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, 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. 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. 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”. An important component in democratic constitutionalism is an emphasis on the possibility of the members of a political community to themselves change their fundamental rules of association. As also Allan Hutchinson and Joel I. Colón-Ríos have recently argued: “from a democratist standpoint, the merit of a constitution is to be found not so much in its longevity and its force towards stability, but in its capacity for both democratic participation and constitutional transformation. It is not only whether people can take part in constitutional decision‐making, but how easily, how often, and how actively they can do so; there must be adequate mechanisms and processes in place to maximize these opportunities”.
Until recently, the importance of the idea of democratic constitutionalism could be observed almost exclusively in democratizing countries in Latin America and Africa, in which in the last two decades or so quite some constitution-making processes have witnessed innovative forms of inclusive, participatory constitutional politics. These societies often have had to deal with the legacies of authoritarian pasts and forms of deep (ethnic) divisions. Since 2008, however, what is by many regarded as an advanced and thoroughly consolidated democratic regime, if not one of the most wealthy countries in the world, has embarked on what in some of its facets might be seen as the most radical form of democratic constitutionalism “in action”. An enduring series of civic protests has involved a strong critique of not only the political establishment’s handling of the economic crisis and its run-up, and forced the government to resign in early 2009. Civic resistance has also called for a revision of the ground rules of the Icelandic democratic community. One of the more immediate results of the so-called pots and pans revolution in Iceland has been an original attempt at rewriting the Icelandic constitution by means of popular constitution-making.
Some facets of the current constitution-making process in Iceland can be understood as unique, but at the same time, so I believe, the process highlights significant and more general tensions intrinsic to modern constitutionalism. Such tensions can equally be observed – even if in different ways – in other so-called advanced (as well as in some new) democratic societies, and thus are of wider significance, beyond the in many ways peculiar case of the current Icelandic “moral revolution”. Such constitutional frictions might be understood as forms of what I call “constitutional anomie”, that is, a distance between existing, institutionalized constitutional orders, on the one hand, and wider societal perceptions, interpretations and tendencies, on the other. Constitutional anomie can be seen as indicating forms of constitutional failure. One form of constitutional anomie that manifests itself in the Icelandic case is that of the idea that the constitution is archaic and obsolete, and does not provide the adequate means to regulate democratic society. A second form is the idea that the current Constitution does not provide adequate moral guidance to the Icelandic community and does not reflect its key values. Another dimension of constitutional anomie relates to the idea of self-governance and legitimacy, which in the Icelandic case boils down to the view that the current constitution is not of the Icelanders’ own making. Yet another – related – dimension of constitutional anomie is the idea that it should be the people itself that actively gives the political community its fundamental rules, or at least should have democratic channels to be able to participate in the formulation of fundamental rules; in this case, the Icelandic people deliberating and formulating the ground rules of the Icelandic democratic community. These are some of the tensional dimensions that play a role in the current civic constitution-making process in Iceland, which, I believe, are of wider significance for other democratic societies in which the role of constitutionalism is being debated.
Constitutional Politics in Iceland
The Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document. A parliamentary committee set up for the purpose has never been able to gather sufficiently widespread support for changing the 1944 Constitution. The perception of the constitution’s transitory nature results inter alia from it having been de facto adopted in an emergency situation (the Second World War) in which only the minimally necessary changes were made to transform Iceland from a country dependent on the Danish monarchy into an independent republic. Another aspect that fed into the idea of the constitution’s transitory nature is the fact that it is largely based on the Danish constitution and thus does not reflect the autonomy of the Icelandic political community. Things have changed radically with the 2008 economic crisis and its devastating effects for the Icelandic economy. One admirable consequence of this crisis has been the attempt at political-moral renewal through the reformulation of the fundamental values of the Icelandic constitutional regime. The story of the Icelandic constitutional “revolution from below” is clearly a unique but at the same time conflictive process, which raises complex questions about constitutional change and innovation. A good part of the thrust for political and constitutional renewal came from the Icelandic population, that is, from individual dissenting citizens, intellectuals, and civic organizations. One key early activist and initiator of the revolution was Hördur Torfason, a musician, songwriter, and human rights activist. People of a variety of backgrounds, representing various ideas and groups, such as for instance anarchists, brought in different justifications to engage in the “pots and pans revolution”, which consisted in enduring protests and extensive resistance to the political establishment as well as critique of the status quo.
