Abstract
A group of scholars has shown that the theory of constituent power—which seeks to describe and justify the dismantling of the constitutional order and its replacement with a new ...constitution—is flawed. The analytical tools the theory deploys fail to explain how constitution-making processes unfold. Also, the theory has been subject to normative challenges that question its democratic nature. However, the theory remains a mainstream idea in many countries, and some academics have attempted to defend its democratic nature. I claim that those attempts have rendered the theory meaningless or failed to address all of its problems. I then raise two objections. First, the constituent power theory cannot be used to justify most—if any—constitution-making processes without an excessive idealization of the founding moment, but we are yet to understand the actual costs of that idealization. Second, redeemers of the theory need to decide whether constitution-making can operate under reasonably favorable electoral and democratic conditions or not. Ideal conditions are improbable when constitutional change is carried out in response to a crisis. In the unlikely case that these conditions can be met, using an idea of constitutional change as radical as the constituent power theory is not warranted from a normative perspective. I call this the dilemma of constituent power redemption.
In my Foreword entitled "Is It Time to Abandon the Theory of Constituent Power?" I attempted to identify the problems of the "conventional" version of the constituent power theory (CPT) and evaluated ...whether recent uses of the CPT have solved those problems. The CPT's conventional version is often presented as content-independent, as it cares more about the people becoming the subject of constituent power than focusing on what exactly the people say. Some of its core features include rejecting competing ideas of legitimacy and distinguishing between the powerful constituent power and the constrained 'constituted' power. Some CPT defenders have provided for specific modifications or narrowed down its uses. I claimed that the examined attempts have failed to remove all of the CPT problems. I also argued that even though some redeemers may find ways around some CPT problems, they frequently do so at a high cost. Redeemers should face what I have called the "dilemma of constituent power redemption." Either constitution-making processes occur in ideal scenarios (which makes the conventional theory implausible and lacking explanatory power), or constitution-making processes occur under flawed conditions, making democratic procedures defective, unlikely, or subject to important normative challenges-making the theory less attractive to legitimize constitutional founding moments without using an idealized approach to constitution-making. My ultimate goal was to open a conversation on whether the CPT is, in the end, a useful blueprint for constitution-making, a beneficial political narrative for constitutional replacement, and a useful idea that scholars, politicians, social leaders, and legal actors should continue to use. An invitation to discuss the feasibility of possible substitutes was implicit in my argument.
Constitutions change in different ways, and some constitutions – such as the Chilean Constitution – change often. The significant changes to the Chilean Constitution have been frequent and fast, and ...they have accompanied the failed constitution-making processes of the previous years. Examples include crucial sub-constitutional statutes such as the electoral system regulation and same-sex marriage, political practices challenging the power of the president in the law-making process, constitutional rules such as term limits for legislators, judicial practices such as the enforcement of social rights and the amendment procedures of the Constitution itself. Despite the successful attempts at reforming the Constitution and the failed attempts at replacing it, Chileans are still trying to replace the constitutional document. However, the constitutional framework has become unstable, making it harder to agree on what exactly is wrong with it. This article seeks to open a conversation in the constitutional literature. It argues that constitutions can become moving targets and uses the Chilean case to show the need to theorize more about the moving target problem.
Some scholars argue that constitutions may include an insurance that aims to protect the political rights of prospective electoral losers and prevents a dominant ruling coalition from undermining the ...competitiveness of the political system. Although some insurance scholars have recently paid more attention to the conditions that make an insurance more likely to be effective, the scholarship seeking to identify the limits of the insurance is still scarce. The literature on courts and democratization may help us to understand those limits by exploring successful and failed experiences. In this article, I argue that after constitution-makers agree to including an insurance, the incumbent regime may delay its implementation or, if the insurance is implemented, the regime may employ different political and legal strategies to eliminate it. I identify some of these strategies using examples from the Bolivian constitutional system. I argue that the Bolivian 2009 Constitution included an insurance and that the Evo Morales regime eliminated it with the help of the Constitutional Court. Although insurance theory expects constitutional courts to guarantee key institutional arrangements, the Bolivian experience shows that constitutional courts may in fact execute the opposite task, and that after constitution makers negotiate and approve an insurance, the challenge is to secure its implementation and survival.
