Month: July 2013

Why I’m against a constitution in Aotearoa New Zealand (Part 2)

In continuation of my previous post on constitutionalism, I want here to address the interpretation issue as another reason to reject a constitution in Aotearoa New Zealand.

The Panel asks us to consider who should interpret the constitution: Parliament or the Judiciary.

Proponents of constitutionalism often argue that as it is the Courts who interpret the law, then it should be judges who assume responsibility for interpreting a constitution and that the ability of judges to strike down laws enacted by Parliament if unconstitutional is necessary to preserve the integrity of a constitution. Others insist that because Parliament consists of democratically elected representatives, that its more appropriate for Parliament to be interpreter to retain the integrity of the constitution.

I reject both bodies as interpreters of a constitution and in this post, I will argue that the interpretation issue is another reason to reject constitutionalism.

But before discussing that, its first important to get a basic background to what we do when ascertaining meaning, We must ask ourselves, how do we know that we have got the meaning right?

BASICS OF MEANING 

Stephen Neale argues that in order for us to understand what text or a statement means, we must understand what was said and what the speaker (or drafter) intended when they said it because statements can often imply more than the words literally state and that context is inseparable from the meaning and interpretation process. Neale points out, that legal text is often different from other text, because the principle of legal certainty requires that the law be clear and that ambiguity removed to uphold that principle. He suggests that legal text is literal in this sense – its necessarily designed to avoid uncertainty (although any student of law or legal practitioner knows this is not how it works in practice). So for Neale, we might argue that he’d consider the meaning of a constitution to derive from the meaning of the words at the time they were enacted and what the drafter intended those particular words to do. We will see the relevance of this shortly. [1]

Jacques Derrida also considered context as vital to ascertainment of meaning. He considered that we must know what something does not mean in order to determine what it does mean.[3] Derrida considered that words do not have a fixed meaning and that they derive their meanings through their network of associations with other words.[4] Derrida makes another interesting point – we should avoid naturalising things that are not natural e.g. political institutions.[5]

In my view, we tend to do exactly as Derrida cautions against – we naturalise our political institutions through constitutions by ascribing naturalising terms such as democracy and liberty to the meaning or intention of the constitution. A constitution is a document that intentionally binds individuals in perpetuity, to a set rules prescribed by the ruling class. It is a document that establishes hierarchies as to who can exercise power and how through appealing to the necessity of protecting individual rights. Contradictory statements. 

I reject constitutions as natural because there are not such rules in nature – nothing exists in perpetuity – some species become extinct, while others simply change or adapt to the environment.  I admit here that there is probably an argument for constitutions being analogous to laws of nature e.g. one might find that living constitutionalism brings the constitution into a natural state.  That apples fall and do not float is a law of nature but a constitution itself is not.

There are two dominant schools of thought when it comes to interpreting constitutional text those who consider original meaning and those who consider current meaning as the appropriate starting point.

ORIGINAL MEANING

Proponents for original meaning or Originalists argue that we should interpret constitutions according to the meaning of the words at the time the provision was enacted (whether or not drafters intent is taken into account). Like with most theories there are different strains of originalists, but in general originalists will argue that the meaning of provisions in the constitution are fixed to preserve its intention, that is, to protect against majorities by embedding ‘certain rights in such a manner that future generations cannot readily take them away’.[6] This interpretation method comports with the principle of legal certainty because the people will always know if they are acting constitutionally. We could argue then that Neale might support an originalist conception for interpreting constitutional text, since he considers legal text to comport with the principle of legal certainty. Origininalists reject living constitutionalism because it offends the principle of legal certainty and serves future majorities.

CURRENT MEANING (Living Constitutionalism)

Living constitutionalism is a theory that sees the constitution as an evolving document. Proponents argue that we should interpret constitutions according to the need of the particular society and that constitutions contain morally abstract principles for this reason.

Note that above I briefly discussed how Derrida considered language to not have a fixed meaning – living constitutionalists share that view. They consider meaning should derive from the values of the current society to avoid unjust outcomes of the past.

