Who are "we the people"?

Who are “we the people”? It is traditional to begin constitutional tracts with that kind of question. During the early phases of the French revolution, the Abbé Sieyès– the “mole of the revolution,” who had the bad grace stubbornly to survive the whole thing – asked his fellow citizens, “what is the third estate?” 

The body formed one third of the Estates General summoned in 1789 by the ill-fated Louis XVI, along with the nobility and the clergy. But who were these “commoners"? And what did they represent? The delegates didn’t hold their places by dint of clerical office, or on the back of an inherited dignity won by their ancestors through legalised brigandage. 

They were a motley crew of provincial lawyers and wine merchants, some broken down aristos, philosophers, hacks, mad physicians, speculators, chancers, worthies and unworthies. That the Third Estate evolved to see itself as representing a national assembly and the sovereign will of The People is well known: a growing self-consciousness which pitched several pillars of the old dispensation into their graves. 

An independent Scotland faces a rather different conjunction. Our political tumult doesn’t result from dethroning a reactionary sovereign – we’re keeping ours. By the other dimensions of the constitution are up for grabs after a Yes vote, with an emerging consensus that any constitution should be a matter for "the people" to decide. The Deputy First Minister expressed the orthodox Nationalist constitutional discourse clearly in her Edinburgh speech this week:

"... the process of creating the constitution – the engagement by the people in it – will be as important in many ways as its contents. Because the constitution of a country defines who makes decisions on behalf of its people and how the people choose those decision-makers and influence their decisions. The constitution should also set out the aspirations we have for our country and our vision for the future."

"As I have said, the constitution is the basis of everyday life, not separate from it. So the written constitution should be designed by the people of Scotland, for the people of Scotland. The process must be participative and collaborative to reflect that the people – not politicians or state institutions - are the sovereign authority in Scotland."

But who are “we the people”? In 1787, a convention of wealthy, white, bourgeois men in Philadelphia happily and apparently unselfconsciously appropriated the term in the preamble to the Constitution of the United States of America. Needless to say, this assembly of The People left great swathes of the people unrepresented. Reading the Scottish Government's draft interim constitution, put out for consultation this week, and Nicola's speech at the university of Edinburgh, I was struck again by the importance - and the continuing vagueness - of our thinking about the constitutive role of the people, and more practically, how we wish to see this expressed after a Yes vote.

The concept of "the people" features in a couple of ways in this week’s draft interim constitution. In section 2, their sovereignty is asserted:

"All state power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people" (s.3(2))

The people put in a second appearance in section 33, which provides that:

"The Scottish Parliament must, as soon as possible after Independence Day, make provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland."

The Bill also provides that this Convention will not be subject to control by ministers and parliamentarians, though it envisages that the Scottish Parliament will lay out provision on its membership, budget, timetables, procedures - and critically, the rules governing "the procedure by which the constitution" prepared by this body "is to be agreed by or on behalf of the people."

A few things to notice about this. Firstly, the Bill envisages that that process of writing Scotland's permanent constitution will only begin after independence is fully established. It will not run in tandem with the negotiations to break up Britain, divide assets and agree terms of continuing cooperation with what remains of the United Kingdom. Secondly, the Bill kicks the can down the road and leaves key questions unanswered. The idea of a constitution being drafted "by the people" does not speak for itself. Even the language of a Convention is inscrutable, potentially compatible with any range of configurations in terms of membership and remit. Nor do the international parallels all speak with one voice. "The People" look different in different places.

As I have written before on this topic, the recent Irish Constitutional Convention, reconsidering the Republic's basic law, consists of a mixed body of politicians and citizens. Chaired by Tom Arnold, the rest of the Convention is populated by 33 parliamentarians, and 66 randomly selected, "broadly representative" ordinary citizens. In Iceland, by contrast, 25 individuals were elected by special ballot, to form the convention which drafted their abortive "crowdsourced" constitution.

Our own recent history expresses a different conception of a convention altogether, with the Scottish Constitutional Convention forming around political parties, a selection of civic organisations, churches and the like - with few of The People having any say about who was, and was not, sitting around the table.  All three conventions comfortably use and used the language of expressing the popular will, but their compositions couldn't be more different.

The language of the draft Bill suggests that the Scottish government wish to exclude national parliamentarians from membership altogether, but even then - that doesn't answer all of the questions about who "the People" who compose this constitution might be, how many of them are delegated, and how individuals will selected to serve.

Should selecting to the Convention be randomised, selected for on the basis of particular characteristics? Teaching constitutional law to my first years in Strathclyde last term, this idea was met with considerable antipathy by my students, but it has been employed elsewhere - including in the Canadian citizens assemblies, which considered the advantages and disadvantages of different electoral systems for the province.

And there is a certain force to the argument that if an ordinary punter can send a man to jail for life, then they are well capable of framing the basic law of the country, with the proper resources and advice. For others, of course, this merely underlines the folly and terrors of trial by jury - and the perils of leaving constitutional drafting in the paws of potentially disengaged, ignorant or indifferent fellow citizens. Several folk find serving on criminal trials a chore - why inflict boredom on the uninterested when you have tragic obsessives like me, champing at the bit to get involved?

And what is so splendid about randomised selection anyway? What special legitimacy does the disengaged individual have over the active and interested citizen? We're hearing this kind of patter quite a bit in the independence debate on all sides. "I'm not involved in politics, I'm not interested in politics" a Better Together activist said to me on Sauchiehall street the other day, as if it made his arguments more respectable and convincing.

In her now-notorious remarks at a recent No campaign event, Clare Lally harped on the same string, representing herself as an "ordinary mother," as if that invested her opinion with greater weight than a more politically-active "ordinary mother" like Johann Lamont, or Angela Constance. You hear the same on the Yes side. While there are plenty of reasons to be cynical about the state of our politics, I'm profoundly suspicious of anybody, whatever their views, smuggling in their ideology under the guileless mantle of being plain, ordinary and common sense. The constitution is essentially a political document.  The process for its formulation ought to reflect that.

So perhaps folk should be obliged to put themselves forward to participate, rather than leaving things to random chance? But then, who decides from these would-be active citizens? Fortune? Election? A sprinkle of both, in a multi-member convention? Or will we have an all-too-worthy rerun of the 1990s, with all the usual suspects in place? Heaven forfend. If there's a lesson in all of this, it is that we should be suspicious of the malleability of the discourse of "the People."

In one sense, the vagueness of Nicola's draft Bill on this point is no bad thing. The air having cleared after September's poll, the negotiations for independence having been largely completed, the new Scottish Parliament can apply itself to these questions - and potentially incorporate concrete proposals on the shape of the Convention in their election manifestos of that year. The Bill doesn't try to stitch up these issues now, prematurely. But it is critical to recognise that the breathless, rhetorical language of a constitution of the people, written by the people, for the people - leaves a very great deal unanswered and undecided.

So who are “we the people”? It seems we'll have to wait until 2016 to find out.