Introduction

After the constitutional processes developed in recent years in Chile (2019-2023) have concluded, it is worth asking how much of them was lost in the course of their evolution and, at the same time, what elements may endure for the future. In this sense, after a few years have passed, and when analyzing the proposed contents that served as the basis for the debate of the time, one question remains latent: how much of them has it been possible to normatively integrate into our constitutional order?

Addressing this issue goes beyond mere rhetoric and can have political and legal consequences, since its answer can help precisely delineate the normative content of the Constitution that governs us, reshaping the margins of legislative debate, public policies, and the rights of individuals.

Starting from this challenge, the present work intends to develop the question: what is the legal relevance of the institutional bases of article 154 of the Political Constitution of the Republic? In relation to it, the central hypothesis of this work will be the following: “The institutional bases introduced in article 154 of the Constitution constitute valid constitutional provisions, making them useful for developing a systematic and axiological interpretation of the constitutional text”.

To deploy this argumentation, we will first reflect on constitutional interpretation in Chile and how it, by not having explicit criteria in the legal system that regulate it, opens the way to criteria emanating from doctrine and jurisprudence, such as systematic and axiological interpretation, which can even prevail over strictly literal criteria. Furthermore, based on the principle of progressivity as a method of constitutional interpretation, the relevance of an eventual repeal of the institutional bases will be questioned. Finally, we will stop at those bases that represent novel contents in our constitutional history, to conclude with the findings of the work.

For this purpose, a methodology typical of dogmatic studies will be used, mainly utilizing formal sources of constitutional rank, such as the Political Constitution and the constitutional reforms of the last five years. International sources will also be considered, especially human rights treaties, as well as specialized doctrine in the area.

With the aim of fully developing this research, the work will be divided into three parts: the first will highlight some relevant aspects of constitutional interpretation in Chile; the second will study the institutional bases, their history, function, and content; and the third will address the relevance of the institutional bases in constitutional interpretation. The work will conclude, finally, with the pertinent findings.

1. Some notes on constitutional interpretation in Chile

There has been extensive reflection on the particularities of constitutional interpretation compared to other forms of legal interpretation. The arguments seeking to justify this specificity can be grouped into two main lines: those relating to the Constitution’s own characteristics and those pointing to the interpretation techniques or criteria that must be employed.

In relation to the characteristics of the Constitution, it is usually highlighted that, due to its hierarchical superiority, as well as the function and language it occupies, it must be interpreted in a special way. As a supreme norm, the Constitutional Court (TC) has indicated that ‘the Fundamental Charter, by virtue of the principle of normative hierarchy, is above the provisions for the interpretation of laws established in the Civil Code’ (Rol 325, 2001, cons. 13), so, as these latter rules are not applicable, the meaning of the constitutional provisions would be determined by other means. In relation to its function, constitutions are, besides legal texts, documents that have ‘political value’ (Ruiz Miguel, 2013, p. 194), considering that they organize and limit power. Therefore, the significance of their interpretation goes beyond resolving particular cases and, often, has general and social effects. Finally, attention must be paid to the type of language used in the drafting of its provisions, formulated in vague or ambiguous terms, which requires an interpretive process that allows their normative content to be ‘filled in’ (Canosa, 2022, p. 22).

Regarding the interpretation techniques, they also differ from those applicable to legal interpretation. As Nogueira points out, the Constitution is a regulation that comprises a diversity of major premises that can be applied to the same facts. This often generates tensions between rights and principles, which leads to the conclusion that the method of subsumption is not sufficient (Nogueira, 2006, p. 87-88). Therefore, balancing seems to be a more appropriate method, particularly when dealing with difficult cases (Canosa, 2022, p. 70).

The foregoing will mean that the methods used have a more creative nature, or, as Hesse explains (2011, pp. 60-70), that they tend toward “concretization,” which is nothing more than incorporating reality into the content of the Constitution. In this way, the methods are not worked only from merely theoretical aspects or from a certain pre-understanding of the norm, but require, inevitably, a connection with the “concrete problem.”

To these characteristics of constitutional interpretation, which are typical of any legal system, an additional and very important one for the Chilean case must be added: in our country, there are no specific criteria for constitutional interpretation at a normative level. Put differently, Chile lacks regulated constitutional interpretation.

The situation is not the same in other constitutions. For example, the Constitution of Colombia (1991) stipulates that the rights and duties enshrined in it “shall be interpreted in conformity with international treaties on human rights ratified by Colombia” (art. 93). The Constitution of Ecuador (2008), for its part, recognizes the rule of “conformity interpretation,” since, if there is any doubt about the scope of a certain norm, “they shall be applied in the form and sense that best adapt to the Constitution, particularly to the rights and guarantees of individuals” (art. 11 N° 5). Additionally, it includes the “pro persona” and “interpretation in conformity with treaties” criteria in art. 11, N° 6¹. In turn, the Constitution of Bolivia (2009) also incorporates the pro persona criterion (or the preferential application of the most favorable international norm), as well as the binding nature of treaties related to human rights. Both are enshrined in arts. 13.II and 256, respectively².

Always in the Latin American sphere, a separate note deserves what happens with Peru, whose Constitution does not foresee methods of interpretation, but its Constitutional Procedural Code (Law N.° 28,237) does. The special thing about this situation is that it is a normative body of legal rank, with democratic origin, which demarcates the way in which the courts must establish the meaning of the constitutional text. In particular, art. V of the aforementioned Code refers to the principles of unity of the Constitution, practical concordance, normative force, conforming interpretation, and evolutionary interpretation.

On the other hand, the Basic Law of Bonn, although it does not explicitly state a catalog of interpretive criteria, enunciates axiological principles that fulfill that function, such as human dignity (art. 1.1), liberty and equality (arts. 2 and 3), and openness to international law (arts. 1.2 and 25). Along the same lines, art. 20.1 includes the clause of the social and democratic rule of law by stipulating that “Germany is a federal, democratic, and social state, organized as a republic.” We highlight this norm, as it has allowed the German Constitutional Court to resolve a series of public policies in the field of social rights, for example, regarding care (BVerfGE 103, 2001, 242), a dignified minimum subsistence level (BVerfGE 125, 2010, 175), facing climate change (BVerfGE 157, 2021, 30), regarding patient autonomy and forced medical treatment (BVerfG, 2 BvR 2021, 1866/17), the promotion of equal educational opportunities (BVerfG 1 BvR, 2023, 2577/15), financial assistance for higher education (BVerfG 1 BvL, 2024, 9/21), and the right to housing for vulnerable groups (BVerfGE 139, 2016, 90), among others.

However, as previously noted, none of this occurs in Chile, where there are no express constitutional interpretation criteria—neither at the constitutional nor legal level. Given this absence, both legal doctrine and jurisprudence, especially that of the Constitutional Court (TC), have been shaping some specific tools. Within the framework of this paper, three of these criteria will be addressed, which are particularly useful for the proposed analysis: the axiological interpretation, the systematic interpretation, and the progressive interpretation of the Constitution.

1.1. The axiological interpretation of the Constitution

Axiological interpretation assumes that the Constitution is not a body of law like any other, but is, primarily, a “code of values” through which social coexistence can be organized (Fernández Segado, 1992, pp. 33-34).

The background of this interpretation can be found in the works of Rudolf Smend (1985), for whom constitutional values are what allow the legal system to be justified. They fulfill an “integrative” function of the political community and, both the State and the Constitution, should use them to achieve this end. These values can be manifested both in the general part of the constitutional text and in the fundamental rights it guarantees. In this sense, values are relevant for constitutional interpretation. Thus, in an example proposed by the author himself, although the Constitution stipulates that the law must regulate the electoral system, this mandate will not be understood as satisfied by the mere approval of said law, but, furthermore, the constitutional instruction should be interpreted in light of the democratic legitimacy that underlies electoral Law, which must materially inspire the content of the legislation in question (Smend, 1985, pp. 222-235).

Following this line, in Chile, José Luis Cea already maintained in 1984 that the Constitution should be understood as “the maximum program that, for the realization of the values that animate the Constituent Power, it has traced, binding rulers and governed” (p. 7). These values, he adds, justify the constitutional order, not only in its text or origin, but also in its subsequent interpretation, application and development, both by the legislator and by the other organs (including the courts and the administration) and particular subjects.

In this way, the axiological interpretation of the Constitution implies determining the meaning or scope of its precepts, based on the values established in the constitutional text itself. In this sense, Guastini (2015, p. 28) postulates that, faced with two possible interpretations regarding a certain statement, axiological interpretation consists of opting for the one that best aligns with the “system of law.” This choice not only seeks to preserve the logical consistency of the legal system but also to ensure its axiological coherence, that is, the value concordance between its norms.

Constitutional values fulfill an important purpose for the constitutional system. As Barros (1984, p. 278) indicates, they serve to guide and direct decisions, which can be subjected to control, precisely based on the subjection, or not, to these values. But the author adds something important: social values can only be supported “by a certain consensus.” Based on this, we should always consider a democratic and not merely authoritative understanding of them, which allows giving axiological interpretation a pluralistic outlook supported by the community itself.

