Tactics and Legal Form: Lessons for the Left After the Defeat of Chile’s New Constitution Project — Fernando Quintana

This past September 5th, in what was the election with the most participants in the history of Chile (voting was compulsory for the first time in many years), the new constitution was rejected by the citizenship by a wide margin of 61% against and only 38% in favour. What is striking and must be explained is that the rejected constitution contained a series of progressive elements, such as an important list of social rights in key areas like education, housing and health, women’s rights, and indigenous people autonomy; a political system designed to ensure a more just distribution of political power; and an important focus on the protection of the environment. In other words, the rejected constitution contained most of the demands that the social movements of Chile had been demanding in the past years, and especially during the uprising of October 2019.

What is even more shocking is that the constituent process emerged precisely from the massive protests of 2019, and was formally inaugurated after a referendum in 2020—in which the people of Chile voted with 80% in favour of beginning a process to replace Pinochet’s Constitution. In other words, the constituent assembly began with broad citizen support, but finished with the rejection of its final product.

Thus, those of us who supported and promoted the process must seriously ask ourselves: how did we go from a social uprising that challenged Chile’s neoliberal model to the democratic defeat of a constitution that sought to materialize a new political and social order? The answer to this question is complex, and the coming years will surely shed new light on all these events.

For my part, I want to focus on the structural elements that were at play in this process, and which may offer a political explanation for the defeat of the left at this juncture. I will first focus on the relation between the programme promoted in the project and the subjective element of the people of Chile. Then, I will outline some of the difficulties of the legal form as a mechanism of social change. Contrary to what many would say, I’ll argue that the problem was not that the programme was too radical, but that for several factors it didn’t manage to connect with what was demanded by the people of Chile. Although it may sound paradoxical, one of the main issues was precisely the lack of radicality in some key respects.

Too radical a programme?

Key analysts within Chile’s government coalition (the new-left ‘Frente Amplio’) emphasized that the left-wing members of the constitutional assembly didn’t look for compromises and therefore produced a ‘maximalist’ project.1 Even the President of Chile, Gabriel Boric, has recently said that the problem was that ‘we went faster than what the people wanted’2, implying that the constitutional project would have been approved if it hadn’t been so progressive. On the other hand, right-wing political analysts that celebrated the project’s rejection, claiming that the main reason was that it contained ‘purely ideological and activist banners’.3 Therefore, the vote should be interpreted as the intrinsically moderate people of Chile rejecting a leftist radical agenda.

If we accept these views, the logical consequence for any political-ideological confrontations to come is that the left should moderate its programme. Any process of transformation should be gradual, respecting traditional political consensus, and we should aim to avoid great dogmatic leaps or legal and institutional ruptures within the capitalist system.

Before accepting such a conclusion, which implies burying the left in the pursuit of short-term and medium-term goals, it is worth asking some questions. What does it mean for a political programme to be ‘radical’? What aspects of the programme were too radical? If these aspects had been moderated, would the results of the plebiscite have been substantially different?

One of the arguments employed by those who attribute the referendum outcome to the radicality of the project is based on the composition of the assembly: the left represented half of the assembly members.4 And even though the political agreement that established the constituent process demanded that everything be approved by a quorum of two thirds of its members, the left had the best position for negotiating the content of the constitution’s articles. But the fact that the left had the majority within the assembly doesn’t necessarily imply that the outcome would be too radical a project, especially considering the quorum. This produces a tautological argument: a constitutional assembly that was born out of a social uprising and controlled by the left produced a project that was rejected by most of the voters; therefore, the proposed changes were too radical.

Besides being tautological, such an argument doesn’t account for some important facts. First, it doesn’t explain what happened to the massive support that the demands for social justice (which included but were not limited to a new constitution) had during the 2019 uprising and the subsequent months. Second, it fails to consider that the leftist ideas won control over the assembly precisely based on popular vote. What must be explained is how and why the majoritarian support for a transformative project, and for a more left-wing composition of the political body to elaborate that project, diminished over time.

If we shift the focus from the outcome of the last referendum to the rapid changes in the political consciousness of the people of Chile over the past few years, an important—yet sometimes overlooked—aspect comes to mind: ideology. Ideology is not a fixed object but rather a social relationship and, as such, it is highly sensitive to the tides of class struggle. Therefore, it cannot be said that the people of a country are ‘intrinsically’ too conservative to accept some political ideas. Rather than taking the predominant ideology as a given, it is necessary to explain the concrete historical reasons that determine whether conservative or progressive ideological positions prevail at given junctures.

