Happy Sisyphus: A Review Article of G Palmer and a Butler, a Constitution for Aotearoa New Zealand
(2017) 27(3) New Zealand Universities Law Review 789
18 Pages Posted: 24 Aug 2017
Date Written: June 1, 2017
This article reviews Sir Geoffrey Palmer and Dr Andrew Butler's recent book, A Constitution for Aotearoa New Zealand, which proposes that New Zealand should radically reform its constitutional arrangements by entrenching an elaborate codified constitution, and making (most of) it judicially enforceable. The article contends that whatever the merits constitutional entrenchment in general, and the specific reform proposals made by Palmer and Butler as part of their proposal, their arguments for codifying and entrenching New Zealand's constitution are not convincing.
The article outlines three reasons why this is so. First, Palmer and Butler's proposal will do less than they expect to secure public knowledge and understanding of New Zealand's constitutional arrangements. They will neither prevent the development of constitutional conventions nor obviate the need for a body of constitutional case law to go along with the entrenched text. Second, codifying and entrenching not only the most important constitutional rules but also details of government institutions or at least elaborate guiding principles for their operation tests the limits of human foresight and invites litigation and instability, especially in a legal culture that is not committed to originalist constitutional interpretation. And third, considering in some detail Palmer and Butler's proposal to entrench rights to liberty and security of the person, it is apparent that their arguments in support of this proposal do not engage with its likely implications, in particular regarding the extent of judicially imposed limits on democratic legislation based on these rights, such as those that have been developed in Canada.
Keywords: New Zealand, Entrenchment, Judicial Review, Constitutional Reform, Canada
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