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Legitimacy crisis and the

constitutional problem in Chile: A
legacy of authoritarianism.
Constellations 24(3):47...
Claudia Heiss

Constellations

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‘His advant age over me is t hat t his Const it ut ion –whet her I like it or not —is ruling.’ T he Role of…
Sergio Verdugo

Polit ical part icipat ion and const it ut ion-making: t he case of Chile
Claudia Heiss

You Win Some, You Lose Some: Const it ut ional Reforms in Chile's Transit ion t o Democracy
Claudia Heiss
DOI: 10.1111/1467-8675.12309

ORIGINAL ARTICLE

Legitimacy crisis and the constitutional problem

in Chile: A legacy of authoritarianism
Claudia Heiss

Instituto de Asuntos Públicos, Universidad de Chile, Santiago, Chile

Correspondence
Claudia Heiss, Instituto de Asuntos Públicos, Universidad de Chile, Santiago, Chile.
Email: cheiss@iap.uchile.cl
Funding information
Research funding provided by Center for Social Conflict and Cohesion Studies (COES), CONICYT FONDAP 15130009, and FONDECYT
Iniciación 11121134, CONICYT.

1 INTRODUCTION

Three decades after the peak of academic debates on the transition to democracy in Latin America, political science lit-
erature has turned to the study of democratic consolidation and the quality of democracy (Daucé & Peruzzotti, 2010).
The cultural, political and institutional legacies of authoritarianism played an important role in explaining the emer-
gence of delegative models of democracy in the region (O'Donnell, 1994). These models were capable of eroding liberal
features, understood as respect for institutional procedures, checks and balances and the rule of law – mechanisms
of horizontal accountability – in the name of a vertical, majoritarian authority. In this context, it would be mistaken
to consider Chile immune to this threat, particularly in view of the increasing social disaffection with institutions. The
country shows a “frozen” political structure: parties and politicians are roughly the same as in the pre-1973 military
coup period. But political apathy and electoral abstention have grown exponentially, leading to a party system increas-
ingly detached from its social roots and prone to anti-political, populist temptations.
The problem facing Chilean democracy today is not, however, an excess of majoritarianism to the detriment of insti-
tutions, but its opposite: the maintenance of dictatorship-tailored institutional dykes that make the political system
immune to the will of the majority in certain areas. The 1980 Constitution is an obstacle to the consolidation and deep-
ening of democracy in Chile and the current crisis of representation is deeply linked to its unresolved constitutional
problem. In what follows, I first describe the main elements of the crisis of legitimacy in Chile as it relates to the demo-
cratic deficits caused by the 1980 Constitution. I argue that, by making the political process irrelevant, the constitu-
tion is a key factor in the disaffection towards institutions, politics and politicians. The second section summarizes and
evaluates the proposal for constitutional change presented in 2015 by President Michelle Bachelet. The third section
discusses the revolutionary project of the military dictatorship and the reformist ways of the transition, with a focus
on the shortcomings of the post-transitional “democracy of agreements”. Finally, the dilemmas of legal break versus
continuity in constitutional change are addressed.

2 DEMOCRATIC DEFICIT AND “PROTECTED DEMOCRACY”

The nature of the Chilean transition from military dictatorship led to a form of incomplete, flawed democracy,
while allowing at the same time the democratization of certain relevant aspects of political and social life. Over the

Constellations. 2017;24:470–479. wileyonlinelibrary.com/journal/cons c 2017 John Wiley & Sons Ltd.

