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Allan, James --- "Against written constitutionalism" [2015] OtaLawRw 12; (2015) 14 Otago LR 191

Last Updated: 27 May 2017

^{Against Written Constitutionalism}

James Allan*

New Zealand is one of the few remaining countries on earth where the topic of this article has any practical relevance. My topic will be “Against Written Constitutionalism” – and if we make what seems to me to be the safe assumption that moving to a written constitution is a one-way venture, that there is never any going back to an unwritten constitution, then only in countries with unwritten constitutions is my argument against the written sort anything more than of curiosity value.

So let us take a moment at the start to number the other democracies in the world that can – even at a stretch – be considered to have unwritten constitutions. Most obviously there is New Zealand. Indeed New Zealand is the pre-eminent parliamentary sovereignty, unwritten set-up in the world. For me that is a very good thing indeed.¹ For many legal academics in the United States, in Canada, even in Australia it is barely comprehensible to them why anyone would want what you have here in New Zealand. Indeed, I daresay a few New Zealand legal academics would opt to move to a written constitution were an offer on the table.

Next we might be able to include Israel. Now they have some Basic Laws and an extremely activist top court interpreting them,² so putting Israel into this unwritten camp is a stretch. But it is plausible.

Then there is the United Kingdom. Now at the end of the Second World War the United Kingdom was the pre-eminent unwritten constitution jurisdiction in the world. When you talked parliamentary sovereignty back then, everyone took you to be referring to Britain. But then came the

1972 European Communities Act³ and entry into what is today known as the EU, or European Union. And after that was the Factortame⁴ decision from the House of Lords which decided that any inconsistency between European law that had been incorporated into England’s domestic laws by way of that 1972 Act, and some other post-1972 English statute, would

^* Garrick Professor of Law, TC Beirne School of Law, University of Queensland. An earlier version of this article was delivered as a public lecture in July 2015 at the University of Otago, Dunedin. The author wishes to thank all those in attendance who asked questions or made comments on that earlier version.

¹ See, for example, James Allan Democracy in Decline: Steps in the Wrong Direction (McGill-Queen’s University Press, 2014), and James Allan The Vantage of Law (Ashgate UK, 2011).

² And the judge who most obviously fit into this category was Aharon Barak. An example of his activist approach to the interpreting of a Basic Law is HCJ 6821/93 Bank Mizrahi v Migdal Cooperative Village 1995 IsrSC

^{49(4) 221. See too Ran Hirschl Towards Juristocracy (Harvard University}

^{Press, 2007).}

^{3 European Communities Act 1972 (UK).}

^{4 R v Secretary of State for Transport ex parte Factortame Limited [1990] UKHL}

^7.

be resolved in favour of European law. This drove a truck through what had till then been the unquestioned Doctrine of Implied Repeal – the idea that when two statutes from the same elected legislature conflicted either in explicit terms or also implicitly, say some Act of the Westminster Parliament to do with renting houses that was passed in 1924 and a similarly themed statute from 1964, well the later one would always prevail. And think about that for just a second. It makes perfect sense for those of us committed to democratic decision-making to have a doctrine that says the decisions of later generations will trump those of earlier ones. Indeed the core notion of leaving each generation to decide matters for itself (yes, through the intermediating effects of an electoral system and elected representatives, but all the same for itself) is at the heart of any understanding of democracy.⁵

Yet with the Factortame decision, still the rule today, it is plain that the doctrine of implied repeal exists at best in enervated form and that European Union law trumps domestic United Kingdom law, at least up to the point where the Westminster Parliament decides to break with Brussels. Pass a statute to the effect that “we’re leaving the EU” and the top United Kingdom judges would certainly say that any European Union law lost to such a domestic United Kingdom law. But short of such an explicit enactment to get out, and the situation is that European Union law wins. (And if I may digress, one of the big themes in the upcoming referendum⁶ in the United Kingdom on whether to leave the European Union or not revolves around democracy and a desire for more democratic decision-making in Britain. In my view, the European Union is best thought of as a club for democracies. But its internal decision- making procedures are shockingly deficient in democratic terms. It is not at all far-fetched to say that they make Hong Kong’s look good.⁷

The European Union parliament cannot even initiate legislation; that is the job of the bureaucrats in the European Commission; the parliament cannot bring down a government either. Or just consider how the euro currency came into being – a less democratic process in any Western jurisdiction, national or supranational, is hard to imagine.)

