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. 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 is essentially the ability of individuals to live their lives according to their own reasons and motives independent of manipulative or external forces.
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’.
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). 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.
Proudhon argued that ‘the state is the EXTERNAL constitution of the social power’. 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’. 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’.
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?
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.
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.
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.
 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/>
 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/>.
 For further details on terms of reference see the submission guide online at: http://www.ourconstitution.org.nz/store/doc/SubmissionGuide.pdf
 Neil Walker, Constitutionalism and the incompleteness of Democracy: An iterative Relationship” (2010) 3 Netherlands Journal of Legal Philosophy at 206-233.