 470
HEISS 471

last 25 years, numerous constitutional reforms sharply reduced the political role of the military and gave elected,
democratic authorities important oversight over the armed forces (Heiss & Navia, 2007).1 The electoral binomial sys-
tem, a rule designed to radically alter the political-party configuration and arguably the most important institutional
enclave of the transformative project of the dictatorship, was finally replaced by a system of proportional representa-
tion in 2015. Its practical effects remain to be seen.
Institutional structures have historically been far more conservative than Chilean society. Chile was among the last
countries in Latin America to decriminalize homosexual relations among consenting adults in 1999, and had no provi-
sion for divorce until 2004. Today, people can divorce legally (and not through a subterfuge affordable only by some);
there is an Anti-discrimination law of 2012 to protect sexual and ethnic diversity; and the Civil Union Agreement of
2015 gives some legal protection to hetero or homosexual couples living together. The criminalization of abortion
under any circumstance, including threat to the life of the mother, rape and diseases of the fetus incompatible with
life, is perhaps the most salient feature of a social conservatism not in accordance with the majority of public opinion
as shown by polls (Htun, 2003; Blofield, 2006). In spite of gradual progress in reconciling socially shared views with
legislation in these and other areas, the 1980 Constitution is fundamentally incompatible with the consolidation and
deepening of democracy in Chile because it establishes an insuperable barrier that impedes the democratic process by
which the will of the people translates into law and public policy, the basic feature of democracy.
In spite of its numerous reforms, the Constitution continues to protect the revolutionary transformative project of
the dictatorship, making core areas of this project untouchable and immune to the democratic process. This is achieved
mainly through numerous high-quorum provisions and supra-majoritarian mechanisms that guarantee no fundamen-
tal change in key areas can be achieved without the acquiescence of the political heirs of the dictatorship. The 1980
Constitution is the guardian of the veto power the ideological right has over the entire political system (Atria, 2013).2
The consequence is that the democratic political process has become irrelevant. The most important issues are not dis-
cussed or resolved through institutions like party platforms, elections and legislative debates, but behind closed doors.
Moreover, in those secret negotiations it is always the same political minority, the one with the key to grant or deny
change. Constitutional reforms have made the constitutional problem more evident. Once the most flagrantly anti-
democratic features of the constitution were eliminated with the 2005 constitutional reform, debates over the need
of a new constitution increased, as did the number of parliamentary proposals for constitutional amendment (Fuentes,
2011; 2012).
Twenty five years after a peaceful transition, Chilean democracy's deepest flaw remains a legal structure that has
proved “tied up and well tied up” by the architects of the 1980 Constitution.3 Instead of gradually opening the institu-
tional system to the democratic process and giving way to a post-sovereign model of constitution making (Arato, 2000;
2011; 2012; 2015), the Chilean transition early renounced the hope of replacing the Pinochet constitution. The result
was not, as some decision-makers of the center-left may have expected, an incremental process leading towards full
democratization in time, but the consolidation of a political system with many instances of severe undemocratic veto.
The political process remained open, to a certain degree, but proved superfluous with respect to key features, mainly
the relationship between the state and the market, the role of the public sector in the economy, and the concept of
citizenship and rights (Huneeus & Cuevas, 2013; Joignant, Atria, Larraín, Benavente, & Couso, 2013).
The Chilean constitution remains a problem for political life not only because of its illegitimacy of origin but also,
mainly, because of its contents and its perceived presence in everyday life. The current notoriety of the constitutional
problem reflects a power struggle over the model of society, in cultural and economic terms, which is today distorted by
the remains of a fundamentally anti-political project that the military and their civilian allies called “protected democ-
racy” (Godoy, 2003; Huneeus, 1997; Huneeus & Cuevas 2013). In spite of being the most amended charter in the his-
tory of Chile, the 1980 Constitution makes it impossible to overcome a democratic deficit resulting from unchangeable
rules set by the Pinochet dictatorship. The constitution works thus as an “enclave” of the military government. Due to
a high number and intensity of supra-majoritarian provisions, it creates parcels of power-arrangements that are not
subject to the normal democratic political process. Instead, it gives the political Right the power to veto any substan-
tive change the democratic process can introduce to a constitutional design created by a military junta and imposed
by decree. The key to constitutional change should thus be removing its current role as a guarantor of the project of
472 HEISS

