On the one hand, the Constitution is, in the words of Alejandro Silva Bascuñán, "the fundamental law of the organization of the State", or "the supreme law of a nation" as José Luis Cea said. What does this mean? It means that it is the body of norms that establishes the rules of the game, delimiting what each organ of the State can do; and, thus, restricting the power to protect all citizens, especially the most vulnerable. But, of course, the Fundamental Charter does not contain only the organic design (the organization of the State), that is, it is not only the distribution of political power. On the other hand, the Fundamental Charter also has the pretension of being an institution that is rooted in the identity, culture, history and conscience of a nation. In this way, it would be expressive of the ethos1 of a nation (Cea, 1999). For this reason, it is different from any other legal tool.
The concepts of Fundamental Charter, Political Code and Magna Carta, among others, are synonyms of Constitution.
The Constitution is the fundamental norm of the legal system, therefore, all the rest of this system, together with the institutions created, are subject to the principles and rules it establishes. Therefore, the Constitution is of fundamental importance, since it delimits and defines at least two key aspects: the distribution of power and its limits based on fundamental principles and rights.
The fundamental charters constitute the political power, the administration and the bases of institutionality; thus, in essence, they demarcate the rules of a society.
On the other hand, the symbolic or social dimension of constitutions cannot be ignored. That is why, unlike other legal tools, we find in them allusions to phrases such as "We the people", preambles, stony clauses, in some cases mention of God, and so on. In such cases, constitutions also reflect the shared identity or civic vision of the community, which is expressed in common principles.
However, constitutions should rather be understood as arbiters of the game, not as players who will define, delimit and respond to each of the needs. In other words, they are the ones who establish the "rules of the game", those who participate in it (State bodies, intermediate organizations, individuals) and the way in which they relate to each other.
For all of the above reasons, these bodies of law have two dimensions: one vertical and the other horizontal. Thus, on the one hand, its vertical dimension implies the subordination that must exist towards the rules established by it, in particular by the different branches of the State and various authorities; and, on the other hand, its horizontal dimension implies the enforceability of the rights that it recognizes in all social spheres by individuals. For example, in a concrete situation between individuals or institutions such as a school and a worker who feels he/she has been unfairly discriminated against, and it is not only enforceable in relations with authorities. In this way, it can be claimed directly alleging an infringement of the Constitution.
First of all, this is not -and, by their nature, constitutions hardly are- a neutral Fundamental Charter. Given the definition of principles and rights clearly indicated in various parts of the constitutional text, an orientation committed to what has been called "core values of constitutionalism" is recognized (Cea, 1999). The section of the Charter that indicates the fundamental principles and rights that it recognizes and enshrines is known as the dogmatic part. The Constitutional Court has pointed out that "they are not mere declarations, they are express mandates" that the legislator, the government and the administration must comply with. At this point, the value of human dignity stands as the fundamental value or consequential precept that serves as the basis from which other principles, and in particular, fundamental rights, are derived. For this reason, for example, the Constitution does not grant rights to persons, it recognizes them, inasmuch as they are prior to it and are part of human nature. Thus, the Constitution merely recognizes rights prior to the existence of the Constitution as a normative body, since they are inherent to our being as persons.
VALUES AND PRINCIPLES
These are more abstract concepts in the case of values, or more concrete in the case of principles, which guide the interpretation and application of norms of all kinds. For example, a value is that of human dignity, which must be considered when creating or interpreting a law; and a principle is that of subsidiarity, which specifically indicates when the State can act in an entrepreneurial manner.
Some of the principles that are currently included in the Constitution in its first chapter (articles 1 to 9) are:
The serviciality of the State: The notion that, since the person is prior to the State, the State must be at the service of the person and not the other way around.
Transparency and probity.
The common good: The good of the person in society, of each and every one.
Recognition that the family is the fundamental nucleus of society.
The principle of subsidiarity?
FOR EXAMPLE, LET'S TALK ABOUT SUBSIDIARITY.
At the beginning, there was much debate as to whether or not the Constitution actually included the principle of subsidiarity in a direct manner. Today there is a consensus that it is a principle that is implicit in the constitutional text and is broken down from those sentences in which the text recalls that society is organized through intermediate bodies and recognizes their due autonomy for the achievement of their purposes.
In any case, this principle has been the source of much debate and has even been one of the characteristics that, in public discussion at least, has generated criticism for this Constitution. But what is subsidiarity?
Subsidiarity is a political principle that has been formulated in various ways throughout history. It has often been defined solely in economic terms, that is, as a defense of market freedom, which can be called the "neoliberal" formulation. In this sense, subsidiarity would enshrine the limit to the State not to intervene when the market produces efficient results, and, therefore, only operate in those aspects where the market "fails".
On the other hand, the "classical" formulation of the principle considers that subsidiarity is of notorious importance - even essential - for the social order, and emanates from the dignity of the human person and his natural sociability. It holds that it applies to the entire social organization, without being limited to a certain group of institutions, given the way in which they relate and articulate with each other. Therefore, it is not limited only to the relations between the State and the market.
