Chile and the Ship of Theseus

Should a constitution imposed by a dictator be reformed or replaced?

Note [added October 19, 2020] - I talk below about the origins of Chile’s unique (and now defunct) binomial system, characterizing it as the brainchild of Jaime Guzmán. The story turns out to be a bit more complicated than I implied. This article does an excellent (and exhaustive) job explaining who created the system and why. Very briefly: The binomial system was not created by Guzmán, though he did support it adamantly, and it wasn’t codified until 1989, after the famous 1988 plebiscite but before the all-important 1989 elections. It was undoubtedly intended to limit the influence of anti-Pinochet forces, but it also emerged from frustrations with the role of a PR system in general, and the Christian Democrat Party in particular, in the breakdown of Chilean democracy in the early 1970s. This is pretty arcane stuff, I realize. Most of what I say below holds up. The article linked above is worthwhile for folks looking to go deep into the weeds on the history of Chile’s electoral system.

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Theseus, the mythical founding hero of Athens, is said to have returned victorious from Crete in a ship that the Athenians then preserved for centuries in his honor. Over time, though, the trireme’s wooden planks began to rot. And so, year after year, decade after decade, they were replaced with new ones, until little of the original material remained. That led the Greek philosopher Plutarch to wonder: In light of all those changes, was the Ship of Theseus still the Ship of Theseus? Or was it a different ship altogether?

Plutarch’s question is an example of what philosophers call a problem of identity — namely, how much change can a certain thing undergo and still be, fundamentally, the same thing? Philosophers before Plutarch had posed this type of question, most famously Heraclitus, who suggested that a river’s ever-flowing water meant you could never truly step in the “same” river twice. And even today, 2500 years after Heraclitus, one of the most vibrant debates in philosophy has to do with personal identity — that is, what makes a particular person the same person over a long span of time, or after a brain surgery, or after dementia? Meanwhile, pop-philosophers in the United States, echoing Plutarch, invented their own distinctly American identity problem: If George Washington’s famous old axe has its handle and, later, its head replaced, is it still George Washington’s axe?

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In October of 2019, protests erupted on the streets of Chile. The estallido social, as it became known in the Spanish-language press, was ostensibly sparked by a negligible increase in metro fares but quickly ballooned into a broad outpouring of fury at inequities and indignities present in Chilean society. Enormous marches paralyzed the country. “Chile despertó” became the refrain of this new movement: Chile has woken up. No single issue unified the protestors — grievances included paltry pensions, soaring education costs, the destruction of the environment, and abuse of Chile’s indigenous peoples — but they quickly coalesced around a single solution to the myriad problems they identified: A new constitution, written from scratch by an assembly of citizens.

In mid-November, in an extraordinary move, Chile’s conservative government acknowledged that demand and agreed to hold a plebiscite that would present the public with a simple yes-or-no question: Should the existing constitution be replaced?

The current Chilean constitution dates to the Pinochet dictatorship; it was drafted with no democratic input in 1980, and then “approved” in a national plebiscite widely regarded as fraudulent. Since Chile’s return to democracy in 1990, the constitution has been amended dozens of times, sometimes quite substantially. And yet, overwhelmingly, Chileans continue to view the constitution as illegitimate and misguided, a relic of the Pinochet Era.

You might say, in other words, that Chileans still see the same ship as before. Though many important planks and crossbeams have been replaced on Chile’s constitutional Ship, it is still widely regarded as fundamentally Pinochet’s constitution. The Ship of Theseus, for Chilean protestors, will always be the Ship of Theseus.

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In May of 2020, George Floyd was murdered by Minneapolis police officers in broad daylight. Horrified bystanders filmed the scene. The recording, and the similarity of the killing to numerous other incidents of police brutality, sparked nationwide outrage. Massive marches protesting systemic racism took place around the country. Under the banner of the #BlackLivesMatter movement, activists called for fundamental changes in policing, education, housing, and voting rights in the United States. Corporations, universities, and civic groups underwent institutional reckonings. Meanwhile, pollsters recorded one of the most rapid and dramatic changes in public opinion ever seen, with a vast majority of Americans agreeing for the first time that racism was a major problem facing the country.

