By Mark McNaught
On the 16th of January, Alex Salmond announced that one of the first priorities in the event of a ‘Yes’ vote on independence would be to draft a written constitution.  This will undoubtedly be seen as a milestone in the debate.
While he gave few details, rightly stressing that a Scottish constitution would be drafted with the participation of all parties and the Scottish people, his remarks suggest what could be included in terms of positive rights.

Negative rights limit the scope of state action, things which citizens have the right to protection from, for example unreasonable search and seizure, infringements on speech and religious liberties, etc.  Positive rights can be broadly defined as things which citizens have the right to, for example health, housing, education, and welfare.

Salmond mentioned in his speech the possibility of including positive rights in a written constitution, including free education, welfare benefits, and housing.  While these are laudable aims, the manner in which they are constitutionally guaranteed is important for maintaining their credibility and effectiveness.

There is a big difference between having the right to something and having the means to obtain it.  Take housing for example.  Simply including a constitutional clause guaranteeing everyone the right to housing, without providing the means to accomplish this, risks delegitimising such a right over time.  Everyone currently has a right to housing, but too many are not in a financial position to avail themselves of it.

What exactly is a positive right?  It can be defined as one of two things: either conditional access to something or universal provision of it.  This brings up the central question: how can positive rights be written into a constitution while still remaining credible?

One solution is to include in the constitution a list of desirable positive rights: housing, free education, etc., while stipulating that these are goals that a Scottish government must work to provide to all citizens over time through legislative action and financing.

If the Scottish government is constitutionally obliged to work towards these ends, and eventually homelessness is demonstrably eliminated, and specified welfare benefits are truly provided to all, these desired rights could be re-categorised as guaranteed rights. 

Instituting this two-tiered categorisation of rights would not diminish their importance, but would better reflect to what degree they are a reality, rather than just words on paper.

In the US for example, there are no federally guaranteed social rights.  Nowhere in the Constitution or the Bill of Rights is there a mention of health, education, or social benefits.  Many Americans talk about their ‘right’ to health care, but this is found in no text which could assure truly universal access.  For over 100 years, there have been many failed legislative efforts to provide health insurance to all Americans.  Obamacare is currently being instituted, but the American people are still far from having an equitable ‘right’ to care, regardless of ability to pay, merely by virtue of being citizens.

If the US constitution were adaptable enough to incorporate positive rights, and Congress were constitutionally obligated to work towards universally assuring them, the US might not be such an unequal society.

Not having a written constitution, rights in the UK are statutory, and can be easily changed by governments.   However, this has an advantage in that rights are adaptable to changing societal conditions.

Scotland could develop a hybrid constitutional rights system which borrows from both.   Rights could be constitutionally yet progressively guaranteed, without being as ossified and rigid as in the US.  Mechanisms could be created to adapt these rights to the exigencies of the moment.

The blank slate upon which a written Scottish constitution could be written allows for completely new ways of thinking in terms of how a state guarantees rights, and what meaning its citizens ultimately attribute to them.

Only independence will afford Scots the opportunity.

Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.


# UpSpake 2013-01-18 13:37
This article is written as if there is nothing out there which could serve as a 'model constitution' which there most certainly is, least of all from the SNO themselves.
If the Constitutional Commission which has been around for sometime can't organise itself due to lack of funds then, the Scots government should grant them the funds they need to get this show on the road.
Elliot Bulmers excellent book on a Model Constitution for Scotland is a must read for any and all who wish to participate in this debate.
Scotland is in danger of wasting so luch time delaying things until after the referendum. There is a lot of good work which can be done now leaving only ratification to be done once independent.
# robbo 2013-01-18 14:13
I don't think it's right to put positive rights in a constitution.

Nor do i think such a constitution would last very long, which basically defeats the point.
# maisiedotts 2013-01-19 11:57
Quoting robbo:
I don't think it's right to put positive rights in a constitution.

Nor do i think such a constitution would last very long, which basically defeats the point.

Most of these positive rights you decry are actually a fundemental part of the UN International Declaration on Human Rights 1948, which has lasted for 65 years so far and we (UK) both wrote and signed up to. Education, Food and Shelter are amongst those rights. It's worth reading
# Ped 2013-01-18 19:58
With regards to the whole question of a written constitution I am at a total loss. There has been simply nothing in my life experiences to draw any opinion from one way or another. So, I need to find out more & just ordered the book mentioned above as a start.
# Mad Jock McMad 2013-01-19 11:40
The draft constitution is sitting on the Constitutional Commission's web site inviting comment and input:

Worth a read and saves a whole load of wheel re-invention.

