Friday, 17 June 2011

Can Facebook Write a Constitution?

Involving everyone in constitution-writing seems to be quite in vogue.  Just yesterday I blogged about a new effort in Egypt to write a populist constitution.  From this article, it appears that Iceland, pictured above, is also writing its constitution en-masse using Facebook.

The question then arises - what aspects of a constitution are most conducive to mass-creation, and what should practically be reserved for constitutional lawyers and historical experts?

Here history is not the best guide, as new technology tools are, well, new.  But there were phases in the drafting of the U.S. Constitution which might provide at least some helpful insights.

Once the delegates arrived at the federal convention of 1787, there were three main phases of constitution-drafting.  In the initial phase, which I will call the political stage, three (really four if you count Alexander Hamilton's outrageous monarchical plan) plans were proposed, and two discussed--the Virginia Plan and the New Hampshire Plan, or Patterson Plan (although the Pinckney Plan was proposed and tabled without discussion the same day the Virginia Plan was proposed on May 29, it was used by the Committee of Detail in drafting the Constitution).  Between May 29 and late July 1787, the broad outline of government, or the political structure, was agreed upon.  This was essentially an amended version of the Virginia Plan which, depending on how you count, contained 23, 24, or 26 resolutions.

On July 26, the Convention broke for a five-member Committee of Detail to draft a Constitution, the second phase of the Convention.  This they did in a short 10 days.  Although John Rutledge of South Carolina seems to have been the committee chair, the committee was dominated by James Wilson, in whose hand eight of nine committee documents appear, including, again depending on how you count them, two or three drafts.

The final, legal stage began on August 6 when the Committee of Detail reported their draft.  This was refined over another five weeks, including the few days in September wherein Gouveneur Morris on the Committee of Style retooled the Constitution's phrases with great alacrity.

Once the Constitution was signed on September 17, it was submitted to public discussion for a period of two years as each state considered ratification.  Here, clearly, is an example of mass participation in the creation of a constitution.  These debates did not change the text of the original articles, but they did produce draft bills of rights, from which the ultimate first ten amendments were formed.

Yet what about mass participation in the initial political stages of debate?  Certainly, as can be seen from newspaper articles, blogs, tweets, and street protests, the public is involved in calling for a new constitution.  Can this call evolve successfully into preparing political blue prints for a legal document?

I believe that they can, especially through technology.  Yet I suggest that the various publics involve consider carefully whether tight, simple legal prose can be crafted entirely by a crowd.

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