But the main point as far as this article is concerned is that whatever your view might be on whether we can still include the United Kingdom in the unwritten constitution camp, its credentials for membership are very weak indeed compared to New Zealand’s. The European Union has a written constitution in all but name, it is called the Lisbon Treaty.⁸

^{And since European Union law in all but the “we want out” scenario}

5. See James Allan “Thin Beats Fat Yet Again – Conceptions of Democracy” (2006) 25 Law & Philosophy 533.

^{6 European Union Referendum Bill (No 2) 2013 (UK).}

^{7 Basic Law of the Hong Kong Special Administrative Region of the People’s}

^{Republic of China: www.basiclaw.gov.hk/en/basiclawtext/.}

^{8 Treaty of Lisbon Amending the Treaty on European Union and the Treaty}

^{Establishing the European Community, opened for signature 13 December}

^{2007, [2007] OJ C 306/1 (entered into force 1 December 2009).}

trumps United Kingdom law, it is no longer all that clear-cut that we can put the United Kingdom into the unwritten camp.

Yet even if we do include the United Kingdom; and even if we do include Israel; that still only makes three countries that we can include in the club. Most of the democratic world has some sort of written constitution, some sort of controlling, over-arching document that regulates constitutional life. As for a full-blooded unwritten constitution jurisdiction in the democratic world, well you will find it at the bottom of the South Pacific in a country of just over four million people. Put differently, New Zealand puts the “un” into “unwritten constitution”. It is by far the best example in today’s world of parliamentary sovereignty with no controlling single, over-arching written constitution.

For the rest of this article I am going to try my best to convince you that this New Zealand constitutional set-up, this unwritten constitution, is a very good thing indeed. I am going to argue against written constitutionalism.

My plan is to take you through four steps, as follows:

1. to take you through what an unwritten constitution amounts to;

2. to get at the essence or point of written constitutionalism and what it is promising you;

3. to explain why that promissory cheque can never be cashed, indeed why a written constitution will leave you having to choose between ancestor worship or rule by today’s top judges (because that is the only choice on the table, though to be brutally frank the former is ever less visible in the democratic world today); and lastly

4. I will say why you should think about this looking forward, not backwards.

1 What an Unwritten Constitution Amounts To

The name says it all here. “Unwritten” as in “no written constitution”. It is about what is missing. And what is missing is some over-arching single document – a written constitution – from which other laws obtain their legitimacy and which provides much (though not all) of a jurisdiction’s Rule of Recognition.⁹ In the democratic world this sort of written constitution might set out what the legislature will look like

– so in the United States it will provide for real bicameralism, for an elected Upper House that has real power and through which Bills must be negotiated before becoming laws. Australia’s written Constitution,

⁹ This term was coined by HLA Hart in his The Concept of Law (3rd ed, OUP,

^{2012) at 100–110.}

in many ways a straight out copy of the United States model,¹⁰ also provides for real bicameralism. Canada’s does not. All the provinces are unicameral and at the national level the bicameralism is wholly bogus. The Senate there is unelected, as in the United Kingdom, and does or blocks next to nothing. It is an expensive joke.

So a written constitution might specify bicameralism. Or, it might set up some version or other of federalism. That is what Australia’s written constitution does, again opting for the United States model of federalism over the Canadian model¹¹ (but note that all three of those countries’ written constitutions specify that there will be federalism and give the details of which level of government gets what powers).

A written constitution, in addition to giving a federalist division of powers and opting for bicameralism or unicameralism, might also decide to entrench a bill of rights. Now it does not have to do that, as can be seen from Australia where the drafters of their written constitution back in the late 1800s debated at length whether to put one in and opted not to. But there is one in the United States. And, since 1982 there has been an entrenched Charter of Rights in Canada. Those bills of rights, entrenched as they are as part of the written constitution, give unelected judges the power to strike down or invalidate laws passed by the democratically elected parliament. That is an awesome power. The top judges in north America use it regularly, as when they re-write the laws of marriage in both the United States and Canada,¹² as when they allow euthanasia in Canada,¹³ as when they strike down abortion restrictions in both places,¹⁴ as when they decide who can be a judge on the Supreme Court

¹⁰ See Nicholas Aroney The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (CUP, 2009) at 70. See too Cheryl Saunders The Constitution of Australia: A Conceptual Analysis (Hart Publishing, 2011) at 16. And see Gabrielle Appleby “Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia” [2013] UQLawJl 20; (2012) 32 University of Queensland Law Journal 265 at 268.

