Pub Date : 2023-10-13DOI: 10.1017/s2045381723000291
María Cristina Escudero
Abstract The Constitutional Convention in Chile, like other constitution-making mechanisms in democracies, carried out its work within the democratic institutional framework. In a democracy, the success of a constitution-making process depends not only on internal factors, such as its capacity for representation and the procedural rules by which it is governed, but also on external factors such as participation, the government’s role and other contingent factors. When the process – including both internal and external factors – fails to produce adherence to the new constitution, institutional resistance to changes is very likely to occur. This article argues that the manner in which the political and social spectrum was represented in the Chilean Convention, combined with the way participation was implemented and the rules governing the Convention, insulated it from society and the rest of the democratic institutions. As a result, party and public adherence to the proposal made by the Convention was low and its contents generated institutional resistance from outside.
{"title":"Institutional resistance: The case of the Chilean Convention 2021–22","authors":"María Cristina Escudero","doi":"10.1017/s2045381723000291","DOIUrl":"https://doi.org/10.1017/s2045381723000291","url":null,"abstract":"Abstract The Constitutional Convention in Chile, like other constitution-making mechanisms in democracies, carried out its work within the democratic institutional framework. In a democracy, the success of a constitution-making process depends not only on internal factors, such as its capacity for representation and the procedural rules by which it is governed, but also on external factors such as participation, the government’s role and other contingent factors. When the process – including both internal and external factors – fails to produce adherence to the new constitution, institutional resistance to changes is very likely to occur. This article argues that the manner in which the political and social spectrum was represented in the Chilean Convention, combined with the way participation was implemented and the rules governing the Convention, insulated it from society and the rest of the democratic institutions. As a result, party and public adherence to the proposal made by the Convention was low and its contents generated institutional resistance from outside.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135853487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-11DOI: 10.1017/s2045381723000333
Markus Patberg
Abstract In this article, I ask about the extent to which the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union. I critically engage with the claim that the CoFoE’s success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens’ assemblies to EU politics, it has laid the foundation for participatory democracy in the European Union. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman’s concept of a democratic minimum. The best democratic defence of permanent EU citizens’ assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns – and thus function as a nucleus for constituent power in the European Union. Nevertheless, the idea should be viewed with caution, as permanent citizens’ assemblies could just as well become a democratic fig-leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.
{"title":"Farewell to constituent power? The Conference on the Future of Europe, citizens’ assemblies and the democratic minimum","authors":"Markus Patberg","doi":"10.1017/s2045381723000333","DOIUrl":"https://doi.org/10.1017/s2045381723000333","url":null,"abstract":"Abstract In this article, I ask about the extent to which the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union. I critically engage with the claim that the CoFoE’s success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens’ assemblies to EU politics, it has laid the foundation for participatory democracy in the European Union. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman’s concept of a democratic minimum. The best democratic defence of permanent EU citizens’ assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns – and thus function as a nucleus for constituent power in the European Union. Nevertheless, the idea should be viewed with caution, as permanent citizens’ assemblies could just as well become a democratic fig-leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136211134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-11DOI: 10.1017/s2045381723000321
Luis Eugenio García-Huidobro
Abstract This article extends the study of the shortcomings of the constitution-making design that contributed to the failure of the Chilean process by addressing a largely overlooked aspect: the 2020 entry referendum. By placing two competing constitution-making models on the ballot, the political elites delegated to the voters a highly conflictual aspect of the process design that prevented cooperation among them. While some political parties approached the disagreements placed on the ballot as an opportunity to reopen discussions already settled by the 2019 Agreement, others interpreted the move as a cancellation of the political insurance contained in the Agreement. This exacerbated the existing polarization among political elites and imperiled prospects for the success of the process.
