Malcolm Turnbull in 1998;
Our Constitution read in isolation provides a most misleading and inadequate description of our system of government. Is it too much to ask that our most important law should be written in a manner that makes sense to people who are not lawyers and politicians?That is a strong statement which correctly identifies the biggest problem in Australian federal government and the strength of Australian Republicanism; its formal grounding in constitutional issues.
Yet this strength, the recognition that our constitutional arrangements are largely in court law, rather than the constitution itself, was politely ignored during the republican referendum.
Monarchists took what Turnbull called an
ain't broke don't fix it
"cave-man conservatism", while many influential republicans decided that a pragmatic stance of language change was best but no effort to address the problems in the constitution itself.
In 1992, during a speech to the National Press Club, Turnbull said;
.. some conservatives fail to come to terms with the debate. The most common defence of the monarchy is a shoulder shrugging 'If it ain't broke, don't fix it' cave-man conservatism. Consider for a moment where human progress would be if that approach had been taken to art, literature, technology or politics? The truth is that all human progress has been based on the desire to make something which is better. Societies that have turned their back on social or political progress have invariably atrophied and collapsed.That is a very Jeffersonian and Harpurian statement. It shows the republican belief that constitution is not only a progressive document which must match its people, rather than its political elite, but also that it must represent that maximal social and political achievement that is possible. Thomas Jefferson covered this issue in great detail in a letter to Samuel Kercheval in 1816;
Some men look at constitutions with a sanctimonious reference, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book--reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.The colonial Australia at Federation, which was enthralled by its British ancestry and found its sense of meaning and purpose in the Commonwealth and under the Crown is long gone. The same mindset which feared a popularly elected Head of State, a Bill of Rights and other constitutional innovations is also long gone. People don't fully trust politicians, or Canberra meddling in constitutional affairs, and quite rightly too. At best it is mildly self-serving, at worst blatant. Despite the difficulty of constitutional amendment forced by the constitution, Australian referendum results have shown a distrust of Canberra, with very few making it across the line. The referendum for Federation in 1899, given its low franchise, would not pass muster under today's constitutional arrangements. One of the challenges for Australian Republicanism will be having public opinion come around to the viewpoint that the constitution can be trusted as a working document in the hands of republicans. In the letter, Jefferson comes to a quite logical point of view, that of constitutional sunsetting;
And lastly, let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure. It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two--thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two--thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.In that passage Jefferson shows his faith and trust in future generations. cam
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