Monday, September 5, 2022

Chileans Reject a Proposed New Constitution

Chile's constitution was promulgated by a right-wing dictatorship in 1980. After massive protests in 2019, which were triggered by a proposed hike in Santiago's subway fares but ended up making demands for fundamental change, the government agreed to write a new constitution and put it to the people for a vote.

They held a special election and convened an assembly of 150 people to write a new document. This was an intriguing process, because the assemby included not just politicians but leading figures in other walks of life, such as doctors, educators, a chess master and a gadfly protester who liked to dress as Pikachu. But about 2/3 were to the left, which does not really reflect the positions of Chileans and probably doomed the effort from the start.

The convention eventually came up with a book-length document that enshrined so many rights very few people in Chile ever knew what most of them were, and the voters rejected it decisively.

NY Times:

Chilean voters rejected a 170-page, 388-article proposal that would have legalized abortion, mandated universal health care, required gender parity in government, given Indigenous groups greater autonomy, empowered labor unions, strengthened regulations on mining and granted rights to nature and animals.

In total, it would have enshrined over 100 rights into Chile’s national charter, more than any other constitution in the world, including the right to housing, education, clean air, water, food, sanitation, internet access, retirement benefits, free legal advice and care “from birth to death.” . . .

The text included commitments to fight climate change and protect Chileans’ right to choose their own identity “in all its dimensions and manifestations, including sexual characteristics, gender identities and expressions.”

Which is exactly what I would expect from a roomfull of liberals. We just have trouble saying no. What committee of liberals is going to tell minority rights activists, Native rights activitists, environmentalists, indeed any kind of activists, that they have no place in the constitution and should go home? So the document grows and grows until all the pressure groups get the paragraph they want, and your document looks a lot like a phone book, and then the whole thing crashes and burns.

This is a problem with constitution writing that goes all the way back to the creation of the US version. The people gathered in Philadelphia thought their job was to create a system of government, so they focused solely on the mechanics of government and state power. But they were immediately challenged by people who thought the Constitution should enshrine, not just democracy, but the rights for which Americans had fought. Hence the first ten Amendments, which were approved by the states at the same time as the main document.

And I would say that the history of those ten Amendments shows what a difficult process this is. Most of us feel pretty good about “Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” But the Second Amendment has caused no end of trouble, and the Eighth is so vague (what is “excessive bail”?) as to be pretty much a dead letter, and the Tenth does nothing but encourage random revolutionaries to blow things up. Two are bizarrely out of date; anyone had trouble recently with the government quartering troops in private houses? And rather embarassing to have $20 dollars written into the Constitution as the threshold for a jury trial in private lawsuits. The problems have continued; the proposed Equal Rights Amendment failed because nobody could say exactly what difference it would make in practice, leaving its opponents to paint all sorts of lurid pictures.

I hate to say it, but this might be a case, and an important one, where putting ten powerful people in a secret room might work better than transparent democracy. I don't think a constutition that enshrines every good thing that people want is workable. I think a lot of people would say that only the most basic and fundamental rights should be listed, but good luck getting 150 people, anywhere in the world, to agree on what those are.

1 comment:

G. Verloren said...

The problem, to my mind, seems more like one of batch changes. Constitutions ought to be receiving small changes and updates relatively frequently, not going long periods and then suddenly facing trying to change huge numbers of things.

That would neatly address your own complaints about our constitution and it's out-of-date amendments - we hobble ourselves by refusing to allow the "sacred" constitution to be changed often enough. (The one major exception, of course, being the repealment of Prohibition, because it turns out some vices are just too powerful...)