19 August 2013

In praise of ... short constitutions

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.


  1. Although I'm one of those people that's very much in favour of a "constitution as a radical political statement" rather than "a guide to the workings of the state", I do, to a degree, share concerns about idea that we can simply dictate to the people of Scotland that THIS, forevermore, is how we'll do things.

    It's interesting to see that Jefferson had misgivings about this kind of thing too, and I can't help but wonder what he'd make of the modern USA, where he and the other Founding Fathers are venerated as part of what is basically a state religion with the constitution at its heart, seen pretty much as the eternal and infalliable wisdom of these great men, the fact they have been dead for 200 years and inhabited a different world entirely be damned.

    Whichever form our constitution takes, we have to be very careful to avoid such a situation here. As much as possible, we need to make sure the constitution is something that isn't merely laid down for the people, but belongs to the people and can change with them. I'll be buggered if I have any ideas on that front, though. All that I can think of is some sort of periodic "citizens review" of the constitution every, say, 15 years (what might be considered "a generation", especially if we have votes at 16) that basically looks at the whole thing and decides what is fit for purpose and what isn't. Sounds like a lot of hassle though and it would definitely have to exclude political parties to prevent it from ending up just another election.

    1. Allan,

      In fairness, it isn't necessarily an either/or choice between higher-flown rhetoric and principle and the grubby detail. One critical practical question here is, are all parts of a constitution justiciable, and if so in what way? Will folk be able to take the state to court on the basis of those abstract constitutional principles, challenge laws, invalidate Acts of parliament or ministers, or not? Really, this is about our conception of judicial and (particularly) legislative power. Just how mighty do we want judges in a new independent Scotland to be?

      The formulation of the American Constitution is an interesting one, historically. Like most law, as the saying goes, its formulation was less a work of Olympian rationality than a hugger-mugger of politics and compromise.

  2. It needs to be simple and basic and formulated by the public and not politicians and their mandarins otherwise this could be the result.

    1. The process for formulating the text will certainly be important, and I'd certainly argue, with others, for taking the process out of the paws of the usual suspects insofar as possible. The issue has come up on the podcast a few times. I'm sure we'll revisit it before 2014.

  3. One could feasibly build in an amendment procedure that doesn't require such grand actions as referenda. I would tentatively suggest that the constitution of an independent Scotland should empower Parliament to appoint cross-party/non-party Constitutional Commissions in the event of an amendment procedure. The Commission, as and when needed, can recommend necessary reforms and have their proposals subject to parliamentary scrutiny and, perhaps, a two-thirds majority vote to enact into law.

    I'm not one for regarding constitutions as permanent, set-in-stone documents. I largely reject the Westminster argument that only an unwritten constitution allows for the flexibility to adapt to modern requirements. I think, if developed properly, a written one can be just as receptive.

    1. Craig,

      Of course, you're perfectly right. Amendment is one of those tricky areas of constitutional planning. On one hand, the desire for stability and entrenchment vies agin the interests of flexibility and legitimate revisions. It seems important that we begin to think about these things, and the choices implicit in them, now.

      Agenda-setting in constitutional reform is also an important consideration. In Ireland, the Dail enjoys priority on this score. Would we want citizens to have some mechanism to propose an amendment of some kind, or leave agenda-setting in the hands of legislators, or perhaps have episodic reviews of the sort you envisage? A tricky one, particularly as your constitution swells in scale, encompassing not only institutional structures and rules, but substantive (fundamental) legal rights.

  4. Great stuff LPW. Not sure that any constitution can be made binding anyway - the US Constitution is no different from any other constitution, in terms of capacity to be sidelined or tweaked. Even if our hypothetical Scottish one enshrined our right to (for example) bear buns from Greggs, a future Holyrood could argue that buns are not always buns and in any case Greggs is no longer Greggs as enshrined by our Great Founders.

    Thanks for the Brazilian extract which is depressing - and a salutary reminder that in terms of encountering reality constitutions can be fine words but are also just words. Most of the US's wars - including its Civil War! - are arguably unconstitutional, as has been (for example) the destruction of the US left post 1945.

    1. Edwin,

      As binding as any law can be, I suppose. Certainly, the world moves on and the text remains unaltered - at least on the page - but new situations pose new challenges of interpretation. Just don't tell Justice Antonin Scalia that. He gets awfully cross.

  5. This post has been on my mind for the last couple of weeks, to the extent is has prompted me to write my own post - not finished yet!

    (Caveat - I'm not a lawyer. Nor a politician!)

    Any constitution should set out the basic, fundamental laws, and how these are protected.

    What worries me about Salmond's view of a constitution is that it would limit what I see as "policy" issues. The New Statesman article you link to mentions Salmond's wish to provide a right to training and removing nuclear weapons. These are policies, and should be enshrined in a constitution.

    But there's a lot more thinking to do...

    1. Patrick,

      Glad to have prompted some thought! A constitution is, after all, something more than your average statute. Absolutely right, that folk - and not just political devotees and constitutional lawyers - should think about it what it says.

      On Salmond, I'm not sure I'd quite agree with your general point. If we're going to have constitutional rights and provisions which can be vindicated in court, we're always going to try to limit policy options. For example, if we put the rights of local government on constitutional footing - as people like Andy Wightman contend for - that both establishes institutions and constrains others, and the policies they can adopt. The same goes for fundamental rights which documents like the ECHR and its Protocols already recognise, such as a right to education.

      There are also questions which can be asked about how specific constitutional rights need to be. For example, if you read many modern constitutions, you'll find references to core social and economic rights, but often in very vague terms, which have to be filled out by primary legislation. Although no enthusiast for the Brazilian model of constitutions myself, I wouldn't like to overstate my case.