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Leaders Behaving Badly: Executive Overreach and Dangers to Democracy

photograph of Donald Trump and Scott Morrison at White House press conference

In the same week that Donald Trump was being pilloried for taking classified documents from the White House, Australia was facing its own crisis of executive overreach. Reports surfaced that our former Prime Minister, Scott Morrison, had ignored the unwritten rules of Australian democracy and given himself responsibility for a variety of government portfolios, extending his power way beyond his remit. This extraordinary concentration of power in the hands of one man represented a significant threat to our venerable system of government. It also raises an interesting question about the nature of democracy: what is the best way to ensure that the voices of the population are represented in the halls of power?

What’s so great about democracy?

There are a couple of normative benefits to democracies over alternative forms of government. One is that executive power is limited, saving us from the sort of governmental overreach which characterizes totalitarian regimes. As political philosopher George Kateb wrote, “in contrast to dictatorship, oligarchy, actual monarchy or chieftainship, or other forms [of government], representative democracy signifies a radical chastening of political authority.” Both presidential and parliamentary democratic systems achieve this chastening by dividing powers between branches of government and providing checks and balances on executive authority. (That said, American presidents tend to have far more individual power than Australian prime ministers – despite the separation of powers in the U.S., executive orders are incredibly common).

For this chastening to be successful, however, strong constitutional or legal protections must be in place to ensure that power doesn’t become overly concentrated.

As we’ll return to in a moment, Australia’s reliance on unwritten laws, precedent, and tradition means that we are at risk of unscrupulous actors accumulating excessive power and wielding unfettered political authority.

Another positive of representative democracy is right there in the name – it is representative. Parliament, or congress, is made up of people from across the nation, and is supposed to represent the interests of those people; allowing them a say in, and control over, the laws and institutions that determine their lives. Australian philosopher Elaine Thompson equated representation with fairness: democratic systems are representative only insofar as “the parliament is accepted [by the people] as representing the people who elected it.”

The Australian parliamentary system

Before diving into issues of representation, it’s worth giving some background on Australian governance. There are quite a few differences between the Australian and American political systems but the major one is that, in Australia, we don’t directly elect our leader. Both Australians and Americans vote for local representatives and for senators to represent their states.

But whereas every American has the opportunity to vote for their president (ignoring the vagaries of the electoral college), Australia’s prime minister is chosen by the aforementioned local representatives.

Currently, the Labor party holds a majority in the House of Representatives and have elected one of their own, Anthony Albanese, to the Office of Prime Minister. But if one party doesn’t hold a majority in their own right, parties must work together to form governing coalitions. Once a prime minister is elected, they select a ministry of members of parliament who are given responsibility for different portfolios – things like health, education, trade, foreign affairs, and so on. The minister is then supposed to wield authority over their area, meaning they make the big decisions on policy matters and (occasionally) take responsibility when things go wrong.

So, the Australian flavor of representative democracy is quite different to the American one. But if representation is the goal, what offers better representation – parliamentary or presidential systems?

President or Parliament?

On the one hand, American presidents are directly elected by the whole nation, which might make them more representative than Australian prime ministers. Presidential candidates can’t afford to only appeal to small minorities or particular geographical areas: they have to garner support across the country. Theoretically, at least, this should temper their wilder inclinations as they attempt to cast as broad a net as possible (although empirical evidence might suggest otherwise). On the other hand, it might be unreasonable to think that anybody could truly reflect the diversity of a huge country like the U.S.

Unlike presidential candidates, local representatives can (and perhaps should) pander only to their narrow constituencies. This means they can take up local matters or focus on representing minority groups, although that narrow focus can mean they are less representative of the nation as a whole.

In Australia’s system, the issue of representative leadership is somewhat offset by the existence of parliament: although any one member might not be particularly representative of the entire nation, the parliament as a whole – all 151 members of the house, plus the senate – ought to offer a decent reflection of the nation. And because decision-making isn’t centralized in the prime minister, it’s not such a huge issue that they are only elected to parliament by a small proportion of the population. By spreading decision-making responsibility across members of parliament, representing different people from different places, we avoid the need to have any single, broadly representative, head of state or government.[i] Lately, however, this hasn’t been happening.

The secret ministries

Last week, news surfaced that during the pandemic (now former) Prime Minister Scott Morrison secretly swore himself in to five different ministries: Home Affairs; Finance; Health; Industry, Science, Energy and Resources; and Treasury. So rather than having responsibility for policy decisions spread across members of parliament, we had an unprecedented concentration of power in Australia – something closer to the American presidential system than the system we are used to.