{"title":"Elite non-cooperation in polarized democracies: Constitution-making deferral, the entry referendum and the seeds of the Chilean failure","authors":"Luis Eugenio García-Huidobro","doi":"10.1017/s2045381723000321","DOIUrl":"https://doi.org/10.1017/s2045381723000321","url":null,"abstract":"Abstract This article extends the study of the shortcomings of the constitution-making design that contributed to the failure of the Chilean process by addressing a largely overlooked aspect: the 2020 entry referendum. By placing two competing constitution-making models on the ballot, the political elites delegated to the voters a highly conflictual aspect of the process design that prevented cooperation among them. While some political parties approached the disagreements placed on the ballot as an opportunity to reopen discussions already settled by the 2019 Agreement, others interpreted the move as a cancellation of the political insurance contained in the Agreement. This exacerbated the existing polarization among political elites and imperiled prospects for the success of the process.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136211319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-06DOI: 10.1017/s2045381723000345
Neil Walker
Abstract The various and diverse academic responses to the Conference on the Future of Europe’s efforts at democratic renewal, including those by Ben Crum, Markus Patberg and Sandra Seubert, speak not only to the lack of a clear institutional locus or pathway associated with the Conference, but also to differing understandings of the basic conditions of existence – or political ontology – of the European Union. These differing understandings are reflected in different attitudes to the European Union’s constitutional standing and prospects. This article explores how the special place of constitutional retrofitting in the European Union – of reconstructing and reimagining an originally pre-constitutional system in constitutional terms – helps to illuminate the different understanding of political ontology in play, and helps clarify what is at stake in the continuing debate over fundamental reform.
{"title":"Europe’s constitutional retrofit","authors":"Neil Walker","doi":"10.1017/s2045381723000345","DOIUrl":"https://doi.org/10.1017/s2045381723000345","url":null,"abstract":"Abstract The various and diverse academic responses to the Conference on the Future of Europe’s efforts at democratic renewal, including those by Ben Crum, Markus Patberg and Sandra Seubert, speak not only to the lack of a clear institutional locus or pathway associated with the Conference, but also to differing understandings of the basic conditions of existence – or political ontology – of the European Union. These differing understandings are reflected in different attitudes to the European Union’s constitutional standing and prospects. This article explores how the special place of constitutional retrofitting in the European Union – of reconstructing and reimagining an originally pre-constitutional system in constitutional terms – helps to illuminate the different understanding of political ontology in play, and helps clarify what is at stake in the continuing debate over fundamental reform.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135351330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-02DOI: 10.1017/s2045381723000205
Maartje De Visser, Brian Christopher Jones
Abstract The contemporary crisis in relation to constitutional literacy relates not to the lack of knowledge that citizens possess about fundamental constitutional texts, but to the considerable lack of development in relation to what constitutional literacy itself entails. This article accordingly unpacks the notion of constitutional literacy: its importance, its characteristics, and its variable nature. Using a comparative lens, the article invites reflection on the role we expect citizens to play in our democracies, and especially the associated knowledge and skills required for successful state performance. We suggest that constitutional literacy is exceptionally multifaceted and fluid in nature, which serves to make its conceptualization and measurement challenging endeavours, and certainly more so than the easy invocation of this notion may assume at first blush. In this regard, engaging with the constitutional text, while an integral component of constitutional literacy, is ultimately only one part of the puzzle.