“protected democracy” imposed by the dictatorship. This would imply eliminating the Organic Constitutional Laws
to leave the issues currently regulated by them to parliament. The role of the Constitutional Tribunal to revert deci-
sions by the legislature should also be discussed, as well as the quorums for constitutional reform. A different set of
questions, which generate broad debate, is the pertinence of introducing economic, social and cultural rights in the
constitution, as has been the tendency of constitutional change in Latin America over recent decades.
Chilean political institutions' legitimacy crisis is not the sole responsibility of the 1980 Constitution. Since the
protests in Seattle against the World Trade Organization in 1999, there has emerged a global challenge to represen-
tative democracy associated with the international financial order and linked to unprecedented social mobilization.
To general questions regarding the compatibility of capitalism with democracy (Mouffe, 2003), however, Chile adds
specific problems of institutional legitimacy due to the authoritarian enclaves that impede the normal functioning
of democracy. In spite of broad reforms of 1989 and 2005, the essence of the “Neoliberal Republic” in Chile (Cristi
& Ruiz-Tagle, 2006: 81) remains protected by the 1980 Constitution. The charter therefore fails, despite its numer-
ous amendments, to function as a politically constituting framework accepted by all sectors. Many countries have
recently experienced constitutional processes triggered by transitions to democracy or situations of internal conflict.
Of the nearly 200 constitutions existing in the early 21st century, more than half were written or rewritten in the last
40 years. This is not only a reality in emerging democracies; stable democracies also have significantly altered their con-
stitutions in recent years (Nolte and Schilling-Vacaflor, 2012: 4). As a consequence of this, several comparative projects
have been devoted to providing technical assistance and study constitutional change from an interdisciplinary perspec-
tive. Constitutional replacement in Venezuela (1999), Ecuador (2008), Bolivia (2009), Brazil (1988), Colombia (1991),
Paraguay (1992), Peru (1993), and the Dominican Republic (2010) led some authors to identify mechanisms of dissem-
ination in Latin America and observe trends of expanding rights (Gargarella, 2013) and the inclusion of mechanisms of
direct democracy (Altman, 2010; Negretto, 2013).
Comparing cases of constitutional change in the region shows the relevance of the symbolic dimension of the con-
stitutional text, as well as a desire to restructure the relationship between state and society, which does not always
materialize. Negretto examines the relationship between Presidents, Congress and political parties in constitutional
design. Some constitutions incorporate flexible standards for reform. Others, such as Chile and Honduras, have greater
institutional rigidity. The reform process often includes the creation of constitutional courts, the incorporation of new
rights, including human rights; a new role of international law; and new functions of the judiciary in the fight against
government corruption. Gargarella criticizes the expansion of constitutional rights unless it is accompanied by a redis-
tribution of power in the organic section of the constitution. Presidents, he argues, continue to have excessive tools
to impose their will on other powers of the State and the citizens. The result is that new rights and the expectations
of citizens are at odds with constitutional reality: one part of the Constitution contradicts the other. In all these cases,
the legitimacy of political institutions and the symbolic role of the Constitution have played a central role. There is no
doubt that the issue of legitimacy is the heart of the current constitutional problem in Chile. Even those who defend a
sovereign constitution-making model through a Constituent Assembly acknowledge that legitimizing involves popular
participation but also historical continuity. The defense of constitutional replacement need not be a proposal to discuss
ex nihilo a new political system, it can also be a means of going back to where the revolutionary project of Pinochet and
Jaime Guzmán interrupted the country's democratic development. The government seems aware of the strength of
the argument of recovering a constitutional tradition when it includes in its proposal the consideration not only of the
products of participatory citizen dialogues, but also of basic norms in place before the 1973 coup.

3 THE 2015 PROPOSAL FOR CONSTITUTIONAL CHANGE

If there is such a thing as a constituent moment (Ackerman, 1991), Chile entered one around 2010. It was not, granted,
a moment of popular mobilization like the student protests of 2011. People did not massively turn out in the streets
to demand a new constitution. But for the first time since the recovery of democracy in 1990, the need for deep insti-
tutional reform, including change to the 1980 Constitution, became the prevalent idea even among the political heirs
HEISS 473

