The call for new or improved constitutions has become a fashionable and enthusiastic rallying cry for politicians, ideologues, and intellectuals throughout the twentieth and twenty-first centuries. The emergence of new states, revolutions, political upheavals, aspirations for salvation, crises, or defeated states seeking a fresh start are among the reasons that our modern world is increasingly populated with modern constitutions. The ultimate aim of this popular exercise is the creation of a Magna Carta that will rectify the wrongs of the past, paving the way for a bright new future.
The most recent endeavour in constitutional writing originates from the Latin American country of Chile. The catalyst for this effort was the widespread protests against the actions of the government of Sebastián Piñera (2018–22), particularly in relation to the increase in public transport fares and the social and economic conditions of the Chilean people. Although Piñera’s government attempted to mollify the protesters by announcing several reforms, these reforms proved insufficient in the eyes of the demonstrators and their leaders. Instead, the protesters believed that a comprehensive systemic change was the only viable solution. This transformative change was envisioned through the establishment of a new constitution, intended to replace the extensively amended one adopted during Augusto Pinochet’s regime in the 1980s, which the protesters considered to be the root cause of all evil afflicting the Chilean people.
In a national referendum, the Chilean people approved the proposal for a constitutional convention. Subsequently, through elections, they elected members to the convention tasked with producing the new founding document. The outcome was a document that resembled a Left-wing wish list, which was not surprising given the Left’s majority at the convention. However, Chilean voters rejected the document, leading to a new constitutional convention with freshly elected members. This time, the convention was largely influenced by members of José Antonio Kast’s Republican Party and a Center-Right coalition, Chile Vamos, resulting in a document that aligns more closely with their policy and doctrinal preferences. Nevertheless, this document was also recently rejected by voters. Consequently, Chile finds itself in an ongoing constitutional odyssey, compelled to adopt a new constitution but grappling with profound partisan divisions concerning the future of this project. Furthermore, the electorate that has rejected two constitutional proposals is growing weary of the entire process.
Chile’s enduring constitutional odyssey, in my view, stems from the ideology that has underpinned the entire process from the beginning—constitutional perfectionism. Constitutional perfectionism is essentially the belief that a perfect society can be created and imposed through a constitutional text as guided by a rationalist blueprint. This represents the literary expression of ideological salvationism, wherein a constitution is viewed as the vehicle through which society and individuals will be emancipated from the oppressive system to which they have been subjected.
In contrast to the multitude of modern constitutions influenced by this ideology and imposed on many states, constitutional perfectionism is not a recent phenomenon. Its origins can be traced back to Enlightenment rationalism, which we may credit with some of the progress achieved by mankind but has also given rise to ideological ideas that have left numerous scars on the world. These rationalists embraced the view of reason espoused by classical philosophers, which posits that reason is capable of understanding the order of things, as well as its modern conception that sees reason finding technical answers to crucial questions for the satisfaction of human desires and passions. From this understanding of reason, Enlightenment rationalists derived the certainty and solutions believed to address all the ills afflicting society.
In a manner similar to Enlightenment rationalists, constitutional perfectionists assume epistemological knowledge about the ills afflicting society, namely the current constitutional order. From this perceived revelation, constitutional perfectionists embrace technical solutions to emancipate the oppressed from what they see as an oppressive constitutional order. However, in contrast to Enlightenment rationalists who may believe in the redeemability of the current system if their solutions are adopted, the constitutional perfectionist holds no such hope and advocates for an entirely new constitution.
The new Magna Carta envisioned by constitutional perfectionists must incorporate several important elements. Firstly, it must be a charter devoid of some or most established constitutional practices and traditions. This is evident, for instance, in the constitutional proposal made by the Left-wing-dominated constitutional convention in Chile, where the Chilean senate was to be replaced by a weakened “chamber of regions.” The rationale for discarding the Senate is that constitutional perfectionist see this institution as representative of the oppressive system, and therefore viewed as an obstacle on the road to salvation. Paradoxically, as we shall see, constitutional perfectionists have no problem discarding longstanding practices and institutions but seek to entrench their rationalist dream beyond the possibility of future generations changing it.
Secondly, the new constitution must entrench agreed-upon rules for society, such as the rule of law, due process, and habeas corpus. Indeed, there is an argument to be made for entrenching such rules, as constitutional drafters may express a mistrust towards future generations. The rules being entrenched, however, should not be a compendium of what is considered good and true about human life and conduct. Instead, these rules should be principles that, over time and through practical wisdom, have evolved into essential guidelines for fostering civility within a society of individuals pursuing their own felicity and moral identity. Anglo-Sphere countries and their constitutions serve as notable examples of this type of entrenchment, where a balance between stakeholders and necessary safeguards for individual liberty is the norm.
However, the entrenchment that the constitutional perfectionist seeks is not of this kind; instead, it is a far more comprehensive project. The constitutional perfectionist aims to entrench their doctrinal preferences at the core of their ideological project. As I highlighted before, one of the central ideas of ideology is to abolish politics altogether. In a society of individualists, politics is seen as conflictual, counterproductive to the harmony that ideologues desire. In a similar vein, the constitutional perfectionist, by attempting to entrench their doctrinal preferences in the text, seeks to exclude from political deliberation and compromise a multitude of areas central to the ideological project. Thus, instead of a constitution merely establishing the rules of the game, it becomes the game itself.
