The US Constitution in Trouble: Lessons from Australia

Guns and Marriage, Go Together in the Amended Madisonian Carriage: Australia v the US

My ultimate goal in this article is to compare the constitutions of Australia and the United States and to argue that Australia’s is superior. Yet that in itself is preponderantly due to the fact that the drafters of the Australian Constitution copied much from the Constitution of the United States of America. So if imitation really is the sincerest form of flattery, then this article can also be seen as a tribute to the US Constitution, or at least (if I might be forgiven for putting it this way) the first Madisonian version rather than the one in place after the first ten amendments. In other words, this will be something of a heretical argument, at least to most Americans.

First, I will outline the basic ways in which the Australian Constitution flat out copied from the US Constitution. Second, I will note the two core areas in which the Australians considered the US constitutional position, thought about it, debated it, and rejected it—these being the amending procedure and whether to have a bill of rights. Third, I will insert a brief historical interlude and remind the reader that Madison’s first position was against a bill of rights. Fourth, and finally, I will argue that omitting a bill of rights was the correct call, that having issues such as gun control or same-sex marriage and much more besides decided by the elected representatives of the people (Australia’s choice) is superior to having them decided by the vote of a committee of nine ex-lawyers (the US position today).

What Australia copied

When the Australian colonies were considering the terms on which they might federate in the late nineteenth century, the leading politicians and exponents of federation were well versed in the details of existing successful democracies. There was next to no doubt that upon federation Australia would remain a Westminster parliamentary system, with the monarch as a constitutional (that is, powerless) head of state. That much was clear. Yet beyond that, much was in play. And again and again, in deciding what the Australian Constitution should look like, the Founders copied the United States. They had before them the Canadian and American models, and they consistently preferred the American. Indeed it is a fair generalisation to say that Australia is the world’s most successful emulator of the United States constitutional model, and by far. And this despite Australia not being a republic with a presidential system.

So why do I say that? Let us start with federalism, at the core of the US constitutional model. The Australian founders had before them the US version of federalism and the Canadian version. They opted wholly for the American model. The gist of the choice is between a US system where the powers of the centre are enumerated and everything else given to the states, or a Canadian one in which both the powers of the centre and the powers of the provinces are enumerated. Despite the close historical similarities between Australia and Canada the choice in Australia was emphatically for the US model.

A main goal in Australia was to have strong states; it was to be a federation of well-functioning colonies. The Canadian version of federalism was seen as intended to deliver less-than-potent provinces but a strong centre, and to do so by enumerating a finite list of what the provinces could do. And that perception of the intentions in Canada is no doubt correct, not least because Canada federated in 1867 with a push from Britain and a background fear of the recently victorious Union army down south. It was less than half a century since the US had invaded Canada and provoked the War of 1812. No one in Canada or the UK was optimistic that a draw might again be the result and so they wanted a strong, centralised Canada. That was the intent of their version of a “two-list” federalism.

Australia’s founders preferred the US “one-list and all else goes to the states” model. Any student of American constitutionalism would recognise the Australian version of federalism immediately. Indeed they might also laugh at the irony that history has played on Australia, whose founders had wanted strong states but whose top court (by siding consistently with the centre on virtually every important federalism-related dispute) over the past century has re-shaped the federation into one with some of the most emasculated states going, ones without even the ability to impose income taxes.[1]

The Australians also copied the various American ancillary aspects of federalism, such as leaving criminal law to the states (it is a national head of power in Canada) and leaving the choosing of the states’ top judges to the states. (In Canada, unlike in the US and Australia, all the top provincial judges, including those on the Provincial Supreme Courts and Courts of Appeal, are chosen by Ottawa. This point is sometimes overlooked by US comparative law scholars who, in my opinion, mistake what happens when one political party dominates the national scene in Ottawa for forty years, as the left-of-centre Liberal Party did from the mid-1960s to the mid-2000s, for what they see as an apolitical judiciary. Having all of a country’s top judges appointed by one political party for nearly all of forty years may produce a like-minded judiciary, but that is in no way equivalent to an apolitical judiciary. Rather it is what would happen in the US if the Democrats, say, had a long-standing power to appoint all top judges, even state ones including in Texas and Utah, or the Republicans had that same power including in California and Massachusetts.)

