Why Does The New Constitution Matter? An Interview With Dr. Lawrence Lessig

Dr. Lawrence Lessig is more than just another academic with a keen interest in Iceland. He has also been following Iceland’s experiment with a constitutional draft for years now, has written extensively on the subject, and has visited the country on a number of occasions to meet and consult with the people working most closely with the process. In the run-up to the parliamentary elections, the constitutional draft was a subject raised by a number of parties, so we touched base with Dr. Lessig to get his thoughts on what this draft means, and why it matters not just to Iceland, but possibly to the rest of the world.

Why is the constitutional draft important?
I think that the process for drafting this constitution is the most democratic process we’ve seen in the history of constitutions anywhere. We’ve never seen something like this. This process involved an incredibly intelligent mix between grassroots, citizen-driven input, expert-crafting direction, and an actual deliberative process for drafting the constitution that wasn’t controlled by insiders. The process was representative of the values that the constitution should embrace; it mixes the different elements that a democratic constitution should include: it has expertise, but it also has democratic pedigree. There isn’t another constitution that has not passed through this mix of democratic accountability in the history of constitutions. That’s objectively a very important fact about the nature of the constitution.

Second, there’s also the question of what is the democratic obligation that flows from the [constitutional] referendum itself. If you contrast the non-binding referendum that gave Britain Brexit to the non-binding referendum that gave Iceland a draft of what would be the basis for a new constitution, the Brexit referendum was passed with a smaller majority. Most people think it’s a crazy suggestion, but politicians in Britain seem to think there’s no option but to follow through. There’s no question that politicians are expected to follow through on what the referendum demands. But here in Iceland, there are politicians who are completely open to ignoring what that referendum was all about. So if the referendum says, “There should be a new constitution on the basis of the draft” and you respond to that by saying, “Well, maybe we should amend the old constitution,” what you’re saying is the referendum has no democratic significance. Amending the old is not adopting the new. So I think it’s interesting how this brings up the question of what is the democratic significance of this public act, and I think it’s striking that it seems more contested in this democratic context than similar acts have been in other democratic contexts.

As we know, the constitutional draft floundered and stalled in Parliament in 2012. What were your thoughts as you followed the process?
Let’s be clear about what the obligation of the referendum is. The referendum doesn’t say “adopt the draft as the new constitution”; it said “it should be the basis for a new constitution.” So what that means is there needed to be a process to take the draft, to fine-tune it and tweak it into making a functioning constitution and then to take the steps to ratify it. What I think happened was people in the elite were frankly startled that the non-elite had been permitted to engage in this democratic process and they began to push back significantly. Of course, the nature of politicians is that when people start bickering in front of them, they do nothing. And that’s why I think it’s interesting how, in the context of this election cycle, you see groups led by the Constitution Society raising the question of whether Parliament is respecting what the people have said and holding parties accountable to that.

From the standpoint of people like me, who are eager to see ways to revive confidence in a democratic process, I think this is an extraordinary opportunity.

Do you think there’s anything particular about Iceland that creates the conditions by which this could go as well as it did, or do you think it’s a question of political will lacking in other European countries?
I think the process of getting this going here was simpler than in other European countries, really because of [Iceland’s] size. Obviously, this process started here as a genuine grassroots process, which was then co-opted by the parliament, but it could start as a grassroots process because basically everybody would know each other and be pushing to get this thing going. In the United States, it’s hard to imagine the equivalent of that process getting going and having any kind of credibility. 330,000 is obviously different than 330,000,000. So I think population size is one important difference, but I think if the process got going in other democracies, a similar structure could be followed. A thousand people randomly selected is a significant sample. It’s a reliable sample, whether the population is 300,000 or 300,000,000. If you imagine a deliberative poll of Americans talking about what the changes to the next constitution should be, you can have a similar size that would participate in that, so I think structurally, once you get going, there isn’t much of a difference. But it’s going to be much easier to get that going in a smaller country than a bigger one.

What do you think are the major challenges that any Icelanders working closely with this issue are going to have to face?
The Pirate Party has put the constitutional draft at the top of their agenda, but I think more significantly, the Left-Greens, the Social Democrats, Bright Future and smaller parties have committed. So it’s very likely that you’ll have a coalition of parties, all of which have committed to making a new constitution a top priority. I think the challenge is going to be what the process will be to execute that commitment. People are increasingly coming to the position that you could imagine a process which included basically taking the draft and sending it to an expert commission. Not one inside of Parliament, but one outside that would be chaired by maybe academic experts and others who would be in a position to polish and perfect this draft. And then the real challenge is how, in fact, it gets enacted. The problem is the existing constitution has a very cumbersome structure for enacting amendments to the constitution, requiring the dissolving of Parliament and new elections. There’s talk by some that you could get around that by actually proposing an amendment to change the way amendments are adopted. I think that’s going to be the real challenge, and it’s not an impossible one. If you get a government that’s committed to reform, or committed to adopting a new constitution, there’s going to be a bunch of technical questions about how to bring that about.

What implications does a new constitution for Iceland have for the rest of the world?
I think it matters to democratic activists and theorists around the world, because we have so many examples of democracy failing around the world, that we need an example of democracy succeeding. And this would be an example of that because of two parts: one part is basically a grassroots democratic movement to crowdsource a constitution, which is then supported by two-thirds of the voting public, and eventually enacted. That’s a kind of reassertion of the vitality in the democratic process. But on the other side, it would also be important to see the elites and the government yield; to see them acknowledge and concede to the authority of the democratic process. Now elsewhere in the world, you can see the elites abiding the democratic process but people don’t have faith in how that process was conducted, or you see a vibrant democratic process that is not respected by the elites. So I think putting those two aspects together here, it gives people a sense of what is possible. It gives them a sense of hope, that they could be the model elsewhere. And I’m quite certain that if it succeeds, it would flow from the Icelandic example to other countries around the world trying to copy it. From the standpoint of people like me, who are eager to see ways to revive confidence in a democratic process, I think this is an extraordinary opportunity.

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