This text by Chief Justice Murray Gleeson is the Boyer Lectures of 2000. In the first part of the 6 lectures entitled, A Country Planted Thick with Laws, the Chief Justice is exploring ideas that connect up with our previous discussions about interpretation and the Australian Constititution.

For instance, Gleeson says that we can best approach the Constitution in terms of an understanding of the past and a concern for the future:

"Our Constitution also has a past and a future; it does not merely exist in the present. It was fashioned as a basic law, an instrument of government, by people whose concerns and values were in some respects different from our own. It will apply in the future to a society that will have undergone changes we can scarcely imagine. Disputes about constitutional interpretation sometimes concern the manner in which contemporary judges respond to its history and the future. Arguments occur about the meaning and effect, in our current circumstances, of various express provisions of the Constitution, and about the justification for finding implications in its terms. "

That accords pretty much with what we have been arguing in our earlier posts. To put in more legal terms the emphasis on interpretation involves a rejection of formalism. This holds that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute. Interpretation is more aligned with legal realism, which holds that in most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute.

How then do we undertake this interpretation? What guides our interpretations so that we do not wander off into the swampland? Do we not need guides to prevent philosophers with no legal training from stepping outside the constitutional legal tradition? How do we ensure good interpretations?

Gleeson suggests a guide in terms of political principles underlying the Constitution. He says that the certain unstated principles that underpin the text of the Australian Constitution:

"... breathe life into it, govern its interpretation, define the role of the nation’s political institutions, and guiding the evolution of the [Australian] system of government."

Gleeson says that public law is not the enemy of liberty; it is its partner. He displaces the libertarian conception of law as a constraint upon freedom and creativity or a set of rules designed to stifle initiative and enterprise and moves towards a more republican conception of the law as restraining and civilising power. The rule of public law the rule of law vouchsafes to the citizens and residents of a county or state, a predictable and ordered society in which to conduct their affairs. It seeks to promote justice and individual liberty is in its function as a restraint upon the exercise of power, whether the power in question is that of other individuals or corporations, or whether it is the power of governments. He says:

"The basic law of Australia—the Commonwealth Constitution—limits legislative and executive and judicial power. When the jurisdiction of a court is invoked, and the court becomes the instrument of a constraint upon power, the role of the court will often be resented by those whose power is curbed. This is why judges must be, and must be seen to be, independent of people and institutions whose power may be challenged before them. The principle that we are ruled by laws and not by people means that all personal and institutional power is limited."

Gleeson identifies federalism as another unstated principle behind the Constitution. He says that federalism is the special characteristic of the Australian Constitution, which determines its legal and social importance. So what is the characteristic of federalism? Gleeson says:

"The word ‘federal’ takes its meaning from the Latin word for a treat. The self-governing colonies became, at Federation, states of the newly created federal union. The terms and conditions upon which the people of those colonies agreed to that course are set out in the Australian Constitution. ...The Constitution created—and is the basic law of—the Australian nation. One of its principal functions is to allocate governmental authority between the political entities which form the component parts of the Federation. A federal system of government requires a formal written agreement that divides functions and powers. Such an agreed and legally binding division of powers and functions is the essence of federation.

The people of Australia voted to unite in a federal union, upon certain terms. Those terms, which in many respects require interpretation, and which have to be applied to changing conditions and circumstances, define and constrain the powers by which we are governed. The Constitution is a specific and fundamental manifestation of the rule of law in our society."

Okay. To put in Hegelian terms the Constitution embodies a metaphysics. Hence there is scope for a philosophy of the law---jurisprudence.

So what about interpreting the Constitution in terms of citizenship? Does not citizenship have something to do with the rule of law and federalism? Do not citizens make the law? Did not citizens structure the political body in terms of federalism to prevent the concentration of political power. So would not citizenship be another unstated political principle underpining the Australian constitution. As we have seen the Constitutional text barely mentions citizenship. The text is notable for the lack of citizenship and yet liberal democracy is structured around citizenship.

Gleeson does not mention citizenship in this lecture. So we can come at it in terms of the current understanding of citizenship in liberal democracy.

The current understanding of liberal democracy is that representative democracy is a form of elitism. There are two considerations here.

First, ''liberal democracy'' is what the ancients called ''mixed government.'' Republicanism understands "mixed government" in the following way:---with monarchical elements in the Crown, aristocratic elements in the Senate and Supreme Court and democratic elements in the lower house. This structure was intended to be a balance of interests and so what we call ''representative democracy'' is what used to be understood as elective aristocracy.

So what about the democratic bit in the House of Representatives? How do we interpret that? Well, it is commonly understood in terms of a realism in which
democracy is a system in which would-be rulers compete for the people's vote. On the acount given by Joseph Schumpeter the number of voters does not greatly matter; what matters is that the government is the winner of a genuinely competitive election. Schumpeter emphasizes democracy is as competition between elites. In this conception there is a distrustl of ordinary citizens, whose views he thought irrational and ill informed. Hence we citizens can choose the competiting once every three years at election time. What should happen between elections was that the voters should not put pressure on government, but should simply allow it to govern.

A class of professional politicians as the elite and passive citizens is the realist understanding representative democracy. We are not citizens making our own laws or having a say in decision making on this account. And the House of Representatves is controlled by a dominant executive that makes many of its decisions behind closed doors.

Can we go then back to the Constitution and re-read it in terms of its unstated principles of citizenship? Why not re-read the Constitution in terms of the unstated principles of democratic citizenship. Suprisingly Gleeson appears to suggest caution at this point. He appears to place obstacles in the way. He says:

"One thing, however, is clear. Whatever room there may be for debate about the meaning of what the framers of the Constitution said, either expressly or by implication, and subject to the possibility of constitutional change, we are bound by their choice not to say certain things. We can interpret what they provided, and we can make implications from what they said where that is appropriate. But if they remained silent upon a matter, and legitimate techniques of interpretation cannot fill the gap they have left, then we are bound by their silence. In some respects, what the Constitution does not say is just as important as what it says."

What we can say is that there are a lot of spaces in the law of the land for philosophy to probe as a public reason.
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