The legacy of English common law in establishing individual rights has served as a template for many countries, including the United States and much of the former British Empire. Beginning with the Magna Carta in 1215 which established among others the right of habeas corpus and juries of peers, passing through the tumultuous XIV and XV centuries which began to establish notions of religious liberty, to the 1689 English Bill of Rights and beyond, common law has been effective in forming and developing rights and liberties through parliamentary statute.
While mostly admirable in their content, the great historical struggle for those seeking the protection of these rights has been over the scope of their application. The right to vote had been denied to women, the poor, and other disfavoured members of society. The English Bill of Rights of 1689 went as far as to establish a set of rights for citizens, yet specifically denied these rights to Catholics. The freedom of speech at first was only granted to members of Parliament, and over the centuries broadened to citizens through statute.
In the US, the Bill of Rights of 1791 applied only to Federal Government proceedings. The Supreme Court, using the equal protection and due process clauses of XIV amendment ratified in 1868 in the wake of the Civil War, only began to effectively selectively incorporate these rights to the states starting in the 1920’s. That is not to say that many of these rights did not exist in some states before, but rather that the Supreme Court began to guarantee these rights on a nationwide basis. Even after incorporation, full application of these rights for all is far from being assured, and in some cases like voting rights is under challenge in many states.
Despite these shortcomings and delay in application, US and UK citizens enjoy an enviable degree of freedom compared to many countries. Nevertheless, maintaining these rights and adapting them to modern circumstances is arguably better effected through a US-style written constitution, comprising a Bill of Rights that no Parliament can touch, rather than the more fragile UK-style non-written constitution which leaves these rights to the whim of Parliament.
This presents a compelling rationale for a written constitution in an independent Scotland, including an untouchable Bill of Rights providing for freedom of speech, religion, assembly, the press, equality before the law, and basic tenets of criminal procedure, among others. The more intricate details of these broad rights are left to statute. A Supreme Court of Scotland can be established, with clearly defined enumerated rights of appeal to challenge laws which violate these fundamental rights. If a law is ruled unconstitutional, it can be struck down or the Parliament can be compelled to modify it to bring it into conformity with the constitution.
If done judiciously, this should have the effect of avoiding much of the historical strife which has accompanied newly-constituted nations’ efforts to guarantee fundamental rights. Scotland would start in an excellent position, with a long history of egalitarianism and a laudable British tradition of assuring rights. It should constitutionally mandate equal rights for everyone, and provide for speedy remedies for those whose rights have been violated.
Simply put, it could take lessons from constitutions throughout the world, see what works and what doesn’t, and incorporate effective constitutional mechanisms for application and redress of rights. Without hyperbole, there is potential for Scotland to have the most effective means in existence for guaranteeing fundamental rights, if the opportunity for a written constitution is seized. The sooner this process is begun, especially if a watertight constitution is to be adopted part and parcel with a ‘yes’ referendum vote, the more clearly Scots will be able to envision the society true independence could bring about.
This is not to minimize the challenges in fully guaranteeing rights for all, and the ethical quandaries involved in balancing these rights against each other. I’ve long believed, however, that if you want perfection you have to aim for it, and aspire to get as close as is humanly possible. A codified Bill of Rights in a written Scottish constitution could avoid many of the pitfalls which have plagued the application of rights in other societies, and become second to none in assuring fundamental rights and freedom for all its citizens. Scots deserve nothing less.
First published on Newsnet.scot on 12 Aug 2012 as part of a series of articles on constitutional issues published between July 2012 and Sept 2014.