Fetish and Constitutionalism

[grundnorm.livejournal.com]

In 'Does Australia have a Constitution?' Howard Schweber and Kenneth Mayer argue that a constitution has two components.  First, it establishes the organs of the state, defining and legitimising them, and establishes the mechanisms for resolving political conflict.  Second, it defines the limits of authority for those organs ('usually (but not necessarily) by defining a set of "rights"').

Schweber and Mayer contend that Australia lacks a constitution because the document called 'the Australian Constitution' fails to contain either of those components (short version: there is an organ of the State called 'the Prime Minister' but that organ is not mentioned in the Constitution, thus failing the first part; the limits of authority for those organs is not defined in the Constitution).

For discussion, I'm going to raise the question of whether Schweber and Mayer are correct when they assert these two components of a constitution, or whether they fall victim - as so many of us do - to the fetishing of constitutions.

There strong association in public discussion between constitutions and rights.  Australia has been criticised for being one of the few liberal democracies in the world without a charter of rights.  It should be noted that James Bryce, at one point one of the greatest liberal writers in the Anglophone world, praised the Australian Constitution for its lack of 'rights'.  When Bryce was writing, he had already finished his book, The American Commonwealth, which claimed the growing inequality and increasing poverty within America was, in part, due to the American rights-discourse.  The lack of rights in Australian constitutional law was indicative of its modernity, he said, and Australia's commitment to democracy.

Have we reached a point in political and legal theory where we entrench the concept of rights so deeply into our discourse that we are unable to challenge it?  Is Schweber and Mayer's analysis a product of that fetishism of constitutions which sees constitutional law as, necessarily, a higher form -- a more moral form? -- of law?

Comments

[fierceleaf.livejournal.com]

I see no contradiction here. I share the view that liberalism (in sense of personal liberty) doesn't imply democracy. IMO, liberty is more important then democracy especially in cases when populism that was fostered by democracy follows the will of majority to violate someone's freedom. Thus the constitution that explicitly imposes restrictions on all kinds of lynch trials is a good thing.

It may be not so important in civilized countries like Australia or GB. But for less developed countries the existence of constitution can serve a very good service in the long run.

[grundnorm.livejournal.com]

Democratic states are controlled by the population governed. How can you justify curtailing the right of populations to govern themselves?

[a-new-machine.livejournal.com]

Easily. Make a simple appeal to the tyranny of the majority, and there you have it, support for the idea of rights.

[fierceleaf.livejournal.com]

> Democratic states are controlled by the population governed.

Indeed, they only seem to be controlled by population. Because there is no such thing as population will indeed. People have different and conflicting interests. And the only choices that can be maid by the population are election or referendums. But the crowd is gullible and controllable and I can't believe that Hitler's electorate made an informed choice.

> How can you justify curtailing the right of populations to govern themselves?

Because the population will is abstraction and violation of rights is everyday reality.

But I agree with Churchill who said

"Democracy is the worst form of government, except for all those other forms that have been tried from time to time."

I really don't see how the problem can be solved.

[underlankers.livejournal.com]

The existence of unwritten constitutions, such as the one in the UK, woul rather indicate that this is a false dichotomy at least as far as what Constitutions came from.

[grundnorm.livejournal.com]

How do unwritten constitutions indicate this is a false dichotomy?

[underlankers.livejournal.com]

Because your post is based on the assumption that Constitutions are written documents that detail specific issues. Nor am I clear what fetishizing Constitutions means here, exactly.

[mahnmut.livejournal.com]

Just came to LJ and already assigned a Recommended tag to yourself? Wohow, not so fast, Mister!

[a-new-machine.livejournal.com]

In the words of Bill Clinton, that takes some brass.

[telemann.livejournal.com]

lol

[grundnorm.livejournal.com]

I didn't know how it worked.

Is that your only response to this post?

[meus-ovatio.livejournal.com]

Have we reached a point in political and legal theory where we entrench the concept of rights so deeply into our discourse that we are unable to challenge it?
Some are. The powerful remain free to challenge specific rights, though perhaps not the concept of rights per se. Since rights are a vehicle of power, they become avenues of power-mongering, as much as anything else. Rights are like money, I suppose. People are allowed to debate or challenge whether or not specific rights "exist", but usually the only rights that get debated are the rights of the maligned, marginal, and powerless.

In America, the right to own guns trumps the right to vote of poorer people. The rights of Wall St. are more protected than the rights of laborers. I think the combination of rights and capitalism have created an inherently unequal discourse in American politics.

[devil-ad-vocate.livejournal.com]

One of the problems with a written Constitution is that over time many regard it as Holy. I saw a cartoon showing the writers of the American Constitution; one of them says: "Now, should we add something at the end about how wise we are and therefore nothing in here should ever be changed?"

I thought it was funny - which was the intent of the artist. There are many Americans who do not.

