Alexander Meiklejohn, American Constitutional Law, and Australia's Implied Freedom of Political Communication

Date01 September 2006
Published date01 September 2006
Subject MatterArticle
William G Buss*
Sometime after 1992, I first learned that the High Court of Australia had discovered
that the Australian Constitution contained something that sounded very much like a
freedom of speech guarantee. And the reasoning that supported that discovery
sounded like the philosophy of Alexander Meiklejohn which I had been teaching in a
seminar on Free Speech for several years.
Although Meiklejohn was talking about the United States Constitution, he was not
emphasising the words of the First Amendment thereto. Drawing upon pre-Bill of
Rights commitments recorded in various historical documents, Meiklejohn's view was
that the framers of the United States Constitution had made a covenant with each other
to build a democracy in which the people were both the governors and the governed.
Freedom of speech, according to Meiklejohn, was necessary to make a democracy, and
that was all that freedom of speech was designed to do. It was imperative that the
citizens of a democracy be in the position to state their views about government policy,
to hear the views of others, and to communicate those views to their elected
representatives who, in turn, were accountable to the people at the next election and
obligated to justify their actions. Democracy could not work without freedom of
speech, and the purpose of exercising that freedom was to do the business of
* O K Patton Professor of Law, University of Iowa (Yale BA, Harvard LLB). An earlier
version of the first third (Part I) of this article was written while I was a Visiting Scholar at
the Centre of Comparative Constitutional Studies, University of Melbourne Law School, in
1999 and presented at the 1999 ALTA Conference at Victoria University, Wellington, New
Zealand. I wish to thank Professor Cheryl Saunders, Director of the Centre, for her
hospitality and that of her colleagues and the staff at the Centre during the very happy
months I spent in Melbourne at the Centre. I also wish to thank my Iowa colleagues for
their comments on a faculty seminar on the second third of the article (Part II) and Sir
Geoffrey Palmer, Dr Adrienne Stone, Professor Kim Rubenstein, and the anonymous
referee for comments on the paper in roughly its present form. Finally, I express my
gratitude to many Research Assistants, too numerous to mention, for work too extensive to
catalogue, during the slow gestation of the paper over several years. The article's flaws that
remain are my own, and they are surely fewer because of all this assistance.
422 Federal Law Review Volume 34
governing. Democracy meant self-government; self-government created the need for
freedom of speech; freedom of speech was necessary to serve democracy.1
Students often asked: 'If Meiklejohn is correct, why do we need a First
Amendment?' Why indeed?
When the High Court of Australia announced, in Australia Capital Television Pty Ltd
v The Commonwealth (No 2),2 that there was a freedom of expression protection
embedded in the Australian Constitution, the Court's rationale seemed to echo
Meiklejohn's philosophy. In view of the fact that the Australian Constitution expressly
provides for the election of Representatives3 and Senators4 by the people of Australia,
and for a constitutional amendment process that requires a vote of the people,5 Mason
CJ said the Australian Constitution creates a system of 'representative government' and
'representative democracy' under which 'the representatives of necessity are
accountable to the people' and that made 'freedom of communication … an
indispensable element in representative government'.6 All of which shows, as my
students suggested, that it can be done without anything like the express language of
the First Amendment to the United States Constitution.
1 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948) 11 (Declaration
of Independence, 1776), 14 (Mayflower compact, 1620), 15 (preamble to the Constitution of
the United States, 1787).
2 (1992) 177 CLR 106 ('ACTV'). See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
('Nationwide News').
3 Australian Constitution s 24: 'The House of Representatives shall be composed of members
directly chosen by the people of the Commonwealth …'.
4 Australian Consitution s 7: 'The Senate shall be composed of senators … directly chosen by
the people of the State …'.
5 Australian Constitution s 128: '… the proposed law shall be submitted … to the electors
qualified to vote for the election of members of the House of Representatives'.
