Constituent Process and Constituent Power

Chile’s constituent process is well underway. Last month, on 16 and 17 May 2021, the election for the 155 members of the Constitutional Convention, the organ responsible for drafting a new constitution, was held. Since then, however, the rules that govern the constituent process have become contested. 34 of the elected members of the Convention issued a declaration on 8 June 2021, claiming that the constituent organ has sovereign character and is not bound by the current constitutional order which came into force under Pinochet’s dictatorship. Such claims, I believe, are typical for operationalizations of the notion of ‘constituent power’. Yet, in contrast to their goal – a strict realization of popular sovereignty – I argue that those claims can achieve the opposite of what they are promising, leading to a closure of political space for the people. They should therefore be rejected.

The Hopes and the Limits

After a series of uprisings shook the country in late 2019, the majority of political parties with parliamentary representation drafted and signed the “Agreement for Social Peace and a New Constitution” (“Acuerdo por la Paz Social y la Nueva Constitución”), which institutionally channelled the protests towards a constituent process. The directives in this Agreement were materialized through an amendment to the current constitution which set the route for drafting the new constitution by creating the Constituent Convention, defining how its members were to be nominated, and establishing a procedure to produce a new constitutional text.

The symbolism that goes along with repealing the current constitution, the cornerstone of the social and economic regime put in place during the dictatorship, is powerful. It is partly that symbolism and partly the hope of redefining the conditions of existence of a community living in deep, structural inequality, characterized by the lack of opportunities for most of its population, that has put the country in a political state of exception.

These already high hopes were further fuelled after last month’s election. Forces representing different shades of the left dominated the election to the Constitutional Convention, leaving the right-wing forces well under the threshold of one third of the elected members, which was required for a veto position.

Understandably under these circumstances, the focus has shifted from the internal political dynamic within the Constituent Convention to the external limits imposed by the current constitution. Substantive limits contained in Art. 135 have gained particular relevance. They state that the Convention cannot exercise any power not explicitly assigned to it and expressly denies its sovereign character. Furthermore, the republican character of Chile, its democratic regime, the finality of judicial decisions, and international treaties ratified and currently in force must be respected.

Probably fearing that these limitations might restrict the transformative potential of the constituent process, 34 elected members of the Convention (roughly one fifth of the total) recently issued a declaration. In their words, the Convention is an expression of popular sovereignty, embodies the original constituent power and is thus neither bound by the Agreement for Peace nor by “the country’s entire institutional framework” (“toda la institutionalidad de nuestro país”).

The Notion of Constituent Power

The conceptual basis on which this highly problematic declaration rests is the notion of constituent power (of the people). Since Emmanuel-Joseph Sieyès, it has expressed the basic idea that the people, a political community, are fundamentally entitled to autonomously organize themselves through a constitution, in what Christoph Möllers calls the “theoretical utopia of democratic self-determination”. If exercise of political power is justified by its attribution to the people, then a constitution, as an act that implies such an exercise, can only be considered legitimate if it can be traced back to the people and their authority. Furthermore, the constitution sets a framework for future exercises of political power and its amendment typically has higher requirements than for ordinary laws. Its legitimacy, therefore, is generally considered to be subject to a particularly high standard.

Yet, as the case of Chile shows, the operationalization of this simple idea is often challenging. Determining the status of both the legal rules that serve as a bridge between the old and the new constitutional systems, and of the organ called upon to draft the constitution, is a complex endeavour of legal and constitutional theory. As part of the current institutional system, the legal basis of the constituent process is, of course, valid. The core issue, however, should be conceived as one of political legitimacy: The conceptual force of the notion of constituent power paradigmatically locates the conditions of justification outside of the current institutional system; a new constitution is nothing else than the path towards this new locus of legitimacy.

Chile: the Constituted and the Constituent

In the Chilean case, the legitimacy of the legal foundation for drafting a new constitution appears particularly troubling – at least at first glance: it structurally connects the old with the new constitution, and in that sense, Pinochet with the people. Indeed, the 34 elected members of the Constituent Convention have exploited this legitimacy problem by issuing the declaration, plunging Chile’s constituent process into an apparent paradox. Conceptually, the notion of constituent power satisfies the high requirements for legitimacy of a constituent organ by securing an exceptional, enhanced participation of the people in the making of a new constitution. Under these circumstances, if the constituent organ is acting on direct behalf of the people, or even is to be considered the people themselves, then it is unclear how a constitution, and particularly one drafted under a dictatorship, can claim authority to limit the constituent function. Yet, as convincing as this notion of constituent power might sound in theory, as dangerous is its implementation into political practice. Dismissing the rules and procedures under which the Constitutional Convention was elected and, what is more, declaring itself sovereign, as the 34 elected members did, is deeply problematic. It means turning the back on the institutional mechanisms that allow the people to articulate themselves and reach decisions in the first place, and implies, in that sense, their replacement. It should be emphasized that “the people” are, in fact, a multitude of individuals with different (and constantly changing!) preferences and interests. Delegitimizing the institutional structures through which those different interests and preferences can manifest themselves institutionally under strict conditions of equality is to delegitimize the dynamic possibility of a minority becoming a majority. In that sense, the declaration actually achieves the exact opposite of what it expressly intended, as it does not open the door for the people to play the main role in the constituent process but closes it.

This problematic dimension of the declaration is furthermore confirmed once one considers that the constitutional text produced by the Constitutional Convention will still need to be voted upon and approved in a plebiscite. Casting doubt on the procedure designed for the new constitution means, in this context, nothing else than undermining the people’s position as the sole and final deciding instance on the new constitution.

It thus seems that the success of the Chilean constituent endeavour will largely depend on accepting that the constituent political action is not that different from political action in constituted contexts. Legal rules, even under a regime that has never enjoyed a fully legitimate status, serve the pivotal function of guaranteeing the openness of the political space for different, even conflicting manifestations of “the people”. Maintaining the legitimizing force of the people as a dynamic political category requires conscience about the fact that the claim to act on its behalf, particularly in constituting contexts, always comes too soon, as Hans Lindahl has pointed out. It is furthermore critical to understand that the impossibility to fix the identity of the people is a condition of its existence as an effective political subject. Almost fifty years ago, in one of Chile’s darkest hours, the institutional space of and for the people was closed by force. Keeping it open should be one of the main goals of the constituent process and the new constitution.