SUMMER REPRISE: Cue Card Libertarianism -- Constitution

In case you hadn’t noticed, the government has a committee working quietly under the aegis of Pita Sharples and Bill English towards entrenching the Treaty of Waitangi in a constitution a “constitutional review.” The committee, comprising a number of government and tangata whanua toadies, has been examining “the role of the Treaty of Waitangi within constitutional arrangements,” “how New Zealand's legal and political systems could better incorporate Maori,” and “whether New Zealand needs a written constitution.”

I doubt, if one emerges, it will be one that Thomas Jefferson would recognise.

An appropriate time then to re-post (with new links!)my Cue Card on what a constitution is for.

Cue Card Libertarianism -- Constitution

Why do we need a government at all? James Madison puts the argument in a nutshell:

If men were angels no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

Here’s the essential argument against anarchy, and for a constitutional republic: Because men are not angels, and government does need to be controlled.

But how?  That’s the question.

Let’s start with the purpose of government.  Government in essence is like a guard dog*: 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 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 in these Cue Cards, 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, a clear and understandable document delineating a government that protects individuals’ rights, 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 what we call A Constitution for New Freeland summing up what a good constitution should look like, and why:

• The job of government is to protect our rights—a ‘Bill of Rights’ clearly outlines the rights to be protected.
• The job of government is not to infringe the liberties of its own citizens without 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 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.’
• To prevent monopolisation of political power, a good government should have its powers separated—a formal statement is included as to how the rigorous separation is to be ensured, and each of government’s three branches – legislature, judiciary and executive – is given some specified veto power over all 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.

Every good constitution relies on one further, crucial, restraint on the growth of Omnipotent Government: 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.

Further, 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 a previous Select Committee review of NZ’s constitutional arrangements foreshadows – a bad constitution poorly written can give the erstwhile guard dog control of the back yard and the house, and before you know it it’s chewing off your leg and attacking the baby. Rather than protecting us, it has no impediment at all to doing us over.

Liberty, as Thomas Jefferson suggested, requires eternal vigilance.

This is part of a continuing series explaining the concepts and terms used by libertarians, originally published in The Free Radical in 1993. The 'Introduction' to the series is here.

* Yes, you really do have to watch your spelling!