Constitutional designers establishing a new judicial review mechanism can fail to make that mechanism a relevant instrument for checking the power of incumbent legislators or presidents. Judges may ...refuse to exercise their newly established powers, politicians may refuse to obey their rulings, or the judiciary may be packed, among other possible reasons. The causes can be attributed to the existence of a dominant party system, the lack of political competition, problems of institutional design, or judicial culture. This article contributes to the understanding of this problem by exploring the failed constitutional mechanism that Chilean constitutional designers established in 1925. The 1925 Chilean 'Constitution' established the power of judicial review of legislation for the first time in Chile's history, but the Supreme Court generally avoided to be involved in political battles. Chile had a competitive political system with frequent and regular rotation in power. The literature claims that, under these conditions, we should expect judges to be more independent and empowered, but this is not what happened in the Chilean case. Scholars studying this period of Chilean constitutional history generally associate the passivity of the Supreme Court with a legalistic culture promoting an apolitical and formalistic judicial behavior. This article claims that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court's choice not to intervene in politics, but more attention needs to be given to the institutional weaknesses of the judiciary of that time and to the possible strategic judicial choice.
Abstract
This article shows that John Hart Ely’s defense of judicial review, as elaborated in his book Democracy and Distrust, has had little influence in Bolivia and Chile. However, that observation ...does not mean that a theory justifying judicial review when a political market failure is identified is useless for examining both countries’ judicial decisions. The author argues that an Ely-an procedural approach to judicial review can help justify or reject Chilean and Bolivian rulings—or judicial inactions—if certain conditions are taken into account to adapt Ely’s theory to both jurisdictions.
Abstract
Chile initiated a constitution-making process in late 2019, after the major political parties signed an agreement to respond to the massive demonstrations that took over the streets in ...October of 2019. Dominant trends in Chile and Latin America’s constitutional thought typically examine this type of process through the lenses of the constituent power or transformative constitutionalism. The authors of this essay offer a different view. They argue that Chile’s constitution-making process, as designed by the multiparty agreement, manifests a double aversion: to avoid the Bolivarian way of constitution-making—including its associated constituent power narrative—and to put an end to the institutional and symbolic legacy of the Pinochet regime. In attempting to stay clear of these two negative models, the authors argue that the rules of the constitution-making process have adopted the main features of the post-sovereign model of constitution-making.
This essay seeks to contribute to the literature that asks how interim constitutions can become self-enforcing norms capable of producing a successful constitution-making process. It uses the Chilean ...constitution-making process as an example to theorize on how the political narratives associated with the November 2019 Agreement, which sets the framework for constitutional change, can influence its selfen-forcing capacity. The authors identify and reconstruct the two prevailing normative theories underlying the Chilean constitution-making process: the evolutive and the revolutionary narratives. These present themselves in both radical and moderate versions. While evolutive ideas emphasize institutional continuity, consensus-building, and an incrementalist approach to constitutional change, revolutionary arguments rely on the constituent power theory and push for a profound social transformation that can break with the past. Even though these narratives are in tension with each other in many respects, they have both influenced the design of the rules of the constitution-making process. The authors claim that the self-enforcing capacity of the interim constitution partly depends on whether, and to what extent, the moderate versions of these narratives succeed or prevail in the political discourse.
Urea is the main precursor of ethyl carbamate in fortified wines, which is in turn mostly produced by Saccharomyces cerevisiae due to the arginine catabolism during alcoholic fermentation. Due to its ...potential safety risks, efforts have been taken to reduce ethyl carbamate content by reducing the urea produced. However, most of them have been made through genetic manipulation, and their use in the food industry is therefore limited by legal constraints. In the present study, the adaptive laboratory evolution technique had been used to improve this trait in a diploid wine yeast already used at industrial level to obtain Sherry base wine. For this purpose, the genetic variability of the yeast population was increased by sexual reproduction and subsequently canavanine, a toxic arginine analogue, was applied as selective pressure to select yeast variants with lower urea production. Finally, an evolved variant that showed 62% lower urea content than the parental strain, also displaying an enhanced fermentative performance, was selected. The base Sherry wine obtained at industrial level not only showed a lower urea and ethyl carbamate content, but also an improvement in the aromatic profile, being fruitier and fresher than that obtained with the parental strain mainly due to an increase in ester content.
•Urea and ethyl carbamate were reduced by adaptive evolution using l-canavanine.•Evolved strains upregulated the expression of permeases as well as urea amydolase.•Fermentation performance was enhanced by selected yeast variants.•Wine at industrial level showed better aromatic profile than with the parental one.
This introduction to the symposium ‘How do Constitution-Making Processes Fail? The Case of Chile’s Constitutional Convention (2021–22)’ situates the project in the field of constitution-making, ...provides context regarding the Chilean case, summarizes some possible explanations for the failure, and describes how each article contributes to the symposium as a whole.
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