The Constitutional Court (TC), for its part, has indicated that axiological interpretation consists of establishing the meaning that the precepts of the Constitution may have “in accordance with the principles and values upon which [it] rests” (Rol 464-06, 2006, cons. 6), which “are not merely declarative” but represent obligatory provisions and “contribute to unearthing the true sense and spirit” of the Constitution (Rol 46-87, 1987, cons. 21). For example, in a recent ruling related to the removal of a senator, the TC again employs this criterion and, in almost the same terms, indicates that it would resort “to the principles and values that inspire the Constitution, as they help to unearth its spirit” (Rol 16122-25, 2025, cons. 5).

Similarly, regarding the prior action for a case of compensation for judicial error, the Supreme Court interpreted section i of art. 19 N.° 7 of the CPR from an axiological perspective. In this case, it established that even though the aforementioned provision grants the right to compensation to anyone who has been illegitimately “subjected to proceedings” (an action associated with the old criminal procedure), it must be understood to also extend to anyone who —under current legislation— has been “subjected to pre-trial detention.” In this regard, the judgment stated that, through an interpretation it describes as “axiological, guarantee-focused, and systematic,” it must be inferred that the expression “subjected to proceedings” used by the CPR also includes the resolutions indicated in the current arts. 140 and 155 of the Code of Criminal Procedure (Rol 22.356/2014, 2015, consideration 4).

1.2. The systematic interpretation of the Constitution

In general terms, Bobbio (1993, p. 192) understands that systematic interpretation is based on the premise that a legal system—or a part of it—constitutes an “ordered totality,” whereby the meaning of a norm can be established by resorting to the “spirit of the system,” even against what a merely literal interpretation might yield. In similar terms, and already in the context of interpretation—and of the Constitution, in particular—as a coherent “system” in its content and “endowed with an organic and finalistic unity.”

Velluzzi (2002, pp. 86-87) explains that systematic interpretation is characterized by the allusion to the context as a means to correct the literal wording of the norms. In some cases, the author demonstrates, it has allowed jurisprudence to broaden the scope of the law and, in others, to limit it to circumstances that, apparently, could be included in the text. That is to say, systematic interpretation can operate both extensively and restrictively, but always with the objective of facilitating a reading that is harmonious with the rest of the legal system and with the will of the legislator.

In these senses, the principle of “unity of the Constitution” imposes on the interpreter the need to connect the statement being examined with the other constitutional provisions, assuming an interdependence among all of them. In other words, no statement should be analyzed separately, nor referred solely to its own wording (Nogueira, 2006, pp. 114-115).

As explained by Balaguer (2022, pp. 143-144), constitutional interpretation is characterized as being circular, in contrast to the linear nature characteristic of traditional legal dogmatics, which operates through subsumption. This means that interpretive activity is not limited to mechanically applying a norm to a specific case but requires, on the one hand, combining different legal norms and, on the other hand, dynamically transitioning “from the case to the law and from the law to the case” until the most just solution is found.

In this sense, constitutional interpretation must necessarily be systematic, as it is the most appropriate way for a circular reading of the Constitution, in which the whole and the part facilitate the path to finding a reasonable meaning for its norms. This perspective is linked to the notion of the “hermeneutic circle” developed by Hans-Georg Gadamer (2018, p. 63), according to which “the whole must be understood from the individual and the individual from the whole,” transitioning from the art of speaking to the art of understanding. Paraphrasing this idea, it can be stated that understanding the Constitution—and not merely talking about it—requires avoiding an isolated analysis of its provisions. On the contrary, a holistic vision is required, that is, a complete understanding of the whole and its parts, which implies adopting a systematic interpretation of its norms.

Upon reviewing Chilean constitutional jurisprudence, a variety of cases in which this criterion has been employed are evident. It is unavoidable to mention the famous obligatory constitutional review of the Constitutional Organic Law on the Electoral Qualifying Court (TRICEL), carried out by the TC in its Rol 33 of 1985. The bill applied the 11th transitory provision of the CPR, which stated that the TRICEL would begin to function for the first election of deputies and senators, scheduled for December 1989. However, the TC argued that an isolated reading of said provision was inadmissible, as it contravened other constitutional norms, including art. 18, which established a public electoral system, and the 27th transitory provision, which contemplated a plebiscite destined to decide on the proposal for President of the Republic that the National Security Council should formulate. This plebiscite was held on October 5, 1988, so, had the literal interpretation of the aforementioned 11th transitory provision been accepted, it would have implied that the TRICEL would not have operated in it. The nineteenth consideration acquires special relevance, which affirms that the Constitution must be understood as an organic whole, such that “the meaning of its norms must be determined in such a way that there is the due correspondence and harmony between them, excluding any interpretation that leads to annulling or depriving any of its precepts of effectiveness” (Rol 33-85, 1985, cons. 19).

In sum, systematic interpretation reminds us that the Constitution cannot be approached as a set of isolated clauses, but as a framework that only makes sense when viewed as a whole. This approach forces the interpreter to avoid solutions supported exclusively by literalness and to ask about the way in which each provision relates to the others.

1.3. The progressive interpretation of the Constitution

The principle of progressivity constitutes another hermeneutical criterion applicable to constitutional interpretation in Chile. In this sense, the progressive interpretation of the Constitution is included, as will be pointed out, within the methods aimed at guaranteeing the effectiveness of fundamental rights. Since the Chilean Constitution, like most contemporary constitutions, enshrines rights, this principle is fully relevant to it.

Even though part of the doctrine distinguishes between the concepts of progressivity and non-regression, it is no less true that both aim for a common objective, which is to guide the interpretation and application of norms related to fundamental rights in a way that guarantees increasing protection over time. This perspective seeks to avoid any setback in terms of human rights, consolidating a minimum standard of protection. Therefore, this principle indicates to the interpreter the need to guide an increasingly complete fulfillment of fundamental rights, in order to facilitate their enjoyment for all people and groups, especially if they are in a situation of vulnerability (Aguilar, 2023, pp. 136-138).

From an international perspective, it is important to note that, although progressivity is usually associated with social rights, International Law also contemplates it for civil and political rights. Indeed, the International Covenant on Economic, Social and Cultural Rights (ICESCR) states in its art. 2.1 that State Parties undertake to adopt measures, to the maximum of their available resources, to progressively achieve the full realization of the rights recognized. For its part, art. 40.1 of the International Covenant on Civil and Political Rights (ICCPR), establishes that State Parties undertake to submit reports on the progress they have made concerning the enjoyment of the rights. Finally, mention should be made of the provisions of art. 26 of the American Convention on Human Rights (ACHR), which includes progressive development by indicating that States must adopt provisions, both domestically and through international cooperation, to progressively achieve the full realization of economic, social and cultural rights.

The principle of non-retrogression is linked to the irreversibility of rights. As Barbagelatta (2008) explains, this principle implies a prohibition on States from reducing the protection already afforded to rights secured in their legal systems. Similarly, the Organization of American States has indicated that a measure is regressive when it refers to “provisions or policies whose application signifies a setback in the level of enjoyment or exercise of a protected right” (OAS, 2005, para. 11). In similar terms, Gomes Canotilho refers to this principle —which he calls “non-retrogression”— as one where social rights, “once achieved or conquered, become both an institutional guarantee and a subjective right” (1993, 468-469)³.

It should be noted that, in Chilean constitutional law, State organs have the explicit duty to respect and promote the rights guaranteed in international treaties ratified by Chile and currently in force (Art. 5, second paragraph). In this context, and based on a systematic and good-faith interpretation of conventional international law (Art. 31.1 of the Vienna Convention on the Law of Treaties), it can be concluded that this duty is not satisfied exclusively with the protection of individually considered rights, but also through the observance of the principles incorporated into the treaties, including the principles of progressivity and non-retrogression.

In the domestic sphere, the Chilean Constitutional Court (TC) considered the principle of progressiveness and non-regression to decide whether the exclusion of readjustment for high public sector salaries constituted an infringement of these criteria. Finally, it ruled that such a violation had not occurred, since this freeze was not arbitrary but was instead guided by economic objectives that facilitated the increase of the lowest salaries in the sector. What the Court seems to have done is to incorporate criteria of reasonableness and proportionality into the configuration of the principle under analysis, thus avoiding a merely numerical automatic application (Rol 3422-17, 2018, cons. 22)⁴.

All of the above allows us to maintain that the principle of progressiveness and non-regression, recognized in international law and applied by national jurisprudence, must be considered an indispensable interpretative canon in the hermeneutics of fundamental rights and, in general, of the Chilean Constitution. This foundation rests both on doctrinal development and, primarily, on the current international norms, applicable in Chile through art. 5, second paragraph, of the Constitution.

2. The institutional bases of article 154 of the Political Constitution

After the rejection of the draft of a new Constitution prepared by the Constitutional Convention, in the plebiscite held on September 4, 2022, a second constitutional process (2022-2023) began. This was formalized through Constitutional Reforms N.° 21,533 and 21,574⁵, which outlined the procedure for drafting a new constitutional project. These reforms also defined the bodies destined to write it (the Expert Commission and the Constitutional Council), as well as the mechanism for resolving eventual controversies between them, through the Technical Admissibility Committee. All these provisions were incorporated between arts. 144 and 161 of the CPR.

