Thomas Jefferson once observed "that the earth belongs in usufruct to the living". Usufruct is an old concept from Roman law, often known as life-rent in Scots law. The usufructary may make use of the property she occupies, enjoy its fruits, till its fields, but she may not dispose of it forever. Once her life is spent, her rights over the territory are extinguished.
In his 1789 letter to James Madison, Jefferson was concerned with the relationships between one generation, and its successors, writing:
"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.--I set out on this ground, which I suppose to be self evident, "that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it."
As the future President of the United States recognised, this is a question of singular importance, when framing and thinking about constitutions. It is a question which will face Scotland, if it emerges as a renewed sovereign state after 2014. What political struggles do we crystallise, try to settle in its page or pages? What issues do we let dead men and women decide for the living? What liberty do we leave to future generations, to determine the shape of our polity, or alternatively, to amend the terms of the constitution, if it grows uncongenial or inconvenient?
Already in the debate on Scottish independence, we've heard grand claims made for constitutions, and an accumulating laundry list of concerns and cares which folk will, in time, vie to have added to an independent Scotland's fundamental law and list of protected rights, liberties and entitlements.
We've heard talk of an "aspirational constitution" for Scotland, an inspirational crucible for "our" values. Amy Westwell has argued the case for a vigorous, radical constitutionalism for a new Scotland:
"There must be a real political rather than institutional movement, which talks about democracy, active citizenship, and public law in terms of the constitution, so that when the constitution comes to be formed it is seen as a political statement, and the establishment of levels of democracy as the embodiment of ideals, rather than bureaucratic institutional forms."
Substantiating of version of this, the First Minister has mentioned a ban on the presence of nuclear weapons in Scots territory, and even a constitutional provision requiring free education and youth employment for every nipper. As the issue is discussed, my guess is that we can expect more and more suggestions to accumulate across the gamut of policy.
The Brazilian constitution furnishes a potential model of this sort of expansive, aspirational fundamental law. It regulates, amongst other things, extensive labour rights including rates of annual holiday and minimum wage "capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to use it as an index for any purpose".
Once you get into this sort of thing, where do you stop? What political topics ought to be immune from the ordinary political process, excluded from the usufructary package, and written into the fundamental law? After all, what about women's rights? Why not put rights of access to abortion in the constitution, and to equal pay, maternity (and paternity leave) into the document? What about disabled people? Shouldn't their entitlements to benefits enjoy entrenched protection, rather than being subject to the ordinary argument and sway of month by month, year by year politics? The NHS is, for many folk, emblematic of a collective commitment, however fraying it might be, to social democratic values. Why not ban the outsourcing or services to the private sector in the basic law of a new Scotland?
In other countries, constitutional protections reflect political experiences, and political struggles, with the victors keen to entrench hard-won gains. This is an understandable impulse, but I'm not convinced that it is one an independent Scotland ought uncritically to follow, whatever the clamour from this interest group, or that. I'm sympathetic to all of the policies I summarised above. I'm just not convinced we ought to find them in the written constitution of an independent Scotland.
To give you one example, a lesson in caution about what you include in your constitution, a story in the Irish Times caught my eye this week. The Republic's Supreme Court is overloaded, and plans are afoot to institute a new Court of Appeal, liberating the apex tribunal to focus its attention on tricky constitutional matters. Under Article 46 of the Irish constitution, the necessary amendments to the constitution will need to be approved by a national referendum. Although access to courts is an important issue, it seems an extravagant requirement to consult the whole body of the Irish people about introducing necessary reforms to how justice is realised.
Of course, other states organise things differently, dispensing with any referendum requirement, requiring instead only a qualified majority in the legislator to alter the constitution. But both the issue of what to include, and how we might amend any basic law we pass, returns us to Jefferson's anxiety that the living, and not the dead, should decide how their polity is governed.
Of course, things are a wee bit more complicated than that. Constitutions can be lyrical statements of values, but legally unenforceable in court. I'm not enough of a dry legalist to argue that mere words of this sort are unimportant, and that justiciability should be treated as the gold standard of value. In thinking about any constitution, however, we begin to make serious choices early on.
Lean constitutionality of the sort I favour is, I suspect, unlikely to find much favour with many politically active Scots after independence. A constitution which established institutions, lawful forms isn't one to stir the blood. Its jurisprudential aspirations won't stiffen the sinews, save perhaps for the willowy limbs of the stoory odd public lawyer. It'd look suspiciously like the rejected, Westminster-style legislative supremacy, even if a modest list of protected civil and political rights were appended. A crucible for national values, save for those of democracy, liberty and the rule of law, it ain't.
There is nothing democratic or radical about this generation trying to settle its will on all who come after it. The entail (or tailzie, for your Scots lawyer) is an outgrowth of feudalism, not a lively concept fit for an active democracy of engaged citizens.
Politics too belongs in usufruct to the living: not to self-righteous, dead social democrats, nor old wigs in the dim litigious light of a constitutional court.