I am sympathetic to this argument, because I do accept Derrida’s point that words are always connected to other words and it is those other words that help us understand what something does and does not mean. But this thesis appears to support the dominant group in society and undermine the rights of minorities. This manner of interpretation favours the values of the majority over minorities and as such does not prevent against the oppression or historical injustices of the past, rather it allows for new injustices. For instance,  if the majority consider what might have been unjust in the past or what might be unjust in the future to be just in the present, then living constitutionalism allows for those values and norms to be constitutional.  It also appears to offend the principle of legal certainty – we don’t know if an action is constitutional until the interpreter tells us that it conforms to the meaning that society gives to that provision. Additionally, it talks of the constitution as being made up of abstract moral principles, when there are provisions in a constitution that do not have a moral basis.

Living constitutionalists reject originalism because it acts as an affront to democracy through binding future generations to a set of rights that were meaningful in a particular historical context thereby limiting individual autonomy to the rights prescribed by a past ruling class. But living constitutionalists are vulnerable to exactly the same kinds of claims.

Both theories have strong arguments as to why their method of interpretation is better than the other but they both argue equally well that the other method of interpretation leads to unjust outcomes. For this reason I reject both of these accounts as an adequate means of interpreting constitutional text.

CONSTITUTIONAL CONCEPTION OF DEMOCRACY

Ronald Dworkin suggests a constitutional conception of democracy (CCoD). He claims that his CCoD does not rely on what he coins the ‘majoritarian premise’ (MP). For Dworkin, the MP is simply ‘a thesis about the fair outcomes of a political process that insists that political procedures should be designed so that, at least on important matters, the decision that is reached is the decision that the majority or plurality of citizens would favour if it had adequate information and enough time for reflection’.[7]

The MP is reminiscent of Rawls ‘legitimate consensus’ except that consensus is not synonymous with majoritarianism.

Sidestep for a minute – David Graeber provides a very good argument for consensus, that I find very persuasive. For Graeber, consensus is a process that incorporates dissent and does not rely simply on a majority vote in order for consensus to be obtained.[8] While a majority will often determine the outcome, the process is equally, if not more important. This means that consensus requires the cooperation of all the individuals affected and that consensus is reached not under conditions of unanimity or majority, rather when no-one would leave the group because of the particular outcome in issue.[9] Whereas the MP only requires the majority or a plurality of citizens to agree irrespective of the views of the dissenting group/s, Graeber’s consensus requires an outcome that wouldn’t result in the dissenting individual or group leaving the wider group. Consensus is reached when the dissenting group could live with the decision even though they disagreed with it.

Back to Dworkin.  The CCoD is ‘that when majoritarian institutions provide and respect democratic conditions, then the verdicts should be accepted by everyone for that reason. But when they do not, when their provision or respect is defective, there can be no objection to other procedures that protect and respect them better’.[10] I can appreciate where Dworkin is going with this – he’s taking a living constitution approach by enabling the procedures to adapt to the democratic conditions of the particular society. I agree that democracy itself is a necessarily adaptive principle, and I stated as much in Part I. I reject that the group determining whether or not the process is democratic is the group whose powers are contained in the document they are interpreting.

Perhaps Dworkin is suggesting that the people decide what the process is, but in that case, why have a constitution that establishes hierarchy if the people are ultimately able to bypass the hierarchy and effect the will of the majority over minorities? Personally, I believe the power belongs in the hands of the people, but we need to remove this myth that constitutions are democratic and protect individuals. If there is a document that establishes hierarchy, then we will always be vulnerable to abuses of power.

WHO SHOULD INTERPRET

We know in countries like the USA, that Judges have the power to interpret the constitution and to strike down law that is inconsistent with the US Constitution. Many people applaud this particular practice as keeping a check on abuse of state power by the political elites. So lets look at why I think Judges should not be tasked with interpreting the constitution.

In NZ, Judges are unelected officials appointed by the Attorney General. I’m not here suggesting that this process is itself corrupt, only that because Judges are unelected officials, they are not democratically accountable.

The benefit of judges having interpretative power is that Parliament cannot enact law inconsistent with the constitution, this means that the political elites are subject to a great level of oversight. This is also a problem. Judges (unelected officials who Scalia insists likely share an affinity with the values of the ruling class) become supreme lawmakers and their decisions have the capacity to override statute, and therefore Parliamentary sovereignty. [11]

Dworkin suggests that the concern over judicial interpretation is often hyperbole and it is unlikely in most cases that Judges would act in a way that ran roughshod over individual rights.[12] He may be right, but the fact still remains that judges are unelected officials and their decisions bind the public to whom they are not democratically accountable.

