Americans have a clear idea of what a constitution is for, and what it should contain. They think it is intended to limit the powers of the government, and that its primary content is a Bill of Rights. There is no reason to copy that tradition in Europe, but there is no equally clear and recognised alternative. Although some people see a ‘European constitutional tradition’ underlying the EU, it is vague. But what is the problem anyway? Constitutions don’t need a pre-existing template, and with no written constitution as yet, the UK is in a position to experiment.
The starting point for all constitutions is the existence of states: an anarchist planet would have no constitutions. On this planet, states did without them for thousands of years. The modern form of constitution in Europe has its origin in revolutionary movements, which sought to deliberately ‘constitute’ or re-constitute a state.
So you write a constitution, because you want a certain state, perhaps an existing one. Some in Britain are satisfied with the existing state, but others are not. They don’t want a United Kingdom of Great Britain and Northern Ireland at all: they want a Republic of Scotland, or a global caliphate, for instance. So the next logical questions are: why do you want this state, and for what purpose? Ideally, the answers go in the constitution.
On that basis, I suggest a general structure for constitutions. Firstly, if the state already exists, then a historical preamble should recognise how it came into existence. The answer is usually ‘by force’, and that is politically relevant. The United Kingdom is there because the Kingdom of England annexed its neighbours, and that ought to go in its constitution. The preamble should recognise historical injustices, such as serfdom, the slave trade, the persecution of minority languages, and (in England) the north-south divide.
A constitution should specify the territory of the state, and its name. Usually the name is geographic, and that implicit territorial claim is considered sufficient, but sometimes territory is additionally specified. Non-territorial names (such as ‘USSR’) are rare. Names are not a trivial matter: the name ‘Great Britain’ emphatically claims Scotland and Wales, and even the short form ‘United Kingdom’ specifies a system of government.
A constitution should recognise the existing population of the state — only the Vatican can select its own population. Nation-states assume they are populated by a single nation, with a shared identity and cultural homogeneity. Their national constitutions often specify the titular nation, and may also recognise some specific minorities. That is a 19th-century model, and modern European states need to go much further. They should recognise that the population is divided by values, ideology, and religion, even in countries with low immigration. Their constitutions cannot include a list of shared values, since there are none: instead they should list major divisions. (The authors of any constitution should consider dividing the state, which may be a better alternative). Parallel societies are inevitable, and the constitution should accept that.
While recognising the fragmentation of the population, the constitution should also define the purpose of the state. Nation-states have a clear sense of purpose: they exist to provide a national homeland for the titular nation, to allow its national culture to flourish, and to ensure its transmission to future generations. Those are, literally, conservative goals. It is equally possible for a state to have innovative goals, or goals derived from values or moral principles.
Constitutionally specified ‘objectives’ for European states cannot avoid the relationship with the European Union, and future European integration. It is not historically unrealistic for a nation-state to declare itself temporary, pending its absorption into a pan-European state. Of course that is an affront to nationalism, but even thinking about it shows that national constitutions do in fact assume an eternal state. A constitution ought to be explicit on that issue.
The constitution should also specify objectives with respect to other states. Existing constitutions go no further than vague commitments to peace and international law, and that is outdated. Over the last decades, public perception of other states has been transformed. We see them as business firms, engaged in remorseless competition with us. That model is dangerous: it teaches that we must harm their populations, and turn our own country into a sweatshop. The constitution should reject the neoliberal model, and prohibit economic competition with other states, but it should also provide a positive alternative.
You see there is a lot to put in a constitution, even before considering administrative structures, a Bill of Rights, or how local councils ought to be elected. A constitution is too important to be left to lawyers, and they don’t write good ones. A constitution ought to be a document about moral values and long-term purpose. Administrative structures, branches of government, and elections belong there too, but the ethics should come first.
This post has been written by Paul Treanor from the Netherlands.