CHILE?S CONSTITUTIONALRENEWAL: A LESSON TO BELEARNED?Marina HuntABSTRACTThis article discusses the relationship between Chile?s current crisis of representation and the majoritarian rules ingrainedin Pinochet?s 1980 constitution. Chileans voted in October 2020 to replace this constitution. It had become increasinglyregarded as morally illegitimate for its roots in the dictatorship and structurally flawed for hindering the democraticprocess by which the will of Chileans translated into policy. This article argues that a new Chilean constitution approvedin a plebiscite may be the best way to address the country?s crisis of representation and allow it to return to a tradition ofpolitical pluralism.Brown Undergraduate Law Review28
When Chile re-entered democracy in 1990, it was withinthe framework of General Augusto Pinochet?s 1980constitution. This document guided Chile through 30 yearsof relative economic and social stability, but protestscalling for institutional reform have seen the emergence ofa constitutional moment among Chilean citizens. Thesedemands culminated in an October 2020 referendum inwhich 78.12 percent of voters opted for a new constitutionto be drafted by a board of elected representatives. 1 Thelegitimacy of the 1980 document was challenged by manyfor its origins with the dictatorship. Beyond the moralillegitimacy of the constitution, however, lies a deeper,more structural problem. The majoritarian rules writteninto the text of the 1980 constitution limit the potential forconstitutional reform by granting veto powers to aminority of right-wing legislators, making it difficult toextend the social, economic, cultural, and collective rightsthat many Chileans have demanded. The constitution isthus at the epicenter of Chile?s crisis of representation,denying Chileans a fully democratic process by whichtheir will can be translated into government policies. Whilea new constitution carries the potential of new problems oflegitimacy, the Chilean example illuminates how aconstitution ingrained with majoritarian rules may form aninsuperable barrier to truly representative democracy.This paper will begin with an overview of Chile?s recentconstitutional history. The second section looks in moredetail at criticisms Chilean citizens have raised over the1980 document and discusses the ways in which themajoritarian rules and neoliberal principles written into the1980 constitution inhibit the possibility of policy reform tothe satisfaction of Chilean citizens. The third sectionChile?s Constitutional Renewal: A Lesson to be Learned?considers the potential challenges introduced by an entirelynew constitution. In examining these factors, this paperwill conclude that constitutional renewal is necessary inthe Chilean case and should be considered in statesexperiencing similar crises of representation.A Brief History of Pinochet?s 1980 ConstitutionOn September 11, 1973, the heads of the Chilean Army,Navy, Air Force, and national police formed a militaryjunta and led a coup to overthrow Chile?sdemocratically-elected president, Salvadore Allende. 2Days after the coup, the junta appointed a commission tobegin crafting a new constitution that would legitimizemilitary rule through a series of ?transitional? articles to beapplied during the period of Pinochet?s rule, and?permanent? articles intended to create a long-term?protected? democracy. 3 The permanent articlesestablished an ongoing tutelary role for the military,placed restrictions on basic democratic and human rightsto a degree that would ?inhibit effective politicalparticipation,? established checks on the democraticprinciples of separation of powers and popular sovereignty,and installed barriers to constitutional reform intended toensure the permanence of the principles of the military?srevolution. 4 This ?protected? formulation of democracygave the executive the power to ?dissolve the lower houseof the national Congress and assume sweeping emergencypowers,? and formed a system that privileged the voices ofexperts. 5 In all, the constitution established a foundationfor political institutions that are rhetorically cloaked indemocratic principles but that are authoritarian at theircore.1. ?Celebrations in Chile as Voters Back Rewriting Constitution,? Al Jazeera, October 26, 2020, https://www.aljazeera.com/news/2020/10/26/celebrations-in-chile-as-voters-back-rewriting-constitution.2. "Constitutional History of Chile," ConstitutionNet, International IDEA, accessed November 10, 2020, http://constitutionnet.org/country/constitutional-history-chile.3. Ibid.4. Mark Ensalaco, "In with the New, Out with the Old? The Democratizing Impact of Constitutional Reform in Chile," Journal of Latin AmericanStudies 26, no. 2 (1994): 413.5. Ibid., 411.6. Ibid., 410.Brown Undergraduate Law Review29
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