¹¹ In simplified terms the Canadian model of federalism has two lists, a list of the centre’s heads of powers and a list of those of the provinces. The US model, copied by Australia, has a single list of the centre’s heads of powers with everything not listed supposedly being for the States. The clear intention and goal of the American and Australian founders was to have strong States. The clear goal in Canada, which federated in 1867 only two years after the American Civil War had ended and only 55 years after the American-initiated War of 1812, was to have a very strong, centralised set-up. An irony of history is the way such intentions have been frustrated.

^{12 Obergefell v Hodges 576 US (2015); Reference Re Same-Sex Marriage [2004]}

^{3 SCR 698.}

^{13 Carter v Canada (A-G) [2015] 1 SCR 331.}

^{14 Roe v Wade [1973] USSC 43; 410 US 113 (1973); R v Morgentaler [1988] 1 SCR 30.}

in Canada,¹⁵ as when they decide whether prisoners can vote¹⁶ or go some way to ordering an elected government to allow private health provision,¹⁷ and the list literally goes on and on.

It is worth noting that all this scope for judges to make all these core social decisions flows from what is in effect a short list of moral entitlements articulated in the language of rights; and these enumerated rights are vague and amorphous. So how they will be interpreted matters a lot. I come back to that crucial point about interpretation below.

For now, I hope you have an idea of the main shape of a written constitution. If so, you also have a basic idea of New Zealand’s unwritten constitution – which is the absence of any sort of single over-arching document doing all that. Are there nevertheless limits on power in New Zealand? Of course there are. Can those limits largely or overwhelmingly be traced back to one over-arching document, as in Canada, Australia and the United States? No. Limits on power here in New Zealand flow from a bunch of statutes, all of which can be altered in the normal way by Parliament, even the statutory bill of rights.¹⁸ They flow from conventions, and more here perhaps than elsewhere. They flow from elections and the democratic process. We can debate the limits flowing from the Treaty of Waitangi.¹⁹

What an unwritten constitution gives you is an incredibly democratic set-up. Each generation is left to vote for Members of Parliament (“MPs”) who, through Parliament, can do what they think is best. There are no constitutionalised legal limits on the power of that Parliament. That is the main thing to remember about an unwritten constitution.

Now it is often the case that Americans, when you are talking about New Zealand’s set-up or about the pre-European Union British set-up (and be clear, New Zealand’s set-up is a direct inheritance from the United Kingdom) – well, Americans have a hard time understanding why anyone would want to forego a written constitution. More than a few wonder, “But where are the legal limits on what the elected parliament can do?”. And the answer is, the limits on parliament are not legal. They are moral and political. We New Zealanders vote for MPs who more-or-less share our moral worldview. You could line up New Zealand’s MPs from most left-wing to most right-wing and their differences (on the role of women, on how others ought to be treated, on the outlines of how acceptably to structure an economy, and so on) would pale into insignificance compared to the differences you would see if you stopped in the Middle East, or China, or North Korea, to say

¹⁵ Reference re Supreme Court Act, ss 5 and 6 [2014] 1 SCR 433. The nominated candidate was Marc Nadon, whose appointment to the Supreme Court of Canada was disallowed by the Supreme Court of Canada.

^{16 Sauve v Canada (Attorney General) [1993] 2 SCR 438 and Sauve v Canada}

^{(Chief Electoral Officer) [2002] 3 SCR 519.}

^{17 Chaoulli v Quebec (A-G) [2005] 1 SCR 791.}

^{18 New Zealand Bill of Rights Act 1990 (NZ).}

^{19 Treaty of Waitangi Act 1975 (NZ).}

nothing of anywhere where ISIS dominates. And if shared morality is too ephemeral for your likings as a power-constraint, well the limits put on MPs by the desire to get re-elected are powerful limits indeed. Democracy is a potent check on power, indeed it was for Jeremy Bentham a crucially important check on power.²⁰

Now some readers may well still think that having legal and constitutionalised limits on elected MPs, on what the legislature can do, is a good idea. For such readers, notice that all those legal limits have to be overseen by real life people. So in the United States they are overseen by the United States Supreme Court, by nine judges. And if you live in the United States what sort of limits are there that control what those nine ex-lawyers can do? Well, there are moral limits, the attachment felt by such top judges to applying the law as written and so in accordance with their oaths of office – as opposed to just making things up at the point-of-application because some outcome or other seems morally superior to them, or preferable on other grounds. Oh, and there are political limits, as in the extent to which they can withstand criticism in the press when they go wayward.

