On the Monarchist's Maxim: “If it Ain't Broke, Don't Fix It”
| Date | 01 June 1998 |
| Published date | 01 June 1998 |
| DOI | 10.22145/flr.26.2.2 |
| Author | Leighton McDonald |
| Subject Matter | Article |
ON
THE MONARCHIST'S MAXIM:
"IF
IT AIN'T BROKE,
DON'T
FIX
IT"
Leighton McDonald*
[T]he
plan
now
to
be
formed
will certainly
be
defective,
as
the
Confederation
has
been
found
on
trial to be.
Amendments
therefore will
be
necessary,
and
it
will
be
better
to
provide
for
them,
in
an
easy,
regular
and
Constitutional
way
than
to
trust
to chance
and
violence.1
INTRODUCTION
It is often
said
that
the great innovation of America's eighteenth century constitution-
makers
was
not
their acceptance of the ideal of constitutionalism
but
their insistence
that
legal constraints
on
government be subject to alteration, breaking free front the
hold
of divine
law
and
natural
right theories. To be sure, the notion of
constitutionalism necessarily entails
that
there be some distinction between
how
ordinary
legal change is effected
and
how
aconstitution is changed. Aconstitution
binds
and
guides ordinary law-making by virtue of itself
not
being subject to those
processes. But there is
no
conceptual inconsistency between constitutionalism
and
allowing for constitutional amendment. Of course, aparticular constitution
may
maintain its
own
partial or total unamendability, providing
no
internal mechanism for
amendment.2And, even where
amendment
is provided for, there
may
be questions
about
exactly
what
possible changes are
mandated
3or
what
procedures
must
be
1
2
3
Lecturer, Faculty
of
Law, University
of
Adelaide. I
have
benefited
from
the
criticisms
and
suggestions
of
Danielle Banks, Michael Detmold,
John
Keeler,
Stewart
Motha,
and
David
Wiseman.
George
Mason's
opening
comments
on
the
question
of
constitutional
amendment
at
the
1787
Philadelphia
Convention: see M
Farrand,
The
Records
of
the
Federal
Convention
of
1787
(1937)
vol
1
at
202-203,
quoted
in
5Levinson, "Introduction: Imperfection
and
Amendability"
in
SLevinson (ed), Responding
to
Imperfection:
The
Theory and
Practice
of
Constitutional Amendment (1995)
at
3.
For
example,
some
provisions
in
the
Indian
Constitution
are,
by
judicial
interpretation,
absolutely
entrenched,
in
the
sense
of
not
being
subject to
amendment;
unamendable
provisions
of
the
German
Basic
Law
are
expressly
provided
for
in
the
constitutional text.
See EKatz,
"On
Amending
Constitutions:
The
Legality
and
Legitimacy
of
Constitutional
Entrenchment" (1996) 29
Colum
JL&
Soc
Probs
251
at
265-273.
Only
under
the
Austinian
version
of
legal positivism,
where
the
existence
of
an
unlimited
sovereign
is a
necessary
condition
for
the
existence
of
law,
does
the
notion
of
immutable
constitutional limits
court
logical
absurdity.
For example, JRawls,
Political
Liberalism
(1993)
at
238-239
argues
that
Art
V,
the
amendment
provision
of
the
United
States Constitution, sanctions
only
those
amendments
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