What’s worse, we didn’t get any of the benefits of the presidential system.

Instead of having a president elected by the entire country and entrusted with heading government, we had a prime minister with a huge amount of centralized power elected by a small group of people from south-east Sydney – an area richer, whiter, and more religious than Australia as a whole.

Essentially, we had the worst of both systems: an unrepresentative leader with too much individual power. Thompson’s fairness was nowhere to be seen, and the chastening of power that Kateb wrote about had been eroded from within.

Despite public outrage and condemnation of Morrison’s actions (including from those in his own party), they were perfectly legal – even if they “fundamentally undermined” the practice of responsible government. Luckily, Morrison did little with his extreme power, other than cancel a permit for a gas project off the coast of Sydney. Next time, however, we might not be so fortunate. What the Morrison saga shows us is that regardless of whether we live in a presidential or parliamentary system, we can’t rely on convention, tradition, and unwritten rules. Strong laws limiting individual power are essential to the creation of democracies which truly represent the will of the people.

 

 

[i]  (For an excellent overview of the strengths and weaknesses of parliamentary and presidential systems, check out political scientist Steffen Ganghof’s recent book).

The Dubious Case for a Written Constitution

photograph of monument celebrating Spain's Constitution

Recently, as Boris Johnson was holed-up in Downing Street, trying to resist his inevitable dethronement as Prime Minister, there was some talk of a “constitutional crisis.” On Twitter, “Activate the Queen” was trending (as though expecting a nonagenarian who is now too old and sick to do her job to save the country isn’t a crisis). The concern seemed to be that Johnson might refuse to resign, despite the fact he had lost the confidence of his cabinet. But there was no crisis. Still, this is a good time to examine an issue that raises its head every few years.

The former MP Rory Stewart was one of those worried that a crisis was brewing, and he used this to argue that the U.K. needs a written constitution. Robert Crowcroft, meanwhile, makes some telling points against the written constitution argument. For one, the U.K. has a written constitution, calls for a written constitution really just want us to combine all of the various pieces (like the Magna Carta and the Bill of Rights) which comprise the constitution into one piece.

But what are the supposed benefits of having the constitution written in one place? There seem to be a few arguments for writing down a constitution that I want to look at: clarity, the protection of rights, and the legitimacy of the state. I think the call for a written constitution rests on some other dodgy premises that recent events in the U.K. and abroad bring to light. I think that comparing the calls for a written constitution in the U.K. with how things work in the U.S. – where there is a written constitution – shows that these arguments aren’t as persuasive as they may sound in the abstract.

Some calls for a written constitution seem to hold that if we just had it all written down in one place, we’d know what is acceptable and what is unacceptable. We would have “clarity.” Gopal Subramanium has argued that a written constitution would have helped the U.K. navigate Brexit. Quoting Lord Bingham, Subramanium insists that “constitutionally speaking, we now find ourselves in a trackless desert without map or compass.” Having a written constitution might have told us whether Parliament needed to approve leaving the EU – thus avoiding a major constitutional kerfuffle.

But no constitution can cover every possibility. It is far from clear that had, say, the U.K. written down its constitution in the early 20th Century, that it could have possibly predicted a European power like the EU. Constitutions need to be written at a sufficiently general level that pays heed to potential new scenarios arising. But once you write something at a sufficiently general level, gray areas sneak in, hard cases present themselves, and the inevitable need for interpretation and application arises.

The U.S. Constitution has been argued over in courts for centuries. Still, fresh need for argument and investigation arises (or the Supreme Court would be out of business). There will always be unanticipated conflicts or a conspiring of events not explicitly articulated by the written document yet in desperate need of resolution for the sake of preserving political legitimacy. Even if a written constitution could have covered Johnson’s case, there will always be the possibility of things the constitution doesn’t explicitly and obviously cover. So, it’s not clear that the clarity argument gets us very far.

What about the efficacy argument? Subramanium also suggests that written constitutions protect our rights, more so than, say, the current British system. No doubt the British constitution is complicated and not always clear to the general public in the way that the U.S. constitution is. Citizens might well be empowered knowing more about their rights (this is a clarity-based consideration that feeds into efficacy). Constitutions are also harder to amend, and a simple parliamentary majority cannot usually overturn these rights.So, there is a degree to which written constitutions do protect our rights.

But this runs into a brick wall. Tell a woman in, say, Texas that a written constitution protects her rights when, had she wanted, she could have had an abortion a month ago, but now cannot. Constitutions might protect some rights, but others are very much open to interpretation – and how strongly these rights are protected is another factor, too. So, it’s far from clear that writing anything down makes our rights more secure. The only rights written constitutions make more secure are those that are clearly and obviously stated – yet even the right to free speech or the separation of church and state in the U.S. can be abridged.

