge piece that even as voters are increasingly unhappy with how the parties are representing them, parties don’t really have a large incentive to change because they’re going to open up the set of rules and really change the status quo. This piece did finally change in 2015-2016. You actually had declining support among voters for the parties. You know, in about 1990, 80% of Chileans identified with a political party. By 2013 that figure was down to 30%.
So, we get a sense of how unrepresented voters were starting to feel the parties were. So, then the big change was 2015-2016 during Michelle Bachelet’s second term. There’s been enough renovation and pressure that the left wing, which is then the Nueva Mayoría Coalition, finally has the votes to try to remove the binomial system. What they put in place then is an open list proportional representation system. It’s a much more traditional kind of election system you’re going to find. So, parties will now get a proportion of the seats relative to the proportion of votes they receive and in an open list system, voters can also move individual candidates up and down that party list. So, that goes into place in the 2015-2016 reforms. It’s used to elect the Congress in 2017.
The widespread social protests that spark the constitutional process spark in 2019. So, there really isn’t that much time that elapses between the new election system and the protests. There’s this sense that on the one hand, voters didn’t get a chance to see whether the new election system could really develop a more representative Congress that would allow some of these reforms to pass through the typical statutory channels. But on the other hand, it could also have been that this was just too little, too late. The 2019 protests were not the first set of large-scale social protests in Chile over social and economic inequality. There were protests all through the 2010s, all during the 2014 elections, and so too little too late by the time 2015-2016 rolls around. Although it was a very important step to kind of chuck that binomial system.
jmk
So why is it that Chileans waited so long to rewrite their constitution? Because we call it the 1980 constitution, but it’s really more of the 1989 Constitution when Chile officially democratizes. But even using that 1989 date, we’re talking 30 years until Chile begins a process of even starting to think about rewriting its constitution. Why did it take so long?
Jennifer Piscopo
Yeah, that’s a great question. Part of it is really that the logic of the political system that was put in place as the Pinochet dictatorship exited and that’s worked more or less for the first two and a half decades, was slow to change in order to protect democracy. This wasn’t just the case in Chile. It was true throughout Latin America. You know, if we go back to those early days and months and years of democratic transitions, you know, there was a real fear that if the political system changed too much that the military had retreated to the barracks, but was just maybe waiting until there was a sense that the situation had gotten out of control and would return.
So, a lot of Latin American countries engaged in this very gradual process of reform. So, there’s an initial moment of democratic transition, but then there’s these additional steps to maybe, as we said, make the system a little more competitive. You know, eliminate the military’s control over certain institutions and to go slowly enough, because what’s in the shadows of everyone’s mind is this potential reversion to military rule. One of the big differences that mattered in Chile was this rise of a younger generation of politicians to power in the 2010s and they were called the generation without fear because they were very young in the early years of the military dictatorship.
They didn’t grow up with their parents and their grandparents’ sense of anxiety and unease and sense that we have to go very carefully, we have to go very slowly, where it’s much more important to have consensus between the left and the right because of the fear of the alternative. So, this generational renewal also is very important. The younger generation has a little more impatience because they also don’t have a sense of fear. And I think about that with my students even in the US context. They are far more impatient than somebody like me and part of it is that sort of freedom of not having lived through a much more difficult past and having a sense that the future is more open than perhaps your parents or grandparents think it is.
jmk
So, getting back to the binomial form of voting, one of the ways that I’ve heard people talk about Chile is that it does have a much stronger conservative party and a much stronger conservative base of voters. Is it also that because there were so many people who did support conservative ideas, that even with this unfair electoral system, that the two parties were somewhat balanced?
Jennifer Piscopo
Well, it seems to be that the binomial system overrepresented the right coalition relative to its voter support. But we have to think about what does overrepresented mean. So, the binomial system would essentially allow the vote to split 50-50 which gives it an impression of two equally weighted sides. But on average it seems to be that maybe the right support overall, now it varies district by district, would be closer to maybe a third or 40%. So, this overrepresentation created a system that essentially divides the votes and that, of course, has changed over time.
