THOUGHTS ON CONSTITUTIONS: Occasioned by a Congress on Iceland's Democracy/Reflexiones Acerca De Las Constituciones: Ocasionadas Por Un Congreso Sobre De la Democracia En Islandia

By Skidmore, Max J. | World Affairs, Spring 2018 | Go to article overview

THOUGHTS ON CONSTITUTIONS: Occasioned by a Congress on Iceland's Democracy/Reflexiones Acerca De Las Constituciones: Ocasionadas Por Un Congreso Sobre De la Democracia En Islandia


Skidmore, Max J., World Affairs


On June 3, 2017, a "Congress on Iceland's Democracy" met in Berkeley at the University of California School of Law. Scores of scholars, officials, and others from around the world participated in this stimulating and internationally broadcast, intensive session. Its sponsors were the American Constitution Society, the California Constitution Center, and the Institute for Governmental Studies. Scholars and officials from Iceland, of course, were well represented. I was honored to have been invited to participate. Fortuitously, my invitation came shortly before my wife and I were to depart for a vacation--of all places, to Iceland. Although our trip was unrelated to the Congress, the fact that I returned to the States a mere three days before journeying to Berkeley helped keep Iceland, and its institutions, clearly in mind.

The Congress was the outgrowth of a previous effort in Iceland to "crowd source" a new constitution. This was an unprecedented approach to constitutional issues and provided virtually the entire adult population of Iceland the opportunity to participate in constitution building. The amending process in Iceland requires that constitutional changes be approved by two consecutive parliamentary sessions, with an election in between. The president then must give approval.

In their unique effort to produce a new constitution, the citizens of Iceland had led their parliament, the Althingi, to create a new and extraordinarily representative convention (the Constitutional Assembly) consisting of citizens more or less chosen randomly from all walks of life. The convention functioned completely in the open, and was unusual in many other ways as well, one of which was the exclusion of any politician--politicians having had their reputations shattered by the financial disasters that plagued the world beginning in 2008. The result, approved overwhelmingly on October 20, 2012 in a national referendum, would truly have been a "constitution of the people." As Madison notes in Federalist 39, a constitution must reflect the spirit of the people. It would appear that Iceland has developed a process that, coupled with its established adoption mechanism, will ensure such a result. (1)

The proposed constitution consisted of six articles, and included such things as environmental protections, a right to internet access, one person one vote, initiative and referendum provisions, abolition of the state church, and a declaration that Iceland's natural resources would be public property. Despite the approval of all articles by some two thirds, the following year, 2013, it failed in parliament (obviously, the recommendations of the Constitutional Assembly were nonbinding). The clear assumption in the Berkeley Congress, judging by numerous comments from Icelanders there, was that it failed 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. Judging from their comments, the fishing industry was especially forceful in its lobbying.

The effort to replace Iceland's constitution may have failed, but as evidenced by the Congress it certainly will be ongoing. The Congress was a part of that ongoing effort. Moreover, the earlier process had laid a foundation for Iceland's future constitutional development, and the Congress discussed some issues of its own. As of March 2018, however, it seems as yet to have produced no report. Regardless, there was considerable optimism among participants in the Congress that such non -elite--driven efforts will ultimately succeed, and that Iceland ultimately will have not only the world's most open and inclusive constitution but will also have pioneered the most open and inclusive process possible of creating such a constitution.

Regardless of its prospects for success, whether immediate or later, Icelandic efforts should be of great interest to all constitutional scholars wherever located, 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. …

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THOUGHTS ON CONSTITUTIONS: Occasioned by a Congress on Iceland's Democracy/Reflexiones Acerca De Las Constituciones: Ocasionadas Por Un Congreso Sobre De la Democracia En Islandia
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