of the dictatorship that created the current institutional framework. In fact, the student protests themselves linked
the situation of education to Pinochet-era constitutional provisions like the Organic Constitutional Law of Education,
LOCE. Grass-roots movements, NGOs, intellectuals and politicians entered a debate on constitution-making perhaps
only comparable to the 19th century “reform clubs” that discussed the liberal reforms of the mid-1870s in light of the
conservative 1833 Constitution. Changing the Pinochet-enacted decree that is the 1980 constitution was part of the
political program of seven out of nine presidential candidates in 2013, including the winner Michelle Bachelet (UNDP-
Chile, 2015: 6–7; Bachelet, 2013). Some argued for moderate reform, others for total replacement, be it through a
special commission, Congress or a Constituent Assembly. The issue of the mechanism became the most discussed one,
linking daily party-politics with theoretical arguments about constituent power, popular sovereignty and democracy.
When in October 2015 President Michelle Bachelet announced several stages of a complex process towards a new
constitution (Gobierno de Chile, 2016), support for constitutional change had reached unprecedented levels. Debate
no longer centered on whether constitutional change was appropriate, but rather on the kind and depth of the changes
and, above all, on the mechanism for such change (UNDP-Chile, 2015). The proposal was an attempt to produce rele-
vant change within the rules in place. It was also an attempt to introduce several stages of legitimation, as suggested
by Andrew Arato's multi-level legitimation model.4 The plan announced by the government starts with a phase of
civic education, followed by a stage of public deliberation at the local, intermediate and national level: the “cabildos”5
or citizen dialogues. In order to guarantee the transparency of the deliberative process, the President appointed a
15-member Council of Observers in December 2015.6 The result of these deliberations, the President announced,
would be a consolidated document to be used as the basis for a constitutional proposal, which would also consider
the “constitutional tradition” and the country's international commitments. By the end of 2016, the President would
send a constitutional reform proposal requesting Congress to allow itself to vote among four options for constitutional
change: (1) a bicameral commission composed of a group of senators and deputies; (2) a Constituent Convention includ-
ing legislators and citizens; (3) a Constituent Assembly and (4) a plebiscite to allow the citizens to decide among the pre-
vious options. Before the presidential and parliamentary elections of November 2017, President Bachelet would send
to Congress a proposal for new constitution, which the government thinks should be approved by a vote of 3/5ths. This
proposal would be discussed in 2018 by a new Congress, elected with the new proportional rule. Other reforms, to the
party law and to electoral funding, were intended to increase the legitimacy of the process. The last stage, once the new
constitution is approved by Congress, would be a national plebiscite to ratify or reject it.
As many have pointed out, Chile has never had a participatory constitution-making process (Valdivia, 2010). The
idea of a deliberative process at the local level is, in this sense, important from the perspective of the participatory
grounds for legitimacy. Bassa, Fuentes, and Lovera (2016) value this aspect. At the same time, they criticize the fact
that the second phase announced by the government excludes discussion of the mechanism for constitutional change
and limits the debate to the contents of the constitution, grouped under three headings: values, institutions, and rights
and duties. “Content and mechanism go hand in hand and they should both be discussed”, they argue. Doubts have
also been raised about the methodology for the debates, which some consider too narrow and predetermined. The
structure of the dialogues, hierarchically ordered from the local to the national, has a focus on agreement that may
not leave enough room for dissent. Lastly, concern has been raised regarding the true capacity of people from extreme
zones to participate. “The legitimacy of this process will be determined by the form in which citizen participation is
performed; citizens should have the opportunity and the capacity to make proposals”, argue Bassa, Fuentes and Lovera.
After officially launching the process in October 2015, the Bachelet government began to face questionings regard-
ing the participatory promise and the role of civil society in relation to political parties. Among these questions were the
role of individual preferences versus local organizations in the citizen dialogues, and the coincidence of these debates
with the municipal election of October 2016.
While the local administrative election was seen by some as an opportunity to link regular politics with the consti-
tutional issue, the government decided not to constitutionalize the elections. Political parties did not mobilize around
constitutional change. Participation in local encounters and “cabildos” was important, with over 9,000 self-organized
meetings of 10 to 20 people each, but its relevance was more expressive than politically representative. A true partic-
ipatory constitution-making process in Chile seems very hard to achieve under the current institutional rules (Chía &
474 HEISS

Quezada, 2015).7 The alternative of an extra legal mechanism institutionally supported, as was the case in Colombia in
1991, seems not replicable in Chile since social support for constitutional change, while majoritarian, has not translated
into the social mobilization and political pressure necessary to trigger such a process (Negretto, 2015).

