Webber, Jeremy --- "Constitutional poetry" [1999] ALRCRefJl 4; (1999) 74 Australian Law Reform Commission Reform Journal 17

---

Reform Issue 74 Autumn 1999

This article appeared on pages 17 - 23 of the original journal.

Constitutional Poetry

By Professor Jeremy Webber*

Australians are contemplating significant constitutional reform to coincide with the centenary of Federation. This reform is being driven by the move to a republican form of government. It may also include the adoption of a new preamble – a new and inspirational introduction – to the Constitution.¹

Last year’s Constitutional Convention gave considerable impetus to this movement for reform, but it also signalled a subtle change in the nature of the debate. In the past, constitutional reform has tended to be the preserve of the specialist, with proposals concentrating on technical adjustments of little interest to the Australian public generally.

The Constitutional Convention served to broaden the debate and, in particular, to place more emphasis upon the symbolic dimensions of constitutional reform. Increasingly one hears suggestions that the Constitution should reflect more closely the national character. It should declare who we are as a people. It should, in the words of the 1987 report of the Advisory Committee to the Constitutional Commission, “embody the fundamental sentiments which Australians of all origins hold in common”.² It should speak with the poetry that we commonly associate with the American Constitution or the French Declaration of the Rights of Man and the Citizen.

The opening words of the Australian Constitution are often compared – unfavourably – to such texts. The US Constitution begins with the proclamation:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.”³

The French Declaration of the Rights of Man and the Citizen begins:

“The Representatives of the French People constituted in National Assembly,
Considering that ignorance, forgetfulness or contempt of the rights of man are the sole cause of public misfortune and governmental depravity,
Have resolved to expound in a solemn declaration the natural, inalienable and sacred rights of man,
So that this declaration, perpetually present to all members of the body social, shall be a constant reminder to them of their rights and duties...”⁴

The Australian Constitution is not too bad, frankly, but it is nevertheless much more laboured than the American equivalent, and not terribly poetic:

“WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:”

To many, this literary void is yet another example of the Constitution’s anachronism – another consequence of the fact that our Constitution was drafted at a time when Australia was not quite a nation. Surely we can do better now.

I want to raise a number of concerns with this line of argument. In particular, I want to speak against the idea that a Constitution should seek to define the nation, translating the country’s deepest commitments into concentrated poetic terms. I am in favour of a Constitution that is more open and matter-of-fact than that.

More generally, I want to explore the relationship – often uneasy and tension-ridden – between symbolic and functional aims in constitutional reform. The specialist discussion tends to avoid discussion of symbolism, as though constitutional reform were simply about the formation of practical rules for the running of government. Whether we like it or not, however, constitutional reform is shot through with symbolic implications and it is time we took those implications seriously.

The uncomfortable role of symbolism

Symbolism plays a great, though often unacknowledged, role in constitutional reform.

In the current Australian debate, its influence is most obvious in proposals for a new constitutional preamble. The Constitutional Convention resolved that a new preamble should be drafted, one that would express a number of values deemed to be of fundamental importance to Australians. These would include: “recognition of our federal system of representative democracy and responsible government”; “acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders”; “recognition of Australia’s cultural diversity”; and a variety of other things including, possibly, “affirmation of the equality of all people before the law” and “recognition of gender equality”. The role of the new preamble would be plainly symbolic. In fact, the Convention’s communiqué suggested, “care should be taken to draft the preamble in such a way that it does not have implications for the interpretation of the Constitution”. Indeed, the text would prohibit judges from using it to interpret other provisions of the Constitution.⁵

The impact of symbolism is not confined to such overtly emblematic gestures, however. The move towards a republic is itself driven by entirely symbolic aims. This is patent from the arguments marshalled in its favour. Consider, for example, the terms in which Paul Keating expressed his support for the republican cause in 1995. The creation of the republic would be an act, he said:

“... of recognition: in making the change we will recognise that our deepest respect is for our Australian heritage, our deepest affection is for Australia, and our deepest responsibility is to Australia’s future ... Our Head of State should embody and represent Australia’s values and traditions, Australia’s experience and aspirations...”⁶

Public figures have gone to some trouble to argue that the republic would not affect the business of government or Australians’ daily lives. Indeed, the republican debate is particularly striking in that the chief arguments in favour of change are purely symbolic, while the chief arguments against it are predominantly functional. It is a particularly stark example of the tension between symbolic and functional aims.

But there are many other, more prosaic issues – predominantly functional in character – that also carry strong symbolic overtones, overtones that we often neglect. Those symbolic elements can deflect or undermine the functional aims. They require careful attention.