Finally, this second draft of the Constitution was also rejected in the plebiscite held on December 17, 2023.

However, beyond the fate of said project, it is important to note that the aforementioned Reform N.° 21,533 introduced, in the new art. 154 of the CPR, the so-called “institutional and fundamental bases” (hereinafter, “institutional bases”), under the following tenor:

Art. 154: The proposal for a new Constitution that is submitted to a plebiscite must contain, at least, the following institutional and fundamental bases:

1. Chile is a democratic Republic, whose sovereignty resides in the people.
2. The State of Chile is unitary and decentralized.
3. Sovereignty is limited by the dignity of the human person and human rights recognized in international treaties ratified by the State of Chile and which are in force. The Constitution shall enshrine that terrorism, in any of its forms, is inherently contrary to human rights.
4. The Constitution recognizes indigenous peoples as part of the Chilean nation, which is one and indivisible. The State shall respect and promote their rights and cultures.
5. Chile is a social and democratic State of law, whose purpose is to promote the common good; which recognizes fundamental rights and freedoms, and which promotes the progressive development of social rights, subject to the principle of fiscal responsibility and through state and private institutions.
6. The national emblems of Chile are the flag, the coat of arms and the national anthem.
7. Chile has three separate and independent powers: a) Executive Power (…), b) Judicial Power (…), c) Bicameral Legislative Power (…).
8. Chile constitutionally enshrines, among others, the following autonomous bodies (…).
9. Chile protects and guarantees fundamental rights and freedoms such as the right to life, equality before the law, the right to property in its various manifestations, freedom of conscience and worship, the best interests of children and adolescents, freedom of education and the preferential right-duty of families to choose the education of their children, among others.
10. Chile constitutionally enshrines, with subordination to civil power, the existence of the Armed Forces and the Forces of Order and Security (…).
11. The Constitution enshrines, at least, four states of constitutional exception (…).
12. Chile is constitutionally committed to the care and conservation of nature and its biodiversity.

The original function of these bases—or “edges” (Heiss, 2023, p. 130)—was to establish minimum contents (or a “content mandate”) that the 2023 constitutional project had to have (Charney & Núñez, 2024, p. 194). In the event that the proposed norms approved, either by the Expert Commission or by the Constitutional Council, contravened these limits, a portion of its members could file a requirement with the Technical Committee of Admissibility, as regulated in arts. 155 and 156 of the CPR. In fact, a requirement was never filed for these reasons.

Regarding these bases, it is possible to highlight at least three characteristics that will be addressed in this work: (1) in their origin, they were the result of a broad political consensus; (2) formally, they are integrated into the permanent articles of the Political Constitution; and (3) materially, they incorporate new principles into the current constitutional text.

2.1. The institutional bases were the result of a broad political consensus

The journey of the new constitutional process began with the so-called “Agreement for Chile,” which materialized in the aforementioned Constitutional Reform No. 21,533 of 2023.

To place this agreement temporally, it should be recalled that on September 4, 2022, the citizenry had rejected the first constitutional project, drafted by the Constitutional Convention, with a categorical 61.9% of the valid votes cast, in a mandatory voting system. Dammert and Figueroa (2023, p. 241) attribute this result to “the weaknesses of the constitutional process, the various scandals that unfolded within the framework of the Convention, but also to the shift in the axis of citizens’ concern.” One of the most severe problems was how to give continuity to the popular mandate expressed in the entry plebiscite of the first process, where 78.2% of the valid votes cast (in a context of voluntary voting) had decided to replace the 1980 Constitution (and its subsequent modifications). That is to say, the challenge was to channel a procedure that would honor the majority will to equip themselves with a new constitution, despite the 2022 proposal having been rejected.

In this scenario, both Chambers of the National Congress articulated efforts to open the path for a second process, this time, with a more institutional channel. This, in practice, meant greater intervention by the constituted bodies, which was reflected in two aspects: (a) two of the three participating bodies —the Expert Commission and the Technical Admissibility Committee— were designated entirely by Congress (only the Constitutional Council was elected by the citizens, under the same rules as the Senate); and (b) the constitutional debate had to be framed within the material limits set by the institutional bases object of this study.

Thus, after about one hundred days of extensive and difficult negotiations, the agreement was signed by almost all the political forces (including parties and movements in formation) represented in Congress (Biblioteca del Congreso Nacional, 2022), except the Republican Party and the Party of the People⁶. This pact, celebrated with an important dose of “political realism” (Mella, 2022), managed to bring positions closer between traditional lefts and rights. As Arce- Riffo (2022) highlights, this process contributed to revaluing political debate and negotiation as essential components of political activity.

The course adopted in the “Acuerdo por Chile” (Agreement for Chile) resumed the institutional path taken in the two most relevant reforms of the 1980 Charter: those of 1989 and 2005. In the first, after the defeat of the military regime in the 1988 plebiscite, 54 reforms were negotiated between the outgoing dictatorship and the parties —both opposition and government-aligned— approved by a broad 91% at the polls⁷. In 2005, meanwhile, under the government of Ricardo Lagos, another package of reforms was agreed upon that eliminated authoritarian enclaves (such as designated and lifetime senators, and the immovability of commanders-in-chief) and strengthened the work of the Constitutional Court⁸. In both cases, political agreements were decisive in promoting constitutional changes. The same was attempted in 2022 with the “Acuerdo por Chile.”

The solidity of the agreement is reflected both in its categorical approval in Congress and in the content of its clauses, especially those relating to the institutional bases. Although they were not completely “transversal,” as no political sector felt fully represented by them, they were achieved by virtue of a healthy process of convictions, renunciations, and concessions. In Weber’s terms (2007, p. 62), pretensions of the ethics of conviction and responsibility were balanced, which confers historical and legal legitimacy upon them.

The origin of these bases can be traced to three sources: (a) the initial agreements of the previous process (2019-2022); (b) the Chilean constitutional tradition; and (c) the lessons learned from the rejection of the first draft (2022).

Indeed, for the first constitutional process, Article 135 of the CPR (incorporated by means of Constitutional Reform No. 21,200 of 2019⁹) already established that the text submitted to a plebiscite must respect “the character of the Republic of the State of Chile, its democratic regime, final and enforceable judicial rulings, and international treaties ratified by Chile.” Many of these limits were reiterated in the 2023 bases, such as the republican and democratic form of government and respect for judicial rulings and international treaties.

Other bases, however, while not contained in the norm of Article 135, follow the Chilean constitutional tradition, as is the case with the unitary and decentralized nature of the State, rights as a limit to power, national emblems, the separation of powers, some autonomous bodies, and specific constitutional guarantees.

Finally, some bases were inspired by lessons learned from the previous constitutional process. They were drafted as mutual concessions between the political forces that had supported and rejected that project. Two examples illustrate this: (i) the recognition of indigenous peoples, this time under the formula “a single and indivisible Chilean nation,” seeking a balance between those who defended the plurinational state (Villavicencio, 2019) and those who considered it a threat to constitutional identity (Peña, 2024, p. 234); and (ii) the design of the social and democratic rule of law, inspired by the principle of subsidiarity, by establishing that the progressive development of social rights would be carried out “subject to the principle of fiscal responsibility and through state and private institutions” (art. 154 N° 5 CPR).

Thus, the bases not only set the boundaries for the drafting of the future constitutional text, but also, in themselves, represented broad and conclusive political agreements, which was reflected in their resounding approval by both chambers of the National Congress: 40 votes in favor in the Senate (out of 50) and 109 in the Chamber of Deputies (out of 155), with minorities against and some abstentions¹⁰.

2.2. The institutional bases form part of the permanent articles of the Constitution

The Chilean Constitution distinguishes between permanent and transitory provisions, a characteristic that has led some authors to argue that the text presents a “dual nature,” as two constitutions coexist in the same text: a transitory constitution and a permanent one (Cea, 2008, p. 85). This duality is not merely formal but reflects a kind of functional logic: while the permanent norms configure the stable structure of the constitutional order, the transitory ones fulfill a merely instrumental role, aimed at facilitating the implementation of specific reforms or processes¹¹.

Transitory provisions have been defined as “constitutional norms, integral parts of a diachronic system of rules, whose purpose is to determine the mode of application of other constitutional provisions, as well as to allow the validity of formally repealed norms” (García et al., 2016, p. 404). In other words, their function is to regulate the transition between normative regimes, ensuring legal continuity and avoiding gaps in application. The Constitutional Court has specified that these provisions are indeed constitutional norms, with the same hierarchy as the permanent ones, as they emanate from the constituent power—original or derived. Furthermore, it has clarified that they do not lose validity due to disuse but require express repeal (Rol 9797-20, 2020, cons. 112 to 115). This interpretation reinforces the idea that transitory provisions are not “minor” norms but an integral part of the constitutional block.

