The Big Picture: Imagining the Constitution

Date01 June 2021
Published date01 June 2021
AuthorDesmond Manderson
Subject MatterEssay
The Big Picture: Imagining the
Desmond Manderson*
In Australia,a technocratic minimalist approach to constitutional interpretationleaves little space for
what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big
picture’of what a constitutionis, and why it matters, is systematically reducedto a ‘strict and complete
legalism’ that shows little interestin the social and cultural functionsof a constitution in the modern
world. The ‘dualcitizenship’ cases (2017–18),concerning s 44 of the Australian Cons titution, provide an
exceptionalcase study. The High Courtof Australia’s narrowpositivism shielded it fromcriticism, but
at a high costto Australia’s democraticand social fabric. Thisarticle argues that, at a time whenthe rule
of law and the public sphereis under threat as never before, we can and should expect more of our
peak legal institutions. A constitutional court without a broader commitment to constitutionalism
imperils the legitimacy of the wholeconstitutional order and of the public sphere.
Tom Roberts, The Opening of the First Parliament of the Commonwealth of Australia by HRH The Duke of Cornwall
and York (Later HM King George V), May 9, 1901 (Parliament House Canberra, British Royal Collection, 1903)
(‘The Big Picture’).
* Professor Desmond Manderson, Centre for Law, Arts and the Humanities, Australian National University, Canberrra,
ACT 2600, Australia. The author may be contacted at
Federal Law Review
2021, Vol. 49(2) 303–323
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/0067205X21993150
I Imaginary Constitutions
Constitutions are thought to matter very much. Yet they seem distinctly fragile. Basic legal norms
are under attack in Hungary and Poland; Thailand, India, the Philippines and Cambodia; across
Latin America and Africa; in the US and Brazil. Authoritarian populists assault judicial indepen-
dence, the rule of law and human rights.
What difference can a legal document make?
But constitutions are more than just legal structures. They are cultural resources.
In many
countries—Canada, Germany, the UK and South Africa, for example—constitutional courts have
on occasion proved willing to articulate a vision of democratic rights and legal values, drawing not
just on written bills of rights but on broader aspects of legal principle and history. L´aszl´oS´olyom,
inaugural President of the Hungarian Constitutional Court, called it the ‘invisible constitution’.
On this view, a constitution is more than a division of power—who gets what. Its status and
authority must still be accounted for and, indeed, sustained.
Perhaps the legitimacy and au thority of the Commonwealth of Australia Constitution Act
seemed self-evident in 1901, when we still spoke of ‘the mother Parliament’ and ‘the mother
country’. Australia’s Constitution was enacted in London according to ancient traditions, them-
selves largely ‘invisible’. The Big Picture,
by Tom Roberts, Australia’s most famous turn-of-the-
century painter, depicts the ceremonial opening of the first Australian Parliament in Melbourne
that year. The future King George V reads the official proclamation. His authority is burnished by
the pageantry of the official party. An oversized crown looms over them like the trappings of some
modern Leviathan. To this day, Roberts’ painting does not belong to the Australian people. It is on
display in Parliament House, but Queen Elizabeth owns it.
New approaches in the sociology of constitutions have focused less on their specific textual
features and historical origins and more on the background conditions that give constitutional
discourse its distinctive force in public life.
Drawing on the work of many legal scholars and
prompted by Cornelius Castoriadis’s pioneering work in The Imaginary Institution of Society,
Paul Blokker writes about two different ‘constitutional imaginaries’.
He frames his argument
around a dichotomy between a ‘modernist’ idea of the constitution and a ‘democratic’ one:
1. David Landau and Rosalind Dixon, ‘Constraining Constitutional Change’ (2015) 50(4) Wake Forest Law Review 859;
David Landau, ‘Abusive Constitutionalism’ (2013) 47(1) UC Davis Law Review 189; Ozan O Varol, ‘Stealth
Authoritarianism’ (2015) 100(4) Iowa Law Review 1673.
2. Heidi Schreck, What the Constitution Means to Me (New York Theater Workshop, 2018).
3. On Capital Punishment, Decision 23/1990, Hungarian Constitutional Court, 31 October 1990 [tr L ´aszl´oS´olyom,
Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (University of Michigan Press,
2000) 118, 125], quoted in Kim Lane Scheppele, ‘Guardians of the Constitution: Constitutional Court Presidents and
the Struggle for the Rule of Law in Post-Soviet Europe’ (2006) 154(6) University of Pennsylvania Law Review 1757,
1777 (‘Guardians of the Constitution’).
4. Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9, now Constitution of the
Commonwealth of Australia.
5. Tom Roberts, The Opening of the First Parliament of the Commonwealth of Australia by HRH The Duke of Cornwall
and York (Later HM King George V), May 9, 1901 (Parliament House, Canberra, British Royal Collection, 1903) (‘The
Big Picture’).
6. For an Australian examination of these questions, see Rosalind Dixon (ed), Australian Constitutional Values (Hart
Publishing, 2018).
7. Cornelius Castoriadis, The Imaginary Institution of Society, tr Kathleen Blamey (MIT Press, 1987).
8. Paul Blokker, ‘The Imaginary Constitution of Constitutions’ (2017) 3(1) Social Imaginaries 167 (‘The Imaginary
Constitution’). See also Hans Lindahl, ‘Democracy and the Symbolic Constitution of Society’ (1998) 11(1) Ratio Juris
304 Federal Law Review 49(2)

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