What’s fascinating is when we look at the constitutional process and we look at the results of the initial referenda that came out of the 2019 social protests where essentially the then right government said, ‘Okay, we’re going to put this to the voters. Do you want a new constitution?’ We saw 80% of voters choosing a new constitution. So, that sort of says that at least in that moment, in 2019 to 2020, the electorate really had shifted such that there were large majorities in favor of, if not the left, at least in favor of some sort of large-scale change.
jmk
Yeah. At the same time though, the person who was president, who was elected by all the voters was Sebastián Piñera who was very conservative.
Jennifer Piscopo
For sure. So, what you have in Chile is this alternation and power essentially between the left and the right at the level of the president, because one of the vestiges of this 1980 constitution is there’s no immediate reelection of the president. The president can’t stand again, so the left and right alternate. So, Michelle Bachelet, who comes from the leftwing Concertación, which is that initial leftwing coalition that led the anti-Pinochet vote. She governs from 2006 to 2010. Then there’s an election. It swings back to the right. So, Sebastian Piñera from the right-wing coalition comes in from 2010 to 2014.
Then you have presidential elections in 2014 and it swings right back to Michelle Bachelet, who now comes in with the rebranded, as I mentioned, Nuva Mayoría which has some of the old parties from the Concertación, but also some of these newer left parties that represent this younger generation of politicians that I also mentioned. So, you have this seesawing between left and right and the point is that voters end up very unhappy at the end of every president’s term no matter whether she’s from the left or he’s from the right. So, at the end of Piñera One going into the 2014 elections there are protests all the time over the highly privatized pension system, the unequal education system, the large amounts of socioeconomic inequality, and limited upward mobility overall.
It’s actually those protests in 2014 that give Bachelet the momentum to do that 2015-2016 electoral system reform. But then as you said, what happens in 2018, Bachelet is back out, voters are unhappy, so they go back to the other side of the spectrum and we get Piñera in his second term and absolutely he is in charge when the protests in 2019 start. Coming from the right he is opposed to conceding to protestors demands for a new constitution. So, then you get this opposition between where voters and protestors are in 2019 and 2020 and where the president whom they just chose two years ago is. So, you do get this see sawing effect. Absolutely.
jmk
So, let’s talk about the process for the constitution making, because as I’ve talked to different people like Donald Horowitz and others, I mean, the process itself is so important when you’re trying to design a constitution. In what ways did Chile specifically try to make the Constitution making process more inclusive?
Jennifer Piscopo
Yeah, so perfect, perfect question. So, there’s these social protests. Voters want a new constitution. The Chilean president Piñera does not. The social protests continue. The situation is incredibly fraught. The capital city of Santiago and other cities in Chile are essentially paralyzed for about six to eight weeks over October and November of 2019. Finally, the leaders of the political parties left and right come together. They form an agreement to launch a constitutional process. It will start by putting the question to the voters. As I mentioned, voters choose to move forward with the process and then they have to decide, ‘How are we going to elect this constitutional assembly that voters have chosen in a referendum?’
So, it was decided that the Constitutional Assembly would be elected using the new election system that Bachelet had put in place, which is this open list proportional representation system. That was the system used to elect the 2017 Congress. But there were some diagnoses of the limits of that new election system. So, the new election system did include a gender quota of 40% for women candidates. This is completely in line with Latin America and most of the globe where there are these gender quotas in place. But that had only resulted in the election of about 22% women to Congress in 2017. So, because one of the largest coalitions in the social protests was the women’s movement and feminist movements, there was a sense that a 40% gender quota given the 2017 election results would not produce a gender balanced representation in the convention.
The current Congress in Chile had just two indigenous peoples coming to positions of congressional power through the election system. But indigenous peoples had also been incredibly important constituencies in the protest. So, they started to enter into a lot of discussion about one-time changes to the election law to design mechanisms that would ensure some broader representation from social groups like women, indigenous peoples, Afro-Chileans, Chileans with disabilities that stood to benefit from a new constitution that might have a broader interpretation of human and social rights. So, these were all really intense battles in Congress, because the parties in the Congress, the 2017 Congress, would need to agree to any of these one-time changes to the election law. For instance, there was a proposal to have reserved seats in the convention for Afro-descendant Chileans. This did not pass Congress.
