The Nature of the Australian Constitution: The Limitations of the Institutional and Revisionist Approaches
| Author | John SF Wright |
| DOI | 10.22145/flr.28.3.1 |
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Subject Matter | Article |
THE
NATURE
OF
THE
AUSTRALIAN
CONSTITUTION:
THE
LIMITATIONS
OF
THE
INSTITUTIONAL
AND
REVISIONIST
APPROACHES
John
SF
Wright,
INTRODUCTION
The
nature
of
the
Australian
Cn
sitution
is
usually
described
as
eiher
monarchic
and
parliamentary,
or
republican
and
federal.
i
Jowever,
more than
su
ccinct
expressions
of
the
key
political
concepts
behind
the
Australian
C0nstitution,
the
two
metaphors
are
the
products
of
particular
fRms
of
analysis.
Essentially,
the
terms
parliamentary
or
consitutional
nonarchy
an d
fedeal
repUblic
are
the
products
of
either
revisionist
or
institutional
interpretations
Of
the
Australian
C0nstitution.
The
institutional
interpretation
focuses
on
tie
practical function
of
the
Consti
tfuon's
federal
and
parliamentary
instit]tins,
and
the
origins
of
these
devices
within
the
British
and
American
Constitutions.
For
example,
as
the
Australian
Constitution
embraces
the
institutions
of
both
Anerican
federal
is
m
and
British
parliamentary
government,
insUutionaiists
interpret
i
nature
by
relating the
strucure
and
operation
of
Australia's
federal
and
parliamentary institutions
to
the
function
of
sinilar
devices
Within the
British
and
American
Constitutions.
Alternatively,
tie
key
feature
of
revisionist
interpretations
of
the
Australian
Constitution
is
top-down
philosophical
reasoning.
1
Revisionists associate
the
nature
of
the
Constitution
with
preconceived
intellectual
frameworks-
predominately
repubifalnism-1
by
rearticulating
the
key
political
principles
of
philosophical
movements,
and
identifying
them
with
individual
provisions
of
th
e
federal
Con
stitution.
For
example,
claiming
that
republicanism
implies the
sovereignty
of
the
people,
the
rule
of
law,
individual
rights,
and
even
th
at
republicanism should not
he
thoug
ht
to
imply
any
srict
litical
principles, revisionists
associate the
provisions
of
tie
federal
Cimnsthtution
c-especially
those
pertaining
to
trial
by jury,
religious freedom,
the
referendum
process
and equality
of
citizenshi
p
with
a
preconceived
intellectual
framework.
Accordingly,
the
degree
to
which
the
Constitu=in
may
be
said
to
enbody
republican,
or
indeed
any
other
political
tradition,
depends
largely
upon
the
revisionist's
ownaccOunt
of
the
individual
concept
and
its
key
political
principles.
Thus,
top-down
philosophical
reasoning
is
the principal feature
of
revisionist
interpretations
largely
because
revisionists
thernselves
begin
by
either
loadi(ng-up
0r
BA
(Ho
ns)
B
itt)
M
A
PhD.
t R
Posner,
Oiericonhii
Law
(
995)
at
171-175.
Federal
Law
Review
loading-down
concepts
like
republicanism,
and
use them
as
ciphers
for
decoding
the
political ideas
behind
the
Constitution.
Furthermore, institutional and
revisionist
interpretations
of
the
Australian
Constitution
often
conclude
with
critical
assessments
of
the
founders'
accomplishment.
For
example,
the
focus
on
the function,
structure
and
origin
of
Commonwealth
institutions
frequently
ushers
criticism
of
the
Constitution
as
a
clumsy
amalgam
of
antagonistic
political
systems.
Institutionalists
argue
that
the
Constitution
is
flawed
because it
attempts
to
reconcile
fundamentally opposed
systems
of
government:
federalism
and
responsible
government.
Analysed
in
terms
of
its
institutions,
the
Australian
Constitution
is
commonly
thought
to
offer
little
that
is
original,
to
disappoint
rather
than
proselytise,
and
to
be
capricious,
rickety,
and
in
need
of
substantial
reform.
Revisionists, on
the
other
hand,
generally
conclude
that,
in
its
present
form,
the
Constitution
inadequately
reflects
their preconceived
intellectual
framework.
Often
critical
of
the
founders'
philosophical
capacities,
revisionists
maintain
that
the
delegates
to
the
federation
Conventions
of
1890s
were
ignorant
of
the
philosophical
traditions
that
animated
their proceedings,
and
thus, that
they
failed,
or
were
unwilling
to
fully
reflect
these
traditions
in
the
final
draft.
Accordingly,
revisionist
accounts
of
the
Constitution
often
conclude
with
appeals
to
modern
political
agents
to
rediscover the philosophical
origins
of
the
Commonwealth.
The
purpose
of
this
article
is
to
demonstrate
that
these
institutionalist
and
revisionist
approaches
to
the
nature
of
the
Australian Constitution
inhibit
rather than
enhance
our
understanding
of
its
key
political concepts.
Indeed,
the
article
assumes
that
there
is
more
to
the Australian
Constitution
than
the
structure
and
origin
of
its
political
institutions;
there
are
the
substantive
philosophical themes
that
give these
institutions
legitimacy.
Reducing
the
Constitution
into
its
simplest
form
in
order
to
compare
its
devices
with
those
of
other
Constitutions
cannot
establish
the
philosophical
qualities
of
the
Commonwealth.
While
the
institutional
method
certainly
offers
an
understanding
of
the
structure
of
Australian
devices
relative
to
foreign
political
institutions,
there
is
no
reason
to
conclude
that
a
comparison
of
political
structures
will
reveal
anything
substantial
of
the
political
principles
underlying
the
Constitution.
It
may
do;
but
though
the
structure
of
Australian
institutions
might
resemble
foreign political
institutions,
which
is
certainly
the
case
with
regard
to
the
Australian,
American
and
British
Constitutions,
they
might
also be
informed
by
different
political
ideas. Focusing
on
institutional
origins
and
design
to
the exclusion
of
political ideas,
the institutional
interpretation
therefore
offers
but
a
partial
understanding
of
the
nature
of
the
Constitution.
Similarly,
and
for
perhaps
more
obvious
reasons,
modern
conceptual
frameworks
are
of
questionable
relevance
to
the
study
of
the
philosophical principles
of
a
historical
document.
It
is
simply
not
important
that
the
Australian
Constitution
is
open
to
modern
republican
interpretation,
or
indeed
any
other contemporary
intellectual
framework.
Surely
what
is
important
is
how
the
Australian
founders
conceived
of
the
underlying
principles
of
the
Constitution
they
themselves
constructed.
Challenging
contemporary
republican
interpretations
of
the
Constitution,
the
article
concludes
that
only
a
comparative
study
of
nineteenth century Australian
political
thought
will
be
conclusive in
establishing
the
nature,
or
key
political ideas
behind
the
Commonwealth.
The
founders'
philosophical
ideas are
important
to
an
understanding
of
the
nature
of
the
Australian
Constitution.
Other cultures have
long
recognised the
importance
of
original
ideas
to
the
underlying philosophy
of
their
own Constitutions,
Volume
28
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