The Federalism Project
Issues Paper No. 4
INTRODUCTION
Mr Isaacs: That is a very dangerous proposal -- that the Supreme Court should control the Legislatures of the States within their own jurisdiction.
Mr O'Connor: It only provides that each citizen of the Commonwealth shall be tried by due process of law. Why should a State be allowed to pass a law depriving a citizen of this right?
-- Debate in the Australasian Constitutional Convention (1)
As the above quotations show, the debate about protection of rights in Australia is not a new one. By common consent, "human rights" are an important part of how Australians think about politics. One of the strongest criticisms one can make of another government or policy is that it "violates basic human rights". This is not to say that we would all agree on a catalogue of what these rights are. Nonetheless, there is enough common agreement for talk of rights to be generally comprehensible. Most people will be content with a quick summary such as Jefferson's famous "life, liberty, and the pursuit of happiness". Others will prefer a definition, such as "inalienable personal qualities guarding one against unjustified interference with one's existence or activities". (2) However they are phrased, though, it is hard to discuss public policy today without reference to rights.
Despite this, Australia still has one of the world's few written constitutions to lack a formal statement of civil and political liberties, commonly called a "bill of rights". There are a number of historical reasons for this, and a number of more or less convincing arguments against incorporating such a device into our constitution. In this paper, however, I shall be looking at one aspect of the question that has recently gained particular prominence -- the issue of States' rights. (3) Does our federal system of government prevent us from giving adequate protection to human rights? To what extent can -- or should -- measures adopted at a Federal level cover possible abuses by State governments?
The briefest survey of the growing debate on an Australian bill of rights will show that the States' rights issue is central to it. Although Federal politics may excite our imagination more, the citizen's day-to-day dealings with government are more likely to be at the State level. Police, courts, prisons, schools, hospitals, roads, utilities, public transport, environment protection, consumer protection -- despite the gradual accretion of Commonwealth power, these are still predominantly State responsibilities, and the agencies that might encroach on the citizen's rights are likely to be State ones. Constitutional protection of human rights, if it is to happen at all, can hardly avoid dealing in some way with State governments. But will this fatally weaken the States' role in our federal system?
It can hardly be a coincidence that the debate about a bill of rights tends to polarise along the same political lines as views about the proper role of the States. Politics, of course, is an adversarial game, so there is always a risk that initiatives from one side will be opposed by the other regardless of their merit. In that event, the parties' positions on a bill of rights could simply be a function of which side happened to have thought of it first. Nevertheless, it seems to me that there is more to it than that. Those on the conservative side who have expressed doubts about a bill of rights have often cited the need to protect State sovereignty, or to avoid upsetting the balance of the federal system, among their reasons. In doing so, they are being philosophically consistent; while neither side has an unblemished record, the conservative parties in Australia have generally been the stronger defenders of the federal system and the place of the States.
Although there may be more discreditable motives involved as well -- a point that I shall come back to -- I think that we can give the conservatives credit for being sincere in the constitutional worries that they raise. Conversely, those on the left who have tended to brush aside these federalist concerns also have a philosophical pedigree. It has been the Labor side of politics that historically has pushed toward centralisation of power and a lesser role for the States. To say this is not to accuse the proponents of a bill of rights of any insincerity, or to mark the whole thing out as a sort of centralist plot. The centralists also can be assumed to be genuine in their motives. The point is rather that those from a centralist political tradition -- among whom the present Prime Minister must certainly be numbered -- are less likely to appreciate the force of objections that rest on a concern for States' rights.
These, then, are the basic ingredients of the current debate in Australia. In this paper I shall argue that, despite the tendency to political polarisation, it is worth making a determined effort to resolve the States' rights issue. The need for some constraint on the powers of State governments is very real. At the same time, we cannot entirely dismiss the fears of conservatives who raise the banner of "States' rights". I shall go on to examine how competing claims of this nature have been addressed in another federal system, the United States of America, and consider what lessons we might draw for Australia.
THE ALARMING POWER OF STATE GOVERNMENTS
As already mentioned, many (perhaps most) of the government powers in Australia that might be open to abuse -- and for which we might therefore look to a bill of rights as a remedy -- belong to State governments. More significant, however, is the alarming lack of restraint to which those powers are currently subject. In this respect, the States are to be contrasted with the Federal government. Although the Australian Constitution lacks a bill of rights, it does constrain the Federal government in a number of ways, which are worth looking at briefly.
LIMITS ON FEDERAL POWER
First, the Federal parliament is limited in its legislative capacity to the specific heads of power granted in the Constitution, chiefly the 40 topics named in section 51. There has been a strong tendency for the scope of these powers to expand under judicial interpretation (the external affairs power being perhaps the most disturbing), (4) but the restriction on Commonwealth power is still significant. The High Court has an undoubted ability to strike down laws that exceed the limits of Commonwealth power.
Second, there is a small number of constitutional provisions that operate as guarantees of rights. Section 51 (xxxi) provides that acquisition of property must be on just terms; section 51 (xxiiiA) prohibits civil conscription; section 80 provides that trial on indictment shall be by jury; section 92 guarantees freedom of trade between the States; section 116 protects freedom of religion; and section 117 (to be considered later) prohibits discrimination between citizens of different States.
Third, the very existence of a written constitution, with its concomitant power of judicial review, has given the High Court the opportunity to read into the Constitution several implied limitations on government power. Most significantly, under Chief Justice Mason, the High Court has affirmed the existence of an implied right of free speech on public matters, (5) leading to the expectation that other human rights may also be accorded judicial protection if the occasion arises.
Fourth, because the Constitution itself is beyond the power of parliament to amend, even its most mundane provisions operate as a guarantee against arbitrary power. The Constitution ensures that the Commonwealth government remains answerable to the people; it cannot extend the term of parliament, or spend money without parliamentary sanction, or remove any of the other checks and balances in the system without the approval of a referendum.
STATE POWERS
The alarming thing is that virtually none of these constraints applies to the States. State parliaments enjoy two huge advantages over their Federal counterparts: their powers are plenary, not limited, and their constitutions are not entrenched. The effect of these differences is to make State governments so powerful (in the absence of conflicting Federal law) that it is something of a misnomer to call them "constitutional" regimes at all.
Apart from the areas of responsibility that were given up to the Federal parliament upon the establishment of the Commonwealth, the law-making powers of State parliaments are unrestricted. The parliament of New South Wales, for example, has power to make laws "for the peace, order and good government of the [State]". (6) Victoria's parliament is even more sweepingly empowered, with the ability to legislate "in and for Victoria in all cases whatsoever". (7) Similar provisions are found in the other States. Although it might be thought that a reference to "good government" gives scope for a litigant to claim that a proposed law in fact constitutes bad government, the accepted interpretation is that these differences in wording are not significant. (8) Their effect is that, again leaving aside Federal jurisdiction, there is no limit to the subject matter on which the States can legislate.
