I first wish to graciously thank you all for coming.
I would like to begin by emphasizing how fortunate we are that we can gather peacefully at the Pearce Institute, and discuss how to build a modern, democratic Scotland. This small yellow flower on my left shoulder was given to me by a Catalan friend when I was in Barcelona for the Diada last September 11, in solidarity with the members of the Catalan government who are in exile and political prisoners in jail without bail for over a year, several of whom I know personally. I just learned this morning that two of the Catalan political prisoners, Jordi Sanchez and Jordi Turull, have begun a hunger strike, in an effort to get their cases heard urgently by the European Court of Human Rights.
They risk 30 years in prison, Their crime? Asserting Catalan sovereignty and designing and implementing the Catalan Republic, exactly the same thing as we are doing here today. If we were doing this in Catalonia, the Spanish Guardia Civil could raid us and beat us with impunity for peaceful civic engagement. While there are many similarities between the Scottish and Catalan independence processes, at the very least we are not facing UK police truncheons and rubber bullets, and Scottish elected officials and civic leaders are not in jail on hunger strikes for discussing Scotland’s constitutional future.
To return to the substance of my remarks, I cannot think of a more symbolically relevant place to hold the launch of the Clyde-Built Constitution than here at the Pearce instiute in Govan, which has served as such a vital hub of the Govan community for over a hundred years, and so much more.
For me, it is very personal. My father was born at 217 Langlands Road, just across from the Elder library just down the road, to a family of engineers who worked at Fairfield Shipyards for generations. My grandfather worked as an engineer on ships going to India, and I have an UK Indian Imperial Passport that bears his name. One of my great grandfathers was head foreman riveter at Fairfield, and was killed by a falling crane in the shipyards in the 1920s.
My parents met at St Mary’s Episcopal Church on Great Western Road here in Glasgow, while my mother was on her junior year abroad from the US. My parents married and lived in Edinburgh until the mid 1960s, when difficulties obliged them to move to the US to seek a different life, into which I was born in 1968. I could have just as easily been born in Scotland, but this has not influenced my sense of identity : I feel Scottish more than anything else.
This story is typical of so many of the Scots diaspora, who had to leave and migrate elsewhere to seek a better life. Not because they wanted to leave their dear friends and family, but because the opportunities did not exist at home. This helps explain why Scots have a naturally migratory nature, as well as my own story.
So if anyone doubts my motives, sincerity and/or good-will, or thinks I’m some arrogant American academic coming to Scotland to perform constitutional experiments, please rest reassured that I have devoted the last 7 years of my academic career to this endeavor, because I’m literally doing it for family.
So in my remarks today, I will first speak about what it means to have a written constitution. Then I will examine Scotland’s current status within the UK constitution, which is arguably the most feudal, incoherent governing system on earth. Then, I will share my views on why discussion over a constitution did not occur on a broad scale prior to the 2014 referendum campaign. Finally, now that this discussion has begun, how can we employ ingenuity, precision, science, research, and good will to build an enduring and adaptable constitution and legal system ?
Growing up in the US, we learned about the Constitution from an early age. There were Saturday morning childrens cartoons explaining how a bill becomes a law, and I can recite the preamble to the US constitution because they made a catchy cartoon song out of it. High School students learn how the federal governing system works, or at least how it is supposed to work, and learn concepts like checks and balances and the separation of powers. Also, the US constitution has been a source of pride and a fundamental symbol of unity; even considered as holy writ.
Essentially, the US constitution can be viewed as the software or operating system of the federal government. By 18th century standards, the framers of the constitution of 1789 devised an ingenious system of ‘checks and balances’ to assure that no one branch of government accumulated too much power. There is a separation of powers between the Legislative Branch which writes the laws, the Executive which applies the law, and the judiciary which interprets the law. The constitution has been amended 27 times, ten of which are the bill of rights, which includes basic rights such as freedom of speech and religion, the right to bear arms, as well as the fundamental procedural rights of the accused including prohibition of unreasonable search and seizure, the right to counsel, right to trial by jury, and others.
