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What makes the Dutch Dutch? A constitutional perspective.

Ever since the rise of the Christian Democrats (CDA) in the beginning of the 2000′s, the issue of ‘Normen en Waarden’ has been a topic in the elections. Jan Peter Balkenende was the first to frame the problems in Dutch society as the result of individualistic attitudes propagated by the preceding cabinets. As with a lot of electoral rhetoric, there was no precise definition of what the problem was, but to be sure 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?’ And today, it is not Geert Wilders, but the current leader of the same party who brought up the idea of having Dutch children  stand to attention and sing the national anthem with hand to heart.

Normen en Waarden is identity politics in its most embryonic form. At the same time, it’s more complicated than that. Let’s take a few minutes to explore the Dutch identity.

Dutch football

Proud to be Dutch? In football, perhaps.

No Dutch national in my department at the University of Groningen would even think about describing himself 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?” ‘ But why is it so difficult to discuss Dutch identity? As a legal scholar, I would like to leave the issue of shared language and history to those better equipped to discuss that point, and content myself 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. One of the most prominent ways in which identity is formed is through an (implicit) social contract. 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, between the people and itself. ‘We, the people {…}’. Although history has made it problematic for Germans to approach national identity in the same way, the contractual character of the ‘Grundgesetz’, the freedoms it protects and the position of the Constitutional Court strongly contribute to form the social bond across the nation.

Conversely, when identity becomes problematic, we see a reliance on these contracts in an attempt to secure unity. For the time being, the Catalans are kept within 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, amont 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 can therefore NOT be part of your club.) Strangely, the Netherlands, despite plenty of suitable moments in their history, never explicitly put into writing ‘who we are’.

Plakkaat_van_Verlatinge

The ‘Plakkaat van Verlatinghe’ – not really a constitution.

Recently, the leader of the Christian Democrats referred to the ‘Plakkaat van Verlatinghe’, our Declaration of Independence of 1581. Fair enough, but the Plakkaat is actually a very pragmatic declaration listing the reasons to secede from the Spanish crown. Later, when 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 no ‘national moment’ either behind the introduction of the monarchy. If anything that identity was forged after Willem I (to whose patronym, by the way, we owe the orange jerseys of our football team) 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.

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? 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 taken the time to write it down.

Does it at all matter? On the one hand, the debate on Dutch identity has never really bothered citizens to a great extent, the ambiguity seems to suit them well. To most voters, the discussion will therefore remain a purely hypothetical one. I would dare say that even if the 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, they may be blamed as ‘enemies of the people’, as the UK and the US are now teaching us. It has been said that since the ‘Golden Age’ the Netherlands have benefited from borders that were open to 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.”

The hilarious 'Netherlands Second!' clip (click on the picture). Is self-mocking irony typically Dutch?

The hilarious ‘Netherlands Second!’ clip (click on the picture). Is self-mocking irony typically Dutch?

If the Dutch really want to know what it means to be Dutch, they should try and write it down. Without a text of reference, the political debate about the identity question is as vague as it is useless. This being said, in the current climate writing this text would certainly not be a walk in the park, and I would not recommend opening such a debate right now. Until today, the ambiguity and flexibility of our national identity has served us rather well.



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