Utopia, you are standing in it!

After reflecting far more than I should on some conspiracy laden testimony at Parliament yesterday, one of the things I recall was a demand that the approval of the TPPA be put to binding referendum. The conspiracy theorist at hand was deeply concerned about how that treaty was encroaching on New Zealand’s sovereignty.

Why did this conspiracy theorist assume that a binding referendum will go his way and that opposing conspiracy theorists will not put up their own binding referendums in which he will lose?

The major drawback of citizen initiated referendums is any bunch of people can put them up much to the annoyance of those who will be a victim of the law to be passed.

Just as rotation of power is inherent to Parliamentary democracy, the ability of the crazies to the either the left or the right of you to initiate their own binding citizen initiated referendums. The first referendum is likely to be on one of the following:

• decriminalising marijuana,
• banning smoking,
• voluntary euthanasia,
• a living wage,
• life means life in prison,
• same-sex marriages,
• marriage is between a man and a woman,
• entrenching the Treaty of Waitangi,
• abolishing the Maori seats,
• entrenching the Maori seats,
• stop school closures,
• capital punishment; and
• future referendums not be binding.

Binding referenda are unworkable. Parliament can’t amend them later as we learn from the implementation of the law and unintended consequences arise. Every new law is riddled with unintended consequences and blow-backs.

Do you really want to have to have another referendum to undo a binding referendum that turned out to be a bit of a mistake? One of the few redeeming features of the Parliament that is sovereign – a parliament for can make or unmake any law whatsoever – is it can repeal its mistakes quickly.

The first citizens initiated referendum was held on 2 December 1995. The question was

Should the number of professional fire-fighters employed full-time in the New Zealand Fire Service be reduced below the number employed in 1 January 1995?

Turnout was low as the referendum was not held in conjunction with a general election, and the measure was voted down easily, with just over 12% voting “Yes” and almost 88% voting “No”.

The key to constitutional design is not empowering you and yours – it is how to restrain those crazies to the Left or the Right of you, as the case may be, when they get their hands on the levers of power, as they surely will in three, six or nine years’ time.

The one inevitability of democracy is power rotates – unbridled power and binding referenda lose their shine when you must share that power with the opposing side of politics who put up their own referendum question.

Constitutions are brakes, not accelerators. Much of constitutional design is about checks and balances and the division of power to slow the impassioned majority down.

Conspiracy theorists that pretty much sore losers. The last thing they want is a binding referendum on a topic on which they are going to vote no.

The problem of constitutional design was ensuring that government powers would be effectively limited. The constitutions were designed and put in place by the classical liberals to check or constrain the power of the state over individuals.

The motivating force of the classical liberals was never one of making government work better or even of insuring that all interests were more fully represented. Built in conflict and institutional tensions were to act as constraints on the power and the size of government.

Modern democracy is government subject to electoral checks. Citizens do have sufficient knowledge and sophistication to vote out leaders who are performing poorly or contrary to their wishes. Modern democracy is the power to replace governments at periodic elections.

The power of the electorate to turn elected officials out of office at the next election gives elected officials an incentive to adopt policies that do not outrage public opinion and administer the policies with some minimum honesty and competence.

Too many want to remake democracy with the faculty workshop as their model. Such deliberation has demanding requirements for popular participation in the democratic process, including a high level of knowledge and analytical sophistication and an absence, or at least severe curtailment, of self-interested motive. The same goes for citizen initiated binding referendums.

The rotation of power is common in democracies, and the worst rise to the top, so it is wise to design constitutional safeguards to minimise the damage done when those crazies to the right or left of you get their chance in office, as they will.

State power was something that classical liberals feared, and the problem of constitutional design is insuring that such power would be effectively limited. Conspiracy theorists lose all their fear of power by drinking on the heady wine of citizens initiated referendum. Be careful for what you wish for.