My Summer Vacation (or, What I learned from visiting New Zealand )

Sandy Levinson

I have now returned from a fascinating visit to New Zealand, and there is much to report on. First, though, a word from the New Zealand Tourist Bureau: Not only is New Zealand a beautiful country, even in their winter; New Zealanders as a group are also the nicest, most accomodating group of people I've ever seen. I could tell many stories of the superogatory kindnesses my wife and I were shown during our visit. I wholeheartedly recommend it as a place to visit.

Among the reasons, beyond the scenery and the pleasant people (and fascinating mix of cultures and wonderful museums), is what can be learned from the fact that in many ways New Zealand is at the other end of the constitutional-design spectrum from the US. One might begin by noting that it doesn't have a canonical "constitution" at all, though some argue that a group of basic statutes, going back to the Waitingi Treaty of 1840, have "constitutional" status. Be that as it may, New Zealand is perhaps the purest remaining example in the world of a classic "Westminster system" of parliamentary supreacy, and the parliament in question (though it's called the House of Representatives) has only one house. There is no judicial review, a fact emphasized in the New Zealand Bill of Rights Act, which explicitly says that judges are not entitled to invalidate any parliamentary legislation (though the NZBRA can certainly be applied against the "discretionary" actions of administrative agencies and the police, for example). Kiwis, having decided during the 1980s that their single-member district, first-past-the-post system was dysfunctional inasmuch, as in Olde England, it generated a highly aggressive prime minister who had a majority of the seats though not a majority of the electorate, changed their system, which is now basically identical to Germany's (which I regard as the best formal system in the world). Half the House of Representatives is elected in single-member districts, and the remainder through a national party-list system that assures that the final distrubution of seats will reflect the national vote (with a 5% threshhold for getting seats). This means, among other things, that the present government is a coalition government, as would certainly be the case in the UK if they switched to the German model. (Instead, Margaret Thatcher and Tony Blair can claim "mandates" by receiving 35-42% of the national vote.)

I remain unclear about what lessons New Zealand might have for the United States, given that we are 75 times as large (New Zealand has only 4,000,000 people in it), for starters. As I've earlier written (I think), I certainly think we are way too lare not to need a second legislative house, even if I remain adamantly opposed to the present allocation of power in the Senate. And, as with most federal systems, it's truly hard to envision doing without some kind of judicial review, as Jack suggested in his reply to Matt. It is certainly hard to imagine simply abolishing the dormant commerce clause if one is to prevent overreaching by states with regard to accepting the implications of the "national free trade zone" established by the Constitution. That being said, it was refreshing to be in a country where people (or at least the law professors and students I was interacting with) seemed to feel somewhat in control of their destinies, unlike Americans who are stuck inside a dysfunctional Constitution and, as a result, engage in all sorts of denial about the costs of our present system.

But even if New Zealand has relatively little to tell us about the national government in the US, it might still be a useful guide for American states. As Jesse Ventura pointed out, altogether correctly, there is no reason in the world for Minnesota or any of the other states with a population similar to (or smaller than) New Zealand's to have a second house, especially if these states have governors with the veto power. One thing we are realizing, given the inability of the national government to function effectively--at least in a civics book sense of passing legislation relevant to national needs--is that we need ever-more-able state governments. And at that level there is a tradition, in many states, of holding new conventions or, of course, in the western states, engaging in popular initiative and referenda to change constitutions. Most such referenda, of course, deal with hot-button substantive issues. It would be wonderful if someone in a referendum state would ask why it needs a senate. If it is too radical to suggest that New Zealand might provide useful evidence, then look only at Nebraska, which seems to function just fine with a unicameral legislature. Moreover, it is not clear why some state shouldn't be interested in looking at the NZ electoral system, which instantly makes close to irrelevant the possibility of gerrymandering. It may be hopeless to consider such a reform at the national level, where it is impossible to envision national-party "lists," but surely one might envision state-party lists, even in California.
Posted 6:38 PM by Sandy Levinson [link]