What did pass the Congress was for the elections to the Constitutional Assembly there was going to be a 5% candidate quota for people with disabilities. There would be 17 reserved seats for indigenous peoples and there would be gender parity. So, gender parity for candidates, you could essentially think about that as a 50% quota for women candidates. But also that there would be a mechanism to ensure that gender parity among candidates would translate into gender parity in results. So, Chile became the first country in the world to seat a constitutional convention that had gender parity among the delegates, not just among the candidates.
jmk
I find all of this fascinating because particularly for a constitutional convention, it’s important to have a broad base of different people and perspectives. Because if you’re going to have a consensual document, you need to have people with seats at the table to get a sense of what that consensus actually looks like. You want as many different views as many different stakeholders involved. But at the same time, anytime that we change election rules, anytime that we change the way that people get included, it’s going to shape and change the electoral outcomes. In fact, the rules that were changed were designed to shape the electoral outcomes. So, tell us a little bit about how these rule changes shaped the electoral outcomes and changed what the delegate composition actually looked like.
Jennifer Piscopo
Yeah, and it did have an enormous effect. I should also add, I focused on the representation that was guaranteed or offered to members of different descriptive groups, different social groups. But another very important change was allowing independent candidates to run and allowing independent candidates to form coalitions. So, essentially you have a constitutional assembly that gets elected through popular election, but contains a record number of independents. Very few candidates representing the traditional political parties are actually elected. This is consistent with how we talked about the declining support for political parties over the past few decades in Chile. These independent candidates are new to electoral politics. The data I have with Peter Siavelis shows that most of them had never held elected office before. Most had never run for elected office.
But they’re not necessarily new to politics. They are coming out of social movements. They might be social movement leaders. Many are members of what we might say are the intelligentsia like academics, political scientists, lawyers, leaders of think tanks, leaders of really important nonprofit organizations. So, you have a lot of independents and you have women and indigenous people. This is a really different group of people and that was part of the motivation and part of why there was a constitutional process in the first place. There’s some consequences though when people come in and they don’t have traditional political parties behind them. One consequence is that even though parties are devalued in Chile and maybe are devalued currently across the globe, parties know how to organize people in a representative chamber. Parties know how to organize information. Parties have staff that provide advice.
So, one of the challenges the Constitutional Assembly faced upon being seated was they didn’t have a lot of experience with formal politics. They also didn’t have a lot of resources. The political parties weren’t providing assistance or they were providing assistance to a much smaller group of delegates who were their delegates. We mentioned that Sebastian Piñera is against the constitutional process, so he doesn’t interfere. But he doesn’t also give a lot of money either. So, these delegates are now operating on a shoestring budget. They get barely enough to pay for their living expenses in the capital of Santiago. They don’t have money to hire staff. They can’t pay consultants. They can’t pay experts and they’re not necessarily getting this from the political parties either.
So, they really have to be very, very, very creative in how they’re going do their work, which means a lot of the ways they start working doesn’t look like a regular congress. That sort of opens up the discussion and it also adds a lot new topics on the table, but it also means that a lot of the backdoor negotiations that political parties would normally do where they only bring to the chamber floor something that’s been hammered out and smoke build rooms that looks really nice is not happening. The delegates are doing this all themselves often in the chamber, often in the public eye. So, it starts to look a little bit chaotic and messy as much as it looks innovative and creative.
jmk
You’ve actually got a line in your recent paper where you wrote, “For many Chileans, wishing the sausage was made differently and seeing it made differently were not the same.” Why didn’t people embrace the convention’s unconventional approach to politics in the Chilean effort to rewrite its constitution?