Among the laws that a State parliament can (and does) make are laws to amend its own constitution. With the exception of a small number of provisions governing the structure of parliament in some States, State constitutions require no more than an absolute majority in both houses of parliament for their amendment. This feature has recently come to public attention in Victoria, where the Kennett government has included in a large number of bills provisions to amend the State constitution by limiting the jurisdiction of the Supreme Court -- for example, to avoid compensation claims from citizens affected by the Formula One Grand Prix. (9)
It therefore appears that, even without a bill of rights, the Constitution provides far more protection for the citizens, "with its occasional prohibitions and limited assortment of guarantees of unconnected matters", (10) than is available in the States. State constitutions give very little scope for an activist judiciary to intervene. The High Court in Union Steamship Company of Australia Pty. Ltd. v. King (11) expressed a fleeting interest in reading some implied limitation into the plenary powers, but this would only apply in the most extreme circumstances. In other cases, a State can always frustrate judicial review by retrospective amendment, as the Kennett government for one has shown no hesitation in doing.
STATE REMEDIES?
If the almost unlimited nature of State powers is a problem, it does not of course follow that Federal action is the only or the most appropriate remedy. It might well be asked whether the States themselves could do something to safeguard the rights of their citizens. Constitutional lawyers have long been familiar with a curious provision in the Colonial Laws Validity Act 1865, (12) which grants the State parliaments
full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any ... Law for the Time being in force.
This "manner and form" provision enables a State to entrench certain parts of its constitution by, for example, making a future amendment conditional upon passage with a special majority, or upon approval by a referendum. It has been used in that fashion in some States with regard to provisions for the abolition (or reintroduction) of the Legislative Council. (13)
At least in some areas, then, States themselves have the ability to place important features of their constitutions beyond the reach of transient parliamentary majorities. As I noted earlier, even the most routine machinery provisions of a constitution may provide important safeguards against arbitrary power -- both in themselves and in the opportunity they can give to the courts to derive other, implied, limitations on government. States could therefore make big advances in the protection of rights just by entrenching provisions relating to the "constitution, powers and procedure" of their parliaments.
The legal position gets murkier when we look at other provisions, of the sort that might normally go into a bill of rights. However, Professor Lumb, whose standard work on the subject I have already cited, is of the view that the expressions in the Colonial Laws Validity Act do not exhaust the range of subjects on which a State parliament might fetter itself by "manner and form" provisions. (14) My view, for what it is worth, is that he is right. The authors of the Colonial Laws Validity Act were not, it seems to me, trying to lay down a doctrine about how entrenchment works. Their concern was to make it clear that colonial parliaments (as they then were) had the power to legislate about their own structure; almost as an afterthought, they then pointed out that this power ("like all their legislative power", they might helpfully have added) was subject to any pre-existing requirements about the manner and form that legislation had to take.
If this is the correct interpretation, then State parliaments are able to introduce fetters (such as a referendum requirement) on their power to legislate on any given topic, not just on constitutional subjects. A State parliament could therefore pass a bill of rights which specified that any amendment to it could be passed only by referendum -- no doubt it would be sensible for such a bill to be put to a referendum in the first place. It is impossible to be sure that this device would ultimately be upheld, but there is certainly nothing to stop a State from trying the experiment. Even if the courts ruled, on grounds of "parliamentary sovereignty", that the referendum requirement could be repealed by ordinary legislation, it would still have a significant deterrent value: it would be a brave government that would risk such a repeal. And even a bill of rights that was not entrenched could have significant moral force. (15)
In view of these possibilities for State action, it is disappointing that so little has been done or even discussed at State level. The issue of a bill of rights, with rare exceptions, just does not seem to have attracted the interest of State politicians. A proposed Constitution (Declaration of Rights) Bill was drafted for the Queensland parliament in 1959, but was shelved "after strong criticism from the opposition parties and from outside Parliament, particularly from academics and lawyers". (16) Similarly tentative moves were made by the Cain government in Victoria in the late 1980s, but again with no positive result. (17) Here, surely, is a golden opportunity for a State leader wanting to claim a place in the history books. The most reasonable solution to the States' rights debate would see the States themselves taking the initiative on protection of rights. As well as breaking a constitutional impasse, such a move could bring substantial political rewards, given the public's growing awareness of human rights issues. Unfortunately, there is no movement yet on the horizon.
Taking these three points together -- the revived interest in human rights in Australia, the alarmingly broad powers of State governments, and the evident reluctance of the States to test such powers of protecting rights as they might have -- it is easy to see why many people have concluded that the Federal government should take the lead. It seems to be time for some sort of Federal initiative to put the protection of human rights -- rights vis-à-vis all governments, State and Federal -- firmly on the political agenda. There are indeed some signs of activity from the present Federal government. (18) How should we regard those who argue against such a move?
THE STATES' RIGHTS CONTROVERSY
Although the powers of State parliaments have no significant internal limitations, they are in practice limited, as I noted earlier, by overlapping Federal jurisdiction. Under section 109 of the Australian Constitution, a valid Federal law will prevail over any inconsistent State law, and the State law "shall, to the extent of the inconsistency, be invalid". Provided that a law about human rights can be brought within the scope of Federal power, the Commonwealth can legislate to protect rights against State action and override any conflicting State laws. This is what happened in the Tasmanian gay rights case: when, in 1994, Tasmania, despite an adverse ruling by the United Nations Human Rights Committee (the Toonen case), refused to amend its laws prohibiting sodomy, the Federal government legislated to protect consenting adults who might otherwise be convicted under those laws.
The Commonwealth's privacy legislation was based on the external affairs power, via Australia's ratification of the International Covenant on Civil and Political Rights. As noted earlier, the range of the external affairs power is controversial. The privacy legislation has not yet been tested in the courts, but it seems to have gained a large measure of bipartisan support. The facts of the case were not such as to excite sympathy for the Tasmanian government, and the more responsible defenders of States' rights (including the parliamentary leadership of the opposition) evidently decided that this was not a good instance to fight on. The less responsible element, including a number of members of parliament who opposed the legislation, were unable to avoid giving the impression that they supported anti-sodomy legislation as well as States' rights. In doing so, they have probably done their own constitutional theory a disservice, and given their centralist opponents more prestige than they deserve.
THE CONSERVATIVE VIEW
We must not, however, allow the apparent bigotry of the Tasmanian government and its more vocal supporters to blind us to the constitutional point that they are making. Their case deserves to be examined on its merits. The "States' rights" position, in its simplest form, maintains that the activities of the Federal government should be strictly confined to the specific heads of power in the Constitution. The States should be treated as supreme in their own spheres, rather than subordinate to the Federal government; as "equal partners", so to speak, in the federal compact. The advocate of States' rights therefore rejects the Commonwealth's use of such devices as the external affairs power or conditional financial assistance (Constitution, section 96) to exert control over the States.