But let us say – and this is hypothetically speaking you understand – but let us say that you think that in some recent case a majority of those top judges (say five out of nine – because all top courts happen to be brutally majoritarian institutions, five votes always beat four no matter the quality of the reasoning²¹). Let us say you think those judges as a matter of fact did just make something up. They pretended to be interpreting the United States Constitution when supposedly “discovering” some implied but nowhere enumerated fundamental new right that these top judges then used to invalidate some law that had been on the statute books for ages. In other words, you think the judges lied or made it up. Are there any legal or constitutional limits on those top judges, other than political and moral limits? Of course not.

In any set-up you will end up having some group of real life human beings whose actions are constrained, or not constrained, solely by morality and politics. So pick your poison. In New Zealand it is the legislature that lacks legal limits. I much prefer that. It makes for more flexibility. It is more democratic. The people with no constitutional or legal limits face very real political limits that make them accountable. By contrast, in a set-up where top judges interpret a written constitution, the limits on the judges’ interpretive power – what keeps them honest as it were – is in no way a legal limit. Yes, yes, yes they will “say” they are interpreting the written constitution. But if they are not, your recourse is not to the law. After all, they will be the ones to interpret any laws. No, your recourse is to politics of a much less accountable sort (which goes some way to explaining the phenomenal focus on, interest in and

²⁰ See, for example, Philip Schofield Utility and Democracy: The Political

^{Thought of Jeremy Bentham (OUP, 2006).}

^{21 Jeremy Waldron “Five to Four: Why Do Bare Majorities Rule on Courts?”}

^{(2014) 123 Yale Law Journal 1626.}

political nature of choosing top judges in the United States, and more tangentially still the unwillingness of top United States judges to retire or step down when the Presidency is not held by the political party that appointed them).

So an unwritten constitution, with parliamentary sovereignty at its heart – and that just means having an elected legislature that is legally unconstrained in what it can do, though one that is of course politically constrained via the electoral process – well, that sort of New Zealand set-up leaves the last word with voters. In that sense it is plainly more democratic than the written constitutional arrangements you see in Canada and the United States. It is also more democratic than in Australia, though the difference is less in that comparison.²²

Let me head off on a brief digression which I will call “the Mugabe digression”. A common rejoinder at this point is to point to some imagined horror that a New Zealand-style legislature might indulge in, say rounding up and killing all the blue-eyed baby boys or whatever you want to slot in here. “Wouldn’t it be far better”, goes this line of thought, “if there were judges standing behind a written constitution, judges who could control that legislature?”. That sort of “we need constitutional legalised limits on the legislature” horror-hypothetical argument is deployed frequently. But take a second to unpack it. We are supposed to imagine an elected legislature that has gone wholly off the rails. It is not simply making calls on debatable social policy-issues such as same-sex marriage or euthanasia or what to do with those claiming to be refugees or whether convicted prisoners can vote, issues where nice reasonable people just disagree, to paraphrase Jeremy Waldron.²³ No, we are imagining a legislature that is indulging in “Beyond the Pale” brutalities. Fine. Let us imagine that. What supporters of such horror- hypotheticals never do is to stay consistent. They imagine a Mugabe- run-wild legislature but then they assume that nine judges could stop Mugabe – that the brutal Mugabe legislature will stop because a half- dozen ex-lawyer judges tells it to. Give me a break! If a legislature really has run wild in some horrific way then no handful of judges will stop it. They will be replaced or killed. As HLA Hart put it, in such awful scenarios it is up to all citizens to rise up, otherwise “[t]the society in which this was so might be deplorably sheeplike; the sheep might end up in the slaughterhouse”.²⁴

So the Mugabe scenario will not work as an argument against unwritten constitutions. It imagines some one-in-ten-million situation when (truth be told) a written constitution and nine judges will not help in the slightest anyway – yes it imagines that – to justify quite a massive transfer of power to the judiciary over the myriad day-to-day social policy decision-making scenarios such as who can marry, or vote, or take his

²² Allan, Democracy in Decline, above n 1.