An early manifestation of civic action was the organization of a National Assembly or national “brainstorming session” by the so-called Anthill movement, a collective of grassroots movements, in November 2009. The aim of this event was to discuss the future and main defining values of Iceland (the slogan of the event read: “National Convention – a date with the future”). Organizers included Gudjón Mar Gudjónsson, a young entrepreneur with extensive ICT skills, and creator of the Ministry of Ideas, a civic movement promoting participatory democracy. Of the participants of the National Assembly, 1,200 were randomly selected from the Icelandic census, and 300 were deliberately selected from among political institutions and relevant associations. The highly innovative format – small, modified group discussions identifying main themes and core values, which were then voted on in the plenary – led to the identification of a number of themes and values that were to designate an Iceland of the future. The nine themes that were identified as particularly significant for Iceland were: Education, Economy, Equal Rights, Family, Environment, Public Administration, Welfare, Sustainability, and Opportunities. The four core values that were identified were: Integrity, Equal Rights, Justice, and Respect. While these outcomes might seem abstract and general, and contain a highly universalistic flavour (and thus not necessarily identifying purely Icelandic ideals), the importance of the event lay probably much more in the deliberative and civic-participatory nature of the session. In other words, one of the underlying themes was clearly the need for a politics from below – in contrast to elite and institutionalized politics – as an answer to the various political failures and forms of negligence that were at the basis of the economic crisis of 2008. In this, the event became an important inspiration for those who favoured the idea of constitution-making as a way to address the crisis and to provide Iceland with a new and citizen-driven and locally engendered set of fundamental rules and values.
It should be mentioned that the transitory nature of the Icelandic constitution provided, however, not only fertile ground for a grassroots revolution, but it also reignited a political project for constitutional revision, as some distinct political forces had been endorsing a project of constitutional change for some time. In particular, the new prime minister, Johanna Sigurdardottir (Social Democratic Alliance), who heads the centre-left government that came to power in April 2009 – after the collapse in January 2009 of the prior, conservative government (headed by the Independent Party) – had been pressing for constitutional reform for years. The new government’s agenda included the idea of establishing a special Constitutional Council which was to revise the Icelandic Constitution. A bill to this extent was submitted to parliament, and adopted in June 2010 after extensive debate.
The Act on the Constitutional Assembly (ACA) that was adopted in June 2010 not only stipulated the election and mandate of a Constitutional Council but also proposed a Constitutional Gathering on constitutional matters, a one-day civic-participatory event to be held before the elections of the Constitutional Council, and to be prepared by a constitutional committee of seven members. The Act stated that the ‘National Gathering shall endeavour to call for the principal viewpoints and points of emphasis of the public concerning the organization of the country’s government and its constitution; the committee shall process the information collected at the National Gathering and deliver to the Constitutional Assembly when it convenes’ (Interim Provision/Act 2010). The National Gathering was thus to gather information among citizens regarding the main themes and core values for a new constitution. In this, the National Gathering was clearly strongly inspired by the November 2009 Assembly, which also came through in the cooperation in the Gathering’s organization by members of Anthill. The originality and unprecedented nature of the whole process lies clearly in the explicit emphasis on citizens’ driven constitutional reform, a form of ‘crowd-sourcing’ in the form of a civic brain-storming session, and the explicit exclusion of members of political parties to participate in either the National Gathering or to stand for elections for the Constitutional Council. The citizen-driven constitutional revision process is unique in any established democratic society (other recent innovative, civic examples of constitution-making regard Latin American as well as African countries, but not North-American or European ones). The constitutional dimension that is clearly played on is the idea of self-governance and a perception of constitutionalism which understands civic participation as a necessity in order for a constitution to become a vibrant reflection of a political community’s political imaginary and self-understanding.
The Constitutional Gathering was held on 6 November 2010, organized amongst others by Agora, a non-profit organization headed by the aforementioned Gudjón Mar Gudjónsson. 950 randomly selected Icelanders participated in the event, and discussed fundamental values and distinct constitutional categories in 128 roundtables.
