Why Do the Write Thing?

Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and seek out comments, which they say in the book’s description “will be reflected in a second edition to be published in 2017.” The Twitter account has published the following infographic listing reasons for adopting a written constitution:

These reasons apply not just in New Zealand but pretty much everywhere ― if they are indeed good reasons, that is. So the experience of countries that have adopted “written” constitutions ― including Canada and the United States ― should be relevant to assessing whether they are. If these reasons support the adoption of a “written” constitution, their effects should be observable in Canada (to the extent that our constitution is “written”), the U.S., and elsewhere. The countries with written constitutions should be doing better than those without (and notably New Zealand) on all these counts. With respect, it seems to be me that for the most part they are not. In this post I explain why.

But just before I do that, a brief comment is in order on the phrase “written constitution,” which as you may have noticed I only use in scare quotes. The reason for this is that “unwritten” constitutions tend in fact to be written down somewhere, so that they are not really unwritten at all. This is especially true of New Zealand’s “unwritten” constitution, which is written down both in legal sources such as the Constitution Act 1986, the Letters Patent Constituting the Office of Governor-General of New Zealand, or judicial decisions, and in extra-legal ones, such as the Cabinet Manual 2008, which re-states most if not all of the constitutional conventions and other important rules governing the executive branch, in authoritative although not legally binding format. When people speak of a “written” constitution, they tend to speak of a codified or an entrenched constitution, and usually, but not always, both. This is how Sir Geoffrey and Mr. Butler use the term: on their website, they say that “[p]eople have rights and they should be provided in a constitution that is supreme law and binds the Parliament.”

* * *

The above “reasons to adopt a written constitution” can be grouped in a few categories. Some of them have to do with the democratic process; others with the limitation of state power; others still with transparency and accountability. Let me consider these in turn. (I will not say anything about the enhancement of national identity, partly because I am not qualified to speak to the subject in New Zealand, and partly because I am, as a general matter, profoundly skeptical of any action, and especially any legal change, that pursues this objective.)

I do not think that anything about the strength of a polity’s democracy (to which I also take the “easier to participate” and, in part, “government is more accountable” claims to refer) turns on whether that polity’s constitution is codified, entrenched, both, or neither. Polities with unentrenched and uncodified constitutions, including of course New Zealand but also, to a lesser extent, Canadian provinces (whose constitutions are partly entrenched) can be well-functioning democracies. They can, and already do, have free and fair elections which produce regular changes of government. Is democracy stronger ― whatever that means ― in Canada or in the United States than it is in New Zealand? Quite a few Canadian election reformers passionately believe the opposite, because Canada has a first-past-the-post electoral system (as does the U.S., mostly), while New Zealand has moved to a version of proportional representation. Whether or not we agree with them ― I do not, as I’ve explained here ― it is to say the least not obvious where the democratic gains from moving to a codified or entrenched constitution are.

Codification and entrenchment will have some effect on the limitation of state power (including to protect human rights and the Rule of Law, and to prevent abuses). A codified constitution might be clearer and thus easier to understand than an uncodified one. An entrenched constitution is ― ostensibly anyway ― less malleable than one that can amended by ordinary legislation, and can in principle better protect individual and minority rights. But the gains on these various counts are actually rather smaller than they might at first appear.

So far as clarity is concerned, I’m not sure that the current sources of New Zealand’s constitution are especially unclear, as these things go ― they do not strike me as any more obscure than Canadian or American ones. One should also keep in mind Chief Justice Marshall’s warning, in McCulloch v Maryland, that

[a] constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. (200)

As for stability, an entrenched constitution is only as stable as the judiciary lets it be. As Grégoire Weber, among others (including yours truly), has pointed out, the Supreme Court of Canada has lately been re-writing the Canadian constitution a couple of times a year at least. The Supreme Court of the United States is regularly accused of similar mischief. Admittedly, if there could be guarantees of the courts strictly adhering to some version of originalist constitutional interpretation, this danger would be minimized. But there can be no such guarantees anywhere, and in New Zealand in particular, originalism is not the preferred interpretive approach to the New Zealand Bill of Rights Act 1990, so there seems to be little reason to think that judges could be persuaded to approach an entrenched constitution in this spirit.

The same goes, of course, for protecting rights. The protections provided by an entrenched constitution can be no stronger than the judiciary’s inclination to enforce them. Admittedly, the attitude of Canadian judges changed when the partly entrenched Canadian Bill of Rights was supplemented by the mostly entrenched Canadian Charter of Rights and Freedoms, I’m not sure if the same sort of change would occur in New Zealand ― which, after all, already largely respects individual rights. Would, for example, the adoption of an entrenched constitution, change anything to what seems to be a consensus that it is perfectly fine to disenfranchise prisoners serving long terms? I doubt it.

