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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4 comments

  1. Thanks Carrie – a thoughtful and well-argued post.

    I have issues with constitutionalism too, but I take a particularised approach to their benevolence or malevolence.

    I agree that constitutions entrench hierarchies – it would be untenable to argue otherwise – and that constitutions reflect the values of the majority. However, constitutions are a necessary control on the hierarchies they establish. I would rather place trust in a democratic constitution as a control on hierarchies than, say, the market.

    Constitutions are problematic, but I don’t know of an alternative. Direct democracy? A direct democracy could vote a portion of its population into slavery or vote itself out of existence. I refuse to accept the utopian idea of direct democracy. For the moment, I view constitutions as a necessary evil (though evil is too strong a word). In the past 30 years the court has done less violence to Maori aspirations and pluralism than the government.

    Of course, the better constitutions are those that favour citizen checks and balances over judicial checks and balances. New Zealand’s current constitution is good – but some way off great – in this respect. Recourse to the Ombudsman, various Commissioners (e.g. the commissioners of privacy, human rights and the environment) and the Official Information Act are useful citizen checks. That is supplemented by a relatively strong fourth estate.

    On that view, judicial recourse isn’t a necessity under a constitution that creates and protects citizen checks and balances. However, judicial supremacy should be an option of last resort. I accept that law – being the result of the political process – is political. It’s interpretation is subjective despite the myths that scholars like Dicey and William Wade attempt to propagate about the law being objective, impartial, apolitical – a science. But if there’s a better way of protecting rights – especially minority rights- then I’m all for it…

    M

    (PS: Sorry you’re not following this. It’s a bit of a rushed job)

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      1. Thanks for commenting 🙂 Interesting reply. Please excuse my response if my tone seems abrupt (its not intentionally so!)

        …constitutions are a necessary control on the hierarchies they establish…

        I feel like that is a logical fallacy, i.e. circular reasoning. You appear to assume your conclusion in your premise.

        I would rather place trust in a democratic constitution as a control on hierarchies than, say, the market

        I can appreciate your scepticism of markets – especially given the way in which markets have been used to create structural inequality. But its not true that all markets are bad. I used to think this was the case too until I started reading Proudhon and a multitude of other left wing market advocates who, in my opinion, persuasively argue that markets are liberty inducing.

        Adam Smith argued that human survival depends on co-operation and he considered markets the means by which humans co-operate to survive [1], and while Smith is often cited in relation to neoliberalism, he was pre-capitalism and advocated that only under perfect conditions of liberty would markets (the kind proposed by neoliberals) lead to perfect equality[2].

        See:

        [1]http://ec.libsyn.com/p/f/d/8/fd8d7686c02887ba/Nicholas_Phillipson_on_Adam_Smith.mp3?d13a76d516d9dec20c3d276ce028ed5089ab1ce3dae902ea1d01cf8235d7cf5c3594&c_id=2779015 (podcast)

        [2]http://www.chomsky.info/books/warfare02.htm

        In the most simplest of explanations (and I doubt you need an explanation but it helps to contextualise what I want to say), markets are just where exchanges occur between people. They are not synonymous with capitalism.

        Many indigenous cultures had and still have reciprocal markets. Maori made exchanges both within and between hapu and iwi and with other cultures. In these reciprocal markets, constitutions were not required, because the participants entered into the exchanges voluntarily – they co-operated for the benefit of the wider group – and probably as a matter of survival.

        Its likely in the Maori context that trades occurred following collective decision making (by consensus) depending on the importance of the good or service to be traded.

        Markets though are probably more than just where goods are exchanged because the act of exchanging goods itself nurtures the co-operative function that Adam Smith advocated.

        The problem we currently have with markets is that they are dominated by speculators who profit from the efforts of others and governments have come to rely on those who prosper in these markets to retain their legitimacy. Additionally, constitutions make it difficult for future generations to remove the powers that the ruling class granted themselves.

        I disagree that direct democracy is utopic but I do accept that getting to direct democracy is something that will take time because of the mass indoctrination of the states legitimacy. I also believe that the struggle for liberty is the biggest struggle we will face in our lifetime and I don’t think its one we should give up on because its in the too hard basket and resolve to adapt to the authoritarian system we’ve inherited by buying into the constitution as democracy narrative.

        (Sorry for the length, its what happens when I free flow write/rant!)

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  2. Very interesting. I enjoy your writing because it offers a perspective that’s lacking in NZ political discourse.

    The circular reasoning was deliberate. I wanted to illustrate the dichotomous nature of constitutions.

    Even in the absence of a constitution, hierarchies would persist. Parliament claims its legitimacy not from, say, the Constitution Act 1986 but democratic elections. In the absence of a constitution the courts would also claim and retain their inherent jurisdiction and powers. The constitution – especially Palmer’s reforms during the fourth Labour government – added a greater degree of legal formalism to the existing structures. The de facto hierarchies became de jure. In that sense the Constitution Act 1986 and other reforms entrenched the existing structures. I guess my point is: hierarchies don’t need constitutionalism.

    From that perspective, citizens need constitutionalism. The Muldoon years illustrate the danger in having weak de jure checks on de facto hierarchies. The constitutional reforms of the fourth Labour government formalised the existing legal and political order, but that was balanced against constitutional instruments designed to restrain government power. The Bill of Rights Act 1990 is the most prominent example. In the White Paper to the BORA the authors wrote that one of the founding rationales of the BORA was to protect against the explosion in the bureaucratic state and, consequently, the growth in the power of the executive. The question, as I see it, is about balance in a constitution.

    I suppose my position is very much a part of constitutional orthodoxy, but from a more liberal perspective. I think democratic government is desireable and the best way to determine the distribution of power – or as Palmer puts it “power on a grand scale” – is through constitutionalism. I respect that we’re coming from very different starting points here and I’m unsure where the middle ground is.

    I like the point about reciprocal markets. It reminds me of a book my parents have (I can’t remember its name) covering the micro-economies of the King Country, parts of the East Coast of the North Island, Taranaki and parts of Northland where iwi and hapu of the areas ran, essentially, socialist economies (something of an oxymoron but I’m not sure how else to term them). There was co-operative management and distribution of resources. That isn’t special in itself, but what was interesting is that these socialist economies managed to interact well with the New Zealand and Australian capitalist economies. For example, trading ships would land in the Kawhia Harbour (in the King Country) and load Maori agricultural products in exchange for the things that the iwi/hapu economies couldn’t produce (e.g. factory made goods etc). That jumped to mind with your point about reciprocal markets.

    Anywho, I imagine this has become very hard to follow (I’d love to spend more time on it but it’s a bit of a rush this week). Thanks for sharing your thoughts. I’m certainly going to revaluate my positions (especially re markets).

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