Constitutional perfectionism appears to be influencing the Chilean constitutional process, and the perils of this ideology are evident.
The Chilean experience provides ample evidence of this entrenchment run amok. The initial constitutional proposal presented to the Chilean electorate included a multitude of articles reflecting Left-wing preferences. The proposal featured numerous positive rights, including provisions such as the stipulation that women should constitute a minimum of 50% of the workforce in state institutions, the implementation of progressive taxation, the establishment of a Chilean version of the National Health Service, and the recognition of the right to environmental and digital education. Indeed, the proposal, rather than a constitution, looked more like a manifesto for Left-wing activists.
The reader would be mistaken to believe that constitutional perfectionism is solely the domain of Left-wing ideologues. Pinochet’s regime constitution also exhibits constitutional perfectionist tendencies, as evident in the subsidiary principle that governs it. This principle, embedded in the document, implies that the state should refrain from intervening in areas where individuals or enterprise associations can effectively manage them. This limitation curtails the role of the Chilean government in the economic and social life of the nation. Notably, the recently rejected constitutional proposal by the Right-wing-dominated constitutional convention perpetuates this trend. The proposal, for instance, features ambiguous language aimed at restricting abortion, establishing rights for conscientious objection, ensuring private access to healthcare, private education, and private pensions, and creating new public security forces. Much like the earliest constitutional proposal, it essentially served as a wish list of Right-wing policy preferences.
Admirers of liberty would undoubtedly welcome the idea of having a constitution that codifies fundamental free-market policies and principles. However, as appealing as it may be, endorsing constitutional perfectionism for the sake of liberty involves embracing the hostility toward the modern West and the disposition that constructed it—individualism—a characteristic shared by all ideologies. While free-market constitutional perfectionism may be more attractive than Left-wing constitutional perfectionism, they nevertheless belong to the same destructive species.
The inherent shortcomings of this entrenchment approach, pursued by both the Left and Right, emanate from its dependence on a rationalistic framework to attain policy victories. The epistemological certainty that underlies the formulation of such frameworks entails asserting an infallible truth about political activity, which supersedes individuality. Moreover, when these policy preferences are entrenched beyond the scope of political activity, constitutional perfectionists essentially eradicate politics by excluding various policy areas from the arenas of conflict, deliberation, and compromise. Another concern is that this form of entrenchment is susceptible to failure. Embedding a myriad of positive rights or policy preferences in a constitution frequently leads to governments being unable to fulfill them and, in some instances, exacerbating the prevailing situation. Finally, policy entrenchment exposes the judicial branch to political partisanship, enticing judges to take on the roles of policymakers and arbiters of societal knowledge. Furthermore, it subjects them to judicial reviewism—an ideology that utilises courts to solidify particular policy preferences or stifle political debates in specific policy areas through the mechanism of judicial review.
Constitutional perfectionism appears to be influencing the Chilean constitutional process, and the perils of this ideology are evident. However, the solution to this odyssey, that safeguards liberty remains elusive. One potential approach could be to emulate the constitutions of Anglo-Sphere countries. The history of constitutional drafting in Latin America provides ample evidence that this approach has been adopted. Following their independence, many Latin American countries crafted Magna Cartas inspired by America’s founding document. Nevertheless, the political and constitutional instability in the history of Latin America showcases that it is easy to emulate words but difficult to imitate the practices of a civilisation and political community.
Addressing Chile’s constitutional challenges may necessitate a second approach: compromise. However, navigating this path is complicated due to deep polarisation in the country. Furthermore, for those adhering to constitutional perfectionism, compromise is deemed unacceptable, given their claim of revelatory knowledge about the oppressive system, insisting that only total change can suffice. A third solution, and possibly the one more aligned with the cause of liberty, would be crafting a new constitution that avoids constitutional perfectionism and aligns with the established practices and history of Chilean political and constitutional life. However, with constitutional perfectionists on both sides seeking to entrench their rationalist projects, this seems more like an aspiring hope than a possible reality.
Chilean voters have unequivocally rejected the pursuit of constitutional perfection on two occasions. Nevertheless, constitutional perfectionists on both sides will probably persist in their efforts. If history is any guide, there is a strong likelihood that voters will once again dismiss such ambitious visions. Ultimately, the constitutional challenges facing Chile might find resolution by maintaining the current constitution while implementing reforms through the political process. However, it is crucial to recognise that advocates of constitutional perfectionism may seek to exploit these reforms to advance their rationalist ideals. Thus, in the final analysis, the existing status quo may prove to be a more conducive ally to liberty than the legal and political fervour associated with constitutional alterations.
Ojel L. Rodriguez Burgos has a Ph.D. in international relations at the University of St. Andrews and professor of international relations at the University of the Sacred Heart in San Juan, Puerto Rico. His political commentary has appeared in The Hill, The Washington Examiner, and Forbes. Twitter: @ojelrodriguez
This essay was originally published in Law & Liberty.
