The Australian Constitution as Symbol' by Dylan Lino in (2020)
Federal Law Review (forthcoming) comments
According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
Lino argues
‘For every constitution there is an epic, for each decalogue a scripture.’ Except in Australia, apparently. Among Australian lawyers, there is a well-told and decidedly
non-epic story about what sort of life the Australian Constitution has in the public imagination:
the Australian Constitution has no life. It does not, in other words, feature as a symbol within Australian political debate and culture. Much of the blame for this state of affairs can be laid squarely at the feet of the unremarkable document itself. Unlike the rousing texts of other nations’ constitutions, such as the quintessential United States instrument, the Australian Constitution does not contain grand expressions of rights or principles. It does not proclaim universal truths of political philosophy, nor does it recite the more local truths of national history. The Australian Constitution does something much more mundane and workmanlike. Unassumingly nestled in a provision of a statute passed by the British Imperial Parliament, the Constitution, in lawyerly prose, establishes the institutions of Federal Government, divvies up authority between them, and delineates the respective powers of the Federal Government and the States. It is a ‘structural constitution’, not a ‘rights constitution’. It is a constitution founded in continuity with the past, rather than in a radical break from it. It is a practical instrument of government, not a self-conscious embodiment of national identity and values.
According to this story, the Australian Constitution, a technical and arid legal document, is a hard field to be tilled by lawyers rather than a verdant civic garden that sustains and inspires the citizenry. And the citizenry responds accordingly. Bequeathed such a pedestrian founding document, the public simply ignores it, forsaking appeals to it in the course of political debate. Many Australians don’t even know they have a constitution, much less turn to it as a touchstone of civic life. When they go looking for sources of Australian identity and values, they look elsewhere – anywhere but the Constitution. Australians live in a state of constitutional estrangement.
This short article challenges the conventional story. I argue that the Constitution plays a more significant symbolic role in public life than scholars commonly assume. There is no doubt a good deal of truth in the conventional story. But this story also leads us to miss the many ways in which the Constitution functions as a symbol in Australian political culture. Ironically, embedded in the very notion that the Constitution is a kind of non-symbol are some important strands of constitutional symbolism. Thus, for some people, the Constitution’s dearth of declarations of values or identity paradoxically symbolises something important about Australia – bespeaking its people’s pragmatic, unsentimental character. That is one common way that the Constitution is represented but there are others, other symbolic Constitutions.
Having a proper understanding of the Constitution’s symbolic role matters for two reasons. First, it helps us see the political work that the Constitution performs beyond its official role as a legal instrument that regulates public power. Much of that political work involves shoring up the constitutional status quo, but some forms of constitutional symbolism contribute to modifying or challenging the constitutional order.
Second, for those of us who study and teach about the Constitution, understanding how the Constitution operates as a public symbol helps us be more aware of the ways in which we ourselves represent the Constitution in our research, teaching and interaction with the wider community. Given our power as some of the most authoritative sources of constitutional knowledge, what we say about the Constitution – to colleagues, students, practising lawyers, policymakers and the general public – matters. Our pronouncements about the Constitution, its history, its practical operation, its politics and its future affect how Australians think about the Constitution and ultimately how they imagine the possible shapes of the political future. Our resort to a proverbial story of the non-symbolic Constitution is not simply a description of reality; it is itself a particular way of representing the Constitution, a form of constitutional symbolism. But it is not the only story available. It is also a story that tends to depoliticise the Constitution, thereby reinforcing the constitutional status quo. As scholars and teachers of the Constitution, we should be mindful about what particular representations of the Constitution make visible, what they occlude, whose interests they serve and what the alternatives might be.
I begin by critiquing the claim that the Constitution is largely invisible within Australian political culture. After outlining the conventional story told by constitutional scholars about the Constitution’s invisibility, I argue that such claims are unduly influenced by the unrepresentative example of the US Constitution. They are also too narrowly focused on the Constitution as a symbol of shared identity and values, neglecting other forms of constitutional symbolism. If only we take a closer look, and we know what to look for, we find that the Constitution does operate as a symbol within Australian political culture. It has done so, to varying degrees and in numerous ways, since it was drafted in the 1890s. Indeed, the very claim of the Constitution’s invisibility engages in such symbolic work, in a way that tends to depoliticise and legitimise the Constitution.
I then briefly survey several ways that the Constitution has recently taken on symbolic significance within public life. I look at how different political actors with varying agendas and ideological outlooks have represented the Constitution through interventions into public debate – how they conjure different visions of the Constitution to serve their political projects. I focus on an area of public debate where the Constitution has taken on multiple symbolic guises over the past decade: the debate over recognising Aboriginal and Torres Strait Islander peoples within the Constitution. I draw attention to four common symbolic Constitutions – the practical, the liberal, the outdated and the exclusionary – operating in the Indigenous constitutional recognition debate and show how they are used by different people to support particular political positions. The practical and liberal Constitutions are mainly invoked by conservatives to venerate and uphold the Constitution, typically in opposition to Indigenous recognition, whereas the outdated and exclusionary Constitutions are deployed primarily by progressives to critique the Constitution, typically in support of Indigenous recognition or other constitutional change.
