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 21st 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.