^{23 See Jeremy Waldron Law and Disagreement (Clarendon, 1999).}

^{24 Hart, above n 9, at 161.}

or her own life, or have an abortion, or where the limits on free speech should be, the usual things where an ex-lawyer ’s moral sensibilities are no better than a plumber ’s or a secretary’s. The Mugabe hypothetical takes supporters of written constitutionalism nowhere.

2 So What is the Promise or Appeal of a Written Constitution?

And that brings me to step two, the question of what is the point of a written constitution. What is it selling? Supporters of written constitutions give one of two answers. The more orthodox and long- standing answer is that a written constitution is about locking things in. So you might lock in a division of powers, or bicameralism, or a requisite minimum age to be President, or an enumerated list or Bill of individual rights. On this “locking things in” answer you start with a picture of New Zealand-style parliamentary sovereignty and then you take a few things off the elected legislature’s table. This is the position of American legal scholars Larry Alexander and Rick Kay. “The price of [written] constitutionalism’s ... binding the government by rules laid down in advance of its actions ... is rigidity or, put differently, suboptimal response to change.”²⁵ You opt for security and certainty over future flexibility and free scope for action. But you fight and argue over every word of that written constitution because you are aiming for only some things to be taken off the table. Everything else remains at the say of the elected legislature – it will retain a sort of diminished parliamentary sovereignty, but one with largely knowable boundaries. Put differently, and taking this general point from Antonin Scalia, if your written constitution does not prevent the legislature from enacting the death penalty, there is nothing that stops the voters from electing a political party that will.²⁶ The point is that almost all rights provisions in an entrenched bill of rights, properly understood, serve as floors, not ceilings. To give a United States example, the written constitution forbids “cruel and unusual punishment” – you cannot go below that. But if your elected legislature wants to rise above that, to be more generous to those convicted of criminal offences, it can get rid of capital punishment or life sentences. It can do anything but drop below the “cruel and unusual” floor when it comes to how to punish. Same for who can marry. Same for who can have an abortion. On the “locking things in” model or understanding the written constitution is a floor, not a ceiling. It cuts into parliament’s sovereignty, but only to a pre-determined extent. It is not a blank cheque to the judiciary. It is not some ever-expanding, democracy-enervating behemoth administered by a few top judges.

²⁵ See Larry Alexander (ed) Constitutionalism: Philosophical Foundations (CUP,

^{2001) at 4. This is fleshed out in the introduction by Alexander and in}

^{chapter one by Kay.}

^{26 See Antonin Scalia A Matter of Principle (Princeton University Press,}

^{1997) and “Romancing the Constitution: Interpretation as Invention” in}

^{(Huscroft and Brodie, eds) Constitutionalism in the Charter Era (LexisNexis,}

^2004).

To repeat, a decision by a top court that the written constitution itself does not limit an elected legislature’s scope for action in those areas in no way at all stops the legislature from itself opting for what we might deem the progressive, socially aware outcome.

So a written constitution on this answer is about “locking some things in” – or taking them off what would otherwise be the New Zealand legislature’s table – but only some few pre-determined things. And let us be clear. That is not a wholly unattractive picture that is being painted in favour of a written constitution. Yes, it involves a big dollop of “this generation writing the new written constitution knows more than future generations or is morally superior or more trustworthy” or why take anything off the table at all? So “yes”, it involves what Australian judge Michael Kirby calls “ancestor worship”,²⁷ because to make it work you have to undertake the task of interpretation by looking for the intentions of those who drafted and ratified the document. (This “originalism”²⁸ approach to interpretation is pooh-poohed by a good many of today’s judges and legal academics.) But on this model what you are removing from the legislature’s future purview is at least strictly limited. It is contained. That is why you fight over every phrase, every word, every comma. Because the promise you are making is that what is being taken away from future voters is limited; it is a bracketed package of things that will remain more-or-less constant over time, subject to future amendment of this written constitution.

