Law and Critique

https://doi.org/10.1007/s10978-020-09258-8

Constituent Moment, Constituted Powers in Chile

Fernando Atria1

© Springer Nature B.V. 2020

Abstract
This article discusses the concept of constituent power and its application to the
situation in Chile after the 18th October 2019. In particular, it discusses the rela-
tion between constituted and constituent powers, with a view to understanding the
significance of the 15 November Agreement that opened the way for the ongoing
constituent process.

Keywords  Chile · Constituent power · Constituted powers · Constitution

A constituent moment is the inversion of the relation between facts and norms.
In constituted moments, norms (institutional decisions) are the measure of facts.
This means something simple and obvious: norms are issued to affect the behaviour
of their addressees, on the assumption that facts will conform to them. When a norm
is not complied with, the offending behaviour is declared ‘illegal’. If an action is
illegal it will usually be the object of an institutional reaction aimed at denying it,
thus ensuring the reality of the assumption that defines normal times.
In constituted moments norms are issued by constituted powers. Constituted pow-
ers are themselves created by norms, and thus limited, specified, regulated, relativ-
ized, etc. The decisions they make, the norms they create, are as subject to norms as
any other action in normal times, for norms are the measure of facts. Hence if con-
stituted powers fail to follow the rules their actions or decisions are illegal, void, etc.
All this changes with the irruption of a social power whose content is initially negative: no
to the current order. Constitutional theory has a name for such a social power that bursts in,
denying the current conditions of life (in this sense demanding new ones): constituent power.
Constituent power is a form of power. Not of power in a normative sense (it is not
granted by a valid norm), but of power as ‘the human ability not just to act but to
act in concert’ (Arendt 1969, p. 44). ‘Constituent’ here indicates a quantity: power

* Fernando Atria
fatria@derecho.uchile.cl
1
Faculty of Law, Universidad de Chile, Santiago, Chile

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 F. Atria

in such a quantity that its irruption can cause the inversion that defines a constituent
moment.
Since it is not a normative power, constituent power is not limited, specified,
regulated, relativized by norms; it has neither pre-established competences nor
given procedures. It is irrelevant whether its action is labelled ‘legal’ or ‘illegal’;
what it does cannot be said to be void. Constituent power is an actual political
magnitude.
When a constituent power appears, facts become the measure of norms.

II

The inversion is sometimes mistaken for one of its usual consequences, the sus-
pension of constituted powers. Thus, to explain the distinction between a constitu-
tional reform and a new Constitution, between a decision by constituted powers to
change constitutional laws and a decision by constituent power to change the Con-
stitution,1 Hans Kelsen claimed that ‘decisive is only that the valid constitution has
been changed or replaced in a manner not prescribed by the constitution valid until
then’ (Kelsen 1960, p. 209). The reason for this is clear: constitutional forms and
procedures exist to protect the Constitution, to ensure that through the exercise of
ordinary powers of amendment only constitutional laws, but not the Constitution
itself (the fundamental political decision), can be modified. The regular exercise of
constituted powers is, by definition, subject to the relativizations and conditions of
constituted powers, because norms are the measure of facts.
But since constituent power is not bound by constituted decisions or norms,2 it
can choose to express itself using any form. ‘Any form’ means any form, includ-
ing constituted forms, paradoxical as it may sound. In these cases, instead of sus-
pending constituted powers, the irruption of a constituted power is channelled
through the forms of constituted powers. Some commentators are misled by this
to claim that the notion of a constituent power is dated, that it has been super-
seded and belongs to the past.3 Some others claim that if it is channelled through
constituted forms it cannot be constituent power.4 These are serious mistakes,
because the fact that a constituent power chooses to express itself though the

1
  This distinction between the Constitution and constitutional laws is, as Carl Schmitt rightly says, ‘for
constitutional theory the beginning of any further discussion’ (Schmitt 2008, p. 75).
2
  ‘As the pouvoir constituant that antecedes the legal constitution, the constituent power of the people
cannot be legally established by the constitution itself, nor can the forms in which it expresses itself be
fixed’ (Böckenförde 2017, p. 175). Notice that this statement must be read both ways: constituent power
is not only not limited by constituted forms, but is also free to use them.
3
  See the views of some Chilean constitutional scholars in Muñoz (2020).
4
  Thus (in the Chilean discussion), Professor Carlos Peña argued: ‘According to Carl Schmitt […], con-
stituent power is always outside the rules: the sovereign is the one who decides when exceptions are
made to the rules and not the one who complies with them. If people are to be the sovereign, then they
cannot be subject to rules!’ (Peña 2015). This is contradictory: since people are sovereign, the form in
which constituent power expresses itself would be, to a certain degree, ‘fixed’: not through constituted
procedures.