Finally, there is the idea that a written constitution can keep the political system in check – it can protect us against the whims of a power-hungry person whose actions delegitimize the system. Rory Stewart (rightly) claimed that Johnson “is a frightening example of what a ruthless person with no respect for the unwritten rules of our system can achieve.”

Firstly, Robert Crowcroft persuasively argued that the fact Johnson is now gone (or will soon be – he is staying on in a caretaker role), shows the constitution works just fine as it is. We’ve little reason to think a written one would be any more effective.

And a comparison with the U.S. is again instructive. Did the U.S. Constitution stop Donald Trump’s attempts to overturn the election? The laws he may have violated might come back to bite him – but had he succeeded, the laws and the Constitution would have meant nothing. That would have been a crisis.

I’m reminded of Bernard Williams’s quip, in Ethics and the Limits of Philosophy, “What will the professor’s justification do, when they break down the door, smash his spectacles, take him away?” The efficacy of a constitution, written or not, depends upon whether it is respected and upheld, not on whether it is scrawled down neatly in one place.

Stewart worries that “gentlemen’s agreements” are what ensured the British constitution worked – but that, too, is a question of what we pay heed to. If we respect gentleman’s codes, the constitution will work fine. It’s when we stop respecting them that it fails, but that’s also a problem about when we stop respecting written, codified constitutions.

It doesn’t seem to me that a written constitution is what matters, what matters is that a constitution is respected.

A Pause on Rights: Canada’s Constitutional Clause

photograph of interior of Canada's House of Commons

Imagine a world where overturning Citizens United could be done with a simple act of Congress. According to polls, 88% of Americans hailing from both sides of the aisle would back a constitutional amendment to overturn the decision. But why does it take a constitutional amendment? Because the U.S. Supreme Court ruled that political donations constitute free speech, and because corporations have a constitutionally protected right to free speech, including unlimited donations. Since changing the U.S. Constitution is exceedingly difficult, this is not likely. But what if Congress could simply override the Supreme Court and say that there are limits to such forms of free speech. Canada has such a mechanism in its constitution, and it is starting to raise serious ethical concerns.

All rights in Canada enshrined in the Charter of Rights and Freedoms are already subject to “reasonable limits,” an ambiguous phrase whose meaning must often be determined by courts. However, under section 33 of the Charter, the federal Parliament of Canada or a provincial legislature can declare that a piece of legislation will operate notwithstanding the Charter. So, if a court rules that a law violates the Charter, a legislature with a simple majority can say that the law will remain in force for up to five years before the legislature must revisit the question and potentially renew the exception. In essence, it can put individual rights on pause for half a decade at a time. The clause doesn’t apply to democratic rights or mobility rights, but legal rights concerning detention, trials, punishment, and fundamental freedoms like freedom of association, peaceful assembly, and free speech are all fair game.

The clause has been called “uniquely Canadian,” and would no doubt be controversial in the United States. It could be used to limit political donations or enact stronger gun control legislation, but it would also be easy to limit protest or engage in practices that might be considered cruel and unusual. Created as part of a constitutional bargain to appease the provinces, the clause has almost never been used and has always been controversial. The Charter is highly prized by Canadians, and so the idea of overriding it is typically politically perilous. Nevertheless, in the last three years there have been about as many threats to use it as there were during the first eighteen years of its existence or the eighteen years after that.

The latest controversy involves Premier Doug Ford of Ontario who has threatened to invoke the clause in response to the courts striking down election finance legislation that the Ford government had passed, limiting third-party advertising for a period of one full year from an election (prior to this, the law restricted spending six months before the election). Typically, these third parties are supported by public sector unions which tend not to support Ontario Conservatives, so the move to use the clause in this case, described as using a “sledgehammer on a gnat,” appears even more controversial as it seems to politically benefit Ford. (Ford had previously threatened to use the clause in 2018 after his government unilaterally changed election laws in Toronto during an election.)

In other provinces since 2018, the threat of invoking or actually invoking the clause has been a response to issues relating to public funding for Catholic schools, legislation requiring vaccination, the use of religious symbols in the civil service, and, recently, protecting the French language in Quebec at the expense of minorities in the province. This increasing willingness to use the clause, and use it more frivolously to pre-empt a court decision before it is even made, is a cause for concern. As Justin Trudeau’s former secretary puts it, “what’s at stake here is whether the ultimate arbiter of your Charter of Rights and Freedoms is the Supreme Court of Canada or your provincial premier.” But “don’t democratic societies put minority rights into inviolate foundational documents precisely because they’re politically tempting to violate?”