For the same reason, this work in no way intends to argue that permanent norms possess hierarchical superiority over transitional ones. That would be a conceptual error that, moreover, would not be supported either by the system of sources or by the authors’ doctrine. However, the fact that the institutional bases are part of the permanent articles represents relevant data that deserves our attention, since this shows that they are not only norms intended to articulate successive processes, but constitute provisions that possess stable normative force. Thus, the institutional bases are consolidated as structural elements of the constitutional order, endowed with a vocation for permanence and not merely instrumental.

This permanent nature has, at least, two implications. Firstly, the institutional bases are not exhausted in their procedural function, but project substantive effects on the interpretation and application of the Constitution. By being incorporated into the stable text, they become hermeneutic parameters for the legislator, public administration, and the courts, conditioning normative production and the operability of the Constitution. For example, the explicit reference to the social and democratic state of law, along with the principle of fiscal responsibility, not only guides the elaboration of public policies but also incorporates a mandate aimed at preserving financial sustainability.

Secondly, the decision to incorporate the foundations into the permanent text responds to the need for legitimation and to restore political credibility. Thus, for example, the President of the Senate, Álvaro Elizalde, stated on December 12, 2022, when—along with his counterpart from the Chamber of Deputies—he presented the “Agreement for Chile”: “We want to be very responsible. The country demands certainty, healing wounds, rebuilding trust, and, above all, carrying out a successful constituent process, so that the constitution is a factor of unity, a constitutional framework of which we all feel proud and in which we are all a part” (Palma, 2022). After the failure of the first constituent process, marked by tensions between normative maximalism and citizen rejection, the second itinerary sought to renew confidence in institutional dialogue, through broad agreements and clear rules. The permanence of the foundations transmits an evident political message: the consensuses reached are not transitory or merely tactical, but lasting commitments that define the constitutional horizon.

2.3. The institutional bases incorporate new principles into the constitutional order

A general review of the twelve institutional bases allows us to see that many of them are —in some cases, with nuances— manifestations of existing provisions in the Constitution. This is the case, for example, with the consideration of Chile as a democratic republic and a unitary state (Bases 1 and 2); dignity and human rights as a limit to sovereignty (Base 3); national emblems (Base 6); the three traditional powers of the State (Base 7); some autonomous bodies (Base 8); the recognition of certain basic rights (Base 9); the consecration of the Armed and Security Forces and their subjection to civil power (Base 10) and the four states of exception (Base 10).

Others, however, are novel principles, highlighting the recognition of indigenous peoples; the constitutionalization of the social and democratic rule of law; the best interests of children and adolescents; and the care and conservation of nature and biodiversity. Let’s review these topics in the following sections.

2.4. The recognition of indigenous peoples (Base N.° 4)

The fourth institutional basis refers, in the first instance, to the fact that “[t]he Constitution recognizes indigenous peoples as part of the Chilean nation.” Recognition, as explained by Torrens (2006, p. 400), implies a model of multiculturalism that elevates difference as a positive factor, revaluing minorities stigmatized with negative stereotypes. In the words of Fernández and Fuentes (2018, p. 4), the constitutional recognition of indigenous peoples not only seeks, normatively, to reflect all those who inhabit the same territory, but also, from a sociopolitical perspective, intends to project their interests and rights onto the Constitution.

Much can be said regarding the importance of the recognition of indigenous peoples in the Constitution, but, by way of synthesis, and without this list being exhaustive, it can be stated that, based on it: (i) the preexistence of the original peoples, in relation to the State, is reaffirmed; (ii) the condition of the peoples as subjects of law, and therefore endowed with collective rights, is recognized; (iii) due to the aforementioned preexistence, the rights of these peoples predate the internal legal system and, therefore, are inviolable by national laws; (iv) a multicultural understanding of the norms and principles contained in the Constitution is urged; and (v) the international legal system is harmonized with the standards contained in international law, especially regarding the free determination of peoples¹².

Although it may seem obvious, it is worth noting that no Chilean Constitution had incorporated such recognition until now and that, in the Latin American context, only the texts of Chile and Uruguay omit it. In this sense, the declaration made constitutes a transcendental innovation for our country.

The same fourth basis adds two additional elements: that the recognition of indigenous peoples will be “as part of the Chilean nation, which is one and indivisible” and the State’s duty to respect and promote their rights and cultures.

The reference to a single nation was intended to prevent the future Constitution from resuming the path of a plurinational State outlined by the 2022 draft, which was resisted by some academic and political sectors. This reactive view appealed to a certain “common sense” contrary to changes that were understood as “countercultural” (Zúñiga, 2024, pp. 87-88). Even if the reference to an apparent common sense is debatable, the truth is that, unfortunately, the idea of a single nation does not change the meaning of the current valid text of the Constitution at all, which continues to conceive the Chilean nation as one (art. 5.), at most, integrated by “sectors” (art. 1., fifth paragraph).

Finally, the duties of respect and promotion of the rights and cultures of the original peoples refer to the collective rights of the original peoples, as well as their traditions and worldviews. This implies a broad reception of the human rights of the peoples, by not being restricted to certain specific rights, even incorporating those recognized by international law. At the same time, cultural diversity is honored, by objectively valuing “the cultures of the peoples,” that is, independently of their consideration as subjective rights.

2.5. The social and democratic rule of law state (Base N.° 5)

Another institutional foundation is that of the social and democratic state under the rule of law. This model does not, of course, correspond to the one included in the 1980 Constitution or its subsequent modifications, but it is present in other constitutions, such as those of Germany (art. 28.1), France (art. 1), Spain (art. 1.1) and Colombia (art. 1).

In principle, this formula combines the concepts of the social state and the democratic state under the rule of law; however, its meaning is more complex. Although it is recognized that this expression is the historical result of three traditions—the classical liberal tradition of the rule of law, social constitutionalism, and democratic constitutionalism—it is not simply a mechanical sum of them, but a synthesis that expresses a deeper conceptual and political evolution (Tórtora, 2021, pp. 120-124).

As García-Pelayo (2005, pp. 92-104) points out, the clause “social and democratic state under the rule of law” does not constitute a simple aggregation or juxtaposition of components, but the articulation of them “in a conceptual totality that defines a relatively complex type of State constituted by the unity of three components linked to each other.” He recommends understanding this concept as a trinity, an unconscious archetype of the human race, which usually represents both opposition and unity at the same time. In this case, it is integrated by the social element (Social State), the political element (Democratic State) and the legal element (Rule of Law). This combination implies that none of them can be developed by itself, since in that case it could destabilize the complete system. On the contrary, the only possibility of giving it validity is through the reciprocal integration of the three principles, which means that: (1) the social component could not be developed in an authoritarian or arbitrary manner, but through democratic methods and subject to the discipline of Law; (2) the democratic component finds its limits in the normative structure of the State under the rule of law with full respect for constitutionally protected social values; and (3) the legal component should not be reduced to a formalism that blocks social and democratic values, but must be oriented towards them so that it is not transformed into a simple legal State, which could be compatible with authoritarian forms.

Assuming this inseparable interaction between these three pillars, each of them also incorporates novel elements into the Chilean constitutional system. Firstly, the notion of the Rule of Law is expressly added, until now implicit, but without normative consecration.

The introduction of the Social State, for its part, involves a commitment to the satisfaction of social rights, understood not only as benefit requirements, but—as Ansuátegui (2010, pp. 61-64) maintains—as instruments that pursue the achievement of material equality, which can be reached both through state benefits and other mechanisms. This requires the adoption of the institutional arrangements, public policies, and budgetary decisions necessary to make this objective possible.

The way the Social State is incorporated into the institutional bases allows it to be conceived, in the words of Bravo (2024, p. 260), as a “compromise clause,” in accordance with the political agreements of the time it was subscribed. The consensual nature of the formula designed in the Agreement for Chile is manifested in different senses: (i) it is established that the purpose of the model is to promote the common good, thus privileging ends over means (Bravo, 2024, 270); (ii) it recognizes fundamental rights and freedoms (avoiding the non-recognition of individual prerogatives); (iii) it promotes the progressive development of social rights (implying a gradual and non-regressive increase in their protection); (iv) there is subjection to the principle of fiscal responsibility—to avoid imbalances between the income and expenses of the state patrimony (Viera et al., 2023, p. 373)—; and (v) it uses state and private institutions (in an evident confluence of the social state model with the classic canons of subsidiarity).

Lastly, the idea of a democratic state seeks to broaden the margins of participation within the political system, both in relation to the subjects enabled to do so and to the forms of intervention themselves. In other words, the institutional design derived from the incorporation of new actors, new rights, and new forms of participation is verified in the construction of a democratic state. As Garrorena (1987, p. 110) states, the democratic state is due to the extension of political protagonism to broad sectors of society and the generalization of suffrage.

Complementing the above, Böckenförde (2000, p. 143) lists three conditions for the democratic organization of the State, which can be summarized as: (1) the existence of a legal structure legitimizing the power of the State through a permanent referral to the power of the people; (2) the requirement that representatives cannot slip into “a position of sovereignty,” so their actions must be configured as a competence appropriate to their office and legally limited; and (3) the possibility that the power of the representatives can be corrected and counteracted by the people, either by removing them or by directly deciding on certain matters.