It has functioned since 1789 largely because it is a relatively loose governing framework, allowing it to withstand the challenges of the Civil War of secession reconstruction of the 1860s and 70’s, and has expanded rights to blacks, women, homosexuals and other minorities, however imperfectly. During Franklin Roosevelt’s the New Deal in the 1930s and Lyndon Johnson’s Great Society of the 1960s, it has has been a platform upon which the federal government expanded it’s regulatory powers to shape society for the better : for example the creation of the social security pension system and the health insurance system for the elderly.
However, I have observed over the last decades the shrivelling of the US constitution, to the point where a document ratified in 1789 struggles to stay relevant for a government completely overpowered and suffocated by a corrupt corporate oligarchy, just like the Westminster government. The Bill of Rights, adopted in 1791, fails to keep pace with a rapidly evolving world. What does the 4th amendment’s guarantee against illegal search and seizure mean in the digital age? Not much. The US code or federal law, compiled over 2 centuries covering shelves of thick books at the Library of Congress, requires expensive lawyers to understand, interpret and exploit, thus shutting off the justice system from most of the population. Recent Supreme Court decisions have further weakened voting rights, environmental rights, workers rights, and right of people’s control over their own bodies. ‘Equal protection under the law’ has become nothing more than words on parchment.
Using the analogy of constitution as governing software, if American governance is running on Windows 1789, Scotland has been running its new smartphone on Windows 1707.
Under the terms the 1707 Acts of Union, Scotland’s parliament was abolished, Scottish popular sovereignty was transferred to the UK Crown in Parliament, and Scotland sent MP’s to Westminster to represent Scottish interests. Perhaps David Mundell’s less-evolved ancestors were among them.
Since then, Scotland has lived under perhaps the most execrable and incoherent Constitution on earth, the UK constitution. As a political scientist, examining the UK constitution has been like looking under a rock, and seeing lots of gross bugs squirming. It’s more of a feudal constitutional scrapyard than anything resembling a coherent governing structure. You still have ‘Kings’, ‘Dukes’, ‘Earls’, a House of ‘lords’, and of course the ‘monarch’. 13th century aristocratic social hierarchy and social inequality is still baked into the UK constitutional cake.
In essence, the UK constitution is a dog’s breakfast of the divine-right sovereignty of the Crown in Parliament, ancient documents like the Magna Carta of 1215 and the English Bill of Rights of 1689, long-deceased Westminster imperialist jurists like Coke, Blackstone, and Dicey, thrown in with piles of incomprehensible and usually inapplicable case law. There are reams of Westminster laws dating back centuries which not only entrench the UK feudal hierarchy, but also continue to be adopted and applied in the most archaic and incomprehensible fashion imaginable.
Improbably, the basis for legitimacy of the UK state remains parliamentary sovereignty based on divine right. It basically boils down to the UK imperialist hallucination that the monarch is the monarch because God said so, and because of this divine appointment Parliament can pass any law it wants which can be applied anywhere on Earth. Put in more secular language by the Victorian-era jurist AV Dicey:
The principle of Parliamentary Sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
Also inherent in this Westminster notion of sovereignty is that it cannot be divided, or else it is destroyed. Westminster can devolve or lend powers to the Scottish parliament for example, but not sovereignty. The constitution of Scotland is a reserved matter for the UK, over which it has full sovereignty, so Scotland is at the UK’s constitutional mercy.
So since 1707, no Scot has ever held Sovereignty over a square centimeter of Scottish soil or territorial waters. How else could the Highland Clearances be ‘legal’? How else could the wealth from Scottish oil be funneled to Westminster to sqander on the London sewer, and nuclear submarines parked 20 miles from Scotland’s biggest city? This can all done without the consent of the Scottish people, because we are not sovereign under the archaic UK constitution.
