Hehir argues against a written constitution


Earlier this year, American Supreme Court Justice Antonin Scalia died while holidaying in Texas. 

As one of the brightest lights in the conservative legal movement, the process of replacing him is going to be partisan, ugly, public and potentially quite vicious. The American judiciary is just one more battlefield in the culture wars.

By contrast, judicial appointments here barely make the news. Few New Zealanders – even political trainspotters – would be able to name all of our present Supreme Court justices. That is as things should be, since our courts have the trust of the public when it comes to the neutral and impartial interpretation and enforcement of the law.

It is true that a would increase the importance of the Supreme Court and make partisan politics more of an issue for it. However I’d argue we already have that to some degree – but more quietly.

One of the central outcomes of having an unwritten constitution is parliamentary sovereignty. Aside from some minor provisions in the Electoral Act, Parliament can pass any law it likes.

It can change the entrenched provisions also – just needs to amend the entrenching section first.

The provisions of the constitution, not Parliament, would be supreme. And since the meaning of the constitution would be determined by judges, this would necessarily elevate our unelected courts over our elected lawmakers.

Yep and I trust them more.

The American constitution is a very concise document, with its seven articles and 27 amendments clocking in at fewer than 8,000 words. But despite that brevity, the document has been stretched by the courts to cover such controversial matters as abortion, gay marriage and capital punishment. The actual text of the constitution neither prohibits nor mandates any of these things – but judges have allocated to themselves the final say on these matters to the exclusion of the people and their representatives.

The original constitution didn’t. The Bill of Rights did. One could not have the Bill of Rights in a constitution. Or do what Canada does and allow Parliament to over-ride the Supreme Court using the “Notwithstanding” clause.

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