Yet even in the context of broad awareness that racial inequity lay at the heart of the American project since its founding, Black Lives Matter protestors have never called for the US constitution itself to be replaced.

In a way, that’s surprising. The US constitution, which dates to 1787, was written by a group of white men who excluded women, enslaved peoples, and Native Americans from the numerous privileges and freedoms they eloquently outlined for themselves. Particularly odious clauses in America’s founding document included the infamous 3/5ths rule, a proto-Fugitive Slave Act, and an implicit twenty-year approval of the Atlantic slave trade. Given that around half of the constitution’s framers were slave-owners themselves, it’s worth asking if the document they produced is irredeemably imbued with racism.

Prior to the Civil War, many abolitionists thought so. William Lloyd Garrison regarded the constitution as vile, famously declaring it “a covenant with death and an agreement with Hell” before burning a copy in a public spectacle. William Wells Brown, a well-known antebellum orator who had escaped slavery, also saw the constitution as unsalvageable. "I would have the slaveholder’s constitution torn in shreds and scattered to the four winds of heaven," he announced. "Let us destroy the constitution and build on its ruins the temple of liberty." Anti-Slavery Societies around the country regularly advocated for its repeal throughout the 1850s.

But after the Civil War, rather than creating a new constitution from scratch, victorious abolitionists altered the existing document. The 13th, 14th, and 15th Amendments, often called the Reconstruction Amendments, explicitly prohibited slavery, established equal protection of the laws, and gave black men the right to vote. You might say the amendments amounted to replacing several crucial, and very rotten, planks in the US constitutional ship.

These days, most Americans seem to see the constitution as a new ship entirely, one that has been updated so much that it no longer perpetuates the founding sins of racism. Thurgood Marshall, a former Supreme Court chief justice, articulated this view on the bicentennial of the constitution, in 1987. While others rah-rah’d about the brilliance of the constitution’s framers, Marshall was more circumspect. He wrote that the constitution was “defective from the start” and had required “two turbulent centuries” and a Civil War to correct. The result? “A new, more promising basis for justice and liberty.” The old constitution had died. The Reconstruction Amendments had created a wholly new document.

For Marshall, and for most Americans, changes to the Ship of Theseus created a new ship entirely.

What is it, then, about the Chilean constitution that makes it irredeemable in the eyes of Chilean activists? Why do they call for a blank-slate, root-and-branch re-writing of the document, rather than a US-style process of amendments and revisions? Why build a new ship entirely, rather than replace the rotten beams?

The answer is, of course, complex.

Pinochet’s constitution is a wily document. Its lead author was a far-right Chilean lawyer named Jaime Guzmán, an Opus Dei member, Franco-admirer, and cunning legal thinker. Guzmán’s constitution established what was euphemistically called a “protected democracy” — that is, a democracy that would be “protected” from the will of the people. “When our adversaries are governing,” Guzmán wrote, “they should be constrained to act in a way that is not very different from what we would wish.” The constitution, he said, should be like the edges of a soccer field; political ideas that Pinochet didn’t like would be “out of bounds.” As a result, the document Guzmán produced included all sorts of obstacles to prevent “dangerous” or “disagreeable” ideas from becoming laws.

Many of those obstacles were obvious. For example, Article 8 prohibited expressing any ideas that “offend the family” or “are based on class conflict.” (Pinochet used this clause frequently to arrest journalists and political figures.) The constitution also provided that approximately one-quarter of senators would be “designated” by the military, rather than elected, and Pinochet himself would become a senator-for-life (senador vitalicio) upon his retirement. Finally, the constitution created an extremely powerful National Security Council that lay outside civilian and democratic oversight. These and other provisions, called enclaves autoritarios (“authoritarian enclaves”) by Chilean legal scholars, were blatant, plain-as-day attempts to quell democratic change.

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But Guzmán also included more subtle, but equally nefarious, clauses to protect Pinochet’s legacy in post-dictatorship Chile. One of the most important was called the binomial system. This gets a little dry, and requires a little detour, but it is very important to understanding the past thirty years of Chilean politics.

