How Not To Write A Constitution
Chile’s voters had the sense to reject a radical and unwieldy proposal.
In a referendum on Sunday, Chileans voted 62% to reject a constitution that could never have been implemented. To be clear, everyone in Chile (well, 78% of voters) agreed that the old, Pinochet-era constitution the country still uses is outdated and in need of an overhaul: minimalist to a fault and lacking basic legal guarantees, it reads like the libertarian fever dream it always was. But the Constituent Assembly that sat in 2021 to draft a replacement text yielded an unwieldy mess so overstuffed with aspirational language, it’s simply useless as a functioning document. Instead, it’s an example of what you might call Latin America’s churrigueresque style in constitution drafting.
In the 17th century, with the Counter-Reformation in full swing and the Spanish Empire at the peak of its power, the Crown went on a church-building spree. The preferred style was the baroque, which embodied a more-is-better approach to ornamentation. As the 17th century turned to the 18th, the church-building frenzy spiraled into a kind of decorative arms race, with patrons and architects striving to out-do one another in just how much ornamentation they could cram onto a single altar or façade.
The trend reached its peak with the work of José Benito de Churriguera, whose buildings were so over the top they’re faintly ridiculous. His name gave rise to an adjective nobody has ever meant as a compliment: the “churrigueresque,” reserved for works whose absolute lack of restraint turn them into unwitting parodies of themselves.
The constitution Chileans just defeated is a startling example of Latin America’s penchant for the constitutional churrigueresque. Animated by a vague sense that if rights are good then more rights must be better, Chile’s constitution-drafters treated right-granting the way Churriguera treated ornamental detail. In the process, they turned even their good ideas into parodies of themselves.
Take housing. Everybody needs a place to live, and everyone agrees governments should do what they can to make sure everyone gets one. But anyone who thinks about it for a moment or two also understands that housing costs money, and so establishing a constitutional right to housing could have unintended consequences, because treating anything that costs money as a right inevitably limits the budgets available to finance other things. Where resources are scarce, tradeoffs are inevitable.
A constitutional convention might, on reflection, decide that housing is so important that it is still worth enshrining as a constitutional right. But if that’s the path it chooses to follow, it had better do it with its eyes wide open and be ready to make painful accommodations elsewhere.
But that’s not how constitutional churriguerism works. The Chilean text doesn’t just give citizens a legal right to housing: it positively mandates the state to make sure they get it. What’s more, the government must ensure the “universal and timely enjoyment of this right, contemplating at a minimum the habitability, space and sufficient equipment, both domestic and communal, for the production and reproduction of life, the availability of services, affordability, accessibility, appropriate location, security of tenure and cultural relevance of housing, in accordance with the law.”
It just keeps going. The state is mandated to ensure the availability of land necessary for the provision of decent and adequate housing, to taking positive steps to prevent land speculation, as well as take part in the design, construction, rehabilitation and conservation of housing.
So far, I’ve taken you through just one article in the proposed constitution. There are three-hundred and eighty-seven more, and most of them follow the same maximalist approach. Again and again new rights are set out in lyrically expansive terms. You don’t just have a right to healthcare, you have a right to “health and holistic well-being, including its physical and mental aspects.” The state doesn’t just have to make sure you can see a doctor, it is mandated to create the conditions for you to reach “the highest possible state of health.”
In education, in environmental protection, in the workplace, in gender equality, in indigenous people’s affairs, even in things like sports and “intercultural dialogue,” vast new rights are enshrined with nary a thought about potential conflicts between them.
It’s easy to see how this monstrosity came about. The Assembly elected to draft the text was dominated by progressive activists, and a fierce sort of group-think seems to have run away with them. Instead of asking hard questions about how a state organized this way could function at all, members competed with one another to prove themselves progressiver-than-thou by casting their policy goals in the phraseology of rights and cramming them into the constitution. The result was a text where everything is a right.
But where everything is a right, no right is enforceable.
Think about it: if Chileans took the text at its word and started lodging legal actions demanding the positive enforcement of each right in it, the country would grind to a halt within a week. No polity on earth could ever be wealthy enough to provide all of the goods this constitution presents as “rights.” Under a deluge of injunctions, judges would be forced to issue a string of contradictory rulings, each enjoining the state to spend resources it doesn’t have to solve problems states can’t solve.
Alternatively, judges might opt to treat the constitution, as they say, “seriously but not literally.” In practice, this would mean cobbling an altogether different constitution through a series of rulings designed to work around the text’s many obvious impossibilities.
The problem is that to do this, you have to act as though whole swathes of the constitutional text just aren’t there. And from that, it’s just a short skip and a hop to judicial lawmaking and outright authoritarianism. Trust me, I know. My own country, Venezuela, went through a similarly churrigueresque constitution drafting process in 1999. The document that resulted was beautiful—a genuinely stirring description of an earthly utopia. (If anything, our housing article goes even farther than the Chileans’, enshrining the right to “a habitat that humanizes relations between families, neighbors and communities.”)
But blind to tradeoffs and resource limitations, the text soon proved utterly unworkable as a way of organizing what the state must and must not do—which is why judges soon learned to ignore it and rule the way their political masters wanted them to rule instead. A few years later, when those same masters turned dictatorial, our churrigueresque constitution offered no resistance at all: it was already a dead letter.
Governing means choosing. Tradeoffs between desirable aims are inevitable, and that’s precisely why we have democratic politics: so duly elected politicians can process those conflicts and resolve them legislatively in an accountable way. Chile’s hapless drafters never seem to have gotten that memo. For them, if it’s desirable, it’s a right. More than a constitution, what we had was constitutional fan fiction.
Fortunately, Chileans had the wisdom to say “no” to a churrigueresque constitution which, having promised everything, would have delivered nothing, disappointing everyone. If its politicians are responsible, they will now take up the unglamorous but necessary work of replacing the old, Pinochet-era constitution with one fit for the 21st century.
Francisco Toro is a journalist and the Content Director for the Group of 50.