September 2005

Human Rights

For and against Constitutional Rights
A Commentary on the paper by Justice I D F Callinan

David Flint

Justice Callinan’s paper is an elegant yet succinct comparison of the current trend to entrench human rights in the common law countries. Australia seems more and more isolated from this trend, and as a result there is considerable pressure from the legal profession and the human rights movement for the adoption of similar measures here. Would it improve the lives of Australians?

His Honour maintains a healthy but respectful scepticism concerning the benefits of moving in this direction.
He reminds us that it is fallacious to say that rights are totally absent from the Australian Constitution. But the absence of a Bill of Rights can be explained in three ways. It was politically a compact between the people of the several states to establish a Federal Commonwealth, and never intended to occupy the field of all constitutional law. Our constitution is thus broader than our Federal Constitution. This was drafted by men imbued with a belief in Dicey's theory of negative liberty and parliamentary supremacy. The Founders shared the Anglo- American view that men and women may do as they wish provided their conduct is not proscribed by law. And with the British, they believed in the supremacy of Parliament.

As Justice Callinan says, it is not surprising that this was the approach of the British peoples. Almost without exception they had resolved, ahead of other peoples and other places, to put their trust in their representatives in Parliament. They probably knew, and would have shared with Edmund Burke the view he put in his speech on his arrival in Bristol in 1774, when he said that “Your representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion”
This is representative democracy stripped to its essentials.

Our Founders saw their central task as one of transposing to the new federal entity that treasure freely given to them by their colonial mistress, that form of representative democracy found in responsible government under the Westminster system.

That said, their minds were not closed to improvement and to the possibility that other cultures might do things better, so they looked to the wider world beyond the Empire for enlightenment. One innovation was the referendum in relation to constitutional change, whereby the people, both nationally and federally, must approve of constitutional change.

Being learned men, the Founders full well knew the weaknesses of the two models of a Bill of Rights. The first, the Declaration of the Rights of Man made in Paris in 1789, failed almost instantly. It was soon followed by the Reign of Terror and the Bonapartist dictatorship. Even in their own lifetimes they would have known the authoritarian government of Napoleon III.

The French experience demonstrates that unless a state is a solidly established democracy, a Bill of Rights is a worthless piece of paper-as it has been in so many countries over so many years. For example, the 1936 Constitution of the USSR contained an innovative and expansive declaration of rights, and yet that country was the scene of the most extreme trampling of human rights.

But given that the Founders considered and were influenced by the American Constitution, why did they not append a similar Bill of Rights to theirs?

Again the Founders would have known that rather than being a glorious declaration achieved by consensus, the American Bill was adopted as an amendment only to save the Constitution and indeed the embryonic Union itself. The Bill of Rights, the first ten amendments to the Constitution, was never intended as a declaration of rights at large, but as a series of limitations on the new federal entity, declaring rights inherited from the British.

The Founders would also have known that the jurisprudence of the US Supreme Court was hardly encouraging for the liberal and advanced democracy that Australia, even before Federation, had already become.

Of all the continents, slavery was unknown to Australia; accordingly the Founders would have been horrified by the US Supreme Court’s decision in Dred Scott v Sandford (1856). This was that a ban on slavery in a US territory was unconstitutional because it would be a denial of property without due process. The property in issue was property in another human being, a slave.

Lincoln, who later ignored another decision of the Court that went against him in the Civil War, accepted that the decision was binding on the unfortunate slave, but hoped its “evil effect”, as he put it, would not become a precedent.

How different this was from that ringing declaration of the application of the common law, and not a Bill of Rights, attributed to Lord Mansfield in Somerset’s case (1772):” The air of England is too pure for a slave to breathe. Let the black go free.”

It is not surprising then, that the Founders of our nation had little faith in constitutionally entrenched bills of rights, and were confident that people were freer under the Westminster system.

The American experience should be compared with that of her former colonial mistress. Daniel Lazare (The Frozen Republic, Harcourt Brace,Orlando Florida,1996, ) writes:

“Over the longue durée of the twentieth century, the discrepancy is even more striking. Despite the absence of a Bill of Rights and judicial review, the British somehow found it within themselves not to throw thousand of radicals in jail immediately after World War 1; not to make thousands of arrests as part of an absurd crusade against alcohol; not to hound thousands of accused communists out of jobs and into jail in the forties and fifties; and not to arrest millions of people as part of a neo-prohibitionist war on drugs. The United States did all these things and more despite being blessed with the more glorious Constitution and Bill of Rights since the dawn of creation. Despite the existence of sizeable black communities in Liverpool and London, the British also found it within themselves not to lynch a dozen or more blacks a year during the thirties”

Along with this failure to deliver long term benefits to the people, the American experience also demonstrates the many weaknesses of constitutional entrenchment. At the core of this is the lamentable truth that the rights set out in the Constitution mean what the judges want it them to mean.