If the judiciary are responsible for interpreting the constitution, then we also need to be cautious that Judges are not interpreting provisions in a manner that comports to their own political ideologies. We must also consider what happens when the Judges disagree, that is, the usual process is majority vote. The issue being that a small group of unelected elites get to determine what rights and freedoms individuals have and what limitations Parliament can place on those rights even though individuals vote representatives into Parliament for precisely those kinds of reasons.

But if Parliament  are responsible for interpreting the constitution, then we need to be cautious of the vulnerability of political parties to both internal (e.g. coalition deals, cups of tea etc) and external (lobby groups such as multinational corporations or unions) influences.

I do not imply here that lobby groups are necessarily corrupt and/or bad faith actors, rather that those lobby groups capable of exerting influence over political decisions that are in the interests of that particular group alone, ultimately have the ability to ensure constitutional provisions are interpreted to secure and maintain the superior status of that group.

Its also worth noting that often politicians, or the main parties in NZ’s case form part of the dominant group in society and are likely to make decisions based on the shared values of the majority – at the expense of minorities.

Conclusion

In summary, I am also against constitutionalism for the following reasons:

Constitutional interpretation is an affront to democracy because the body responsible for interpreting the constitution (whether it be parliament or the judiciary) is the same group whose power is created by the document that they are interpreting. There can be no provision to prevent whichever body from abusing their interpretative power.

Of course, the people can revolt, but then what was the point of the constitution in the first place? Why bother creating an hierarchy establishing document so that the peoples only recourse is to revolt? It appears that in the meantime it retains the status quo – superior status of dominant group.

There are also significant issues as to how to interpret the constitution since neither can prevent against unjust outcomes. Originalist interpretations bind us to historical norms and values, while living constitutions bind us to the will of majorities and take away our individual autonomy. How is it acceptable to say we need a constitution to protect the rights of individuals against majorities and unwarranted state power when interpreting what our rights are and what power the state has rests in the hands of the state who have inadequate theories for ascertaining meaning?

Constitutions are naturalised by the ruling class to persuade the public of their democratic value when in reality they are an instrument designed for the ruling class to monopolise the law without recourse for the public.

In liberal democracies we argue against monopolisation because it represents the control in the hands of the few over the many. Yet we happily endorse the very structures that make these monopolies possible. Constitutions explicitly give states a monopoly on the law. We blindly hand over the power to control us through the deceptive use of democracy and liberty.

In my view, a constitution is in fact what we have understood it not to be.


[1] Stephen Neale, Meaning and Interpretation on Philosophy Bites available online at: http://philosophybites.com/2010/07/stephen-neale-on-meaning-and-interpretation.html

[2] Ibid.

[3] Robert Wicks, Modern French Philosophy: From Existentialism to Postmodernism (2003, OneWorld Publications: England) at [170-210].

[4] Ibid.

[5] Derrida – Defining deconstruction available online at: http://www.youtube.com/watch?v=vgwOjjoYtco

[6]Antonin  Scalia, A Gutman (ed.) A matter of interpretation: Federal Courts and the Law (1998, Princeton University Press: New Jersey) at [37-47].

[7] Ronald Dworkin, Freedoms Law: The moral reading of the American Constitution (1999, Oxford University press: London) at [7-19].

[8] David Graeber,  Some remarks on consensus available online at: http://occupywallstreet.net/story/some-remarks-consensus

[9] Ibid.

[10] Dworkin above n 7.

[11] Scalia above n 6.

[12] Dworkin above n 7.

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Some commentary on The Pakeha Party NZ

Here’s a link to my commentary on “The Pakeha Party in NZ” in my Dropbox:

https://www.dropbox.com/s/nshz5j3wwh7fnv9/The%20Pakeha%20Party%20in%20NZ.m4a

There are some waffly bits and arguments could have been articulated better. My apologies to those hoping for a written post.

Note that the discussion is framed in terms of what  Will Kymlicka has said about minority rights in liberal democracies and its worthwhile listening to his podcast on Philosophy Bites. Its really useful for those wanting a refresher in Kymlicka or as a starting point on his philosophy.

