As you can see from the NYT headline below, even the most basic, simple instructions of America’s constitution are always up for debate, which will run through the voices of millions of American voters, both individually and via many NGO’s (such as the ACLU and the Federalist Society), through Congress and the States themselves if it comes to amendments.

Here in New Zealand of course we have our direct inheritance from Britain; an unwritten constitution with Parliamentary Supremacy – which means that whatever Parliament says, goes, and to hell with imported semi-American nonsense like a Bill Of Rights, which revealed itself as a farce during the times of the Great Chinese Lung Rot Pandemic, when it became clear that the State in New Zealand can do whatever the fuck it wants.

To be fair the US ended up in pretty much the same place

A mother arrested in Meridian, Idaho for letting her kid play in a park. – 2020

All the same, when I read that letter from 42 KC’s the other day bitching about ACT’s Treaty Principles Bill I was struck by the same thing that Liam Hehir pointed out:

They assert that it is “uncertain” whether Parliament can legislate in the way the bill proposes, arguing that it is “not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties.”

Arguments against Parliament’s authority to make law affecting anyone in New Zealand cannot succeed in our courts currently. Parliament’s power to legislate needs to extend to all matters within these islands. No treaty or statute is beyond its reach.

So why would such eminent members of the legal profession make this erroneous claim? Well, there has been a long-standing desire within parts of the legal profession and associated academic fields in which judicial activism and scepticism of parliamentary sovereignty have been quietly cultivated for decades.

One part of me looks at this as an opportunity to establish a written constitution since these folk clearly think that Parliamentary Supremacy is obsolete.

Another part of me dreads the idea of a written constitution since in this day and age we’d never come up with something as clean and simple as the American one but more along the lines of the EU’s bloody Lisbon Treaty – all 336 pages of it – and that’s before we get into the all ethno-state stuff arising from the Treaty of Waitangi and subsequent legislation.

But I also appreciated this link to Law News NZ sent to me by a rellie who is also a lawyer which (gasp) criticises those KC’s and makes these two crucial points:

  • They have elevated the New Zealand courts’ interpretation of Parliament’s references to the principles of the Treaty of Waitangi in legislation as an independent source of law rather than interpretative law that ultimately derives its validity and source from Parliament’s expressed will in enactments.
  • They assert that the New Zealand Parliament’s sovereign right could depend on its conformity with the principles of the Treaty of Waitangi or the treaty itself. Because the courts have treated the treaty as part of the fabric of the constitution, the argument is that somehow the treaty operates like that of the Constitution of the United States.

Exactly the point Hehir and DPF make.

So if we’re going to end up with a written constitution anyway, or at least the basic equivalent of it, I would prefer that we arrive at via the sort of disputation that accompanied the US one, rather than it being handed down from on high by our judicial superiors.