Turning to transparency and accountability, it seems to me that the great problem here is not the form of the constitution, but political ignorance. Ignorance of basic facts about the constitution is prevalent in the United States, where merely a third of the respondents to a recent poll could name the three branches of government ― despite a constitution whose very structure begins with these three branches. Pointing out that Donald Trump has never read the U.S. Constitution is a great rhetorical move (and I say this unironically), but while the charge is doubtless accurate so far as it goes, many of Mr. Trump’s fellow citizens (and not only among his voters) are every bit as guilty of it as he is. Ironically, Sir Geoffrey and Mr. Butler might just succeed in improving the public’s understanding of New Zealand’s constitution simply by encouraging conversations about it, without any changes being made. I wouldn’t be too optimistic though. As Ilya Somin and others explain, people have no incentive to become informed about the workings of  government, and the existence of an entrenched constitution changes nothing to this reality.

That said, New Zealand already has a number of accountability mechanisms, some of which seem to be functioning better than those in place in Canada. Though I’m far from an expert in the field, New Zealand’s access-to-information legislation might be stronger than its Canadian (federal) counterpart, for instance. And New Zealand’s government is much better than that of Canada at proactively making a lot of information (such as the advice it receives on the compliance of its laws with the Bill of Rights Act available to the public. (I might write about this in the future ―not too distant, I hope.) Perhaps entrenching these accountability mechanisms would give them greater symbolic weight. But it would also freeze them in place, which may not be a good thing ― not to mention that it would yield a constitution suffering from the “prolixity of a legal code.”

* * *

In a polity like New Zealand ― which already has a well-functioning, if in some people’s view imperfect democratic system, and which largely, if again imperfectly, respects human rights ― the gains from constitutional entrenchment are likely to be marginal in the short or even medium term. There will be some costs, too, though I have not discussed them here. Of course, the case of federal states may well be different ― it is usually said that a federal state needs an entrenched constitution to protect the division of powers (though note that Switzerland’s constitution is effectively not entrenched as against the Federal Assembly, its parliament, and that many on the American left would like the division of powers under the U.S. Constitution to be unenforceable against Congress). But this reason for constitutional entrenchment does not apply to New Zealand.

Other than the speculative prospect of a long-term crumbling of the polity’s commitment to human rights and the Rule of Law that would somehow not affect the judiciary, is there a good reason to entrench New Zealand’s constitution? Well, maybe, but it’s not one that Sir Geoffrey and Mr. Butler name. Entrenching the constitution makes sense if one’s goal is to shift power from Parliament and the executive to the courts. The courts’ incentives are different than those of the “political branches.” They might be more solicitous of minorities at the margins, but as or more importantly, they may also be less solicitous of special interests, because these special interests can do little for them. (Tough this is far from certain ― some special interests may find keen listeners on the bench, if for example they can provide the plaudits and recognition that judges, not unlike politicians, may come to crave.) It may be that in a unitary, Westminster-type system, democracy becomes too potent a force, and judicial review of legislation is the only countermeasure available, so it must be used faute de mieux, even in the knowledge that judicial power too will be abused and can degrade the constitution and the Rule of Law as much as the legislative and the executive.

These are serious reasons in my view. But whether they are conclusive or not, one thing is certain. Shifting power from elected officials to judges does not strengthen democracy ― it weakens it, deliberately. It does not make law clear. And it certainly does not make those who wield power more accountable. It might be worth doing regardless. But not for the reasons that Sir Geoffrey and Mr. Butler give us.

4 thoughts on “Why Do the Write Thing?

  1. Canada and NZ are both great places with, by all reasonable historical standards, first-rate governance. But there is no doubt that it is NZ that wins the award for a more transparent constitutional system. Any law can be changed if a majority of the House of Representatives votes to change it.

    Canada’s constitutional law is supposedly “written”. But everyone knows that there would be nothing more misleading than reading the 1867 and 1982 texts and concluding that is what the constitution is. The 1867 constitution is ridiculously misleading if you don’t know about responsible government, the disuse of reservation and disallowance or that the word “exclusive” in ss. 91 and 92 is not taken seriously at all (as the name of this blog suggests). As for the Charter and s. 35, the text is completely meaningless without a huge amount of doctrine that most lawyers find confusing (quick, what’s the current test for s. 15?) Pretty much the only thing the text tells you is that there have to be interpreters at trials.

    Granting that there are fine points of the NZ constitution, it is still much easier for an ordinary person to understand.

    • I take it that they would write down the conventions. (They already have, anyway, with the Cabinet Manual.) This may or may not be a good thing of course. Apart from that, I agree. It’s the Benthamite idea that you can put all the law into “one great book ― it needn’t be a very great one”. Never works that way…

  2. One problem with codifying conventions is that it turns a system of customary practice, based largely on stories, into legislation, at least purportedly based on syllogism.Is that a bug or a feature? That’s the Jeremy Bentham/Tom Paine vs. William Blackstone/Edmund Burke debate, and it isn’t likely to be resolved any time soon.

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