Online research in philosophy

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation.

What would the constitution of a free nation look like? In trying to answer that question we immediately think in terms of a Bill of Rights, restrictions on governmental power, and so forth. And any constitution worth having would certainly include those things. But if a constitution is to be more than a wish list, it must also specify the political structure necessary to ensure that these freedoms are not eroded or ignored. Consider the old Soviet Constitution, which guaranteed all sorts of fine sounding freedoms for its citizens -- but which in practice proved only an empty promise, since its interpretation and enforcement lay in the hands of an unfettered monolithic centralized state.

One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The US Constitution is whatever the Supreme Court says it is". In many cases the Supreme Court has interpreted the Bill of Rights by means of wire drawn reasoning, reflecting the judges' political and social views. For a survey of Supreme Court Cases on the Bill of Rights see M. Konvitz, Fundamental Liberties of a Free People . The Supreme Court's power to interpret the constitution has made the appointment of judges a political issue, and in 1937 President Roosevelt sought to appoint additional judges (to "pack" the Court) so as to change the court's attitude (the US Constitution does not fix the number of judges). A President is expected to nominate judges ideologically acceptable to his supporters, and the Congress scrutinises these nominations in a partisan way. See article on George W. Bush's nominations. Since judges hold office for life, a President's nominations may make a long term difference to the interpretation of the constitution.

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Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of the European Union; what kind of polity is the Union? The suggestion offered is that there is a legally constituted order, and that a suitable term to apply to it is a ‘commonwealth’, comprising a commonwealth of ‘post-sovereign’ states. Is it a democratic commonwealth, and can it be? Is there sufficiently a demos or ‘people’ for democracy to be possible? If not democratic, what is it? Monarchy, oligarchy, or democracy, or a ‘mixed constitution’? Argued: there is a mixed constitution containing a reasonable element of democratic rule. The value of democracy is then explored in terms of individualistic versus holistic evaluation and instrumental versus intrinsic value. Subsidiarity can be considered in a similar light, suggestively in terms of forms of democracy appropriate to different levels of self-government. The conclusion is that there is no absolute democratic deficit in the European commonwealth.

Marbury v Madison, the early nineteenth century American case, profoundly affects to this day Australian jurisprudence, as a result of acceptance by the Australian High Court of its "principles" as "axiomatic," and serves as a basis for the justification of judicial supremacy over the legislature and the executive. The attachment to Marbury rests, however. on little sustained analysis of the case itself. This article analyzes the case in its historical, political and legal milieu. The analysis reveals that there is little if any principle involved, and that the opinion has little legal merit. It argues that in elevating the judicial power in interpreting the US Constitution, for essentially political and personal reasons, Marshall CJ perpetrated a fraud upon the Constitution by deliberately marginalizing the role of the people in amending the Constitution, and effectively giving that right to the Court as sole interpreter. The High Court's endorsement of this flawed, foreign and essentially irrelevant case for the vastly different Australian constitutional context, has resulted, it is argued, in the stultification of any vibrant democratic constitutionalism in Australia by usurping the people's right to know, understand and change their Constitution, and arrogating those functions solely to the judicial interpretations of the Court.

In this article, I discuss the signatures on the U.S. Constitution. I begin with a historical account of the Constitution's signing, noting in particular that unlike its ancestors, the Constitution was signed well before it began to assume legal status. I then explore the ways in which the Constitution's signatures served as useful advertisements for the document during ratification. Finally, I demonstrate that the Constitution's signatures (and the clause introducing them) gave rise to considerable interpretive ambiguity during both the Constitutional Convention and the ratification process that followed.

In Democracy in Australia I argued that the Australian system is a mixture of features, some democratic and some oligarchical. In this lecture I want to outline the thinking behind this mixture. It is not an inconsistency or an accident, as if the drafters of our constitution meant to make a democracy but did not quite succeed. Rather, the Australian constitution is an intelligent and successful solution to certain problems which worried educated people in the 19th century but are now largely forgotten. Perhaps their problems have turned out to be unreal; or perhaps the problems are forgotten because their solution was so successful. The drafters of the Australian Constitution set out to balance Democracy and certain other values, in a tradition of the mixed or balanced constitution coming down from Aristotle.

Abstract In Restoring the Lost Constitution, Randy Barnett defends the idea that judges should interpret the U.S. Constitution according to its original public meaning, for in his view the Constitution, rightly understood, satisfies the appropriate normative criterion for determining when a constitution is legitimate and should be followed. As it turns out, however, even if the Constitution did mean what Barnett says it does, it would not meet his criterion of legitimacy, and therefore should not be followed. Moreover, Barnett is just as guilty of reading certain clauses out of the Constitution as are his critics. Given the lack of a persuasive reason to follow the original Constitution consistently, judges must turn to sources of authority other than the Constitution in deciding constitutional cases.

The galvanising purpose of Federation was the creation of the Commonwealth and the distribution of power between it and the former colonies, simultaneously elevated to Statehood. But beyond this simple fact, consensus about Australian federalism has traditionally been elusive and is, if anything, only increasingly so. While the contemporary political debate over federal reform proceeds from a shared sense that our existing arrangements have manifest shortcomings, there is far from unanimity as to which of its particular features are strengths, and which are deficiencies. The structure of this paper is as follows. In Part II, the range of understandings as to the character of the federal relationship between Australian governments is canvassed. Consideration is given to the views of the Constitution’s Framers and commentators, but most centrally to members of the High Court since these have brought about great change in federal arrangements. The significance of the Court’s marked preference for adhering only to constitutional structure and its inability or unwillingness to develop ‘a federal jurisprudence’ is examined in two respects. First, the effect of the Court’s arid Engineers’ Case methodology has been to reject any suggestion that fidelity to a concept of ‘federal balance’ is consistent with both the contents and purpose of the Constitution and also the principles of divided government. Particular consideration is given to the limitations of a commitment to federalism in only a structural sense, as revealed by the judicial reasons of the majority and dissenting judges in the recent case of New South Wales v Commonwealth. Second, the tension between competing assumptions of the kind of federal system established by the Commonwealth Constitution has produced an unstable and uncertain environment for the development of cooperative schemes between the Commonwealth and States. In Part III we consider how an attempt to ‘constitutionalise’ the relationship between the tiers of government as one underpinned by cooperation and respect would impact on the Court’s approach. Drawing on foreign constitutions, and adapting these in light of Australia’s politico-legal conditions and history, we suggest how a commitment to cooperative federalism might best be shaped for possible inclusion in the Commonwealth Constitution.