Of mice, men and constitutions

Published in The National Business Review (Auckland), 7 October 2016

When you are running out of ideas on how to spoil a party, just invite a German. That must have been the idea when Sir Geoffrey Palmer and Andrew Butler asked me to speak at the Auckland launch of their book, Constitution of Aotearoa New Zealand.

Indeed, they knew I would not wholeheartedly endorse their proposal. This demonstrates the authors’ genuine wish to trigger a debate rather than seeking the confirmation of an echo chamber.

Much has been written about their constitution, including on these pages. Weeks before it was launched, my old friend James Allan dismissed the idea out of hand, instead arguing for radical parliamentary sovereignty. Last week, my colleague Bryce Wilkinson argued that “the strongest case against a written constitution for New Zealand is that we would make a mess of it.”

So let me make my own position perfectly clear: I am fundamentally ambivalent about whether New Zealand would be better off with a written constitution. So sorry, Sir Geoffrey, Andrew, James and Bryce: I am with none of you – or at least not completely.

That means I do not believe a written constitution would automatically be disastrous for democracy. Neither do I believe written constitutions to be a panacea for better government, no matter how well they are drafted.

I could make my case for such constitutional ambivalence by pointing out some real life examples. Switzerland has a written constitution and is still one of the best-functioning, and most liberal, democracies on earth.

At the other extreme, Zimbabwe’s 2013 constitution enshrines the values of the rule of law, fundamental human rights and freedoms, and equality. Yet no one would think Zimbabwe sets a good example for good governance or indeed constitutionalism.

My constitutional ambivalence was shaped by growing up in a country that has a good constitution: Germany. In fact, for a long time of post-war history, pride in the Basic Law was the only positive identity available to the (West) Germans.

After the Third Reich and the Holocaust, being German was embarrassing. But at least the new Federal Republic had given itself a constitution the country could be proud of. Thus the idea of Verfassungspatriotismus (constitutional patriotism) was born.

The Basic Law drew the right conclusions from the country’s terrible past and created a much better Germany. It was a republic that guaranteed the rights and dignity of all its people, established checks and balances on government’s power, and strengthened Parliament and MPs.

Crucially, the Basic Law also applied the lessons of the Weimar Republic (1918-33) and its 1919 constitution. The Weimar Constitution was ill-designed and did not prevent the abuses of government power that followed after 1933.

Unfortunately, when I first looked at the Palmer/Butler proposal, I was immediately reminded of that Weimar constitution. It is the structure of their proposed document, more than anything else, that irritates me.

Palmer and Butler dedicate the first parts of their constitutional proposal to the organisation of the state. They start off with the supremacy of the constitution, various aspects of state organisational law, the government, parliament, law-making, finance, taxation, the judiciary, international relations and defence and security. It takes until Article 75 before they get to the rights of the individual.

The Weimar Constitution was like that or actually worse. There you had to wade through 108 articles of law related to the organisation of the state until you noticed that there were people as well.

Political scientists, historians and lawyers have often pointed out that the Weimar Constitution’s lack of focus on individual rights made it easier to sweep them aside when Hitler grabbed power in 1933. The constitution was defenceless and there were no provisions against abuses of power.

More philosophically speaking, putting the state before the individual in the constitution sends a questionable signal. Social contract theory since Hobbes and Locke has argued the whole purpose of the state is to protect the freedoms and rights of the individual. In other words, the state serves the people – and not the other way around.

If that is so, would it not be logical to begin a constitution by enumerating those individual rights it is meant to protect? It would underline that the state in its entire construction is only a means to an end but never an end in itself.

In the German case, that was the conclusion drawn from the failure of the Weimar Constitution. The new Basic Law starts boldly with the following provision: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”

It then goes on not only to enumerate these rights but also declares they “shall bind the legislature, the executive and the judiciary as directly applicable law.” In a further Article, it declares any amendments to these principles inadmissible.

Palmer and Butler seem to have more faith in the benevolence of the state and its institutions that the protection of individual rights seems to come as an afterthought.

Having made my case for the supremacy of individual rights in any constitution, I still need to add a caveat. No matter how carefully crafted, even the best negative freedoms enshrined in a constitution can turn into positive freedoms over time. If that sounds obscure, just look at what happened to Article 1 of Germany’s Basic Law.

In a 2010 case, Article 1 was used to determine whether the government correctly set benefit levels for children. The Constitutional Court’s president explained, in deciding the case, it had to consider what benefit levels would allow a life in dignity.

A constitutional provision to stop the next holocaust had thus morphed into a guideline for determining benefit levels. It was probably not what the drafters of the constitution had in mind.

This brings me back to the Palmer/Butler proposal. It contains laudable elements like a proposed guarantee of property rights. It is driven by the understandable desire to make the system of government more intelligible and perhaps also more logical.

And yet, its construction places the state far too high above the individual. Even if that order were reversed and the focus on negative freedoms strengthened, it would be no guarantee the constitution would not turn into a document whose de facto application would deviate from its original wording.

As former German president Richard von Weizsäcker once put it, having a good constitution and being in good condition are not the same. Or, to say it with Robert Burns, “the best laid schemes o’ Mice an’ Men, Gang aft agley.”

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