Constitution-making is a complex and lengthy process. Frank Vibert explains the stages involved in the process and discusses the challenges involved in these phases. He goes on to ask how we can decide on the content of a modern constitution and concludes with an analysis of the costs and benefits of crowdsourcing a UK constitution.
The idea of a constitution rests on three pillars. First, a constitution is foundational. It marks the start of a polity, or a restart, or a transformation. Secondly, it is canonical. It is intended to set out long-lasting and difficult-to-change ‘rules of the game’ within which power is exercised. Thirdly, it is purposive. For example, the checks and balances written into the American constitution were intended to make possible a democratic way of life.
These three pillars remain at the centre of thinking about the relevance of constitutions in today’s world. For example the case for a British constitution being considered by the House of Commons Committee on Political and Constitutional Reform rests on the idea that the UK is in a transformational period in its relations with the EU and with the devolved parts of the UK. The new rules of the game should be spelt out clearly. They should show how democracy works today for UK citizens despite the many changes in the way that powers have been dispersed and shared.
The overarching difficulty with constitution-making in modern circumstances is that each of these three essential components of a constitution needs to be rethought. For example, the foundations of a political system need to reflect the variety of the sources of authority recognised in modern democratic societies. In particular there is a need to reflect the greater role played by experts and expertise in helping societies navigate through contemporary public policy problems.
The canonical components are also difficult to crystalise in contemporary democratic practice. The mix of authority used in modern societies is constantly changing. We need to think about the resilience of rules and institutions in terms of their ability to help societies adapt to change rather than to resist change. ‘Adaptive bias’ in the sense of an institutional bias in politics, the law, civic and religious associations in favour of the past needs to be addressed.
Expression of the purposive functions of a modern constitution is a further difficulty. Modern societies are distinguished by their heterogeneity. There is an absence of a common perspective on basic values, the basic objectives of association and of the means to realise those values and objectives. Continue reading