We the people? - Theorising constitutional democratic legitimacy to reflect on and enrich New Zealand's constitution

This paper explores the concept of constitutional democratic legitimacy and the democratic legitimacy of New Zealand’s constitution in particular. In so doing, it considers Bruce Ackerman’s constitutional theory in We the People, Volume 1: Foundations and the criticisms it has provoked to develop a theoretical framework of three constitutional models (monism, dualism and rights foundationalism) that can be used to assess constitutional democratic legitimacy. It then utilises this framework as a tool for analysing New Zealand’s constitutional arrangements, observing that New Zealand has a particularly sophisticated monist constitution, noting s 268 of the Electoral Act 1993 and the adoption of MMP voting as particular institutional examples. Nevertheless, it is recognised that New Zealand’s constitution may still be critiqued in terms of its claim to democratic legitimacy through the alternative perspectives of monism (focusing on remaining flaws in New Zealand’s electoral system), dualism (focusing on the absence of avenues for binding public constitutional participation) and rights foundationalism (focusing on the constitutional place of the Treaty of Waitangi). Alternative suggestions for reform are offered.