Can (and should) we write a Constitution on Google Docs?
For a presumably historic event, the making of a Constitution seems to happen a lot. Each year, approximately 4 to 5 national Constitutions are replaced and another 20 to 30 are amended significantly. The basic tasks in constitution-making — research, analysis, drafting, deliberation, and amendment — are not much different today than they were 200 years ago. Nevertheless, writing implements have changed since the days of quills and parchment. Modern constitution makers look to information technologies such as Google Docs to help them through what sometimes seems to be an Herculean task.
The Challenge of Constitution-Making
I say Herculean because while writing anything collectively can be difficult, the road for Constitutional drafters is almost all uphill. For one thing, the stakes are enormous; drafters attempt to craft higher law that will guide and inspire citizens for generations to come. What’s more, the drafting process involves all sorts of friction. Drafters seek to channel the hopes and dreams of citizens, many of whom have competing values and interests. Constitution makers typically reflect these differences, which leads to something of an adversarial writing process. Distilling a group’s vision is hard enough when their interests are aligned — so how does a polarized group, working at cross-purposes, write together?
The answer is “typically, not very well.” Many of us are familiar with the common pathologies of group writing — redundancy, contradictions, verbosity, and a failure to represent the views of all authors. All of these problems are exacerbated when the authors hold opposing views, as in a constitutional or legislative product. The result is an enormous coordination problem. One question is whether Google Docs can help to mediate conflicts, organize ideas, and produce measurable improvement in the experience and product of participants?
A Test of Two Technologies at a “Constitutional Disneyland”
To explore this idea further, some of my colleagues and I at the Comparative Constitutions Project partnered with Google Docs, International IDEA, and the National Constitution Center (NCC) to host a “Constitution Building Tech Fair” in Philadelphia. There, leading constitutional experts and practitioners came together to discuss how technology can address their currently unmet needs and challenges. The setting was conducive to constitutional thought. The NCC — a monumental space for exploring and commemorating the evolving U.S. constitutional story — sits across from Independence Hall, the hallowed space where the founders labored in the summer of 1787 to draft their document. One of the participants called the site “the Disneyland for Constitutional enthusiasts.” Some of the highlights of the event are caught on a terrific video (below).
As part of the event, we invited seven Constitutional drafters from around the world (Ukraine, Kenya, Iceland, Liberia, South Africa, Argentina, and the United States) to put two of these tools — Constitute and Google Docs — to work. Constitute is a highly-indexed repository of the world’s constitutions, designed to operate hand-and-glove with Google Docs, the industry standard for collaborative writing.
These seven drafters gathered in the NCC’s newly inaugurated “Drafting Lab,” a space that my colleagues and I at the Comparative Constitutions Project helped to develop with the NCC and Google Ideas for exactly this purpose. Our international drafters were provided with a Chromebook and an introduction to Constitute and Google Docs. Their charge: craft a constitutional provision on campaign finance in ninety minutes. Of course, legislators throughout the world struggle long and hard to address the delicate balance of money and representation in electoral politics. So, no pressure, really(!).
Our specific instructions to participants were to use Constitute to comb the world’s constitutions, extract relevant ideas, and export the ideas to Docs. On a Doc, participants would then propose, discuss, and revise one another’s ideas. The result would be a set of ideas that could serve as a basis of discussion for other drafters in various parts of the world.
Some may view this assignment as ill-fated from the start, given its difficult political and technical challenges, but we hoped that the tools would at least ease drafters’ burden. We also came to see the demanding nature of the exercise as something of a stress test for the drafting tools. If these collaborative tools could mediate friction and produce a consensual proposal on a high-stakes, highly politicized topic — all in ninety-minutes— what could they do under more relaxed conditions?
The Results (and an invitation)
What happened? As we requested, our participants scoured the world’s constitutions to identify the various dimensions of the problem. It turns out that some thirty-eight constitutions have something to say directly about campaign finance.
Some of these constitutions go into some detail on the finer points of campaign finance and present a highly varied set of options. So, for example, Costa Rica’s constitution sets up a public financing plan limited to 0.19% of the country’s yearly GDP. Ecuador’s constitution bans any private contributions whatsoever. Argentina requires parties to declare the “source, destination, and net worth” of any of their contributions/contributors. Mexico’s plan must be the most detailed of any, and includes no fewer than seven mathematical formulae (no exaggeration). And so on, but see for yourself here.
Our expert’s ideas drew from these constitutions and each presented a very specific vision for campaign finance law — visions that were sometimes in tension with one another.
Drafters were not shy about hashing out these differences in the margins of the Google Doc as well as face-to-face. The most contentious moment emerged from a debate over whether or not to restrict foreign contributions, an issue that was of particular importance to the African drafters. Ultimately, the group adopted a measure that restricted certain kinds of foreign contributions, along with a host of other provisions for the public financing of campaign funds. Not bad for ninety minutes of work.
But none of the drafters views the document as anything more than a basis for discussion. Even so, we shouldn’t underestimate the value of such a document. Indeed, the proposal provides a very concrete and detailed set of reference points for future drafters, which is more than we often have. How many conversations among co-authors meander through abstract, pie-in-the-sky ideas, only to crash at the deadline with a half-baked formulation? Many, I suspect. With this proposal, drafters can begin to debate some of the elements of campaign finance with a meaningful, concrete set of ideas.
In that spirit, I invite you to add you thoughts to the drafter’s finished product. It’s here, the very Google Doc on which they labored (but now with their comments and tracked-changes incorporated). If you like, please use the comment feature to tell drafters of future constitutions what you think of some of these ideas. As with any proposal, it’s the ensuing dialogue that is most informative and interesting.
Beyond the Laboratory
The laboratory exercise was anything but theoretical. Drafters are involved in similar interactions in real constitutional settings, sometimes with a more relaxed timetable, though not always. I often think about the Japanese constitution, which was drafted in 1946 under U.S. occupation in two weeks(!), and which has persisted intact (without even a single amendment) since that time. Our ninety minutes on campaign finance was probably more time than Japan’s drafters spent on a given topic. On the other side of things, the Myanmar constitution took about 18 years to write.
Regardless of the process, both Constitute and Google Docs are apparently becoming part of the toolkit of modern constitutional design in these situations. At the tech fair, we chatted with Thorvaldur Gylfason, a member of the 25-person committee that drafted a new constitution for Iceland after the country’s financial crash. Professor Gylfason tells a story of his committee’s dependence upon Google Docs to coordinate and their work and craft their document, which he and others still hope to see ratified.
In the case of Iceland, drafters were able to resolve differences rather easily without much contention. But politics in the information age sometimes, and in some places, seems more polarized and feisty than ever. Some may even see the rise of segmented online media, with their echo chambers, as contributing to this rancor. But I wonder if the same information technology that plays host to such feistiness can also help to mediate and organize political conflict? Our limited experience in Philadelphia suggests some reason to be optimistic.