6 ACTV (1992) 177 CLR 106, 137–8. Meiklejohn was not cited, but that is not surprising.
Meiklejohn is famous for his theory of free speech and democracy among American civil
libertarians, but his basic idea has long been in the public domain. See Frederick Schauer,
Free Speech: A Philosophical Enquiry (1982) 36, citing Immanuel Kant, On the Old Saw: That
May Be Right in Theory But It Won't Work in Practice (E B Ashton trans, 1974 ed) 72 [trans of:
Über den Gemeinspruch: Das mag in der Theorie riehtig sein]; Benedict de Spinoza, 'A
Theologico–Political Treatise' in A TheologicoPolitical Treatise and A Political Treatise (R H M
Elwes trans, 1951 ed) 1, ch XX [trans of: Tractus TheologicoPoliticus]; David Hume, 'Of the
Liberty of the Press' in David Hume, Essays: Moral, Political, and Literary (first published
1742, 1889 ed with preliminary dissertations and notes by T H Green and T H Grose) vol 1,
94. In Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom
of Political Communication' (2001) 25 Melbourne University Law Review 374, 375 n 4, Dr
Stone attributed the same idea to Charles Black, Structure and Relationship in Constitutional
Law (1969). The acknowledgment of Meiklejohn came later in Theophanous v Herald &
Weekly Times Ltd (1994) 182 CLR 104, 124 (Mason CJ) ('Theophanous'), where Mason CJ
noted that '[a] similar view has been advocated by Alexander Meiklejohn.'
2006 American Constitutional Law and the Implied Freedom of Political Communication 423
That says nothing about whether it should have been done,7 and it leaves the big
question about where it will go. What is now generally called an 'implied freedom of
political communication' has evolved in its short life to date. Whether in the long run
Australia will have a robust free speech principle consistent with the political
philosophy of Alexander Meiklejohn remains to be seen. For the reasons developed in
this article, my conclusion is that it will. Of course, this is only a prediction from an
outsider to Australia's constitutional system, with all of the risks and limitations which
that inevitably entails. And my conclusion includes no assumption that the details of
the application of such a principle would or should follow closely the details of
Meiklejohn's philosophy or the jurisprudence of American constitutional law.
On the way to my conclusion, in Part I, I will review briefly the historical
Australian-American constitutional connection and provide a brief overview of
Australia's implied freedom. In Part II, I will examine closely the High Cour t's
discussion in Lange v Australian Broadcasting Corporation,8 in which the Court compares
Australian and American free speech law and contrasts the treatment of federalism
and the common law under the Australian and United States Constitutions. Finally, I will
argue in Part III that there is a path, starting with the words of Sir Owen Dixon, and
running through federalism and parliamentary sovereignty, to a surprising common
law convergence of American and Australian constitutional law dealing with freedom
of political expression.
A The American connection
Sir Owen Dixon famously said that '[t]he framers of our own federal Commonwealth
Constitution' were so fascinated by the 'incomparable model' of the United States
Constitution that '[i]ts contemplation damped the smouldering fires of their
originality.'9 The records of the Australasian Federal Convention10 reveal that the
7 See generally 'Symposium: Constitutional Rights for Australia?' (1994) 16 Sydney Law
Review 145, 145–287 (a collection of essays by prominent Australian, and other,
constitutional scholars variously supporting or criticising the High Court's discovery of a
judicially enforceable implied freedom). Compare Jeffrey Goldsworthy, 'Constitutional
Implications and Freedom of Political Speech: A Reply to Stephen Donaghue' (1997) 23
Monash University Law Review 362, 371–4, with Jeremy Kirk, 'Constitutional Implications
(II): Doctrines of Equality and Democracy' (2001) 25 Melbourne University Law Review 24,
44–57; Michael Stokes, 'Interpretation and Changes in Constitutional Law; A Reply to
Jeffrey Goldsworthy' (1996) 21 Australian Journal of Legal Philosophy 1.
8 (1997) 189 CLR 520 ('Lange').
9 Sir Owen Dixon, 'The Law and the Constitution' (lecture, delivered in Melbourne, 1935) in
Judge Severin Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) ('Jesting
Pilate') 38, 44. Jesting Pilate is a collection of Dixon lectures and essays delivered or written
over a span of 32 years, from 1933–1964. One bit of wished–for originality might have
eschewed separate State and federal jurisdictions: see at 54. See also Sir Owen Dixon,
'Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of
Australia on 21st April, 1952' in Jesting Pilate 245, 249.
10 Official Record of the Debates of the Australasian Federal Convention, Volumes I–V (as
reprinted, 1986, Gregory Craven, editor), passim.

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