Put more bluntly, the new written constitution is not being sold as (nor is it meant to be) some sort of “all good things you can imagine can be delivered by the future interpreters of this constitution”. Hence, by way of a federalism example, what is being given to the Centre rather than to the States is envisaged as remaining stable and much the same through time, unless the constitution is amended.²⁹

Until relatively recently that was pretty much the only justification given for deciding to have a written constitution, this “let’s lock a few things in” rationale. These days there is a second option, albeit that it is one that is only ever given after-the-fact. Here the claim is that a written constitution’s value lies in expressing the country’s deepest values and commitments, that sort of thing.³⁰ What its future effects will be

²⁷ Michael Kirby “Constitutional Interpretation and Original Intent: A Form of Ancestor Worship” [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1.

²⁸ See Grant Huscroft and Bradley Miller (eds) The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press, 2013).

²⁹ This has not panned out in Australia. See James Allan and Nicholas Aroney “An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism” [2008] SydLawRw 15; (2008) 30 Sydney Law Review 245.

³⁰ “A constitution, therefore, becomes both a statement of our most important values and the vehicle through which these values are created and crystallized”: Frederick Schauer “Judicial Supremacy and the Modest Constitution” (2004) 92 California Law Review 1045. (Note: Schauer does not himself endorse this view of constitutions, he merely reports it here.)

is accordingly much less definite, much less locked in. Why? Well as society’s values and commitments change then those interpreting the constitution that is expressing these core social commitments need to keep updating it. They need to have their fingers on the pulse of all these changing social mores. This sort of constitutional interpretation goes by the name of “living tree” interpretation in the Westminster world³¹ and “living constitutionalism” in the United States. It is by far the dominant school of interpretation. In the European Court of Human Rights it can seem to be the only school.

You can see why no one attached to this second rationale for moving to a written constitution can be too honest about it upfront. Suppose New Zealand were considering a move to a new written constitution. And suppose I asked a supporter of such a move what things were no longer going to be decided by Parliament but instead by the interpreters of the written constitution. What, in other words, will be taken off the table by this new written constitution?

It is not an attractive answer to be told: “Well, no one honestly knows. Give it a few decades and despite the fact that none of us drafters had the slightest intention to take from Parliament such things as X, Y or Z, and despite the fact that no reading of it that paid attention to what the framers and ratifiers thought would take them away either, the truth is that in the not too distant future the top judges might well decide to say this new constitution gives them – a handful of top judges – the power to decide who can marry. Or whether euthanasia will be allowed. Or who can have an abortion. Or which prisoners, if any, can vote. No one really knows what these point-of-application interpreters will announce down the road. So do you still want to sign up?”. Or do you prefer to take your chances on democracy and the elected legislature, as New Zealand does?

As I said, whatever the eventual truth of how a written constitution will be interpreted, when trying to sell a written constitution proponents will always opt for the “we’re going to lock a few things in” rationale.³² They have to say that they have some idea of how the written document will be interpreted or who would want to sign up for it. Few, outside perhaps the legal profession and the ranks of the judiciary, are keen to hand future top judges something that can look like a blank cheque at times. The truth may well be a choice between ancestor worship (the locked- in understanding that relies on an originalist interpretive approach) or

³¹ The phrase is taken from a passage of a Privy Council case. “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada”: Edwards v A-G for Canada (“Persons Case”) [1929] UKPC 86; [1930] AC 124 at 136 per Sankey LC.

^{32 I argue this at length in James Allan “The Curious Concept of the}

^{‘Living Tree’ (or Non-Locked-In) Constitution” in Grant Huscroft and}

^{Bradley Miller (eds) The Challenge of Originalism: Theories of Constitutional}

^{Interpretation (Cambridge University Press, 2011) 179–202.}

rule by judges (the expressing our deepest values understanding that relies on “living constitution” approaches). Indeed if current trends are an indication then the truth may well be overwhelmingly the latter of those, whatever your preference. But any salesman needs to assert that things not specified will stay with the elected legislature; that what we are actually locking in and so taking off the table can be and is knowable in advance; that it will be unchanging over time (absent future constitutional amendments); that it will be bracketed and confined, at least to a very large extent indeed.

3. Can that Promissory Cheque be cashed? Can you know what’s being taken off the democratic table when you opt for a written constitution?