In the US, we elect congressional representatives using a system that political scientists call “First Past the Post,” though a more intuitive name would be “Winner Takes All.” In this system, there’s one seat up for grabs in each election, and whoever wins the most votes gets the seat. Those of us who are from the US often think that’s obviously how democracy must work, but the truth is that a Winner Takes All system has lots of strange, and potentially undemocratic, consequences. Most obviously, a candidate could get 49% of the vote — just a hair short of 50% — but get zero representation in Congress. In theory, under a Winner Takes All system, one political party could receive 49% of the vote in every election across the country but end up with no seats in Congress.

Now, a Winner Takes All system has many, many cascading consequences for American democracy — most importantly, it virtually assures that we will always have a two dominant “big tent” political parties — but for our purposes here only one thing matters: In US elections, there is no silver medal, no bronze medal, no runner-up trophy, and no participation award. You either win the most votes, or have no voice in government.

If the US defines one end of an electoral spectrum, The Netherlands is on the other. In Dutch elections, there are 160 congressional seats up for grabs in a single election. The seats are allocated by “Proportional Representation”: A political party that receives 50% of the vote will receive 50% of the seats in Congress — that is, eighty seats. Similarly, a political party that receives 5% of the vote will receive 5% of the seats — eight seats. And, in the extreme case, a party that receives .63% of the vote will receive .63% of the seats in Congress — namely, one seat! Again, this sort of system has far-reaching consequences for Dutch politics, but for our purposes the most important take-away is: In Dutch elections, there are gold, silver, and bronze medals, and many more after that. Even a party that comes in 20th place stands a chance of getting a voice in Congress.

When Guzmán designed Chile’s electoral system, he intentionally sought out a structure that would artificially preserve Pinochet’s power. You have to grudgingly admire the deviousness of his work. The regime was keenly aware that just over 40% of voters would support right-wing candidates. In a US-style Winner Takes All system, that would be disastrous for pinochetistas: 40% of the vote would translate to 0% of congressional seats. Meanwhile, in a Dutch-style Proportional Representation system, the outcome would be better — 40% of seats — but would still allow left-wing parties nearly complete power over new legislation. So Guzmán and his colleagues invented a new system, unique to Chile. They called it the binomial system.

Under the binomial system, there are two seats up for grabs in any congressional election. The party with the most votes gets one of the seats, and the party with the second-most votes gets the second seat. Now, this system may prima facie seem as reasonable as a winner takes all system — but the consequences of the binomial system benefited one group in particular: the second place party, in this case the party of Pinochet. In effect, the binomial system awards a gold medal to the winner and another gold medal to the runner-up. The top two parties end up with an equal voice in Congress.

The binomial system shows the pernicious design of Pinochet’s constitution. On its surface, the system seems fair. But it had what legal scholars call a “disparate impact”: over and over, for a quarter century, it favored Chile’s right-wing politicians, bolstering their representation in Congress.

And Guzmán managed to work many subtle institutional tricks, like the binomial system, into the text of the 1980 constitution. Others involved the composition of the Supreme Court, the parliamentary quorums needed to pass legislation, and the malapportionment (that is, unfair sizing — a slightly different concept than gerrymandering) of congressional districts. All these factors conspired to make it nearly impossible to re-shape Chile’s political economy away from pinochetista principles.

In other words, Guzmán built a ship whose central design feature was resistance to change. You could replace the figurehead or rig the sails differently, but the hull and the keel were fixed in place. The Ship of Theseus would remain the Ship of Theseus.

Pinochet’s opponents haven’t always viewed the Chilean constitution as unsalvageable, though. Ricardo Lagos, a Socialist who became Chile’s president in the early 2000s, was exiled to Argentina during the military dictatorship and became an important leader in the movement for democracy in the 1980s. As a persistent thorn in Pinochet’s side, Lagos can hardly be accused of blind loyalty to the constitution the military dictatorship created.

Yet Lagos’ governing coalition of center-left parties opted to reform, rather than replace, the constitution. In 2005, they passed a series of important amendments, over 50 in total. Many of Guzmán’s most important “authoritarian enclaves” were removed: unelected senators were scrapped, the president acquired the authority to replace military commanders, and the powers of the National Security Council were severely curtailed. More obscure changes also proved important in the long term: the legislative branch acquired more powers to oversee the executive, and the structure of the Supreme Court was changed. Finally, the 2005 constitutional reforms prohibited presidents from serving consecutive terms, laying the groundwork for a sixteen year Bachelet-Piñera ping-pong match that continues today.