If we take the States' rights view seriously, then it would clearly prevent the application of any Federal bill of rights to the States. This is clear in the case of a bill of rights which rested on ordinary Federal legislation, such as the Federal government's 1985 proposal. That proposal was criticised on the same grounds (and by much the same people) as last year's privacy rights legislation. It appears, however, that the same objection would apply to a bill of rights enacted at the Federal level by constitutional amendment. The strict defenders of States' rights apparently regard the Constitution as an instrument regulating the Federal government, not to be used (except in overlapping areas) for matters involving State actions. On this view, protection of the citizens against abuses of State power would be entirely a matter for initiatives at the State level.
Indeed, the attitude of many defenders of States' rights would be likely to limit even the scope of State initiatives. Those of a conservative constitutional temperament tend to oppose an entrenched bill of rights of any sort, because it would interfere with the supremacy of parliament. On this view, "manner and form" devices, even if they are legally available to the States in the Australian situation, shouldn't be used, because they are an infringement on parliamentary sovereignty -- that is, the unfettered power of parliament to legislate on any subject. Traditionalists regard this as an essential feature of our constitutional heritage; Peter Durack, in debate on the Federal bill of rights proposal, called it "a centrepiece of our Constitution". (19)
Some conservative attitudes to constitutional change, such as the otherwise unaccountable attachment to parliamentary sovereignty, seem to come down to just a resistance to change for its own sake. Our constitution is treated as something of a sacred object, embodying the priceless wisdom of our ancestors and not to be tampered with (the current debate on the republic offers the most obvious examples of this view). The truth is, however, that Australian constitutional practice is a somewhat ungainly amalgam of competing and conflicting traditions. It is the product of confusion and compromise at least as much as conscious design. From varying sources (imperial, colonial, American, etc.) we have cobbled together a structure which, by and large, works reasonably well. ("If it ain't broke, don't fix it", as the conservatives, in uncharacteristically colloquial fashion, keep reminding us.) But to regard it as a delicate, purpose-built piece of machinery that is liable to collapse if we tinker with even its most obvious shortcomings, is absurd.
CONSERVATIVE FEARS
Unfortunately, much of the standard conservative perspective on States' rights is confused in just this sort of way. One recent example will help to make the point. In 1987, the Australian Democrats proposed a bill for a Constitutional amendment to guarantee "democratic" elections in all houses of State and Federal parliaments. The bill was referred to the Joint Standing Committee on electoral matters, which approved a slightly different proposal that was subsequently put to referendum in 1988. (20) The conservative parties opposed the referendum (which was defeated), and it would be unfair to hold against them all of the things said in the highly political atmosphere of that campaign. (21) Nevertheless, it is legitimate to look at the dissenting report filed by the conservative members of the Joint Standing Committee to see how questions like this are seen from a States' rights perspective. The result is not encouraging.
The dissenting report on the Constitution Alteration (Democratic Elections) Bill makes a number of objections that are procedural in nature (for instance, that the proposal should have gone to the Constitutional Convention), and some that are specific to electoral boundaries. Others, however, attempt to make a more general philosophical point. "The proposed referendum", say the conservative members,
is in conflict with the philosophy of a "Federal Compact", which is a corner stone of the Federation as expressed in sections 106 and 107 of the Constitution. ... The intrusion of the Commonwealth ... would be a first step in dissolving our federal system. (22)
What are we to make of something like this? If the Federal government was planning such a move unilaterally, it could certainly be attacked as a breach of the "federal compact". But this proposal was for a constitutional amendment, by the referendum process specified in the Constitution. If passed, it would have restricted the power of State governments, but not by transferring any power to the Commonwealth; indeed, it would have restricted Commonwealth power in exactly the same way. To say that we violate the federal compact whenever we insert limitations on State power, even without changing the Federal/State balance, seems nonsensical. Moreover, the apocalyptic tone of the minority's objection does nothing to further constructive debate.
Another paragraph from the dissenting report introduces an extra item from the conservative demonology: "The proposal ... will inevitably result in the High Court becoming involved in disputes over these issues. These disputes are invariably Party political in character. This will politicise the Court." (23) Fear of the judiciary is probably more associated with recent American conservatism, but it seems to be gaining ground in Australia as well. As an issue in the bill of rights question, however, it is a non-starter. If rights are going to be enforced against any government, State or Federal, then they are ultimately going to have to be adjudicated in the courts. As Dicey pointed out, a "system which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation". (24) Unless we reject constitutionalism altogether, then this fear of the courts is just another confusion.
Even the label we give the conservative position seems to be confused. A "State", after all, is just a chunk of government, a more or less arbitrary territorial unit; if we think about morality in the usual way, it is not the sort of thing that can have "rights". People have rights; by extension, associations of people, such as corporations, might have rights. Maybe animals have rights, too. But what does it mean to say that a State has rights?
CENTRALIST DANGERS
I have tried to be unsparing in my treatment of the States' rights position. Despite the considerable confusion that it embodies, however, I believe that it cannot be rejected out of hand. On the contrary, its fundamental concerns are legitimate and important ones, and in many ways it is vastly preferable to the centralist alternative. It is a mistake to think that there is something inherently democratic about centralism. By shifting the centre of power further away from the people, centralism can make government less responsive and less accountable -- the isolation of Federal politicians and bureaucrats in Canberra is proverbial. Moreover, centralism in Australia has never been just a matter of clipping the wings of the States, or adjusting the balance between the two levels of government. Centralists, coming generally from the left, have been devotees of government power for its own sake. Their aim has been to expand Federal power at everyone's expense, not just that of the States.
The excesses of centralism will already be familiar to most readers. By exploiting their constitutional powers to the full, particularly the taxing and grants powers, successive Federal governments have taken over many traditional functions of the States. They have also obliged the States, in the areas left to them, to work within the increasingly serious constraints of Federal policy. The most striking growth in Federal power came in the 1970s under the Whitlam government, but the trend continued at a lesser pace under Fraser. The Hawke government in the late '80s showed some recognition of the importance of federalism, and of the need to redress the balance more in favour of the States. The Keating government, however, has reverted to a clearly centralist agenda: it aims to set policy for the whole nation, regardless of the subject matter, and it is contemptuous of the value of diversity and autonomy for the States.
