State Constitutions as Political Technology
The neglect of our state constitutions is beyond dangerous.
States are meant to be laboratories of democracy, yet no state has experimented in designing a constitutional convention for the 21st century. As a result, U.S. state constitutions are, to put it charitably, stale. They have failed to adjust to the modern world. Despite the emergence of “participatory constitution-making” as theory and practice in Ireland, Iceland, Egypt, Tunisia, and Chile, American states like Oregon have relied on constitutions written by centuries-old experts and amended in an ad hoc fashion that is sometimes actually harmful to democracy.
Oregon, my home, is among the many states that could benefit from a new constitution. Moreover, the state could take advantage of a convention process that uses modern, governance-enhancing, participatory tools. Piecemeal amendments aren't a solution to outdated constitutions. Oregonians have relied since 1859 on a constitution written by delegates to a constitutional convention. Two hundred fifty-four amendments later, the status of this constitution as a quality product is seriously in question.
Constitutional scholar Robert F. Williams notes that serially amended constitutions like Oregon’s are liable to lose their "coherence as plans of government" and to force states to rely increasingly for policymaking on extra-constitutional direct democracy—which may have its positive aspects, but definitely carries its own negatives.
Meanwhile, constitutional conventions, even if they are limited to a few topics of reform, can allow for more strategic thinking about the way various constitutional changes can work together to produce better government. True, conventions in themselves are not guaranteed to produce subjectively “better” constitutions. However, conventions that incorporate certain modern lessons have a better chance of producing constitutions suitable for the 21st century. If constitutions are a type of “political technology,” as Donald S. Lutz put it in his essay, “The Purposes of American State Constitutions,” it becomes easier to see how some tinkering could unleash unrealized political potential.
Thinking of constitutions as political technology also makes it easier to see why bringing more people into the constitution-forming process could result in better technology than what experts alone could produce. If the start of the 21st century has taught us anything, it is that outcomes can be substantially improved through a diversity of perspectives and a process that incorporates an allowance for failure. Governments at various levels have applied these lessons, along with measures like participatory budgeting, novel voting methods, and forums for online participation. Yet, these tools have yet to be used to improve the constitutions at the foundation of how American states govern.
Citizens of most states can easily launch a constitution convention. There are recurring ballot initiatives that ask voters whether they want a convention. In more than a dozen states, in fact, residents will soon have the opportunity to get the process started. New Yorkers, for example, have a chance to do so every twenty years. Residents in a state like Oregon can simply put an initiative on the ballot. Though states vary in the ways conventions may be convened, nearly all of them place few limits, if any, on how these conventions ought to run—for how long, with how many delegates, how the delegates can be chosen, what topics can be considered.
That permissiveness is the reason “participatory constitution-making” tools, which have been used to enhance democratic processes and outcomes around the world, are relevant to the American case. In contrast with the idea that constitutions should be written by experts, these participatory tools aim for a convention of “normal” citizens that tries to limit the drawbacks of their comparative inexperience and lack of information.
As a case study, consider Helene Landemore’s research on recent constitutional reform in Iceland. For one thing, the country crowdsourced its priorities. Through use of a kind of lottery, 1,500 Icelanders were selected for a daylong exercise, the National Forum, to identify their shared values and priorities. The results of the National Forum were discussed and debated by the Icelandic public, adding more deliberation, input, and imagination to the process.
After the first National Forum another one was organized, again using random selection to assemble a group that reflected the diversity of the country. This time, the Forum was focused on choosing topics that a new constitution would address. This second daylong process yielded a 200-page report and two blueprints of a constitutional proposal.
Iceland did not simply crowdsource ideas to guide the constitutional revision process; it also relied on the wisdom of the crowd to turn those ideas and suggestions into a formal constitution. It formed a constitutional assembly made up of 25 “amateurs:” Politicians were excluded. More than 500 Icelanders ran in formal elections for the chance to join this constitutional cadre.
Those who were elected were not “experts.” Among them were a farmer, a pastor, a theater director, and three physicians. The group produced successive constitutional drafts, which were submitted for public review. The public had the chance to respond to twelve drafts in all, eliciting a total of 3,600 responses. These comments weren’t just filler: Nearly one in ten responses led to a difference in the text of the constitution that finally emerged from the process.
The new types of delegates and new avenues for public participation did not produce a perfect draft. As some constitutional scholars noted, the draft had flaws, including inconsistencies and internal contradictions. Still, what the proposed constitution lacked in formal quality it made up for in good governance aspirations.
It called for more rights for Icelanders. It also provided for a more democratic society in general. At a time when democracy seems to be struggling around the world, those aspirations are worth celebrating and recreating.
For many reasons, the Iceland process did not actually result in a new constitution. U.S. states can learn, however, that by using public participation tools that they have likely used in other situations, they can promote a revived democratic spirit in their residents and use it to create new constitutions. For example, in the wake of the Obama administration’s focus on open government, many states have increased citizen access to government data, meetings, and reports. There is no reason these channels could not be employed in a constitutional drafting process.
States can also learn from Iceland’s omissions and failures. Though there was widespread support for constitutional reform at the outset of the process, the support waned as time went on; prominent political figures, in particular, started to question the process. U.S. state leaders, before they pursue such a process, should make sure that stakeholders from a broad range of political society are brought into the process early and commit to seeing it through to the end.
Iceland’s assembly may also have been too “amateur.” The drafting errors and inconsistencies in the assembly’s final draft could have been avoided if the delegates had received more guidance from constitutional experts. Thus, U.S. states should, before they call their conventions, form nonpartisan, independent commissions to study constitutional issues and prepare briefs for the delegates who are subsequently elected. Utah already has a permanent commission of this type, which analyzes ways of improving the state’s “political technology.” Other states can form such commissions on a temporary basis to get the conversation started, at least, and to ensure that delegates hit the ground running and do not veer off course.
Iceland also failed to solicit input proactively from a wide enough range of society. The online comments they received tended to come from wealthier male Icelanders. Though technology can expand opportunities to participate in political processes, sometimes in-person meetings and survey opportunities can be the most meaningful and produce the most representative insights. States should consider novel approaches, like a constitutional celebration holiday, to give everyone a chance to participate in reviewing drafts and ideas.
For all of Iceland’s steps forward and back, it created a new model of the way in which a living generation can shape its country’s political technology. Each generation deserves that opportunity. Thomas Jefferson believed in it; and plenty of Icelanders, Irishmen, Egyptians, and more believe it as well. Millions of Americans, especially Oregonians, are ready and willing to engage in participatory constitution- making. States can and must give them that chance.
Kevin Frazier is a student at the Harvard Kennedy School and UC Berkeley School of Law. He runs the Oregon Way, a nonpartisan, statewide forum meant to restore the state’s civic culture.
Public domain image, Wikiart: https://www.wikiart.org/en/vela-zanetti/mankind-s-struggle-for-lasting-peace-detail-1953
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