Towards the constitution of a free country

Devolution and the Constitution of a Free Country Scallywag submission to Smith Commission on Devolution using the devolution process to empower communities at the expense of central government, maximise democracy, replace parliamentary sovereignty with popular sovereignty, and enhance individual autonomy at the expense of the so-called 'nation'.

Introduction Scallywags want Scotland to be a free country; a country in which the power of the state over individual citizens is maximally restricted. This submission offers some thoughts on the sort of devolved political structure that could be instituted in Scotland to maximise the self-determination of the people who live here. The devolution of power and responsibility in the postmodern world of 21 st century Scotland is an exercise in the economics of popular sovereignty.

The Problem of Structure Politicians react to incentives; so the political incentive-structure must be such that politicians and their patrons cannot profit by the aggrandisement of state power.

This was the intent of the revolutionaries who drafted the American Constitution when they established a federal system of government in the seceding colonies. Each branch of government was expected to be jealous of the other two and so be motivated to serve each as a check on the expansion of the others. At the same time, the broad base of popular representation was expected to ensure that no commercial interest or ideological party could succeed in manipulating government to its own advantage or agenda.

This experiment eventually proved to be a failure. Those who drafted the American Constitution did not foresee the so-called 'log-rolling process’, whereby competing parties and other factional interests, as well as the separate branches of government themselves, exchanged concessions to one another's ambitions in order to forward their own.

Decentralise But the principle of popular sovereignty over state sovereignty was established. Thomas Jefferson, when asked to summarise his political philosophy, replied that he could state it in one sentence: ‘Divide the states into counties and the counties into wards.’ In other words: decentralise, decentralise, decentralise.

Imagine a country the size of Scotland, but consisting of only one state.

Now imagine the same region containing 50 states. All else being equal, the second situation is likely to be much more hospitable than the first to the freedom of the people who live in that land.

The smaller the political unit, the greater the influence an individual citizen can have in politics, thus decreasing the lobbying advantage that concentrated factions of special interest can have over a diffuse general public. 'Concentrated factions of special interest' includes not just commercial and business interests, but also the ideological parties of nationalists, socialists, environmentalists, liberal democrats, neoliberals, social democrats, et al. that are constructive of the regressive politics of modernity.

Furthermore, as the number of available alternative political jurisdictions increases, the citizen's exit option becomes more powerful. The freedom to leave one state is small comfort if there are only a handful of others nearby to which a dissident can defect. But where there are many states, the odds of finding a satisfactory destination are much better. People already defect to other local authority areas where they perceive services like education to be better there.

Within the European Union, people likewise already migrate to areas where they perceive greater opportunities for improving their lives, to the enrichment of the receiving communities.

In addition, competition between states can serve as a check on state power and an expansion of popular sovereignty, since, if any state becomes too oppressive, its citizens can vote with their feet.

Decentralisation also softens the impact of government mistakes. If a single centralised government decides to implement some ill-conceived plan, everybody has to suffer. But with many states implementing different policies, a bad policy can be escaped, while a good policy can be imitated. Competition for citizens can also serve as a political learning process.

The federal structure of the United States, imperfect though it is, may well explain why it did not plunge as rapidly into tyranny as many of its European counterparts did in the 20th century.

Individual American states enjoy free

movement between them, while most European states denied themselves this benefit until the EU lifted restrictions on migration between its affiliated states. In this respect, 28 or 50 states is certainly better than one; though it is still a far cry from Jefferson's notion that six square miles (roughly the average size of a local authority council ward) is the optimum size for a basic political unit.

Empty Landscapes The constitution of a free country, then, should be characterised by a radically decentralised power structure, along the lines of some sort of Swiss-style 'canton' system.

However, the effectiveness of competition among political jurisdictions for citizens is inversely proportional to the costs of changing one's jurisdiction. In the EU, Britain faces serious competition from France, but little from Greece, since the costs of voting with one's feet are so much higher in the second case.