Ricardo Lagos | The Elders

Lagos’ changes dealt a powerful blow to Pinochet’s constitution. It is interesting now, in light of the events of the past year, to read the jubilant reactions of anti-Pinochet politicians in the aftermath of the reforms. “Today is a new dawn for Chile,” Lagos declared. “We have finally achieved a democratic constitution worthy of the Chilean spirit.” Lagos was not alone in characterizing the changes as substantial. Other leftist leaders celebrated “the end of the transition to democracy” and “a profound change to Chilean political system.” The ceremony marking the reforms also included an important symbolic gesture: Pinochet’s signature was removed from the constitution and replaced with the signature of a democratically-elected leader, Lagos. All the changes led some to suggest that the constitution was no longer Pinochet’s constitution at all; it was, instead, the constitution of 2005.

In other words, beams and planks had been changed, and a new ship had been created. The Ship of Theseus was no longer the Ship of Theseus.

Of course, there were many Chileans who felt in 2005 that the constitutional ship had been, at best, repainted — but that it hardly amounted to a new ship entirely. Some of these voices came from the left. One critic, himself a member of Lagos’ coalition, argued that changes were essentially “cosmetic,” and the “transition to democracy remains incomplete.” Others noted that while the Lagos reforms were important, they did not add up to a “fundamental rethinking of the philosophy undergirding the existing constitution.” Moreover, lots of Guzmán’s more subtle tricks, like the binomial system, remained written into the constitution.

Over time, more and more left-leaning Chileans began to view the Lagos-era reforms as insufficient. The nefariousness of Guzman’s design became more apparent and demands for a new constitution resurged. In 2009, Eduardo Frei Ruiz-Tagle advocated for an entirely new constitution as part of his presidential campaign, but he lost to Piñera. In 2011, Chilean university students paralyzed the country, demanding reforms to higher education via constitutional changes.

Then, in 2013, Michelle Bachelet made replacing the constitution the central plank of her presidential campaign. She won a landslide victory, and her administration did succeed in making changes to the constitution — most notably, eliminating the binomial system and introducing gender quotas in congressional elections. But Bachelet’s aspirations to an entirely new constitution made it no further than compiling ideas in public assemblies, called cabildos. When Sebastian Piñera won re-election in 2017, he buried the project.

Interestingly, back in 2005, a number of right-wing politicians also harrumphed at the idea that the Lagos Reforms created a new constitution in any meaningful sense. Ironically, their arguments are identical to the arguments used by leftist protestors today to argue for a Constitutional Assembly. Andrés Chadwick, for example, was a Senator in 2005, but when the 2019 estallido social began he was Minister of the Interior, and oversaw a brutal and violent crackdown on protestors that ultimately led to his impeachment by Congress. Here is how he responded to the 2005 Lagos reforms: “This is still the constitution of 1980. Its fundamental institutions are the same as the day it was crafted. A new constitution would require a whole new constitutional process, not just a series of reforms.”

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That sentence could have come from the mouth of a 2019 protestor. Instead, it came from their fiercest opponent, 14 years prior. In 2005, right-wingers like Chadwick were proudly boasting that the legal foundations undergirding Chile’s laissez-faire economy were still strong, in spite of constitutional reforms. In 2019, left-wing protestors were making the same point, but with anger and frustration, not pride. Both agreed, though: The Ship of Theseus was still the Ship of Theseus.

These days, you hear two different styles of argument for why the Chilean constitution has to go. The first has to do with Legitimacy. The second has to do with Content.

The Legitimacy Argument says: Pinochet’s constitution was written by a military dictatorship and “approved” in a fraudulent referendum. It was invalid then and is invalid now. The only solution is to have a constitutional convention under truly democratic conditions, and write a new constitution from scratch.

The Legitimacy Argument is emotionally compelling. It reverberates with protestors who feel that they are still, after all these years, living in the Pinochet era. One of the most important refrains of the estallido social was “no son 30 pesos, son 30 años” — it’s not the 30 peso increase in metro fare that’s driving the protests, it’s the 30 years that have passed since the end of the dictatorship, without meaningful change. The “illegitimate” constitution was a big part of that.