Jennifer Piscopo
Well, you know, I think there’s a few things going on. So, continuing with the way I talked about the institutional constraints. As you said, politics is messy. It’s going to require a lot of argument. It’s going to require a lot of disagreement and what happens in a more traditional representative chamber is a lot of those arguments and disagreements, as I said, happen behind closed doors. When they happen in the plenary, maybe they’re staged or performative. The opposition party delivers its pre-canned opposition speech to signal to its voters that it takes a different stance, but we often don’t see the nitty gritty that’s often done by our staff members. Nobody really sees that nitty gritty back and forth. And what we know from political scientists that do research is voters actually don’t like conflict and argument as much as they think that they do.
There’s this narrative that we want to see the debate and we want to see the dialogue and we want people to reach consensus. But we even know from experimental research and political science that if we start talking about politics as involving a lot of fighting or contentiousness, people don’t like that. They want the canned, performative opposition that happens in the clean air, not the fisticuffs. So, part of it is that in the Constitutional Convention in Chile, the delegates, without the luxury of staff, are having the fisticuffs in real time. They never actually had fisticuffs, but they’re fighting and they’re arguing and they’re trying to hammer it out. It’s creating a sense of a lot of discord and a sense of a lot of chaos.
Then there’s also the fact that many of the delegates did feel that they had a mandate to actually do things differently in a way beyond the rough and tumble of politics. So, they created, for instance, a grassroots participation mechanism that would allow everyday voters to send in proposals. Now, I want to stress this is completely within the realm of constitution writing. If we look at constitution writing comparatively in the post-World War II era, in Sub-Saharan Africa and post-conflict countries, there’s always been a grassroots participation process. But the delegates, especially the ones on the left, the independents, they wanted to hear from the people.
So, they created a very low threshold for the number of signatures that it would require to get a direct petition heard in the convention, which meant then they also had to publicly listen to all sorts of silly stuff. Fifteen thousand voters sign a direct petition saying they think the rights of soccer fans should be in the new Constitution. Because of this genuine effort from delegates to include grassroots voices, they end up having to listen to quite some silly ideas. There are also delegates that feel like they need to disrupt the way that politics has normally occurred. They feel that a more left or progressive style of doing politics is part of their mandate.
So, in the paper, for instance, we talk about a woman delegate who during the discussion on healthcare reform, gives a speech topless. That’s important because she had had a double mastectomy due to breast cancer and was trying to sort of in this more disruptive feminist way make a point about women’s bodies and the mistreatment of women’s bodies in privatized healthcare. But it also meant she was topless in a formal political space, which for some voters is quite a shocking breach of decorum as much as it’s calculated to be a feminist statement.
So, you have this mix of sort of institutional constraints and then ideological motivations to doing politics differently, to opening up the black box of politics, to laying all the issues out on the table. It’s sort of what voters wanted, but then it probably looked a little messier, maybe even a little less respectful than they were thinking it would look like.
jmk
Yeah. You also indicated that just the process itself gave voters the impression that some ideas were taken more seriously than they really were where some things would be voted on, on the floor, have a portion of support, like maybe a third of the room or maybe even half of the room, but needed two thirds to be able to pass some of those proposals, so they were dead on arrival. But they would elicit enough debate that people who are observing the process really thought that this was a possibility to be included into the Constitution. So, it was easy to communicate to regular ordinary voters that people are going to take away rights or privileges or change customs that were very important to the vast majority of Chileans.
Jennifer Piscopo
Yeah, that’s exactly right. My colleague at the Universidad de Santiago de Chile, Pamela Figueroa, really explained this term and I want to credit her with it. She talked about what they were doing as democracy in real time. So, let’s think again about the institutional constraints to understand what this means. They have one year to write a new constitution. They have no staff, no party support. So, proposals are arriving all of the time. They’re coming through this citizen initiative process, through this grassroots process. They’re coming from the delegates themselves and the only decision rule that the convention has to follow that was set to it by the initial agreement to launch the constitutional process was that any text that goes into the draft constitution requires a two-thirds approval in the plenary.
So, you don’t have a lot of time You don’t have a lot of staff. Proposals are coming in from every angle. What do you do? If you had more time and you had more staff, there’d be people who would shift through those proposals, sort of make decisions, provide some kind of agenda control process, so only the really viable ones would advance to the floor. But when you don’t have that luxury, the solution became let’s just send everything to the floor and vote on it. So that thing about the soccer. There’s no person to manage the agenda flow. How are we going to know if the soccer fans go through? We’re just going to vote on it.