For almost forty years, Chile has lived under the neoliberal regime, legally and politically enshrined in Pinochet’s constitution. The social reproduction of life in Chile today depends primarily on the market. Virtually all aspects of life, from education and health to access to culture and leisure, depend on the market. Public services have been privatized (as happens with pension funds) or commodified (as happens with education). To the individual, the market appears as the natural order for the satisfaction of needs. It’s a situation that can be very well described by what Lukács calls reification in History and Class Consciousness: under capitalism, social relations appear to the individual consciousness as natural, unquestionable circumstances. Thus, what is historical and contingent, is perceived by individuals as eternal and inevitable.

Furthermore, the supremacy of the market for the social reproduction of life, together with a series of ideological devices that have been in operation in Chile for years, have built a neoliberal common sense, where ‘private’ implies efficiency and prestige, and ‘public’ implies the opposite. Therefore, in Chile we can see the primacy of an exaggerated version of the ideology of private ownership: becoming a proprietor is pretty much the only social ideal to be accomplished as a means for self-realization. Marx’s concept of alienation, as further developed by Lukács in his Ontology of Social Being, describes this situation: ‘ownership’ has become the fundamental social category through which people relate to each other and to the reality around them.

Therefore, the construction of a transformation programme based on publicly provided social rights implies a huge difficulty: anything that fundamentally changes the concrete forms of social reproduction that now appear as natural poses significant amounts of fear and uncertainty over the individuals. Thus, in a case such as the constitutional project, it requires not only a technically impeccable construction but also an important political pedagogical process whereby the common sense can be challenged and overcome. On the first aspect, we must be honest and admit that the rejected project had some technical flaws, such as the articles on indigenous autonomy and the judicial system.5 Nevertheless, the second one is the most fundamental problem: the problem of the dispute for hegemony, in the Gramscian sense of the term.

Since the year 2006, Chile has experienced a series of sectoral and partial mobilizations that have questioned this neoliberal common sense, building the first political bases for social change. Subcontracted workers, indebted students, teachers in precarious positions and women against female oppression have raised their banners and marched against several aspects of the system. However, much of the protesting was aimed at singular elements of the system or its ‘excesses’, rather than the system as a whole.

The 2019 uprising was, in some sense, heir to those partial mobilizations, in the sense that it picked up the same causes of discontent, and united them against a common enemy: former right-wing president and billionaire Sebastián Piñera, as the visible face and embodiment of neoliberalism and corporate abuse, and Pinochet’s constitution as the legal and political cornerstone of the regime. However, as is now evident, it was not the organic and programmatic continuation of those mobilizations, in the sense that the movement lacked clear structures and visible leadership, and it was incapable of taking their separate demands one step further into a comprehensive project for a new society.

The problem in this last political cycle was the absence of mass parties of the working classes, which would have made such programmatic continuity possible. The type of organic leadership and political synthesis required to generate a rupture with the neoliberal common sense as described above, and to struggle effectively to build a new hegemony, can only be accomplished by a collective subject with the capacity of producing a global point of view and a comprehensive political project for the situation. Following Gramsci, Chile’s working class lacked its modern prince, one that could materialize the scattered popular demands into a distinct project for a new society.

The popular sectors that mobilized in the 2019 uprising did so to demand access to better conditions for the reproduction of their lives. The character of these conditions, however, remained largely unspecified. The slogans of the revolt did not necessarily translate into concrete demands for one vision of society or another. Perhaps the main mistake of the left wing of the constitutional assembly was to think that, after the uprising, the favorable votes in the first referendum and the majority obtained in the election of constitutional deputies, in which the left obtained an unprecedented majority, implied that a shift in hegemony had already been produced among the people of Chile.

It was a wrong assessment of the situation. The owners of capital have much more effective means for hegemonic consolidation than the subaltern social groups. The capitalist class owns the TV channels, the radios and the printed press, and there isn’t any public media to counter the narratives that the capitalists install at their will.6 Therefore, the mass media operated practically as spokespersons of the rejection campaign, installing false news and distorting information in a shameless manner.7 They exploited the fear of change that I outlined earlier. The most concrete example of which was in the case of housing; it was claimed that the constitutional right to access housing meant that the state would expropriate everyone’s house. As Camila Vergara explains, ‘bias in traditional media, plus the millions spent to influence opinion via social media, helped to consolidate the narrative that the Convention was a political circus that had drafted a sloppy and unprofessional document.’8

Precisely for that reason it is worth asking ourselves: is it impossible for the hope of social change to defeat fear in the face of uncertainty? Should any social change be made only to the extent that it does not inconvenience the owners of capital and those whom they manage to mobilize?

Here is my point: the constitution was not rejected for being too radical, but for failing to connect sufficiently with the urge for social justice that mobilizes people to embrace the hope for social change over fear, and at the same time the project was unable to hegemonize the consciousness of the working class towards a new view of the society.

