∞ “Reflections on the Failed Chilean Constitutional Convention” – Max Woods, October 2022
Chile has rejected a proposed constitution that reflected the demands of anti-neoliberal, feminist, decolonial, and environmentalist social movements of the past decades. Where do we go from here?
Maxwell Woods is an Assistant Professor of Literature at Universidad Adolfo Ibáñez in Viña del Mar, Chile. Woods’s book, On the Chilean Social Explosion, exploring the 2019-2020 nationwide protests in Chile was published by Routledge in 2022.
In September 2022, Chilean voters chose to reject a drafted new constitution in favor of the already existing constitution written in 1980 under the military dictatorship of Augusto Pinochet. The immediate question in the wake of the vote was simple: Why did it fail? It was a project whose initial foundations had major grassroots support in Chile, so why was the final product of the constitutional convention rejected?
The Chilean Constitution, New and Old
As has been widely discussed, the 1980 constitution supports a neoliberal political-economic model. For instance, Article 19, no. 24 guarantees privatized rights over water, a guiding framework later embodied in the 1981 Water Code in which, “the rights of use of [waters] are granted to particulars.” As Alex Loftus and Jessica Budds (2016) note in their discussion of “Neoliberalizing Water,” this means that the Chilean government cannot regulate water use but rather only administers its use among private water-rights owners. It should therefore come as no surprise that Chile is currently suffering under a water crisis due to the diversion of water to extractive industries such as mining and industrial agriculture.
As a result of the 1980 constitution, most attempts to struggle against the neoliberal structuring of the country have come to be fruitless. Indeed, one of the central architects of the 1980 constitution, Jaime Guzmán, described the goal of the constitution in the following manner, “The Constitution must ensure that if [our] adversaries come to rule, they are constrained to follow an action not so different from what one would yearn for, [so that] the range of [available alternatives become] sufficiently reduced” (cited and translated in Gargarella 2022). To reform the effects of neoliberalism, it would be necessary to transform the constitution.
One hypothesis explaining the failure to approve the new constitution is that many wanted to maintain the 1980 constitution. Against this hypothesis was the basic fact that the referendum held in October 2020 to approve drafting a new constitution received overwhelming support from the citizenry, with “approval” of drafting a new constitution winning nearly 80% of the vote. Furthermore, the constitutional convention was a consequence of politicians responding to massive grassroots protests in 2019. During these protests, colloquially called the “social explosion” [estallido social], Chile’s neoliberal political-economic model was frequently critiqued, with one common slogan during the protests being, “The neoliberal model was born and will die in Chile.” Drafting a new constitution was, in some sense, a response to grassroots opposition to the neoliberalism of the 1980 constitution.
Moreover, during the social explosion activists called for a variety of other reforms: the feminist right to freedom from sexual abuse, the Indigenous right to communal autonomy, the right to water, the end to environmental degradation, and so on. Many saw the drafting of a new constitution as a way to accomplish these changes. As a result, the new constitution contained a series of demands that had emerged from grassroots social movements during the previous decades: feminist demands for bodily autonomy, including the right to abortion; recognition of the rights of non-human nature; the institutionalized recognition of Indigenous autonomy; the right to education and dignified housing; and so on. For example:
- The development of an ecological consciousness in Article 8, “The people are interdependent with nature and form with her an inseparable ensamble. The State recognizes and promotes good living [el buen vivir] as a relation of harmonious equilibrium between people, nature, and the organization of society.”
- Gender and sexual equality in Article 6, “The State promotes a society in which women, men, sexual and gender diversities and dissidents participate in conditions of substantive equality, recognizing that their effective representation is a principle and minimal condition for the full and substantive exercise of democracy and citizenship.”
- The recognition of Indigenous communal existence in Article 5, “The Mapuche, Aymara, Rapanui, Lickanantay, Quechua, Colla, Diaguita, Chango, Kawésqar, Yagán, Selk’nam and others are pre-existing Indigenous peoples and nations that can be recognized in the form that the law establishes.”
These are only some of the many examples found throughout the constitution. In short, the new constitution became a manifestation of a diverse set of grassroots social movements.
Given the support for both the protests during the social explosion and the first referendum that approved drafting a new constitution, it was widely expected that the new constitution would easily win the day. Watching news media in the United States, the approval of the new constitution seemed to be a given. For instance in a 19 May 2022 story in Democracy Now!, “An End to Neoliberalism? How Chile Drafted New Constitution to Rewrite Pinochet-Era Laws,” it is claimed that, “Chile has finalized a draft of its first-ever democratically written constitution to replace the one created under the U.S.-backed neoliberal dictator Augusto Pinochet. The new constitution is expected to enshrine a wide range of human rights and social programs, including free universal access to healthcare, higher education, reproductive rights, as well as more robust environmental safeguards and policies to promote gender and racial equity.” It is only later mentioned that support for the new constitution was low (40% at that time), and when the guest, Pablo Abufom, addresses the issue he dismisses the polling data.