This demonstrares that the UK constitution is essentially whatever the current government says it is. Hence Theresa May invoking ‘royal prerogative’ and/or ‘Henry VIII powers’ for her government to unilaterally write Brexit bills stripping the powers from the Scottish Parliament without Westminster approval, let alone Holyrood. There’s no way she could even attempt that if there was a codified constitution with a functioning separation of powers and checks and balances. If the United States constitution can be viewed as a largely coherent instruction manual describing how the government should operate, the UK constitution is a box of constitutional flash cards, thrown in the air and strewn around the floor, there for any Prime Minister or government to pick up a card from the 14th century and apply it in 2018. That’s the UK constitutional state of affairs.
Since the adoption of the Scotland Act in 1998 and the establishment of the Scottish Parliament in 1999, the Scottish government has exercised certain devolved powers: health, education, housing, tourism, etc; and the SNP Government has exercised them with increasing competence. However, Westminster continues to exercise full sovereignty over Scotland and the powers of the Scottish Government, and are overbearingly controlled by the Westminster-written Scotland Act and the Scottish Parliamentary standing orders. Typical of Westminster legislation, it is hideously complex, impenetrably written, and has the principal objective of maintaining the prevailing UK hierarchy over Scotland. Simply stated, Westminster keeps Holyrood on a short constitutional leash.
The Brexit fiasco has demonstrated just how fragile even the devolution settlement is. If the Westminster Tory government is allowed to succeed, the Holyrood Government is set to at the very least be stripped of its powers, if not abolished. In essence, Scots are still essentially subjects of the UK Crown in Parliament, not sovereign citizens in their own right.This irrefutably demonstrates that Scots have never lived under a codified, written constitution, only the bizarre anomaly I described. All UK rights are written in law, so they can be abolished by any parliament.Therefore, no Scot has ever had a constitutionally guaranteed right. Think about that.
It is in this context that the results of the Panelbase survey on Scots’ constitutional literacy are so fascinating, although they affirmed what I have observed through my experience in Scotland over the past 7 years. Scots overwhelmingly support the fundamental rights, values, and democratic processes that a coherent codified constitution can provide. However, the minimal amount of civic education most Scots have received has not provided them with the conceptual frameworks, vocabulary, and exposure to other constitutional experiences necessary to make that connection.
Having been raised in the US, when I became involved in the Scottish constitutional debate in 2012, I was struck by how little recognition there was among Scots of the value of a written constitution. Many Scots I spoke to associated a constitution with gun violence in the US because of the Second Amendment, or the police needing a warrant to search a house, or the recitation of the ‘right to remain silent’ Miranda warning to those arrested by the police seen in US police shows. For them, a few fragments of US constitutional principles constituted the totality of their understanding of the value of a written constitution.
More concerningly, this obliviousness to the importance of a written constitution, not only as an indespensible referendum campaign tool but more fundamentally as the basis of the new Scottish state, also extends to several high-profile pro-independence columnists and elected officials I have spoken with. The prevailing attitude can be characterized as, yes, we’ll need a written constitution, but we need independence first, so we’ll get to it later. It will somehow materialize out of thin air once we’ve resolved the bigger issues like currency and pensions. Among some of the sentiments, there was almost a Johann Lamontian ‘Scots aren’t genetically programmed’ to write a constitution. This was not a description of the ingenious Scots I know and love.
So what Scots lacked during the 2014 referendum campaign was a conversation and education campaign over the positive attributes that could be included in a written constitution. This collective conversation could have addressed how systemic societal problems Scots have lived under for centuries could be substantively addressed to make Scotland a more pleasant, egalitarian, and humane place for all inhabitants to live their lives and pursue their dreams, and whose children enjoy increasing opportunities to live in Scotland, and not have to migrate elsewhere. The ways in which a written constitution could underpin and help realize these ideals were not discussed.
