Wednesday, August 17, 2011
The US Crisis And The Constitutional Review
The US is still a fabulously rich place, but a small group of immoderate Republican continue to hold the country to ransom, preventing much-needed reform.
If this continues, and as China's power inexorably rises, it's entirely foreseeable that within a generation the US will be a secondary power.
You know your fiscal system is seriously screwed when even billionaires demand to pay more tax. Warren Buffett's not exactly a screaming socialist.
It is easy to pin the blame on Barack Obama for showing weakness in the face of the Tea Party, and for allowing the Republicans to dominate the political agenda. But the blame should be shared with his fellow Democrats, and the current group might possibly be the most inept in the party's history (Civil War Democrats excepted). They had a mandate for change when Obama was elected, but they blew it big time. Now the Republicans dominate Congress, and they are not in a mood or compromise.
We may hope that the voters turf out the worst of the Tea Party members next election, and that things return to some semblance of normality. But I'm not hopeful. And with the way the US system works they'd all be back in two years anyway.
Short election cycles are a curse, because they lead to politicians being totally obsessed with campaigning and fund-raising. Our three-yearly cycle is bad enough (it ought to be at least four), but two-year terms for Congress members is nuts.
Campaign financing is also a curse in the US, as any aspiring politician must rely on donations from wealthy backers. In the end it's no wonder that the US system is as bad as it is.
We have similar problems in this country, though on a vastly smaller scale. Our own campaign finance rules mean parties are always searching for funding, and it's hardly surprising that when raising cash business-friendly parties do better than those that represent the poor or working classes. Having more money doesn't automatically mean you win an election, otherwise we'd have seen unbroken National Party rule for the last 20 years. But cash makes it easier to sell your message. It buys flyers, billboards, TV advertising and the like.
We have an opportunity to avoid the mistakes the US is currently making. Not just in how we set our fiscal and economic policies, but also in how we allow our politicians to be elected and to operate, and how we structure our constitutional affairs.
The upcoming constitutional review announced by the Government may just end up being a talkfest, but I would dearly love to see us take a serious look at a longer parliamentary term, and (although I'm not sure whether it fits squarely within the scope of a constitutional review) an examination of political funding. Is it time we just accepted the need to state-fund our parties?
The constitutional review will probably look at whether New Zealand needs a US-style written constitution. One thing that contrasts us sharply with the US is our lack of a "written constitution" (by which I mean all in writing in one document). As a lawyer I am at risk of approaching near-psychosis whenever I hear someone say that we don't have a constitution or a written constitution. We do, but it's just not all written down in one tidy place. It's a mixture of statutes, treaties and conventions.
A good constitution must provide certainty, but must also be flexible. Arguably the US constitution meets the first test, because we all know what it says, even if lawyers and judges can't all agree on what some of the principles mean in practice. But where the US system falls down is in its inflexibility. It can be amended, but if you look at the amendments that have been passed in the last 50 years, they're mostly over relatively minor matters. The last amendment, the 27th, took over 200 years to be enacted.
In that same period, New Zealand has changed its electoral system from First Past the Post to MMP, abolished appeals to the Privy Council and created the Supreme Court, and passed a number of statutes that defined clearly what the scope of the rights and powers of the various elements of the state and its citizenry is (the Bill of Rights Act 1990, Constitution Act 1986, and Human Rights Act 1993 are but a few).
While New Zealand clearly lacks a precise written constitution, there is much to be said for our ability to "muddle along" and change things as and when they appear to need reform.
Some people worry that not having a constitutional document that is paramount opens us up to the risk of an unscrupulous government passing draconian legislation. After all, it only requires a majority in Parliament to pass just about anything into law. And we have seen glimpses of the authoritarian impulses of our politicians over the years. Last year the Government's response to the Christchurch earthquake was to pass extraordinary powers that, if they were not actually borderline "unconstitutional" (whatever that means in the New Zealand context), were certainly unconventional and unprecedented.
But our ability to "muddle along" is perhaps our greatest strength as a nation (as well as being one of its most frustrating weaknesses when decisive action is required). We could impose a clear constitutional framework upon the various arms of government, but that would require us as a society to address a whole range of potentially insoluble issues. Like the role of the Treaty of Waitangi. Getting broad consensus on that issue alone would, I suspect, be impossible. And yet not having the Treaty somewhere "in the mix" would be intolerable to Maori.
The US isn't looking good right now, partly because its constitution is structured in a way that allows intransigent factions to prevent reform and change. Change, if it comes at all, will be slow and tortuous.
So I am lukewarm at best on the idea of a "written constitution".
On the other hand, I am happy to be persuaded.
What do you want to see from the constitutional review?