In addition to its federalist features the Australians also copied the American version of bicameralism. Again, this is one of the noteworthy features of the Madisonian Constitution. And Australia copied it extensively, rejecting completely the Canadian model on offer, which was—and incredibly to this day remains—an Upper House Senate that is not even elected.[2] Even back in the late 1890s this was seen as illegitimate in Australia. By contrast it often goes unremarked in Canada to this day.

In the model of bicameralism chosen for Australia there are an equal number of senators from each state (currently twelve), with half up for election in each election on a rotating basis (meaning their terms are usually twice as long as for Members of the House of Representatives—the terms “Senate” and “House of Representatives” coming from the US rather than Canada’s and the UK’s term of “House of Commons”). This means the smaller-population states are over-represented, this too being taken from the US model. Australia’s Senate has real power. It can even block money bills and bring down governments, something not true in Canada and the UK. And Australia’s Senate has done this.

Yes, one can quibble and note that in Australia, unlike the US, greater power (and, yes, prestige—think Prime Minister Boehner) resides in the Lower House, as must be the case in any Westminster parliamentary system. But this just means the Australian Senate is a genuine house of review, while the Australian House of Representatives with its noticeably greater democratic credentials (in terms of equal voters per district and the more regular need to face the voters) provides the Prime Minister and Treasurer and the government of the day.

Australia’s founders even came up with a novel provision of their own, the section 57 provision that deals with unbridgeable disagreements between the lower and upper houses, a topic not untimely in the US today.[3] In fact, I think this section 57 procedure takes US-style bicameralism and improves upon it. But whether you agree with that opinion or not, my point is that Australian bicameralism looks unmistakeably American in its design and origins.

There is more to the claim that Australia copied the core features of US constitutionalism. Take the capital city, Canberra. It is part of no state, but rather sits in what is known as the Australian Capital Territory. Until 1975 no one living in the ACT could vote for the House of Representatives or the Senate. And surely that is an Americanism no one living in Washington DC could deny.[4] I might also mention that Canberra is a planned capital, not an already existing but rebranded one like Ottawa. But I would have to concede that Canberra is lacking in beauty when compared today to the planned capital city of the US.

What Australia didn’t copy

Having opted to shun Canada and to copy the United States on the crucial constitutional issues of federalism and bicameralism, and to copy the US to an extent that would get a student in big trouble for plagiarism, the Australian Founders rejected the US model on two significant counts.

The first is the amending formula, and notice that on this front Canada’s model was also rejected. The models before the Australians, at least in the English-speaking world, involved a super-majoritarian process where constitutional amendment involved asking elected politicians. In the US, a super-majority vote of two-thirds of both Houses of Congress plus the regular approval of three-quarters of the state legislatures is required. In Canada at the time it wasn’t wholly clear how many provinces had to consent to constitutional change, the evolved convention being “most” of them.[5] The new rule in Canada, dating from the 1982 repatriation of the Canadian Constitution, is that most constitutional amendments require a simple majority of both Houses of Parliament (the unelected Senate as well as the elected House of Commons) and then the approval of two-thirds of the provinces provided they represent 50 per cent of the population.[6] For some few matters, however, such as the office of the Queen as head of state or the composition of the Supreme Court, the approval of all the provinces—every single one of them—is needed.[7]

Such a US-style “ask the elected legislators, on a super-majoritarian basis” procedure for amending the Constitution was considered in Australia and rejected. Instead the Australians copied Switzerland and introduced a bit of direct democracy. So section 128 of the Australian Constitution, which gives the amending criteria, requires that any proposed amendment start and be passed by majority in either house of parliament and then move to the other house for similar passage (but if the other house balks and the first house passes it again and there is again a failure to pass in the other house then the amendment proceeds with passage in only one house). From there, meaning that all amendments start in the federal parliament in Canberra,[8] the amendment is put to all the voters of Australia by referendum. To pass the amendment needs (a) a simple majority of all those who vote nationwide and (b) a majority of voters in a majority of states.