Unbridled centralism in Australia has created many problems, including problems that deserve recognition even by the centralists' own standards. (25) But the centralist attitude appears in small matters as well as great ones, such as the petty substitution of "Australian" for "Commonwealth" in the names of Federal agencies -- a favourite pastime of the Whitlam government, but also practised by some of its successors. The constant theme is the denial of real legitimacy to the States: centralists regard the States as delegates of the central government, not as independent centres of power. In other words, they would like to treat State governments in much the same way that the States (chiefly, again, the Kennett government in Victoria) treat local government: as "mere instruments of the State", with "powers ... such as the legislature may confer, [which] may be enlarged, abridged, or entirely withdrawn, at its pleasure". (26)
In taking this attitude, Australian centralism runs contrary to the leading trends in the world's other federal systems. The increasing interdependence of modern economies has led to pressure for greater international and inter-regional integration. The result, however, has not been an abandonment of the principles of federalism. Quite the contrary. As the largest units of government become larger, it becomes more important to confine them to matters that genuinely require high-level decision. Centralism becomes less plausible as its potential range increases: it might be bearable, for example, for the Portuguese to have to refer local matters to Lisbon, but to refer them to Brussels is clearly absurd. The European Community, probably the most interesting new federalist experiment, has enshrined in its laws the principle of "subsidiarity", meaning that all decisions should be taken at the lowest practical level. Similar forces are at work in increased regionalism in Italy, France and the U.K., and in a new emphasis on State responsibilities in the United States.
FEDERALISM
The debate over centralism teaches us that, although conservatives sometimes discredit themselves by positions such as hostility to gay rights, we need to look behind these surface issues and consider the constitutional debate on its own merits. The defenders of States' rights could still be right about structures, despite their desire to use them in aid of unacceptable normative positions. (Just as centralists, with all the goodwill in the world, could still be wrong about the merits of the constitutional theory they use.) We noted earlier the importance of formal structures in protecting people against arbitrary power. Constitutional doctrines such as the separation of powers, parliamentary privilege and the independence of the judiciary do not refer explicitly to human rights -- or indeed to the citizens at all. In appearance they are purely "internal" to government. But in preventing certain sorts of hasty, ill-considered or arbitrary acts of government, they are powerful instruments of the public good. Federalism is another principle in this class, and the cry of "States' rights!" warns us against forgetting its importance.
Although States themselves are not bearers of rights, the talk of "States' rights" makes sense as a shorthand for certain rights that people have: roughly, to relate to government in a constitutional fashion, protected by procedural guarantees such as the principle of subsidiarity. To defend States' rights, within their proper bounds, is to recognise the importance of federalism and constitutionalism. While human rights are clearly of more fundamental importance -- in a sense, their protection is what the whole political structure is about -- trying to safeguard them in a way which seriously weakened federalism could easily be self-defeating. If this is what the conservatives are pointing out, then they deserve to be listened to.
Some conservatives can certainly be constructive in their contribution to the debate. Peter Durack, for example, has voiced legitimate fears about the scope of Commonwealth action, particularly that involving the external affairs power. In doing so, however, he resists the temptation to attack the idea of protecting human rights, either generally or in relation to sexuality. On the contrary, his complaint is that piecemeal Federal legislation will be an inadequate substitute for a genuine bill of rights:
It is not good enough to have a Bill of Rights introduced by a bits-and-pieces approach by only the Federal Parliament acting on a power [i.e., the external affairs power] which is not seen to have legitimacy by large numbers of the [sic] Australians. ... Finally, the Federal Parliament may at any time repeal all or any such legislation. (27)
This is an entirely reasonable piece of criticism. There is also some force to the conservative argument that the Commonwealth should first get its own house in order regarding human rights before trying to take on the States. Although, as we noted before, the citizen's daily contact is likely to be with State governments, it is at least arguable that the most egregious violations of human rights happen on a Federal level. It is not State governments, for example, that are locking up refugees without trial in unsanitary detention centres and then sending them back to face possible torture and death in their home countries. Federal moves on human rights would certainly have more credibility if they were accompanied by a more determined effort to lead by example.
TYPES OF RIGHTS
Debate on a bill of rights also has to involve the question of just which "human rights" ought to be protected. On the surface, it might seem surprising that so little of the public discussion is concerned with this question; it is worlds away from the concerns of philosophers about the nature of rights, as anyone who has even glanced at the academic literature will realise. While I see the philosophical discussion of rights as important (and indeed have contributed to it myself), I am not troubled by the fact that it is reflected only dimly, if at all, in the bill of rights debate. The philosophical basis (or lack thereof) that rights have is ultimately of limited relevance to the desirability of constitutional protection. Any right that is going to come close to being included in a bill of rights will be one whose existence and importance have widespread recognition. There may be dispute over its content or over the details of how it should be protected, but these are practical matters. The philosopher who at that point raises doubts about its epistemological or ontological status will be ignored, and rightly so.
In other words, the status of rights in constitutional arrangements depends ultimately on a political consensus within society. More fundamental questions about their philosophical nature can safely be left aside. We can usefully compare our situation with that of the founders of the American constitution. In the eighteenth century, a wide measure of agreement was reached on the actual rights to be protected, despite the differences in philosophical traditions and approach. (28) Practical agreement in Australia may not be so easy to come by, but I do not think we should be too pessimistic about this. The very silence of public debate on the issue suggests that a practical consensus on at least a "minimalist" description of rights could be within our reach. (29) It is interesting to note that Peter Durack, in the article on the United Nations issue mentioned above, seems rather supportive of the High Court's ability to voice Australia's aspirations for proper standards of human rights. "The decision of the High Court in the political broadcasting case", he says, "may well have provided a more satisfactory guarantee of freedom of public discussion than the guarantee of freedom of expression in the [International] Covenant." (30)
I think we can even say that it is characteristic of the debate on "UN interference" that the substantive content of human rights is not (except occasionally at the fringes) what is being argued about. Opponents of UN involvement make their stand on the grounds of national sovereignty; they defend (unreasonably, in my view) the procedural rights of Australians to be governed entirely by domestic laws, not any particular substantive rights which may or may not get enforced as a result. We cannot dismiss the possibility that some participants in this debate are using it as a cover for other issues, but it is not obvious what these might be. Those who most resent the involvement of the UN seem to want the freedom to make arbitrary laws in general, rather than any particular class of arbitrary laws.
It is sometimes argued, and more frequently implied, that selective protection of human rights may be worse than no protection at all. This seems to motivate some of the fear of judicial activism that we have observed on the conservative side of politics: there is a feeling that, although the judiciary cannot themselves violate rights, they may systematically fail to protect a particular class of rights, and so do real harm by giving legitimacy to a government that violates them. (31) There is definitely some merit to this argument. To the extent, however, that it may be a problem in Australia, most of the harm has already been done -- the High Court seems unlikely to reverse itself on issues like the breadth of the "corporations" power, or the narrow interpretation of section 92. (32) Explicit legislative activity by judges, at least in the constitutional arena, (33) is still virtually unknown. It would also be unfortunate if Australian conservatives were to copy the far-fetched nature of some of the attacks on judicial activism in the United States.
THE AMERICAN EXPERIENCE
At this point, we seem to have reached an impasse in the Australian debate on States' rights. There is clearly something to be said on both sides of the argument. It may therefore be worthwhile to try to get some perspective on the debate by crossing to the other side of the Pacific, to see how the issue has been dealt with in another federal system. The experience of the United States may hold lessons that can usefully be applied in Australia.
