LAWS1115 Lecture 2

Week 2: Constitutionalism

Readings for Next Lecture (in Week 4)

  • Goldsworthy (p. 27)
  • Scalia (p. 54)
  • Chapter on Separation of Powers (Chapter 4 of Clarke)


  • Australian constitution is taken largely from the US constitution
    • Altered it (for the better?) – does not have a bill of rights
    • Took ideas from the Swiss
      • ask the people (referendum)
      • more democratic
      • in the US, they ask the politicians, not the public

Possible systems

• Parliamentary - Vote for legislature • Presidential - the voting for legislature and congress is separate from the presidential election (Cabinet of US are not elected - other than the President, of course)
• Unitary – one elected system • Federal – some of the powers go to the centre (ie. Canberra, Washington DC) while some of the power goes to the states/regions
• Unicameral – Queensland (House of Reps) • Bicameral – House of reps (based on population), Senate (represents original states)
• Floating election dates • Fixed election dates
• Constitutional Monarchy – UK, Japan (more equal distribution of wealth) • Republic
• No Bill of Rights • Bill of Rights (only the US and France had a Bill of Rights before WWII)

• Australia enumerates Canberra’s powers in s 51, while everything else goes to the States

Voting Systems

  • ‘First Past the Post’ (FPP) – Delivers a majority government
    • Though rare, you can get coalition and minority governments (Canada, UK)
  • Proportional systems are like ‘closed systems’ – bad when times are bad
    • Mixed Member Proportional - A lot of small parties
    • Single Transferable Vote – Irish system
  • Preferential voting systems – Australia
    • Still delivers a majority government
    • Throws the bums out (similar to FPP)


  • Have a Constitution to lock things in – to make things hard to change
  • Looking at Constitutionalism in the sense of how to limit power
  • New Zealand only has a set of rules that limit power (no Constitution in the written sense)
    • Has Parliamentary Sovereignty – Legally unlimited legislature
    • Checks on power come from moral or political restraints
    • Voting (political restraint) limits power – why democracy ‘works’
    • Point of democracy is to put limits on power
      • The limit on the politician is to make them want to get re-elected
      • This in turn leads to the politicians considering the majority’s views on issues
    • Can’t expect politicians to not care about getting re-elected (it’s … kind of the whole point of the system, after all)
  • If there is a deadlock between the Senate and the House of Reps, too bad!
    • In Australia, we would have a double dissolution (s 51)
  • Australia has a written constitution (wanting to put some limits other than democracy on what bodies can do). Reasons for a written constitution include:
    • Federalism – have to specify which powers the centre gets and which powers the states get
    • Want to lock in an allocation of power between the head and the states
    • Specify a list of entitlements or rights
    • Locking in (or thinking they’re locking in) protections
    • Reflects changing social values
  • The point of a constitution, according to Larry Alexander, is to freaking lock things in
    • Means that you are locked in by what they meant when they made that provision
    • Locked in by meaning of the words/understand at the time they were written
  • In contrast, in New Zealand, the voters decide everything
  • With a ‘living constitution’, words don’t change but meaning of the words change over time
    • New Zealand keeps pace with changing social values by voting (the reason behind this being that this would reflect societal values)
  • Understanding constitution – how to interpret it (at the time it was written or current times?)
  • Australia’s Constitution is the easiest constitution to amend (compared to other standards – Canada and the US, as examples). To do so:
    • the majority of citizens must say yes; and then
    • the majority of states must say yes.
  • Judges have to take the words and shape them as social practices change over time
  • Understanding of what a constitution does affects how you interpret it
  • By locking things in, one is obligated to read the words as they were meant to be interpreted at the time the constitution was written.