The performance of the members of the Constitutional Convention has made the citizenry look with special attention to the role that experts could play in the second (and hopefully last) part of the constituent process. The participation of the experts -who, due to their specific knowledge, would be more likely than the rest to arrive at "objective" or evidence-based judgments- would be something like a guarantee of the legal quality of a Constitution. The seriousness of their academic credentials would create adequate conditions for a better environment for drafting a good Constitution, and their technical knowledge would have a neutralizing effect on their subjective judgments.
Experts should play a more predominant role than in the failed past experience, but their role should not be protagonist, but secondary. Their purpose should be to provide democratically elected members with tools, knowledge and arguments for deliberation. Thus, instead of replacing politics and representative democracy, they should strengthen it. Two reasons support the inconvenience of such a replacement.
The first is that the academic ideas of experts are not neutral, and therefore are not "better" than those of other people. The approaches of academics -especially those related to public affairs, such as the elaboration of a political Constitution- obey their own philosophical conceptions rather than epistemic ones. They are built on exogenous theoretical assumptions, based on a particular philosophical vision. If the approaches of academics were "objective", why are there profound disagreements among them? This can be explained not by the greater intelligence of some over others, but by the normative differences that exist between such approaches.
Secondly, it would be a harmful precedent for our democracy if experts were to acquire political protagonism. Drafting a Constitution implies reflecting on the aims of a society. In other words, it refers to how things should be. For this purpose, concepts such as freedom, justice, goodness or equality are usually used, for which ethics is unavoidable. Experts, on the other hand, focus on the connection between the means, the ends and the consequences that would follow from different courses of action, rather than on the description of a desirable path. Experts move in the realm of "how", not "what" or "why". These are distinct functions, and twisting their natures is like asking for pears from an elm tree.
Rather, the role of experts should be to strengthen politicians, and not to replace them in their work. This translates into advising those who are democratically elected. In informing democratic opinion without manipulating it. In enlightening about the appropriate means to achieve the ends of society, not in defining them. And its task should begin as soon as possible, so that the systematization of the multiple existing inputs and of our constitutional tradition is made available to the drafters before they take office.
The risk of having experts (co-)drafting the Constitution is that they would be appointed on the basis of their special competencies, but would end up acting by virtue of their political vision. It would be a deception disguised as a technicality. It seems better that such deliberation takes place in an appropriate environment, without pretensions of neutrality, in a properly political context. The conditions for such a context to make it more likely to agree on a transversal and good quality Constitution are not free nor are they given -we already know the recent experience-. Achieving such conditions depends, to a large extent, on the role given to experts at different moments of the constitutional process.
Column by Cristián Stewart, Executive Director of IdeaPaís, published by La Tercera in the edition of September 27, 2022. September 27, 2022.
Image: IdeaPaís