{"title":"Unpacking constitutional literacy","authors":"Maartje De Visser, Brian Christopher Jones","doi":"10.1017/s2045381723000205","DOIUrl":"https://doi.org/10.1017/s2045381723000205","url":null,"abstract":"Abstract The contemporary crisis in relation to constitutional literacy relates not to the lack of knowledge that citizens possess about fundamental constitutional texts, but to the considerable lack of development in relation to what constitutional literacy itself entails. This article accordingly unpacks the notion of constitutional literacy: its importance, its characteristics, and its variable nature. Using a comparative lens, the article invites reflection on the role we expect citizens to play in our democracies, and especially the associated knowledge and skills required for successful state performance. We suggest that constitutional literacy is exceptionally multifaceted and fluid in nature, which serves to make its conceptualization and measurement challenging endeavours, and certainly more so than the easy invocation of this notion may assume at first blush. In this regard, engaging with the constitutional text, while an integral component of constitutional literacy, is ultimately only one part of the puzzle.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135830230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.1017/s204538172300028x
Valeria Palanza, Patricia Sotomayor Valarezo
Abstract This article suggests that the conditions under which the Chilean constitutional process of 2021–22 undertook its task held the seeds of its doom. Constitutional conventions are always tasked with reaching agreements on the controversial allocation of decision rights, and doing so is no simple feat. The Chilean process combined (1) very dispersed preferences regarding the problems the new constitution should solve and the institutions to best enable solutions, with (2) a brief timeframe to allow for agreements to emerge, aggravated by (3) a composition of the Convention that was dominated by independents lacking experience in legislative bargaining, and (4) a severe disenchantment of the population with parties and politics as the backdrop. Together, these hurdles proved impossible to overcome. Despite the notorious political achievements of the Committee we study here, the proposal that came out of Chile’s Constitutional Convention in 2021 was plagued by controversy and a negative perception of the Convention’s work, and was ultimately rejected by the people.
{"title":"Chile’s failed constitutional intent: Polarization, fragmentation, haste and delegitimization","authors":"Valeria Palanza, Patricia Sotomayor Valarezo","doi":"10.1017/s204538172300028x","DOIUrl":"https://doi.org/10.1017/s204538172300028x","url":null,"abstract":"Abstract This article suggests that the conditions under which the Chilean constitutional process of 2021–22 undertook its task held the seeds of its doom. Constitutional conventions are always tasked with reaching agreements on the controversial allocation of decision rights, and doing so is no simple feat. The Chilean process combined (1) very dispersed preferences regarding the problems the new constitution should solve and the institutions to best enable solutions, with (2) a brief timeframe to allow for agreements to emerge, aggravated by (3) a composition of the Convention that was dominated by independents lacking experience in legislative bargaining, and (4) a severe disenchantment of the population with parties and politics as the backdrop. Together, these hurdles proved impossible to overcome. Despite the notorious political achievements of the Committee we study here, the proposal that came out of Chile’s Constitutional Convention in 2021 was plagued by controversy and a negative perception of the Convention’s work, and was ultimately rejected by the people.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135199264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.1017/s2045381723000230
Rosalind Dixon, Marcela Prieto Rudolphy
Abstract In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.
{"title":"Parity constitutionalism","authors":"Rosalind Dixon, Marcela Prieto Rudolphy","doi":"10.1017/s2045381723000230","DOIUrl":"https://doi.org/10.1017/s2045381723000230","url":null,"abstract":"Abstract In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135199261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-27DOI: 10.1017/s2045381723000254
José Francisco García
Abstract This article shows how failed constitutional proposals may contribute to future constitution-making processes by exploring the relationship between the recently failed Chilean constitution-making process (2019–22) and the previous unsuccessful one led by former President Michelle Bachelet (2015–17). Comparative constitutional scholars are yet to fully understand how constitutional failures of this kind can take place, and Bachelet’s process has not received the attention it should. This article fills that gap by showing how both processes were driven by shared principles initially set by Bachelet. It also shows how those principles may serve as a blueprint for future constitutional changes in Chile. Bachelet had campaigned on the basis that any constitutional replacement attempt should be participatory, institutional and democratic – all ideas that have remained popular in Chile’s political landscape. Those ideas have served the purpose of both reducing transaction costs among constitutional negotiators and securing large compromises in polarized political scenarios.