The evidence is overwhelming on this one. The clear, basically indisputable answer is “no”. Anyone in the developed Anglosphere common law world who tells you they know how provisions of a written constitution will be interpreted down the road is either woefully misinformed, or lying to you. Let me quote from United States constitutional law scholar Richard Kay:

We now have a long record and a voluminous literature on the topic of constitutional interpretation. One clear conclusion can be drawn from that record and literature. The limitations that courts, in fact, apply to the actions of public authorities deviate and sometimes deviate substantially from those that the designers of the written constitution contemplated at the time the rules were chosen.³³

To be a little less circumspect, no one who is today signing up to a written constitution has any real clue how it will be interpreted and how it will be used by future judges. The limits it will impose on future elected Parliaments will be, in a sense, pretty much up to the judiciary. For democrats like me this is a fairly appalling admission.

Now at this point we should take a quick journey across the Tasman. Because thus far my examples of the expansive nature of a written constitution’s coverage have all been from jurisdictions with a bill of rights as part of that written constitution. Australia, however, does not have a national bill of rights. To today’s law students in Canada and the United States, and indeed in the United Kingdom and here in New Zealand, that probably sounds shocking. Many will struggle to imagine that a country would not want a bill of rights. Of course at the end of the Second World War, within the lifetime of people still walking around, only two democracies had bills of rights – the United States and France, with France’s being the older of the two. Still, France’s was not justiciable. You could not go to court and invoke it, not until six or seven years ago. But my point is that in the last seven decades we have seen

³³ Richard Kay “Changing the United Kingdom Constitution: The Blind Sovereign” in Rawlings, Leyland and Young (eds) Sovereignty and the Law: Domestic, European and International Perspectives (OUP, 2013) at 116 (emphasis added).

what might be described as “the triumph of American constitutionalism”. Virtually every democratic country everywhere has opted for a bill of rights. Of course not all jurisdictions have the common law culture of uber powerful judges too. But they all have bills of rights. Well, except Australia. There is no national bill of rights in Australia to this day, though it protects rights perfectly well, as anyone who lived in New Zealand before 1990 might recall. Yes, one of the six Australian States has an amalgam of the New Zealand-United Kingdom style statutory bill of rights model.³⁴ But that is it. Australia’s position in this regard has gone from being the dominant orthodoxy in the democratic world to being the outlier par excellence.

Yet here’s the question. If we ditch the bill of rights can we be more confident that our written constitution will not be inflated by latter-day judges to make unintended and “unwanted at the time of adoption” inroads into democratic decision-making? Does the locking-things-in rationale better mesh with the future facts when there is no bill of rights?

And the short answer is “yes”, things are better. But they are far from perfect. In the early 1990s the High Court of Australia “discovered” an implied freedom of communication. This was found in the text and structure, supposedly, of the written constitution – despite the Australian drafters explicitly rejecting a United States style bill of rights; despite them rejecting a 1st Amendment type free speech right; despite two failed constitutional amendment referenda where all the citizens of Australia also rejected a bill of rights, the latter taking place only four years before the top judges “discovered” this implied speech freedom anyway.³⁵

Ninety years after its founding and the High Court of Australia (and be clear, judges tend overwhelmingly to support bills of rights for reasons too obvious for me to have to articulate so most were disappointed by the 1988 referendum) just found this enervated free speech entitlement lurking “impliedly” (but for 90 years unseen) in the written text. Wow! And I say that as one who sees himself as one of the biggest supporters of free speech going in the common law legal academic world. But one’s first order preferences and values are one thing, and one’s assessment of what a text honestly means is another – even if that distinction appears these days not to be one recognised by United States and Canadian top judges.

So the top Australian judges did not even need a bill of rights to do this. And then under a decade ago that same High Court of Australia “found” or “discovered” or “made up out of thin air” (pretty much how I would

³⁴ Charter of Human Rights and Responsibilities Act 2006 (Vic).

^{35 I have argued against the plausibility of such interpretive claims. See,}

^{for example, James Allan “Implied Rights and Federalism: Inventing}

^{Intentions While Ignoring Them” (2009) 34 University of Western}

^{Australia Law Review 228; “You Don’t Always Get What You Pay For:}

^{No Bill of Rights for Australia” (2012) 24 New Zealand Universities Law}

^{Review 179; and “Paying for the Comfort of Dogma” (2003) 25 Sydney}

^{Law Review 63.}

also describe the US Supreme Court decision³⁶ on same-sex marriage for what it is worth), a sort of “right to vote” to do with prisoner voting³⁷ – which is no longer up to Parliament in Australia, though of course it is here in New Zealand.

