Dr. Efford on constitutions as a lens for looking at the past and present in New Zealand and the US.
I am an historian of the United States. I am also, among other things, a New Zealander. I have always imagined that my outsider’s perspective brings something distinctive to American history. But on my latest trip home (reconnaissance for a project on Samoa), I thought the tables might turn. Perhaps my American training could offer useful insights into developments in the country of my birth. New Zealanders are performing a constitutional review, and the American past has a lot to say about constitutions.
Americans penned state constitutions as they struggled for independence from Great Britain in the 1770s and then framed the capital-C Constitution to strengthen the central government. New Zealanders, on the other hand, never codified their fundamental law. The country slowly grew apart from Britain, and centralization is not much of an issue when your population only numbers 4.2 million!
New Zealand has no capital-C constitution. Its system has developed incrementally through the interpretation of English common law and the passage of parliamentary legislation regarding representation and individual rights. The closest thing New Zealand has to what Americans might recognize as a constitution is the Treaty of Waitangi. This document, signed in 1840, was an agreement between envoys from Britain and representatives of Maori, New Zealand’s original inhabitants. The Maori signees recognized the Crown’s authority in return for the recognition of their tino rangatiratanga (chieftainship) over their land, homes, and other taonga (treasures). (The definition of “tino rangatiratanga” and “taonga” is contested—and significant since Maori signed a Maori version of the Treaty.)
Although Pakeha (European) New Zealanders repeatedly disregarded the capital-T Treaty for well over a century, during the 1970s, Maori began to use it to reclaim some of the power wrested from them by force of arms, deception, and demographics. Parliament established a tribunal to redress grievances under the Treaty and thus elevated the document’s legal standing. This process provides the context for the current constitutional review. The Maori Party (just one of the many groups that represent Maori today) requested the formal public discussion in return for its support for the center-right National Party in parliament.
New Zealand is not the United States, but as Kiwis are considering their constitutional system might they not learn from the American example? Perhaps they should put more down in writing. Are legal precedent and regular old legislation enough to constrain parliamentary majorities? Are there enough checks and balances? The Treaty provides a basis for a bi-cultural nation, but what about New Zealanders whose roots are neither Maori nor British? In the United States, the expansion of political, economic, and social justice has been expressed through formal constitutional revision and reinterpretation. Think of the period after the Civil War, the enfranchisement of women, the New Deal, and civil rights after WWII.
I know a lot of opinionated New Zealanders, but I couldn’t find anyone with a strong response to these questions and observations. That’s partly because they see the whole constitutional review as a partisan compromise, not a serious political exercise. Then there are the sensitivities surrounding the Treaty. Codifying the current system might serve to weaken—or strengthen—Maori claims.
Most importantly, though, most New Zealanders are generally happy with their unique form of government. New Zealand has not generally lagged behind other countries in addressing political, economic, and social discrimination, and sometimes it has led the way. It was the first country, for example, to grant women the right to vote in 1893. A written constitution is one way to pursue just governance. So instead of teaching New Zealanders a thing or two about constitutions, I left reminded once again that the American path is just one path of many.
Alison Efford’s work focuses on late nineteenth and early twentieth US history and immigration. Her first book, “German Immigrants, Race, and Citizenship in the Civil War Era,” is under contract with Cambridge University Press. She recently traveled to New Zealand and Samoa to conduct research for her next book project.