4 REVOLUTIONARY DICTATORSHIP, REFORMIST TRANSITION

Chile has often been deemed the good student in the neighborhood. A strong state apparatus and cohesive oligarchic
rule provided a comparatively stable political process soon after independence from Spain. Often seen as an outlier
by the comparative literature, Chile has suffered less from populism than its neighbors, and is frequently considered
a success story in terms of efficient administration of the state and the economy, with low levels of corruption. In the
1980s, due to the influence of neoclassical economics and the “Chicago Boys,”8 it lowered tariffs and opened to inter-
national markets earlier than others in the region. When the Washington Consensus imposed painful privatization
and liberalization in the new Latin American democracies, Chile had long entered that pathway due to the imposi-
tion of those same policies during the Pinochet dictatorship (Monckeberg, 2001).9 A negotiated, peaceful transition
to democracy and its ensuing Truth Commission to deal with human rights violations were deemed by many as exem-
plary in the 1990s. Chile offered advice to other countries undergoing the recovery of democracy and transitional
justice.
This Chilean “exceptionalism” led conservative historians to praise an enlightened elite for its ability to offer good
institutional design, thus allowing the early construction of a stable and democratic republic able to respond success-
fully to episodes of economic and political crisis (Valdivia, 2010).In this account, the early implementation of a strong
state apparatus, including constitutional states of exception, allowed adequate institutions to address risks and main-
tain political stability. From a critical perspective, others have seen this role of the state as part of a militaristic and
repressive scheme that contributed to the maintenance of social and political exclusion and inequality. Seen from this
interpretation, Chilean “stability” is the result not of a successful and institutionalized preservation of the rule of law,
but of a repressive state that has imposed order at the expense of individual rights and liberties, and for the benefit of
a privileged minority (Loveman, 1993; Valdivia, 2010).
The truth of Chile's democratization has been criticized before, but economic welfare and political stability have so
far made these critiques marginal. Groups at the left of the Concertación – the coalition formed by social-democratic
parties and the Christian Democracy – particularly the Communist Party, refused to play by the rules set by Pinochet
and did not participate in the negotiated path towards transition. Overall, however, society seemed to accept the lim-
itations of justice “to the extent it was possible” – in a famous formulation by President Patricio Aylwin (1990-1994)
about the Truth and Reconciliation Commission – and the “democracy of agreements”. The scheme of this negotiated
transition included demobilizing the social forces that had led the massive protests and violent action against the dic-
tatorship. The strategy was one of conscious suppression of activism, in order to create governability within an elitist
approach to politics. President Aylwin's post-dictatorship government faced threats of authoritarian regression that
seemed to justify caution.10 Max Weber's “ethics of responsibility” was the new common sense of politicians who had
lived through and often contributed to create the political polarization of the 1970s and who had been unable to pre-
vent or stop the military coup.11 The Chilean post-transition “democracy of agreements” was not based on any real
accord between political contenders, but rather on the maintenance of a veto-power imposed by force.
Acceptance of this model seems to have come to an end. Recent studies show a divided society with great difficulty
in processing social and political differences and prone to turn conflict into violence (COES, 2015). A related salient fea-
ture of Chilean society is high interpersonal mistrust. Public opinion studies show links between this disaffection and
a high demand for constitutional change (UNDP-Chile, 2015). A basic principle of liberal constitutionalism is that the
Constitution is an instrument for limited government; it should limit the power of government over the people.12 The
1980 constitution in contrast restrains people by “turning its back” and “neutralizing” the democratic principle (Atria,
2013). Chile's post-transitional political system can by no means be characterized as an example of “consociationalism”
or “consensus democracy” because it is not based on a consensus that could democratically justify supra-majoritarian
HEISS 475