The framers of the American constitution, although they were in a radically different situation from that which later faced their Australian counterparts, had one very similar problem. They were not constructing an entire new system of government, but only one level of it. Just as in Australia, there were established State or colonial governments already in existence, with constitutions and traditions of their own. As a result, although the body of the U.S. Constitution, like Australia's, contains a few isolated restrictions on State power (for example, a prohibition of Bills of Attainder), (34) it is almost entirely concerned with the powers and operation of the Federal government.
THE BILL OF RIGHTS
The American experience, however, diverges from the Australian in important ways. For reasons which I shall look at later, the American founders were very concerned about the protection of human rights. A significant body of opinion was opposed to adoption of the new constitution because they saw it as inadequate in this respect. In the first year of its operation, and partly to meet these objections, a series of proposals was therefore put forward to add guarantees of rights to the constitution. Upon their ratification in 1791, they became the first ten amendments to the constitution, known collectively as "the Bill of Rights".
The Bill of Rights is justly famous as one of the first effective charters of human rights, and many of its provisions are echoed in later documents such as the International Covenant on Civil and Political Rights. In keeping with the rest of the constitution, however, the Bill of Rights originally bound only the Federal government. Although this is not obvious at first sight -- the famous phrase "Congress shall make no law" actually appears only in the first amendment, not the other nine -- it is a well-established principle. Chief Justice Marshall in the leading case of Barron v. Baltimore certainly expressed no doubt on the subject. If the authors of the Bill of Rights, he said, had "engaged in the extraordinary occupation of improving the constitutions of the several States", then "they would have declared this purpose in plain and intelligible language". (35)
THE FOURTEENTH AMENDMENT
There the matter stood until after the American Civil War in the 1860s. One of the causes of the war had been the Supreme Court's ruling, in Dred Scott v. Sandford, (36) that State citizenship effectively overrode national citizenship. This was, therefore, a point that the victors were concerned to set right after the war, and an amendment to the constitution, the fourteenth, was the result. Ratified in 1868, its first section reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
"Privileges or immunities"; "due process of law"; "equal protection of the laws". These phrases, grand but imprecise, reopened the question of the extent to which the constitution protected the rights of citizens vis-à-vis the States. One view, not lacking in historical support, is that the authors of the fourteenth amendment intended that it would extend the whole of the Bill of Rights to the States. This is the "full incorporation" thesis. (37) "The Supreme Court, however, continually rejected this theory of total incorporation of the Bill of Rights into the fourteenth amendment. The Court, instead, adopted a theory of selective incorporation." (38)
As the Civil War receded into the background, there was less enthusiasm for taking on the States. An expansive reading of the fourteenth amendment was rejected in the Slaughter-House Cases of 1873. (39) Some degree of protection for rights, however, was established under the "equal protection" requirement (40) and under the "due process" clause. Even a conservative interpretation of "due process" in Hurtado v. California noted that it protected "those fundamental principles of liberty and justice which lie at the base of all our civil and political institution". (41) "Selective incorporation" meant that although the whole Bill of Rights would not be applied against the States, those provisions that the court regarded as essential would be. (42)
SUBSTANTIVE DUE PROCESS
Toward the turn of the century, economic liberties at least received a wider protection against the States; the period became famous (or, in some circles, notorious) as the era of "substantive due process". Instead of accepting infringements of liberty where proper legal procedures had been followed, the Supreme Court would go further and look at the substantive justification for the measure. Liberty was interpreted broadly as "the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation". (43) The protection of economic freedom was classically set forth in Lochner v. New York, (44) where the Court struck down a State's attempt to set maximum working hours.
At the same time, however, the doctrine of selective incorporation was gradually being extended to personal liberties of the sort that we now associate with a bill of rights: in Meyer v. Nebraska (the right to teach foreign languages in schools); (45) Stromberg v. California (right to display a red flag); (46) Powell v. Alabama (right of defendants to counsel); (47) and De Jonge v. Oregon (right of peaceable assembly). (48) In Gitlow v. New York, the Supreme Court stated baldly that "freedom of speech and of the press -- which are protected by the First Amendment from abridgement by Congress -- are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States". (49)
Following the "New Deal" of President Franklin Roosevelt and the acceptance of greater government involvement in the economy, "economic" due process fell out of favour. Lochner v. New York was overturned in 1937. (50) There was no general desire, however, to narrow the range of the fourteenth amendment, and the protection of civil liberties continued to expand. The "equal protection" clause was finally given real teeth in Brown v. Board of Education, (51) which struck down racial segregation in the States. Selective incorporation was taken up fully under Chief Justice Warren in the 1960s, to the extent that almost the whole of the Bill of Rights has now been applied to the States via the fourteenth amendment. The Court has also made it clear that these provisions apply just as strictly to the States as they do to the Federal government: (52) State s cannot make do with "watered-down, subjective" versions of the guarantees contained in the Bill of Rights. (53)
This "nationalisation" of the Bill of Rights has given America a uniquely comprehensive system for judicial protection of human rights. Many claim that the "culture" of rights in America has gone too far, but there is little quarrel with the principle that, whatever rights are protected, the protection should be just as effective against State as Federal governments.
COMPETITIVE FEDERALISM
This, however, is not the only important way in which the debate there differs from Australia's. In the United States, State constitutions are not the anaemic documents that we have in Australia. They require more than just a vote in the legislature for their amendment (most States have referendum provisions); they are routinely subject to judicial review; and, without exception, they contain in some form guarantees of human rights. In the last decade or two, as the U.S. Supreme Court has taken a slightly more conservative trend -- epitomised by the case of Bowers v. Hardwick, (54) in which a challenge to the Georgia sodomy laws was rejected -- many commentators have observed an increasing reliance by litigants on the human rights provisions of State constitution. (55) Some State constitutions give a more expansive coverage to some rights than the Bill of Rights does. In other cases, a provision with the same wording has been given a more liberal construction by State courts. In all, there is considerable variety:
Some provisions antedate their federal counterparts ... Other State provisions have no federal counterparts at all. Still others are couched in language different from the federal guarantees, reflecting the distinctive political perspectives and unique historical experiences of the various States. (56)
While some bemoan this lack of uniformity, the better view is that the opportunity for comparison among different State systems is a strength, not a weakness. This is the idea of "competitive federalism": new policies, including new constitutional ideas, can be tried out on a small scale in one or a few States instead of being imposed on the whole country. Ideas that work will gain greater acceptance, and all the States will benefit from the stimulus of competition. As one commentator, Susan Fino, puts it, "State supreme courts serve as useful laboratories for experiments ... Poorly conceived decisions or ones that have unfortunate unanticipated consequences need not spill over into the law of other States." (57) (Fino is referring particularly to economic liberties, but of course competition between jurisdictions can extend to competition in what sort of rights deserve protection; in the same volume, Peter Galie (58) cites several precedents on State recognition of affirmative "welfare" rights.)
