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Why we don't need a written constitution

29 June 2018 - By Thomas Gibbons

Should New Zealand have a written constitution? It’s a perennial debate, but one most useful for law students. “Wow! New Zealand is different? Why aren’t we like those other countries? If we were to have a written constitution, what would we include? And let’s not forget [insert unique cultural or historic factor here]! Hey, let’s write one.”

I’m sceptical, but I’m allowed to be, especially when the arguments seem to boil down to:

  1. Some experts want one;
  2. There are threats to democracy overseas;
  3. We need to understand our constitution better.

These kinds of ideas coalesce in the recent article “New Zealand democracy vulnerable to overseas trends, says Sir Geoffrey Palmer”, (LawTalk 917, May 2018, page 76). I happen to think things are actually pretty good here, constitutionally. Let’s pause and reflect.

The fact that some experts want a constitution is actually fairly meaningless. I’ve nothing against expertise (I could bend your ear for quite a while on unit titles, covenants in gross, or subdivisions), but isn’t this something we should want built from the ground up? Is there any real sense of public pressure or drive? Further, it’s not something there’s any expert-based consensus on: it’s more a matter of opinion.

There are threats to democracy overseas, but these touch nations with written and unwritten constitutions alike. Australia has a pretty good written constitution, but a high degree of leadership turbulence, and something approaching a crisis around citizenship issues for Parliamentarians. The United States has a very old and very venerable written constitution, to borrow Bagehot’s phrase, but it hasn’t stopped questions about Russian interference in elections, or whether President Trump can fire special counsel Robert Mueller or pardon himself. The United Kingdom lacks a written constitution, but still has Brexit, and there are autocracies or lifelong leaders in many countries, whether they have written constitutions or not. Arguably, these are questions of political action – often of political actors – rather than questions of a particular constitutional model. Like I said, looking at these kinds of examples, things look pretty good here.

A chimerical argument

The fact that our constitution is hard to find is also a chimerical argument. The United States and Australia each have a single written document that can be called “a constitution”, but they each also have a broader edifice of constitutional law, contained in decided cases, other legislation and so on. Why would things be different in New Zealand? If we enacted a single written constitution, we’d soon build up a series of cases interpreting – and often complicating – that constitution. That’s unavoidable, and having a single written document doesn’t necessarily make the broader edifice of constitutional law any more accessible. We don’t have a long string of cases on the first amendment, or its component parts, the establishment clause, the free exercise clause, and so on. Thinking about this kind of example, things look pretty good here.

The arguments, then, almost always, circle back to the notion that we need to understand our constitution better: a goal “for the elements of democracy to be better taught” (Palmer, quoted in the article above). I agree. Our constitution, and broader issues of civics, should be taught in schools. Then, let’s have Facebook ads, and constitutional snapchats. Even better, let’s bring our constitution to rugby games as well: the national anthems, a reading from our constitution, and then the haka. But wait – we don’t need a written constitution for that.

Palmer seems to be saying that he and Andrew Butler (in their 2018 book Towards Democratic Renewal) really want two things.

First, they want a statement of values – of democratic, liberal values. This is less about a single written constitution than a statement of nationhood, or at least, a statement of why things shouldn’t go bad here. Second, they want judges to have broader powers to strike down legislation. Now, I could argue all day about why the Canadian notion of a “constitutional conversation” is better than the United States system of judicial review, and why the appointment of Gorsuch over Garland was a travesty, but let’s not forget, that’s what you get with a written constitution. I’d rather have parliamentary supremacy than judicial supremacy, and I’d rather not have a constitution that is so hard to change that there is constitutional protection of a right to bear arms that dates from 1791, but an equal rights amendment can’t be put into effect.

But maybe that’s just a caricature. Maybe a written constitution really will save our democracy.

Or maybe not. Our constitution has been pretty settled recently. So has our democracy. Again, I agree with Palmer: let’s not let our democracy wither away. Rather, let’s continue to discuss, debate, and engage, and trust that our current constitution survives the barrage it gets. I, for one, like our current constitutional arrangements, and I hope they last a long, long time.


Thomas Gibbons thomas.gibbons@mccawlewis.co.nz is a director at McCaw Lewis in Hamilton. He is the author of various books and articles on property law, but has also written on constitutional issues for the New Zealand Herald, New Zealand Law Journal, and Waikato Law Review.

Last updated on the 29th June 2018