provisions (Lijphart, 1999). It is rather the result of a radicalism that forcefully imposes a status quo that could never
have been achieved except by the force of a military dictatorship. It is not moderate, centrist politics, but a polarizing
right-wing veto against democratic decision-making.13
The most important revolutionary moment, in the sense of a break with legality, of Chile's recent history was the
self-proclaimed holding of the constituent power by the Military Junta (Cristi & Ruiz-Tagle, 2006).14 Their revolution-
ary plan was to radically transform the Chilean political system, which had allowed the democratic rise of a socialist
political project. The institutional expression of that revolutionary venture was the 1980 Constitution, which turned
its back on a republican tradition that, through successive episodes of negotiation and constitutional evolution, had
led to increasing expansion of civil, political and social rights. These advancements, as well as the party structure and
the political role of organized labor, were cut from the root and replaced by the corporatist ideals of “gremialismo,” the
political movement led by Jaime Guzmán. This political project, based on a conservative notion of intermediary bod-
ies and neoliberal economics, was made impossible to reform democratically, by entrenching a series of constitutional
norms and organic constitutional laws. Following a Schmittian decisionism, Guzmán argued the Junta did not need the
ratification plebiscite to approve the 1980 Constitution. The military, however, decided to call for a plebiscite in 1980
in an attempt to grant democratic legitimacy to their constitutional design. The great pending issue of the Chilean tran-
sition to democracy is, therefore, a Constitution that, in spite of innumerable reforms, reproduces the core of the rev-
olutionary project of the Junta: the fundamental impossibility of transforming democratic preferences into policy.

5 SQUARING THE CIRCLE: REFORM VS. REVOLUTION

The 2013 program of the New Majority Government proposed to change the Constitution through a democratic, insti-
tutional and participatory mechanism (Bachelet, 2013: 35). Some have argued that it seems impossible to achieve a
democratic and participatory reform of the text within its legal frame (Fuentes & Joignant, 2015; Chía & Quezada,
2015). This is because the text was designed to be very hard to reform but also because, as most constitutions, it does
not provide for the mechanisms for its own replacement.
The dilemma of replacing the constitution without breaking with it has inspired an unusual debate in professional
seminars but also in the media. The nature of the constituent power and the role of a constituent assembly have become
subjects of public debate. Without an especially revolutionary spirit, scholars at the center and the center-left of the
political spectrum have tended to argue for a version of the original constituent power of a Schmittian sovereign type, in
order to overcome the constitutional restrictions of reform. How much of this defense of the sovereign paradigm stems
from theoretical conviction and how much from strategic political argument, it is impossible to know. The illegitimacy
of the charter, and the perception that it creates abuses over citizens by giving preeminence to private over public
interest, make it an easy target. Nobody in Chile today feels constitutional loyalty: the left because of its origin and
obstacles to democracy; the right due to its numerous amendments.
Against the “old” principles of legitimacy – popular sovereignty, leading to replacement by a revolutionary mecha-
nism, and constitutionalism, leading to amendment via reform (Arato, 2015: 4) – Arato suggests that a new principle
of legitimacy could be achieved through a post sovereign model composed of gradual, incremental legitimating phases.
The road to constitutional replacement announced by Bachelet seemed to aim at such a model. Debates among Chilean
constitutional lawyers prone to constitutional change show almost desperate attempts to square the circle and escape
the dichotomy of reform or revolution. Fernando Atria has argued that the president could, legally, call for a plebiscite
to decide on the mechanism of constitutional change; Francisco Soto proposed adding a new chapter to the constitu-
tion reforming the procedure of reform; Francisco Zúñiga proposed political negotiations to change the mechanism
of reform; Jorge Correa argued for a minimal political agreement without departing from current institutional mecha-
nisms. (Chía & Quezada, 2015).
In spite of some bitter disagreement about the level of legal rupture it justifies, these authors agree on the illegiti-
macy of the Constitution, and admit that this is a serious problem for the adequate functioning of the political system
and a key element in a worrying crisis of institutional legitimacy. The proposal by the government seemed to look for
476 HEISS