The same is true at the international level. There is no mystery as to why Syrian and Iraqi refugees are mostly trying to get into Jordan rather than Geneva.

And even when an alternative jurisdiction is nearby, the costs of switching are not exactly low. Uprooting oneself and one's family in order to move to another state can be costly, both financially and emotionally. The high cost of switching results from the fact that political jurisdictions correspond to geographical regions, and geographical relocation is not always feasible.

It seems desirable, therefore, to decouple political jurisdiction from geographical location.

Consider our world as it would be if the costs of moving from one country to another were zero. One day, the president of France announces that, because of troubles in Syria, new military taxes are being levied and conscription will begin shortly. The next morning the president of France finds himself ruling a peaceful but empty landscape, the population having been reduced to himself, three generals, and twenty-seven war correspondents.

If people could switch political jurisdictions without switching location, we would have the functional equivalent of the situation just envisioned. Competition for citizens among jurisdictions would be higher, and the amount of state interference that people would tolerate without switching would be lower than in a political system where jurisdiction and geographic location are linked.

The Case of Iceland There are a number of historical precedents for this idea. One famous example, the Icelandic Free Commonwealth, which operatred from 930-1262, operated on the so-called þing system.

A þing was a court or assembly. Iceland’s legislative assembly, with its attendant judiciary, was called the alþing. Beneath the alþing, there were four fjörðungar (quarters), corresponding to the island’s four geographical regions.

But here the tie between geography and jurisdiction ended.

Under each fjörðungar were three or four hverfiþing (district assemblies), and assigned to each of these were three þing.

Residents of a fjörðungar were free to choose membership of any of the nine to twelve þing attached (through the hverfiþing) to their fjörðungar.

Membership of a þing determined who your goði or leader was. A goði protected the local interests of his Þingmenn (assembly men), appointed judges from his þing to serve on the judiciary, and represented his Þingmenn in the legislature. In return for protecting their interests locally, regionally and nationally, Þingmenn supported their goði during feuds or conflicts and by paying him tributes.

Crucially, a Þingmann could officially switch his membership from one þing to another simply by making the appropriate announcement in front of witnesses. Since the cost of transferring one's allegiance to another goði was far smaller than it would have been if the þing had been purely territorial entities, competition put a brake on the ability of any goði to oppress his Þingmenn too severely or to demand excessive services or tributes.

This decentralised system appears to have been quite effective. The Icelandic Free Commonwealth did eventually succumb to centralisation, but it took three hundred years and the arrival of Christianity to do so.

Virtual Cantons or Commonwealths The Icelandic case has been a popular model among proponents of popular sovereignty. With regard to Scotland, the divorce of jurisdiction from geography is not an option if we think in terms of it being a nation; but it remains a very live option when we think in terms of it being a collection of communities.

Just as a territory can be divided into many small geographically distinct constituencies for the purpose of local administration and collective representation, so it might also be divided into analogous political units that have no territorial

significance whatsoever.

These might be called ‘virtual cantons’ or

'commonwealths'.

Two Functions of Virtual Cantons Like the Icelandic þing, these virtual cantons or commonwealths would have two functions: representation at syndicate levels (the correlatives of the Icelandic hverfiþing, fjörðungar and alþing), and administration at the local level, with ‘local’ now serving as a structural rather than a geographical concept.

In the first case, each commonwealth would send a representative to each syndicate it joins. Citizens would be free to switch their allegiance to another commonwealth whenever they chose, without having to change their residence.

It would also be a constitutional provision that any group of citizens above a certain number could form a new commonwealth. The lack of this crucial feature proved to be the fatal flaw in the Icelandic system. Since the goðorð (the office of goði) was a marketable commodity, it eventually became possible for a small number of families to buy up these goðorð and therefore their associated seats in the alþing and thereby monopolise the legislature. The constitution of the Icelandic Free Commonwealth had no provision for the creation of new goðorð to counteract this threat.

