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Anthony Lang: Constitutional Mythologies

In a speech to the Foreign Press Association, First Minister Alex Salmond argued that an independent Scotland needs a written constitution in order to be a ‘modern state’. Reminding his audience of the heritage of Scottish constitutionalism, he proposed that the failure to have a written constitution governing the UK is a ‘democratic deficit’, one that an independent Scotland could rectify.

No matter what the outcome of the independence debate, the question of a constitution to govern Scotland needs to be addressed. The First Minister is to be congratulated for putting this issue forward and for beginning a conversation on the benefits of a written constitution.

But before embracing the idea of a written constitution, the First Minister and the SNP would do well to consider the difficulties of accomplishing such a task. These difficulties are not insurmountable, of course, but they require careful planning.

Many constitutions were written decades, or in at least one case, centuries ago. As such, mythologies have arisen that create unattainable hopes about what constitutions can and cannot do.  The study of constitution making today helps disabuse us of some of these myths.

The first myth is that constitutions arise from very intelligent people defining rights and institutions that reflect the best traditions of liberal democratic theory. Real constitutions arise from contentious political assemblies in which vested political interests are forced to sit down together and work out difficult compromises.  Unfortunately, research on constitution making suggests that as participants in the process appreciate the permanency of a written constitution, they will often refuse to compromise, resulting in political stalemate.

The First Minister highlighted the constitution writing process in Iceland, in which a high tech public consultation produced a constitution with a range of environmental and social rights. He also has stated that a wide ranging consultation will take place in advance of drafting a constitution. But Iceland is a relatively homogenous society in which a shared ethos shaped the debate, and it is also a very small country.

Scotland, with multiple social, cultural and economic divisions may not have such an easy time. These social divisions can produce extremely contentious political dynamics, especially as individuals grapple over a permanent constitution. In Egypt, for instance, conflict and even violence surrounded efforts to create a constitution. Of course, Scotland with a democratic heritage is not the same as a country emerging from an authoritarian tradition. But, social and sectarian issues have certainly been part of the Scottish political context, and the constitutional process may exacerbate then.

A second myth is that simply by listing rights they will be protected.  Salmond listed the right to a home, the right to university education and banning nuclear weapons from Scottish soil. When queried in an interview with the BBC whether such issues should actually be seen as policies rather than rights, the First Minister responded that they are of such crucial importance that they need to be enshrined into constitutional law. He pointed to the British parliament’s decision to launch an illegal war in Iraq as something that a constitution might prevent.

But rights cannot arise from a constitution alone. A vigorous discourse on rights and responsibilities must replace the idea that rights are the same as social needs or demands. The idea that the Scottish government will be able to afford the immense welfare state that has arisen without the block grant it now receives from Westminster is ultimately a question of rights. Simply listing a right to university education or a home without ensuring the economic bases for such rights will not work. 

And questions of foreign policy are rarely part of constitutions. While there is an emerging ‘global constitution’ in which international law plays an increasingly important role, it is unlikely that a constitution would include provisions designed to limit the ability of a state to use military force when its leader see vital interest at stake.

A third myth is that constitutions arise from domestic contexts alone. Claims about rights also require attention to regional and global contexts. Constitutions today are written in a world where institutions such as the European Union and the United Nations play a role in defining rights. What would happen if in the drafting stages the UN High Commissioner for Human Rights weighed in on the acceptability of proposed rights or institutional arrangements (as she did in the case of Egypt)?    

Incorporating international norms into a written constitution would be beneficial to Scotland’s citizens and its place in the world. But doing so may mean relinquishing some control of its constitutional text to global voices.

A fourth myth is that the written constitution is modern and the unwritten constitution ancient. Salmond has scored political points by putting his proposal in opposition to the unwritten constitution of English common law. But Scots would do well to realize that by refusing to commit their rights to a piece of paper, British citizens have been able to respond to the rapidly changing world with legislation and institutional change.

For instance, when it passed the Human Rights Act in 1998, the United Kingdom found a way to keep its unwritten constitution but at the same time ensure its compliance with European law. The creation of a Supreme Court last year and efforts to revise the House of Lords signal that an unwritten constitution can actually do something that written constitutions would have difficulty doing; changing actual political institutions through legislation rather than through a lengthy amendment process.

Scotland may well become independent and it may adopt a written constitution. If so, needs to create an inclusive process of constitutional drafting that reflects insights from domestic constituencies and international norms. In all fairness, the First Minister has argued for just such a process and I hope he can achieve it if Scotland votes for independence.

Perhaps even more important than the consultation, though, we need a vigorous discourse on rights in Scotland, one that ensures its citizens understand the stakes in making claims for free education or guaranteed home ownership. An independent Scotland may be able to achieve such things, but it will take more than words on paper to ensure them.

Dr Anthony F Lang, Jr is the Director of the Centre for Global Constitutionalism at the University of St Andrews

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