This has been exacerbated in recent decades in the United States by the theory that rather than finding the original intention of the Founders, the Constitution is a living document whose meaning evolves.
Justice William J. Brennan encapsulated this doctrine when he said:

“The Supreme Court has been, and is called upon to solve many of the most fundamental issues confronting our democracy, including many upon which our society, consciously or unconsciously, is most deeply divided, and that arouses the deepest emotions. Their resolution, one way or another, often rewrites our future history”
As Phyllis Schlafly says, (The Supremacists, Spence Publishing, Dallas, 2004) this statement represents the mindset of liberal elitist judges who are convinced they should rule over Americans of lesser status. The Constitution, she writes , gave them no such authority, and nobody called on nine life tenured , unelected , unaccountable justices to solve confronting the USA and to determine the nation’s future history.

Judicial arrogance in the US has been truly breathtaking. A particular example is the finding of a constitutional right to abortion. This was found by extending the constitutional right to privacy to a woman’s body. But a right to privacy is nowhere to be found in the text. The judges, who have superior version to mere mortals, peered in to the penumbrae, the shadows, of the Constitution and lo and behold, they saw a right to privacy. Why not graft on to this a right to abort a foetus? But judges are poor legislators-just look at the Australian High Court’s decision in Mabo. They lack the tools for research, they do not have an open debate about the advantages and disadvantages of moving in a particular direction, and in any event, they are actually making a decision on and restricted to the facts before them.

(So why in Mabo did our High Court choose to legislate for the land rights of the indigenous people of the mainland when all they had before them was a dispute concerning the ownership of land in a settled, not nomadic community in the Torres Strait?).

In the United States, the discovery of a constitutional right to abort had to be followed by subsequent judicial legislation providing different rules for the each of the three trimesters of a pregnancy.
But in so doing, they not only expropriated the jurisdiction of the state legislators. They lifted from those legislators their onerous duty, as envisaged by the Constitution, to legislate or not to legislate on such matters. How wonderful it must have been for irresponsible legislators to have someone do their most difficult work. How delightful it was for them not to have to answer to the people, but to blame it on the judges.

For those who supported the change, the judges intervention meant they did not have obtain some mandate from the people in legislative elections across the United States , a clear violation of the democratic rights of the people, and of the intention of the Founders.

And of course, if the judges are merely interpreting a constitution, their essentially legislative action cannot be repealed save by constitutional amendment, or a subsequent court saying the decision was wrong.
Such a judicial coup is corrupting not only to the legislators but also to the judges. In America, it has retransformed the confirmation proceedings to a disgraceful auto- da- fe where the sins , imagined or real- and usually irrelevant- of any judicial nominee are exposed to the world in order to block the appointment usually of lawyers who would apply the constitutional text.

Let us consider another example of US judicial adventurism. Notwithstanding the fact that the Founders were men imbued with a Judeo- Christian ethos, and that the first amendment does no more than proscribe a federal established church-several of the states had these- the Court has decided that the Constitution has erected “a wall between church and state which must be kept high and impregnable”. The judges claim they cannot approve the slightest breach of this entirely imaginary wall. The Court is thus involved in an unconstitutional campaign to secularise probably the West’s most religious country. As one wit has suggested ,while the Court would forbid the recital of prayers before a college football game, it would equally protect nude dancing there as free speech.

Indeed, I have argued elsewhere that the Supreme Court’s decision not to respect the fact that freedom of speech was intended by the Founders to protect only political speech, and not, say, obscene speech, has been a disaster. This has involved a reference to community standards as the secular measure of acceptability, and has proved to be nothing more than a slippery slope. Much of the resulting decline in standards in the American dominated Western media can be sheeted home to the US Supreme Court's refusal to interpret the Constitution according to the original intention of the founders.

The proponents of a constitutionally entrenched Bill point to the half way houses of some countries which have endeavoured to restrict the impact of such Bills. But as His Honour demonstrates, some judges, and no doubt the industry will try then to upgrade and effectively entrench the Bill, thus putting judges into the position of determining political and not judicial issues.

This is not their role, and nothing will diminish their standing before the public than imposing such political duties on them.