So, there would be these plenary sessions that would go for eight to ten hours. They could contain scores of votes and the vast majority of those votes would be no, because they would never hit those two-thirds. The convention set a rule for itself that if it hit one-third in the plenary, but not two-thirds that meant there was at least some sense of viability and then they could send it to the committee and spend some time on it, work on it, and send it back to the floor to see if they could get those two thirds.
But even often to do that initial sorting, they would have to rely on these votes. So again, that’s kind of like seeing how the sausage gets made by making the democratic decisions in real time and we mean real time, like broadcast on YouTube and tweeted out by observers. In some ways it was quite a clever way of solving a collective action problem and democracy’s all about solving collective action problem. But it was also, as you suggested, confusing to people who were watching. Why are they spending their time talking about soccer fans?
jmk
Well, even a one-third threshold to include it and discuss it in committee is an incredibly low threshold. I mean, it’s unlikely to meet two-thirds even with revision. It’s possible, but it’s unlikely. So, you’re still asking to engage in debates that large numbers of the population may still be very opposed to and afraid that some of those ideas might pass and the convention’s continuing to talk about them in committee, proposing them to the floor a second time where people think that maybe this would actually get passed and included. And for people who are opposed to the constitution, those are weapons to be able to derail the process and create fear within the public.
Jennifer Piscopo
That’s exactly what happens to some extent. Most of the silly ideas, even if they went to committee, wouldn’t necessarily come out of committee. But because there is a substantial group in Chile that’s opposed to the process – I mean, normally these traditional right parties are sort of represented by President Piñera and the major newspapers do have a very sort of right-leaning conservative bent – every sort of silliness becomes an internet meme. Every little silliness becomes a little infographic that can be shared in WhatsApp groups and Facebook groups that really then gets used to mock the convention. So, the result of this is that the convention starts to become defined by its most foolish moments, even if those are not the ones that overall characterize the work that it did.
jmk
So, the convention was very novel in a lot of ways. It included a lot of new ideas that hadn’t been included in constitutions. Obviously, anytime something is new that’s going to be controversial, but what were some of the novel ideas that were included in this draft constitution?
Jennifer Piscopo
Great. So, yeah, let’s talk about some of the substance of what they did and why it mattered. I think we can think about novel in two ways because it’s important for understanding the fate of this constitution. There are the ideas that were novel for Chile that were really not novel in the broad scheme of what countries might put into their constitution, but were perhaps very novel for a country that, as we talked about, had been very resistant to change and very conservative in its approach to economic and social rights so far. Then there were elements that were truly novel for the world.
So, what was novel for Chile? You know, the elements that did get the two thirds approval and sort of go into the text would really have set up a Scandinavian style social democracy in Chile. Broad recognition of what we call social rights, things like right to housing, right to water, right to healthcare, right to education. These are actually very standard things that we see in post-World War II constitutions, especially constitutions that came out of the third wave of democracy in the Global South, but they weren’t in Chile. So that was important. Also, novel for Chile was a broad set of rights that recognized indigenous peoples as their own nations. Not to be constituted as a separate civil state from Chile, but recognizing that indigenous peoples had their own ethnic identity.
So, the draft constitution identified Chile as pluri-national state. Again, this isn’t necessarily novel outside of Chile. Plenty of other countries with sizable minority groups, indigenous groups, or other groups grant some kind of formal recognition, even autonomy to those groups. The Chilean draft Constitution did the same thing. Things that were novel across the board include gender parity. There were 50% women represented across the convention, including in the reserve seats for indigenous peoples. So, the draft constitution really had a lot of feminist elements. The women in the convention, especially those on the center left and the left, worked very closely together on a set of principles that they wanted to see reflected in the final constitution. They were largely successful in the way that they worked together. So, there was a right to voluntary interruption of pregnancy.
