Towards a theory of neoliberal constitutionalism: Addressing Chile’s first constitution-making laboratory

1. Introduction

In his article in a recent issue of Global Constitutionalism, Mark Tushnet argues that there are resonances between constitutional law’s globalization and the ideological project of neoliberalism.¹ According to Tushnet, these correspondences can be traced to both the structural and rights dimension of the constitution, with a robust judicial review process due to its distrust of popular politics, and a strong property rights regime characterized by a first-generation rights priority over second- and third-generation protections. However, Tushnet does not attempt to analyse real case scenarios. As he mentions, his speculation is in a preliminary state of formulation.

This article is an effort to shed light on Tushnet’s claim, and to explore the possibilities of a theory of neoliberal constitutionalism considering the Chilean constitution-making experience between 1973 and 1980.² In this regard, this study is both normative and institutional. It aims to examine and understand the ideology underlying the key complex legal structures that constitute the Chilean economic and political system. It is also normative because it supports Global Constitutionalism’s agenda by recognizing how specific rules and normative principles traditionally related to the development of modern state constitutions have been progressively extended to the global order.³ The article focuses on the initial stage of the advance of neoliberal ideology, and the special attention paid by the neoliberals to shaping normative rules and principles at the level of national constitutions as a means of promoting their market-oriented views.

In Latin America and the developing world, neoliberalism has commonly been understood as a theory of market fundamentalism. It has been identified at length with the political economy of the Washington Consensus–a specific economic recipe that includes trade liberalization, deregulation and privatization, and a background of austerity programs, including cuts to public spending.⁴ Traditionally, with its capitalist imperatives, the neoliberal project has been understood as an isolated economic phenomenon. However, as Karl Polanyi declared, markets are embedded in the social structures of politics, law and culture.⁵ In this sense, from the very beginning neoliberals rejected the presumed belief of a natural order represented by the market. They recognized that a precondition for a well-functioning market society was a particular legal order and institutional design, in which the state played...