Verdugo, Sergio

Person:
Verdugo, Sergio

First Name

Sergio

Last Name

Verdugo

Affiliation

IE University

School

IE Law School

Department

Public Law and Global Governance

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Now showing 1 - 10 of 11

How do constitution-making processes fail? The case of Chile's Constitutional Convention (2021-22)
(Cambridge University Press, 2024) García Huidobro, Luis Eugenio; Verdugo, Sergio; https://ror.org/02jjdwm75
This introduction to the symposium 'How do Constitution-Making Processes Fail? The Case of Chile's Constitutional Convention (2021-22)' situates the project in the field of constitution-making,provides context regarding the Chilean case,summarizes some possible explanations for the failure,and describes how each article contributes to the symposium as a whole. © The Author(s),2023. Published by Cambridge University Press.
Constitutions as moving targets
(Cambridge University Press, 2024) Verdugo, Sergio; https://ror.org/02jjdwm75
Constitutions change in different ways,and some constitutions - such as the Chilean Constitution - change often. The significant changes to the Chilean Constitution have been frequent and fast,and they have accompanied the failed constitution-making processes of the previous years. Examples include crucial sub-constitutional statutes such as the electoral system regulation and same-sex marriage,political practices challenging the power of the president in the law-making process,constitutional rules such as term limits for legislators,judicial practices such as the enforcement of social rights and the amendment procedures of the Constitution itself. Despite the successful attempts at reforming the Constitution and the failed attempts at replacing it,Chileans are still trying to replace the constitutional document. However,the constitutional framework has become unstable,making it harder to agree on what exactly is wrong with it. This article seeks to open a conversation in the constitutional literature. It argues that constitutions can become moving targets and uses the Chilean case to show the need to theorize more about the moving target problem. © The Author(s),2023. Published by Cambridge University Press.
The Law As a Conversation Among Equals - A Skeptical View
(SSRN, 2024-11-08) Verdugo, Sergio; https://ror.org/02jjdwm75
In the context of the discussion about strengthening democratic regimes while facing the problems of constitutional and democratic erosion, Roberto Gargarella has offered a new regulatory ideal called "The Law As a Conversation Among Equals" to guide the discussion. He suggests placing our efforts of democratic recovery in new, more experimental forms of political participation, such as citizens' assemblies. This essay argues that Gargarella's valuable prescription for the problem may become self-defeating. If the main focus is not on helping the infrastructure of representative democratic regimes recover or heal, the focus on new experimental forms of political participation can even deepen the harm that the political systems are suffering. This is not to say that these new forms of political participation should always be avoided. As I will show, they should be used to complement and not replace representative institutions. I suggest a more modest, narrow, and cautious way to implement those participatory mechanisms. If the infrastructure of democracy is to be recovered, we should not avoid discussing issues such as the functioning of political parties, how fourth-branch institutions can impose limits and slow down processes of erosion while offering opportunities for democratic forces to regroup, and the way citizens access information and participate in the flawed marketplace of ideas.
Can Brazil’s Democratic Institutions Be Rebounded from Bolsonaro’s Authoritarian Agenda?
(2023) Verdugo, Sergio; https://ror.org/02jjdwm75
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How do constitution-making processes fail? The case of Chile’s Constitutional Convention
(Cambridge University Press, 2023-10-27) Verdugo, Sergio; García Huidobro, Luis Eugenio; https://ror.org/02jjdwm75
This introduction to the symposium ‘How do Constitution-Making Processes Fail? The Case of Chile’s Constitutional Convention (2021–22)’ situates the project in the field of constitution-making, provides context regarding the Chilean case, summarizes some possible explanations for the failure, and describes how each article contributes to the symposium as a whole.
How Can Courts Encourage Constitutional Replacement?
(SSRN, 2024-10-14) Verdugo, Sergio; https://ror.org/02jjdwm75
Courts often do not play a significant role in constitutional replacement processes. Observers have identified exceptions and theorized about the courts' possible functions during and after those processes. However, little has been said about the courts' work taking place before replacement processes occur. This essay shows that courts can help establish the conditions for constitutional change by encouraging the demand for such change. They can do that by fostering the perception that the Constitution has become a tool to help one side of the political struggle win over politically salient constitutional conflicts, thus contributing to the polarization among competing political groups. Observers have reported that backlash against the courts is possible. I claim that a backlash against the Constitution itself is also possible. Encouraging the losers of the constitutional conflict to either attack the court or the constitution is possibly an unintended consequence of judges deciding cases in politically consequential ways. The implication is that strategic judges must balance the need to resolve cases in ways they perceive correct with the longterm acceptance of the Constitution. Still, a collective action problem makes this task difficult to achieve. The essay explores these ideas using different examples and expands on how the Chilean Constitutional Court contributed to building opposition against the Constitution before the Constitutional Convention was convened.
The dual aversion of Chile’s constitution-making process
(Oxford academic, 2021) Verdugo, Sergio; Prieto, Marcela; https://ror.org/02jjdwm75