It is important to note, finally, that this model does not question the advances of the classical liberal tradition, nor does it seek to destroy the foundations of the traditional rule of law. As Manili (2016, p. 43) argues, “this current did not reject classical constitutionalism, nor did it intend to abolish it, but rather came to add another body of rights to the already existing ones,” while Remedio Sánchez (2009, p. 124) states that the social state “does not seek to deny the values and aims of the liberal state (liberty and equality); on the contrary, it assumes them and tries to make them more effective by giving them a material basis and content.”

More than a mere declaration, the social and democratic rule of law is presented as a structural guarantee of rights. In this sense, Peces-Barba (1995, pp. 503-505) explains that the clause of “social and democratic rule of law” enshrined in art. 1.1. of the Spanish Constitution should be considered a “general guarantee” of fundamental rights, in that it fulfills three functions: it operates as a limit on power (rule of law), promotes participation and political pluralism (democratic state), and demands the “positive action of the State” for the effectiveness of economic, social, and cultural rights (social state). For this reason, various authors have raised the need to work with the concept of “social citizenship,” which assumes that belonging to the State as citizens should guarantee them the recognition of social rights, in order to ensure them an adequate level of well-being in areas such as economic resources, work, education, and health (Añón et al., 2004, p. 24; Lovera, 2019, pp. 111-116).

2.6. The superior interest of children and adolescents (Base N.° 9)

The ninth institutional basis stipulates that Chile must protect and guarantee certain fundamental rights and freedoms, including the right to life, equality before the law, and the right to property. Within these references, the principle of the “best interests of children and adolescents” is incorporated. Strictly speaking, the 1980 Constitution not only omits this principle but makes no reference whatsoever to the rights of children and adolescents. This is because the rights guaranteed by it are recognized generically for “all persons,” according to the heading of art. 19 of the CPR (Political Constitution of the Republic of Chile). In this context, the inclusion of this institutional basis acquires special relevance, as it explicitly recognizes children and adolescents (NNA) as true subjects of rights.

In the international sphere, the best interests of NNA are enshrined in art. 3 of the Convention on the Rights of the Child¹³ and, in accordance with the Inter- American Court of Human Rights (IACHR), is founded “on the inherent dignity of the human being, on the specific characteristics of children, and on the need to promote their development, with full use of their potential” (Advisory Opinion on the Legal Status and Human Rights of the Child, 2002, para. 56).

Even though the constitutional norm in question includes it within the rights, the Committee on the Rights of the Child has specified that the best interests of the child is simultaneously a substantive right, a legal principle, and a rule of procedure. In the first sense, every child has the right to have their best interests always considered primarily, and to be taken into account “when weighing different interests to make a decision on a debated matter.” As a legal principle, if a provision allows for different interpretations, the one that most effectively satisfies the best interests of the child must be chosen. Finally, as a rule of procedure, whenever a decision is made that affects a specific child, a concrete group of children, or childhood as a whole, it will be necessary to consider in advance the effects that said decision may generate on them, whether beneficial or harmful (Committee on the Rights of the Child, General Comment No. 14, 2013, para. 6).

Part of the national doctrine has emphasized the need for the best interests of the child to acquire constitutional status so that, legally, it can operate as a limit and guidance for the legislator. While this omission persists, the legal effectiveness of this principle is affected, which weakens its transversal application in the legal and administrative system (Cillero, 2017, pp. 56-58).

It is very important to bear in mind that the constitutionalization of the best interests of the child does not represent an empty, merely symbolic declaration. Thus, by being included in the Constitution, the State’s action is guided towards achieving the best interests as an objective, corresponding to protecting the gradual and dynamic autonomy of Children and Adolescents (NNA). Furthermore, the State must assume primary and secondary guarantees of these rights, that is, establish political, legal, budgetary, and administrative measures, as well as jurisdictional tools to enforce them (Espejo, 2021, pp. 573-604).

2.7. Care and conservation of nature and biodiversity (Base N.° 12)

The 1980 Constitution represented a relevant advance in environmental rights, by recognizing the right to live in an environment free of contamination as a constitutional guarantee and by establishing the State’s duty to ensure both its protection and the preservation of nature (art. 19 N.° 8).

Regarding this right, the Constitution adopted —as noted by Bermúdez (2014, pp. 115-116)— a purely anthropocentric approach, in which the sole holders are human beings. This conception has been the subject of various criticisms. It has been questioned, for example, that the right has an individual rather than a collective nature, which invisibilizes the positive duties of the State in environmental matters. Likewise, it is debated that it can only be invoked by those who inhabit the affected environment, and that the only form of recognized impact is contamination (Aguilar, 2016, pp. 367-376).

Although the constitutional text imposes the state duty to preserve nature, it does not explicitly contemplate the protection of biodiversity, which constitutes a significant silence in the context of the so-called “triple planetary crisis”: contamination, climate change, and biodiversity loss (Smith & Gayó, 2024; UN Environment Programme, UNEP, 2022).

In this sense, this institutional basis acquires special relevance, as it establishes Chile’s constitutional commitment to these matters.

Comparative doctrine has insisted that constitutional law cannot remain alien to the protection of biodiversity. Zagrebelsky (2013), for example, proposes that constitutionalism evolves towards the incorporation of intergenerational duties, recognizing that present generations have responsibilities towards future ones, including the care of the planet. For his part, Häberle (2007, pp. 356-357) suggests that the social state of law constitutes a “congenial extension” of the rule of law, but that this must advance towards a new stage: the ecological constitutional state, also responsible for future generations and obliged to protect the environment as part of its constitutional duties.

In this framework, it is fundamental that the Chilean Constitution has incorporated biodiversity as an object of protection. This concept alludes to the complexity —or “chain” (Ipinza et al., 2021, p. 101)— of natural life, including both genetic diversity within a species, and the diversity of species and that of ecosystems (Acosta et al., 2022, p. 56; Chavez-Mejía, 2023, p. 160).

Finally, the Universal Declaration on Bioethics and Human Rights, in its art. 17, highlights the interconnectedness between human beings and other forms of life, and underscores the role of the former in the protection of the environment, the biosphere, and biodiversity¹⁴. Previously, the Convention on Biological Diversity had stated in its preamble that the conservation of biodiversity is a common concern of humanity, and that it requires international, regional, and global cooperation among States, intergovernmental organizations, and non-state actors¹⁵.

3. The impact of the institutional bases on the interpretation of the Constitution

Building on the work done up to this point, it is possible to reflect on the significance and influence that the institutional foundations may have on the future application of the Constitution.

Gonzalo García (2024, pp. 318-325), for example, points out that they should be useful for a constitutional aggiornamento, but that they could be used, based on criteria of judicial activism, with interpretive and applicative effects. For this reason, he proposes reformulating these matters, so that they are incorporated with new wording into the constitutional text. Miriam Henríquez (2025), for her part, warns of the inconvenience of repealing the foundations without previously considering the open academic debate about them, since their normative or interpretive value is not yet entirely clear.

As far as this work is concerned, and in accordance with the analysis carried out, we will maintain that the principles incorporated in these foundations constitute relevant interpretive elements for the rest of the constitutional text. Likewise, it will be argued that these principles, if repealed, could contravene international human rights law, which reinforces the need for their normative development to ensure greater effectiveness.

3.1. The institutional bases as foundations for a systematic and axiological interpretation of the Constitution

As noted above, from a formal point of view, the institutional foundations are established within the permanent articles of the Constitution and, as such, form part of the current text. This circumstance leads to the assertion that, for a systematic interpretation of the Constitution, they could be fully useful and applicable. Furthermore, from a material and political point of view, being principles widely and democratically agreed upon by the derivative constituent of the time, they can be considered constitutional values that should, in the same way, guide an axiological interpretation.

One must not ignore an obvious objection that could arise against this assertion, and that is that the institutional foundations would only have been directed to limit the constitutional project presented by the Expert Commission and the Constitutional Council for the 2023 constitutional process. This assertion is supported, first, by the trustworthy history of Constitutional Reform 21.533 of 2023, which is associated with the design of a procedure aimed at replacing the 1980 Constitution. Furthermore, it would be based on the explicit wording of art. 154 of the CPR, which, in the relevant part, warns of the direct purpose of these principles by stating that “the proposal for a new Constitution submitted to a plebiscite must contain, at least” the foundations indicated by the same provision¹⁶.

Incidentally, neither observation is mistaken, given that both history and the express text support the idea that the institutional bases were approved with a single purpose, which was to guide the task of writing a constitutional proposal. However, these conclusions are insufficient if they are not complemented with other arguments that allow explaining the transcendence of the bases, beyond the 2023 plebiscite.

Firstly, strict adherence to normative history highlights the old debate around how constitutions should be conceived: as “testamentary constitutions” or as “living constitutions” (Sagüés, 2016, pp. 25-41).

