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)
Constitutionalism
- 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)
Constitutionalism
- 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.
page revision: 15, last edited: 03 Mar 2011 13:05