The Law Society and constitutional crisis

The Original Constitutional Crisis

Constitutions are dynamic as they need to adapt to deal with the major problems of the day. That is their purpose; to create rules to help run a democratic society according to our values. In my previous article I suggested the following problems were things a constitution could help our democracy deal with:

  • secure civil rights
  • political parties campaigning on one set of policies, then getting in and acting like dictators by doing something completely different. 
  • small third parties holding democracy hostage to their whims, or pulling politics into extremist positions, ( action on climate change was held back by small parties and look where we are now). 
  • government being paralysed by a lack of consensus. 
  • tyranny by the rich.

But among the comments it was said a constitution can’t deliver the things I have suggested, i.e., a written constitution simply does not do these things.  And this is a problem a written constitution will face; an indoctrinated pre-conception that a written constitution is largely about following the pattern of 18th century constitutions, i.e., a timeless classical and enduring form is what is needed. Rubbish.


To demonstrate it can do the things I suggest, let’s look at one of the prime examples, the US constitution. At the time of the formation of the US the main example for democracy was classical Greece. Not a lot of help.* But many of the wealthy participants in the conference to create the US constitution were terrified by the idea of the illiterate masses getting hold of the government and start doing things. So they made the President like a king, the Senate like an aristocracy, and Congress like a parliament. So all the work of Congress could be carefully controlled and supervised by the wealthy elites.  The president of course was not elected by the people but by the electors.


The US was barely a democracy as we understand one today. And it’s democracy and economy still suffers today from that poorly designed framework which holds back the betterment of its people and the growth of its economy. But they did design the constitution to deal with the problems as they saw it in their day. And the ideas that they had were from a time, over 200 years ago, when the whole concept of the role of government was tiny to what the government is tasked and capable of dealing with today.


James Madison one of the founders of that US constitution did not see a constituion as a permanent structure but said the constitution should be changed on a regular basis. I.e. a constitution has to adapt to the issues it faces on how to run a democracy. Of course kings and dictators don’t need constitutions and a democracy should have rules to stop these outcomes arising.


The reality of a constitution having to deal with modern democratic problems is most clearly seen in the terrifying example of the state of Israel. Like us it has a proportional representation system but with a multitude of small parties. But the chances of a moderate centrist government as they had under Yitzhak Rabin has been squeezed out by the rise of extremism. To form governments centrists have to pander to extremist parties; they can’t call them out or take them on as their government will fall. And when I say extremist, a few of these parties believe in the end times and bringing about the end of world; and what some say about Palestinians is deplorable. Democracy in the state of Israel is becoming a stain on the credibility of democracy as a form of government. 


New Zealand already has an example of how a constitution could shape the functioning of parliament. Mr Peters had an idea of creating a superannuation fund but the agreement was he had to take it out for a referendum. It didn’t get the votes. This could be used to prevent small party policies dominating the large parties policies, i.e., they must be able to demonstrate their policies to the nation and not rely on smoke and whiskey fuelled back room deals. (Referendums must be properly funded to fairly demonstrate the pros and con, and with some money to promote).  And to prevent a major party presenting it as their own rather than the small party it would have had to have been in the main parties election manifesto. This is just an example of a tiny idea about how we can use rules in a constitution to shape our democracy so the tail does not wag the dog. 


The idea of basing a written constitution on a static 18th century concept is not helpful. A constitution could be reviewed every 10 or 20 years by public submissions and a panel from our best active academics with perhaps a few from overseas to give balance to hopefully make it less at risk of local politics? Bring on the debate the crisis is already here. 


*The book ‘The Dawn of Everything’ by David Graeber and David Wengrow has fascinating insights on how early interaction with North American Indian societies…

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