The second prong, (b), can be thought of as a concession to federalism, while the first is just a simple “majority rules” asking of all voters whether they want change. It seems to me that the Australian amending formula is not procedurally difficult. Of course some Australian constitutional scholars assert that the amending formula is far too onerous. They do that because in the forty-four constitutional referenda ever held in Australia, thirty-six have been defeated (and of the thirty-six failures, all but five have lost on the first, (a), prong that requires a majority of voters nationwide—including the most recent referendum to jettison the constitutional monarchy and move to a republic, which lost badly nationwide, and indeed lost in every single state).[9]

But in my opinion the fact that only eight of forty-four constitutional referenda have passed does not tell us whether the amending procedure is difficult or not. It may well be that Australian voters simply like their Constitution and are wise to reject the proposed changes. In fact on almost all of the failed referenda I would have voted the way Australia’s voters voted. So the fact of a very bad track record in getting the voters’ approval for constitutional change in no way correlates in some necessary way to the mandated procedure for change being a hard or onerous one.

Indeed, the procedure in Australia is much easier than the one in the US, or the one in Canada. The key difference is that in Australia you cannot achieve constitutional change over the heads of the voters. (In Canada, in my view, the 1982 constitutional changes would not have passed a 50-per-cent-plus-one vote of Canada’s voters.)

That is precisely what Australia’s founders wanted. I think it is a very good thing, though many of my fellow Australian legal academics do not.

At any rate, and whatever your views on how best to structure constitutional amending procedures, that is the first main way in which Australia did not copy the US model.

The second aspect of the US Constitution that was studied, considered, debated and then explicitly rejected was the Bill of Rights. Australia, almost uniquely today in the democratic world, lacks any sort of a national bill of rights, constitutional or statutory.[10] And that is surprising, given that by far the biggest influence in drafting the Australian Constitution was the US constitution.[11]

This decision not to include a bill of rights was made after careful consideration, discussion and debate by those with an excellent knowledge of the US Bill of Rights.[12] I will be arguing later that that decision to reject a bill of rights was a good one. For now though, just note that this explicit rejection was the second and only other main feature of the US constitutional model that was rejected in the context of a general decision to ape all things American, constitutionally-speaking.

A Madisonian interlude

Given that in the next part I will be arguing that Australia made the correct call in resisting a bill of rights, it might be worth taking a moment or two to remind everyone that the man who was more responsible for the US Bill of Rights than anyone else, James Madison, initially opposed one.[13] This is the man who was instrumental in the drafting of the United States Constitution, and was a key leader in the movement to ratify it (not least as one of the three polemicists seeking to sway New York opinion in the Federalist Papers)—a man who had favoured a strong national government but who argued to wavering voters that the Constitution-to-be-ratified restricted the federal government to a few enumerated powers and would not pose a danger to the states.[14]

Quite consistently with that view Madison originally opposed an enumerated bill of rights because he thought one unnecessary (guarding against powers not granted to the federal government); because one might have unintended effects (the idea being that enumerating some rights might imply the absence of non-enumerated rights); and because such instruments had not been effective against government powers at the state level.[15] It was only in the struggle to get the Constitution ratified, and to get some anti-federalists to change their minds and votes, that Madison changed to the pro-bill-of-rights camp. And he did not just change camps, he went on to introduce the bill that proposed a slate of amendments, some of these forming the preponderance of what is now the first ten amendments, making him the father of the Bill of Rights.

Whether Madison’s motivation for changing camps was a fear of a new constitutional convention being called or the excesses of democratic decision-making, or something else again, I simply note that opposition to a bill of rights can also be understood in terms of siding with the early checks-and-balances-of-federalism-and-bicameralism Madison over the later throw-in-a-bill-of-rights-too Madison. In that sense the decision taken by the Australian Founders to shun one is a wholly respectable one in orthodox US terms, leave aside that at the time as the Australians were debating the issue of a bill of rights there existed but two such instruments at the national level anywhere in the world,[16] something that remained true until a number of years after the end of the Second World War. And leave aside as well that in the US itself the Bill of Rights had at that time only recently been applied to the state legislatures following the Civil War.

At this point I will resist the usual temptation of native-born Canadians like me to digress and point out that Madison really wasn’t much of a President and that he was the one who initiated the inconclusive and basically drawn War of 1812 that is no doubt of much more significance north of the border than in the United States. Instead I will push on and tell you briefly why it is that I think that Australia was right to resist the siren call of a bill of rights.

