Academic journal article Boston College International and Comparative Law Review

Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland

Academic journal article Boston College International and Comparative Law Review

Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland

Article excerpt


Mechanisms of constitutional change have gained renewed interest in recent years. The Arab Spring and its associated constitution-making processes is perhaps the most visible manifestation of this.1 Other examples include the Scottish and Catalonian independence movements, as well as the problematic adoption of a new constitution and subsequent amendments in Hungary. 2 Situations wherein popular involvement was central to advancement of the process have likewise attracted significant attention; such attempts include British Columbia, the Netherlands, and Ontario's electoral reforms, in addition to the more sweeping reforms sought in Iceland and Ireland. 3 All of these cases creatively experimented with whereby participatory, partially citizen-led processes intent on revitalizing politics were at the heart of the desired constitutional change.4

Curiosity in how new technology and social media has increasingly influenced various stages of the constitution-making process has renewed interest in such initiatives.5 Iceland and Ireland are often hailed as trailblazers in marrying technology and direct democracy in their respective constitutional reform processes. 6 Iceland's constitution is widely recognized as the world's "first crowd-sourced constitution." 7 Ireland's constitution is likewise acknowledged as a paradigm of transparency and inclusiveness.8 The potential reinvigoration of popular participation in political decisionmaking via citizen-focused constitutional conventions is another reason for optimism. 9 Consequently, ordinary citizens have been permitted to partici2 pate in an arena traditionally reserved to lawyers and politicians: constitution-making.10

Legal scholarship has not yet analyzed these developments sufficiently, thereby providing an inadequate account of such novel approaches to constitution-making. Iceland's case, for example, may not be replicable due to the peculiar characteristics of that country, including its small size and homogenous population. 11 Ireland is likewise open to similar objections, and given the piecemeal nature of its reform process, might be criticized for a lack of ambition.12

There is an acute need for a comprehensive account of new forms of popular participation in constitutional conventions, not least given their renewed popular appeal. The Scottish Government, for instance, leading up to its independence referendum on September 18, 2014, indicated its expectation of calling a constitutional convention for the purpose of drafting the new country's constitutional text.13 The United Kingdom's (UK) Political and Constitutional Reform Parliamentary Committee published a report in March 2013 entitled "Do we need a constitutional convention for the UK?" which asked whether there was a need to employ such a convention for deciding the union's future.14 Proposals for a UK-wide constitutional convention have not abated since the Scottish referendum, rather, there have been additional calls for exploring the possibility of a crowdsourced UK constitution have manifested.15 Accordingly, constitutional conventions need to be reassessed in light of their digital era incarnation.

This Essay assesses whether the novelty in the means used in modern constitution-making translates further into novelty at a more substantive level, namely, in the quality of the constitution-making process and legitimacy of the end product. Additionally, this Essay analyzes standards of direct democratic engagements, which adequately fit these new developments, with a focus on the cases of Iceland and Ireland.

This Essay first asks why differing forms of constitution-making should be examined. Part I explains the importance of constitutional legiti10 macy, content, longevity, and democratic theory. Part II addresses constitutional conventions as one mechanism for facilitating constitutional change. Part III analyzes the Icelandic and Irish constitutional convention experiences and proposes a set of lessons to be drawn from them. …

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