"When philosophy paints its grey in grey then has a shape of life grown old. By philosophy's grey in grey it cannot be rejuvenated but only understood. The owl of Minerva spreads its wings only with the falling of dusk." -- G.W.F. Hegel, 'Preface', Philosophy of Right.
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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx
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Different constitutionalisms
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July 21, 2007
Greg Craven makes some interesting remarks on judicial activism in this article in the Proceedings of the Sixteenth Conference of the Samuel Griffith Society. The title of the Conference was 'Upholding the Constitution Craven says that judicial activism is not an isolated, aberrant constitutional virus.
In fact, constitutional activism represents only one strand of an inter-connected body of views that together form one of two quite distinct philosophies that presently are battling for the constitutional high-ground in Australia. These may for convenience be termed "the old constitutionalism" and "the new constitutionalism". Most serious contemporary controversies over the Australian Constitution are battles between these philosophies, and the nature and potential of constitutional activism only can be understood in their context.
What are these? Craven says:
The old constitutionalism, unsurprisingly, represents the "traditional" approach to Australia's constitutional order. It displays a basic belief in democratically elected Parliaments as the ultimate arbiters of day-to-day policy. It has a corresponding belief in the people themselves, at referendum, as arbiters of constitutional policy. It is sceptical of the notion of entrenched rights, believing that it is up to Parliament to mutually accommodate rights on an ongoing basis. It evinces a broad adherence to a functional version of the separation of powers, holding that Parliaments make laws, Executives implement them, and courts merely interpret legislation. As a matter of style, the old constitutionalism is deeply suspicious of abstract constitutional values and concepts: its métier is rules and language. Obviously, constitutional activism runs foul of every tenet of the old constitutionalism.
This Westminsterism holds that Parliament is supreme and does not see that the Australian political system as based on various checks and balances.
And the new constitutionalism? Craven says:
The new constitutionalism thoroughly dislikes Parliament as a nest of political hacks and fixers. It loathes the Executive as a body almost programmed for the violation of human rights. Indeed, it regards the Constitution generally with deep suspicion, regarding it as dated, partial and inadequate. Its principal obsession is with human rights: they are (or should be) the Constitution, and a Constitution is to be judged principally according to its status as a shrine for such rights. The people themselves are viewed ambivalently, with favour as the potential recipients of rights, suspiciously as willing despoilers of the rights of minorities. Crucially, the judiciary is much loved, as a vehicle by which the savage instincts of populace and Parliament alike may be restrained through the wielding of a Constitution whose meaning is almost infinitely malleable. Consistently with this conception, new constitutionalists are deeply attracted to abstract constitutional values and concepts, which give content and significance to the Constitution's uninspiring words.
Constitutional activism is not a vulnerable, isolated phenomenon, but an intrinsic part of a constitutional platform subscribed to by a great many lawyers and others, and which indeed represents orthodoxy in most Australian law schools.
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The "new constitutionalism" is about 220 years old then. Older if you include the Virginian bill of rights which preceded the American amendments.
The old constitutionalism as described there as legislative makes laws and executive executes them cannot exist in a parliamentary system. There is no separation of powers in a parliamentary system. The executive pollutes the legislative.