Reykjavík Grapevine - 11.11.2016, Blaðsíða 8

“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.”
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 constitu-
tional draft for years now, has writ-
ten extensively on the subject, and has
visited the country on a number of oc-
casions to meet and consult with the
people working most closely with the
process. In the run-up to the parlia-
mentary 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 demo-
cratic process we’ve seen in the his-
tory of constitutions anywhere. We’ve
never seen something like this. This
process involved an incredibly in-
telligent 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 ele-
ments 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 demo-
cratic 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] refer-
endum 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 ex-
pected 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 ref-
erendum 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 inter-
esting how this brings up the question
of what is the democratic significance
of this public act, and I think it’s strik-
ing 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 pro-
cess to take the draft, to fine-tune it
and tweak it into making a function-
ing constitution and then to take the
steps to ratify it. What I think hap-
pened was people in the elite were
frankly startled that the non-elite had
been permitted to engage in this dem-
ocratic process and they began to push
back significantly. Of course, the na-
ture 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 re-
specting what the people have said and
holding parties accountable to that.
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 cred-
ibility. 330,000 is obviously different
than 330,000,000. So I think popula-
tion size is one important difference,
but I think if the process got going in
other democracies, a similar struc-
ture could be followed. A thousand
people randomly selected is a sig-
nificant sample. It’s a reliable sample,
whether the population is 300,000 or
300,000,000. If you imagine a deliber-
ative poll of Americans talking about
what the changes to the next constitu-
tion 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 big-
ger 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 constitu-
tional 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 mak-
ing 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 ba-
sically taking the draft and sending
it to an expert commission. Not one
inside of Parliament, but one outside
that would be chaired by maybe aca-
demic experts and others who would
be in a position to polish and perfect
this draft. And then the real chal-
lenge is how, in fact, it gets enacted.
The problem is the existing constitu-
tion has a very cumbersome structure
for enacting amendments to the con-
stitution, requiring the dissolving of
Parliament and new elections. There’s
talk by some that you could get around
that by actually proposing an amend-
ment to change the way amendments
are adopted. I think that’s going to be
the real challenge, and it’s not an im-
possible one. If you get a government
that’s committed to reform, or com-
mitted to adopting a new constitution,
there’s going to be a bunch of techni-
cal 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 ac-
tivists and theorists around the
world, because we have so many ex-
amples 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 en-
acted. 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 au-
thority 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 to-
gether 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 re-
vive confidence in a democratic pro-
cess, I think this is an extraordinary
opportunity.
The Reykjavík Grapevine
Issue 17 — 2016
8
Words
PAUL
FONTAINE
Photo
JOI ITO/CC
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