Chile initiated a constitution-making process in late 2019, after the major political parties signed an agreement to respond to the massive demonstrations that took over the streets in October of 2019. Dominant trends in Chile and Latin America’s constitutional thought typically examine this type of process through the lenses of the constituent power or transformative constitutionalism. The authors of this essay offer a different view. They argue that Chile’s constitution-making process, as designed by the multiparty agreement, manifests a double aversion: to avoid the Bolivarian way of constitution-making—including its associated constituent power narrative—and to put an end to the institutional and symbolic legacy of the Pinochet regime. In attempting to stay clear of these two negative models, the authors argue that the rules of the constitution-making process have adopted the main features of the post-sovereign model of constitution-making.
How Can Judges Challenge Dictators and Get Away With It?
(SSRN, 2021-04-13) Verdugo, Sergio; https://ror.org/02jjdwm75
The literature on constitutional courts in authoritarian or hybrid regimes typically suggests that judges who challenge such regimes in high-stakes cases risk sub-stantial political backlash. Accordingly, some compar-ative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices to prevent a clash with the governing regime. This Article suggests that those strategies are unnecessary where courts are able to preserve or promote democratic values without incur-ring backlash, and proposes one alternative strategy. Where feasible, judges should prefer this case-specific confrontational tactic to survival strategies, such as weak judicial review or constitutional avoidance. For this strategy to be successful, judges must identify and predict the regime’s expected costs of disobeying a ju-dicial decision. If the projected costs are high enough, the regime’s leaders might prefer to comply with the ruling. One way in which this judicial strategy can work is by triggering a constitutional paradox. This term de-scribes the dilemma dictators face when they are forced to decide whether to support the constitutionally-rooted.
The Uncertain Future of Constitutional Democracy in the Era of Populism: Chile and Beyond
(2023-01-25) Verdugo, Sergio; Issacharoff, Samuel
Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the forms of governance that must follow. Constitutions are necessarily the product of political and historical moments. Ours is a time of populist challenge to the restraining institutions of governance. We show how constitution-making processes taking place under existing political contexts can fail not simply despite the existence of participatory mechanisms but in large part because of them. We identify two types of failures. First, the authoritarian failure, which consists of constitution-making processes that lead to authoritarian outcomes or become part of democratic backsliding or abusive processes. Second, the activation failure, by which constitutions are not passed. This failure is likely to take place when reforms attempt to bypass established, functioning institutional actors, whatever their flaws. This article will turn to the recent failure of the Chilean constitutional effort (2022) to focus on the historic roles of non-state organizations, most notably political parties, in stabilizing and legitimizing successful democratic governance. The current trend in constitutional formation, reflecting the ascending populist ethos of our times, is to bypass the representative institutions that do exist in favor of a pact between the state and an ill-defined entity known as the people. The tendency of political power without structural checks and balances to lead to autocracy is reasonably well understood. But Chile, together with other recent examples of failed constitutional processes, highlights the risks of activation failure in democratic settings—i.e., contexts in which representative institutions exist and function, though flawed. We will argue that a relevant condition to prevent the activation failure is to use the constitution-making processes as an opportunity to strengthen the political party system by including the existing parties in the process. Success stories of constitution-making have widely shown the advantages that political compromises among rival actors bring in terms of procedural legitimacy—wide acceptance of the constitution’s content—and substantive legitimacy—the inclination of those processes in promoting politically liberal institutions but little has been said about activation failures lacking those features. This article seeks to fill this gap.
The fall of the Constitution’s political insurance: How the Morales regime eliminated the insurance of the 2009 Bolivian Constitution
(Oxford Academic, 2020) Verdugo, Sergio; https://ror.org/02jjdwm75
Some scholars argue that constitutions may include an insurance that aims to protect the political rights of prospective electoral losers and prevents a dominant ruling coalition from undermining the competitiveness of the political system. Although some insurance scholars have recently paid more attention to the conditions that make an insurance more likely to be effective, the scholarship seeking to identify the limits of the insurance is still scarce. The literature on courts and democratization may help us to understand those limits by exploring successful and failed experiences. In this article, I argue that after constitution-makers agree to including an insurance, the incumbent regime may delay its implementation or, if the insurance is implemented, the regime may employ different political and legal strategies to eliminate it. I identify some of these strategies using examples from the Bolivian constitutional system. I argue that the Bolivian 2009 Constitution included an insurance and that the Evo Morales regime eliminated it with the help of the Constitutional Court. Although insurance theory expects constitutional courts to guarantee key institutional arrangements, the Bolivian experience shows that constitutional courts may in fact execute the opposite task, and that after constitution makers negotiate and approve an insurance, the challenge is to secure its implementation and survival.