The former, also called “statue constitutions,” represent a way of understanding constitutional texts as a heritage that their drafters, the founding fathers, hand down to future generations. Thus understood, interpreters should faithfully and rigorously respect the legacy, “to the letter,” acting as authentic “executors” of the will of the historical constituent (Sagüés, 2016, p. 26). If we understand the institutional bases in this way, there would be no other option but to respect the apparent will of the drafters manifested on paper, that is, to set limits or boundaries for the elaboration of the new proposal.

The idea of “living constitution,” on the other hand, distances itself from originalist positions that are overly zealous of the legal text and the will of its framers, defending the interpretive autonomy of the current legal community in relation to the authors of the norm. From this perspective, the hermeneutic task is not reduced only to identifying what the concrete intention of those who drafted the document was, but —as Sagüés (2016, p. 27) holds— to “elaborate constitutional legal responses in accordance with the needs of the present and the valuations and beliefs of current society.” If this perspective is adopted, an interpretation that is less attached to the reliable history of the norm and more ductile in the face of social transformations and the challenges of justice that may arise can be justified.

Along the same lines, Wolfe (1991, p. 285) maintains that a constitution is not only “a simple document for lawyers,” but is a “vehicle of life” that accompanies a society and adapts to its different demands and contexts. In this way, constitutions, rather than being immutable legacies, become dynamic instruments that allow for the justification of solutions to contingent historical requirements. This also undoubtedly involves the institutional foundations, whose function should not remain tied to the original intention of those who designed them, but should be projected towards the satisfaction of future social requirements.

Furthermore, the unrestricted adherence to the tenor of the constitutional statement must also be moderated. A formalist interpretation of this style would lead to stating something like: “the institutional foundations represent values so important that we aspire for a future Constitution to contain them; however, if the citizenry rejects the text prepared by the competent bodies, they will cease to be legally relevant.”

As the interpretation is drafted this way, it can be discussed, at least, from two of the three arguments that Alexy proposes to justify the thesis of the link between, on the one hand, the validity of norms and legal systems and, on the other, the claim to correctness of these. I refer, particularly, to the arguments of correctness and injustice (Alexy, 2004, pp. 41-82).

According to the correctness argument, every speech act with a normative character necessarily implies a moral dimension to avoid falling into contradictions. For example, a hypothetical constitutional provision that said “X is a sovereign, federal, and unjust republic” would be incoherent, as it would simultaneously affirm a legitimate political structure and institutionalized injustice, which conflicts with the claim of moral validity underlying every constitutional norm. Similarly, if a judge were to pass sentence saying: “the accused is condemned to life imprisonment by virtue of an erroneous interpretation of the current law,” they would be acknowledging a flaw in the application of the law that invalidates the legitimacy of the judicial decision. In these terms, upholding a literal interpretation of art. 154 in the terms previously stated does not comply with the criterion of correctness, given that the validity of the principles contained in the bases should be understood as a “prize” that Chileans could only have accessed if they approved the proposed text, no matter how inconvenient it might have been. This interpretation is contradictory, as it considers that these would be values that would, at the same time, have a fundamental but conditioned function.

According to the argument of injustice, when legal norms exceed a certain limit of justice, they cease to be considered true norms of law. It is not required that the law have a specific moral content, but rather that it remains outside a threshold of immorality that is intolerable. In this sense, morality does not define the law, but it does establish its limits. Unlike the previous argument —which was conceptual or analytical—, this one has a normative nature, as it introduces a value judgment on when a norm loses its legal validity for ethical reasons. In this way, the formalist interpretation of art. 154 also fails to comply with this argument, as it would seem an “extremely unjust” solution —in Radbruch’s terms (1946)— to hold that, despite the value of the principles agreed upon in the “Agreement for Chile” at the end of 2022, they will not be applied to the current community, solely because the project prepared by the competent bodies was rejected. Furthermore, considering the procedure designed for drafting the proposal, it would have been enough for the Constitutional Council to have used its veto power to draft a totally absurd text, thus forcing its rejection and thus “nullifying” the normative effects of the bases. We do not intend to affirm that this has happened, but only to demonstrate that the proposed solution can lead to results openly contrary to justice.

Furthermore, as noted in point 1.2 of this paper, there are not few situations in which the Chilean judiciary has favored other interpretations, different from the unrestricted adherence to the literal meaning. In addition to the already cited Rol 33 of the TC of 1985, we will mention a couple of additional cases. The first is the case of the removal of parliamentary immunity (desafuero de parlamentarios). In this regard, the second paragraph of art. 61 of the CPR establishes— in the relevant part—that no deputy or senator may be accused or deprived of their liberty without the competent Court of Appeals, acting en pleno (as a full bench), previously authorizing the accusation. Even though the provision clearly and explicitly requires desafuero to “accuse” a legislator, the TC has favored a systematic interpretation to extend this requirement also to the prosecution of crimes that do not contemplate the accusation procedure, as occurs with private actions, such as libel (injurias). On this point, the Tribunal has held that:

an interpretation—sustained solely on the literal terms of the constitutional precept—that excludes private action crimes from the scope of desafuero must be discarded, since it would, in that case, suppress a guarantee conceived for the unrestricted fulfillment of the parliamentary function, placing the affected person in an unequal situation, to the detriment of their rights (Rol N° 2257, 2006, cons. 9°).

In a similar vein, recently, the Second Electoral Tribunal of the Metropolitan Region upheld a complaint filed against the Electoral Service, which had excluded a woman diagnosed with Down syndrome from the respective electoral roll, who was consequently interdicted due to insanity. The Service based this exclusion on the provisions of art. 16 N.° 1 of the CPR, which establishes that “the right to vote is suspended: by interdiction in case of insanity.” In its ruling, the Electoral Tribunal again ruled against the literal wording of the constitutional norm, and correctly concluded that, despite what was expressly stated in the text, the interdiction in question only produced civil effects, without this enabling the suspension of the affected person’s political rights. To do this, the ruling relied on principles linked to the democratic regime and the respect for human rights enshrined in international law. The ruling was not appealed, so it became enforceable (Rol 83-2025-E, 2025).

In addition to everything indicated here, additional arguments can be added that reinforce the conclusion that the institutional bases enjoy full legal validity and represent valid inputs for an axiological and systematic interpretation of the Constitution.

First of all, it must be clear that the plebiscite of December 17, 2023, was an electoral process intended solely to resolve whether the draft prepared by the Expert Commission and the Constitutional Council was approved or rejected. Nothing more than that. It did not imply, in itself, an evaluation or a ratification of the principles previously defined by the derived constituent. In other words, what was voted on was not the institutional foundations in the abstract, but the way in which these—along with other contents—had been materialized in the draft submitted for a vote. Therefore, from the rejection of the text, expressed by the citizenry, one should not infer a disapproval of the foundations that served as the basis for its drafting.

Furthermore, it is reasonable to maintain that, given the will of Congress to establish institutional foundations or boundaries, these were exclusively circumscribed to the drafting of the constitutional draft. In contrast, it does not seem justifiable to demand that the parliamentary debate also had to pronounce on the effects that said principles would have in case the proposal was rejected. It was altogether obvious that the hypothesis that had to be regulated was that relative to the conditions that the text prepared by the corresponding bodies had to meet, and not the future scenarios eventually derived from its rejection.

It is also possible to approach this question from a finalistic or teleological perspective, which understands that interpretation is not limited to “clarifying the meaning of that text,” but rather “to knowing what the legislator meant to say when bringing that text to light,” as García Amado (2004, p. 39) puts it. From this approach, it can be argued that the will of the derivative constituent was not only to establish specific rules for writing a proposal, but to lay the foundations for a future constitutional order. This intention was not only expressed in public statements or party spaces but was formally discussed and approved in Congress, through deliberations that met the highest quorums required by the current legal system. In that sense, the ultimate purpose of the process was not only to set limits for the drafting of a text, but to guide Chile towards a model of State defined by certain fundamental principles, rights, and characteristics.

Finally, in strictly formal terms, to argue that the bases would have lost validity after the 2023 plebiscite is incorrect based on the most basic concepts of legal theory. In a civil law model, where written legislation prevails over custom and precedent, valid and current legal precepts—whether they be laws, constitutions, or decrees—can only lose such validity through their repeal, and only through another precept of equal or superior hierarchy. In this case, art. 154 of the CPR has not been repealed by any of the three existing forms of repeal in our legal system: express, tacit, or organic (Squella, 2000, p. 258). It has not been subject to express repeal, because no subsequent constitutional reform has so provided; nor has tacit repeal operated, which would have occurred if a new constitutional norm were incompatible with the previous one; and, finally, no regulatory body has been issued that fully regulates the matters covered by this provision, which excludes organic repeal. Consequently, since the provision of art. 154 is not repealed, and since there is no other way in the Chilean legal system to terminate valid and current provisions, it must be understood that the mentioned article remains fully in force, regardless of its instrumental origin.

