Grassroots Constitutional Politics in Iceland

Abstract

Iceland has recently embarked on an experimental form of constitution-making from below. Iceland is in this a rare – in distinct ways probably unique - example of a popular or citizen-driven constitutionalism. This participatory approach in many ways challenges core assumptions of mainstream, modernist understandings of constitutionalism, such as the idea of constitutionalism as a social phenomenon and practice dominated by legal professionals or that of constitutions as higher laws that are near to impossible to change. At the same time, the Icelandic experience brings to the fore many questions that popular or democratic constitutionalism raises as an alternative understanding and practice of constitutionalism, not least related to the modes and effectiveness of participation, the notion of representation in the constitution-making process, the role of deliberation, as well as the actual, substantive results of participatory constitution-making. Recent debates among experts of constitutionalism have centered for a good part on the tension between the constitution as a higher law, on the one hand, and democracy, politics, and civic participation, on the other. While some argue that there is no tension between constitutions and democracy, since the former provide the necessary prerogatives for the latter 1 , many observers see a strong tension between the legalist idea of higher laws (i.e., laws that are particularly difficult to revise), including the ideas of entrenched rights and the guardianship of constitutions by means of judicial review, and democratic politics inspired by the idea of popular sovereignty. 2 The latter would include the idea of the governed being able to give themselves their own laws. Those emphasizing the civic-democratic dimensions of constitutions often take a very different view of the role of the constitution in democratic societies than that of a legalistic perception of a higher law. 3 Rather than providing the fundamental parameters for democratic regimes, constitutions are seen as vehicles of public participation and debate, as well as of social integration. James Tully, for instance, endorses what he calls “democratic constitutionalism”, a form of constitutionalism that endorses “the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change”. 4 An important component in democratic constitutionalism is an emphasis on the possibility of the members of a