Constitutional symbolism - why a written constitution might be valuable


In my last blog I discussed why I’m sceptical about the idea that New Zealand should adopt a written constitution to make our constitutional arrangements more accessible. In this post I want to examine a related idea – that a written constitution carries some symbolic value that an unwritten constitution doesn’t. This idea was suggested to me on twitter by Dean Knight after a previous post about why New Zealand doesn’t need a written constitution (although Dean used the word ‘emblematic’ rather than symbolic). I think this argument has the makings of a sophisticated position in support of a written constitution, and is one with real merits. I don’t think it’s enough to get me across the line personally, but I can certainly see how the argument can be convincing.

The reason that the symbolism of a written constitution is such a sophisticated argument is that it taps into what makes written constitutions and unwritten constitutions different. It takes seriously an aspect of written constitutions that unwritten constitutions simply don’t have. Once a constitution is written down in all one place, it becomes a ‘thing’ with its own existence. That makes it easy for governments to point to something outside of themselves as a constitutional justification for the decisions they make and the things they do. It also makes it easy for citizens to point to something superior to the power of government and say, “This constitution will effectively hold you to account”.

In this way, a written constitution can act as an important symbol of limited state power and legitimate government. The things that we choose to include in that constitution therefore carry their own symbolic value, and will be recognised as fundamentally important. This might include human rights, aspects of the Crown’s relationship with Maori through the Treaty of Waitangi, and explanations of what different parts of government can and can’t do. This symbolism can be made even more powerful if the written constitution is adopted subject to a democratic process. Because the constitution is the highest source of constitutional authority, and the people themselves have created that authority, a democratically endorsed constitution makes ordinary New Zealand’s the authors of their own destiny. That’s about as powerful as constitutional symbols can get.

Unwritten constitutions don’t carry the same sort of symbolism. For one, they are not explicitly created, they just kind of exist and evolve. So an unwritten constitution is always at least one degree removed from express democratic endorsement. In addition, the relationship between an unwritten constitution and state institutions is less straightforward. It is not as hierarchical, and so it can be difficult to conceptually separate the exercise of public power (what governments do) with the justification for public power (what constitutions let governments do). Unwritten constitutions still function to limit state power and legitimise government activities, but the way they do this is not obvious and requires a bit of explaining. This undermines the simple, tangible symbolism that we associate with written constitutions.

Hopefully it is self-evident that this kind of symbolism is beneficial things for a nation that takes constitutional government seriously. I think it will be enough to convince many people that there is some additional value in moving to a written constitution. Personally, I will need a little more convincing to get me over the line. My concern is that symbolism may create a focus on a written document in an unrealistic and artificial way. It’s a bit like relying solely on architectural drawings to try and understand how a house works. You can probably get a good feel for where the formal parts of the structure are – the floors, walls and ceilings – just by observing what’s on paper. But it’s much harder to gain an understanding of how people live and interact in the spaces between the walls, floors and ceilings until you see it all happening in practice. And while the formal parts of a constitution are important, the interesting stuff usually happens in the gaps between those parts.

One of the benefits of an unwritten constitution is precisely that it is less tangible, more abstract. It confronts you immediately with the idea that there might not be a simple description for what government is doing and whether that’s okay. Powerful, direct symbolism might obscure that fact. Then again, its value might well hold if we are all committed to ensuring that our complex, nuanced constitutional practice lives up to the rhetoric of any written constitutional document we might adopt.

#unwrittenconstitution #writtenconstitution #constitutionalreform

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