In short, the institutional foundations join the current Constitution as material content that broadens the network of principles allowing for the interpretation of its norms, both from a systematic and an axiological method, without any reasons preventing this. Adopting this stance, by the way, can have important effects not only on the interpretation, but also on the subsequent application of the Constitution. This will happen, for example, when the recognition of the original peoples (Foundation No. 4) illuminates the meaning of the constitutional guarantees already enshrined; or when social rights are understood according to the postulates of the social and democratic state of law (Foundation No. 5); or when the rights generically established in the Constitution are interpreted according to the best interests of children and adolescents, in the event that they are the holders of these rights (Foundation No. 9); or when a reading emphasizing the care for biodiversity is introduced regarding the duties of the State in environmental matters (Foundation No. 12). The effects are undoubtedly relevant, and this seemed to be the will of the constituent assembly at the time, which the interpreter should not disregard.

3.2. From the criteria of progressivity and non-regression, the repeal of the institutional bases could constitute a violation of international law

Currently, a parliamentary motion is being processed in the Senate that seeks to repeal the constitutional provisions related to the two constitutional processes developed in Chile since 2021. The basis of the initiative is that the permanence of these norms would affect the rule of law and constitutional supremacy. This is a constitutional reform project that, according to its authors, aims to “purify” the text, suppressing those provisions that have lost validity and relevance (Bulletin N.º 17.516-07).

We will not dwell much on the substantive arguments raised by the senators, although it should be noted that the preservation of the institutional bases in no way affects constitutional supremacy or the rule of law. In fact, this work has sought to demonstrate that these bases represent useful principles for a systematic and axiological interpretation of the Constitution. Consequently, the binding nature of the bases operates—following Guastini (2014, p. 101)—as a “metanorm,” that is to say, as a provision that does not seek to provoke certain acts or behaviors, but is directed at other norms, thus guiding an authentic interpretation of the constitutional text.

However, what we are most interested in proposing in this work is that, in accordance with the principles of international law analyzed—in particular, those of progressivity and non-regression—once a certain guarantee of rights has been incorporated into the legal system, a relevant legal effect is generated. This effect translates into a greater link between the State and the new protection mechanism, which may imply everything from the requirement to strictly justify any attempt to eliminate it, to the legal impossibility of doing so in the absence of adequate justification.

In this sense, an eventual repeal of article 154 of the CPR that lacks sufficient justification could generate international responsibility for the State of Chile.

In point 2.3 of this work, we reviewed those institutional bases that incorporate new principles into the constitutional order: the recognition of indigenous peoples, the social and democratic rule of law, the best interests of children and adolescents, and the care and conservation of nature and biodiversity.

Regarding them, it should be noted, first of all, that a recent report by the United Nations Special Rapporteur on the rights of indigenous peoples (2025) has commented on the recognition of these rights. In it, it was indicated that States have the duty to recognize indigenous peoples as rights holders and that, although they usually do so through constitutions, laws or other instruments, “it is essential” that the recognition be carried out at the constitutional level. This is because laws can be more easily repealed or modified than constitutions, which jeopardizes the stability of these rights (para. 48). For the same reason, the Rapporteur concludes by stating that States “should recognize indigenous peoples in their constitutions to reaffirm equality and prevent discrimination” (para. 109). In this way, once indigenous peoples are constitutionally recognized —which, although incipiently, is what happened from the institutional bases—, this provision could not be eliminated from the text without a strong argument. The aforementioned report of the Special Rapporteur has expressly stated this, regarding certain practices in Asian countries: “Under the principle of non-retrogression, States cannot take measures that weaken human rights already protected and guaranteed” (note 52).

In relation to the social and democratic state of law, we must bear in mind (in addition to what has already been pointed out in point 2.5 of this work) some considerations, such as those of Pérez Luño (1991, pp. 227-228), for whom this model impacts the field of fundamental rights, since they cease to be only limits to state action, and become instruments of its positive activity. Thus, the social and democratic state formula can be understood as a political guarantee of fundamental rights (Gimeno et al., 2007, pp. 37-50). Consequently, its eventual repeal from the Chilean constitutional text, based on progressivity and non-retrogression, may be dangerous from an international law perspective.

Both principles were developed jointly in the case of Pensioners and Retirees of the Comptroller’s Office (Acevedo Buendía v. Peru), resolved by the IACHR Court. In that judgment, the Court affirms that progressivity is manifested as “an obligation to act, that is, to adopt provisions and provide the necessary means and elements to respond to the demands for the effectiveness of the rights involved, always to the extent of the economic and financial resources available for the fulfillment of the respective international commitment acquired” (Series C-198, 2009, paras. 102 and 103). Likewise, it warns that any measure that implies regression in matters of economic, social, and cultural rights must be fully and carefully justified by the States (Series C-198, 2009, para. 103). This last point may lead to the conclusion that, in the Chilean case, the eventual suppression of the clause that enshrines the social and democratic state of law would lack a substantive justification, and could only be interpreted as an attempt at constitutional “purification,” which does not satisfy the required protection standard.

Furthermore, in the case of Poblete Vilches and others v. Chile, the Court underscored the concrete and constant duty of the State Parties to “advance as expediently and effectively as possible towards the full effectiveness of economic, social, cultural, and environmental rights”), establishing the obligation to avoid setbacks with respect to standards already achieved (Series C-349, 2018, para. 104).

Regarding the best interests of children and adolescents, the IACHR Court has indicated that the principle of progressivity, applicable to all human rights, should be communicated, naturally and coherently, to the rights of childhood and adolescence. This is evident from both the famous and painful case of Street Children (Villagrán and others) v. Guatemala (Series C-77, 2001, para. 144), and the Advisory Opinion on the Legal Status and Human Rights of the Child. In the latter, the court laments that the evolution of guarantees has not been adequately reflected in the situation of “an enormous number of children,” revealing an unacceptable gap between normative standards and the reality of their application (OC-17/02, para. 34).

Along similar lines, the Convention on the Rights of the Child also refers to progressivity as a criterion that should be applied to rights such as health (art. 24) and education (art. 28). However, this principle does not only apply to social rights. For example, for Barquero (2016), non-regression would also operate in the punitive sphere, as it would be an obstacle to reducing the minimum age of criminal responsibility. For all these reasons, a panoramic view of the matter leads to the conclusion that, by virtue of progressivity and non-regression, it is not legally admissible to diminish the protection of the rights of children and adolescents, so the deconstitutionalization of this principle—understood as a transversal guarantee of rights—can be questionable.

Finally, regarding biodiversity, it should be noted that progressivity and non-regression are also applicable to environmental rights. The IACHR has indicated this in various rulings. This is the case, for example, of the Inhabitants of La Oroya vs. Peru case, where it indicated that the State must act “in accordance with its obligation of non-regression of the right to a healthy environment and health” (Series C-511, 2023, para. 346). The Advisory Opinion on climate emergency and human rights should also be highlighted, in which it holds that the consideration of nature as a subject of rights and the empowerment of local communities and indigenous peoples for the protection of ecosystems favors the principle of progressivity of economic, social, and environmental rights. This same pronouncement adds that the criterion of intergenerational equity is closely related to the principles of prevention, precaution, and progressivity, for which reason it urges States to ensure “an equitable distribution of the burdens derived from climate action,” not only among present generations, but also among future ones (OC-32/25, 2025, paras. 289-320).

This general review of international regulations allows us to conclude that, at least the four novel principles for Chilean constitutional law incorporated by the institutional foundations, represent specific guarantees of fundamental rights. By virtue of the principles of progressivity and non-regression, their elimination — or even their attenuation— would be inadmissible without a reasonable justification; for this reason, any attempt in that direction would require especially rigorous substantiation.

3.3. The constitutionalization of the institutional bases must be understood as an incipient and unfinished formulation of certain principles, which require to be complemented and developed in the future

This work has attempted to demonstrate the transcendence of institutional bases and their conceptual and legal contribution to the Chilean constitutional system. However, the fact that they are rather generic and incomplete pronouncements requires constitutional, legislative, jurisprudential, and doctrinal development so that they can fully deploy all their binding force in institutional, jurisdictional, and political matters.

If we understand, as has been maintained in this study, that the institutional bases are part of the list of current constitutional principles, then they must be understood as endowed with normative force, just like any other precept contained in the Constitution. This affirmation, however, does not prevent recognizing that the way in which these principles have been drafted can generate uncertainty, in that they are presented as broad or open-textured statements, susceptible to admitting a varied assignment of possible meanings.

The complexity is accentuated if we recognize that these principles, following Eduardo Espín, possess “concrete normative mandates, susceptible to immediate application” (2010, p. 42). Consequently, they could be classified as that class of precepts— usually contained in the dogmatic part of a Constitution—”that do not require any normative mediation,” following the categories proposed by Miguel Ángel Fernández (2001, p. 79).

In this context, the question that arises is to identify which bodies are responsible for giving these principles a more specific content, that is to say, for detailing or complementing their scope, with a view to facilitating their application. From the perspective of democratic constitutionalism, what is proposed by Post and Siegel (2003) seems reasonable; they maintain that legal systems must avoid “juricentric” systems, which concentrate the role of exclusive guardians of the Constitution in the courts. For this reason, what is proposed in this paper is to urge the National Congress to—through laws or constitutional reforms—develop and give more specific content to the principles contained in the institutional bases.

