In an earlier article on Mair Nor a Roch wind, entitled “Smout Leading the People”, we advocated a Scottish nationalism that looks to the values of the Enlightenment, invoking Liberty, Equality and Fraternity as the values of a new Scotland. One of the most tangible political results of the period of Liberalism was the constitution – a covenant that enshrined the political rights of a people. An opportunity may arise in Scotland to create such an entity. Not only may the people of Scotland be newly constituted as citizens, but this change would develop from a British unwritten constitution which, as we have argued, is in crisis.
But while the country ponders huge constitutional change, at a time of European and British crisis, the constitution itself catches the attention of only a few. It has been pointed out by Andrew Tickell that Scotland’s constitutional question avoids the idea of a new sovereign – it is presented, for safety’s sake, as a kind of devo-doubleplusgood, a particularly big transfer of powers. The idea of the foundation of a country is far from everyone’s minds, as the hopeful state-formers rush to persuade everybody that very little would change. Excitement about the constitution is real among a few academics, but, as one republican journalist said, the great worry is that all things constitutional just become a dripping roast for constitutional lawyers. The people of the constitution, the people of Scotland, mostly couldn’t care less.
A few active democrats hope for something more than this. They recognise that independence is a constitutional question for a reason – that the British constitution is not serving the people of Britain or Scotland, and that there is potential for re-democratisation.
But their attempts to engage people in the idea of the formation of a Scottish state have not resulted in the political excitement or sense of ownership that they hope for. Things that we are told might capture the public imagination – citizens assemblies, ‘crowd-sourcing’ based on the Icelandic constitution-forming model, community action – are contrived to tap into a public that already has a relation to a state, and experience of active participation; but no such public or form of democracy exists. Meanwhile the organisers complain that people don’t understand what a written constitution is (why should we, we’ve never had one?), let alone its great value as a basis for democratic demands.
These ‘participatory’ forms of engagement lack a basis in our public sentiment, and the Scottish Government does not have the incentive to create it. Thus the question arises of how to enthuse this uninterested population, in order to create a constitution that is of the people, and recognised as a democratic basis for our nation. The answer lies in an understanding of how the people of Scotland are currently constituted, where their loyalties lie, and what it means to them to be a citizen in Scotland and in Britain.
To understand the constitution of Scotland, many look to the “constitution of institutions” in Scotland: a stateless nation has formed an institutional framework, by which it is defined, consisting of law, church and education, and more recently devolved institutions such as the parliament or the NHS. Yet this is not the state as political science recognises it: it cannot act as a universal reference point for the individual, only for people as they interact with these institutions. Neither, however, can the British state be this reference point, both because it is in crisis, and because we are subject to Scots law and institutions. Thus a terrible circularity arises, where we have no public to appeal to, no peculiarly national political sentiment to drum up into a frenzy. How can we escape from this confusion, in such a way that at the point Scotland realises a new constitution, it also creates a new national and sovereign public, rather than replicating tired institutional forms?
The current quasi-constitution of Scotland creates a sort of distorted benevolent bourgeois class who have political clout through particular organisations. This class is itself a barrier to the creation of a popular constitution. Known as institutional or ‘civic’ Scotland, it forms the most exclusive and bureaucratic sphere that makes up Scotland’s social system. Its members include religious leaders, public service managers, voluntary sector organisers and so on, people who will have a voice in forming Scotland’s constitution, yet who, if they are to create it in their own image, will create something aligned to the British constitution, a constitution created on the assumption that the creator-class will be there to uphold it, divorced from the people to whom it is meant to apply. The current political climate in Scotland dictates that the movement to form a constitution will be institutional rather than political, seeing the subjects of a constitution as people who engage with the institutions of state, rather than democratic citizens.
The other group to whom we might turn in wishing to form a constitution of the public, are the lawyers of Scotland. In America, at the time of the forming of the constitution, a respected and professional legal class, that was accessible to a range of social classes, was key to creating a sense of ownership of and respect for the legal documents said to constitute the people. If only we had the same in Scotland, to give the citizens confidence in the making of their politics! Unfortunately when the law is invoked in Scotland, such as for minimum alcohol pricing, or anti-sectarian laws, it is seen as a rather despotic intrusion into civil society. Scots law is already established in public matters, and so new laws tend to be concerned with ‘private’ or ‘civil society’ matters. We are facing the challenge of the creation of a new constitution alongside a well-developed legal system, a legal system that tends to be in the news for being restrictive. A democratic and liberatory understanding of the legal documents that will form the constitution can be achieved only if law is invoked politically rather than institutionally, as something that people do, rather than something that happens to people. This is far from current public consciousness.
So where are radical constitutionalists to turn when those shaping the constitution seem devoid of ideas, and the public is devoid of the right political sentiments or mores? How can a stateless nation become a state; how can a new constitution breathe life into fading political forms, when the political classes play to voters regardless of whether they are fighting to win an election or a new state?
The answer is to bring a little political vigour to Scotland. The constitution and the law are rarely invoked politically, they are seen as utilitarian, rational questions, and any decisions refer to “bean counting” rather than sentiment, as Smout aptly put it. There must be a real political rather than institutional movement, which talks about democracy, active citizenship, and public law in terms of the constitution, so that when the constitution comes to be formed it is seen as a political statement, and the establishment of levels of democracy as the embodiment of ideals, rather than bureaucratic institutional forms.
To invoke concepts politically, we used to turn to political parties. Perhaps once again, in a moment of constitutional formation, they will be able to argue based on ideologies and values, from their position as representatives of the people. But as the SNP concertedly ignore the idea that the constitution requires any ideological debate, and while Labour deny that there might be one at all, the only obvious party to assert their particular constitutional ideology are the Green Party, who have been silent for a while on the constitutional question. Given the lack of public constitutional divergence, the Greens would be heard were they to call for particular democratic forms, types of economic, social or refugee rights, or even just new concepts for debate. They are the party of localism, which has constitutional implications, and their localism challenges a government that is seen by elements of civil society, left parties, and the Labour Party as over-centralising . The Greens could create a spectrum of debate within those in favour of constitutional reform.
Whether or not the Greens are the best party to promote left constitutionalism, it falls to all those who speak of this abstract entity to make it real, and to make it political in an engaging and radical way, rather than something created from and designed to perpetuate Scotland’s shallow political sphere.