Chilean Constitution of 1823: A Moral Foundation
Third Period
Background
At the time of O’Higgins’ abdication, the provinces of Concepción and Coquimbo took up arms. On March 30, 1823, three representatives of the Provincial Assembly signed the Act of Union of the Provinces to address this situation. This provisional constitution elected Ramon Freire as Acting Supreme Director and declared the 1818 Constitution in force (except where contrary to the Act of Union). It also organized a Constituent General Congress to develop a new Constitutional Charter. Federal doctrines emerged during this period. Once appointed, the Supreme Director formed various committees, including one to draft the Constitution.
Don Juan Egaña drafted a constitutional project, presented to the Constitutional Convention, which largely reproduced a project from 1813. This project caused divisions among the deputies, with authoritarian conservatives supporting Egaña’s draft and liberals or reformers opposing it. Notably, this was the first constitution adopted by a Constituent Assembly. This Constitution was called the Moral Constitution of 1823 because it attempted to impose behavior. In 150 Years of Constitutional Development, author Don Julio Heise noted the belief that laws were effective in making people virtuous and happy, reflecting a deification of the law.
Moral Constitution of 1823
Executive Power
The executive power resided in a Supreme Director, who had to be a citizen by birth or, if foreign, have twelve years of meritorious service and a declaration of heroic degree. The Supreme Director had broad powers, including exclusive legislative initiative through messages and the power to legislate in emergencies. The term was four years, with the possibility of re-election by a two-thirds vote, chosen by popular vote. The Supreme Director was assisted by three secretaries and a Council of State.
Legislative Power
The legislature resided in a permanent body called the Senate, composed of nine lawmakers and conservative senators elected for six-year terms, indefinitely re-electable. Their role was to pass laws proposed by the Supreme Director. Their most important function was to ensure national morality.
- Sovereignty resided essentially in the nation.
- Individual rights were enshrined.
- The three branches of government were separated.
Judicial Power
For the first time, the judiciary was organized under a Supreme Court, with appellate courts and lower courts under its jurisdiction.
- This Constitution enshrined basic principles such as national sovereignty, representative government, citizenship, and territorial limits.
Background: Pipiolos vs. Conservatives
The elections for the Constituent Congress of 1828 resulted in a significant victory for the liberals. The Congress appointed a committee to draft a Constitution. The Congress approved the project, and the Constitution, written by Don Melchor de Santiago Concha and reviewed by Jose Joaquin de Mora, was adopted on August 8, 1828.
- The executive was headed by a President of the Republic, with the new position of Vice President, who would assume the presidency in case of death or incapacity. Both served five-year terms without immediate re-election, elected by indirect vote.
- The President had legislative powers, including introducing bills, a suspensive veto, and vetoing bills passed by both houses.
- Both President and Vice President could be charged under the Constitution during their term and up to one year after its completion.
Legislative Power
The National Congress was bicameral, consisting of a House of Representatives and a Senate. Deputies were elected by the people (one per 15,000 inhabitants) for two-year terms, and senators were elected by provincial assemblies (two per province) for four-year terms. They enjoyed immunity and inviolability.
Judicial Power
The judicial power maintained a pyramid structure: Supreme Court, Court of Appeals, and courts of first instance. Supreme Court ministers were appointed by Congress, and judges were elected by the President of the Republic from a list proposed by provincial assemblies. Courts of peace were also established.
- This liberal constitution established religious tolerance, excluding the public exercise of any other religion, but Article 4 stated that no person shall be prosecuted for their private opinions.
- It defined territorial limits.
- It abolished primogeniture.
- It divided the country into eight provinces, reflecting a federal project.
- It granted citizenship to those over 21, married, serving in the military, practicing a profession, art, or industry, or possessing capital, real estate, or employment.
- The government was a representative republic, with popular sovereignty delegated to the authorities, divided into three branches.
Historians consider this code advanced for its time. It marked the last attempt at federalism in Chile. While it didn’t fully satisfy the ideologies of various political factions (Whigs, Federalists, O’Higginistas), it was legally established and aimed to guide the legality of political acts.
Constitution of 1833
Background
The 1828 Constitution’s failure to satisfy the ideologies of various political sectors (Whigs, Federalists, O’Higginistas) caused deep divisions. However, this Constitution aimed to legally guide political acts. The upcoming presidential election had consequences, with flagrant constitutional violations. On October 4, 1829, the Provincial Assembly of Concepción refused to recognize the irregularly elected president, and revolutionary forces moved south towards Santiago, plunging the country into civil war. This constitution’s validity resulted in a civil war between liberals (Pipiolos) and conservatives (Whigs), with the latter winning at the Battle of Lircay. This established the conservative or authoritarian republic in Chile, with its first president, Don Jose Joaquin Prieto. On May 25, 1833, a new constitution, based on the ideas of Don Diego Portales, was adopted. This document solidified the political, economic, social, and legal foundations of the republic and ended the period of constitutional anarchy in Chile.
The Constitution of 1833 was a crucial document for Chile’s political and economic development. Promulgated on May 25, 1833, and based on Don Diego Portales’ ideology and written by Don Mariano Egaña, it cemented the political, economic, social, and legal foundations of the state. This constitution brought stability to Chile’s political and legal institutions. By 1833, more than half the world was composed of colonies, kingdoms, or possessions of other powers. There were over 15 constitutions worldwide at that time. This constitution ended the period of anarchy in Chile, consolidating the rule of law while other American nations struggled with anarchy (e.g., Argentina, Peru, Bolivia). The establishment and consolidation of political, economic, and legal institutions led to Chile being called the “English of Latin America.” Chilean history would be very different without this constitution.
The 1833 Constitution didn’t fit neatly into either the parliamentary or presidential system, containing elements of both. It included parliamentary elements like the positions of Ministers of State and the mechanism of periodic laws, as well as presidential elements like the President’s legislative powers and irresponsibility. The President could appoint and remove ministers at will.
- It consisted of 168 articles divided into 12 chapters.
Executive Power
- The executive power resided in a President of the Republic, with a five-year term and eligibility for one re-election.
- It eliminated the Vice Presidency from the 1828 Constitution.
- Formally, it was a reform of the 1828 Constitution, but it was essentially a new one, drafted by the constituent power, not a derived constituent power. Article 136 of the 1828 Constitution established an entrenched clause, preventing changes until 1836. However, circumstances led to a way out of the law through civil war, effectively repealing the constitution, similar to events in 1924 and 1973.
- The President and Senate were elected by indirect vote, not directly.
- The President held maximum authority and was politically irresponsible, with the power to legislate via decrees. There was no Comptroller or Constitutional Court, only the executive’s self-control. During states of emergency, the President could suspend the Constitution.