To my knowledge, if the Constitution had been approved, that would’ve been the first in the world to guarantee a right to abortion. There were broad rights to sexual health education, to access to sexual health information, to protections for LGBTQIA people, for people to live under the gender identity of their choosing. Another very novel aspect in the design of the judicial system was a proposal that would have invited judges when passing decisions to take gender inequality into account. So, you could imagine when thinking about things like women’s experiences of systematic discrimination that this should account for how a judge might decide a particular case. So, those were not just novel for Chile. Those would really have been setting new standards even in a collection of contemporary constitutions that are quite progressive in the way they think about human rights and social rights.
jmk
But in the end, the Constitution failed. It only garnered 40% of the vote. Sixty percent rejected it. In the paper you write, “The reject campaign won support among every social sector in which uncertainty and distrust abounded, which turned out in the end to include nearly everyone.” Jennifer, why was it easier to consolidate opposition to the draft constitution rather than support for it?
Jennifer Piscopo
Yeah. Oh, that’s such an important question, because, of course the result is not what people thought it would be. One thing that we try to do in the Journal of Democracy article is grapple with this because we go back and we look at the public opinion polling data in 2019 and 2020 and 2021 where we showed that there was large support from everyday Chileans for the kind of constitution that the convention actually delivered. There’s large support from everyday Chileans for a constitution that would formally recognize the rights and autonomy of indigenous groups. There’s large support from everyday Chileans for a constitution that would recognize women’s rights, that would set up a state funded system of childcare, that would produce more equal labor force opportunities.
So, what happened? Right? What happens? Essentially, we try to talk about a perfect storm of factors, because I’m not sure there’s any one factor. I think they come together in this real perfect storm. The first is just time. Even going back to our earlier conversation where we talked about an oscillation between, I want a left president and now I want a right president. I want a left president. Now I want a right president. So, the constitution can’t be immune to this. The social protests that launch the process start in 2019. What happens in the early months of 2020, a global pandemic. The world shuts down.
So, now the referendum to call a Constitutional convention and then the elections for the delegates are starting to happen against the backdrop of covid 19 and economic downturn. A situation that’s producing a lot of emotional and economic anxiety among voters. The economy in Chile, as elsewhere during the pandemic, starts to not look so great. You have sort of a shifting tide. The presidential elections happen midstream during the constitutional process. What does Chile do? Well, they go from Sebastian Piñera on the right to Gabriel Boric on the left. Classic Chile, right and left, right and left.
So, Boric like other presidents before him comes in with this sense of things are really going to be better. It turns out things don’t turn around quite so fast. We know that Chile, like other countries, is starting to feel the effects of a recession. The economy is not being restored. So, Boric, like his predecessors, finds himself rapidly losing popularity. Boric being one of this new generation of leaders, whose political project is tied to the kinds of changes the Constitution would produce, finds his fate and the constitution’s become tied. So, you have shifting economic turns, you have declining approval for presidential Boric, and you have just the easiness of all of the convention’s flaws and failures and missteps to get pulled into this right-wing misinformation, disinformation scare campaign about what the convention will actually do.
So, in a circumstance where voters are uncertain, because they’re economically concerned and there is a lot of fear mongering. It becomes easier to go back to the status quo than to bet on change because the status quo now, we think voters are unhappy with the status quo, but it is a known quantity and the Constitution is an unknown quantity. And what’s fascinating about this is that politically, the Constitution actually would have changed very little. It didn’t actually undo the strong presidency model in Chile. It would have slightly constrained the power of the Senate by replacing the Senate with a new regional chamber. But that’s not much different from what we might think of in a Westminster style democracy where the upper house has constrained powers.
So, what opponents of the Constitution could do then was use the fear of social change to really tap into voters’ broader economic and social anxieties. You have claims circulating on the internet that if the Constitution passes and Chile in fact, becomes a pluri-national state that indigenous peoples can steal your home. They can exercise their land rights by stealing your home, because they’ll just claim your home was part of their ancestral lands and now, they can have it. So, this makes voters ripe for fear mongering and it’s just a perfect storm.
jmk
Now, I haven’t done a deep dive into the actual constitution. Like I haven’t read through the draft constitution and come up with my own opinion. But I’ve read a lot of people who have and people like yourself come across as very optimistic about what the Constitution could do and that comes across as very supportive of the draft constitution. But I’ve also read some reasonable stuff that was very hesitant about the Constitution. I think The Economist’s writing is one that comes to mind right away. They were very negative about the draft constitution in Chile. And I don’t necessarily think of The Economist as a publication that is fear mongering. So, were some of the criticisms about the new constitution, the draft constitution, were some of those fair and were there some legitimate concerns from people that they just legitimately would’ve disagreed and disliked this new constitution?
