Constitutional change and social justice

By mid-2022, Chile's constitutional convention will offer the country a new constitution project. In an exploratory approach, the presentation examines the content of the new social and economic rights provision. I evaluate the major departures from the previous 1980 Constitution and analyze their design achievements and shortcomings from a comparative constitutional perspective. If the authoritarian and neoliberal 1980 Constitution was formulated to impede a real commitment to social and economic redistributive policies, the ongoing democratic constitution-making process, in words of the political agreement that inaugurated it, is an institutional solution oriented to obtain “peace and social justice.“ However, every new constitution is written in the shadows of the old one. I attempt to discuss the constitutional challenges that the new provisions face for the future in their connection with the organic dimension of the new constitution.

In the first Peruvian Constitutions, citizenship was limited to specific individuals. Wealth and education were requirements for voting and being elected. The elites justified these requirements with a paternalistic view: that most people were “not ready“ to make decisions themselves. Currently, the Peruvian Constitution establishes a fiscal constitutional framework that very strongly limits the state's power to tax and distribute wealth. It not only forbids certain kinds of taxes but concentrates the power to tax in the central government and specifically prohibits referendums on tax matters. In this article, I argue that the paternalistic arguments used 200 years ago to restrict voting rights are extraordinarily similar to the arguments used nowadays to limit the power to tax in the current fiscal constitutional framework. I sustain that these arguments are incompatible with even very limited versions of democracy.

Poland and Hungary, whose constitutional systems can no longer be described as ‘liberal democracies‘, face a deep crisis in the rule of law. Common to them is that the populists responsible for those crises came to power by placing particular emphasis on social issues in their election campaigns. In my presentation I will try to provide answers to two research questions. (1) Do the examples of constitutional systems of Hungary and Poland confirm or disprove the hypothesis that there is a relationship between the constitutional socioeconomic status of an individual and the occurrence of the phenomenon of populism leading to the collapse of the rule of law? (2) Has a shift in the paradigm of protection of personal and political rights and freedoms, which took place in Poland and Hungary, been accompanied by a change in the paradigm of social and economic rights and freedoms and the mechanisms for their protection?

From constitutional litigation to constitutional amendment, crises have the potential of forging new stories for social rights constitutionalism. Scholarship has documented the impact of the 2008 economic crisis and the sovereign debt crisis in Europe on social rights constitutionalism, mostly focusing on informal constitutional change emerging from constitutional review of austerity measures. However, in the years that followed the crisis, two bailout states, Greece and Ireland, witnessed a development of projects of formal constitutional change involving social rights. The presentation explores potential links and interactions between these projects of constitutional reform with the crisis legislation and case-law. I ague that, even though it could be easily assumed that there is an obvious link between constitutional social rights demands and the constitutional experience of the sovereign debt crisis and austerity, the discussed developments paint a more complex picture.