Source: Agora/Ministory of Ideas
The main themes that resulted from the roundtables were based on “word clouds” which themselves reflected those themes mentioned most frequently by individual participants. The outcome was the identification of eight main themes for a new Icelandic constitution (country and nation; morality; human rights; justice, well-being and equality; the nature of Iceland, conservation and utilization; democracy; division of power, responsibility and transparency, and peace and international cooperation). These themes were then to be one of the bases of the deliberations of the Constitutional Council. This Council was elected on 27 November, when 37 percent of the Icelandic electorate selected up to 25 candidates among 522 self-enlisted candidates by means of a proportional STV system. The elections had been advertised by the National Electoral Commission twenty-four days earlier, while mostly modest campaigns had been held by the candidates (their campaign money could not exceed 12.500 Euro). The novelty of these elections clearly lay in the explicit exclusion of politicians from candidature and the idea of establishing a purely citizen-based constituent assembly. Article 6 of the ACA on eligibility read “[p]ersons who qualify to stand for elections to the Althing may stand for election to the Constitutional Assembly. However, the President of the Republic of Iceland, members of parliament, their alternates, cabinet ministers and members of the Constitutional Commission and the Organising Committee are not eligible to stand for the election”. One senses a flavour here of “anti-political politics” as it emerged for instance in the 1970s and 80s in East-Central Europe. An important aspect of such a view of politics is the idea of the self-empowerment and responsibility of citizens. There were, however, major problems with the elections, in that the turn-out was particularly low (normal national elections see turn-outs of around 85%) and, at least according to some skeptical observers (probably exaggerating somewhat), procedures had been far from flawless. The latter led to complaints to an ad hoc, executive committee of the Supreme Court, which suggested to annul the elections on 25 January 2011. In this very insecure situation for the Constitutional Council, the parliament decided after heated debate to install a Constitutional Council by means of parliamentary appointment. The ACA was in this repealed.
Clearly, the set of intricate events has weakened the social legitimacy of the Constitutional Council, starting with the low turn-out and ending with the Council’s political appointment rather than its popular election. Nevertheless, the Council started its work in April 2011 on the basis of a wide range of materials, including the conclusions of the National Gathering, a detailed report by the seven-member Constitutional Committee which had also been set up in the ACA, and an extensive electronic database provided by the latter. One could argue that part of the civic-participatory potential was in part recuperated (and it should not be forgotten that the members of the Council were indeed ordinary citizens or at least non-politicians or constitutional lawyers) by means of an exceptionally open and transparent mode of working. The Council had an active website as well as Facebook page, which could be used by citizens to provide comments and suggestions, while draft proposals were posted on line. Citizens could thus closely follow the evolution of the debate on the constitution. What is more, active usage was being made of the afore-mentioned Facebook, as well as of Twitter, Youtube, and Flickr. The whole process has clearly been very innovative and open, even if the argument that this was an example of “crowd-sourcing”, made by many a foreign journalist, appears to be not accurate as the taking up of citizens’ comments in the final draft seems to have been ultimately fairly limited and the wider role of the public was mostly consultative rather than truly participative.
Moving from the process of constitution-making to the substance of the actual draft, it seems fair to say that although there are a number of civic-democratic channels that have been included in the constitution, the overall nature of the text – including the civic-participatory dimension – does not differ drastically from many other constitutions in Europe. The most conspicuous aspects regard the articles 32-36, which deal with the preservation of Icelandic cultural heritage and treat the natural resources as common property. It is interesting to observe, in this respect, that the radically participative and grassroots form of constitution-making has in this case not led to the adoption of a radically participatory form of democracy in constitutional terms. The most radical proposals in civic-participatory terms can be found in the articles 65 and 66. Article 65 gives the possibility to organize a petition by at least 10 % of the electorate to call for a referendum on legislation passed by the parliament. Article 66 gives the possibility for 2 % of the electorate to submit an item on the parliamentary agenda, while 10% of the electorate may submit a legislative bill to the parliament. Article 113 dealing with constitutional revision introduces an obligatory referendum regarding constitutional amendments. While the civic-participatory thrust of these articles seems clear, at the same time, the draft constitution introduces a novel legalistic element: an institution resembling a constitutional court (the Lögrétta) with ex ante powers. This institution can be asked for an opinion on the constitutionality of legislative bills by the parliament or parliamentary committees. This could be seen – at least in theoretical terms – as in partial tension with the parliamentary democratic form mentioned in article 1 and the civic-participatory dimension of the articles 65 and 66.
The draft constitution has been consigned to the Icelandic Parliament in July 2011 and is now pending. The Constitutional Council responsible for the draft has emphasized that it has been adopted in full consensus within the council and has called for a referendum on the draft. In October, the prime-minister has indeed suggested a public consultation on the draft constitution, to be held together with the Presidential elections scheduled for June 2012. On 16 January, also the chairman of the parliamentary constitutional and supervisory committee, which has been examining the draft since the autumn of 2011, has argued that it is not unlikely that the text will be put to a national referendum. The Icelandic parliament will not debate and vote on the draft before the autumn of 2012. Be that as it may, the formal adoption procedure would be the one outlined in article 79 of the current constitution.
