In the history of constitutions across the world, America has had a unique place: Ours was the first constitution ratified by the people in convention. But Iceland has now done something much more significant: For the first time in the history of the world, and using a technology only possible in the 21st century, the people of a nation have crafted their own constitution through an open and inclusive crowd-sourcing process. Yet astonishingly, that constitution remains unenforced.
As everyone in this nation knows, after the financial disasters of 2008, the citizens of Iceland began a process to claim back their own sovereignty. Building on the values identified by 1,000 randomly selected citizens, Icelanders launched a process to crowdsource a new constitution. That initiative was then ratified when the Parliament established a procedure for selecting delegates to a drafting commission. More than 500 citizens ran to serve on that 25 person commission. Over four months, the commissioners met to draft a constitution, with their work made available for public comment throughout the process. More than 3600 comments were offered by the public, leading to scores of modifications. The final draft was then sent to the parliament and to the people. More than 2/3ds of voters endorsed the document as the basis of a new constitution.
Never in the history of constitutionalism has anything like this ever been done. If democracy is rule by the people — if the sovereignty of a democratic nation is ultimately the people — then this process and the constitution it produced is as authentic and binding as any in the world. Yet the parliament of Iceland has refused to allow this constitution to go into effect. And the question that anyone in the movements for democracy across the world must ask is just this: By what right?
No doubt, the procedure for crafting and ultimately ratifying the constitution included as the final step Parliament’s sanction—just as the procedure for selecting a government in Britain is subject ultimately to the Queen’s sanction. But the Queen understands the limited power that right conveys—if Britain is to call itself a democracy. And the same is true of Iceland. When the people have acted as they have here—by crafting a constitution in the most inclusive and reflective way that has ever, in the history of constitutionalism, happened, and then endorsed that work by a popular vote, by what moral authority does the Parliament now say no? No doubt, there are parts of the constitution that some don’t like. But democracy is not a promise of perfection. And no constitution in the history of the world has ever been loved by everyone it affected — just ask the million African slaves whose freedom was made unconstitutional through 1808 by America’s popularly ratified constitution.
The question for Iceland is who is sovereign? Is it the people or is it not? And if it is the people, will the people demand that their will be respected?
This is a question, of course, for Iceland. But it is also a question for the world. As notions of sovereignty have evolved across time — from god, to a king, to an elite, and finally, to the people — the people of the world look to each other for inspiration. The work of Iceland’s people in crowdsourcing a constitution has inspired millions. The resistance of Iceland’s parliament has puzzled many more. Thomas Jefferson, drafting America’s Declaration of Independence, spoke of the people’s “unalienable right to alter or abolish” a constitution. In 2016, we should finally amend his words to make the point even clearer: It is the inalienable right of a people to alter, or abolish, or establish a Constitution. At least where the people rule.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School.
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