I've just started reading Greg Craven's Conversations with the Constitution (2004). It is very accessible text, unlike most writing on the Constitution. Most of the writing on the Australian Constitution has been dominated by lawyers who have treated it primarily as a legal document.
Suprisingly the Australian Constitution, has been compared unfavourably with the American one, even though the roots of the former are democratic ones. The constitution of Australia was founded on, and by, a democracy through the process of a referendum.
I have found most texts on the Constitution to be boring: they're an expression of a classical legal consciousness of legal formalism, which postulated that law stood apart from other cultural fields such as politics. Judges were disinterested subjects who objectively discovered the law etc etc. Hence we have the politically neutral legalism of the High Court (under Latham, Dixon, Barwick and Gibbs C JJ); a legalism that represents political neutrality as being essential for the rule of law.
Yet the Constitution is a political document as well as a legal one. It is the founding document of a sovereign nation-state.
Craven says one reaction to the democratic foundation of the Australian Constitution is to pooh pooh the genuineness of the popular choice and to see it as little more than a passing imperial parade. These responses dismiss the moral authority of the democratic expression (a referendum) of a people forming themselves into a nation state.
Why so? Why dismiss what is unique about the Australian Constitution? Why not see it as something we are proud of: not just because it represents the rule of law, but because of the popular participation involved in its making. Why not celebrate the democracy involved?
Is that not a valuable heritage? Is that not something worth remembering and defending?
Posted by Gary Sauer-Thompson at October 5, 2004 11:56 PM | TrackBack