Against the Constitution of “protected democracy”: the emergency of the 2021-2022 chilean constituent process

Abstract

The present work is an exploratory research developed in the field of constitutional history on the emergence of the Chilean constituent process of 2021-2022. The objective of this paper is to understand, in general terms, in what sense constitutional law and politics relate with each other in the Chilean historical process, starting from Chile’s 1980 Constitution, imposed by the Military Council. This work employs as its guideline some of the main criticisms directed to the 1980 Constitution: (i) its illegitimate imposition; (ii) its limits on political participation, due to the model of “protected democracy” adopted; and (iii) its limits on State's action to guarantee social rights and intervene in the economic domain. On these grounds, it seeks to understand the process of constitutional institutionalization of the Chilean dictatorship and (iv) the attempts to modify or to overcome it, analyzing in what senses the constitution works as an obstacle for the popular demands that peaked in the so called “estallido social”. The paper concludes (v) with the hypothesis that the Chilean “constituent convention”, in its emergence from a critique of the core of Pinochet’s constitutional project, will take the persistent disputes over the memory and legacy of the dictatorship to center stage: what did the authoritarian modernization promoted by the dictatorship actually constituted?