The proposed constitution’s programme combined a set of structural changes to the economy, social rights, and the distribution of political power, with an agenda of cultural changes of the highest relevance. Although the owners of capital were concerned above all with the former, they turned their media power fundamentally to exploiting the problems linked to the latter.9

Economic transformation always entails uncertainty, especially within the context mentioned above, but it is necessary for social change. The fundamental problem with the constitutional project in this aspect was that it contained no more than mere statements on these issues. They were not the legal-political framework of a clear economic and social project, but a set of declarations of intent and mandates to the legislator to implement social change. For instance, it declared an active participation of the state in the economy, but it didn’t create publicly owned corporations or mechanisms for nationalization of key natural resources such as copper. As for social rights, the best example is health: it eliminated the dual private/public health insurance providers, which is used in Chile to segregate the rich and the poor into two separate health systems. And yet the draft constitution didn’t establish the mechanisms to create a strong national health care system.

The lack of a clear social project in these matters made it really unclear how society would function if the new constitution had been approved. This is what I mean when I say that in these aspects the proposal was not radical enough, in the sense of not envisaging an alternative society in a coherent manner. The ambiguity of the provisions in the draft constitution, which may have been a tactic to appease certain fractions of capital while putting forward the demands of the working class, was actually its downfall. This incoherence allowed the forces of reaction to install the fear of uncertainty over hope and the desire for change. Instead, the constitution and the left ought to have been clear in its proposed imagination of an alternative society.

Moreover, amid the climate of economic uncertainty, other valuable elements such as the establishment of Chile as a pluri-national country, of the rights of nature and animals, a dignifying treatment to inmates, the political decentralization of the country, among others, ended up being seen as a problem rather than an advance. The forces that opposed the new constitution managed to install a fictitious contradiction between progressive cultural innovations and Chile’s economy and welfare in general. They installed the idea that the left-wing of the assembly was some sort of new progressive elite, whose interests were opposed to ‘the people’s real needs’.

Hegemony in Chile remains with the most conservative sectors of the capitalist class. The forces that fight for social change couldn’t produce a shift in the common sense and engage the majorities with their social project during the period of the revolt. As we have seen, they couldn’t do it either by translating their demands into a legal text. That must lead us to question the tactical utility of the legal form itself.

Tactics and legal form

The raison d’être of the constituent process was to offer an institutional course to channel the crisis unleashed during the 2019 uprising. Leftist sectors that intervened in that process did so with the objective of shaping a programme of changes into the constitutional text. That had an immediate consequence: practically the entire tactic of the left in Chile in the past three years has been channeled through the constituent process. This entailed a series of challenges that were not faced correctly.

In the first place, deploying a leftist programme through a constituent process convened by the Congress implied having to deal with the terrible reputation that political activity has in Chile. Pinochet’s constitution, and the regime inaugurated by it, have systematically excluded the people, turning politics into an activity made by the elite and for the elite. Key institutions like the Constitutional Court, with the power to overrule laws for being unconstitutional—where ‘unconstitutional’ means contrary to the interests of the ruling classes—have ensured the blockage of any attempt at transformative legislation. Ultimately, Chile has followed the trends of ‘juridification’, where power is transferred away from democratic institutions to judges and technocrats, and thus the possibility of substantive political action is totally neutralized.

During the last few decades, popular participation in politics was reduced to mere voting, having to choose between equally neoliberal alternatives, which brought no real social change. Thus, apathy, frustration and disaffection with the state became the predominant political emotions. Since the constitutional assembly was headed by left-wing sectors, some of those emotions, that were not generated by this sector’s fault, have nevertheless been directed at them.

The convention had the hard challenge of trying to generate a process that could activate other ways of regulating life in community, re-enchanting the people with the political exercise and calling them to vote for a political proposal for a new social contract in Chile. The bet was that the convention would show, not only by its result, but in the very way it proceeded, that this process inaugurated a new phase for democracy in Chile: a participatory democracy, where the people would represent themselves, without the mediation of a political class that only looks after the interests of the owners of capital.

The constitutional assembly has been the political body with the most diverse composition in the last forty years. Most of the deputies declared they wanted the assembly to work as a participatory democracy, close to the people and in a transparent manner. So, why did it not happen? The lesson seems to be clear: the problem with bourgeois democracy isn’t only an ‘internal’ issue of its structures and procedures or even its good will, but also an ‘external’ problem of how the people is politically organized. In other words, without mass parties of the working class holding a programme of their own and organizations with the capacity of rising a voice of their own, even the most well-intended political body will find itself being democratic only in a formal way, but substantially empty.10

As a second element, it seems to me that the left made a tactical error motivated by a certain fetishism of the legal form—the belief that, to consecrate certain values at a social level, it is essential to include them in a legal text. Thus, practically all the social movements that had some relevance in the last cycle of mobilizations wanted to have their partial demands written in the constitutional text. The result of this fetishism was a very long constitutional text, poorly articulated, inorganic, and overabundant in normative details and qualifying adjectives. If legal texts are already difficult to understand for the non-specialized population, the resulting constitutional text was particularly prohibitive to them.

