When Constitutional Theories Migrate: A Case Study

Abstract

The last decade or so has witnessed a burgeoning of literature on the role of cross-jurisdictional influences in the design (as well as subsequent interpretation) of national constitutions. The consensus emerging from that literature is that transnational borrowing in the course of constitutional making is both inevitable and impossible. In a globalized world, those involved in the design of a new constitution naturally look beyond their borders for inspiration. Borrowing is thus endemic. But borrowing, in any true sense, is also impossible because in the process of migration, constitutional ideas must be de- and then re-contextualized in order to fit them for the new legal system.

What, though, if the object of transnational influence is not a constitutional text or an institutional mechanism but, rather, a scholarly theory? That is the question addressed by this article. Specifically, the article examines the intriguing (and little known) story of how John Hart Ely’s representation-reinforcing theory of (American) constitutional interpretation was transformed into a blueprint for the design of the New Zealand Bill of Rights Act. It suggests that Ely’s journey to the South Pacific has the potential to illuminate both the study of constitutional migration generally and, more specifically, the linkages between comparative law and constitutional theory.

Keywords: John Hart Ely, constitutional migration, constitutional borrowing, comparative law, comparative constitutional law, process theory, New Zealand Bill of Rights Act 1990, constitution making, constitutional theory