As a teacher of United States constitutional law, I am often confronted with the profound shortcomings of the 1789 document in the modern era. When ratified, it was an ingenious and innovative distillation of pre-existing constitutional principles, which provided a means of coordination among the states to solve large-scale problems such as trade and collective defence. While it has endured for some 223 years, the modern era has presented problems which the founders could not possibly have envisioned, and which XVIII century jurisprudence is woefully ill-equipped to deal with. Corporate corruption is endemic, politics is marketed like soap, elections are bought, and voting rights in many states are being curtailed.
The modern United Kingdom too, lives under archaic constitutional arrangements, ill adapted to deal with the needs of the populace. The faded notion of Parliamentary sovereignty with an unwritten constitution continues to allow for rights to be statutory rather than guaranteed, and for power to be granted to regional parliaments then taken away. The Leveson commission is vividly illustrating how these inchoate constitutional arrangements can allow for endemic corruption to set in to governing institutions. The rules for governing, such as they exist, are often written to ensconce power of those who detain it, rather than to democratically share it.
Scotland, being governed within the UK for over 300 years, has no modern experience with fair and effective written constitutional government. Therefore it is perhaps not surprising, yet with a bit of frustration that I observe a lack of appreciation on the part of many Scots for the historic opportunity that is presented by the independence referendum of 2014, regardless of their political affiliation. If done judiciously, Scotland could adopt a written constitution second to none in terms of guaranteeing democratic accountability, individual rights and liberties, equality before the law, and against corporate corruption. There are many lessons to be learned through the study of constitutions and governing systems throughout the world as to what works and what doesn’t, which could be adapted to modern Scotland to produce a constitution which preserves the many admirable political qualities possessed by the Scots, such as a genuine egalitarianism, while instituting mechanisms which could cure ills in the future, like religious sectarianism.
If properly framed, a written constitution could provide for a fair governing system which could benefit all parties, and not be perceived as a vehicle for keeping one party in power. If a watertight constitution is drafted well before the referendum, and is part and parcel of it, Scots will know exactly what they are voting for, rather than it being a leap into the unknown. It would also oblige the Unionists to be much more precise about what further powers would be devolved to Scotland in the event of a ‘no’ vote. It is impossible for Scots to be overly informed in making such a momentous decision. Governing procedure could be designed to be adaptable to the needs of the moment, without losing a democratic and egalitarian character. In fact, this is the only way it could possibly work in the long term. I truly believe that Scotland, as a relatively small state, could potentially come closer to a pure democratic ideal than any other country in history. It is understandable to a degree that most of the Scottish Labour and Conservative party members are currently against independence, and thus have their heads deep in the sand regarding how a written constitution could help their cause. Yes, Scottish independence could lead to no more of their members in the Westminster Parliament. While comprehensible, their reticence to constructively engage could prove disastrous for them were independence to be achieved, and constitute a missed opportunity. For Labour, a written constitution could enshrine union rights and collective bargaining, and an utterly level playing field for resolving conflicts with management, if that is still what they stand for. For Conservatives, it could protect Scottish culture and heritage, the market nature of the private economy, and other priorities. Regardless of their position on independence, they should seriously consider entering a dialogue on the content of a constitution in the event that ‘yes’ prevails.
It is in this spirit that we at www.constitutionalcommission.org seek to broaden the dialogue on the possibilities of a written constitution, whatever your political persuasion. Scots must recognize what a golden opportunity independence could afford, if it is done with a sense of equanimity, justice, and fairness for all. The raw material exists. Scots are by and large intelligent, egalitarian, charitable, and fiercely independent. A well-framed written constitution will enshrine and guarantee these values within their governing structures to be passed down through generations. All Scots deserve nothing less.
First published on Newsnet.scot on 30 July 2012 as part of a series of articles on constitutional issues published between July 2012 and Sept 2014.