In my post thread called conversations with the constitution I have presumed that the Australian Constitution is a legal/political document, and that it is underpinned by, or presupposes, a political philosophy based on an amalgam of democracy (sovereignty of the Australian people) and republicanism (federalism).
So I pretty much interpret this historical document (text) through that lens, or from that hermeneutical perspective through the use of public reason. From this I would say that federalism is constitutionalism.if we understand constitutionalism means respect for the rule of law. As Justice Michael Kirby says, (p.8) if the law is clear and constitutionally valid, then it is the duty of citizens to obey the law and the duty or the courts to apply its terms.
In term of the constitutional underpinnings I'm pretty much in agreement with Justice Michael Kirby's account of the legal bedrock, or Grundnorm, in this speech.
However, I've often wondered that, with the conservatives in power in Canberra and the increasing intervention of conservative Christians into national politics, how the Christians interpret the Constitution. Is is a secular document? Or is Grundnorm, come not from the Australian people united as a nation, but from a "creator", "the laws of nature, or from God. Is God's hand at work in the constitiutional foundations? What if the judges were fundamental Christians? What if they said, We Australians are a religious people whose institutions presuppose God.
I've never taken this any further than that. But a post by Lawrence Solum over at his Legal Theory Blog got me interested. Called 'Natural Law, Public Reason, and the Constitution', it is Lawrence's response to Jack Balkin's Is Belief in Natural Law An "Embarrassment?" Balkin was responding to Kevin Drum, who in turn, was responding to this commentary in the Los Angeles Times about the judicial reasoning of Justice Clarence Thomas.
This is a very American argument shaped by the Declaration of Independence but it raises an interesting question. What if a conservative High Court Judge -say Judge C---started talking about the Australian constitution in terms of God and natural right? Would this be acceptable? Does not liberalism require a separation betwen religion and the state?
Personally I reckon that you cannot put the hand of God into the constitiutional foundations of Australia's constitution, since the Constitution is not based on natural right. If there are deep rights buried in the Constitution then these are not natural rights. They are rights deeply rooted in our federal democratic system of government, and in our tradition of common law. The Americans can say without embarrassment that it is self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. I do not think that Australians can say that at all.
However, I accept that interpretation of the principle that our rights are deeply rooted in our federal democratic system of government, and in our tradition of common law, is contested and open to conflict. It is where the battle is joined.
If we return to Lawrence Solum we find him asking the right question:
"The question then, is whether it is proper for a Supreme Court justice to argue that the underlying moral foundation for the constitution is religious in extra-judicial discourse?"
I'm interested in Lawrence's response as he tackles the question from the perspective of public reason (John Rawls), which I have reframed as a form of democratic deliberation. So we need to get Rawls out of the way by going through him.
Lawrence offers useful summary of Rawl's understanding of public reason which I will cut and paste:
"...the Rawlsian ideal of public reason... has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2)."
Rawls highlights the ideal of public reason in term of the arguments made by individual citizens or their representatives that are capable of being accepted by all members of the polity. However, I reckon that he downplays the social. By this I mean that he downs public reason as dialogue--as the process of deliberation through dialogic interaction highlighted here. Lawrence seems to imply otherwise with his phrase "engage in public political debate". Or is this an ideal, and public reason is actually more about the reflective individual in public life?
Let us stay with Solum's political dialogic interaction interpretation.
The next problem that I have is that Rawls downplays the political. He presupposes that all the participants in the public political debate reason the same way (an orderly and serious discussion through giving reasons in the form of arguments), reach the same conclusion and come to a consensus. Reason is singular not plural, and it involves setting aside material self-interest, political partisanship and sectarian argument, since argument is about what is in the common interest of all.
That is hardly how political debate operates. Political deliberation involves intelligible arguments that express partial views, often are not about reaching consensus or a unified political will ( it may yield understanding and mutual respect), and often involved deep moral conflicts (abortion). The impression I gain is that the reasoning in public political debate functions like the legal deliberation of the High Court, or rather the US Supreme Court.
Rawls offers is a thin account of deliberative democracy does he not? Would not the debates by those attending the writing and adoption of the Australian constitution be a better model of what engaging in public political debate means; or the debate over federation by Australian citizens?
Okay that is Rawls.
What public reason highlights as important is that the very process of constitution making in Australia presupposes public deliberation amongst citizens. What is also important is what can be derived from public reason embodied in the constitution: eg, the rights to freedom of political expression; some form of understanding the people as citizens; some form of equality as mutual respect and social cooperation, accountability to other citizens and to future generations etc.
I would suggest that there is room for the High Court to interpret the Australian constitution along these lines, as well as importing international law to guide its interpretation of the constitution's legal bedrock. However, as Justice Kirby observes in the forementioned speech the willingness of the High Court of Australia to find rights implied in the language and structure of the Constitution is receding from the high point of the Mason court. There is conservatism at work for you.
Let me come back to the American discussion. The significant point that Solum makes is that that judicial reasoning, for example the reasoning of the US Supreme Court, exemplifies public reason and works within its bounds. Hence we have the distinction between reasons that are public and reasons that are nonpublic without necessarily equating these with reasons that are religious and reasons that are secular.
The implication I draw from that for the Australian context is that it would be very difficult for a High Court judge to talk about the hand of God underpinning the constitution in the form of natural rights. That kind of constitutional interpretation by Judge C would be stepping outside the bounds of public reason in Australia as it is currently contextualized.
However, as Lawrence points out, when Judge C speaks in his private capacity, as participant in public intellectual life, he is, and should be, "free to offer reasons that draw from the comprehensive religious or philosophical conceptions of the good--especially when such reasons are foundation for (or supportive of) public reasons. [He]... may properly discuss the relationship of his comprehensive religious doctrine--Catholicism--to the Constitution in his extrajudicial writings."
Posted by Gary Sauer-Thompson at December 16, 2004 01:50 PM | TrackBack