Last week, Stephen Tierney posted an excellent evaluation of the White Paper released by the Scottish Government on “Scotland’s Future”. In his evaluation, Professor Tierney addresses three issues related to the Government’s repeated commitment to write a constitution should Scotland become independent: 1) when will it be finished? 2) what will be in it? and 3) what process will be used to make it? Much of his post is on the process of writing a Scottish constitution, so I want to make just a couple of additional observations about the likely contents of a Scottish constitution. My remarks are based on a report that I wrote last spring with my collaborators on the Comparative Constitutions Project.
First, very little is likely to change in Scotland as a result of drafting a constitution. As we state in our report:
Almost all countries have institutions that pre-date their entrance into the modern state system and the writing of their first constitution. Regardless of whether a state’s primordial institutions were purely informal rules, as in the earliest states, or colonial structures, they will likely survive in some form. Institutions inevitably favor some individuals’ interests over others, so those who benefit from the presence of some institution have a strong incentive to fight for the continued existence of that institution during constitutional drafting. Factors such as colonial heritage, legal origin, religion, ethnic fractionalization, language, and region are strong predictors of pre-state institutions and, as a result, the content of subsequent constitutional systems. (p. 3)
If Scotland becomes independent, regardless of whether it writes a constitution or not, the institutions established by the Scotland Act (1998) are likely to live on and to maintain the same structure and powers that they have today. As a result, ordinary politics in an independent Scotland are likely to look almost identical to ordinary politics in Scotland today.
I am not suggesting that Scotland should not write a constitution. The act of writing a constitution has value beyond the contents of the document. Writing a constitution can help build legitimacy for the new Scottish state and, depending on the process in which it is drafted and promulgated, may even help to unify the newly independent nation. By establishing a hierarchical system of law, a constitution may even further entrench democracy and the rule of law in Scotland. What I am suggesting is that, regardless of any positive externalities that Scotland might reap from writing a constitution, the contents of that document are largely predetermined.
Second, I am sceptical of the Government’s promise to entrench socioeconomic rights in the Scottish constitution. Socioeconomic rights are easy to promise but hard to deliver. If the Government really intends to deliver on the socioeconomic rights that it has promised, then it should promise to make them justiciable, meaning that the Courts in Scotland will be able to enforce them, and explain how it intends to pay for them. The Government has done neither. As a result, I think it is more likely that there will be socioeconomic rights entrenched in the Scottish constitution but that those rights will be aspirational, giving the Government lots of flexibility when deciding whether or not to adhere to those promises.
The Constitution Unit Blog 
There may be advantage in adopting the minimum changes necessary for the purpose of independence and leaving the rest until later.
One major aspect of independence would be the freedom for the Scots to make future changes to their own Constitution without involvement of the Westminster Parliament. The initial change should include the mechanism for future constitutional change which might include a referendum.
Once independence has been achieved without the distraction of the many details which will arise on a complete review of the Constitution, the Scots should be free to restructure the Constitution of their nation in their best interests.
The prospect of rejection must be taken very seriously. The more complex the changes the more likely they are to be rejected – the failed Republic Referendum in Australia in 1999 is a good example of the result of attempting too much.
There may be advantage in adopting the minimum changes necessary for the purpose of independence and leaving the rest until later.
One major aspect of independence would be the freedom for the Scots to make future changes to their own Constitution without involvement of the Westminster Parliament. The initial change should include the mechanism for future constitutional change which might include a referendum.
Once independence has been achieved without the distraction of the many details which will arise on a complete review of the Constitution, the Scots should be free to restructure their nation in their best interests.
The prospect of rejection must be taken very seriously. The more complex the changes the more likely they are to be rejected – the failed Republic Referendum in Australia in 1999 is a good example of the result of attempting too much.
Constitutional drafting as Tierney mentions could include citizens as was the case in British Columbia etc..then it is a pandoras box and it may be in that process there is less continuity than presumed here. The chance to draft something completely new is an historic one that could involve challenging some relics from the “colonial” past. Important is a Consensus both on constitutional norms, parliamentary rules and rule of law. Should the referendum result be wafer thin, this might be difficult. International experience shows the importance of having a Consensus on the rules of the game even if there are big differences in domestic politics, The question of whether or not a possible new constitution should go to the People in the form of a Referendum is open and arguably does not hinge on whether it is mostly new or not. Scotland should form rules for future Referenda and a substantial constitutional change could be one point. It would also be good at the beginning to have the support of the People for a new constitution to avoid friction or controversy. The problem would be if the constitution package was rejected. All speculation as also is the outcome of the 2014 Referendum.