The New Zealand Constitutional Review: Tradition and Change

Abstract

What do we want a constitution to do? Do we want it definitively to settle deep political disagreements about our fundamental commitments as a nation or do we want it to set out a process out of which a settlement can evolve over time? The Constitutional Review terms of reference reflect 3 constitutional traditions which are often viewed as rival and conflicting : monism (governments hold plenary power between elections and any external controls on such power are antidemocratic); constitutional foundationalism (we already have a formal constitution in the Treaty of Waitangi which continues to speak to the form of our political institutions and to our law); and constitutional patriotism or cosmopolitanism (which appeals to universal rights and freedoms independent of history, time and place). The current unwritten constitution accommodates all three important traditions in a mutually limiting way. If we should decide to formalise further our constitutional arrangements we should learn from our experience of our unwritten constitution: our aim should not be to decide between these traditions in the abstract, or to resolve these issues one at a time, or to replace entirely our existing ordinary processes of constitutional change for a single high stakes constitutional settlement.