This is even true, for example, of that most prosaic of constitutional topics: federalism – the apportionment of legislative power between State and Commonwealth governments. This symbolic element has not been obvious in Australian debates over federalism, but it has played a major role in other countries. The new South African Constitution, for example, studiously avoids the language of federalism, even though it creates an essentially federal structure. ‘Federalism’ is rejected precisely because it had become, in many people’s minds, a cipher for continued ethnic division. Other countries have shied away from the term, though not the practice, of federalism because they see it as undermining national unity. The new Constitution of Ukraine is an excellent example. The Autonomous Republic of Crimea has very extensive and constitutionally guaranteed autonomy, yet Ukraine is nevertheless proclaimed to be a “unitary state”.⁷

The interaction of symbolic and functional aims is perhaps most pronounced, however, in debates over a constitutionalised Bill of Rights. Lawyers almost always treat these instruments as though they were intended to be nothing more (and nothing less) than legal mechanisms for the protection of rights and liberties. But they also carry a very great symbolic charge. They are commonly seen as charters of citizenship, defining the rights that all citizens have. They are taken to embody the contract between citizens and their governors, specifying the limits on governmental power. There is nothing surprising in this. Assertions of rights are intrinsically connected to ideas of citizenship, especially if one takes a broad ‘social’ conception of citizenship.

Usually the symbolic and the functional arguments are closely aligned, but this is not necessarily so. They can come into disjunction, so that the symbolic arguments displace and may even frustrate the objectives underlying human rights protections. This is most evident in the uses made of the language of equality.

Most people, if asked to explain the fundamental objective of a guarantee of equality, would say that it was designed to protect against government-imposed disadvantage – that it was motivated, then, by a fundamental concern with individuals or groups suffering disadvantage within a society. But the language of equality can also be deployed in very different ways, in a manner that evinces a desire for uniformity and a hostility to difference within society. This can be seen in the two potential meanings for the phrase: ‘Every citizen should be treated in the same manner; every citizen should be in the same position with respect to the state.’ This can reflect a genuine concern with disadvantage. But it can also reflect a much more troubling concern with what it means to be a nation: one doesn’t have a country unless every citizen is treated in precisely the same way; one doesn’t have a real country unless everyone is the same kind of citizen. It can embody, in other words, a fundamental yearning for homogeneity.

This latter meaning can, for example, pose a significant barrier to Indigenous rights, and indeed we have seen the language of equality deployed against Indigenous rights in just this manner. This use of equality has nothing whatever to do with a concern with disadvantage, but a very great deal to do with an abhorrent form of nationalism. The language of equality is a very important string to the One Nation bow.

The problem is that at a symbolic level the language of equality tends to place a heavy emphasis on uniformity. Presumptively, to treat people equally is to treat them identically. We may all agree that this cannot be the case in practice. In some situations identical treatment will magnify rather than minimise inequality. We are unlikely to achieve greater equality, for example, if we withhold unemployment benefits from all people, male and female, who cease work because they are pregnant. But those arguments always tend to work by way of exception. The basic presumption is that identical treatment is equal treatment. This can pose significant obstacles to the accommodation of difference, both in the broader political debate and, potentially, in the application of a Bill of Rights.

But what about those aspects of the Constitution that are not intended to have specific legal effect – that aim, as far as possible, to be purely symbolic, that are simply poetic. I am thinking of those provisions designed to “embody the fundamental sentiments which Australians of all origins hold in common”.⁸ Are there any reasons for caution with respect to them?

I believe that there are. I think that we should not attempt to use our Constitution to try to define what all Australians believe, or what this country is all about. Such efforts almost always misfire. Either they end up overdefining the nation, so that they include things that all Australians manifestly do not believe, or they veer into platitudes, so that they affirm values that are common to any industrialised democracy. Some of these values may be worth affirming, but they hardly amount to a definition of what makes this country Australia. But if the first option is taken, one is likely to end up with a narrow and exclusive definition of citizenship. A nation’s life is much richer than the terms we use to express it; it involves much more diversity and contestation. If we try to define Australia, we are very likely to end up with a caricature, a dumbed-down version of what this country is all about.

We are also likely to fall quickly into anachronism. Nations live, and in living they change. They cannot be reduced to writing. Consider what would have happened had we written a definition of this nation into the Constitution even as recently as the 1950s. Would we have been content with that definition now?

Does this mean we should rigorously avoid all symbolism, all poetry? I don’t believe so. There are ways that we can capture, in Janet Holmes à Court’s phrase, “the scent of eucalyptus” in our Constitution and that we can manage appropriately the relationship between symbolism and function in constitutional reform.

Appropriate uses of symbolism

Even if we wanted to, we could not eradicate symbolism from our Constitution. Language always carries connotations, implications and points of resonance. These leave their impact on constitutional interpretation, just as they do on any use of language.

