As a teacher of US Constitutional law and rights, cognisant of the degree to which the US does and does not uphold its stated rights, the possibilities for Scots to craft a novel approach to constitutional rights are truly unprecedented and promising.
There is much to learn from other countries and constitutions to help determine how rights can be formulated and applied in a written Scottish constitution.
Observing the US, the manner in which citizens acquire federally-guaranteed rights falls into two broad categories.
The ‘top-down’, manner involves the federal government, in particular the Supreme Court, incorporating rights included in the Bill of Rights of 1791 using the equal protection clause of the XIV Amendment. Examples include Everson v. Board of Education (1947), which applied the religious establishment clause to the states. Mapp v. Ohio (1961) applied the exclusionary rule to the states. McDonald v. Chicago (2010) assured everyone in the US has an individual right to bear arms, for better or worse.
‘Bottom-up’ rights are those which were vague or silent in the Constitution of 1789 and the Bill of Rights, and have been acquired in often brutal fashion through struggle and protest. The Constitution by no means guaranteed equal rights under the law for all Americans at that time.
Voting rights are a prime example. The Constitution simply states that states can determine the ‘times, places, and manner’ of elections for the Congress, and the Bill of Rights does not address voting. At that time, only the House of Representatives was directly elected, since the Senate and President were chosen by the state legislatures.
This left it up to the states to determine the franchise. The 1778 Constitution of South Carolina, for example, restricted voting to free white male landowners who acknowledged the ‘being of a God’ and a ‘future state of rewards and punishments’, among other onerous requirements.
It was not until the XV amendment (ratified 1870), adopted in the wake of the Civil War that ex-slaves were given the franchise on paper, but would be nearly another 100 years before African-Americans were guaranteed the right to vote in any meaningful way with the adoption of the voting rights act of 1965.
Although some states began giving women the franchise in the late XIX century, their right to vote was not federally guaranteed until the adoption of the XIX amendment in 1919.
Even with all the protests, beatings, and assassinations that activists endured over the course of this struggle, the US in 2013 is still dealing with assuring the vote to all its citizens. Many states have passed laws to restrict the franchise through ‘voter ID’ laws and reduction of voting hours. In the recent election, many people waited in a queue for 6 hours or more to vote. It is truly moving to see how many these long queues did not deter.
A written constitution in Scotland could simply make voting not only a right but an obligation for all resident citizens over 16, and voter registration can be automatic. This places a duty upon Scottish citizens to uphold its democratic character, and would help to promote active citizen involvement. Parties and politicians could not count on waging bleak and dire campaigns to discourage people from voting, they would have to respond to voters’ concerns and make a positive case for their election.
Australia has mandatory voting, and apparently it functions rather well. You certainly don’t see mass rallies in Australia protesting the obligation to vote.
Voting is but one example, but one can appreciate the scope for creating a ‘Bill of Rights and Obligations’ in a written Scottish constitution for creating a modern, innovative, and highly democratic social contract. Sectarianism in Scotland is another area which could be addressed.
In the event of a ‘yes’ vote in 2014, this will ultimately be up to Scots to decide. The current debate is the opportunity to dream of what could be, take good ideas from all over the world, and above all find ways of avoiding the civil strife that has beset countless societies striving for the rights and obligations that are within Scots’ fingertips.
First published on Newsnet.scot on 26 January 2013 as part of a series of articles on constitutional issues published between July 2012 and Sept 2014.