Chile votes this Sunday on a proposed, new constitution. It is a far-left document that would undermine fundamental rights and impoverish the country. Chileans should reject it. My colleagues and I have discussed the Chilean success story under the current constitution, the political conditions that gave rise to a constitutional convention that began meeting last year, and the problems with the proposed basic charter here, here, here, here, and here.
In light of Chile’s referendum, I reprint below a rough translation of an article I published in Peru in 2019 about Latin America’s sorry tradition of frequently replacing its constitutions with increasingly longer ones (the proposed Chilean constitution would make it one of the longest in the world if approved). Although the article was intended to dissuade Chile and Peru from going down the constitutional convention path, it is still relevant in those countries and beyond.
Disposable Constitutions
(El Comercio, November 5, 2019)
To resolve our problems, we need a new constitution. That old, Latin American way of thinking has resulted in Latin America becoming the region with the most constitutions in the world.
Latin America has had almost 200 constitutions, more than 10 per country, on average (the European average is 4; the British American average is 1.5). The Dominican Republic has had 32 constitutions, the most in the region, followed by Venezuela (26) and Ecuador (21). Peru has “only” had 12.
Those numbers come from Professors Niall Ferguson and Daniel Lansberg-Rodriquez, which they document in a study published by the Fundacion para el Progreso in Chile. The fundamental laws of the region’s countries have been replaced so often that it can be said that Latin America produces disposable constitutions.
Historically, both populist leaders on the left and right-wing caudillos have instigated the replacement of old constitutions with new ones. In recent years, the extreme left has led these changes in Venezuela, Bolivia, Ecuador and Nicaragua, as is well known. Popular discontent with political systems is now leading to calls for constitutional conventions in Peru and Chile. Due to massive, often violent, protests in Chile, President Sebastian Pinera’s government says it does not dismiss considering that possibility.
One of the arguments used in favor of drawing up a new constitution is that the current one was born under dictatorship and, as a result, cannot be legitimate. But according to the authors of the study, history belies that impossibility since 20 percent of current democratic constitutions emerged under non-democratic conditions and they subsequently adapted to democracy. Examples include those of Japan, the Netherlands, Argentina, Mexico, Belgium, and Norway.
The authors add, “it is worth remembering that the oldest and arguably most successful republican constitution, that of the United States, was drafted by a cadre of unauthorized and undemocratically appointed landowners working under conditions of absolute secrecy, and partly aiming to prolong the life of the institution of slavery.”
Frequently replacing constitutions, on the other hand, can amplify instability by hindering the constitution from establishing a reputation over time and by promoting a kind of “adhocrarcy,” as the authors put it, which supposedly is what a constitution is set up to avoid.
It is more difficult now than in previous times to produce a good constitution, say Ferguson and Lansberg-Rodriguez, given extreme public scrutiny over constitutional negotiations. That condition leads to constitutions that promise an increasing number of “rights” without having to determine whether or not they can be provided; and it explains why constitutions have become lengthier in the last 50 years. Latin American constitutions, for example, have an average of 249 articles, while in British America, where constitutional replacement is least frequent, the average is 34.
Replacing constitutions every time there is public discontent does not make sense, especially if the constitutions have been in place for a long time under democracy, have been amended under democracy, and have as a result gained legitimacy, as in the cases of Peru and Chile.
It’s nonsensical to ask for a change in the constitution based on street protests, as is occurring in Chile. As Sylvia Eyzaguirre observes, “The street is uneven not only because in the near term it is captured by the interests of the most organized groups, but rather, above all, because it renders invisible the millions of individuals who do not publicly protest but have an equal right to influence decisions.”
Let’s hope that neither Chile nor Peru returns to the unfortunate tradition of frequently discarding their constitutions.