Jennifer Piscopo
What was fascinating about the constitution was it was very long and that actually matters. So, the convention finished its work in May of 2022, but it had until July of 2022 to officially finish. So, what the convention did from May to June was try to do what they called a harmonization. They tried to revise it. They tried to make it a little tidier and make it a little neater, because remember, they’re just passing stuff all the time. So, they got to a point in May where they said, ‘Okay, now we just need to have a revision. We need to take a 360-degree view of this document. We need to tidy it up.’
But it still ended up being a very long constitution and so it became a document that anyone depending on their particular political or ideological concerns could find something in there to like or hate. I’ll give you an example. There were broad protections in the constitution or the environment. Broad protections for indigenous people’s ability to be involved in decision making about what actually were traditional lands. You know, not my apartment in Santiago, but what actually were traditional lands and how economic interest conglomerates like mining could engage in extractive activity on those lands. But there was also a clause that recognized the right to private property. There were broad rights to things like clean water and healthcare, but then there was also a clause that committed the state to prudent fiscal spending.
So, no matter which side you’re on you can find something here to object to. If you are concerned, as many commentators were about whether the new constitution could actually protect property rights, whether it would scare off multinational international investment, you could point to those clauses around environmental protection and indigenous decision making and land use decisions. You’d say, ‘Look, we’re going to scare off the mining companies.’ But if you didn’t think that, you could point to the part of the constitution draft that said the right to private property is here in black and white.
Same thing on social spending. If you were concerned that a right to healthcare was creating an unfunded mandate that would bankrupt the state, these were some of the narratives that got circulated, you could point to those rights. If you wanted to make the counter argument, you could point to the part that said, ‘Well, here’s the clause about fiscal prudence.’ So, that makes it hard to sort of say whether there were legitimate concerns or there were not legitimate concerns, because the convention really tried to put it all together and what was actually going to have to happen was that the debate over where do we draw the line between environmental protection and private property. Where do we draw the line between a public healthcare system and fiscal responsibility?
Those were going to have to get hammered out in Congress in the secondary legislation that the current and the future congresses would have to draft to implement the legislation. So, it’s hard to answer that question of who was right to be concerned, because the Constitution was just a blueprint. It was a guiding set of principles and no one knew quite how they were going to get hammered out. Thus the uncertainty makes it easier to just prefer the status quo to the possibility of change.
jmk
Yeah, I think I’m less concerned about whether the left is right or the right is correct about the issue than I am about… I mean, people have legitimate debates. People have different interests. There’s always going to be disagreements on different issues and so a legitimate concern to me is always going to be something where a point is brought up and it’s valid. Like it’s something where we have to weigh our values which gets me to the idea of consensus within the formation of the convention. Like do you think that the convention did enough to work with right-wing groups to create that broad consensus that is typical in those constitutions that typically pass when it goes to referendum places like Tunisia and others that have drawn broad consensus from almost every different stakeholder within society? Did the convention really do enough to do that?
Jennifer Piscopo
Well, it’s fascinating to think about that question because if we think about the Tunisian case, the parties in Tunisia that would actually have a more conservative take had representation in the Tunisian Constitutional Assembly. The challenge for Chile was that at the moment of voting, Chile Vamos, which was the right-wing coalition of Sebastian Piñera, that’s his coalition that was in government at the time, had far less than a third of the convention seats and so the right in the convention didn’t actually have the ability to exercise veto power with a two-thirds majority. If any other group can get to one third, they can have a veto power. They can try to prevent a two-thirds majority.
