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As both a constitutional lawyer, albeit one specializing in the United States, and a political scientist, I followed with great interest the recent vote in Scotland regarding potential secession from the United Kingdom. From an entirely detached academic perspective of someone with no affiliation with the United Kingdom or any of its regions, the final outcome almost did not really matter. It is simply the case that the actual affirmative vote to remain within the United Kingdom generates different, but still fascinating, questions from those that would have occurred had those supporting secession prevailed. In the latter case, there would have been much discussion, no doubt, about the mechanics by which Scotland would become truly independent and, crucially, whether it would have easily (or at all) become a member of the European Union. Instead, discussion now focusses on the implications of the promises made especially in the final weeks before the referendum, when it appeared that momentum had shifted to the secessionist camp. Conservatives, Labour, and Liberal Democrats alike agreed to even stronger devolution than is now the case, with the now-permanent Scottish Parliament being given plenary powers regarding taxation and some important social issues, especially involving the operation of the modern welfare state.
Not surprisingly, these promises, however welcome to many Scots, were apparently received with decidedly mixed feelings in the remainder of the United Kingdom. Welsh nationalists would presumably like a greater degree of devolution than now exists, even if none would actually support a thoroughly quixotic venture into independent nationhood. (Unlike Scotland, Wales has neither sufficient population nor resources like oil that could finance an independent country.) But the most important audience, by far, was composed of those living in England, where the overwhelming percentage of Britons live. Inasmuch as the practical import of devolution is that only the Scottish Parliament would vote on many laws affecting Scotland, including tax policy, some residents of England (whether or not it is proper to describe them as “English nationalists”) are suggesting a kind of reciprocal monopoly, as it were; this would mean that only non-Scottish parliamentarians would vote on measures that affect only the rest of the UK but not a now more, even if not completely, independent Scotland. The mantra of “English votes for English laws” has been adopted by proponents of such exclusivity, and there is great pressure to allow Parliament to vote on such a proposal. Former Labour Prime Minister Gordon Brown has written in the Guardian that “If you want to kill off the United Kingdom, there is no better way.” He described a developing “constitutional crisis” that could as easily test the future of the United Kingdom as would have an affirmative vote for independence in September. One does not have to possess a written constitution in order to have a “constitutional crisis”!
Toward a federal UK?
One possibility, of course, is that the United Kingdom will, at long last, emulate its errant child, the United States, one of whose major 18th century contributions to world constitutionalism was precisely the notion of a formal “constitutional convention” that ostensibly possessed a constituent power to propose radically transformations of the existing political order (even if ratification was in the hands of some other body). A British “constitutional convention” would presumably adopt (or suggest to a national referendum the adoption of) a truly written constitution specifying the ways that a clearly “federalized” country will operate in the future. The de-facto “federalization” of the United Kingdom is, of course, key.
There is a very good reason that none of the three contemporary countries that serve as exemplars of “unwritten constitutions”--Great Britain, New Zealand, and Israel—is federal. But federalism seems to beg for specification, as distinguished, say, from simply adopting as politically desirable decisions by a central government to “decentralize” the creation or implementation of policy. Decentralist decisions by the center can presumably be changed by the central government. (After all, leading examples of empirical “decentralization” in today’s world include China and France, neither one of which would be confused with a constitutionally federalist legal order.) “Constitutional federalism,” on the other hand, requires the delineation of what are now legally recognized and protected “separate spheres” of governance. Such protections are provided not by evanescent “conventions” (in the traditional British sense), but, rather, by the willingness of an independent judiciary to enforce the prerogatives of the sub-national governments when, as is inevitable, the central government is tempted to overreach, perhaps because it refuses fully to accept the degree to which the traditional unitary state governed from Westminister is no more. Concomitantly, sub-national units are themselves tempted to renege on promises they made to pay full heed to genuinely national interests, and those, too, may need to be judicially enforced.
What is going on in the United Kingdom is an almost textbook example of what the political scientist Alfred Stepan has labeled “holding together” federalism. That is, unlike the American experience in 1787, an equally textbook example of “coming together” federalism, where disparate existing “sovereign states” have to be persuaded to join a Union, the United Kingdom obviously already exists. The particular Union of England and Scotland goes back, of course to 1707. But the whole point of the Scottish referendum is that a significant mass of the electorate was more than willing to contemplate political divorce, and those concerned with keeping the marriage together promised a significant measure of greater autonomy that apparently did the trick. If successful, then, the United Kingdom will hold together, just as Spain did after Franco’s death by awarding Catalonia, the Basque country, and Galicia equally significant measures of local control in a process sometimes described as “asymmetric federalism.” In the modern world, “holding together” may be the challenge facing many plurinational states with national minorities engaging in their own claims for Wilsonian “self-determination.” The centenary of World War I is much upon us, and the key notion of “national self-determination” is every bit as elusive, in terms of practical meaning, as it was when Wilson first spoke of it in 1918.
What appears best to explain federalism is the existence of geographically dispersed groups who fundamentally mistrust one another along one or another important dimension. Most common is ethnicity, but, if news reports are to be trusted, the near-breach between Scotland and the rest of the United Kingdom seemed sparked at least as much by differences of political culture. In any event, once sufficient mistrust reveals itself, the demand by the likely winners of national elections to “trust us” is unlikely to appeal to groups jealous to preserve their autonomy, particularly, of course, if they are a small percentage of the overall electorate, as Scots most certainly are. Instead, the potentially vulnerable group will demand agreement on a formal written understanding of what powers the national government will have and which, in the language of the Tenth Amendment to the United States Constitution, will be “reserved” to sub-national units. One can, of course, also use the language of “reserved powers” with reference to the national government; the point is the written specification of assignments and reservations. Notions of “reservation” seem to be at the heart of the enhanced devolution. But, of course, mistrust runs in both directions, which helps to account for the resistance to the continuing participation of Scottish parliamentarians in decisions that will affect only those living elsewhere in the United Kingdom.
