Quasi-constitutionality and the Treaty of Waitangi : Historicity and the political 1

Abstract

This paper presents preliminary ventures on questions of ‘quasi-constitutionality’ and broader constitutionalism as organic concepts. The author examines the historical-political constitutional framing of New Zealand to demonstrate that the grounding of the dynamic, generative, activity of constitutional reflection is political. This notion is discussed with regard to the Treaty of Waitangi, with a particular focus on the intriguing challenges that the Treaty poses for intrepreting ‘quasi-constitutionality’. The author concludes by acknowledging that there are conceptual problems that arise when ‘quasi-constitutionality’ is related to an instrument such as the Treaty. Nevertheless, there must be an historical turn in the approach towards uncodified constitutional norms and towards the constitutional significance of certain enactments.