In this sense, it can be seen that there is a double dimension to this principle: a horizontal one, where it seeks to inspire the relations of the various social organizations among themselves; and a vertical one, where it inspires those between the State and these organizations. Thus, the higher organizations must refrain from those activities that the lower organizations can carry out on their own, but, in addition, they can and must help them by providing them with the necessary means to fulfill their own purpose, or encourage them.
Therefore, it does not refer only to the limit to state intervention in the actions of individuals, since there are more superior organizations than this and, in addition, it includes the horizontal dimension of subsidiarity, in which organizations cooperate with each other to meet their own purposes. Thus, a sports club, for example, may receive support from a company, union or other type of social organization in order to fulfill its specific purposes as a club".
FUNDAMENTAL RIGHTS
These are those recognized by our Constitution in Article 19, in addition to those found in international treaties ratified by Chile. The 1980 Constitution increased this catalog by including, for example, the right to live in a pollution-free environment and the right to education.
Why does the Constitution recognize and ensure rights to persons, and not confer them, for example? The reality is that from the recognition that the person is prior to the State and of the principle of human dignity, these fundamental rights are broken down as part of the very nature of each person.
Therefore, they are not granted because the constitutional text recognizes them or not. However, given that it does, there are those who postulate that, in this matter, the Constitution would have a humanist and anthropocentric view, given the centrality of the person in its formulation.
The rights currently recognized by the Constitution are addressed in Article 19 and are as follows:
01 The right to life and to physical and psychological integrity.
02 Equality before the law
03 Equal protection of the law in the exercise of rights and due process.
04 The respect and protection of privacy, the honor of the individual and his family, and the protection of his personal data.
05 The inviolability of the home and of all forms of private communication.
06 Freedom of conscience and the free exercise of all religions.
07 The right to personal liberty and individual security.
08 The right to live in a pollution-free environment.
09 The right to health protection.
10 The right to education.
11 Freedom of education.
12 Freedom to express opinions and to inform, without prior censorship.
13 The right to assemble peacefully, without previous permission and without arms.
14 The right to petition the authority.
15 The right to associate without prior permission.
16 Freedom of labor and its protection.
17 Admission to all public functions and jobs.
18 The right to social security (unemployment, disability and pensions).
19 The right to unionize.
20 Equal distribution of taxes.
21 The right to develop any economic activity.
22 Non-arbitrary discrimination by the State and its agencies in economic matters.
23 The freedom to acquire dominion over all kinds of property, except that which nature has made common to all persons.
24 The right of ownership in its various forms and over all kinds of property.
25 The freedom to create and disseminate the arts and the copyright on these creations.
Finally, numeral 26 establishes that, by mandate of the Constitution, these fundamental rights may be regulated, limited or complemented by legal precepts (i.e., non-constitutional norms). However, it establishes the constitutional guarantee that these forms of regulation or limitation may never affect the essence of the rights or create conditions, taxes or requirements that prevent their free exercise.
In view of this, we know that rights are not absolute, since they may conflict with each other and it is legitimate to regulate them, as long as the condition is met that this regulation is made by law -it seeks to generate a guarantee of impartiality- and never taking away their essential content, as we have already said.
To see the complete list of the precepts click here. here to view the Constitution online at the National Library of Congress website.
We can say that in one way or another we are already immersed in a "constituent moment". With the incoming plebiscite on October 25 of this year -where the vote will be voluntary- two issues will be decided: (i) whether to approve or reject the creation of a draft of a new Constitution, and (ii) which would be the body in charge of such task: a Constituent Convention or a Mixed Constituent Convention.
If the rejection wins, the 1980 Constitution will remain in force. If the approval wins, on March 11, 2021, the Constitutional Convention will be elected, which will be composed of the Convention under the model that wins in the second vote of the plebiscite of October 25, 2021. If the Constitutional Convention wins, 155 members will be elected, who will be citizens specially elected for this purpose; and if the Mixed Convention wins, it will be composed of 172 members, of which 86 will be citizens specially elected for this purpose, and the other 86 will be Parliamentarians currently in office elected by the Plenary Congress.
Once the members of the Convention have been elected, the first decision to be taken, by absolute majority at its first session, is to elect a Chairman, a Vice-Chairman and a Technical Secretariat made up of persons of academic or professional competence. Then, they must approve the rules of operation and voting regulations by a quorum of 2/3 of the members in office of the Convention.
The Convention shall have a period of operation of 9 months, extendable only once up to 12 months (1 year); the extension may be requested by the President of the Convention, or by 1/3 of its members. During the functioning of the Convention, the 1980 Constitution shall be in force.
Finally, once the Convention finishes its work, a new plebiscite must be voted, this time mandatory, to approve or reject the proposed Constitution. If it is approved, the new Constitution will enter into force. On the other hand, if it is rejected, the current Constitution will remain in force.
Once the proposed text of the new Constitution has been drafted and approved, the Convention shall be dissolved as of right.