"Selective incorporation" of the Bill of Rights has slowed somewhat in recent years, under the Burger and Rehnquist courts. Competitive federalism is certainly one justification given for a degree of reticence; Justice Powell invokes the "laboratory" metaphor in his opinion in the key case of Apodaca v. Oregon. (59) So far, however, this is a limited trend. State constitutions can be used to supplement the fourteenth amendment, but they are not going to replace it. Constitutional experimentation is best understood as focusing on a variety of State constitutional guarantees, not a variety of State interpretations of the Federal guarantees. American conservatives, apart from the lunatic fringe, (60) seem to have fully reconciled themselves to the fourteenth amendment and selective incorporation. (61) Where they disagree (as many do) with the extent to which the Court has protected civil liberties over the last few decades, they make no real distinction between State and Federal action. The debate over federalism has moved on to other more productive topics, such as the division of fiscal responsibilities.
LESSONS FOR AUSTRALIAN CONSTITUTIONALISM
The American experience is encouraging to the advocates of States' rights in at least one respect: it suggests that competitive federalism is a useful and important idea in constitutional theory as well as other areas. This is a lesson that should be taken to heart, despite the persistent failure of Australian centralists to understand it. Paul Keating's greatest failing as Prime Minister may well be his inability to see the possibilities of competition and comparison between the States. However, America also suggests that competitive federalism is not a conclusive argument against a Federal guarantee on rights that also constrains the States.
AMERICAN PRECEDENTS
Can we apply this lesson in Australia? There is nothing unusual, of course, in using American precedents for constitutional development here. Many key provisions of the Australian Constitution -- including the name and composition of the Senate, the Federal judiciary, and the division of State and Federal powers -- were based more or less directly on their American counterparts. The similarity extends to at least one provision guaranteeing rights: section 116, which guarantees freedom of religion, is based on the first amendment in the U.S. Bill of Rights. (This applies only to the Federal government; its extension to the States was one of the proposals defeated in the 1988 referendums.)
The interpretive history of this provision, however, has diverged from the corresponding American case law. In the D.O.G.S. case, (62) the High Court ruled, contrary to the American precedents, that the words "shall not make any law for establishing any religion" did not mandate a strict separation between church and State. Justice Murphy was the sole dissenter in the D.O.G.S. case, arguing that the American interpretation was the correct one and should be followed in Australia. It is interesting that Murphy also anticipated much of the reasoning of the High Court's recent free speech decisions, before such judicial activism became fashionable in Australia. (63) It is surely not fanciful to suggest that, whatever form an Australian bill of rights ends up taking, both its wording and interpretation will be strongly influenced by the American experience.
When the Australian Constitution was being drafted, however, there was considerable resistance to incorporating guarantees of rights on the American model. The main reason for this was historical. In America, the founders were all too aware of the potential for governments to abuse human rights; they had just fought a long war for their independence from tyranny, and they cherished their rights accordingly. Australia framed its constitution in a much more peaceful and complacent era, a century removed from the abuses of George III's reign, and two centuries from John Locke and the English Bill of Rights. In this atmosphere, specific guarantees of rights were generally thought to be obsolete (the exceptions of trial by jury and religious freedom have already been noted). Moreover, late-nineteenth-century Australia was a brash, self-confident society: many colonial politicians thought it downright insulting to suggest that their government would ever violate basic human rights. (64)
THE DEBATE IN MELBOURNE
There was, however, some interest in the fourteenth amendment. The 1891 draft of Australia's constitution included the following section: "A State shall not make or enforce any law abridging any privileges of citizens of other States, nor shall a State deny to any person within its jurisdiction the equal protection of the laws." Although this is clearly modelled on the fourteenth amendment, it omits the phrase about due process of law which, as we have seen, has been the most important device in the U.S. for attracting judicial review. At the Melbourne convention in 1898, a proposal was therefore made (it was moved, ironically, by the Tasmanian parliament) for a much strengthened version, including the key words "nor shall a State deprive any person of life, liberty, or property without due process of law". (65) This was the occasion for the exchange between Isaacs and O'Connor set out at the beginning of this paper.
Justice Michael Kirby, referring to this debate, has asserted that "There was spirited debate in the [Australian] Constitutional Convention as to whether a Bill of Rights should be incorporated ... The debate that had engaged Alexander Hamilton, Madison and the American Founding Fathers was addressed by those who established our Federation." (66) This, however, is bad history. James Madison, the chief author of the American Bill of Rights, would only have given us a bill of rights applying to the Federal government (and Hamilton would not even have gone that far). This is what the delegates thought was unnecessary, although for quite different reasons from Hamilton's. The key point of the proposal to echo the fourteenth amendment is that it would have constrained the States in a way that nothing in the American Bill of Rights did. The delegates in Melbourne interpreted such a provision narrowly -- they were not devotees of "substantive due process". At that time, however, the fourteenth amendment was still being given a restricted interpretation in America. (67) In the era of the Mason High Court, such a provision would have been enormously more powerful. (68)
Although O'Connor clearly subscribed to a relatively narrow interpretation of the fourteenth amendment, he saw that there was a fundamental principle to be vindicated by inserting some such provision in the Australian Constitution. Provoked by the resistance of Isaacs and others, he explained that the proposed section was "a declaration of liberty and freedom in our dealing with citizens of the Commonwealth", and that, without it, a State if it chose could repeal Magna Carta. Closing the debate, he gave it this ringing endorsement:
It should also be put in this constitution ... as a guarantee for all time for the citizens of the Commonwealth that they shall be treated according to what we recognise to be the principles of justice and of equality.
But it was to no avail; the proposal was defeated, 23 votes to 19. (69)
If we are serious about protection of human rights, then it might now be time to revisit this proposal.
CONCLUSIONS
The recent stirring of judicial activism in Australia is probably a good thing. It has corrected abuses (such as the political broadcasting law) which might otherwise have gone unchecked, and it has focused public attention on important legal and constitutional issues. The High Court, however, cannot do everything on its own, and it would be an unhealthy thing if it were to try. Constitutional reform ideally is a matter for broad consensus and concerted action. Just as the High Court should not be asked to do all the work for us, nor should the United Nations, and nor should the Federal government. Although Commonwealth impatience might be understandable in the light of some State attitudes, protection of rights is not a matter for unilateral action. What we need is a co-operative approach between the Federal government and the States.
