Citizens’ perceptions and the legitimacy of constitutions and governmental institutions

Constitutional academic debates have highlighted the relevance of elements such as the gap between citizens’ perceptions and understandings and the bureaucratic and technical aspects of constitutional law and policy making, together with unhappiness, lack of representativeness, and lack of trust amongst others. Based on the experience of empirical work in Latin America under the Foundations of Institutional AuThority (FIAT) Project, this presentation focuses on the challenges to access understandings of power, together with notions of legitimacy and authority that underlie citizens’ interactions with ruling institutions. As such, the presentation offers some inputs to consider in the design and practice of constitutional research, particularly in terms of including voices that are usually left aside. It also offers insights regarding how the general population talks about constitutions, governments, and the legislative and judiciary branches.

Uruguayan constitutionalism through the “urgent consideration laws”

Uruguayan Constitution confers on the Executive Branch the power of sending bills to Parliament with a “declaration of urgent consideration.” In case Parliament decides to give it urgent treatment, the project must be treated within a maximum period of 90 days. In 2020, the new government, using that power, sent to parliament a bill with the declaration of urgent consideration, composed of 501 provisions referring to various public policies. The exceptional process of parliamentary discussion and the vast content of the law aroused serious criticism, to the point that a referendum appeal was filed against 135 provisions of the law, that will be held on March 27. Based on this case, it is intended to analyze three dimensions of constitutionalism in Uruguay: the evolution of relations and tensions between the Executive and Legislative Branch, the quality of parliamentary debates, the use of direct democracy mechanisms, and the scope of the Uruguayan judicial review.

Chile’s political crisis and its constituent process

Chile used to be commended as a “model” case of transition to democracy, due to its stability and relative success in generating growth and reducing poverty. Yet, as Chilean democracy seemed to be dominated by institutions unable to tackle widespread forms of inequality, it faced episodic eruptions of protest movements. Despite the rhetoric of popular power, these protests were the work of a fragmented and inorganic composite of social movements, whose only power was to further deteriorate the political authority of government structures. The constituent process faces enormous challenges to reconstruct political authority. Political parties are plagued by infighting, ideological drift, and lack of credibility, and, consequently, unable lead the process of constitution-making. More importantly, given the high levels of distrust of parties and demand for direct participation, it is unlikely that the new constitution will contain provisions that look after the health of the party system.

From popular distrust to deliberative constitutionalism

Since its origins, constitutionalism has had two main objectives: the limitation of power and the guarantee of rights. It has been concerned with guaranteeing rights through institutional mechanisms that ensure the limitations of government and avoid the tyranny of the democratic majority. Thus, the history of constitutionalism has been part of the so-called liberalism of distrust towards society. However, at the end of the 20th century, democracy took a deliberative turn, proposing a model of political decision-making through an inclusive and dialogic procedure –based on trust towards society. Although deliberative democracy has now become the most predominant model, it has not systematically advanced the analysis of objections to the judicial review. In this context, the aim of this paper is to explore the possibilities and limits of a constitutionalism that is oriented towards resolving the objections to the judicial review on the basis of the premises of deliberative democracy.