There are many reasons, for example, why s. 92 of the Australian Constitution was held to forbid the nationalisation of industry. These undoubtedly included the judges’ own hostility to state ownership and the general problem of determining when a constitutional provision protects not only its ostensible object (trade between the States), but also the conditions on which that object was premised (the existence of a free market). But despite the undoubted importance of those reasons, one also suspects that the result was made more likely by the stirring language in which s. 92 was drafted, requiring as it does that trade between the States be “absolutely free”.

One might try to limit such effects by differentiating between the operative and symbolic parts of a Constitution. This differentiation occurs in France, where one document – the Declaration of the Rights of Man and the Citizen – has little practical impact but a strong symbolic role, and another – the Constitution – governs the practical workings of government.

One might try to accomplish the same thing in Australia. In fact, the Convention’s proposal for a new preamble does aim for this kind of outcome. It tries to do so by forbidding the courts from using the preamble in constitutional interpretation, thereby attempting to quarantine the symbolism from the operative parts of the Constitution. One can question, however, the wisdom and the efficacy of that attempted separation.

First, the very effectiveness of symbolism can depend upon it being taken seriously, and this may mean that one has to allow it to have some consequences. Indeed this makes intuitive sense. There does seem to be a difficulty in claiming certain principles to be fundamental to our political life, but then forbidding anyone from taking them into account.

But second and more importantly, the attempt to quarantine the preamble depends upon a simplistic understanding of constitutional interpretation – a belief that constitutional provisions can be separated from broader interests and concerns. This is not so. Interpretation of the division of powers, for example, is inevitably coloured by broader conceptions about what federalism – the relationship between the States and the Commonwealth, indeed the very structure of the Australian nation itself – is all about.

A constitutional text needs to be interpreted, its provisions need to be elaborated to speak to specific cases and its various elements need to be woven into a consistent whole. The broad concepts – like federalism, the rule of law and democracy – that we use to understand our countries’ governments inevitably shape our interpretation of their Constitutions.

The broad considerations that courts inevitably use when interpreting the Constitution are precisely the kinds of considerations that the Convention proposes to write into the preamble. If adopted, those phrases will have a measure of real democratic legitimacy; they will be deliberate statements of important values for this country. Isn’t it appropriate that the courts do refer to these recitals? Indeed, how can they be stopped from doing so? It would be more straightforward and more transparent if they did. We should focus on what we should write into that preamble, not chase the chimera of trying to exclude constitutional interpretation.

I know that some actors in the Convention wanted to have a Bill of Rights enshrined in the Constitution, and only settled for the possible recognition of equality in the preamble as second best. They may still harbour the hope that the courts will use the preamble to create, by judicial interpretation, a robust guarantee of equality. The adoption of a Bill of Rights by stealth would not be appropriate and, if that is the objective, equality is best left out of the preamble. If the democratic process cannot produce a Bill of Rights by conscious action, one should not be created by covert means supplemented by judicial fiat. But even if recognition of equality is included in the preamble, I doubt very much that the courts would use it as the basis for a new set of rights. The role of preambles is clear in Anglo-American constitutional theory; they do not create independent rights and obligations and there would be no democratic warrant for departing from that practice here.

The attempt to prevent the courts from drawing upon the preamble in constitutional interpretation is therefore misconceived. There may be other reasons, however, to separate the symbolic from the functional elements of the Constitution (to the extent that this is possible). The yardstick of symbolism is often very different from that of function. For example, those concerned with symbolic recognition may focus primarily on the amount of attention they receive in the document. Did they get four clauses when someone else got 24? Were they relegated to the back of the document? For those concerned with Constitutions as functioning documents, such considerations are irrelevant. It may simply take more space to say what needs to be said.

One can see glimpses of this kind of disjuncture in the Australian debate. The 1988 report of the Constitutional Commission rejected a proposal for a revised preamble in part because it heard such different opinions on what should be included and what excluded.⁹ Once one includes Aboriginal people, why shouldn’t one recognise multiculturalism? Once one recognises multiculturalism, why shouldn’t one recognise those who fought in the war? A long contest for recognition then ensues. I do not believe that these problems are so intractable that one should simply suppress them. But the complex problems of symbolic calculation may be more easily resolved if one can deal with them in a document that is set apart from and therefore unconstrained by functional objectives.

To this point, I have tended to deal with symbolism as though it were an awkward intrusion into the constitutional process – something that should be managed rather than embraced. But the simple fact that symbolism does intrude, so insistently, should alert us to the fact that it is there for a reason. We should reflect, in short, on the functionality of symbolism, if we wish to deal with it sensibly.

So why are symbols an indispensable part of people’s grappling with Constitutions?

To begin, symbols can be extraordinarily important in rendering concrete ideas that are otherwise abstract and diffuse and in emphasising that they matter. One doesn’t have to grasp an entire complex argument – or a complex set of constitutional provisions – to be concerned about one’s country; the symbols stand for a set of institutions or issues that are crucial, that one cares deeply about, but that can be worried about and elaborated over time.

