Week 21: 29 January 2012
Writer, lecturer and consultant specialising in constitutional law
Writing the Nowhereisland Constitution
We’ve set ourselves the task of exploring how people and animals can live together on this earth. Most of that life will carry on outside our shores, and our influence on it may be small. But we can decide what principles should govern our life on this island; principles we can use to guide our thoughts and that may just whisper to the world.
I’m talking about the principles of our constitution. Now, I’m very aware that constitutions are dull things. If we tried to agree a long document establishing rules and procedures for everything in life, we’d soon be tempted to resign our citizenship. I know; I worked on the failed European constitution, and I think we should try a new way. This is Nowhereisland: we do things differently here.
I mean no disrespect to the classic, liberal constitutions of the past. There have been constitutions since at least the time of the ancient Athenians, and new ones are being written all the time, like the transitional constitution of South Sudan. But the golden age of constitutionalism was surely the eighteenth century, the age of the rights of man (as we called her then), when newly independent nations, like the United States, and new forms of government such as the French Republic, announced themselves to the world in newly-framed constitutional texts. In those days you could even ask a world famous philosopher like Jean-Jacques Rousseau to write a constitution for you, as the Corsicans did.
Some constitutions have fared badly – like that of the ill-fated Weimar Republic – but the American constitution has endured, and is perhaps the best model of what we think of as "a constitution". First, it sets up the branches of government: the legislative, executive and judicial branches. Then after some brief provision about states, it lays down apparently technical – but in truth absolutely crucial – rules about the status of the constitution, and how it can be amended. Finally, rights of the citizen are set out in a series of amendments now called the "Bill of Rights". Rights aren’t necessarily something that needs to go into a constitution; but at least since the enlightenment we tend to think they should.
The Constitution of the United States
The very best of what the enlightenment produced isn’t necessarily all a nation can do, though. And we Nowherians have set out to explore what can be. One of the problems with the traditional approach to constitutionalising is the closed nature of the drafting process. When the European constitution was being prepared, for instance, politicians gathered in rooms to discuss proposals put forward by governments, with a little lobbying influence from "NGOs", to use international bureaucratic jargon. People really had no say, until in France and the Netherlands, they said no. This, for me, is the classic example of how not to do it.
The other problem with written constitutions is that they are designed, and intended, to prevent change – but Nowhereisland is about change if it’s about anything. The obvious optimism involved in founding a nation masks a real streak of pessimism that runs through enlightenment nation-building as it has run through all constitution-making right back to Plato’s Republic. While Plato urged laws that would protect his republic from degeneracy, the American Founding Fathers, wanting to escape the tyranny of the British Crown, made sure their government could never become over-mighty. To achieve this, they effectively created an idealised version of the British constitution they rejected, but frozen in time – with an elected King who's tied down like Gulliver - and an elected version of the House of Lords in the shape of the US Senate.
It’s worked remarkably well. But this approach has its defects, too: the US Constitution is deliberately hard to amend, and so outmoded principles like the right to bear muskets stop Americans from choosing, democratically, policies that could save lives in the semi-automatic era. Nor does the constitution enshrine equality between men and women: the "equal rights amendment" first drafted in 1923, has never been passed. And the checks and balances that prevent tyranny can also stop the President from joining vital international agreements.
Nowhereisland Declaration document
As the second signatory of the "Nowhereisland Declaration" – looking at that text and the apparent frailty of my signature reminds me of the commitment I feel to its terms, especially paragraph four – I’m pleased we’ve chosen a radically different route. Loyal to that declaration, we now have the chance to make principles for ourselves that are not handed down on tablets or inscribed in a sacred text for us by founding mums and dads.
Our constitution – the set of principles that define us – is 'cumulative'. Not finished and not ready, but always in, like Nowhereisland itself, a state of becoming. We will build and shape it with the propositions we make. Because it’s 'open to all citizens', you’re invited to create its contents and because it’s 'consensual', you’ll write it not just through proposals but by your readings and reactions. It will always be speaking – but listening is a part of our drafting work, too. What a principle means to you today is no less important that what your daughter thinks of it tomorrow – and no more. All will have 'the right to be heard' and, because new propositions will be made and responses will shift, our constitution is 'subject to change'.
Not fixed, not final and not what’s gone before: I think this way of constitution-making suits our island well.
Please contribute your propositions: those you think Nowhereisland should speak to the world. They may involve rights; they may be about what those in power should do; or they may be about the earth or how we treat its inhabitants. The best may well be short and simple. Let your fellow Nowherians know what you think of their propositions, too, and together we can shape the ideas that ought to govern our world. Nowhereisland will curate them – and their moral appeal can give them life. Democracy could be something like this. Take part.
Carl Gardner is a writer, lecturer and consultant specialising in constitutional, public, human rights and European law. He is known for his blog Head of Legal and is a regular panellist on the legal podcast Without Prejudice. Carl was a member of the Nowhereisland Arctic expedition team and you can listen to the Without Prejudice podcast on the expedition here and watch Carl's video interview here.