On the ‘local’ level, each commonwealth would pass its own laws and provide its own enforcement and public services. Citizens would be subject to the laws of the syndicates of which their commonwealth was a member and to those of their own commonwealth, but not to those of other commonwealths. A principal job of the syndicates would be to regulate relationships among commonwealths, laying down guidelines for the adjudication of disputes among members of different commonwealths, resolving conflicts between the laws of different commonwealths, providing for cooperation between syndicated commonwealths in

the provision of joint services, and so on. But within that framework, there would be free competition for constituents among commonwealths.

Such competition would have many benefits.

The threat of losing constituents and their contribution to the commonwealth to other commonwealths would generally improve a canton’s performance in administering good quality public services at the most effective cost.

A virtual canton/commonwealth system is also fairer than a purely majoritarian system. Under majority rule, if 51% of the population favours law X and 49% favours law Y, then law X is imposed on everyone, including the dissenting minority. In short, majority rule creates a democratic deficit for minorities, as it has for the Scots (and others) in the British Isles and for Shetlanders (and others) in Scotland.

A system of commonwealths would help to internalise these externalities.

The minority opposed to law X need not be subjected to it, but may instead join a commonwealth offering law Y. Those in the majority could not conscript the minority into supporting their projects (or vice versa), but would have to bear the full costs itself (or in syndication with partnering commonwealths).

Commonwealths also provide a better check against local tyranny than do other decentralised systems. In a territorial system, those in a given geographical region may find voting with their feet prohibitively costly, and so must suffer whatever the local government decides to impose.

The option to change

commonwealths without changing residency offers the functional equivalent of voting with one's feet (and one's wealth), at a far cheaper rate.

In general, commonwealths would provide far more effective checks and balances than those among the three branches of government in unionist, federalist and nationalist systems, because of the competitive potentialities (to which the unionist, federalist and nationalist systems have no analogue) of switching between commonwealths or creating new ones.

The virtual canton/commonwealth system would also be more responsive to local administrative needs.

Commonwealths could divide along geographical

boundaries or not. They could divide along ideological, cultural, professional or ethnic/linguistic boundaries or not. They could vary in size. The number of commonwealths at any one time could also vary. Competition would allow the court of popular sovereignty to determine the optimal answers to meet citizens' needs.

Syndicates Syndicates have a vital role to play in providing coordination among the policies of the various commonwealths. Yet these syndicates must be severely restricted in their powers, or the whole purpose of decentralisation will be defeated. If the syndicates, rather than the commonwealths, become the chief locus of decision-making, then the competition among jurisdictions will become otiose, and the commonwealths will degenerate into special interest blocs or political parties vying for centralised power to universalise their own particular schemes in the state; tyrannies, in other words.

Hence syndicated powers must be more severely constrained (not just by a written wish-list of limitations on those powers, but structurally) than commonwealth powers, in order to force most political disputes down to the commonwealth level and thus into the realm of popular sovereignty.

There are a number of ways of doing this: severe term limits, supermajority requirements, a plural executive, etc.

One possibility would be a bicameral

legislature, with one house requiring a two-thirds vote to pass laws, the other a one-third vote to repeal laws. It might be especially useful to compose the former of commonwealth representatives (thus ensuring maximum participation of various interest groups in the legislative process) and the latter of popularly elected representatives, thus accommodating the principle that any stable political regime must provide an official conduit for a popular majority to exercise a veto power.

In other words, majorities would have the power to veto laws but not to make laws.

Conclusion Scallywags have submitted this just in case the commission was interested in using the devolution process to empower communities at the expense of central government, maximise democracy, replace parliamentary sovereignty with popular sovereignty, and enhance individual autonomy at the expense of the so-called 'nation'. Pessimistically, Scallywags do not reckon the political class which is deciding how power is to be redistributed among its various branch offices is much interested in any of these things.