Lastly, I believe that leftists have placed too much faith in the performative potential of legal declarations. The convention seemed to trust that mentioning the claims of certain social groups necessarily implied that these groups would support the draft constitution. In other words, the assembly acted as if legal declarations could work as a shortcut in the struggle for hegemony. Blinded by this excessive faith, the left did not put in enough slow work of communication and political pedagogy necessary to capture a social and electoral base of support. Abandoning that task, many groups fell prey to right-wing propaganda. Paradoxically, sectors that would have benefited greatly from the new text were some of its main detractors.

What is left for us?

In the first place, embrace defeat. Even if the mass media played an important role in spreading fake news, we must acknowledge this outcome as a defeat of the leftist tactics from the revolt to the constitutional assembly.

Second, draw the relevant lessons. Perhaps the most important ones are that the left must help rebuild the working-class parties to ensure mass influence; that the struggle for the legal structure must not be confused with the struggle for hegemony; and that the left must build a project that goes beyond the current stage of an aggregate of partial demands. A project that, starting from the existing conditions, proposes a just transition towards other ways of live

Third, prepare for what is to come. As expected, the promises of the political establishment about making their best efforts to ensure the continuity of the constituent process in case the rejection won were empty words. More than three months since the referendum have passed, and yet nothing is clear on how (if) the process may continue.

Those in favour of social change must not let themselves get trapped in a new process that offers even less expectations of success. Since the constituent process began, the left had to play an uncomfortable role of being the defenders of law as the main mechanism for social change in general, without a solid, concrete programmatic proposal and the proper mass organizations. Defending that position has had important political costs, such as distancing with some of their more skeptical, activist social bases, and leaving room for the strengthening of Chile’s far-right. It’s time to regroup, return to the criticism of bourgeois democracy and the legal form, and put the focus on building the social force for the struggles to come.

Fernando Quintana holds a law degree from the Universidad de Chile and a masters in political philosophy from the Universidad Diego Portales. He is currently a PhD student at Queen Mary University London.

1 Such is the case of Noam Titelman.

2Chile’s President Boric Addresses Students, Faculty at World Leaders Forum‘, Columbia Global Centers, 28 September 2022.

3 Such is the case of Axel Kaiser, a member of the right-wing think tank ‘Fundación para el progreso’.

4 77 of the elected members, nearly the half of the assembly, were leftist. 28 of them belonged to the coalition of President Boric, 17 of them were part of reserved seats for indigenous people, and 32 were activists of social movements. The right only got 37 deputies elected, and the remaining 45 members were more centrist. Biblioteco de Congreso Nacional de Chile, ‘Chile eligió a los 155 representantes de la nueva Convención Constitucional‘; Nicolás Massai D. and Benjamín Miranda, ‘La mitad de la convención: 77 constituyentes electos provienen de listas que impulsan cambios radicales al sistema‘, Centro de Investigación Periodística, 18 May 2021.

5 One of the most criticized aspects of the constitutional project was on the territorial and jurisdictional autonomy for indigenous people. The right-wing claimed that the articles on this topic would allow radical indigenous activists to commit crimes with impunity, because they would judge and absolve themselves. Of course, none of this is true, but the project may have been clearer, to avoid such intentional misinterpretations.

6 No more than four economic groups control almost all the public media in Chile; only two economic groups control all printed press. All these groups are related to right wing parties.

7 The situation with the spreading of fake news in Chile was so critical that even some members of the US Congress decided to address the owners of social media corporations to urge them to take action to stop it: Brett Wilkins, ‘House Dems Voice “Grave and Urgent Concerns” Over Chilean Plebiscite Misinformation‘, Common Dreams, 2 September 2022; Ana Luisa Brown, ‘US Congressmen Concern Over Fake News on Chile’s Referendum‘, Prensa Latina, 3 September 2022; John Bartlett, ‘Misinformation Abounds as Chile Prepares to Vote on New Constitution‘, The Guardian, 31 August 2022.

8 Camila Vergara, ‘Chile’s Rejection‘, Sidecar, 9 September 2022.

9 The most outrageous examples of fake news were not related to economic matters: it was said that the right to abortion would allow women to abort until 9 months of pregnancy; that the new constitution would eliminate Chile’s flag and national anthem; that crimes against property would now go unpunished; that indigenous autonomy would be divide Chile into seventeen separate countries; that terrorists would reign in the Mapuche territory, and so on.

10 Camila Vergara has correctly noted that the cabildos, local democratic councils spontaneously formed during the uprising, had the potentiality to become the base of a strong popular movement that would provide substantial democratic participation for the constituent process. For several reasons that merit a separate work, this did not happen. ‘The Battle for Chile’s Constitution’, New Left Review 135, May–June 2022.