 

References/Sources:

Will Kymlicka, Minority Rights on Philosophy Bites with Nigel Warburton and David Edmonds available online at: http://hwcdn.libsyn.com/p/f/3/9/f39f91c1fda981c7/Will_Kymlicka_on_Minority_Rights.mp3?c_id=1779414&expiration=1373403258&hwt=16e2252d57dd3b79cf846d0f76850b7e

The Pakeha Party Facebook page online at: https://www.facebook.com/ThePakehaParty?fref=ts

Mark Blackham, You are what you claim to hate on Political Business: Lessons on Political Strategy available online at: http://markblackham.tumblr.com/post/54901199691/you-are-what-you-claim-to-hate

John Ansell http://treatygate.wordpress.com/ and 1Law4all http://1law4all.co.nz/

Why I’m against a constitution in Aotearoa New Zealand (Part I)

Since the inception of the Constitutional Advisory Panel (the Panel), my views on constitutionalism have been pendulous. As a law graduate, my instinct was to support a single codified constitution in New Zealand because it seemed the appropriate way to protect the rights and freedoms of individuals by entrenching them in law but as a philosophy graduate my instinct was to question the consequences and justifications in doing so.

What I will say from the outset is that I’m persuaded by critics of constitutionalism that constitutions only serve to ‘secure and maintain the superior status of dominant groups’ in a society.[1]  So when it came to writing my submission, I became quite cynical. In my view, the wrong question was being asked of us.

The Panel ask whether we should codify New Zealand’s constitution into a single entrenched document and if so, it asks us to consider what else might be included in the constitution, directing us to specific terms of reference, such as, whether the Treaty of Waitangi should be formally recognised, whether the NZ Bill of Rights should have supreme law status, whether we should consider formalising Maori representation in Parliament. And to be fair, I don’t think these are bad questions, I just think they limit the conversation, probably intentionally so, however, in the process they ignore what I consider to be the deeper underlying issue – do we need a constitution at all and if so why do we need it?

The conversation is precipitated by an apparent blind acceptance of the legislation, conventions and principles that our lawmakers already deem part of the ‘constitutional’ framework. What we are being asked to submit on is specific issues that fit within that framework but in doing so it seems that we implicitly consent to those already established constitutional elements, such as, that the Crown is the head of state, that Parliament enacts legislation, that we have three branches of the state – Executive, Legislature and Judiciary and so on.

I feel that the Panel wrongly assumes that having a constitution is a positive reflection of a democratic society. I accept this is a contentious position, and I understand that the question of whether democracy and constitutionalism are compatible is essentially a philosophical one but in light of the information that I’ve read, arguments positing that democracy is compatible with constitutionalism become less convincing. For me the starting point in deliberating about the constitution conversation was individual autonomy.

Individual autonomy

Individual autonomy is essentially the ability of individuals to live their lives according to their own reasons and motives independent of manipulative or external forces.[2]

When I consider constitutionalism and individual autonomy there seem to be two main arguments:

For: constitutions protect individual autonomy because they act as a barrier to unwarranted state power.

Against: constitutions destroy individual autonomy because they entrench self-justifying hierarchies as a means to control the masses.

I then turned to John Rawls, a political philosopher and while his account admittedly supports constitutionalism, it does so only insofar as the principles contained in a constitution are attained through a direct democracy approach, in other words, legitimate consensus. For Rawls, consensus is legitimate only where it is achieved under conditions of free and authentic affirmation of shared principles’ and ‘only if the citizens see themselves as fully able to reflectively endorse or reject such shared principles, and to do so competently and with adequate information and range of options’.[3]

So when I consider what the Panel is asking of the public, I am dubious of the framing since we are not being asked if we endorse or reject any of the currently held constitutional principles, rules, laws, conventions and it is assumed that we accept our current constitutional arrangements, so the conversation limits us to submitting on the specific terms of reference (some of which are outlined above).[4] On that basis, I think any constitution that derives from this particular process will not be legitimate because our submissions can only address the terms of reference set out by the Panel who may at their discretion ignore submissions if they decide the content of those submissions is irrelevant.  This essentially means that a small group of unelected elites will determine what it is that they think is relevant to the constitutional conversation.

This is not a criticism of just the Panel in NZ but of how constitutions are decided in general and why constitutions are destructive to individual autonomy. Moreover, the Panel avoids the question of the legitimate exercise of power in NZ endorsing the self-justifying authority of the state. This led me to question what the state embodies and for that I turned to Pierre-Joseph Proudhon.