a “third way” of the post-sovereign type by leaving the decision to consecutive parliaments and to a number of legiti-
mating participatory and decision-making stages. It fell short, however, of solving the dilemma. Its main weakness lies
precisely in the participatory basis for legitimation. It is not clear whether it will reduce the distance between society
and institutions and the perception of illegitimacy of the decision-making mechanisms. The participatory phase of the
constitutional debate is key to addressing the democratic deficit that is, as I have argued, the reason why the consti-
tutional problem in Chile cannot be solved within the frame of the 1980 Constitution. Its top-down and limited scope
create doubts about the strength of its legitimating capacity. In addition, the proposal contains general suggestions
that could greatly vary in their implementation regarding both specific contents and juridical procedures.
The problem of legitimacy and the mechanism are deeply intertwined. Atria emphasizes that form – i.e., the mech-
anism for the changing the Constitution – is inseparable from content. The changes will depend on who makes them
and how. This includes, especially, the strength of the social and political demand for constitutional replacement (Atria,
2013). Overcoming the constitutional problem in Chile via a Constituent Assembly may be seen as an expression of
the revolutionary embodiment of the sovereign constituent power. It may also be interpreted in a different fashion.
The institutional trap set by the 1980 constitution cannot be surpassed with its amendment rules. The impossibility
of amendment is in fact the heart of the democratic deficit of the constitution, with its high quorums for reform, its
18 high-quorum organic constitutional laws and the last veto-resource that is in practice the Constitutional Tribunal.
A Constituent Assembly could have a revolutionary and potentially authoritarian character. But it does not need
to. It may also be a means to resolve this Gordian knot of the 1980 constitution through a democratic, inclusive par-
ticipatory process with a preponderant role of political parties and political negotiations. No assembly, no matter
how democratic, is the equivalent of a mythical “popular will.” The government's proposal seemed aware of the per-
ils of sovereign constitution making when it recommended multiple instances for participation and various stages of
democratic legitimation. The President insisted on the need to create a Constitution that does not express a partic-
ular political program – a sort of “protected democracy” with the opposite political sign – but the will to build “the
house of all”.
Commissions and official meetings showed an explicit effort to include the political right in the process. The exam-
ple of majoritarian political projects in recent constitution-making processes in the Andes contrasts with the extreme
deficit of democratic decision-making in Chile. Democracy inevitably involves a majoritarian element. But it also implies
the respect and defense of the rights of minorities. The idea that a viable constitution needs the participation of the
political right, which is today a minority with the power of a majority to deter political change, seems present in politi-
cians used to the “democracy of agreements” imposed by the dictatorship. Other minorities unfortunately seem to have
less of the prominence necessary for a legitimate, inclusive constitution.15

6 CONCLUSIONS

While the tradition of a stable political party system and efficient state apparatus seemed to make Chile less vul-
nerable than many of its neighbors to populist and delegative tendencies, today the country faces a deep crisis of
political legitimacy. Massive social mobilizations mixed with an unprecedented rejection of all political parties and
institutions are the rule. This crisis is deeply linked to the persistence of the constitutional problem. The 1980 Con-
stitution lacks legitimacy of origin but also makes impossible its gradual legitimation, as was the case with previous
Chilean constitutions. Instead of narrowing the gap between society and institutions, numerous constitutional reforms
like those of 1989 and 2005 have made more evident the political process’ incapacity to alter fundamental arrange-
ments without the acquiescence of a powerful minority with veto power in a Constitution created by a dictator's
executive fiat.
The constitutional problem today goes beyond the legacy of the dictatorship. Once the oversight power of the
military was removed, with the 2005 reforms, the debate around constitutional change increased. The constitution
is an area of struggle between contending visions of society, rights and the economy. The emergence of a constitu-
tional moment in recent years reflects a struggle to change a social and political model that remains protected by
HEISS 477

supra-majoritarian norms inherited from the dictatorship. In 2015 the government introduced a schedule for constitu-
tional change that seems to follow certain attributes of post-sovereign constitution-making by addressing the issue of
legitimacy in different stages and at different levels, instead of concentrating legitimacy in a unique, majoritarian
instance. A combination of substantive popular participation with political negotiation in representative instances
seems key to the legitimating success of this path.