Holding a constitutional convention: lessons from the US?
I certainly do not have the professional expertise (or the “standing”) to offer any useful comments about the likely shape of a British “constitutional convention,” as interested as I am in following the debate now taking place. It may be relevant, though, that I am one of the few American legal academics who has publicly endorsed the desirability of holding a new constitutional convention within the United States. I have now written two books—Our Undemocratic Constitution (Where the Constitution Goes Wrong, and How We the People Can Correct It)(2006) and Framed: America’s 51 Constitutions and the Crisis of Governance (2012)—severely criticizing our own Constitution. I strongly believe that it plays its own important role in making American government dysfunctional and effective governance, at least if that means adopting intelligent policy on basic challenges facing the polity, nearly impossible. No one, I hope, would take seriously today Gladstone’s famous comment that “the American Constitution is, so far as I can see, the most wonderful work ever struck off by the brain and purpose of man.” Indeed, contemporary constitution drafters quite rightly pay far more attention to post-World War II constitutions, including those of Germany, France, Spain, and, especially recently, South Africa, than the sclerotic 1787 Constitution of the United States.
Article V of the Constitution does in fact contemplate a new constitutional convention, though, of course, one has never taken place. In the fall of 2013, Prof. Lawrence Lessig and I taught a seminar together at the Harvard Law School on the practical and theoretical problems that would be presented by a so-called “Article V convention,” which according to the text must be called by Congress upon the petition of two thirds of the fifty states (34). Such a convention would have the authority to “suggest amendments” to the Constitution that, presumably, would be submitted to the states for ratification by three-quarters vote (38). There is in fact a petition drive directed at state legislatures by politically conservative groups who are particularly interested in adopting a “balanced budget” amendment. Some political liberals, appalled at the liberation of monied interests to spend immense amounts on elections, support a convention for the purpose of overruling the Court’s 2010 decision in Citizens United that declared unconstitutional most imitations on campaign finance. So far, at least, these campaigns remain under the radar screen, though one can be certain that discussion would heat up as the number approached thirty-four.
Article V presents no further information in its text about the actual mechanics of a convention. Consider only the following questions, each answer to which is politically freighted: (1) What would be an optimal number of delegates and, almost certainly more importantly, how would they be chosen? (2) What would the voting rules be within the convention? Would, for example, each delegate have one vote or, as at the original convention in 1787, would each state have only one ultimate vote, cast by a majority of its delegates? This latter means, of course, that the smallest state—now Wyoming—would have the same voting power as the largest state—California, with 70 times the population! (3) Who would set the agenda for the convention? I.e., would it be limited to the particular issues set out in the petitions or would a convention instead have “plenary” power to discuss any and all subjects? It is the latter possibility that leads many Americans to fear the prospect of a “runaway convention.”
I have my own answers to the questions above. An optimal size for a country as large as the United States would be approximately 700 delegates, and I would choose them by a more-or-less random lottery, counting on the laws of statistics to generate what would in fact be a more “representative sample” of the public than any election would produce. I confess to a horror of selection of delegates by elections as they are currently carried on within the United States, given the joint import of so-called “single-issue” groups and the influence of basically limitless money that could be devoted to electing such a slate of delegates. Appointment is an alternative to elections, but it is unlikely, I think, that existing political elites would be likely to appoint delegates truly willing to ask sufficiently radical questions about what kind of constitutional design might best fit the United States (or any other country) in the 21st century. In any event, such a convention would hold copious hearings, listening to a variety of experts and conflicting positions, but the ultimate decisions could well be made by the delegates themselves, especially if we assume, as I certainly do, that it would have only the authority to propose changes, with actual acceptance of those proposals resting in another body, whether Parliament itself or a nationwide referendum. The voting rules within the convention would be especially tricky, though, more so, perhaps, in the United Kingdom than in the United States. Any “proportional representation” scheme in the former would inevitably give the overwhelmingly dominant voice to delegates from England and might only exacerbate the tensions between England and Scotland that are producing the pressures for a convention in the first place. And one can scarcely rely on the established governments to be adequately representative of the full variety of opinion. Would, for example, the existing Scottish government pay full heed to the majority that, after all, rejected secession, at least some of whom, for all we know, may be querulous about further devolution? And my own view is that any American convention would in fact enjoy plenary authority, at least with regard to proposals. We are, after all, a country founded on the proposition (or fable) of “popular sovereignty,” and the convention instantiates a moment of such sovereignty, even if one hesitates to give it full authority to adopt a new constitution without further consultation.
What should be clear is that the very idea of a “constitutional convention” necessarily raises the most fundamental issues of political theory as well as of practical political considerations. No one can possibly understand the American Revolution—more properly described as the American secession from the British Empire—without grasping its theoretical dimensions, beginning with the claims of the Declaration of Independence endorsing popular sovereignty and the ability of the people to “alter and abolish” existing systems of government whenever that would be thought conducive to public happiness. For better or worse, Great Britain has often preferred to “muddle through” quite remarkable changes in its governing structure without the full-scale reconsideration of some of its own foundational presuppositions, the most important one of which, of course, is the sovereignty of the singular Westminster Parliament and the ability to maintain the proposition that the United Kingdom has no need for a canonical written constitution. I will be most interested in what the future brings.