Chile Reborn: Overturning Chile’s neoliberal constitution – ABC News

Almost a year after mass protests forced the Chilean government to announce plans to revise the countrys constitution, Chileans have voted overwhelmingly to rewrite the current constitution, developed during the dictatorship of General Augusto Pinochet. When exit polls showed that more than 78 per cent of voters had voted for a new constitution, Santiagos Dignity Square filled with ecstatic people, celebrating under the slogan Renace Chile Chile Reborn!

Following its 1973 military coup, Pinochets military junta presided over one of the worlds earliest and most brutal neoliberal experiments. People were in prison, as the Uruguayan writer Eduardo Galeano remarked wryly, so that prices could be free. Chile was an experimental laboratory for neoliberal economic policies, but it was also a testing ground for neoliberal constitutionalism. If Chile today is among the most unequal countries in the OECD, this is in no small part due to the juntas success in consolidating its economic agenda through constitutional means.

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Chiles Constitution of Liberty was approved in a 1980 plebiscite that was held in a climate of intense repression in which no electoral rolls existed and a blank vote was counted as yes. It provided the blueprint for a free market society protected from democratic interference. The constitution embodied the dictatorships blend of neoliberalism with conservative Catholicism; along with commitments to private enterprise, choice, and market competition, it stressed dignity, freedom of conscience, the protected status of the Church and the centrality of the family as the basic core of society.

Incongruously for a constitution introduced by a military dictatorship, its first article was: Men are born free and equal, in dignity and rights. It would be easy simply to dismiss this rights language as a cynical ploy by a regime that practiced torture and disappearance on a wide scale. But the constitution reflected the neoliberal contention that rights could be used to protect private property and prevent political interference with the inequalities of civil society. The constitution enshrined rights of ownership over all classes of property, including the rights of private citizens over water.

Even what appear to be social and economic rights to health, education, and social security turn out to be rights of private enterprise to compete in offering services on the same terms as the state. The Pinochet constitution prohibited discrimination in favour of state provision, and its right to education gives private companies free rein to offer private schools and universities. Much as intended, these provisions have led to privatisation of much of Chiles education system.

The constitution explicitly aimed to depoliticise Chilean society. It stipulated that educational institutions and intermediate institutions between the individual and the state should be free of politics, and introduced penalties for those who violated this stricture. Going further, it declared it unconstitutional to use or incite political violence or advocate the establishment of a totalitarian system or a society based on class warfare. It banned trade union leaders from being members of political parties, and prohibited public sector workers and many others from going on strike. The real threat to human rights, it stated was terrorism a capacious category that could be extended to include any opponents of the junta and its economic model.

Chicago School economists were central to training a generation of Chilean economists and to promoting the countrys neoliberal shock treatment. But neoliberal thinkers influenced Chiles constitution as much as they shaped its economy. In 1977, during the first of two visits to Chile during the juntas rule, the Austrian neoliberal economist Friedrich Hayek met with Pinochet and discussed his views on the danger of unlimited democracy.

Hayek recalled later that the general listened carefully, and requested that he send him any materials he had written on the question. His secretary recalls that he asked her to send the chapter The Model Constitution from his three-volume work, Law, Legislation, and Liberty. In that chapter, Hayek disparaged the unlimited democracy that prevailed in much of Europe and the Western world. Doubting that a functioning market had ever arisen under such a democracy, Hayek also suggested it was likely that such unlimited democracy would destroy an existing market order. He would prefer a liberal dictator, he told Chiles El Mercurio newspaper, to a democratic government lacking in liberalism.

Chiles 1980 constitution shared its name with Hayeks major work, published two decades earlier, The Constitution of Liberty. In that book, Hayek praised constitutionally limited government for using inviolable individual rights to bind temporary majorities and for preventing interference with the spontaneous order of the market. The role of a constitution, in Hayeks view, was to constrain democracy, and rights existed to secure economic freedom at the expense of social welfare.

Hayek argued that the spontaneous order of the market required an appropriate legal regime to insulate it from political intervention. Rather than advocating laissez-faire, Hayek believed that the rules on which the spontaneous market order rested could be designed. Hayekian neoliberalism aimed to fine-tune the legal framework that would secure submission to the overall market order.

When asked in 1978 whether his account of spontaneous order inherently biased outcomes in favour of past discriminations or past inequities, Hayek responded bluntly: It accepts historical accidents.

It was this conservative reverence for spontaneous evolution and inherited inequalities that made Hayeks thought attractive to Catholic anti-totalitarians in Pinochets administration and to the traditional Chilean right, horrified by the levelling policies of the previous socialist government of Salvador Allende.

Jaime Guzmn, the conservative Catholic legal scholar who drafted the 1980 constitution, attributed his own conversion to neoliberalism to his discovery of Hayek. Guzmn was central to the adoption of a constitution that locked in the juntas reforms by emphasising a version of freedom that prioritised the freedom of property owners and enterprises over the political freedoms of citizens. In Hayeks work, Pinochets crown jurist found proposals for a constitution of liberty that would protect the market from (democratic) interference. In Guzmns vision, preserving economic freedom required suspending the rights of those who threaten the market order.

It was Hayeks mentor, the Austrian neoliberal economist Ludwig von Mises, who spelled out the necessary relation between market freedom and political repression most clearly: in a market economy, the state does not interfere with the market, Mises argued in his magnum opus, Human Action. It employs its power to beat people into submission solely for the prevention of actions destructive to the preservation and the smooth operation of the market economy.

Hayek himself singled out Pinochet and the Portuguese dictator Oliveira Salazar as leaders of authoritarian governments under which personal liberty was safer than under many democracies. In Chile, Hayek praised the junta for its willingness to run the country without being obsessed with popular commitments or political expectations of any kind. The fragile spontaneous order of the market required a strong state to beat into submission those who sought to interfere with market forces.

Following the results of the recent vote to rewrite the constitution, the Financial Times reported that Fitch Ratings had downgraded Chiles sovereign debt from A to A-, on the basis that demands to increase social spending in the wake of last years protests had damaged public finances. It also quoted anonymous critics who warned that replacing the existing constitution would generate spending pressure to fund public services, and so threatened to undermine Chiles fiscal discipline and orthodox economic policy. They may be right. The lesson of Chilean neoliberalism is that economic freedom requires a depoliticised society, and fiscal discipline requires a legal order that protects the market from the people.

If Chile is to be reborn, as those who are celebrating the recent poll results hope it will be, it must break with the discipline that Pinochets regime violently secured, and its constitution sought to lock in in perpetuity.

Jessica Whyte is Scientia Associate Professor of Philosophy at the University of New South Wales. She is the author of Catastrophe and Redemption: The Political Thought of Giorgio Agamben and The Morals of the Market: Human Rights and the Rise of Neoliberalism, and an editor of Humanity: An International Journal of Human Rights, Humanitarianism and Development.

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Chile Reborn: Overturning Chile's neoliberal constitution - ABC News