Crisis of the Democratic Constitution-Making Theory: Reflections on the Chilean Experience

Abstract

Democratic constitution-making theory emphasizes the importance of direct and indirect participation of the people in the constitution-making process and maintain that the decisive influence of the people would most probably ensure the social legitimacy and longevity of a constitution. In addition, the theory argues that participation in such process would bring about a gradual decrease in the prevailing social cleavages and promote a common future ideal for each member of the society. Chile stands out as the most recent proving ground of this theory in recent years. As a matter of fact, the Country experienced a highly transparent and participatory constitution-making process via a constituent assembly, following the transition to democracy after long years of authoritarian rule. However, to many observers’ surprise, the draft constitution was rejected by a landslide majority. This represents not only a political crisis in Chile, but also a moment of crisis for the democratic constitution-making theory. In this study, the recent developments in Chile are scrutinized and the potential deficiencies of the process-oriented constitution making are discussed under four sections namely, problems of participation and inclusiveness, negative reflections of the participatory constitution-making process on the constitution, and the media and communication aspect of such process. Finally, fundamental assumptions of the democratic constitution-making theory are tested in the light of Chilean experience, and it is stated that the theory produces somewhat inconsistent results as seen through the lenses of the inductive method of legal studies and the deductive method of political science. Realizing that the theory fails to provide an absolute explanatory power on the 19th century constitutionalism, as well as several constitution-making experiments of the 20th and 21st centuries, “contingency” approach is proposed to support the validity of the theory.