Santiago, Chile.

Pragmatism and the Chilean Constitutional Moment

By Sebastián Soto

Chile is heading into a constitutional change.

After 40 years, the Chilean 1980 Constitution, enacted under Pinochet’s rule, but subsequently amended over fifty times, will probably be replaced. On October 25th, a referendum will decide whether or not to call a constitutional convention to change the Constitution.

If the referendum passes, in April 2021 the convention will be called and will have nine months (extendable for three more, if needed) to write a new constitution. If the convention reaches an agreement on a new constitution by 2/3 of its members, a new referendum to approve it will be called during the first semester of 2022.

Social rights are expected to be one of the most contested topics discussed during the process.

The current Constitution recognizes the most common social rights as the right to education, the protection of health, the right to social security, and the protection of the freedom to work.

However, there are several criticisms regarding the specific constitutional clauses which recognize these rights. First, they are not justiciable, which means that people cannot make applications to courts for relief if their social rights are violated. Second, some have argued that the constitutional recognition of these rights does not give enough power to the state to ensure their satisfaction. A final criticism states that the constitutional clauses are “too thin” and lack the depth needed to guide policies protecting these rights.

Apparently, the discussion will follow the Latin American trend regarding social rights. And this is not good news. If we focus on the right to health, we can see that South American constitutions are extremely “thick” and aspirational.

For example, consider some of the newest constitutions in the region: the Constitution of Colombia (1991) addresses the issue in 307 words; Brazil’s constitution (1988), in 565 words; and Ecuador’s (2008), the longest, in 1225 words. Several topics are regulated, or at least mentioned, in health care clauses: the aim of health, the role of government and private sector, funding, community participation, access, sanctions, the existence of a single health system, guiding principles (as “solidarity, efficiency and co-responsibility” in Bolivian constitution), maternal healthcare services, indigenous health care, among others.

What should Chile do? In my opinion, following this trend is not advisable. Constitutions, as Cass Sunstein wrote almost twenty years ago, “are pragmatic instruments, not outlines of a just society, and hence there is a gap between what constitutions say and what justice requires.”

I think we Chileans, as well as the international community, should hear this call when thinking about our process. A long and dense enumeration of social rights, common in Latin American constitutions, would create high expectations, which could injure the credibility of the new constitution. It would transform those rights, not in the sense of Dworkin’s “rights as trumps,” but as mere aspirations. This trend eclipses and leaves behind what is really important to improve our wellbeing: good policies and political consensus to make important changes.

The right to health in the current Chilean Constitution could be a good example. The clause is relatively thin (no more than 100 words) and it is not justiciable. It states the right to protection of health, the state’s duty to ensure the implementation of health-related actions, and the existence and coordination of both a state-owned and private system, among other specific regulations. Many have called to write a longer clause to insure the improvement of health and reinforce state capacity.

Nobody can deny that our health system needs urgent reforms. Although it is rated highly in comparison with others in the region, it is still far from being acceptable, especially for the poorest. But these problems are closer to policies than to constitutional provisions. Constitutions must leave room for politics and policies to do their job.

We cannot forget another important feature of Chilean constitutionalism. As with most constitutions in the world, the Chilean Constitution is a living constitution; we have neither an originalist nor a textualist interpretation. The interpretation of our enumerated individual and social rights evolves in connection with our own constitutional development, international human rights law, and global constitutionalism.

The right to health is, again, a good example. Although it is not justiciable, courts have invoked the right to life and physical integrity to spread protection to health. Under this interpretation, several decisions of the Supreme Court have required public funding of expensive medical treatments, or have limited the freedom of the private sector to raise the cost of health programs. These decisions show an evolution in constitutional interpretation that is common not only in health protection, but also in other rights.

The Chilean constitutional moment is in its very first steps. The following years will be crucial to building our next decades. We must not forget that the current constitution, undoubtedly, has granted the best thirty years in the history of our country from a political, social, and economic perspective. Whether the new constitution can improve this record depends, on some important level, in the capacity we have to look at the constitution as a pragmatic instrument to progress and political stability.

 

Sebastián Soto is a constitutional law professor at Universidad Catolica de Chile and the Director of the Public Law Department at the Law School. He is a former visiting scholar at the David Rockefeller Center for Latin American Studies, Harvard University.

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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