By the way, Salmond was simply stirring up the Better Together's hornet's nest with his comments to Brian 'The Jelly' Taylor - the emphasis was around the sort of things he would like to see in a written constitution knowing that a written constitution for Scotland is an anathema to the 'Better Together' mob and for them to enter the debate raises the question of what sort of 'constitution' they would offer Scotland.
# Christian_Wright 2013-01-19 11:54
I think Mark McNaught fundamentally misunderstands the US constitution and the meaning of constitutional rights, generally.

Rights are inalienable. Government can neither bestow rights nor can they take rights away. They can deny rights but they cannot do so legitimately. No government is or can be invested with the power to rescind a human right. They are an inherent quality possessed of all people.

If the government or the constitution can bestow a "right" it can be taken away. We are therefore not talking about rights at all, but about privileges whose viability is entirely dependent upon the continuing largesse of the state.
# davemsc 2013-01-19 13:29
US Constitutional Law is his area of expertise, so he would appear to know what he is talking about. What are your qualifications?
# Christian_Wright 2013-01-19 22:09
Why don't you articulate why you believe he is right rather than assume he is right because of his credentials? Hmm?

Consider you would be better served were you to play the ball and not the man.

Though tempted, I am not going to get into a willy-waving contest over whose parchment is the biggest.

Now what is your rationale for your support for Mark McNaught's position? Do you have one?
# Christian_Wright 2013-01-19 12:20
The US constitution does not confer rights, it enumerates them. The Bill of rights (the first ten amendments to the US Constitution) is not a list of negative rights (Vasak has much to answer for), it is an enumeration of rights and the limitations on government to curtail them.

If Mark's view is at all representative of the nous of the Good and the Great who will most influence the final draft of this document, then it does not augur well for Scotland nor its people.
# Marque 2013-01-19 15:26
You're confusing the Declaration of Independence with the Bill of Rights. The DOI uses the word 'inalienable': life, liberty, and the pursuit of happiness, but it is not used in jurisprudence. The US BOR takes several pre-existing rights, from among others the English Bill of Rights of 1689, the Colonial Charters and State Constitutions, and limits the federal govennment. Read the preamble to the BOR. It is a list of mostly negative rights. This idea that positive rights were 'invented', is simply wrong. Many constitutions have them. Yes, it is up to the state to guarantee them, and they can rescind and expand them. The US BOR did not begin to be expanded to the states until the 1920's through selective incorporation: far from 'unalienable'. This notion that they are inherently possessed by all people means nothing if the state is not there to guarantee it.
# Christian_Wright 2013-01-19 23:19
Uhg! No I'm not confusing the DOI with the BOR. Inalienable rights are natural rights and these are the subject of the BOR.

"The US BOR takes several pre-existing rights, from among others . ."

There follows a series of non sequiturs.

"The BOR . . It is a list of mostly negative rights . . "

Sheer sophistry. The BOR is a set of enumerated rights and proscriptions on the power of government to curtail them. Plain and simple.

"This idea that positive rights were 'invented', is simply wrong."

That's an assertion, not an argument. "Positive rights" is a term coined to tart up constitutional entitlements as rights. Now you can put lipstick on that pig if you like, but it's still a pig. (I'll see your assertion and raise you one)
# Christian_Wright 2013-01-19 23:43
"Many constitutions have them [entitlements/privileges masquerading as rights]."

Many dogs have fleas, but that doesn't mean fleas are a good thing or that we should infest all dogs with them.

"This notion that they are inherently possessed by all people means nothing if the state is not there to guarantee it."

Weak. Of course it means something. If they are inalienable their validity is not contingent upon any government decree.

"The US BOR did not begin to be expanded until the 1920's . . far from 'unalienable'. "

Yes, I can see you are having difficulty with the concept of inalienable. Let me help you: "Unable to be taken away from or given away by the possessor"

Do you have the right to breathe? Well I think you probably do. Now, the state may deny you that right and you may die, but few would argue that the right to breathe is extinguished by the states actions (though of course you will be).

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