In this way, the irradiation of the bases in the legal system and their application to specific cases would operate through democratic deliberation, which would undoubtedly offer better guarantees of political, social, and cultural pluralism. This should be the most effective mechanism to realize the normative force of the Constitution, as suggested by Aldunate (2009), and not through a “lax and relaxed handling of the invocation” of constitutional values and principles by bodies such as the Constitutional Court itself.

Nevertheless, if the legislator fails to fulfill the role of developing more specific and concrete content, it will be inevitable that, when resolving particular cases that require interpreting the institutional foundations, it must be the judiciary that assumes that task. This is because —as Guastini (1999, pp. 78-79) says— constitutions not only fulfill the political role of limiting power and, therefore, are texts that should only be interpreted “authentically” by the “supreme constitutional bodies,” such as the Chambers or the head of State, but also, like any law, must be interpreted and applied by common judges “for the solution of the controversies submitted to them.” In this way, when there is no authentic interpretation that, with general effects, the legislator makes regarding the specific content of the foundations, the matter must be resolved, case by case, in the judicial sentences issued based on specific litigation.

In this latter case, however, judges should always act with adherence to the principle of pluralism and with due deference to the legislator, when appropriate. In this way, the assignment of meaning to constitutional norms must conform to the democratic criteria incorporated in the constitutional text itself¹⁷ and not be purely authoritative.

Ultimately, it is possible to conclude that the institutional bases are constitutional principles that have normative force, just like any other provision present in the Constitution. As such, they bind the organs of the State and guide constitutional interpretation. However, the conceptual development of each of them should be a preferential task of democratic deliberation, expressed fundamentally in the legislative body, and could only be exercised supplementarily by the courts of justice. The latter would act as a last resort, characteristic of a rule of law state like the Chilean one, when the legislator has not provided a more specific content.

Conclusions

After reviewing some general considerations about constitutional interpretation in Chile, it is possible to hold, as a first conclusion, that, in the absence of explicit rules of constitutional hermeneutics, it is possible to resort to methods such as systematic, axiological, and progressive interpretations. This, especially, when dealing with reasoning that has already been used by Chilean and international jurisprudence.

Next, the analysis of the institutional bases incorporated into the Constitution at the beginning of 2023 allows them to be characterized as principles that have democratic legitimacy, since they were born from a forceful political agreement of the time. It must also be considered that they were incorporated into the permanent and not merely transitory articles of the Constitution and that, regarding their content, they introduced some novel principles, not contemplated until then in our constitutional legal system. In this last situation are the recognition of indigenous peoples, the formula of the social and democratic rule of law, the best interests of children and adolescents, and the respect and care for biodiversity. All of them can also be identified as guarantees of rights, since they represent appropriate tools for the protection of economic, social, cultural, environmental, and political rights, as well as those of disadvantaged groups, as is the case with indigenous peoples, childhood, and adolescence.

Building upon all this, the proposal of this article is to affirm that the principles contained in the institutional bases represent current constitutional provisions, which represent sufficiently consensual values and that, as such, must be considered valid inputs to allow for the systematic and axiological interpretation of the Constitution. Additionally, given that some of these bases represent specific guarantees of fundamental rights, the principle of progressivity and non-regression, contemplated in international human rights law, applies to them, meaning they could not be repealed or restricted, unless a strong and rigorous justification operates.

The way, however, in which the institutional bases are drafted —especially the four previously mentioned ones¹⁸— requires that their conceptual and normative content be filled in the course of their future application. For this, without prejudice to the contributions that may come from the community and specialized doctrine, it is proposed that this task be assumed by the National Congress through laws and constitutional reforms, as it enjoys greater democratic legitimacy than judicial work. However, in the event that said body does not fulfill that function in a general way, it must be the judiciary that carries it out, particularly, based on the resolution of the cases submitted to its knowledge.

In accordance with what has been set forth in these pages, it is essential to assess the usefulness of the institutional bases as mechanisms that have allowed for the updating of constitutional values, bringing our Constitution closer both to long-standing social demands and to international standards in the field of human rights. These principles now integrate the constitutional text, so resorting to them for its interpretation does not mean “leaving the system,” but rather remaining within it, adhering to the normative force of the Constitution within the rule of law that governs us.

This perspective has been supported by some legal scholars. Thus, for example, Christian Viera (2024, p. 96) has pointed out regarding the social state that it is “a formula that is there, in the permanent articles of the current Constitution, in 154 N° 5.” He adds that it also has “a majority political consensus,” which could influence the necessary, gradual, and future design of social rights.

The legal challenge is, then, in sight: to conceive of the institutional bases as fully valid constitutional norms that can contribute—through constitutional mutation—to offering more just answers to the needs of people and communities. From this, it is possible to build the foundations of a “from within” transformative constitutionalism, that is, based on positive law itself, interpreted in light of the values expressly contemplated in its text.

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Funding: No funding was received for the research, authorship, and/or publication of this article.

Conflicts of interest: The author declares that there is no commercial or financial conflict of interest for this research.

Author contribution: Hugo Tortora Aravena: Writing - review and editing, Project administration, Formal analysis, Conceptualization, Writing - original draft

Use of artificial intelligence tools: The author declares that no artificial intelligence tool (such as ChatGPT, Copilot, Gemini, or others) has been used in the writing, analysis, or review of this article.

Notes

1. Political Constitution of the Republic of Ecuador. Art. 11, N.° 6: ‘Rights shall be progressively developed. The content of rights shall be interpreted in accordance with the Constitution, international human rights treaties, and the decisions of international human rights organizations.’

2. Political Constitution of the State of Bolivia:

Art. 13. II. International treaties and conventions ratified by the Plurinational Legislative Assembly, which recognize human rights and prohibit their limitation in States of Exception, prevail in the internal legal order. The rights and duties enshrined in this Constitution shall be interpreted in conformity with international human rights treaties ratified by Bolivia.

Article 256. I. Treaties and international instruments on human rights that have been signed, ratified, or adhered to by the State, which declare rights more favorable than those contained in the Constitution, shall be applied in preference to the latter. II. The rights recognized in the Constitution shall be interpreted in accordance with international human rights treaties when these provide for more favorable norms.

3 Both principles were developed, as will be analyzed later, in various cases before the Inter-American Court of Human Rights (IACHR Court), such as in Cesantes y Jubilados de la Contraloría (or Acevedo Buendía v. Peru), and Poblete Vilches y otros v. Chile.

4 Furthermore, Supreme Court Minister Ricardo Blanco, in a minority vote, maintained that one of the pillars of social security law in Chile is the principle of ‘progressive evolution of benefits.’ In his opinion, this principle implies that once an evolutionary phase regarding the content of benefits has been surpassed, it is not possible to regress to a previous stage. ‘That is why we speak of the progressivity of benefits,’ he stated in his vote (Rol 1881/2014).

5 Constitutional reforms, published, respectively, in the Official Gazette on January 17, 2023, and May 4 of the same year.

6 National Renewal, UDI (Independent Democratic Union), Evópoli (Political Evolution), Christian Democratic Party, Radical Party, Liberal Party, PPD (Party for Democracy), Socialist Party, Communist Party, Commons Party, Green Social Regionalist Federation, Social Convergence, Democratic Revolution, Humanist Action, Yellows for Chile, Democrats, and UNIR.

7 Constitutional Reform N.° 18.825, published in the Official Gazette on August 17, 1989.

8 Constitutional Reform N.° 20.050, published in the Official Gazette on August 26, 2005.

9 Constitutional Reform N.° 21.200, published in the Official Gazette on December 24, 2019.

10 Article 154 No. 5, meanwhile, had a favorable vote of 112 deputies, 33 votes against, and 6 abstentions.

11 It should be noted that this duality must not be confused with that derived from the double protection of fundamental rights, both at an international and internal level, to which authors such as Humberto Nogueira allude: ‘fundamental rights are not only the rights secured in the constitutional text and implicit rights, but they also incorporate with constitutional rank the rights in their attributes and guarantees that are secured by ratified and current international treaties’ (2010, p. 33).

12 Such as the International Covenant on Civil and Political Rights, the United Nations Declaration on the Rights of Indigenous Peoples of 2017, and ILO Convention No. 169 on Indigenous and Tribal Peoples.

13 Convention on the Rights of the Child. Art. 12: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

14 UNESCO Universal Declaration on Bioethics and Human Rights, adopted by acclamation at the 33rd Session of the General Conference, held in Paris, on October 19, 2005. Chile is among the States that proclaimed it.

15 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992

16 The text of the institutional and fundamental bases is transcribed in point 2 of this work.

17 In this regard, constitutional precepts should be considered, for example, which state that ‘Chile is a democratic republic’ (art. 4°), and that sovereignty resides in the nation, and its exercise corresponds to the people, without it being possible for any sector of the people or individual to attribute its exercise (art. 5°, first paragraph).

18 Reference is made to the recognition of indigenous peoples, the constitutionalization of the social and democratic rule of law state, the superior interest of children and adolescents, and the care and conservation of nature and biodiversity (art. 154 of the CPR, numbers 4, 5, 9, and 12, respectively).