I could go on. But the point is that even an Australian written constitution (which owes much to James Madison, at least before Madison was pushed into supporting a bill of rights) can be – no, has been – used to over-ride the elected legislature in ways never remotely imagined by those framing and drafting and fighting over every word of that written constitution, as well as by those reading it when first produced and voting on whether to adopt it. Sure, the Australian model leaves far more to Parliament than the Canadian or United States variants. But not as much as in New Zealand. Yet how it will be used in the future is highly uncertain.

Any promise that a new written constitution will take only some pre- determined chunk of pie off the democratic legislature’s table simply can never be honoured. It is a cheque you cannot cash. The empirical evidence, as Kay and many others admit, is overwhelming. Look at the United States. Look at Canada. Look at Australia even.

If you prefer social policy decision-making to be made by committees of ex-lawyers, then this will not bother you at all. And do not think that sort of attachment to a modern day variant of aristocracy lacks widespread appeal. It dominates the law schools of the common law world. It dominates the Bar Councils and Law Societies too.

But if you want the elected legislature to have the last word, as I do, then you want an unwritten constitution.

4 Decide looking forwards not backwards

I will be brief when it comes to my last point. Once you have a written constitution it is impossible to go back. And once one is in place the ex post facto rationales all speak in the name of “the Constitution”, not some contentious (or patently implausible) interpretation of it. Or to make the same point in different terms, judges give interpretations in the name of the Constitution, not in the name of their own names. Rhetorically this is a “can’t lose” advantage. It will trump all else. Critics of how the written document is being interpreted will be sloughed off with observations that “everyone is unhappy with a decision here or there”.

Similarly the related distinction between (i) whether one agrees with the first-order substantive outcome of a case and (ii) whether one believes the interpretation of the written document plausibly allowed for that outcome gets obfuscated. For many on the winning side of some social-policy dispute, only the former matters. And this can create much consternation and

³⁶ Obergefell v Hodges 576 US (2015).

^{37 James Allan “The Three R’s of Recent Australian Judicial Activism: Roach,}

^{Rowe and (No)’Riginalism” (2012) 36 Melbourne University Law Review}

^743.

pessimism when you are on the losing side of some judicially-imposed outcome that you will never have a vote on and that seems simply to have been made up by the judiciary. Let me quote four times from an eminent American legal scholar, one who is unhappy with recent judicial gymnastics in the United States, in his recent 2015 Constitution Day address:

...many issues are again resolved not by elected legislators but rather by unelected judges based on a mere figment of connection to the Constitution. The recent imposition of same-sex marriage on the nation by judges unwilling to allow this ostensibly inevitable development to be implemented democratically is a leading case in point.³⁸

... if we do not start with a commitment to arriving at a particular, presumptively desirable destination, and if instead we ask how governance truly committed to rule by ‘the People’ would work, the whole modern enterprise looks different, and much more dubious.³⁹

...if we think of our constitutional tradition as a project in self-govenance, this [now dominant ‘living Constitution’, just pick some supposed principle embedded in the document and go from there interpretive] approach will seem less appealing, not to mention manifestly implausible. That is because it is hard to picture political actors making a political decision to enact some ‘principle’ whose implications they can only dimly foresee, and thus to authorize future adjudicators to enforce their own

‘conceptions’ of what that principle entails. Legislators could do that. But they almost surely wouldn’t.⁴⁰

...the overall result will be that the Constitution as an instrument by which ‘We the People’ govern ourselves will to that extent have been displaced by a sort of Rorschach constitution onto which legal elites can project policies or principles that they favour and then, under the guise of

^{‘the Constitution,’ impose those policies or principles on the rest of us.41}

Read that pessimism and anger and be warned about the dangers of written constitutionalism. And take my final claim to be that any assessment of the merits of a written constitution ought to be made looking forward, before one is in place, not retrospectively once one is already in place. And from that forward-looking vantage, knowing what we know about top courts and dominant interpretive approaches in the common law world, New Zealanders should shun any attempt to move to a written constitution.

³⁸ Stephen Smith “The Image of Liberty” at 6 (on file with the author,

^{publication pending).}

^{39 At 7.}

^{40 At 8–9.}

^{41 At 10–11.}