Why Australia made the correct call

Let me confess straight off that I am no fan of bills of rights and have written on the topic to the point of boring my wife senseless.[17] That said, I do not see the issue in Waldronian strong-rights terms where a “right to participate” (derived from, say, the goal of furthering equality concerns and human autonomy) is posited as the “right of rights” such that handing decision-making power to committees of ex-lawyers even on rights-related issues is itself a breach of rights—meaning that a commitment to rights ought to foreclose constitutionalising them and handing over all line-drawing calls to the judges. No, I am an out-and-out consequentialist and my position is that, when you throw in all the costs and benefits, you get better outcomes over time, on average, even about rights issues when social decision-making is done via the elected branches, the ones with a massively greater democratic warrant than the judges.

And these benefits that need to be thrown into the hopper include the benefits that flow when people have a say in decisions they care about deeply so that they feel their vote is worth as much as the next person’s, meaning that how decisions are made (not just what they are) affects the weighing-up exercise—something that any academic who has lost a faculty vote as opposed to having a decision from the university president or dean rammed down his or her throat might appreciate.

Certainly Australia scores as highly in terms of rights-respectingness as does the US or Canada when it comes to any international scorecard of such things, at least to the extent one thinks those are worth anything. And so does New Zealand for that matter, the first country on earth to give women the vote[18] and one that gave indigenous Maori not just the vote in the 1860s but also reserved four seats for them in the parliament.[19] New Zealand did all that and more without any bill of rights at all until 1990, and since that date has had only a statutory model that does not allow judges the power to strike down or invalidate statutes.[20]

I suppose you might say that I think that democratic decision-making over big-ticket moral issues such as same-sex marriage, gun controls, abortion, affirmative action and so on and on that fill up the docket of cases one sees every Supreme Court term in the US would be better decided even in the US were the nine top judges not to be the only ones enfranchised.

First off, people take losing better when they’ve had a vote. This is clear from looking at the issue of abortion in the US and comparing it to places where the issue has been decided by the legislature. I suspect the same is true of same-sex marriage. And euthanasia may be next in that line of the top American judges playing philosopher-kings on the issue.

Now I take that position knowing full well that in global terms the post-Second World War constitutional era might well be best described as the “triumph of American constitutionalism” with the burgeoning of uber-powerful judges who interpret a list of vague and amorphous moral entitlements in the language of rights and do so with the power to gainsay and second-guess the legislature. I see the trend worldwide. I simply think it a bad one.

Worse is the way such instruments are interpreted, most relevantly in the US and Canada. It might be one thing to imagine that the scope for parliamentary sovereignty, for unhindered decision-making by the democratically elected legislature, was being reduced by some finite and agreed-by-all-at-the-time margin or amount, so that certain entitlements were locked in but everything not agreed to was left on the table for future legislatures. But that sort of picture requires top judges to be some sort of originalists when it comes to constitutional interpretation. And plainly in Canada such a species is more or less extinct. And they are a threatened species even in the US.

Meanwhile an out-and-out commitment to “living constitutionalism” interpretation amounts at core to an ever-expanding list of decisions taken over or usurped by unelected judges, however dressed up or disguised. Certainly I can think of no way that you could convince many New Zealanders or Australians to opt for a US-style bill of rights if you also told them—openly and honestly—that the truth is that the document would have no finite boundaries in terms of its encroachment on future democratic decision-making, that its reach would expand and grow in line with changing social values or transnational standards or the moral antennae of any five of the nine sitting top judges, and that the image of a locked-in set of agreements that delivered certainty and hence might thereby be a price worth paying despite its counter-majoritarian costs was all just balderdash. It’s not overly appealing to be told, or so say I, that the words and commas you’ve argued and fought over line by line won’t really be locking in much of anything down the road, not when a “moral reading of the bill of rights” (or rather a moral reading by these handful of top judges) is at stake. I have argued at length as much already, how unappealing any such blunt and honest proposal along such lines would be to present-day New Zealanders and Australians, namely the status quo in the US and Canada today.[21]

And I daresay that if you had put to Mr Madison just how powerful his country’s Supreme Court would become—how it would over-rule the people on issues ranging from guns to marriage, not least by adopting what looks to me like a more or less externally unconstrained method of interpretation—that he and most of those who pushed for a bill of rights back then might have baulked.

Who knows? Certainly on balance I can see no evidence for thinking Australia erred in forswearing a bill of rights. I think Australia’s Founders got it right when they copied so much of the US Constitution. But they also got it right when they rejected a US-style bill of rights. You can (and should) have one without the other!

James Allan is Garrick Professor of Law at the University of Queensland.