Who should write the constitution of a democratic country and, indeed, any country? The answer seems obvious: its people. Yet the constitutions of existing states, including democratic ones, have usually been written by small, rather unrepresentative subsets of individuals. Solon is supposed to have single-handedly laid out the foundations of democratic Athens. The U.S. Constitution was penned by a few dozen white men. More recent examples of constitutional processes involve the usual elites: professional politicians and state bureaucrats. But even elected or otherwise democratically authorized constitutional drafters are at best metaphorically, “We, the People.”
Not only are typical constitutional processes rather exclusionary and elitist, but they also tend to be characterized by an utter lack of transparency. The American Founding Fathers purposefully kept their deliberations hidden from the public in an attempt to protect themselves from popular passions. Even contemporary political theorists such as Jon Elster insist that the ideal constitution process is hourglass-shaped, with widely open consultative moments upstream and downstream of the drafting, but a tiny waist, corresponding to the exclusive and closed moment of actual writing by a select few.
Iceland’s recent experiment in redrafting its constitution has challenged the assumptions that a constitutional process needs to be exclusive and opaque. In 2013 the country came close to passing into law the world’s most inclusively and transparently written constitutional text. This experiment—sometimes dubbed the “crowdsourced constitution”—should prove inspirational for people around the globe intent on writing, or re-writing, their own social contract.
The Icelandic constitutional process included three original features. The first one was a so-called National Forum—an upstream consultation of a demographically representative minipublic of 950 quasi-randomly sampled citizens. These citizens were gathered in a one-day meeting and asked to list the principles and values they would like to see embedded in the Icelandic constitution. They listed, among others, human rights, democracy, transparency, equal access to health care and education, a more strongly regulated financial sector, and public ownership of Icelandic natural resources.
The second unusual feature was an assembly of constitution drafters selected from a pool of 522 citizens that purposely excluded professional politicians (the latter having been discredited in the eyes of the public during the 2008 financial crisis). The resulting council was characterized by relative gender balance—including 10 women and 15 men—and diverse professions beyond the usual doctors and lawyers, including a farmer, a pastor, an art museum director, a radio presenter, a trade union chairman, a consumer spokesperson, a student, and a filmmaker. The presence of Freyja Haraldsdóttir, a human rights activist affected by glass-bone disease, strikingly illustrated that popular sovereignty need not be represented only by able-bodied, middle-aged men in suits and ties.
The third unusual feature was the decision by these 25 constitutional drafters to use social media to open up the process to the rest of the citizenry and gather feedback on 12 successive drafts. Anyone interested in the process was able to comment on the text using social media like Facebook and Twitter, or using regular email and mail. In total, the crowdsourcing moment generated about 3,600 comments for a total of 360 suggestions. While the crowd did not ultimately “write” the constitution, it contributed valuable input. Among them was the Facebook proposal to entrench a constitutional right to the Internet, which resulted in Article 14 of the final proposal.
Finally, the inclusiveness of the process was enhanced by a limited but still unprecedented level of transparency. For example, the National Forum was streamed online for all to see. Similarly, while the work of the Constitutional Council members was mostly done in closed sessions, it included open meetings that were filmed, recorded, and disseminated as PDF files on the council’s online platform.