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.