What Would a Scottish Constitution Look Like?

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.

Designing Constitutions to Prevent Dictatorship

27th September 2013

I had the privilege to hear President Marzouki of Tunisia and former President Otunbayeva of the Kyrgyz Republic speak during the launch event for Constitute on Monday.  The remarks by both Presidents were excellent and, remarkably, sincere.  They spoke very optimistically about their respective countries’ futures, while recognizing that both countries faced many challenges on their path towards development.

What struck me about both President Marzouki and former President Otunbayeva’s remarks was their focus on preventing a return to dictatorship.  Although I have no doubt that both Presidents have aspirations of democracy, their remarks were far more focused on creating constitutions that prevent a return to dictatorship than on designing constitutions that will usher in democracy.  Such an aim is certainly reasonable.  After all, both countries have recently exited long periods of repressive dictatorship and want to avoid something similar in the future.  Moreover, the goal of preventing a return to dictatorship is very pragmatic.  Consolidated, liberal democracy is not something that is achieved in a few weeks or even a few years.  Both Tunisia and the Kyrgyz Republic will be in their current transitional state for some time and, as long as they are in that state, the danger of backsliding into a repressive dictatorship is very real.  Most countries that experience a breakdown of dictatorship will transition into another dictatorship, not a consolidated, liberal democracy.  Both Presidents were very cognizant of this risk.  They both mentioned, numerous times, that many individuals within their respective countries would prefer dictatorship to the transitional state currently present in both countries.  Not only are there the elites from the old regime who long for a return to power, but many ordinary citizens prefer the stability brought by dictatorship to the uncertainty and disorder that is associated with democratisation.

The focus of the two President’s on preventing a return to dictatorship was striking because there is little scholarly literature that helps leaders to understand how to prevent backsliding towards dictatorship.  There are some studies that attempt to identify the determinants of backsliding (I was recently the discussant on a panel at the Annual Meeting of the American Political Science Association on this very topic).  However, the vast majority of social scientists who study these topics are focused squarely and exclusively on understanding the determinants of consolidated, liberal democracy.

Of course, one could say that I am splitting hairs because any variable negatively associated with democracy is a variable that promotes backsliding, right?  Perhaps, but personally, I think things are a bit more complicated than that in countries transitioning out of dictatorship.  Given their remarks, I think that President Marzouki and former President Otunbayeva would probably agree with me.  It might be unfair to suggest that they were more worried about preventing a return to dictatorship than transitioning to democracy, but it was clear from their remarks that the former was a key concern for both of them.  Their concern should be our concern.

This means asking research questions about how transitioning countries can maintain their path towards democracy, rather than slipping back into some form of dictatorship.  Such research would imply a trichotomous measure of democracy, where the groups are dictatorships, transitional countries, and democracies – e.g. as that used by (Epstein et al. 2006).  Rather than focusing solely on the institutions operating in transitioning countries, as President Marzouki of Tunisia and former President Otunbayeva did in their remarks, there are a range of factors that one could study.  Some that seem particularly promising include things like the number and type of groups involved in the transition, the constitution-making process used and how long that process lasts, involvement from the international community, etc.  Only by studying these critical moments in countries’ histories can we provide any insights for leaders and members of the development community about how they can minimise the risk that a transitioning country will slip back into dictatorship.

Announcing the Launch of Constitute: The World’s Constitutions to Read, Search and Compare

23rd September 2013

I am pleased to announce the launch of Constitute, a website for reading, searching, and comparing the world’s constitutions.  Constitutions are critical to countries’ development.  Outcomes, like democracy, economic performance and human rights protection, are all associated with the contents of countries’ constitutions.  It is little wonder, then, that constitutions are often blamed for poor economic and political outcomes or that such outcomes commonly result in constitutional change.  Constitute aims to improve constitutional design and, in doing so, increase the likelihood that countries’ constitutions will facilitate development, rather than hinder it. Numerous countries change their constitution each year.  Already this year we have observed new constitutions in Fiji and Zimbabwe and constitutional amendments in Brazil, Colombia, the Czech Republic, Georgia, Hungary, Mexico, Switzerland and Tonga.  In addition, countries like Egypt, Myanmar, Tunisia and Yemen are all known to be in various stages of the constitutional revision process.  Some might be surprised to learn that so many countries have either recently revised or intend to revise their constitutions.  After all, constitutions are meant to be timeless documents that establish the foundations for politics and governance from one generation to the next.  This may be true in the United States or Western Europe, but most countries’ constitutions are fragile.  A typical constitution lasts only 19 years, which means that, on average, 5 constitutions are replaced and 30 are amended each year.

Despite the high level of constitutional change each year, there is no country that changes its constitution often enough for public officials to gain much experience as constitutional drafters.  Constitutional drafters are typically engaged in a task that they have never done before and will never do again.  They lack systematic information on the contents of other countries’ constitutions that could help them to decide what topics should be addressed in their constitution and how to address those topics.  Such information is hard to acquire.  There is no single location that constitutional drafters can use to access and compare constitutional documents and language – which is critical to drafters – because these documents are locked up in libraries or on the hard drives of constitutional experts.

Constitute addresses this problem by putting searchable copies of the world’s constitutions online.  However, Constitute is more than just a repository of constitutional texts.  The project draws on data collected by the Comparative Constitutions Project over the last 8 years to assign topic tags to provisions within constitutions.  This allows for powerful, topic-based searches of those texts.   There are more than 300 topics for users to choose from on the site, which range from the fairly general – e.g. the structure of the branches of government – to the very specific – e.g. voting rights for indigenous groups.  For those interested in regional or temporal trends in constitution-making, the search results can be filtered by country and year.

Our hope is that Constitute will improve constitution-making by allowing drafters to consider the full array of possible choices when determining the contents of their country’s constitution.  We also anticipate that the tool will empower domestic actors not directly involved in drafting the constitution but who are, nonetheless, integral to the success of that process.  Increasingly, constitution-making processes ask the public to participate, for example by submitting suggestions to the constitutional drafting committee or approving the completed draft in a public referendum.  Constitute will facilitate participation in these aspects of the constitution-making process by allowing groups in civil society, academia, and the general public to inform themselves about how other countries have tackled particular problems.

More generally, the constitutions available on Constitute will be of great interest to numerous domestic actors in countries all over the world.  Many constitutions are not available in digital form and tools to organize their provisions for a non-specialist are rare, even though there is substantial demand for such tools from public officials, lawyers, non-governmental organizations, students, etc.  Constitute can be used by such individuals to learn about their constitutions.  Want to know if your constitution protects freedom of religion or the right to health care or even the rights of breast-feeding mothers?  Just search for the term you are interested in, using either a topic or free text search, and filter the results to display only the country where you reside.   (For the curious reader, note that only Ecuador’s constitution mentions the rights of breast-feeding mothers.)

Constitute will increase transparency in countries throughout the world by ensuring universal access to the world’s constitutions.  We expect that access to these important documents will improve constitution-making as well as empower the general public to play a more active role in their country’s governance.

Constitute was made possible by the support from Google Ideas and the Indigo Trust.