Is a Written Constitution Necessary?

Abstract

I would not presume to make a recommendation to you on this topic; for one thing, I could not hope to have sufficient knowledge of your people or your government. And, in any event, it's your constitution and your country, after all! But I can relate some of the American experience with a written constitution and share some of my personal observations as a federal judge on how our Constitution has shaped American government. Two specific issues come to mind. First, the adoption of a written constitution could significantly reconfigure the relationship between the branches of government by affording the judiciary the power to issue authoritative interpretations of the document's meaning. In the United States, for example, once the Supreme Court has construed a constitutional provision, Congress is bound by the Court's pronouncement and is powerless to alter the Court's interpretation through the ordinary legislative process. In the ongoing constitutional debate, New Zealanders may want to consider whether imbuing their courts with such significant powers is consistent with this country's tradition of parliamentary supremacy.

A second, related point concerns the use of foreign practice and precedent to interpret a written constitution. There is an ongoing debate in the United States regarding the propriety of so-called "comparative constitutional analysis," and the adoption of a written constitution in New Zealand may prompt a similar discussion in this country. I will therefore briefly touch upon the American experience in this area.