The Legitimacy Argument is also, just as a matter of history, true. The constitution was fraudulently imposed. It was written by a group of Pinochet’s cronies, who then orchestrated its approval in a manipulated plebiscite. Principled politicians — even those sympathetic to Pinochet’s aims, like Conservative president Jorge Alessandri — were steamrolled when they objected to the process Pinochet used to push the constitution through. The constitution, even though it no longer carries Pinochet’s literal signature, is still yoked to Pinochet’s name for most Chileans.

But the Legitimacy Argument is incomplete. It speaks to very real historical pain, but it also suggests that if a new, legitimate convention passed an identical constitution, word-for-word, the problem would be solved. And, if that’s the case, why bother passing a new “legitimate” constitution at all? History is such a messy, unkempt thing. Often we are forced to work within the institutions and traditions that are handed down to us, imperfect as they are.

The Content Argument goes further. It explains what’s wrong with the current text of the constitution, rather than just what’s wrong with its origin story. And, crucially, the Content Argument explains why the existing constitution, by design, muzzles Chilean democracy in a way that prevents the Ship of Theseus from ever really changing.

There are many components to the Content Argument. Let’s start with the policy-level critiques that are most frequently leveled against the Chilean constitution. We might call these the rotten floorboards on the deck of the ship.

  1. Privatized Social Security. Chileans despise few things more than their social security system, designed under Pinochet by Sebastian Piñera’s brother, José. It is entirely privatized — a fantasy project of free-market “Chicago Boy” economists — and the benefits that reach retirees are pittances. The constitution basically obligates workers to invest a fraction of their earnings in private pension funds, called AFPs. (Walk around Santiago and you will see anti-AFP graffiti everywhere, even before the 2019 protests.) These privately managed funds charge high rates and pay out, on average, about $150-200 USD per month to retirees — well below the Chilean minimum wage.

  2. The “Subsidiary” State. This is a very important concept in Chilean jurisprudence, and it boils down to the idea that the government shouldn’t do anything that the private sector can achieve on its own. The constitution never explicitly says that the government has to be “subsidiary” (or secondary) to the private market, but the Chilean Supreme Court has repeatedly upheld the idea that the constitution implies as much. Expensive private health care and education systems — accessible only to Chile’s elites — have been the result of the “subsidiary” state idea. A common protestor refrain calls for implementing a “solidarity” state instead.

  3. Public workers cannot strike. Though government workers do strike in Chile, such strikes are technically illegal under Article 19 of the constitution. Some would like this to change.

  4. “Hyper-Presidentialism.” Whole books have been written on this one, and I won’t try to do it justice here. Briefly, though: A very common critique of South American constitutions in general is that they grant excessive power to the president. The Chilean president, for example, basically decides what legislation gets considered by Congress (rather than Congress passing legislation first, and then sending it to the president for approval). One strand of thinking says this is bad because it’s just too much authority for the president to have. Another says that it’s bad because it tends to produce gridlock, if the president does not have a majority in Congress. Either way, a lot of people agree that the role of the president in Chilean politics should change, though there isn’t much agreement on the details.

  5. Indigenous Peoples. The Chilean constitution does not acknowledge the existence of Indigenous peoples, let alone grant them some measure of autonomy.

Now, these are serious problems that would require major, concerted efforts at reform. But in and of themselves, they don’t seem merit a whole new constitution. They are policy-level problems, that could — in theory — be remedied by legislation and reform. The floorboards could just be replaced!

That takes us to the heart of the Content Argument.

The most important reason to change the Chilean constitution has to do with what we might call “meta-problems.” These are the problems in the constitution that make the other problems unsolvable.

The meta-problems aren’t just the floorboards on the ship’s deck. They’re design features built into the hull and keel, with the express purpose of making the rest of the ship extremely difficult to change.

Fernando Atria, a Chilean constitutional scholar, outlined these meta-problems in his book La Constitución Tramposa. There, he points to four “trampas” (cheats, or traps) that function as anti-democratic devices. Taken together, Atria argues, you can call these Guzmán’s Trap. Even after four decades, Guzmán’s Trap continues to constrain Chilean democracy, keeping non-pinochetista policies “out of bounds.”