{"title":"A failed but useful constitution-making process: How Bachelet’s process contributed to constitution-making in Chile","authors":"José Francisco García","doi":"10.1017/s2045381723000254","DOIUrl":"https://doi.org/10.1017/s2045381723000254","url":null,"abstract":"Abstract This article shows how failed constitutional proposals may contribute to future constitution-making processes by exploring the relationship between the recently failed Chilean constitution-making process (2019–22) and the previous unsuccessful one led by former President Michelle Bachelet (2015–17). Comparative constitutional scholars are yet to fully understand how constitutional failures of this kind can take place, and Bachelet’s process has not received the attention it should. This article fills that gap by showing how both processes were driven by shared principles initially set by Bachelet. It also shows how those principles may serve as a blueprint for future constitutional changes in Chile. Bachelet had campaigned on the basis that any constitutional replacement attempt should be participatory, institutional and democratic – all ideas that have remained popular in Chile’s political landscape. Those ideas have served the purpose of both reducing transaction costs among constitutional negotiators and securing large compromises in polarized political scenarios.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135537712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-21DOI: 10.1017/s2045381723000308
Sergio Verdugo
Abstract Constitutions change in different ways, and some constitutions – such as the Chilean Constitution – change often. The significant changes to the Chilean Constitution have been frequent and fast, and they have accompanied the failed constitution-making processes of the previous years. Examples include crucial sub-constitutional statutes such as the electoral system regulation and same-sex marriage, political practices challenging the power of the president in the law-making process, constitutional rules such as term limits for legislators, judicial practices such as the enforcement of social rights and the amendment procedures of the Constitution itself. Despite the successful attempts at reforming the Constitution and the failed attempts at replacing it, Chileans are still trying to replace the constitutional document. However, the constitutional framework has become unstable, making it harder to agree on what exactly is wrong with it. This article seeks to open a conversation in the constitutional literature. It argues that constitutions can become moving targets and uses the Chilean case to show the need to theorize more about the moving target problem.
{"title":"Constitutions as moving targets","authors":"Sergio Verdugo","doi":"10.1017/s2045381723000308","DOIUrl":"https://doi.org/10.1017/s2045381723000308","url":null,"abstract":"Abstract Constitutions change in different ways, and some constitutions – such as the Chilean Constitution – change often. The significant changes to the Chilean Constitution have been frequent and fast, and they have accompanied the failed constitution-making processes of the previous years. Examples include crucial sub-constitutional statutes such as the electoral system regulation and same-sex marriage, political practices challenging the power of the president in the law-making process, constitutional rules such as term limits for legislators, judicial practices such as the enforcement of social rights and the amendment procedures of the Constitution itself. Despite the successful attempts at reforming the Constitution and the failed attempts at replacing it, Chileans are still trying to replace the constitutional document. However, the constitutional framework has become unstable, making it harder to agree on what exactly is wrong with it. This article seeks to open a conversation in the constitutional literature. It argues that constitutions can become moving targets and uses the Chilean case to show the need to theorize more about the moving target problem.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136155233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-20DOI: 10.1017/s2045381723000187
Virgílio Afonso da Silva
Abstract The relationship between balancing and proportionality has not always been clear. Because part of the literature falls short of adequately differentiating between the two tools, many people have become conditioned to see an instance of proportionality whenever the word ‘balancing’ is dropped. As a consequence, the ubiquity of balancing brought about the feeling that proportionality is equally ubiquitous. In this article, I show that the proportionality test is necessarily linked to judicial review and how this link is key to understanding why not every instance of balancing is part of the proportionality test and that proportionality cannot be as ubiquitous as many have claimed. This has not only analytical relevance, but also institutional consequences.
{"title":"Balancing may be everywhere, but the proportionality test is not","authors":"Virgílio Afonso da Silva","doi":"10.1017/s2045381723000187","DOIUrl":"https://doi.org/10.1017/s2045381723000187","url":null,"abstract":"Abstract The relationship between balancing and proportionality has not always been clear. Because part of the literature falls short of adequately differentiating between the two tools, many people have become conditioned to see an instance of proportionality whenever the word ‘balancing’ is dropped. As a consequence, the ubiquity of balancing brought about the feeling that proportionality is equally ubiquitous. In this article, I show that the proportionality test is necessarily linked to judicial review and how this link is key to understanding why not every instance of balancing is part of the proportionality test and that proportionality cannot be as ubiquitous as many have claimed. This has not only analytical relevance, but also institutional consequences.","PeriodicalId":37136,"journal":{"name":"Global Constitutionalism","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136312779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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