Constitution needs to be changed

Congratulations on the 17th of May! And as I imagine they say in law faculty, congrats on the Constitution! This may not be the day for criticism, but the Constitution is--unsurprisingly for a 210-year-old-- chauvinistic and ripe for change.

Don't get me right. I'm advocating reform, not retirement. There's a lot of good to be said about the Constitution. It serves as a bulwark against anti-democratic tendencies. The Constitution is “cool hands on politically popularity-seeking pans that can occasionally boil over,” as Tomas Midttun Tobiassen and Anine Kierulf recently phrased it in a Chronicle in Aftenposten.

It cherishes those who are underrepresented in the political system. The spirit of democracy is that everyone should have their voice represented and that minorities should also have their fundamental rights safeguarded. Human rights are incorporated into the Constitution to show the way when the practices of the majority conflict with the spirit of democracy.

Admittedly, it's hard to know the extent to which the Constitution actually lives up to the ideals. Democracies can be undermined and the reason they last is due to culture more than constitution. The rights of minorities have been routinely trampled on for two hundred years, with the blessing of courts.

Still, that the vast majority of successful countries have constitutions makes it natural to think that they play a positive function, especially in times of strife. Modern Norway's biggest regime change, the transition to parliamentarism, occurred after the Selmer government and the Swedish king were forced to their knees through impeachment; a regime change within the rules of the rule of law.

There is no need to retire a 210 year old. But that doesn't mean everything is okay. Despite getting itself an overhaul in 2014, the Constitution is strikingly chauvinistic.

If one of the essential functions of the Constitution is to safeguard the fundamental interests of groups that are not heard in the political system, one should expect that those who have not yet been born have the strongest protection.

Climate is the most obvious case in which the interests of future generations may clash with our interests. Most of the impact of the climate measures we are introducing today will take place in a hundred years. None of those affected by the absence of effective policies have the right to vote. We see this in climate policy, which came late and is still hopelessly ineffective.

The Brundtland Commission put it best: “We act as we do because we can escape with impunity from it. Future generations do not have the right to vote in our elections; they have no political or economic power; they cannot oppose our decisions.”

The “aftergenus” was admittedly given a protection in section 112 of 2014. It states that “Nature's resources should be allocated on the basis of a long-term and versatile consideration that safeguards [...] also for posterity [the right] to an environment that ensures health, and to a nature in which production capacity and diversity are preserved”.

However, the first time section 112 was up in the Supreme Court, the Supreme Court considered the paragraph then that it gave Parliament the maximum leeway in even assessing whether their actions are in line with the interests of posterity.

This is in stark contrast to the Constitutional Court of Germany, which in 2021 deemed large parts of German climate policy unconstitutional. As Hannah Cecilie Brænden writes in an article in Lov og Rett, the Court highlighted that long-term considerations tend to disappear in day-to-day politics and that future generations do not have a voice of their own in the political process, as central considerations to limit the will of the majority.

A healthy natural environment is also not the only thing we owe the future. We are developing technologies that are in danger of threatening both our own interests and those of the future. Worldwide, the most obvious problem is nuclear weapons. The new dangers come from biotechnology and artificial intelligence.

For example, it is becoming easier and easier to make deadly and infectious viruses in the garage. With current regulations, there is little we can do to prevent the posterity from inheriting a society that is radically deteriorating. Whether all disaffected groups of society can create viruses erodes the state's monopoly on violence and ability to keep citizens safe. The result could be the collapse of civilization.

Existential risks stand out. Those are the threats that could wipe out humanity or destroy our civilizational potential forever. How should we deal with these threats in a political system?

One method is to envision a hypothetical constitutional assembly made up of all the people who could ever live, if we play our cards straight. How would this Constitutional Assembly choose to prioritize? If our generation fails to hand over the land to all the generations that may come after, we are seriously failing in our commitments.

A minimum requirement of such a constitutional assembly would be to develop institutions that promoted the interests of posterity. Today we have none.

We have a Children's Ombudsman, but no Ombudsman for future generations. We have a perspective message that says something about the state of the economy over the next fifty years, but no message that says anything about the biggest threats we face in the long term. We have a constitutional protection that ensures a healthy natural environment, but none that ensures adequate standards of living or existence.

For the Constitution to play its function, it must be extended to apply to perhaps our most important obligation, that of posterity.