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Constituent Moment, Constituted Powers in Chile

forms of constituted powers does not mean that the relation between norms and
facts is not inverted.

III

When norms are the measure of facts, procedures of norm-creation assume in gen-
eral that norm-creation is important because different norms will cause different
states of affairs in the world. Law can regulate collective bargaining, for example,
on the assumption that different regulations will make a difference in the world as
to how weak or strong workers’ collective agency will be and this in turn will (con-
tribute to) define labour relations. Much of what we could call ‘normal political
science’ is dedicated to identifying non-obvious ways in which this is the case: here
much attention has been devoted to failures or costs of enforcement, unintended
consequences and the like. But the assumption remains in place: since norms are
the measure of facts, we discuss norms because they will determine (or at least
considerably affect) what actually happens. This is the constant background of both
the normal and the pathological aspects of day-to-day politics: public discussion,
accountability, lobbying, attempts to ‘capture’ the regulator and so on. Because the
regulation of collective bargaining will to some extent determine the reality of col-
lective bargaining, it will be the result of a myriad of considerations of different
normative standing: by the correlation of forces among different political ideolo-
gies pushing for different regulations, by the strength of unions and the correlative
strength of capital, by particular interests like those of politicians who want to
be reelected or to show gratitude to their donors, by the lobbying of big business
pressing for the regulation that suits them and the like. The interaction of these and
other factors will lead to regulations more or less fine-tuned to reflect the way in
which all these forces are, in fact, accommodated. There is nothing new here, this is
normal politics.
This is, as we have explained, different in a constituent moment, caused by the
irruption of a constituent power. In order to channel constituent power through con-
stituted forms the paramount aspect of decisions by constituted powers is that they
be recognized by constituent power. If they are, constituent power will act through
them, and the new Constitution will be reached in a peaceful way. To be able to
channel constituent power constituted powers will have to make a radical ‘switch
in time’. They will have to abandon their normal perspective of carefully crafting
norms to serve those interests that have been relevant in norm-creating procedures,
under the continued assumption that facts will conform to them. Instead, they will
have to assume the perspective of creating norms fit for constituent power to express
itself.
Needless to say, this switch is highly improbable. Given the reversal of the
norms/facts relation, however, failure to perform it will not mean that constituent
power will not act, but that it will disregard the decisions of constituted powers and
choose whatever other means are adequate for its expression. The improbability of
the switch in time and the reality of the inversion explains the fact that the irruption
of a constituent power usually means the suspension of constituted powers.

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 F. Atria

IV

Why talk about constituent power as an agent, rather that just as a social force
that irrupted? This is indeed part of its development, and has some important
consequences (see below, n. 8). The moment of its irruption is what we could call
the moment of negativity, in which its constituent content is read from the nega-
tion it carries (‘No to the current order’). If violence and repression are enough to
negate this negation, no constituent moment, no inversion of the norm/fact rela-
tion will follow, and the events will be remembered as plain rioting. But if there
is power in constituent quantity, the moment of negativity will lead to a moment
of positivity. And it will be increasingly difficult or cumbersome to avoid using
the language fit for agents.
The need for this language is a consequence of the fact that, in this moment of
positivity, constituent power does appear as a normative power. Not in the sense,
already explained, of a power granted and relativized by a norm, but in the sense
that it creates norms. And norms are decisions. And decisions assume agents that
take them. The hypostatization of constituent power is a political necessity, a con-
dition of freedom.
But what this hypostatization describes are actual political events. Whether
or not constituent power ‘recognizes’ the path opened by constituted powers, for
example, is something that can be observed, something about which, as explained
in the last section, we shall have important indications in the coming weeks.

The suspension of constituted powers can have severe consequences. This is not a
form of institutional fetishism but something learnt from experience, particularly
in Chile. It is also something that Salvador Allende saw as clearly as possible,
before the 1973 coup, in controversy with his own Socialist Party:
The Socialist Party must be fully aware that if the people got to power on
the 4th November 1970, in the regular form in which it did, it was precisely
because of our institutional system. Had it been corrupted or rotten, it would
have broken down and Chile would have probably entered into a state of
unbounded violence (Allende 1972).
Much hinges, therefore, on the ability of constituted powers to recognize a
constituent moment and to make the switch in time from the usual strategies and
horse-trading of normal politics to denying themselves and becoming the mouth-
pieces of constituent power.

