Chile is voting today on a new constitution. It is very similar to the old constitution, but with more turgid prose and a few right-wing substantive changes that are either not worth the trouble or actively bad. You can read an English translation of the proposed constitution here; the current one is here.
The irony of how Chile got here is almost too ridiculous to be true.
The country is convulsed with riots.
A left-wing government wins the presidency by ten points; insists that the country needs a new magna carta in order to remove the stain of the old charter, which while much-revised was originally written by a brutal dictatorship.
A low-turnout election picks a left-wing constitutional convention, which then goes off the rails in a thoroughly laughable way and produces a document that creates an impossibly hamstrung governing structure wedded to left-wing “woke” language designed to upset anyone of even mildly conservative sensibilities.
Said document goes before the people in a referendum in which voting is mandatory and enforced with large fines. Chile’s conservative electorate rejects it.
The left-wing government decides to try again, creating a new process designed to prevent a runaway convention as happened at the last go-around.
But somehow that process gets hijacked by conservatives! Despite opposing the entire, process they win a three-fifths majority on the Constitutional Council. Fortunately, the safeguards built into the process keep them from running off the rails in a rightward direction, but they still manage to put a stamp on the new document.
Today’s plebiscite.
Ch-ch-changes
So what’s changes in the new document?
Abortion
Article 19, Section 1, of the current document states, “The law protects the life that is about to be born.” Article 16 of the new version reads, “The law protects the life who is about to be born.”1
Is that a significant change? The right says “no,” the left says “yes.” The new phrase was added to the draft by the elected Constitutional Council—the Expert Committee that produced the first draft (text here) wisely said nothing at all. I have serious doubts that the people who put the line back in with the new wording had some nefarious plan to take away the right of Chilean women to get abortion when the life of the mother is threatened. I have even more serious doubts that the Chilean courts will toss current law on the basis of a single word.
Health care
The current constitution protects the existence of a private health care system. That is not to say that it mandates such a system; it just says that if you don’t want to use the state system, you don’t have to do so.2 Section 10 of the aforementioned Article 19 says, “Every person shall have the right to choose the health care system that he wishes to join, whether state or private.” The new one says in Article 16, Section 22: “Every person shall have the right to choose the health care system that he wishes to join, whether state or private.”3 Yes, that is the same language.
The new version, however, does mandate that, “the law shall establish a universal health plan, without discrimination based on age, sex or medical pre-existence, which will be offered by state and private institutions.” This would move the charter in a leftward direction.
Pensions
Here the new documents moves a bit to the right!
The current version says nothing specific about the pension system, directing (in Article 19, Section 18) that “State action will be directed to ensure the access of all inhabitants to uniform basic benefits, whether they are granted through public or private institutions. The law may establish compulsory contributions.”
Article 16, Section 28, of the new proposal reads, “Each person shall have ownership over his or her old-age pension contributions and the savings produced by them, and shall have the right to freely choose the institution, state or private, that administers and invests them. In no case may they be expropriated or appropriated by the State through any mechanism.”
Substantively, the language wouldn’t stop a future Chilean government from creating a mandatory pay-as-you-go pension system. It would make it clear, however, that no transition could affect anyone who has paid into the current system. That would prevent things like Argentina’s bizarre 2008 confiscation of private pensions.4
Housing
Another big one! There is now a right to adequate housing, but Article 16, Section 29 now says, “The property intended for the owner's main residence, whether he or she lives alone or with his or her family, as the case may be, will be exempt from all contributions and land taxes. The legal exceptions to this exemption may only be based, jointly, on the high valuation of the main residence and the income of the taxpayer and his or her family.”
I have no idea how the second sentence will limit the first one, but it sounds like it could be a mess.
Immigration
Article 16, Section 4 now mandates that the state shall “release or expel in the shortest possible time” foreigners who entered the country “clandestinely” or at “unauthorized crossings.” It also mandates that foreign convicts should be deported immediately after serving their sentences.
Consultation
But the bad part?
Mandates (in Article 47) to require “consultations” before any government actions. This in a country in which the time to get an environmental approval has already increased from 600 days in 2015 to more than 1,100 now.
In addition, the document creates a host of specialized agencies. An anti-corruption agency (Article 9)
So I am hoping that Chile just says no.
Article 19 of the current constitution: “La ley protege la vida del que está por nacer.” Article 16 of the proposal: “La ley protege la vida de quien está por nacer.”
This is normal in most of the OECD. Canada prohibits most forms of private health insurance.
Current: “Cada persona tendrá el derecho a elegir el sistema de salud al que desee acogerse, sea éste estatal o privado.” New: “Cada persona tendrá el derecho a elegir el sistema de salud al que desee acogerse, sea este estatal o privado.”
When you click the link you will immediately realize that I was totally wrong about the political implications of the confiscation! CFK went on to quite a bit of political success.