A sound constitution: exploring the souls of nations

By Alicia Kokocinski

The great classics of contemporary literature mark the struggle of human existence to balance aspiration with reality; to dream big and aim for something better while still providing guidance on the more ordinary dilemmas of everyday existence.

It is how the constitutions of the world can help strike this balance that Professor Adrienne Stone, Kathleen Fitzpatrick Australian Laureate Fellow, will explore through her ARC Laureate Program in Comparative Constitutional Law.

During the five-year Fellowship, Professor Stone, assisted by Dr Stijn Smet (Belgium) and Dr Erika Arban (Italy), will investigate the topic ‘Balancing Diversity and Social Cohesion in Democratic Constitutions’.

“Much of what we debate as a society has a constitutional question within it,” Professor Stone says.

Our Australian Constitution repeatedly grapples with two big questions about our identity. One, the place in our nation of our first peoples, and two, the relationship with our former colonial master – the United Kingdom. Both of these questions are motivated by the same impulse – the examination of our identity.

The focus is on the nexus between how constitutions can bring the people of a nation together – what unifies them – but also carefully balance diversity and difference.

“Constitutions – whether they self-consciously set out to transform a society or not, shape the government and the nation,” Professor Stone explains. “So we need to understand how they work in practice to really understand them.”

All constitutions bear the hallmarks of their time, she says. They are borne at a distinctive moment in the history of the nation, “usually in response to a particular set of events”.

“In Australia, for example, it was the aim of bringing the colonies together, thereby fortifying an ability for external self-defence.”

She points to two landmark examples of transformative constitutions – in post-colonial India and post-apartheid South Africa – but also cites those in the United States and Germany (post-WW2) as key for the examination of her central thesis of how a constitution can both nurture diversity and encourage unity.

Constitutions have a typical lifespan of fewer than 20 years. Australia’s is one of the oldest (and hardest to change) in the world. It has also sometimes been assessed as lacking in ‘aspirational’ content. This is a function sometimes performed by a separate artefact – in the US, the Declaration of Independence; in France, the Rights of Man. But, says Professor Stone, the lightness of ‘aspirational’ content has perhaps lent ours a flexibility in how we interpret it in a contemporary context.

She says the aspiration to recognise Australia’s first peoples in the Australian Constitution is an example of something that might be resolved by creating “something like a ‘declaration of independence’”.

“Something separate to the specific device of the Constitution, but integral to the way it is felt and seen – how it informs us as a culture and a nation.”

It is the challenge of long and enduring constitutions – all conceived in times when people, information and social structures moved slowly – to deal with the complex problems in our rapidly-changing world.

If the past is another country, then how can the Constitution be knowable – or useful – in the contemporary Australian context? How indeed, can any?

“They have in part some aspirational content that aims to unite people in a common goal,” Professor Stone says. “But they also have to leave some space for those who have to make it work in the real world.”

In Australia’s case, the balance between the two is constantly moderated by our High Court.

Judges must balance between fidelity to the Constitution and the careful development of constitutional ideals. Sometimes they might reason in ways designed to leave open the way for future movement. They might sometimes pragmatically resolve a controversy before them, but still manage to leave the way open for change.

An overseas example of this ‘pragmatic postponement’, Professor Stone says, is the issue of same sex marriage in the US. The issue of marriage equality was avoided in an important case in 2013, but by the time of Obergefell v Hodges in 2015, public opinion had caught up.

Another topical issue constitutional lawyers and courts have wrestled with internationally is an area of interest for Postdoctoral Fellow Dr Stijn: the law’s response in liberal democracies to religious diversity.

“I hope to explore the relationship between political theoretical concepts like toleration and respect and the adoption of specific legal approaches to questions of religious diversity,” Dr Stijn says.

Religious freedom remains elusive and contentious in most – if not all – constitutional democracies. And issues of religious diversity continue to be the quintessential stuff of reasonable disagreement.

For Postdoctoral Fellow Dr Arban is interested in the exploration of identity that is not defined by geography, even while it exists in pockets of cities and regions; that is, the intersection of constitutionalism and federalism

My aim is to test and apply the theory of socio-economic and non-national regions to metropolitan areas, to study how to reconcile the tensions between the pursuit of diversity and the promotion of social cohesion in smaller realities such as cities, Dr Arban says.

The Laureate Program promises to deliver insights into the impact of our Constitution on who we are – on both a small, ‘everyday’ scale, and who we aim to be as a national collective.

In countries like Australia, home to highly diverse multicultural societies, this understanding and research will be increasingly important to help governments, the courts and the public resolve differences – and even intense controversies – over ideals.

More information about the Laureate Program in Constitutional Law can be found at: law.unimelb.edu.au/laureate-programs/lpcl

Dr Erika Arban
Above image: Dr Erika Arba. Image credit: supplied

Banner image: Dr Stijn Smet, Professor Adrienne Stone and Gabbi Dalsasso

Image credit: Jorge de Araujo at Artificial Studios

This article originally appeared in MLS News, Issue 17, May 2017