The state

Proudhon argued that ‘the state is the EXTERNAL constitution of the social power’.[5] By this he meant that, individuals do not govern themselves but are ruled over by government.  He considers that government rests on the hypothesis that ‘the collective being which we call society, cannot govern itself, think, act, express itself, unaided, like beings endowed with individual personality; that, to do these things, it must be represented by one or more individuals, who, by any title whatever, are regarded as custodians of the will of the people, and its agents’.[6] Proudhon argues that ‘this hypothesis [presumes] it is impossible for the collective power…to express itself and act directly, without the mediation of organs expressly established and…posted ad hoc’.[7]

Essentially, Proudhon considers the role of the state unnecessary for attaining direct democracy and expressing individual autonomy and that the scaremongering that we will fall into a state of chaos without the state or central government to rule us is a fictitious creation of the ruling class.

The relevance of the state to the constitution is central to the discussion, yet it is largely ignored and instead treated as an implied necessity for organising society.

Noam Chomsky points out that individuals are capable of creating highly organised societies without state interference where democracy is built from the ground up. This is also a tenet of Proudhon’s philosophy.

When we have an entrenched constitution, democracy is decided by those who exercise power despite the illegitimate justification for that power. To reiterate, I’m persuaded constitutions secure and maintain the power of the ruling class and that entrenching constitutions is an affront to the democratic rights of future generations.  My question is what right do we have to bind future generations especially those who do not yet exist?

Democracy

I know I’ve spoken vaguely about democracy so let me talk a bit about it.

In NZ we have a representational democracy. Simply stated, we get to vote people to represent us at the central government level (yes, we get to vote at local council level too, but local councils are empowered and limited through central government processes). However, problems arise when there are no candidates that represent the interests or values of the voting public. What we get is low voter turnout and disengagement. In this circumstance, democracy is limited to the choices available. Doesn’t sound very democratic to me.

There is no general consensus as to the definition of democracy and many argue that it is an incomplete concept. I agree. I think it is necessarily incomplete in order to allow individual autonomy to express itself.

As mentioned above, the link between democracy and constitutionalism is a tenuous one. On the one hand, supporters argue that democracy and constitutionalism are inseparable and in fact necessitate each other while critics argue that constitutionalism is anathema to democracy.

Neil Walker, Professor of Public Law at the University of Edinburgh argues that as democracy is incomplete it needs constitutional guidance that is worked out by practical and normative considerations that are not dictated by democracy. He claims that democracy cannot tell us how long people will be in power nor what good government is but the content of a constitution may act as a guide in that respect.[8]

Its a nice little argument, but the presumption, like most arguments that support constitutionalism, is that the role of the state is necessary and so we should seek to democratise that role.

John Stuart Mill recognised this presumption as problematic in claiming that a democratic constitution confined to central government is not political freedom and creates the reverse – political domination.[9]

As noted above, supporters claim that constitutions protect individuals from unwarranted state power thus maintaining democracy and individual autonomy. My question is this: if the objective is to protect individuals from unwarranted state power, then why support the state as a necessary element of social organisation?

So in summary, I am opposed to constitutionalism because it entrenches self-justifying hierarchies, limits individual autonomy and in doing so limits the ability of legitimate consensus to be reached through a direct democracy approach.


[1] Waluchow, Wil, “Constitutionalism”, The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), online at <http://plato.stanford.edu/archives/win2012/entries/constitutionalism/&gt;

[2] Christman, John, “Autonomy in Moral and Political Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), online at <http://plato.stanford.edu/archives/spr2011/entries/autonomy-moral/&gt;.

[3] Ibid.

[4] For further details on terms of reference see the submission guide online at: http://www.ourconstitution.org.nz/store/doc/SubmissionGuide.pdf

[6] Ibid.

[7] Ibid.

[8] Neil Walker, Constitutionalism and the incompleteness of Democracy: An iterative Relationship” (2010) 3 Netherlands Journal of Legal Philosophy at 206-233.

Explanation for lack of blogging

Yikes, its been a while!

I’ve just finished relocating to a new city and have only just unpacked the computer and set up my internet connection. Didn’t help that my laptop went to the grave last Thursday and as I had to revert back to pen and paper, I have quite a bit of rewriting to do. 

I’ll be posting a redacted version of my ‘constitution’ submission with some commentary over the next few days.