A Sunday constitutional

I've been a fan of a constitution for some time, for one very specific reason: an effective constitution is the very best way to tie up a government.

Why is a constitution needed? Because in essence, good government is like a guard dog: it's there to protect us from being done over by others. However, if that dog is badly trained and it gets off the chain, we can be badly savaged -- more so sometimes than we would have been without the dog.

A constitution is our means of chaining up the government, and training it to act only in our protection.

As I’ve said already elsewhere, the task of government is to protect us against physical coercion and its derivative, fraud. Good government is the means by which retaliatory force is brought under objective control. A good constitution, properly written, brings the government itself under objective control.

Such a constitution was the intent of America’s Founding Fathers, but after nearly two-hundred years the success has been only partial. Building on the success of the US Constitution and seeking to close the loopholes exploited since its introduction, New Zealand libertarians have written a Constitution for New Freeland which sums up what we think a constitution should look like, and why.

• The Crucial thing within any democratic system is that majority rule is limited; that important things are put beyond the vote, specifically the thing our government is sworn to protect: our rights. Such things should be in a ‘Bill of Rights’, and those rights clearly enumerated are what the government should be constituted to protect. You can see our proposed Bill of Rights here.

· The job of government is to protect its citizens, not to infringe the liberties of its own citizens except by following due process of law – a ‘Bill of Due Process’ clearly outlines under what circumstances and in what manner those liberties may be breached, and for what specifically limited purpose.

· The US Constitution has suffered from interpretations that have often been at odds with the declared intentions of the Constitution’s authors – the Constitution for New Freeland puts the intentions of its authors on the record in the ‘Notes on the Bills of Rights and Due Process.’

Every good constitution relies on two further important restraints on the growth of Omnipotent Government:

1) significant public understanding and support for the constitution and its protections, without which politicians and advocates of a ‘living constitution’ can pervert the constitutional protections as easily as the simple agreements given in the Treaty of Waitangi have been perverted;

2) government’s powers are separated, so that each of government’s three branches – legislature, judiciary and executive -- has some specified veto power over the others. The imperfect separation of powers in our present NZ constitutional arrangements shows the dangers of being without these essential checks and balances on political power.

The task of constitutional law is to delineate the legal structure of a country’s law; it must therefore be superior to all other laws, and law stepping outside the bounds of what is declared unconstitutional must be able to be struck down – an accessible Constitutional Court makes this possible.

The superiority of a constitution to all other law is both a good thing and a bad thing. What’s good is that once a watertight constitution properly protecting individual rights is in place, it acts to chain up the guard dog and to keep it on its leash for good. What’s bad is that once in place, a poor or anti-freedom constitution is very difficult to get rid of.

As history demonstrates -- and the constitutional conference of 2000 and the current Select Committee review of NZ’s constitutional arrangements foreshadow – a bad constitution poorly written can give the erstwhile guard dog control of the back yard and the house, and rather than protecting us it then has no impediment to doing us over.

Liberty, as Thomas Jefferson suggested, requires eternal vigilance.