What a Constitution Should Be

In every state in the world, there exists a supreme law that is above all others.  This is the state’s constitution.  A constitution is a meta-law, setting out how power in a country should be divided, how laws should be made and what rights citizens of that state have.  It is essential in a democracy.

With Scottish independence potentially on the horizon, Scotland will have the chance to draft its own constitution, according to the SNP Government’s White Paper, via a “constitutional convention” where the finest minds in the nation will be able to input their opinions.

This will be a step forward for democracy in Scotland; as at the moment the UK is one of only two countries in the world not to have a formal written constitution, along with New Zealand.  The rights we have as citizens of the UK are perennially unclear without the opportunity to consult a single source such as a constitution.  The possibility of having a written constitution is one of the best arguments for a Yes vote in September’s referendum.  What it includes though, and how it prescribes powers and rights, is something up for much debate.

When it comes to constitutions, the US constitution is normally cited as the best example of what it should be, and the themes of which will likely be drawn from if Scotland is given the opportunity to create its own.  The US constitution is good in many ways: it is the shortest written constitution in the world, which makes it easy for citizens to know and recognise how their country should be run and what rights they have, and it famously defines the characteristic separation of power between branches of government that the document’s creators borrowed from French political theorist Montesquieu.

The problem with the US constitution, one that is always going to be a dilemma with this sort of law, is that it is too ambiguous in so many ways.  The constitution (and most often its’ amendments) is always brought up in arguments of freedom of speech, right to bear arms, right to search and other such arguments.  The constitution grants freedoms to citizens, but has no input on how much the government can limit them.  This results in massive debates in American politics over the power of the government.  The ambiguity should be left to a certain branch of government to interpret.  An example is when Democrats in the US wanted to limit the sale of automatic weapons and ammunition in the wake of the Sandy Hook tragedy two years ago, but some Republicans claimed that this is unconstitutional.  These measures were caught in legislative gridlock for months after the shootings simply because the constitution could not be interpreted clearly.

On the other hand, some amendments to the US constitution have been too specific to be in what is a meta-law, with the best example being the eighteenth amendment where prohibition of alcohol was enforced and then the twenty-first amendment where prohibition laws were repealed.  Constitutions should not make laws, but set up how laws should be made.

These are the problems of the way in which the US constitution is set up, and shows that it is not the ideal when it comes to the subject.

What a constitution should do is to set up the framework for the state and its citizens, and nothing else.  It should set laws that are steadfast and are not envisioned to change such as the existence of a parliament, head of state and judiciary. A constitution should only be changed by strong agreement between the branches of government or even by referendum. It should include the basic natural rights that citizens should enjoy, such as equality, freedom of speech, freedom of the press etc.  However, it should also delegate how these freedoms should be managed, by giving the power of controlling their limitations to either the executive, legislative or judicial.

A basic example of how a constitution should phrase itself is in the number of representatives in the legislative.  Currently there are 129 MSPs, and the Scottish Government has said that this would remain the same under their plans for an independent nation.  If this number was hard-wired into the constitution, decades down the line the government might feel that 129 MSPs is not enough to adequately perform the duties of representing the people, especially when it comes to committees etc.  This would mean the constitution would have to be altered to provide for this.  The alternative would be to constitutionally give the legislative the power to increase the number of MSPs so that there is always a suitable level of representation.  At the moment, each MSPs represents roughly 40,000 people.  The constitution could, along with giving the power to do this to the Parliament, require that there is always a level of 1 representative per 50,000 people.  This is the perfect example of how a constitution should be made, neither too specific nor too vague.

Another example, relevant at the moment, is at which age people should be allowed to vote.  UK-wide it is set at 18, but for the independence referendum it will be 16 – in line with the SNP’s policy of lowering the age of suffrage for all elections.  The right to vote should be enshrined in a constitution, but the age at which people should be allowed to vote should not, as the attitudes of the population towards the capability of young people to make such decisions may change over time.

In giving the power to change how a constitution is interpreted to a set organisation, we avoid the almost dogmatic nature of American debate as to how the ‘Framers’ (those that wrote the US constitution) intended the law to be executed – which is neither helpful or relevant in today’s vastly different world.  A constitution should be able to stand the test of time, and be a source of wisdom and guidance for lawmakers centuries down the line.

I agree with some of the SNP’s constitutional visions for an independent Scotland but disagree with others.  For the most part, the draft constitution that the SNP proposed for an independent Scotland in 2002 is a good framework to work with although I have some reservations about some of the provisions such as making the Presiding Officer of the Scottish Parliament the Head of State if the Queen/King is not in Scotland and referring to laws of the UK rather than to the versions that would become Scottish on independence day, as we inherit the existing laws as entirely our own.  More recent SNP constitutional policies, such as guaranteeing education access to all including at tertiary level would be very worthy, but banning nuclear weapons does not strike me as something that should be fundamentally core to our nation.  Supporting the Yes vote and supporting these principles are not co-exclusive, and that point needs to be made clearer by both sides of the debate so that the people of Scotland can make a more objective decision about their vote.

The key features that I would like to see in a Scottish constitution are the entrenchment of natural and human rights, a commitment to local government and that the constitution can only be changed by referendum.  Most of these are already in the SNP’s 2002 draft.  Personally, I’d also like to see a commitment to the Gaelic language, not necessarily by constitutionally declaring national languages, but by making both the English and Gaelic versions of the constitutions equal – in that neither can be taken as being ‘more correct’ than the other.  Other national symbols, like our flag and national anthem, should entirely be left out of the constitution – giving generations centuries into the future the opportunity to form their own identities.

Although Scottish independence may be a way off yet, it’s time that we, as citizens, begin to look at how our very own nation could be formed – even if we aren’t sure that we want it.  In the democracy that the vast majority want for Scotland, the losing side of the independence debate should have a strong say in what happens even if they don’t get what they want.  And one of those key areas would be in the shaping of a Scottish constitution.

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