What is clear is that – even in the worst-case-scenario in which the draft constitution is ultimately dismissed by the Icelandic Parliament – the constitution-making process has been innovative and in many ways unprecedented, and will undoubtedly have important repercussions for Icelandic democracy. One example of this is the formation of a new political party, which includes members of the Civic Movement, and endorses a new constitution reflecting the draft. But the experiment clearly also entails wider lessons regarding the role of constitutions, and of citizen participation, in contemporary democracies. The whole process of Icelandic grassroots constitution-making has been original in its civic-participatory nature and in its explicit rejection of formal political interference. While not living up to more radical expectations of civic involvement, the process did raise the interest and participation of the wider citizenry (e.g., written comments submitted through the new media totaled 3600, while suggestions added up to approximately 370). And despite the lack of a radical-democratic dimension in the new draft, the text is clearly an improvement, not least with regard to civic-participatory channels. The draft addresses a number the issues I have indicated with the notion of constitutional anomie: a more up-to-date, clearly and accessible written text; the attempt to reconstitute a dimension of moral guidance to the constitution; the attempt to enhance a substantive participatory dimension in constitutional terms; and finally, in terms of the draft’s making, the reflection of autonomy and self-governance through an Icelandic, citizen-driven constituent convention.
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Bellamy, R. (2007) Political constitutionalism: a republican defence of the constitutionality of democracy, Cambridge University Press.
Blokker, P. (2010), ‘Modern Constitutionalism and Constitutional Anomie in the New EU Member States’, Quaderni del Dipartimento di Sociologia e Ricerca Sociale, Università degli Studi di Trento.
Blokker, P. (2011), ‘Modern Constitutionalism and the Challenges of Complex Pluralism’, in: G. Delanty and S. Turner (eds), The Routledge International Handbook of Contemporary Social and Political Theory, Routledge.
Dworkin, R. (1995), ‘Constitutionalism and Democracy’, European Journal of Philosophy, 3 (1) 2-11.
Falk, B. (2011), ‘Between past and future. Central European dissent in historical perspective’, Eurozine, available at: http://www.eurozine.com/articles/2011-05-26-falk-en.html.
Habermas, J. (2011), ‘Europe’s post-democratic era. The monopolisation of the EU by political elites risks reducing a sense of civic solidarity that’s crucial to the European project’, The Guardian, available at: http://www.guardian.co.uk/commentisfree/2011/nov/10/jurgen-habermas-europe-post-democratic.
Hardt, M. and A. Negri (2011), ‘ La sinistra come potenza costituente’, Micro-Mega, 8/2011.
Hutchinson, A.C. and J.I. Colón-Ríos (2011), ‘Democracy and Constitutional Change’, Victoria University of Wellington Legal Research Paper No. 16/2011.
IDEA (2006), Participation in Constitution Making, available at: http://www.idea.int/resources/analysis/const_making_particip.cfm
Scheppele, K.L. (2011), ‘Hungary’s Constitutional Revolution’, New York Times, blog Paul Krugman, available at: http://krugman.blogs.nytimes.com/2011/12/19/hungarys-constitutional-revolution/.
Thorarensen, B. (2011), ‘Constitutional Reform Process In Iceland’, paper presented at the Oslo-Rome International Workshop on democracy, available at: http://www.uio.no/english/research/interfaculty-research-areas/democracy/news-and-events/events/seminars/2011/papers-roma-2011/Rome-Thorarensen.pdf.
Tully, J. (2001) ‘Introduction’, in A-G. Gagnon and J. Tully (eds.) Multinational Democracies, Cambridge University Press 1-34.
 See, e.g., Dworkin 1995.
 See, e.g., Bellamy 2007.
 Another relevant project is that on constituent power of the Italian scholar Antonio Negri. With regard to the possibility of a constituent power of progressive political forces, he notes: “the third point on the basis of which an alternative left needs to organize its constituent capacity consists in the overcoming of political representation as a profession… The expansion of the instruments of direct democracy is fundamental and can only expand towards the inclusion of the themes of the security of the life in common and the functions of protection and control of both privacy and social relations. It is clear that also the functions of the judiciary are to be opened up to direct democracy, removing the illusion that a professional legal apparatus could have guaranteed independence and farsightedness in the face of economic privilege and social superiority’ (Hardt & Negri 2011; my translation).
 This is an aspect that is for instance also discussed in the case of the Netherlands, where some view the language of the 1814 Constitution as out of touch with current times. Also the far-going changes in the British constitutional system were to some extent inspired by the idea that the traditional system of common law was out of touch with the challenges of modern times.
 In a kind of negative comparison, it could be argued that moral guidance also plays an important role in the current Hungarian “constitutional counter-revolution”. See for one recent statement, Scheppele 2011.
