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How to rewrite a constitution
Is it possible to lay the groundwork for sweeping change while respecting continuity and consensus? Chile’s president intends to find out.
By Stephen Kinzer -- Boston Globe -- September 14, 2022
Some Americans would love our country to have a new constitution. I’m one of them. In my dreams, our new constitution would ban most guns and commit our country to the fight against climate change. But there’s also a nightmare scenario. That would be a constitution that restricts free speech and requires women to give birth in service of the state.
Should we embrace the radical idea of writing a new constitution? One country just tried it. Chile was shaken by an explosion of protests in 2019. All parties finally agreed that the way out was to design a new constitution. Delegates were elected to write it. This month they presented it to the Chilean people. In a stunning rebuke, voters rejected it.
Chile’s experience reflects the deep challenges that face any effort to rewrite a constitution. President Gabriel Boric, who had supported the proposed new draft, reacted humbly to its defeat: “I got the message.” He fired several cabinet members who were part of his radical team from student-protest days, replacing them with older and more experienced figures from the country’s traditional center-left.
Boric, who is 36, bearded, and tattooed, said he will restart the constitution-writing process. He and many Chileans hope for a second draft that is shorter, less radical, and more deeply tied to the country’s long political tradition. Their turbulent experience over these last few years is a fascinating lesson for Americans and others who yearn for a new constitution.
Chile’s process was a model of democracy in action. It began with a referendum on the question of whether the country needed a new constitution to replace the one written by a handful of generals in 1980. Seventy-eight percent voted “yes.” Then 154 delegates were elected to write the new constitution. The vote to reject their draft was lopsided: 62 percent against and just 38 percent in favor. What went wrong?
First was the way the new constitution was produced. Many of those who wrote it had been leaders of the 2019 street protests and had strong identities as feminists, socialists, eco-warriors, or Indigenous people. Some saw the constitution-writing process as an extension of their protest movement. The draft they produced drew more on currently fashionable ideas than on historical precedent.
It was also numbingly long, with 388 articles; my printout runs to 145 pages. From the moment it was unveiled, it riveted the country’s attention. A book containing the text became a best-seller. It was discussed and debated everywhere, in public and private. This was a grand civics lesson for the entire nation — a hugely positive effect of the process regardless of the outcome.
The proposed new constitution would have given Chileans a dazzling array of rights. Every Chilean would have been guaranteed not only housing and cradle-to-grave health care but also the right to participate in sports; the right to a “dignified death”; the right to clean air and “a healthy and ecologically balanced environment”; the right to “a life free of gender violence”; the right to “full digital connectivity”; the right to “enjoy sexuality fully and freely”; and the right to “relaxation, rest, and the enjoyment of free time.”
There’s plenty more. All government agencies would have had to be at least 50 percent female and commit themselves to hiring “persons of diverse gender.” Labor unions would have had “the right to participate in business decisions.” Government would have been required to promote “the country’s culinary and gastronomic culture,” ensure that schools teach “empathy and respect for animals,” and conserve “the night atmosphere and sky.”
Most controversial was the array of rights granted to Indigenous Chileans, who are 12 percent of the population. The proposed constitution opens by asserting that Chile is “made up of different nations,” which alarmed some voters. It would have granted Indigenous people “fundamental collective rights,” including the right to govern their communities and regions with “political, administrative and financial autonomy.” Critics warned that granting special privileges to any group of citizens would divide the nation rather than weave it more closely together.
“There’s no point in hiding it: This is perhaps one of the most difficult political moments I’ve had to face,” a visibly shaken President Boric said after losing the vote. “I will make every effort to shape, along with Congress, a new constitutional route that will give us a text that recognizes the lessons of this process and embodies the will of the great majority of our citizens.”
The world has been on a constitution-writing binge since the end of the Cold War in 1990. More than 100 new ones have come into effect during that period. Some have been disastrous, like the one in Bosnia-Herzegovina — mandated by outside powers — that divides the country in three and blesses ethnic separation. Among the most successful has been the one South Africa adopted in 1997. It was written by a multiparty assembly and is notable for its balance of majority rule with strong protection for minorities.
Chilean voters elected Boric this year in part because they considered his opponent too far to the right. This month they rejected a constitution that many considered too far to the left. They are seeking balance, continuity, and consensus. It’s a promising formula for preserving any democracy.
Stephen Kinzer is a senior fellow at the Watson Institute for International and Public Affairs at Brown University.