A written constitution: The speech they didn’t want to hear

Back in the year 200o, in the first flush of the Fifth Labour government, Helen Clark and Margaret Wilson convened a Constitution Convention in Parliament that no-one had asked for. As I said in my post on  this last week, it was a move towards entrenching the Treaty of Waitangi in a written constitution—an effort, back then, that the usual suspects were not ready for and didn’t want.
Attending as Libertarianz leader, and having handed out to all attendees a compilation of articles and essays on constitutional thinking that seemed to be well received, I’d canvassed chairman Paul Reeves at lunchtime about being allowed to contribute. He indicated in private I should just stand up in the afternoon session and ask the chair to be recognised. I did, and he told me in public to sit down and shut up.
This was the printed speech I handed to journalists as I walked out.

Speech prepared for delivery to Constitution Conference, Parliament Buildings, March 2001
‘The Speech They Didn’t Want To Hear’

Let me start by answering the question on the table, 'Should There Be a Written Constitution?' I say yes - but not at any price!

I say this because I hear everywhere the view that democracy, voting for one’s political leaders every three years, is sufficient protection in itself against tyranny. I say that’s wrong. I say there are things that are so important that they should be put beyond the vote, things that need permanent protection--put beyond the grasp of the mobocracy. This is precisely what a written constitution is for: to put the important things beyond the vote.

Because a government big enough to give you everything you want is big enough to violate you as well.

As George Washington recognised: 'Government is Force.'  He said that in the aftermath of revolution—one that successfully threw out an oppressive colonial government—amidst a debate over how to protect against governmental force ever being abused again in that land. Everyone in that debate knew the best way to restrain that force was constitutionally.

For a simpler warning than Washington’s, try Chairman Mao’s dictum. 'Power,' he said, ' comes out of the barrel of a gun.' And he would know.  His decades-long genocide was a good example of absolute political power--unrestrained, unbridled, servant to the whims of a monster.

Many here today ignore the important distinction between economic power and political power. It is the same distinction as between freedom and slavery, between voluntary action and compulsion, between persuasion and force. 

Economic power is simply the power to produce and to trade what one has produced; when the people are left free and unable to use the government’s force as an ally, then real economic power can only be achieved by voluntary means, by persuading others to trade with you. You could say that a businessman’s economic power is exercised by means of a positive—his tool is the values he offers on the open market, and his economic power comes, we could say, from the barrel of his pen.

Political power stands in stark contrast to this. The politician’s power is exercised by a negative, by threats of punishment; his tool is fear, and his power is maintained in the end by force of arms - as we said, it comes from the barrel of a gun. Our discussion here today, we should remember, is about political power.

David Caygill¹ admits that political power - once gained - is very hard to give up. Jim Bolger² said last night that holders of such power, both past and present, form a 'very exclusive club' in which membership is not easily relinquished. Both gentlemen are living examples that what they say is true!

A certain kind of person is attracted to this “club,” and there is no need to wonder at its effect on them since it can be seen clearly enough in the room today.  I am surprised no one here at this event has quoted Lord Acton yet, who memorably reminds us that 'power tends to corrupt, and absolute power corrupts absolutely.' Since that was said, we have a further century of evidence, and many people in this room, to demonstrate his acuity.

So let’s examine our equation of political power. Add force to a tendency for corruption and what should we really expect? In much of the globe today we see precisely what you might be predicted. Life for the inhabitants of many countries involves random violations by an uncontrolled state; there are actually very few places around the globe which successfully protect individuals’ freedom against the power of the state. I expect most of you think that New Zealand is such a place; several tangata whenua at the back of the room might disagree with you³; Adrian Chisholm^4—in the public gallery today—will most assuredly disagree!

So what is the answer? How do we restrict the abuse of political power and allow liberty to breath?

My answer is to tie up the practitioners of political power and restrict the range of their possible actions—tie them up to act only as specifically allowed by law, and by contrast to allow citizens the right to do anything unless specifically disallowed by law.

This tying up of politicians and public servants can be done in three ways, none of them mutually exclusive. Either by the checks and balances inherent in a country's political structure; or by eternal vigilance, and constant political activity and agitation (which no sane person can manage for too long); or by a written constitution. I submit that in tying up the beast of state, the tightest bonds will be achieved by a written constitution. As Tipene O’Regan⁵ said yesterday:

All states commit theft. A constitution should protect us from that.

As I said earlier, there should be things placed in that constitution to be beyond any vote, beyond the reach of both mobocracy and bureaucracy.  Such things include my right to life, to my liberty, and to my pursuit of happiness and of property (in whatever form I may wish to hold it).

Provided it successfully sets up sufficient structural checks and balances to maintain its integrity, then a clear and objective written constitution and bill of rights is uniquely (placed) to enshrine and protect these rights.

So to answer again the question on the table, 'Should There Be a Written Constitution?' I say, yes. And say that’s what a written constitution should uphold.

Roger Kerr⁶ and others here have argued that 'if it ain't broke, don't fix it.’ I suggest to so argue is to merely fight a holding action against the subjectivist authoritarian tide, for as the cases of Adrian Chisholm's and many others demonstrate shows us, “it” certainly is broke. (And so, now, are they!)

I trust it is obvious from my brief comments that I view the proper function of a constitution not to tie up the citizens, but the government; that this debate should focus on how that tying up should be done.  That we should concentrate on restricting government to its proper role of protecting our rights, instead of leaving it free to ride roughshod over them.

Libertarianz have already contributed just such a constitution to this discussion, and by now you will all have received a copy (and no doubt avidly devoured it). It is a constitution designed to clearly delineate the structure of government and the checks and balances on them, to declare what government's legitimate role actually is and how it is limited to that, what rights government is empowered to protect and how due process of law may properly extinguish such rights, and the method of removal of a government, including one that is in rebellion against it citizens.

I believe our constitution is a powerful contribution to this debate, and I say such a constitution should be on the table here.

Anything less would unleash political power, not restrain it. And any constitution ignoring rights, or (worse) manufacturing them beyond necessity, would make its unleashing permanent. This is why I say I’m not for a written constitution at any price.

Let me conclude by summarising my views. Put simply, government should be like a guard dog rather than a Nanny. The guard dog is there for one’s protection, however left un-watched and unleashed it is instead free to run amok and savage the children.

In the name of the individual liberty of everyone this country--of whatever race--I say it is essential that the dog be chained up. I am in favour of a written constitution to do that—but only if it is to act as that chain.

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NOTES
1. David Caygill was a former Labour Cabinet Minister, and since retirement never out of the government trough. He was most recently chair of ACC, chair of the Electricity Commission, and a board member of the Energy Efficiency and Conservation Authority (EECA).
2. Jim Bolger was a National Party Prime Minister, and since retirement never out of the government trough. Post-PM he enjoyed an Ambassadorship to Washington, chancellorship of Waikato University, and chairmanship of NZ Post and NZ Rail.
3. Many of whom had spent the event arguing that government had done them nothing but wrong.
4. Adrian Chisholm was a property developer whose project, property and career were ruined by vindictive city councillors and council staff. His High Court case against the council failed, but is now taught in law schools as a limit to the powers “public servants”  may use against their masters.
5. Tipene O’Regan was the chairman of Ngai Tahu, who had shortly before the conference been awarded in their Waitango settlement $170 million and a large proportion of the South Island.  After hearing him say what I’ve quoted above, I suggested to him he could talk about property rights now his tribe had some property to protect. He chuckled.
6. The late Roger Kerr was for many years the head of the Business Roundtable. A heroic battler for business freedom who was more right than wrong, but whose few blindspots could be frustrating.