So, the right was really short of that and so that makes it challenging to think about. What that would have looked like because the convention that Chileans elected did not give voice to that group. Now that group had a lot of other ways to work against the convention. So, while silenced in the convention, they could leverage the critique from the outside. If we think too about, as you said, legitimate concerns, part of the challenge, if you think about what I’m doing with you right now being a member of the chattering class, the people that go in the media and make their pronouncements, as the convention ended its work and the constitution went up for debate it was much easier to get a media spot with your concerns.
We saw sort of an overrepresentation of this concerned chattering class, many of whom are from the right. The media has a slight right wing bent and the voices that were trying to make a case for how the proposed new constitution, would address what voters had wanted them to address three years ago were really getting drowned out by this kind of discussion of concern. I’m an academic, right? It’s really easy to pick apart the flaws of a document. That’s more attractive to op-ed editors, to producers of media shows than it is to really just go out and seem to be unquestioningly banging the drum for the promise or the potential of something.
So, I think it also complicates this idea of did we have enough consensus? You know, where’s the distribution of voters to start with? What kind of mandate did they hand to the members of the Constitutional Assembly? Then how did that change and shift, and who gained more voice to raise a critique versus raise a praise as the process went on? But certainly, the narrative is that this just was a document at the end of the day that made no one happy. So, it was better to just turn it down.
jmk
So, how do you think history is going to remember this first attempt at a new constitution? I mean, when we look back on this like 20, 30, 40, 50, 100 years later, how do you think that we’re going to think about this whole exercise?
Jennifer Piscopo
It’s a great question, because there’s, you know, how does Chile look at it? How does the world look at it? You know, part of the motivation that Peter and I had in writing the Journal of Democracypiece was to… You know, I said the constitution’s broad enough that you can look at your own views, right? Everybody can see their own views in it. So, part of the motivation we had was to try to set the record straight a little bit about where does this constitution or where would have the Constitution sat relative to other 21st century constitutions. I think it is clear that our conclusion is it wasn’t that far off from constitutions we see in other social democracies or aspiring social democracies.
I think the narrative in Chile, of course, is that it was quite radical that it was something that might have produced a Chavez-like Venezuela or a Castro-like Cuba. I don’t know, 40 to 50 years now which one of those versions will stick? Will we look at this as the potential implications of the constitution were unclear relative to bringing about socialism relative to social democracy or would we say that they were more clear?
I think the current autopsy, you know, I will insert my own views here, has some unfortunate outcomes. I think voters right now, remember the circus of the convention over the substance of what it did. I think there is a bit of an amnesia over the mandate for change that existed in 2019 and 2020 that the Constitution delivered on, that voters had moved away from that mandate to change by the time the Constitution went for approval. So, there’s a little bit of amnesia that’s already happened. We have been part of a project where we’ve interviewed convention delegates and it’s part political science, but it’s also part oral history.
Because of the way the circus of the convention became such a source of mockery, of lowering the prestige of the delegates in the eyes of the Chilean public, the delegates have really disappeared from the public eye. Many of them on the left and the right spent 23 hours a day writing a constitution for 365 days. I mean, they really sacrificed a lot of their personal life, their family life, their professional life, and even the delegates we’ve interviewed on the right intended for the process to work. So, I do think that the sacrifice that these delegates made has sort of gotten lost. The autopsy was that the convention behaved very badly and produced a very unsatisfactory document.
jmk
Well, Jennifer, thank you so much for joining. I do want to mention the article one more time. It’s “Chile’s Constitutional Chaos” and it’s co-written with Peter Siavelis. So, thank you so much for talking to me. I mean, this is a fascinating topic. It raises real questions about what is it that you’re trying to accomplish in a constitution? How should you go about it? And Chile is such an important country for Latin America itself and really for the world. So, it’s great to be able to do a deep dive into what happened there and what the aspirations of this process were. Thank you.
Jennifer Piscopo
Thank you so much.
Key Links
“Chile’s Constitutional Chaos” in Journal of Democracy by Peter M. Siavelis and Jennifer Piscopo
Learn more about Jennifer Piscopo here
Follow Jennifer Piscopo on Twitter @jennpiscopo
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