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Constituent Moment, Constituted Powers in Chile

VI

The 18th of October (what the media has eloquently labelled the estallido social
[lit., social explosion]) marked the beginning of a constituent moment in Chilean
history, still under development. I assume the reader has had a chance to look at
the splendid piece by María Pardo-Vergara and Octavio Ansaldi in this volume,
in which the events since that day, including the ‘Acuerdo’ (agreement) reached
by political forces on 15th November 2019 and its aftermath are described with
enough detail. I will not describe them again here, but interpret them in the light
of the considerations above.
Since 18th October the inversion between norms and facts that marks the irrup-
tion of a constituent power is notorious. This can be seen clearly in the November
Acuerdo. Its point was to create a constituent process that could be recognized by
a constituent power as a path that would in fact allow for its expression. The usual
calculus and cajoling of normal politics was to a considerable extent suspended,
because constituted powers realized that if no such path was offered, constituted
powers (‘institutional stability’) were at risk. This suspension was, so to speak,
objective rather than subjective. It is clear that up to the early hours of Friday 15th
November there was much negotiation and horse-trading, but in severely restricted
conditions. This was shown by the fact that with the Agreement all the locks that had
kept in place the Constitución tramposa for 30 years, all those devices that gave the
heirs of the Pinochet regime a veto to prevent real constitutional change (on which
see Atria 2013), suddenly evaporated. A constitutional referendum, which had been
categorically rejected three years before (and not only by conservative thinkers but
also by some reputedly centre-left jurists and intellectuals5), was announced to gen-
eral acclaim. The new constitution would be discussed and decided by a ‘Constitu-
tional convention’ that would decide from a clean slate subject to a 2/3 quorum.6

5
  See, for example, Zúñiga (2015, p. 193), who opposed the idea of a constitutional referendum claim-
ing that ‘it stinks like a constitutional loophole’ that was likely to lead to ‘Caesarisms or authoritarian-
isms’, reducing Parliament to the condition of an ‘accomplice to the President’ in the latter’s attempts to
‘irregularly crush political minorities’; also Patricio Zapata, who claimed the referendum was a ‘short-
cut’, a ‘cunning trick’ (‘pillería’) (see López and Faúndez 2015). Professor Zúñiga is a prominent consti-
tutional scholar, member and regular advisor of the Socialist Party; Professor Zapata, on the other hand,
had recently been appointed by President Michelle Bachelet to chair the Council that would oversee her
government’s (eventually failed) attempt to set off a constituent process.
6
  Constituted procedures of constitutional reform are defined by two features (see a detailed explanation
in Atria 2015): on the one hand, there is a constitution in force that will continue to be in force as long as
it is not reformed; on the other, they must satisfy high countermajoritarian requirements (in the Chilean
case, the vote of 2/3 of members of Congress). This means that those who support the status quo need
only a third (plus one) of the vote to carry the day. This is the unilateral veto that supporters of Pinochet’s
regime claimed for themselves, and they used it assiduously over the last 30 years to prevent the amend-
ments of the cheats that define the Constitución tramposa (except of course, when they had no use for
them). By removing the first condition of procedures of constitutional reform (the new Constitution will
have to be agreed from a clean slate), the Agreement eliminated this unilateral veto: since there is to be a
clean slate, nobody is in a position to use a minority to maintain the validity of a constitutional provision.
The veto is now contained in the 2/3 requirement, but it is significantly different: now it is a negative veto
(a minority of more than 1/3 can prevent a given content to gain constitutional status), and is entirely
reciprocal (any minority of more than 1/3 enjoys it).

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 F. Atria

Given that a cheating Constitution could only survive these 30  years because any
reform required the consent of the cheats’ beneficiaries, the Agreement meant in fact
giving up the Constitución tramposa.