In the end, the polls were correct and the constitution was decisively defeated, with approval of the new constitution only receiving 38% of the vote. To the contrary of the perception by many outside Chile, this was largely expected within the country. For instance, politicians had already started preparing for what would happen if the new constitution were rejected. Indeed, the rejection of the new constitution catalyzed a troubling question given that the first referendum had determined that the vast majority of Chilean citizens desired a new constitution: How does one continue the constitutional writing process when the drafted constitution was rejected?
Yet this concrete political question sidesteps another, in my estimation, more profound issue: Why was the new constitution rejected? Given the vast support both for the protests during the social explosion as well as the overwhelming victory of the first referendum to write a new constitution, it seemed destined that the new constitution would be ushered in without much resistance. Its defeat, then, requires an honest look at the missteps along the way.
Who is the Collective Agent of the Twenty-First Century?
On the one hand, the greatest support to reject the new constitution unsurprisingly came from the upper classes of Chile. On the other hand, even the popular classes of Chile in large part voted against the new constitution. The more precise question is therefore: Why did the social classes supposedly represented in the drafted constitution oppose it?
Already on 8 September 2022, the investigative journalist group, CIPER, published the results of 120 interviews with people from Chile’s popular classes who voted against the new constitution. The results primarily emphasized the effect of fake news: many people identified elements of the new constitution that they opposed that, quite simply, were not in the drafted constitution. The results, however, drew criticism from both the right and the left not only in terms of its results but additionally in terms of its methodology (Leal 2022). Indeed, CIPER subsequently had to clarify that they are unfamiliar with “the methods of Social Sciences and have no pretensions of being statistically significant, as is stated clearly in the opening and first paragraphs of the article” (Ramírez 2022).
That said, the interviews do reveal other tendencies. Despite support of many elements of the drafted constitution, many often rejected it due to the presence of one particular element, most frequently the right to abortion and the institutionalization of Indigenous rights in the recognition of plurinationality. This speaks to an often tacit assumption within many social movements: people will vote because they support a particular element (for instance, the desire to reform the neoliberal model and develop a social safety net), and will accept or ignore other elements that either do not concern them or that they may oppose (the right to abortion, plurinationality, and so on). The CIPER interviews perhaps recommend the opposite (and I would like to insist on this being a hypothesis due to the already mentioned problems in CIPER’s methods): instead of people supporting the constitution because there was a specific element that they liked, people rejected the constitution because there was one specific element that they resented.
What this speaks towards, then, is the necessity to reconsider the links and intersections between social movements and struggles. What is needed is to imagine how to draw together the distinct interests represented in different social movements, since early data seems to recommend that this failed to materialize during the debates over the new constitution. Indeed, as I argue in my book on the 2019 protests, On the Chilean Social Explosion, this failed to materialize even during the social explosion: it was unclear how the feminist, decolonial, anti-neoliberal, and environmentalist threads of the protests came together.
This is, of course, highly preliminary. Nonetheless, what without a doubt remains is a grassroots discontent over the current social order within Chile combined with a lack of any clear paradigm shift that affirmatively articulates that discontent. The failure of Chile’s constitutional convention, then, is not only a defeat with regards to creating a more equitable world, but an event that insists on a challenging question: What is the political articulation that gives affirmative unified voice to the feminist, decolonial, anti-neoliberal, and environmentalist social movements of the past decades?
 This is a key element that I do not have space to discuss in this article. The constitutional convention was an invention of politicians, not the activists who, for the most part, wanted a constitutional assembly formed by local grassroots assemblies. For many, the constitutional convention was a means to strip the social explosion of power by re-locating political debates within the State.
Equipo CIPER. “120 residentes de 12 comunas populares de la Región Metropolitana explican por qué votaron Rechazo.” CIPER, 8 September 2022. https://www.ciperchile.cl/2022/09/07/120-residentes-de-12-comunas-populares-de-la-region-metropolitana-explican-por-que-votaron-rechazo/
Equipo CIPER. “Respuesta de CIPER a la columna de Francisco Covarrubias difundida por El Mercurio.” CIPER, 10 September 2022. https://www.ciperchile.cl/2022/09/10/respuesta-de-ciper-a-la-columna-de-francisco-covarrubias-difundida-por-el-mercurio/
Gargarella, Roberto. “Restoring the Validity of Law in Democratic Societies.” VerfBlog, 1 September 2022. https://verfassungsblog.de/restoring-the-validity-of-law-in-democratic-societies/
Goodman, Amy and Pablo Abufom. “An End to Neoliberalism? How Chile Drafted New Constitution to Rewrite Pinochet-Era Laws.” Democracy Now!, 19 May 2022. https://www.democracynow.org/2022/5/19/chile_drafts_new_constitution_movement_victory
Leal, Christian. “Mayol critica polémico artículo de CIPER que atribuye parte de victoria del Rechazo a fake news.” BioBioChile, 11 September 2022. https://www.biobiochile.cl/noticias/nacional/chile/2022/09/11/mayol-critica-polemico-articulo-de-ciper-que-atribuye-parte-de-victoria-del-rechazo-a-fake-news.shtml
Loftus, A., Budds, J. “Neoliberalizing Water.” In: Springer, S., Birch, K., MacLeavy, J. (eds.), The Handbook of Neoliberalism. London: Routledge, 2016.
Woods, Maxwell. On the Chilean Social Explosion. New York: Routledge 2022.