In a couple of weeks, Chileans will decide whether they want to rewrite their constitution from scratch. The Oct. 25 referendum was a significant political concession by President Sebastián Piñera after months of protests and riots last year that left an estimated $1.4 billion in damage.
But rewriting the constitution is not only a bad idea; it’s also a terrible way of trying to deliver the change many Chileans desire.
Supporters of changing the constitution point to the fact that it was written during the dictatorship of Gen. Augusto Pinochet and therefore it’s tainted with his bloody rule. The constitution was approved in 1980, with Pinochet in power. However, it has been amended by some estimates 140 times, and Pinochet’s signature has been removed. It is now signed by a former socialist president, Ricardo Lagos (2000-2006), who after the 54 reforms approved by almost the entire political class in 2005 declared that, from then onward, Chile would have a truly “democratic” constitution that would “unite all Chileans”. It’s clear that Chile’s current constitution is equally a product of Pinochet’s era and the Lagos administration.
And it is thanks to that reformed constitution that Chile has become the freest, safest and most prosperous country in Latin America. Among South American countries, it has one of the highest gross domestic product ratings per capita, one of the lowest intentional homicide rates and one of the highest degrees of social mobility. It has the highest human development indicators south of the Rio Grande.
Although activists and political figures insisted during the months of protests that inequality has increased and that access to education, health and political power remains out of the reach of most people, studies show that income inequality has declined while Chile achieved the highest social mobility among OECD nations.
The pension system is also perceived as unfair, but 70 percent of the funds available to retirees are not the product of their contribution to the system but of the profits created for them by the pension funds.
In addition to its supposedly antidemocratic character, critics of the constitution say it does not provide appropriate regulation of the economy or access to health, education, pensions and social security. But how can these Chileans explain that in all of these areas their country performs significantly better than other countries with more “progressive” constitutions?
The appropriate balancing of these rights or entitlements is what is at stake here. But is rewriting the constitution the best way to improve access and social justice? Why not go through the legislature and push for reforms in tension with the executive branch? Are the people who will write the next constitution any wiser than those who wrote the current one? How will the new constitution be any more democratic?
We think Chileans should reject the idea of rewriting the constitution. The country should stay on the path to an ever more perfect liberal democratic union. Liberal democracies are not made only by constitutions. Liberal democracy is about the tension between majority rule and anti-democratic checks. The U.S. Constitution, for example, is explicitly construed by the U.S. Supreme Court as a check on the majority rule of the executive and legislative branches. After all, the classic example is that if a majority of citizens — in a democracy — voted to commit a crime, unelected judges —within a liberal mechanism of checking the power of the majority to protect the rule of law — would stop them.
In recent years, the tensions between liberalism and democracy have been starkly felt around the world. The same tensions are playing out in Chile. There is nothing wrong with supporting the popular appeal for structural change. But in a region with one of the most convulsed constitutional histories in the world, the pretense of creating prosperity and fairness out of a blank slate has to be met with skepticism.
Before throwing away their constitution under the belief that a new one will be instrumental in solving their problems, Chileans should recognize that the country’s most successful period in terms of democratic stability and economic and social prosperity has occurred under the present, reformed constitution. If they don’t, they might find themselves regretting their decision.
Instead of overthrowing their constitution, Chileans from all political persuasions should commit again to fighting for thoughtful reforms, just as they have done successfully thus far.
Pedro Pizano is the Northwestern-McCain Public Interest Legal Fellow at the McCain Institute for International Leadership. Axel Kaiser is a scholar at the Universidad Adolfo Ibáñez in Santiago, Chile, and a senior fellow at the Atlas Network’s Center for Latin America.