Confused Constitutionalism

The American innovation on English Constitutionalism was that there is fundamental law – expressed in the constitution – that cannot be ignored by the executive and cannot be statutorily pasted over by the legislative. The Americans called them natural rights and entrenched those political rights in their federal and state constitutions.

Where an English judicial had to be activist, the American judicature could be constructionist. The English judicial established Habeas Corpus as accepted practice through activism two hundred years before it was legislated in 1679. The American judicial had a series of ongoing and increasing ‘rights’ laid out in fundamental law for them to protect from executive and legislative over-reach.

Australia, despite having 130 years to digest and deliberate on the American innovation, did it half-arsed. Ingliss-Clark had a bill of rights in the first draft of his Washminster constitution, but this was taken out apart from a protection for religious freedom. Consequently the constitution has not been able to inform judicial doctrine like it has in the United States. So we get a half-arsed and often seemingly arbitrary judicial doctrine that gives tips of the hats to the English style of executive/legislative dominance and at other times the American style of fundamental law.

In the past the High Court has adopted the American style and argued that political speech is protected as fundamental law as the constitution is a democratic one and without freedom of political speech the constitution is non-functioning. However;

THE High Court today overturned changes to federal government legislation made last year which bars prison inmates from voting. However, the court upheld earlier legislation which stipulated any prisoners serving a jail term of three years or longer could not vote.

Is enfranchisement protected as fundamental law or not? By that ruling it kinda is and kinda isn’t. That is half-arsed and goes back to the basic problem with the Australian Constitution. It is not one or the other. Is it based on English Constitutionalism or American Constitutionalism? It is not an Australian innovation, so it can’t be that. Civics matter and our constitution is a half-arsed mess by bearded men that were incurious to constitutional philosophy.

Fortunately it is an easy fix. A constitutionally entrenched Bill of Rights would stop this judicial doctrine confusion.

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14 years ago

Sorry to pick yo up this but nearly all states in the US prevent convicted felons from voting.

I think a modern version of a bill of rights would be a disaster as it would mimic almost every single interest groups demand. We missed the boat at federation.

The EU’s bill of rights essentially became a mishmash of interest group claims.

14 years ago

[…] because we are ignorant. But that is why there are other blogs. Club Troppo has good posts on both today. All we want to say about the new Labor IR policy, having heard the redhead yesterday and […]

14 years ago

I wonder what sentence length would disqualify a prisoner from voting in the High Court’s view, and why?

Andrew Reynolds
14 years ago

JC- many US states also go much further and remove the “right” to vote from many convicted felons even after their sentences finish – in many cases for years.

14 years ago

I read in an article this year that one governor (of Florida ?) is thinking of reinstating the voting rights of former felons.

14 years ago

Yes – the story was here in the Economist:

Florida sees the light

JUSTICE delayed is justice denied, and people are waiting. Thus Charlie Crist, Florida’s governor, at the beginning of a meeting on April 5th of the state board of executive clemency. By the end of that meeting, Mr Crist had persuaded two of the board’s three members that most felons who had served their time should automatically recover the right to vote.

Until now, Florida was one of only three statesthe others are Kentucky and Virginiawhich denied the right to vote to all ex-offenders. Nine others require ex-felons to submit to background checks before they can vote again; some categories of offenders lose the right for good. Florida’s law dates back to 1868, in the days of Reconstruction after the civil war. Now the state has changed course.

Its ex-felons have not had every right restored by Mr Crist and the clemency board. They still can’t request a commutation of their sentences, or own a firearm. And violent career criminals or those convicted of major crimesarson, the poisoning of food or water, murder, some sex crimeswill still have to go through a pile of paperwork before they can vote again.

These changes did not come without a fight within the governor’s own Republican Party. The state’s former Republican governor, Jeb Bush, had long opposed them, and Mr Crist and Bill McCollum, the state’s attorney-general, openly fell out. Mr McCollum, the former Florida congressman who led the drive to impeach Bill Clinton, called the changes reckless and irresponsible. Mr Crist’s rejoinder was simple; these people had paid their debt in full, and to restore their rights was simply the right and just thing to do.