Ely in New Zealand

Abstract

Abstract John Hart Ely’s representation-reinforcing theory of the US Constitution had a significant impact on the drafting of the New Zealand Bill of Rights Act 1990. This short article begins by recapping briefly the pathway by which that influence occurred. It then expands on earlier accounts in two ways. The first is to suggest that Ely’s influence in New Zealand illustrates the significance of American postgraduate legal education programs as a vector for the migration of constitutional ideas (although the causal relationship in this case is neither straightforward nor direct). The second is to confront more explicitly a nagging question raised by earlier scholarship: to what extent was it Ely specifically (rather than US process theories more generally) that influenced the New Zealand experience? The article suggests that, at very least, Ely’s work acted as the conduit by which the ideas underlying American process theory were transmitted into the New Zealand text. Although it is inevitably somewhat speculative, the article also suggests that it is unlikely that, in the absence of Ely, the drafters of the N.Z. Bill of Rights would have pursued a process-perfecting strategy with quite the same vigilance and systematicity.