The first trampa is the binomial system, the masterpiece of Guzmán’s design to artificially inflate right-wing power. When Atria published his book in 2013, the binomial system was still in effect. But Bachelet eliminated it in her 2015 reform. That leaves three remaining trampas. They are:

  1. The Supreme Court. Chile’s Supreme Court functions quite differently than the US Supreme Court. In many cases, as soon as an important law passes Congress it must go directly to the Court for a thumbs up or a thumbs down — a process called “mandatory ex-ante constitutional review.” In those situations, the Court becomes essentially a “third chamber” of Congress.

    But it’s an unelected chamber. And Pinochet fully recognized the power of the Supreme Court to protect his legacy. He engaged in shameless Court-stacking by offering older judges a “retirement bonus” and hand-picking their replacements. Even thirty years later, the Court continues to uphold an extremely Conservative interpretation of the constitution.

  2. Organic Constitutional Statutes.” Okay, I’m really trying to limit how far we go wading into the weeds here, folks. This stuff gets DRY. But, briefly: The Chilean constitution sets out a category of laws called “Organic Constitutional Statutes” that are extra-hard to modify because they require 4/7ths of Congress to approve them (rather than just a simple majority). That’s just a high-enough fraction to give the Chilean right-wing veto power over any changes. Guzmán knew that, of course — that was the point! And, naturally, the OCS’s cover all sorts of crucial policy areas: education, the courts, health, mining, national security. Those types of issues are nearly impossible to substantially reform, because of the Organic Constitutional Statutes and the unreachable majorities they require.

  3. The Constitutional Reform Process. Now we arrive at the grand-daddy of the meta-problems. Obviously, all of the above would be irrelevant if you could just change the constitution to solve the problems it creates. But changing the constitution requires 3/5ths or 2/3rds of Congress (depending on what part of the document you’re changing) to agree, a difficult quorum to achieve. The Chilean Senate and the US Senate closely resemble each other in this regard — imagine trying to get sixty or more US Senators to agree on a major policy change. It just doesn’t happen anymore.

    Of course, compared to, say, the rules for amending the US constitution, getting a super-majority in Congress seems like a pretty straightforward way to alter a constitution. (The US constitution offers several theoretical routes for amendments, but historically the only one used requires the approval of 2/3rds of the Senate and 3/4ths of state legislatures. That’s a very high hurdle.) But the crucial difference is: the Chilean constitution covers huge areas of policy that go well beyond just establishing the rules of the political game. Guzmán built the system so that even changes to seemingly non-constitutional questions — like health care, social security, and education — go through the constitution. So we aren’t really talking about the threshold for constitutional change; we’re talking about the threshold for changing any element of Pinochet’s system.

    That’s Guzman’s Trap, and it’s the fundamental reason that protestors believe in replacing, not just reforming, the existing system.

The Ship of Theseus is a paradox. Like Zeno’s Arrow, always advancing but never arriving, the Ship toys with our inability to reckon with the process of change. We use language like a net, trying to catch things as they are and fix them there. But they wiggle out. Is that window the same window once it’s cracked? Is that shirt still the same now that it’s stained? Is that cat the same creature that was a kitten last year?

Constitutions change constantly. They change when they’re formally amended. They change when they’re interpreted anew by courts. They change as language changes, imbuing old sentences with new meaning.

It’s impossible to say how much change makes a constitution “new.” The US constitution has its origins in an era of profound injustice; yet the document itself has proven remarkably pliable and resilient. Frederick Douglass, the great 19th-century orator and abolitionist, recognized the constitution’s potential when he broke with Garrison and declared it an “instrument” to be “wielded in behalf of emancipation.” Anticipating Chief Justice Marshall, Douglass considered the document flawed. But not irredeemably so. Most Americans today seem to agree.

Chileans face a very different constitutional history. The Chilean constitution was written, quite explicitly, to impede change. It is a rigid document, and proudly so. And though Pinochet’s signature is no longer on the document, it still upholds many of the institutions that Pinochet most valued, often by stifling democratic agency.

Now, in October, we’ll see if Chileans will opt to build a new ship entirely, and cut loose Guzmán’s ship and watch it quietly drift out to sea.