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Why it’s so hard to rewrite a country’s constitution

People who supported the new constitution draft demonstrate in demand of a new constitutional process, a day after voters rejected the draft in a referendum, at Plaza Italia in Santiago, on September 5, 2022. | Javier Torres/AFP via Getty Images

Why Chile’s attempt to rewrite its constitution failed, and what US reformers can learn from it.

On September 4, 13 million Chileans went to the polls not to elect political leaders and government officials, but to decide through a national referendum whether they would adopt a new proposed constitution.

The proposal, written by a 155-member constituent assembly, was championed by recently elected President Gabriel Boric and hailed as Latin America’s most progressive constitution, encoding protections for abortion, universal health care, Indigenous rights, gender parity in government, and the environment.

But a sizable 62 percent of Chileans rejected the text.

What makes the result so remarkable is that just two years earlier, when Chile put the question of whether to embark on the process of rewriting the constitution up for a vote, an impressive 78 percent of Chileans said yes. The process was a path forward out of Chile’s 2019 estallido social (or social explosion), when a 4-cent hike on public transportation fares by the government galvanized people to take to the streets and prompted calls to mend the country’s rampant economic inequality by breaking from the free-market neoliberal economics codified in its 1980 constitution. (Economists have long praised the country’s stable prosperity as a “miracle.”)

The early enthusiasm for reform prompted constitutional scholars and progressive activists all over the world to watch the process closely and try to derive lessons for their own political systems. The effort was charged with symbolic meaning as well: Because the new constitution would have replaced one inherited from the far-right military dictatorship of Augusto Pinochet, it represented a way to move on from a brutal period in Chile’s history.

But sometime between October 2020 and September 2022, the effort to amend Chile’s social contract unraveled. According to official figures from Chile’s Servicio Electoral, the “approval” camp won in only eight of 346 municipalities, and even more liberal urban centers like Santiago rejected the text by 55 percent of the vote. In the voting district with the largest Indigenous population — the militarized Araucanía region — almost three-fourths rejected the reform, despite the proposed constitution’s promise of new protections for Indigenous people.

Many American constitutional scholars have met the results with shock and a dose of disappointment. “This is certainly a big setback,” said Robert L. Tsai, a constitutional law professor at Boston University School of Law.

But Camila Vergara, a Chilean political theorist and legal scholar at the University of Cambridge, said that the outcome was not completely unexpected. The referendum, she said, was marred by a conservative disinformation campaign that lured centrists to the “Reject” camp as well as by a process that shut out everyday citizens from having meaningful influence over the revision. The rejecters’ victory was driven by conservatism, but even for some progressives on the ground, “they were going to reject [the proposed revision] because they saw it as legitimation of an elitist project,” Vergara said.

The failure has ramifications beyond Chilean politics. In recent years in the United States, proposals to update the 235-year-old US Constitution have cropped up with remarkable frequency in mainstream discourse — a sign of the mounting concern over the American system’s growing unsuitability for our polarized era.

In 2020, the Atlantic fielded proposals from libertarians, conservatives, and progressives to amend the US Constitution. In August 2021, the New York Times launched a series on proposed constitutional amendments titled “We the People.” The Boston Globe followed suit that December. Democracy: A Journal of Ideas organized a symposium on crafting a “Democracy Constitution” (in which Tsai participated). And in July, Rep. Jodey Arrington (R-TX) introduced legislation that would kick-start the process for a formal constitutional convention should Republicans retake Congress.

But while conversations about the US Constitution focus mostly on the legal paths to reform and their many roadblocks, Chile’s referendum shows just how politically difficult it can be to amend a country’s guiding document. Despite significant differences between the two countries, Chile demonstrates that would-be American constitutional drafters would run into at least three obstacles that they would do well to prepare for.

A referendum on the president and the process, not the text

One explanation for the new constitution’s poor showing was that the referendum wasn’t about the constitution at all but the president in power. In the months since his election, Boric has seen his approval shrink — which may well have doomed the constitution he promoted.

In the US, elections that take place in the middle of a president’s term tend to become a referendum on the performance of the ruling party. It is close to an iron law of US politics that the incumbent president’s party loses seats during the midterms; this has been the case in all but two midterm elections since World War II (in 1998, when Republicans were seen as exceeding their mandate in impeaching President Bill Clinton, and in 2002, when President George Bush was riding a wave of popularity after the 9/11 attacks).

While studies offer many reasons for why voters switch parties in the midterms, one especially compelling explanation is that voters choose to change parties in the midterms as a “presidential penalty,” or a check on the incumbent’s performance.

Many in Chile believe the constitutional referendum, which came only six months after the new president was inaugurated, became an evaluation of the young administration’s performance. As some reports noted, the 38 percent of voters who voted in favor of the new constitution matched Boric’s 38 percent approval rating.

Vergara points out that many progressive voters were dissatisfied with Boric’s policies — such as reduced pandemic-era welfare benefits — but they also disagreed with the constitutional process itself, namely the pacts he had brokered with the right to see the referendum through, as well as the overrepresentation of an elite expert class in the drafting process. But conservatives and centrists also had a strong showing for the Reject camp, partly because of the country’s new mandate making voting obligatory.