VII

The Agreement seemed to show that constituted powers had been successful in
making the required switch in time; that they realized they were in a constituent
moment, that the relation between fact and norms had been reversed. Right-wing
parties agreed to a referendum that they had opposed as much as they could when it
had been proposed in the past. And they also accepted to give up their unilateral veto
power, replacing it with the reciprocal veto implied by the 2/3-from-a-clean-slate
rule.
It is clear that they gave up their veto not because of normative considerations
(as if they had been convinced that it was unfair), but because they understood that
clinging to it risked the whole institutional structure. This is the political reality of
the inversion that marks constituent moments.
The possibility of failure was considerable at the beginning. Some refused to
accept the reality of the inversion, rejecting the need for the switch in time. Thus,
right after the Acuerdo some on the Right started to have second thoughts. Maybe
they had conceded too much too quickly; maybe it was not a constituent moment;
maybe they had mistakenly thought that there had been an inversion of the norm/fact
relation; maybe they could have got away without giving up all the cheats. Maybe,
all of this is to say, there was a way to back out of the constituent process. Right-
wing Senator Andrés Allamand led the way. A few days after the Agreement he
claimed that it did not envisage a clean slate (Peña 2019). This, of course, was (and
was widely seen as) an attempt unilaterally to walk out of the Agreement.
Some others claimed that there had not been a switch in time, or that it had not
been radical enough. The extraordinary levels of public distrust of institutional poli-
tics in Chile7 (themselves the consequence of the Constitución tramposa and the
neutralization of politics that it sought and achieved) gave credence to those who
criticized the Agreement as a shady deal made behind the backs of the Chilean peo-
ple by ‘politicians’ to prevent significant change.
This was fuelled by some of its less obvious implications that came to light over
the following days. One in particular has been at the centre of public discussion:
according to the Agreement, the Constitutional convention was to be elected sub-
ject to the same rules applicable for normal elections to the Cámara de Diputados
(the lower chamber). This would have (inter alia) three highly problematic conse-
quences: in the Constitutional convention women and indigenous peoples would be,

7
  According to what is widely seen as the most reliable poll (available at cepchile.cl), support for the
President was at an all-time low of 6%, and Congress fared even worse with 3%.

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Constituent Moment, Constituted Powers in Chile

as they are in the Cámara de Diputados, grossly under-represented, and only candi-
dates belonging to political parties could realistically hope to be successful, because
of the rules of proportional representation. And political parties are one of the most
distrusted institutions in Chile; another legacy of the Constitución tramposa (see
Atria et  al. 2017). For this reason, the very social force that made the constituent
process possible was likely to be excluded from the Constitutional convention.8
In the discussion of these three issues we have seen a constant coming and going
from the constituted and the constituent perspective. They were supposed to be set-
tled by the end of January by complementary legislation, but that proved impossible.
In the first week of March, however (February is a holiday month, with Congress not
in session), the prospect of big demonstrations for Women’s Day created the condi-
tions to vote on gender parity at the Convention, which was approved. In this case,
the constituent perspective won the day. But it is unlikely that there will be adequate
solution to the issue of political parties, and of course we are to this day not clear as
to how the 2/3 requirement will affect the working of the Constitutional convention.

VIII

It is too soon to know whether constituted powers will maintain the switch they were
able to make in November; and it is also too soon to know whether the constitu-
ent power will be convinced by the designed procedure. We shall have a first clear
indication of the latter in the voter turnout of the coming referendum. Ordinary elec-
tions have a very low turnout in Chile.9 A change in this trend in the constitutional
referendum would mean that the path opened by the Agreement has been recognized
by constituent power, and this will likely lead to a successful constituent process that
will produce a new Constitution and a solution of the Chilean legitimacy crisis. If
there is no change in turnout, we will have to understand that the procedure was not
deemed apt by constituent power. In this case the so-called constituent process will
continue but pro forma, as a constituted procedure; it will not lead to a new Consti-
tution, nor will it be the channel chosen by the constituent power, which will then
find other ways to express itself.

8
  The social force that irrupts saying ‘No to the current order’ need not be politically articulated. No
political articulation is necessary in this moment of negativity. But in order to act in the moment of posi-
tivity political articulation is necessary. And because of the radical rejection of political parties already
mentioned, the social force that irrupted on 18th October lacked political articulation. This is the reason
why, as explained in the main text, unless this problem is solved somehow (and there are under way dif-
ferent initiatives to solve it), that social force risks exclusion from the Constitutional convention.
9
  In the 2017 presidential election, 46% of those entitled to vote (a surprising 49% in the ballotage). In
the previous local elections of 2016, 35%; in the previous, 2013 presidential election 49% (41% in the
ballotage). Detailed and aggregated data is available at www.serve​l.cl/estad​istic​as-de-parti​cipac​ion/.

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 F. Atria

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