This was in large part because the UK establishment did not want this conversation to take place, and as John Drummond can attest, used ruthlessly underhanded Daily Mail hit-jobs and lawsuits to sully the reputation of the Constitutional Commission, which unfortunately was effective in the heat of the 2014 referendum campaign. I have my own personal experience back in 2013 when the BBC invited then disinvited me to an interview about Scotland’s membership in the EU, presumably because it dawned on the producer that I might reveal information that is factually correct and make arguments that are empirically valid. The reason they were willing to go to such lengths is that once a serious conversation about the constitution began, Scots would figure out right quick what a sham of a constitution they have been living under since 1707. Scots would also realize that the UK governing structures are utterly bereft of legitimacy, because it is still based on the self-serving lie of divine right of kings.
Another reason this conversation did not take place was because the Scottish Demos had not yet been constituted. The Demos, or what constitutes a democracy, has much overlap with concept of the polity, or the body politic. In the Scottish context, I view the Demos as ordinary citizens who consciously form a political entity to engage in an ever-broadening discussion about how to found and continuously improve the Scottish State, and by extension broader Scottish society.
In my view, the Scottish Demos was definitively constituted in reaction to the infamous ‘vow’. Leading up to the September 2014 referendum, the blizzard of unionist propaganda continuously blared that in essence Scotland was better off under the withered, rotten UK feudal constitution, and couldn’t possibly build a better, more modern one. The lies and propaganda were too loud for a thoughtful, rational discussion.
The ‘vow’ was the mendacious yet feeble attempt to propose a better constitutional arrangement if there was a ‘no’ vote. David Cameron’s advocacy of ‘English Votes for English Laws’ the morning after the September 18, 2014 referendum instantaneously and irretrievably shattered the illusion that the ‘vow’ was anything other than mendacious drunkard’s promise, made to convince his wife not to leave him.
By this time, the emerging but not yet constituted Scottish Demos had undergone a political enlightenment. Having been civically engaged and educated about UK and Scottish constitutional arrangements to a degree never before seen, Scots could now astutely observe whether the ‘vow’ or anything approaching the Broonian ‘as close to federalism’ status would actually be delivered.
The fatuous sham of the Smith Commission could not even fulfill the most basic clause of the ‘vow’ to assure the permanence of the Scottish Parliament, because the UK constitution is based on feudal quicksand rather than a solid codified constitutional rock.
Since then, especially through Facebook, Twitter and other social media, a true Scottish Demos has emerged. I like to think of it as an online Quaker Meeting over Scotland’s constitutional future. For those who have not yet attended, Quaker Meeting is a beautiful spiritual experience. There is No Minister or Priest who leads the service. There is no dogma that you are required to at believe without fear of ostracism or even punishment. Parishioners simply sit silently in quiet contemplation, and stand up and speak when they wish to describe their inner light, free to construct their own spiritual concepts and probe their own spiritual depths. Others may follow, or the entire meeting may pass with no one speaking. It’s entirely up to the individual.
I view the Scottish Demos in a similar fashion; free to think beyond the feudal confines of the UK state, and realize: ‘of course we can build a better state’. Brexit has confirmed this beyond a reasonable doubt.
It is in this spirit that myself and an increasing number of citizens, academics and people throughout the world, and ordinary people with extraordinary experience in certain fields, have developed the Clyde-Built Scottish Constitution for the Scottish State.
This Constitution is fundamentally based on the empiricism of Scottish Enlightenment Philosopher David Hume, which holds that true empirical knowledge can only be attained through experience and measurement, which is the basis of the scientific method. Ideological or religious intangible beliefs shall not be employed to develop this Constitution, though it will seek to reflect universal human values, such as charity, humility, and love.
This Constitution is being developed according to the same ethos with which Scots built such magnificent ships on the Clyde. Thousands of people working to build the hull, the interior structure, the hydraulic systems, the engines, and electrical systems, the fittings, the furniture, and so many other crafts and expertises. All was built to last, be reliable, and something Scots could be damn proud of because of their industrial beauty. It essence, they were manufacturing floating, mobile cities. Think of all of the Scottish brain wattage that went in to developing the ships, the research, the trial and error, the development of ingenious systems to make them reliable, all with the realization that the quality of their design and craftsmanship was literally a question of life and death for those who travelled on them. Given the same ethos and ingenuity, it is irrefutable that Scots can build a better ship of state than the UK.