Those on the left who have embraced centralism suffer from a failure to understand, or perhaps a wilful refusal to take seriously, the objections of the "States' rights" view. Legitimate constitutional fears are attacked as a camouflage for objectionable substantive views -- which, no doubt, they sometimes are. But for centralists to dismiss all such opposition as narrow "legalism" shows a failure to understand the importance of the constitutional structure. (70) Conservatives often have only themselves to blame for such attitudes. The historical irresponsibility of conservatism lies in its negativity. It may delay or obstruct undesirable changes, but it fails to suggest alternatives, even when it admits that the ends to be served are sensible ones. Worse, by their confrontational and even hysterical tone, conservatives have frustrated compromise and lowered the standard of public debate. (71)
Like some other constitutional issues, the direction to go in safeguarding rights comes down partly to a choice between different views as to the fundamental nature of the Australian constitution. Is it an instrument simply constituting a Federal government, while leaving the States basically as they were before? Or should we treat our constitution as a foundation document for the whole federal structure, both States and Commonwealth? The first is the more respectable historical view, and it is how conservatives, with their talk of the "federal compact", tend to see things. (72) The second view is evidently the one held by centralists, with less historical warrant but perhaps a better sense of what is appropriate for a modern nation.
The American experience shows that it is at least possible for a constitution's status to move gradually from one to the other, and to do so without jeopardising the importance of the States. In particular, it shows that State initiatives on the human rights front, of the sort I advocated above for Australia, can complement a strong federal guarantee -- one which applies to the States as well. If the same trick were to be accomplished here, we could gain the protection for human rights that our system currently lacks, without giving up what is valuable in the States' rights position.
The fact that it has worked in America, of course, does not mean that it will work for us. After all, it took them a civil war, among other things. It will certainly require a great deal of thought and of goodwill on all sides. But it seems to be well worth a try.
ENDNOTES
1. Australasian Federal Convention (Third Session), Official Record of the Debates, Melbourne, 1898, page 683.
2. Mark Allen Gray, "A Victorian Bill of Rights", The Australian Quarterly, Autumn 1991, pages 74-90, at page 74. I would have avoided the word "inalienable" in this context, not because it is wrong but because it can be confusing.
3. Just what is involved in the "States' rights" position will become clearer as we proceed, but in outline I think it is quite familiar. It asserts the constitutional autonomy of the States, and is suspicious (to say the least) of any attempt to extend the reach of Federal laws (including the Federal Constitution) to State activities.
4. See Peter Durack, The External Affairs Power, 1994, Perth.
5. In a line of cases beginning with Australian Capital Television v. Commonwealth, (1992) 177 CLR 106, 108 ALR 577.
6. Constitution Act 1902 (NSW), section 5.
7. Constitution Act 1975 (Vic.), section 16.
8. See R.D. Lumb, The Constitutions of the Australian States (1963), 5th ed., 1991: University of Queensland Press, St Lucia, pages 84-86.
9. See, for example, Chris Merritt, "Vic Rulings Claimed to Undermine Law", Australian Financial Review, 26 June 1995, page 10. For more detailed discussion, see Scrutiny of Acts and Regulations Committee (Victoria), Discussion Paper No. 1 on the Operation of Section 85 of the Constitution Act 1975, May 1995.
10. Cheryl Saunders, The Federal System, 1985: Intergovernmental Relations in Victoria Program, University of Melbourne Law School, page 8.
11. (1988) 166 CLR 1, at page 10. Compare B.L.F. v. Minister for Industrial Relations, (1986) 7 NSWLR 372, and Professor Lumb's discussion, op. cit.
12. S.5. See now Australia Acts 1986, s.6.
13. See Lumb, op. cit., pages 119-126.
14. Ibid., pages 127-131.
15. It would also be an effective safeguard against violations of rights which were unintended, or which the government was not prepared to stand behind to the extent of passing amending legislation. This is substantially how New Zealand's bill of rights operates; see Wayne Mapp, "New Zealand's Bill of Rights: A Provisional Assessment", Agenda, volume 1, no. 1 (1994), pages 81-89. Compare also the English Bill of Rights of 1689, which is still law in the Australian States. A State bill of rights could also be overridden by Federal law in areas of overlapping jurisdiction. (I owe this point to Peter Durack.)
16. A.C.V. Melbourne and R.B. Joyce, Early Constitutional Development in Australia, 1963: University of Queensland Press, St Lucia, pages 498-499.
17. See Legal and Constitutional Committee (Victoria), Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights, 1987; also Gray, "A Victorian Bill of Rights", loc. cit. (I am grateful to Tony Rutherford for drawing my attention to this article.)
18. See Glenn Milne, "Labor MPs Push Bill of Rights to Reassert Parliament's Power", The Australian, 24 April 1995, page 11.
19. Commonwealth Parliamentary Debates, Senate, 14 February 1986, page 352. Other opposition speakers at the time made similar remarks. The classic exposition of parliamentary sovereignty is A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885), 8th ed., 1915, reprinted 1982: Liberty Classics, Indianapolis, pages 3-35. For some reservations about Dicey, see J.W. Gough, Fundamental Law in English Constitutional History, 1961: Clarendon Press, Oxford, especially the Postscript, pages 214-223.
20. Joint Standing Committee on Electoral Matters (Commonwealth), One Vote, One Value: Inquiry into the Constitution Alteration (Democratic Elections) Bill 1987, 1988: AGPS, Canberra.
21. Glenn Milne refers to it as "a ruthlessly cynical and effective fear campaign": "Labor MPs Push Bill of Rights ...", loc. cit.
22. Dissenting Report by Messrs Blunt and Shack and Senators Short and Harradine, Joint Standing Committee on Electoral Matters, op. cit., pages 97-100, para. 4.
23. Ibid., para. 8.
24. Dicey, op. cit., page 72.
25. Note especially the problem of vertical fiscal imbalance -- the fact that the States are encouraged to be financially irresponsible by spending large sums of money which the Commonwealth raises for them. This has happened because the Commonwealth has been more successful in crowding out the States from the taxing field than from the spending field, but the result is unsatisfactory, even from a centralist point of view.
26. Justice O'Connor in Sydney Municipal Council v. Commonwealth, (1904) 1 CLR 208, at page 240, quoting the case of Meriwether v. Garrett. Some centralists do not talk in this fashion, but instead call explicitly for the abolition of the States, generally in conjunction with a reshaping of local or regional government. Suggestions like that are beyond the scope of this paper.
27. Peter Durack, "Do We Need an Imported Bill of Rights?", Review, volume 47 no. 3 (1995), pages 29-32, at page 30. Further examples of constructive criticism (and several of the other sort) can be found in the debates on the Australian Bill of Rights Bill already cited; for example, Commonwealth Parliamentary Debates, Senate, 14 February 1986, pages 371-75 (Senator Missen).
28. See, for example, Michael J. Lacey and Knud Haakonssen (eds), A Culture of Rights: The Bill of Rights in Philosophy, Politics and Law -- 1791 and 1991, 1991: Cambridge University Press, Cambridge (reviewed by me in Agenda, volume 1, no. 2 (1994), pages 250-253).
29. The state of the current American consensus on rights is well presented in William A. Galston, "Between Philosophy and History -- The Evolution of Rights in Modern Thought", in Robert B. Licht (ed.), Old Rights and New, 1993: American Enterprise Institute, Washington, pages 51-74. (A number of other papers in this collection are also valuable, although some of them are tainted by a knee-jerk conservative hostility to rights-claims.) See also Galston's essay in Lacey and Haakonssen, op. cit., pages 215-265.
