Thoughts on Constitutions: Occasioned by a Congress on Iceland’s Democracy

Abstract

On June 3, 2017, a “Congress on Iceland’s Democracy” met in Berkeley—an outgrowth of a previous effort in Iceland to “crowd source” a new constitution. The citizens of Iceland had led their parliament to create a new and extraordinarily representative convention consisting of citizens more-or-less chosen randomly from all walks of life. The convention functioned completely in the open and excluded all politicians. The result, approved overwhelmingly in a 2012 national referendum, would truly have been a “constitution of the people.” Despite the approval by huge majorities, in 2013, it failed in parliament as a result of fierce lobbying by vested interests against the provision that Iceland’s natural resources would be constitutionally mandated to benefit the public, rather than continuing to be held by private owners. Regardless of its prospects for success, Icelandic efforts should be of great interest to all constitutional scholars, and to those scholars and practitioners who seek a more open and inclusive way to formulate policy, including constitutions—the fundamental law of a state. Intended to stimulate further debate, this essay pursues some initial reflections on the U.S. Constitution specifically, and of constitutions in general. It also examines the role of elites, especially in constitutional formulation, and here pays special attention to the United States.