 There are other examples of “advanced” democracies where this dimension has recently come into play. Some of the inspiration for the constitutional changes in the British case is to be found in the idea of democratic participation, while also in the Netherlands some have argued along these lines: ”In een volwaardige parlementaire democratie maakt het volk zelf zijn Grondwet.” [In a fully fledged parliamentary democracy, the people makes its own Constitution] (see http://www.nieuwegrondwet.nl/). Also the (failed) European attempt at constitution-making was evidently driven by an idea of public deliberation and civic participation. One of the main protagonists of the constitutionalization of Europe, and proponent of the idea of ‘constitutional patriotism’ in which civic participation plays a fundamental role, Juergen Habermas, currently warns for the dangers of excluding the citizens from a European ‘post-democratic politics’ (Habermas 2011).
 One serious attempt of creating a new draft has been made, but the constitution was never implemented. The fact that the Icelandic Constitution has never been widely revised probably has also to do with the difficulty of doing so. As Article 79 states: “Proposals to amend or supplement this Constitution may be introduced at regular as well as extraordinary sessions of Althingi [Icelandic Parliament, pb]. If the proposal is adopted, Althingi shall immediately be dissolved and a general election held. If Althingi then passes the resolution unchanged, it shall be confirmed by the President of the Republic and come into force as constitutional law”.
 The grassroots movement was perhaps not in all facets a spontaneous popular reaction to the crisis. It would in this be worthy to study the variegated composition of the popular protests. As one member of the Constitutional Council, whom I interviewed in August 2011, argued, an important role was played by more ‘elitist’ persons, including academics and writers, who clearly had more familiarity with acting in the public sphere.
 A particularly significant and alarming episode regards an early eruption of protest in December 2008, when some 30 dissenting citizens set out to use their constitutional right to publicly assist at a parliamentary session in the House of Parliament, with the intent to publicly read a critical declaration, but were stopped by a policeman and guards. Nine persons were arrested and face heavy charges (from 1 to 16 years of imprisonment), not least on the basis of being charged with violation of section 100 of the penal code which stipulates that anyone found guilty of “attacking the sovereignty of Parliament” will be sentenced to a minimum of 1 year imprisonment. In February 2011, the Reykjavik District’s Court ruled that four dissenters were found guilty of minor charges, and five not guilty. The law case against the “Reykjavik 9” has led to widespread public criticism, expressions of solidarity, and a recent documentary highlighting the absurdity of the charges.
 Main arguments against the undertaking of revising the constitution were its inappropriateness in times of crisis and an insistence on the parliament’s prerogatives in constitutional politics, see Thorarensen 2011.
 Switzerland is a partial exception in that 50,000 citizens can initiate a revision of the constitution (IDEA 2006). Even if the ‘fear of the masses’ with regard to constitution-making processes is now much less outspoken than in the immediate post-WWII years (IDEA 2006), and public participation of some form is now widely endorsed, in particular in the case of democratizing and post-conflict societies, in most cases civic participation takes the form of consultation (the Kenian National Constitutional Conference is one example of an inclusive, but not citizen-driven assembly). The Icelandic case has the potential to be unique (depending in a way on what happens with the Draft Constitution produced by the Constitutional Council) in that the Constituent Assembly is made up of the “people” rather than politicians and/or experts.
 The Constitutional Council took into account many European constitutions in its deliberations.
 By way of comparison, article 75 of the Italian constitution allows for citizen-initiated referenda: “A general referendum may be held to repeal, in whole or in part, a law or a measure having the force of law, when so requested by five hundred thousand voters or five Regional Councils”.
 By way of comparison, article 71 in the Italian constitution allows for popular bills: “The people may initiate legislation by proposing a bill drawn up in sections and signed by at least fifty-thousand voters”.
 The consensual basis of the draft might enhance its legitimacy, but might also indicate a reason for the lack of a radical democratic dimension of the draft. In other words, a more general problem of deliberation might have come into play, that is, a “taming” scenario in which radical dissenting views ultimately succumb to the more conservative views of a majority.
 Much depends on the favourable attitude of the governing parties, aided by support of members of the opposition. Also the way in which the draft will ultimately be dealt with is obviously of great importance, that is, the adoption of a largely unrevised text, or, alternatively, the more or less extensive revision of the draft according to expert opinions and parliamentary considerations. A complete rejection of the constitutional draft seems not likely, in that a revision of the constitution was a campaign promise of in particular the Social-Democrats. As one of the members of the Constitutional Council put it in an interview with me at the end of August 2011, as long as the current government remains in power, some impact of the constitutional project seems likely. This member of the Council also pointed, however, to important problems with regard to the legitimacy of the Council (badly harmed by the allegedly flawed elections), and, one might add, the potential frictions resulting from what some see as a lack of cooperation between the Council and the parliament.