It is also important to understand what an amazing historical opportunity we have before us. Think about the constitutions that were written in immeasurably more dire circumstances, often after years of war and civil strife. The Spanish constitution of 1978 was written in the context of the death of Franco, after the decades-long dictatorship and thousands of mass graves, heavily influenced by Franco army generals who wanted to maintain their impunity. The Irish constitution of 1937 was drafted after years of civil war and sectarian conflict, when the Catholic church held an overpowering influence over Irish government and society.
We are in a context where we can think independently online to refine and develop this constitution in a calm, deliberative manner, from anywhere with a phone or laptop, using all the constitutional research, experience and technology that the world has to offer. There are thousands of esteemed academics throughout the world who would give their right arm to help develop a modern constitution, and I’m sure many will sign up to the site and help out with this project. No country has been in a better position to write the most modern, democratic, adaptable, and non-corrupt constitution on the planet.
We need to accelerate the pace of development because as soon as there is a democratic affirmation that Scots will withdraw from the UK, the banks, the special interest groups, multinational corporations, and many other oligarchical forces will bear down on Scotland like a ton of bricks to attempt to make it subservient to international capital. We must construct an impenetrable constitutional shield for Scottish democracy which prevents corporate corruption from irretrievably setting in. If Scots allow multinational corporations, Rupert Murdoch and other vile media moguls, hedge-fund managers, laundered dark-money demagogues like Aaron Banks and Nigel Farage to strangle and pollute the Scottish government in the same way as in the US and UK, Scottish independence will have been a complete failure.
So in conclusion, despite my deep concerns about the future of the US constitution, I can categorically affirm that a written constitution is of vital importance to construct a functioning state. The UK constitution, and Scotland’s status is a discussion the UK establishment made every effort to suppress in 2014. However, the Scottish demos has definitively emerged, and they won’t be able to stop the conversation THIS time. Now that this discussion has begun, how we can employ ingenuity, precision, science, research, and good will to build an enduring and adaptable constitution and legal system ?
So please sign up to scottishconstitution.com and help us collectively develop this constitution. I have spent over 6 years developing this hull of the Scottish ship of State, but it’s not yet watertight and I need help to build the floors, plumbing and electrical systems, fixtures, and everything else. I don’t care how much formal education you have, or what degrees you have. The only qualification I require is good will. Everyone has relevant experience and ideas that can make this a better governing system, and everyone can learn. The magic of modern technology allows us to work together to achieve it even if we are not physically assembled together. This constitution shall be the canvas upon which the Scottish state is painted.
Register on the site if you haven’t already. Read this and other constitutions: fundamentally educate yourself, because the UK state certainly never will. You’ll see why they didn’t as you learn more. As you watch the constitution and Corpus of Scottish laws develop, feel free to focus on a sphere of law that is important to you, and do research and contribute to help us make it better. Homeless people can help develop housing law on their cell phone or at the library. People on benefits and the disabled can help design the new Scottish social welfare system. Labour unions can help write labour law. Hopefully, Andy Wightman will lend his expertise to writing land law. Administrators toiling under UK law can help design the administrations imparting their invaluable experience. Doctors can help write medical law. All in complete transparency, with the capacity to fine tune the law over time as bugs in the governing software emerge.
Given the collective wisdom of Scots and people of good will throughout the world, we can further develop this constitution to update Scotland’s governing software from Windows 1707 to ScotOSX 2019, with mechanisms designed to continuously update the governing software to keep pace with and adapt to a rapidly changing world.
When we succeed, we will have created the world’s first empirically-based constitution, developed scientifically rather than politically.
If we don’t, who will?