Symbols are important as objects of attachment, objects of allegiance. This too plays an important role in our reasoning. Iris Murdoch, when speaking of the act of doing philosophy, emphasises the close linkage between passion and reason, how it is our passions, our commitments, that drive the quest for greater rigour and insight. We fasten on a set of issues – often associating them with a set of classic problems or situations – and our preoccupation with those issues holds our attention, as we try to work them through over time.

Countries are a lot like that. They too hold our attention, often through the use of certain symbols or images (the sunburnt country, the bush, mateship, the Eureka stockade, Australia in Asia, the settlers’ encounter with the dreamtime) and that very attachment forces us to worry over what our country should mean, what it should be doing, where it should be heading. That too is the role of the somewhat more complex symbols that exist within Constitutions. They too serve as objects of allegiance – and as concepts that stand at the very centre of our engagement as citizens and as constitutional lawyers, even in our specialist debates.

So what sort of symbolism should we write into the Constitution? What sort of constitutional poetry should we have?

I believe it is a mistake to attempt to write a definition of Australia. This country is too rich and varied for that, too subject to contestation and disagreement, too subject to change and reinvention. We want to draft a Constitution that retains that sense of openness and diversity, and that allows the country continually to invent itself. We want a Constitution that suggests broad orientations, not one that assumes that we have already arrived.

Our symbolism, then, should be open in its implications, expressed in language that is rich in connotations and productive of interpretations, so that it can accommodate, in symbolic terms, the growth of the country.

Constitutions are written for the long haul and they need to allow for the process of reconsideration and elaboration that occurs in the life of any country. Couching one’s symbolism in more general and evocative terms is less likely to lead to anachronism. It is less likely to lead to definitions that soon seem skewed and partial precisely because they focused on concerns that were central at one moment, but were soon displaced or qualified by others.

This argument for an openness of symbolism is not, in itself, an argument for extensive constitutional provisions that then provide a broad scope for judicial review of legislation. On the contrary, it tends to run in the opposite direction, arguing that we exercise some reticence in drafting constitutional poetry – that we don’t try to write it all down.

We should shy away from attempts to proclaim ‘the fundamental sentiments which Australians of all origins hold in common.’ We do not share the same values, and we do not have to in order to be part of the same political community. Indeed, it would be a pretty bland Australia if we did. Instead, we should struggle for a form of patriotism that is at the same time more open and more complex – one that locates the definition of the country in how that country is lived, not in what it claims about itself. And, of course, that means that it locates its definition through time, not in any particular moment.

Conclusion

At its most basic level, this paper has been about the importance of taking symbols seriously. Constitutions are both symbolic and functional documents, and it is time we began to treat them that way.

Doing so is not easy, however. The symbolic and functional demands can be very different, and indeed can be in tension. A certain measure of institutional specialisation – a separate preamble or solemn declaration upon the creation of the republic - may be part of the solution, although we should not pretend that we can banish symbolism from the constitutional text itself.

And what kind of symbolism should we seek to achieve? I will end with a passage from the classics scholar, Gilbert Murray, who speaks of how inadequate our attempts to define the ends of our own lives are. In terms applicable to attempts to define countries as well as individuals, he says:

“... such words all ring false because they are premature or obsolete attempts to define, and even to direct, wants that are often still subconscious, still unformed, still secret, and which are bearing us in directions and towards ends of aspiration which will doubtless be susceptible of analysis and classification when we and they are things of the past, but which for the present are all to a large extent experiment, exploration, and even mystery.”¹⁰

In our constitutional drafting we should make sure that we leave sufficient room for that experimentation, exploration and even mystery. That way we will keep faith with the open and evolving character of our communities – and, not incidentally, with their democratic character.

* Professor Jeremy Webber is the Dean of the Faculty of Law at the University of Sydney.

This is an edited version of his inaugural lecture, delivered at the University in October 1998.

Endnotes

1. These were the two elements presented in the Constitutional Convention Communiqué 13 February 1998.

2. Constitutional Commission Report of the Advisory Committee on Individual and Democratic Rights under the Constitution AGPS Canberra 1987, at 30.

3. Constitution of the United States, preamble.

4. Translation from J Waldron (ed) Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man Methuen London 1987, at 26.

5. Constitutional Convention Communiqué 13 February 1998.

6. Hansard, 7 June 1995, at 1435-1436.

7. Constitution of Ukraine, Article 2

8. Constitutional Commission Report of the Advisory Committee on Individual and Democratic Rights under the Constitution AGPS Canberra 1987, at 30.

9. Ibid, at 109-110.

10. G Murray, ‘Poesis and Mimesis’ Humanist Essays Unwin London 1964, at 91-92.