What makes the Dutch, Dutch? A constitutional perspective.

Ever since the rise of the Christian Democrats in the beginning of the 2000's, the issue of 'Normen en Waarden' has been a topic in the elections. The CDA is widely seen to have won the first of a line of elections under the leadership of Balkenende by framing the problems in Dutch society as the result of individualistic attitudes, propagated by the preceding cabinets. As with a lot of electoral rethoric, there was no real explanation on what that meant, but the answer was a return to Dutch Values (Normen en Waarden). A standard question in interviews and election debates has since been: "Dear party leader, what do you see as Dutch Values?"

For citizens of a number of different countries, the allusion is clear. Normen en Waarden is identity politics in its most embryonic form. An American would translate a question on American Values into a response on what it means to be American. Since the days of Big Society, most British citizens would equally start giving a vision on Britishness. Still, it is only after 17 years that a political leader has dared to follow the Values debate to its logical conclusion. Shockingly, it wasn't Geert Wilders who opened that door. Rather, it was the leader of the same party that brought us 'Normen en Waarden' who started talking about Dutchness. Although the media have smirked at his proposals for Dutch children to stand to attention and sing the national anthem with hand to heart, it has remained a talking point in this election cycle. So let's explore the Dutch identity.

Why is discussing Dutchness so difficult?

It would probably be an interesting book proposal to have writers discuss the Dutch identity through anecdotes. To offer a small insight, no Dutch national in my department would even think about describing his or herself as 'Dutch'. There is, outside of football, no such thing as 'proudly Dutch'. My favourite description remains: "Being Dutch means that your practical approach to life and politics leads you to dismiss idiotic questions such as 'What does it mean to be Dutch?'" The question rises: "Why is it so difficult to discuss Dutch identity?". As a legal scholar, I would like to propose a constitutionalist view on this.

Let us accept that most national identities are merely social constructs. A way to differentiate 'us' from 'them'. There are many ways in which this can be done. Lawyers will be aware of the language laws that tried to forge a French and German identity. One of the most prominent ways in which identity is formed is through an (implicit) social contract. I'll leave discussion on shared history to those better equipped to discuss that point. But let us take a legalistic view. The jewish people are probably one of the oldest examples. They have a contract with God, giving laws and binding them as a (his) people. The American Constitution is a similar contract, only between the people themselves, "We, the people {...}". Although history has made it problematic for Germans to approach national pride in the same way, the position of the Constitutional Court and the freedoms protected by the German Constitution are clearly regarded as unassailable. Conversely, when the discussion on identity falter, we equally see a reliance on these contracts in an attempt to secure unity. The Catalan people are kept into greater Spain through reliance on clauses in the Constitution. In the 'Better Together' campaign in the UK, the history of the Act of Union surfaced multiple times.

Constitutions are, amongst all the other things that they can be, the testament of one singular moment in which a people have declared that they are one. They do so by declaring what values they share. To put it a bit more honestly, constitutions tell the story of why you are better than all your neighbours, who are therefore NOT part of your club. The Netherlands have had plenty of moments which could have given rise to a strong national identity. We have fought, and won, a 80 years long war against a superior aggressor. During that war of indepence, we built towards our Golden Age. We early on became a nation so open to ideas and enterprise, that we could command a sum of money that vastly outstripped our territorial value to build a vast trading empire. Perhaps our greatest claim to fame, the British hated us. Yet there was never an explicit moment in which 'The Dutch' laid down what they were.

Recently, the leader of the Christian Democrats referred to the 'Plakkaat van Verlatinghe', our Declaration of Independence. This is true, but although Americans are proud of the Declaration, it is the Constitution that they cite as the proof that America is the greatest country on earth. Conversely, the Plakkaat is very pratical in its declaration and reason to secede from the Spanish crown. The more recent Dutch attempts of constitutionalism have similar problems. After a succesful period as one of the first republics in history, the end of the Napoleonic era brought a fear in the Dutch well-to-do and nobility that we needed to have a monarchy to secure stability. There was no 'national moment' behind the introduction of the monarchy, if anything that identity was forged after Willem I was put into place. The constitutions from 1815 until 1848 reflect this practical approach. They deal with organising the state, the relationship between King and Parliament, and a very short rights catalogue. Where the other nations of Europe were in the throws of revolution, identity shaping events, we were going the other way.

Constitutionality, now!

The value of the constitution remains ambiguous to this day. It is not a social contract amongst the Dutch. The values that lie therein are of a practical nature, all can be moderated and limited as it suits the situation. Dutch children are rarely taught what constitutional values mean. And why should they? As the Dutch courts are prohibited from testing laws against the constitution. There is no possibility for constitutional review. All discussions on this point are, in a very Dutch and practical manner, waved away. Dutch courts can make use of international treaties to test acts by government, thereby securing rights. But that means that courts are implementing outside values, not Dutch ones. Nor is there a Constitutional Court which can pronounce on what Dutch constitutional values are. From the perspective of the constitutionalist, it isn't possible to say what it means to be Dutch, because the Dutch have never take the time to write it down.

Does this matter in the current electoral debate? On the one hand, the debate on Dutch identity has never really bothered citizens to a great extent, the ambiguity suits them. To most voters, the discussion will therefore remain a purely hypothetical one. I would dare say that even if CDA forces the point of mandatory anthem singing, most people will just not do it. On the other hand, the rise of populism has made it clear that there are some problems with the Dutch system. We say that we hold certain values dear, but there is no way in which to enforce them. A populist majority can implement discriminatory laws without engaging with the constitution. If judges oppose them, international regimes will be blamed, an occurence all to familiar in the UK at the moment. It has been said that the Netherlands has been a country that from the Golden Age has benefitted from open borders, for people, ideas and money, but this isn't reflected in any (judicially enforceable) system. Dutch children are told that racism and discrimination are prohibited, but if we need to tell them why, there isn't an easy document to which we can point. "Yes it is also in the constitution, but that doesn't really matter. However, please have a look at these bylaws that implement international agreements." If the German constitutional experience has taught us anything, than it is that constitutional identity does not need to come through centuries of culture. If the Netherlands want to know what it means to be Dutch, they should try and write it down. Until that day, the political discussion is as vague as it is useless.