Whatever you think about Scottish independence, the chatter of a referendum has become a fact of life.
Thomas Jefferson (1743-1826) may hold the key to resolving Scotland’s constitutional quagmire. A forgotten belief of the founding father and third president is that he did not consider the U.S. Constitution as permanent or sacrosanct as it is today.
In an insightful letter to Virginia lawyer Samuel Kercheval, Jefferson presents an eloquent argument against fossilising the constitution. On July 12, 1816, he wrote, “some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched.”
“Scotland’s Future”, the white paper 2013 on independence, said a referendum was a “once in a generation opportunity”. This has suffered from Chinese whispers by critics and is taken as a literal commitment not to hold another referendum for an indefinite time.
Cut through the grandstanding, and both Yes supporters and Unionists are asking the same thing: will there ever be a final settlement on the constitution that concludes today’s arguments once and for all?
In all the mudslinging, no side stops to appreciate that our constitutional debate is a good thing. No nation should ever accept its structures as immutably writ for time immemorial. It is precisely what should continue if Scotland voted for independence.
In a letter written to compatriot James Madison from Paris just after the French Revolution had broken out, Jefferson asks whether or not “one generation of men has a right to bind another,” either in the form of financial debt or a political obligation to obey a constitution of laws not contracted by that individual.
He supposes that “every constitution, then, and every law, naturally expires at the end of 19 years” if it is not to become “an act of force and not of right”.
Jefferson believed “the earth belongs to the living and not to the dead.” Previous generations could not bind the current generation to pay their debts or accept the laws and constitution drawn up by their ancestors.
In his mind, “no society can make a perpetual constitution or even a perpetual law”. The only “umpire” between the generations was the law of nature – “one generation is to another as one independent nation to another.”
In this, both Unionists and Yes supporters share common ground. Yes, there was a recent vote only eight years ago. But no, that decision cannot be binding for eternity.
A new decision-making agreement, ratified by the Scottish Parliament and Westminster, must be reached by convention or law, whereby a generation’s length is realistically agreed upon.
The mechanism for a Jeffersonian review of the status quo would afford two things.
Firstly, a legitimate passage of time will give a reasonable answer to whether ongoing participation in the Union is beneficial to Scotland.
Secondly, suppose that the passage of time is a generation. In that case, a significantly younger portion of the electorate will have the lived experience to demand, campaign and vote on the impact of that arrangement on them.
Those key performance indicators would be agreed upon in advance. Every aspect of civil society should provide data and conclusions, including independent expert groups, think tanks, community groups, government agencies and businesses, to ensure a consensus.
Winning elections is treated as a mandate for a referendum or the status quo. A formal agreement on what constitutes a successful or failed generation ensures an entire record in office must be examined to inform a public referendum. Sample polling is fodder for newspapers and creates false flags for all sides.
The benefit of the 2014 referendum is the process is known and not some ‘what if’ exercise. It has been done before and can be replicated. The issue is agreeing on when and under what conditions.
A formal agreement mechanism on the particulars would build on the lessons of the 2012 Edinburgh Agreement. The benefit of such a framework, even if it was a Memorandum of Understanding, is the business of politics could go back to that other excellent American process: the separation of powers.
Holyrood and Westminster seem to do more when they are vying for control. Tipping the constitutional scales has proven a reasonably successful pursuit in the last ten years by all parties. The Scotland Acts of 2012 and 2016 followed recommendations in the 2009 Calman and 2014 Smith Commissions. The 2007 National Conversation was an early prelude to the 2012 Edinburgh Agreement.
In many ways, that generational cycle Jefferson describes is already in motion. Consider the establishment of the Secretary for Scotland in 1885 and the Scottish Office; the upgrading of the post to Secretary of State appointment in 1926; repeated attempts to introduce a Government of Scotland Bill from 1913; the Scottish Covenant Association and the Scottish Covenant petition in the 1940s and 1950s; the 1979 devolution referendum, the Scottish Constitutional Convention and the Claim of Right in 1989, the devolution referendum in 1997 and changes to the Scotland Act since 1998.
“Laws and institutions must go hand in hand with the progress of the human mind,” Jefferson wrote to Kercheval in 1816. “We might as well require a man to wear still the coat which fitted him when a boy, as civilised society to remain ever under the regimen of their barbarous ancestors.”
In the words of the Federalist Papers, the American Revolution created a new government by “reflection and choice.”
Scotland must do the same, with studied conscientiousness, patience, imagination, and a commitment to the next generation.
Alastair Stewart is a weekly columnist for The Scotsman and a public affairs consultant. You can read more from Alastair at www.agjstewart.com.