My previous blog post look at whether there is any need for New Zealand to adopt a written constitution. I received some pretty interesting feedback on it, some of which suggested that the question was a trivial one. In a way it is, but it’s the first question I get asked when people find out what I do. So it’s an important matter to get out of the way so that we can address more substantively interesting questions – like the relative of a written or unwritten constitution – in a more sophisticated way.
I want to start that process by discussing two related reasons often put up to support a written constitution. This post looks at the first reason – that a written constitution is more accessible. In my next post I’ll look at the second reason – that a written constitution has important symbolic value. I think these arguments are related because they both rely on the simple idea that a written constitution is a tangible thing (a piece of paper with writing on it) that you can physically point to. An unwritten constitution doesn’t have this same ‘tangibility’ about it.
Let’s start with the idea that written constitutions are more accessible, especially to ordinary New Zealanders. As I understand it, this is the key reason behind Sir Geoffrey Palmer's latest call for a written constitution. A written constitution puts all the key rules and ideas about constitutional government in one convenient place. If that written document is well drafted, then it is also easy for people without legal training to understand and engage with. If this sounds a bit motherhood and apple pie, it’s important to recognise that accessibility could have real consequences. For example, widespread knowledge of constitutional rules should help better hold the government of the day to account, and it should help ordinary New Zealanders understand the implications of constitutional change (like, say, adopting a new national flag).
I am a big fan of making New Zealand’s constitution accessible, but I don’t think we should conflate more written-ness at the constitutional level with more accessibility in all cases. For a start, large parts of our constitution are already written down in statute (the Constitution Act 1986, for example), and so interested New Zealanders can already refer to many of the key rules and ideas that shape our government. No doubt this could be improved and made more complete, but that doesn’t require adoption of a written constitution. It could simply be a matter of statutory amendment and consolidation.
Second, I’m not aware of any evidence that a written constitution encourages self-aware constitutional thought, even if key ideas are made accessible. The world’s most famous written constitution, the United States Constitution, gives millions of American citizens access to key ideas like freedom of speech and freedom of association. However, the qualifications and limitations of those concepts – which are a necessary part of any working constitution – are not so well understood. In many cases, this superficial understanding limits the effectiveness of everyday constitutional debate.
Third, I worry sometimes that accessibility might be compromised even if it is a direct motivator for a written constitution. Sir Geoffrey has suggested a 40-page constitutional document for New Zealand. Forty-pages is a lot for a non-expert to get to grips with, but then I’m not sure shortening it would help much. Either we have a constitution that is long and dry, or one that is short and ambiguous. Neither lends itself to high levels of accessibility for ordinary New Zealanders. Rather, I think the best way to make our constitutional arrangements more accessible to ordinary New Zealanders is through better civics education. I welcome any ideas on how we can achieve this as I think it is a real problem without a clear solution.
So I’m personally sceptical of arguments for a written constitution based on greater accessibility. I really think the two issues are separate. But perhaps I’m wrong. Understanding the constitution as a distinct ‘thing’ might just make it more real to think about for some people in a way we can’t otherwise replicate. If that’s the case then a written constitution might be a good idea – as long as it is very carefully drafted.