30. Durack, "Do We Need an Imported Bill of Rights?", loc. cit.
31. See, for example, Murray N. Rothbard, For a New Liberty, 1973: Macmillan, New York, pages 72-75: "If a judicial decree of "unconstitutional" is a mighty check on governmental power, so too a verdict of "constitutional" is an equally mighty weapon for fostering public acceptance of ever greater governmental power." (page 73).
32. "[T]rade, commerce and intercourse among the States ... shall be absolutely free." In Cole v. Whitfield, (1988) 165 CLR 360, the High Court held that this provision operates as a barrier to protectionist measures, not as a more general guarantee of economic freedom.
33. I leave aside non-constitutional cases such as Mabo. (The term "explicit legislative activity" comes from Tony Rutherford.)
34. Article I, s.10(1). This was used to strike down State law in Cummings v. Missouri, (1867) 4 Wall. 277.
35. (1833) 7 Pet. 243, at page 250.
36. (1857) 19 How. 393. Despite its awful effects, I should say that on the law at the time, it appears to me that Dred Scott was correctly decided.
37. The classic statement of the full incorporation thesis is Justice Black's dissent in Adamson v. California, (1947) 332 U.S. 46, at page 71. See Roald Mykkeltvedt, The Nationalization of the Bill of Rights, 1983: Associated Faculty Press, Port Washington, New York, pages 2-11. For the historical background, see Joseph B. James, The Framing of the Fourteenth Amendment, 1956: University of Illinois Press, Urbana.
38. J. Nowack and R. Rotunda, Constitutional Law, 4th ed., 1991: West Publishing, St Paul, Minnesota, page 332.
39. (1873) 16 Wall. 36.
40. See Yick Wo v. Hopkins, (1886) 118 U.S. 356. This case was clearly in the minds of some delegates in the Australian constitutional convention when they worried about the possibility of anti-Chinese legislation being struck down.
41. (1884) 110 U.S. 516, per Justice Mathews, at page 535.
42. See, for example, Twining v. New Jersey, (1908) 211 U.S. 78; Palko v. Connecticut (1937) 302 U.S. 319 -- the States must respect rights "implicit in ... a scheme of ordered liberty" (per Justice Cardozo at page 324). On this whole topic, see John Braeman, Before the Civil Rights Revolution, 1988: Greenwood Press, Westport, Connecticut, especially pages 1-26.
43. Allgeyer v. Louisiana, (1897) 165 U.S. 578, per Justice Peckham, at page 589. See also Nowack and Rotunda, op. cit., pages 382-85.
44. (1905) 198 U.S. 45.
45. (1923) 262 U.S. 390.
46. (1931) 283 U.S. 359.
47. (1932) 276 U.S. 45.
48. (1937) 299 U.S. 353.
49. (1925) 268 U.S. 652, per Justice Sanford, at pages 654-5.
50. By West Coast Hotel Co. v. Parrish, (1937) 300 U.S. 379.
51. (1954) 347 U.S. 483.
52. The key breakthrough with specific guarantees came in 1961 in Mapp v. Ohio, 367 US. 643. See Mykkeltvedt, op. cit., pages 68-72.
53. Malloy v. Hogan, (1964) 348 U.S. 1, per Justice Brennan at page 10; quoted in Mykkeltvedt, op. cit., page 76.
54. (1986) 478 U.S. 186.
55. On this topic see, generally, Stanley H. Friedelbaum (ed.), Human Rights in the States, 1988: Greenwood Press, Westport, Connecticut, and especially Friedelbaum's introduction at pages xi-xxi.
56. G. Alan Tarr, "State Constitutionalism and 'First Amendment' Rights", in Friedelbaum, op. cit., pages 21-48, at page 40.
57. Susan Fino, "Remnants of the Past: Economic Due Process in the States", in Friedelbaum, op. cit., pages 145-162, at page 157. Compare Gray, "A Victorian Bill of Rights", loc. cit., page 79. Fino also notes a further spur to State judicial experimentation which does not exist in Australia, namely the election of judges in many States.
58. Peter Galie, "Social Services and Egalitarian Activism," in Friedelbaum, op. cit., pages 97-120.
59. (1972) 406 U.S. 356, at page 376; quoted in Mykkeltvedt, op. cit., page 128.
60. The "acting adjutant general" of the "Unorganized Militia of the United States" was recently reported as voicing a demand "that Congress repeal the Fourteenth, Sixteenth and Seventeenth Amendments" -- see Alex Heard, "The Road to Oklahoma City", New Republic, 15 May 1995, pages 15-20, at page 19.
61. Note the contrast here between Bowers v. Hardwick (cited above) and the Toonen case: while Toonen was attacked on the grounds of States' rights, Bowers was interpreted as a victory for "judicial restraint" in general, not specifically for States' rights.
62. Attorney-General of Victoria (ex rel. Black) v. Commonwealth, (1981) 146 CLR 559.
63. See, for example, his dissent in Miller v. TCN Channel Nine, (1986) 161 CLR 556, at pages 581-2. This should not lead us to cast Murphy as an unqualified defender of individual rights; his tendency to accord a "presumption of constitutionality" to Commonwealth actions had the opposite effect, and is rightly criticised by Saunders, op. cit.
64. See generally J.A. La Nauze, The Making of the Australian Constitution, 1972: Melbourne University Press, Carlton, pages 227-232.
65. Ibid., page 230.
66. Michael D. Kirby, "Human Rights and Law Reform", speech at Counterpoint forum, Murdoch University, 24 April 1979; published as Law and Liberty, pages 1-12; pages 2-3.
67. See Braeman, op. cit., and my discussion above.
68. La Nauze notes drily that it "would have raised interesting questions for lawyers" -- op. cit., page 229.
69. Australasian Federal Convention, op. cit., pages 683, 689. The convention later agreed to insert a small remnant of the proposal, guaranteeing only that States should not discriminate in favour of their own residents; this became section 117 of the Constitution.
70. This failure is by no means confined to Australia: centralists have interpreted the fate of human rights treaties in the U.S. Senate in very much the same way. See Natalie Kaufman, Human Rights Treaties and the Senate, 1990: University of North Carolina Press, Chapel Hill.
71. I think that the problem is that even the most sensible and intelligent conservatives tend to be basically unphilosophical, and therefore do not look closely enough at the implications of some of the causes that they line up behind. Superficial agreement is mistaken for a deeper identity of views. As a result, they are promiscuous about the allies that they choose, and genuine constitutionalists all too readily align themselves with rednecks and bigots.
72. This explains, although it does not really justify, the way in which the conservatives can treat any proposal to apply constitutional provisions to the States as a violation of the compact; see the comments of the minority on the Joint Standing Committee on Electoral Matters referred to earlier (note 20).