In Vergara’s view, the outcome only affirmed that Boric has been unable to expand his constituency since taking office. One antidote, should Chile’s reformers want to try again, would be a more representative process, one in which regular citizens have binding drafting authority and can provide more than just recommendations, she told me.

But the broader theory for the vote’s failure — that it ended up being a referendum on an unpopular president and political system — may be harder to take universal lessons from. “Today, all political parties and institutions in Chile have less than a 20 percent approval rating,” Vergara said. “So this is basically an institutional crisis, and people voted in accordance with this crisis.”

Prepare to fight back against disinformation

A problem that has been especially salient for democracies in recent years — the United States included — has been the proliferation of disinformation on a wide scale, thanks to social media. The same dynamics we’ve seen in other elections played out in Chile this time around.

On social media, claims that the constitution would have permitted “late-term abortions” on demand, the secession of Indigenous communities from the body politic, and the expropriation of private property were prevalent. None of these claims were true, yet they spread like wildfire.

Just two days before the referendum, five Democratic members of the US Congress sent a letter to the leadership of Meta, TikTok, and Twitter, expressing concern that “viral fake stories and lies have correlated closely with a shift in polls” and asking the platforms to take swift action.

But disinformation knows no national flags. “This is a reality that all governments face nowadays, and that’s because disinformation permeates all corners of the internet,” said Nora Benavidez, senior counsel and director of digital justice and civil rights at the nonprofit Free Press.

One problem, she said, is that social media platforms have done a historically poor job of stemming the tide of Spanish-language disinformation. “Part of what we have to assess is the way that the social media platforms are actually unevenly distributing content, and thus, allowing non-English lies to linger longer than in English.”

Social media platforms have had an at-best imperfect approach to counteracting English-language disinformation in recent years. But American constitutional reformers can expect an even more uphill battle in getting their message on the benefits of a new social contract to Spanish-speaking voters, whose electoral power is on the rise.

Facing up to a country’s history can complicate politics

While the Chilean proposal promised to greatly expand substantive rights (such as a human right to water, the right to be free from racial discrimination, and a fundamental right to housing), part of its political momentum was that Chileans saw an opportunity to move on from the violent history of Pinochet’s regime.

When the results of the referendum were announced, Colombia’s leftist president Gustavo Petro simply tweeted: “Revivió Pinochet,” or “Pinochet has come back to life.”

One can expect a similar dynamic if US reformers embark on a similar project. After the popular uprisings in the US in 2020 in response to the murder of George Floyd, some believed that the United States could not reckon with racism if its founding text still contained clauses that dehumanized enslaved people and sanctioned slavery as punishment for a crime.

William Aceves, a dean at California Western School of Law, declared in an essay for the University of Pennsylvania Law Review that “ours is a racist constitution.” He argued that until the country excised vestiges of slavery like the Three-Fifths and Fugitive Slave Clauses, it could not move on from its history of racial violence. In an interview with me, Aceves wondered: “Why are we so quick to celebrate a document that by its terms, in black and white, incorporates racist concepts?”

Even before 2020, antiracism scholar Ibram X. Kendi proposed an amendment that would establish and permanently fund a Department of Anti-racism that would be tasked with monitoring and preclearing all local, state, and federal public policies to ensure they wouldn’t lead to racial inequality.

One could see a similar dynamic unfold when the new Chilean constitution was being written. The constitution there, adopted in 1980, is a holdover from the brutal military dictatorship of Augusto Pinochet, who rose to power after a US-backed coup d’état. His regime oversaw the torture of tens of thousands of Chileans and the execution or forced disappearance of thousands of political prisoners, a violent period that has remained etched into the national memory.

Pro-reform activists certainly viewed the new constitution as a symbolic turning of the page from a brutal era. But while that impulse seemed enough to animate the movement to put a new constitution on the ballot, it dissipated in the face of the actual document itself, a lengthy, 388-article constitution that made the symbolic real — and consequently lost support.

Last Sunday, as he reflected on the 49th anniversary of the coup that brought Pinochet to power, Boric noted that although his camp had suffered a defeat at the polls, it had been a “democratic defeat” and did not lead to a country taking up arms and violence.

But Vergara says the defeat came about in part because the “Reject” camp was careful not to rely exclusively on right-wing politicians to get their message to people. “The strategy was to disassociate ‘Reject’ from Pinochet, and they were very effective,” she said.

For now, Boric is going back to the drawing board, looking for an opening to try again with a new constitutional text. After the vote, he immediately reshuffled his cabinet and called for a dialogue with the country’s conservatives, who are now bargaining from a position of strength. He has been careful to remind his constituents in public remarks that voters disagreed with the actual text, not the larger impetus for change they voiced in 2022.

Some US observers are also keeping the hope alive. Julie Suk, a professor at Fordham Law School who studies gender violence and women’s rights, and a participant in the “Democracy Constitution” project, put it this way: The proposal “doesn’t become law today, but I think there are a lot of very interesting and innovative provisions in it that will reset the baselines from which the Chileans, and even people around the world, debate about what a constitution can do.”

But as Chile’s attempt shows, remaking your country’s foundational document is a herculean task, even with the wind behind the cause of reform.

Jesús Rodríguez is a writer and lawyer in Washington, DC, and the publisher of Alienhood, a newsletter on law and illegality.

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