Despite lack of activity on this blog, constitutional reform in Iceland moves forward. After the Supreme Court invalidated the outcome of the election, the government moved ahead to simply appoint the candidates that would have won a seat – in effect showing the courts the middle finger. And as a result the title of the blog is now
outdated updated as the assembly is now the Constitutional Council. In a previous post I argued that this would be an unfortunate outcome, potentially undermining the authority of the constitutional assembly even though it appears unlikely that the administrative deficiencies that lead to the election being voided are highly unlikely to have affected the outcome. At least far less than the fact that some of the candidates failed to understand how the single transferable vote works.
So why the silence on the blog? Frankly, after ‘accidentally’ watching on of the meetings of the Constitutional Council online I felt, well, pretty disgusted. The meeting, ten days into the term of the Constitutional Council, was consumed by debating whether the working document for the new constitutions should consist of one or two columns (one column including the current constitution) and whether subcommittee chairs should be elected before or after easter. Not a big deal really, except for the fact that 10 days account for over 10% of the time that the council has to write a new constitution.
At any rate, after six weeks of work, the Constitutional Council has begun releasing some of its proposed amends I hope to be a little bit more active – since there is something to talk about. On its website, the Constitutional Council website maintains an ‘extensive collection’ of writings on ‘constitution’ for the council members perusal. Interestingly, those readings almost completely ignore the large literature in political science and economics on constitutions and political institutions. Most of the literature hosted on the site consists of various documents (legislative proposals, constitutions of other countries), articles by lawyers, newspaper articles, and handful of articles written by Icelandic political scientists. Overall, this list of study materials for the council is seriously wanting – with the exception of the few articles falling in the last category – there is no serious analysis of the effects of the various political institutions. If this is the extent of materials considered by the constitutional council, I have little hope that the new constitution will improve on the current one. It will certainly be based on noble ideas about how things should work but the realization of those ideals will likely be undermined by the unintended consequences that political constitutions often have. The absence of literature dealing with how politicians react strategically to institutions is worrying, which the legal literature rarely addresses. In the hopes of correcting this bias I have gather a list of ‘required readings’ – a bunch of readings, hastily assembled, that I think every constitution writer should read. It is far from complete but… it is a start.
Of course, the Constitutional Council may simply not be interested. I offered early on to assist the council with finding scholars specializing in the various institutions that might be willing to talk with the council, e.g., help its member digest the literature, which can be fairly technical. Needlessly to say, while acknowledging my offer, the council has shown no interest in seeking the advice of experts. Of course, the council may have sought expert advice through other channels although there is limited evidence of that. The only interaction with outside experts reported on the council’s website cites interviews with Belfrage and Berry but the interviews have the appearance of being related to a research project of theirs (along with one member of the Constitutional Council).