[meus-ovatio.livejournal.com]

Absolutist Constitutionalism. The belief in an unchanging set of principles and rules by which society runs forever and ever, regardless of outcome or effect. As seen above, democracy gets in the way of the Perfect Constitution. It's a form of politico-religious fascism which thinks human governance isn't so much a set of problems to solve, but a problem of will and commitment to the Just Law Which We Have All Figured Out Now.

[dwer.livejournal.com]

worse than that is the concept that somehow, not only can we know for a fact exactly how they felt about each piece of the constitution, only their opinion is important, and therefore, modern opinions can not matter.

[harry-beast.livejournal.com]

Schweber and Mayer should asking the question, does Australia has a problem for which the best solution is constitutional change? If Australia is doing all right with its current document, who cares if it meets some wienie academics' constitutional wish list?
As for rights, the concept needs to be challenged. People don't seem to understand what rights are for. Rights inflation promotes an almost limitless number of rights, many silly, unenforceable or detrimental to society. Cafeteria Rightsism allows people to pick an choose which inalienable rights they feel like upholding, and which they choose to ignore.

[meus-ovatio.livejournal.com]

Near limitless? Really?

[fizzyland.livejournal.com]

What are rights for?

[devil-ad-vocate.livejournal.com]

Cafeteria Rightsism? Does that mean because I choose Key Lime pie over spinach I'm going to necessarily deny spinach to the guy behind me?

[grundnorm.livejournal.com]

I think you've confused S&M's point.

[underlankers.livejournal.com]

Like how conservatives demand the right not to pay taxes but refuse to respect civil rights for minorities they don't like?

[oslo.livejournal.com]

Is Schweber and Mayer's analysis a product of that fetishism of constitutions which sees constitutional law as, necessarily, a higher form -- a more moral form? -- of law?

No, I don't think so. Schweber/Mayer have defined a legal system's "constitution" as just the documents and the set of conventions that defines the extensions and limitations of legal actors' "powers." This requires no evaluative judgment of the sort you suggest here - whereby a constitution is in some sense "more moral," "higher," or capable of being "fetishized." It requires only identifying certain features of what we would describe as "secondary rules," in H.L.A. Hart's useful parlance, as those we normally attribute to things we call "constitutions." Broadly speaking, I think they are correct to identify power-granting and power-limiting functions as core features of any "constitution" we would recognize by the name.

When Bryce was writing, he had already finished his book, The American Commonwealth, which claimed the growing inequality and increasing poverty within America was, in part, due to the American rights-discourse. The lack of rights in Australian constitutional law was indicative of its modernity, he said, and Australia's commitment to democracy.

I am not familiar with Bryce's argument, but it would seem to be a mistake to confuse American "rights-discourse" as preoccupied by the kinds of limitations Schweber/Mayer have in mind when they refer to "rights." Whereas the former definitely reflects a reification of limitations on government power that is peculiarly (and perhaps dysfunctionally) American, the latter's focus is on the circumscription of power, however implemented (i.e., through explicit "rights" or otherwise).

I think Schweber/Mayer might fairly be said to fetishize one aspect of the legal rules we understand to be "constitutions," which is a "constitution"'s status as transcending and enduring throughout normal legislative and political processes. The problem with Australian constitutionalism, in their view, is that its grants of power are mediated only by political consensus, and its limitations on power are set (and always subject to revision) by the Australian judiciary. As such, the Australian "constitution" fails to be "stable" over time, which seems on their account to vitiate any claim that the Australian "constitution" truly has a power-granting function (because legislators can adjust their powers at will) or a power-limiting function (because the judiciary can decide at any time to revise and eliminate those limits).

I think they are wrong to fetishize this aspect of "constitutions," and I think their argument ultimately relies on distinctions from other constitutional traditions that don't hold up when these traditions are properly compared to one another in this respect. "Rights" in the American system, for example, are far more subject to judiciary emendation than they seem to acknowledge (and control of such emendation is a prominent element of our political process); and the distinction between the British and the Australian system comes down not to Parliamentary supremacy or convention-following but the ultimate textual bases for those systems' respective "constitutions" (a curious turn, since they also describe the assumption "only a written text can satisfy the definitional requirements of a 'constitution'" as "a case of American parochialism"). But this is not a fetishization of "constitutions" or of rights, as such.

[grundnorm.livejournal.com]

'It is also the case that a constitution is required to contain the highest law, so that it is understood that contrary ordinary legislation or actions by state actors are invalid.' (Mayer and Schweber 2007)

[root-fu.livejournal.com]

Good post.

I think you summarized it all with one sentence:

The lack of rights in Australian constitutional law was indicative of its modernity, he said, and Australia's commitment to democracy.

If a lack of rights is modern.

WAR IS PEACE,
FREEDOM IS SLAVERY,
and IGNORANCE IS STRENGTH

.

[underlankers.livejournal.com]

Um, perhaps it has to do with Australia holding the rights so self-evident that they don't spell them out for fear that some Dunning-Kruger-effected reactionary assclown will decide that the rights are only those explicitly listed in the document, like so many conservatives try to do in the USA these days?