NOTES
1
Only the 2005 constitutional reform achieved effective military subordination by modifying the composition and role of the
National Security Council (COSENA) and allowing the President to remove high officers. The 1989 constitutional reform
not only failed to improve democratic oversight over the military, but increased their autonomy instead (Heiss & Navia,
2007).
2 The main constitutional “traps” described by Atria are a system of supermajorities, including eighteen Constitutional Organic

Laws that regulate key issues of political life; the binomial electoral system – reformed in 2015 – and the power of the Con-
stitutional Tribunal to veto legislation. All of these mechanisms combined, Atria argues, guarantee the neutralization of the
transformative potential of democratic politics and the maintenance of the status quo.
3
The constitutional counselor to Pinochet, Jaime Guzmán, seems to have been more successful than Francisco Franco, the
author of the famous sentence, according to which Spain's transition was institutionally constrained by the dictatorship.
Spain did have a constitution-making process through the round table model as a key element of its transition to democracy
4
Arato argues that a constituent process should consider at least three levels or stages of legitimation: at its origin, in the
decision-making mechanisms, and in its ratification (Arato, 2011, 2012).
5 The term “cabildo” evokes a colonial form of local political organization that was relatively autonomous from the King of
Spain until the 17th century. In the 19th century, during the wars of Independence, they assumed an important role as repre-
sentatives of local peoples in the break with the legitimacy of Spanish power over the colonies.
6 The 15 members of the Council as originally established included constitutionalist lawyers Francisco Zapata, Salvador
Millaleo, Gastón Gómez and Francisco Soto; journalists Cecilia Rovaretti and Patricio Fernández; soccer icon Jean
Beausejour; singer Juanita Parra; the leader of the domestic workers Union Federation, Ruth Olate, and the entrepreneur
Roberto Fantuzzi. Other members were: Lucas Sierra, Benito Baranda, José Miguel García, Hernán Larraín Matte and Héctor
Mery.
7
See in particular the articles by Francisco Zúñiga, Fernando Atria and Jorge Correa Sutil in Chía & Quezada 2015.
8A group of University of Chicago-trained Chilean economists who studied under Arnold Harberger and Milton Friedman,
among others, due to an exchange program with Universidad Católica. See Valdés (2008) and also the documentary film
Chicago Boys (2015), by Carola Fuentes and Rafael Valdeavellano.
9 The lack of public scrutiny over privatizations under dictatorship and the role of the state in helping build major economic
fortunes has been denounced as a “looting” of the Chilean state by economic groups. (Monckeberg, 2001).
10
The military threatened the new civilian government in September 1990 and May 1993 to stop investigations of corruption
by Pinochet and his son.
11
The conversion of most of the Chilean left from a Weberian ethics of conviction to one of responsibility is ingeniously summa-
rized by historian Alfredo Jocelyn Holt's sentence “del avanzar sin transar al transar sin parar”: from moving forward without
bargaining to non-stop bargaining.
12
According to a sentence attributed to Patrick Henry, the constitution is not a document for the government to restrain the
people: it is an instrument for the people to restrain the government.
13 Mainwaring and Pérez-Liñán (2014) argue that radicalism, as a threat to democracy, results not only from attempts to
subvert the law but also from intransigence in the maintenance of the status quo. In both cases, the rejection of com-
promise may lead to polarization and the incapacity to enforce democratic preferences may cause the collapse of the
system.
14
Cristi and Ruiz-Tagle (2006) explain Jaime Guzmán's Schmittian basis to argue for the sovereign right of the Military Junta
to dictate the Constitution by decree.
15
Particularly relevant are the participation of indigenous groups and women (although not a minority) in constitution-making.

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AUTHOR’S BIOGRAPHY

Claudia Heiss is Assistant Professor at the Institute of Public Affairs at Universidad de Chile, and researcher at the
Center for Social Conflict and Cohesion Studies (COES), in Santiago de Chile.

How to cite this article: Heiss C. Legitimacy crisis and the constitutional problem in Chile: A legacy of authori-
tarianism. Constellations. 2017;24:470–479. https://doi.org/10.1111/1467-8675.12309