Indeed, Canada has recently seen exactly what can happen when the rights of minorities are ignored for the sake of a political majority, and there are plenty of other historical examples in Canada where rights have been violated. So obviously, there are ethical concerns about the clause. So why keep it? Originally, it was thought that the clause would only be used in non-controversial circumstances because it would be so unpopular to use it otherwise. However, for those who support the clause, there are two important factors to consider. The first is that the clause is considered to be an important check on judicial review.

While the Canadian Supreme Court does not have the same partisan tinge that it’s U.S. counterpart has, in the Canadian legal framework, Parliament is supposed to be supreme, meaning that what it says goes rather than the rulings of unelected judges. Some who support the clause argue that it is ultimately one of the reasons the court is less partisan; judges will be less activist and partisan if they know they can be so easily overridden. Indeed, with such a clause in the U.S., there might be less concern about when certain justices retire. Another reason why the clause is supported goes back to part of the reason it was created: to allow provinces to opt out for the sake of balancing collective rights.

Quebec has used the clause the most, typically defending its usage by claiming it is needed to protect the French language. Long concerned about declining usage of French and eventually becoming assimilated into English Canada, Quebec’s defenders seek to protect collective French community rights over individual rights to secure what Quebecers consider to be a distinct society in North America. Thus, they claim that the clause serves a vital moral good.

On the other hand, critics might charge that this simply amounts to securing the rights of the majority over the minority by bypassing individual rights. Indeed, imagine any state simply choosing to ignore Roe v. Wade simply because it would be a popular move to do so. To that extent, the clause has raised new issues of moral concern as provinces now seem more willing to use it, even for things other than “non-controversial issues.” The concern now is that the more it is used, the more it will be overused for the sake of convenience and political gain rather than as a last resort.

The moral issue for Canadians reconsidering the clause after almost forty years of existence is: How should collective and individual rights be balanced relative to each other? And how might these calculations change when a government threatens to use it? Experts believe that a move like Doug Ford’s will be unpopular because it carries a lot of political baggage. On the other hand, Canadians are famously apathetic about politics and rarely turf one-term governments. It remains to be seen whether Canadians will be keen to defend the Charter from clause users come election time. I’d be skeptical that Ford’s use of the clause becomes a major election issue a year from now. But the moral danger is that a constitutional tool capable of doing something so potentially harmful slowly shifts from a taboo to a norm fueled by populism. The moral task for the public is to re-evaluate how comfortable we are with this and under what conditions we consider the clause’s use acceptable.

“Politicians in Robes”: Neutrality in the Supreme Court

photograph of judge in robes

As the Supreme Court decides which issues to take up on its docket — abortion, gun rights, and perhaps even affirmative action — legal seers are already tallying the expected results. Emphasizing the court’s 6-3 conservative majority, many see these cases as having all but been decided; the writing is on the wall.

The political leanings of the Roberts Court have only grown more visible. While an air of secrecy often attends the justices’ business and keeps the inner workings of the Court hidden from public view, any sense that the Court stands removed from the political fray is quickly disappearing. Justices Kagan and Sotomayor have increasingly called out Kavanaugh’s inconsistent rulings, and he’s been taken to task for his hollow virtue-signalling and performative hand-wringing. This isn’t like when Justice Alito sparred with Gorsuch over his textualist read of Bostock. In Kagan’s dissent in Edwards v. Vannoy just last week, she explicitly chastised Kavanaugh for his approach that “treats judging like scorekeeping … about how much our decisions, or the aggregate of them, benefit a particular kind of party.” This, Kagan argues, is simply not how judges are supposed to approach their duties. Judging requires focusing on the legal merits of the case before you; it isn’t about anticipating political fallout according to party affiliation or balancing “wins” and “losses.”

The divisiveness seen in the Court mirrors the ugly politics in Congress that preceded its recent newcomers. All three justices, Ian Millhiser points out, were “nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country.” Given the hypocrisy surrounding Gorsuch and Barrett’s appointments as well as the acrimony on both sides over Kavanaugh’s confirmation, it will be hard to dispel the notion that the Supreme Court is just another battleground for political score-settling.

Add to this a common belief in the practice of strategic retirement – justices timing their departure to ensure the installation of like-minded predecessors – and it’s hard to see the Court as anything other than an ideological land grab. The lottery appointment system, ensuring that justices are confirmed unevenly, erodes public trust and stretches the connection between the people’s will and their rulers’ authority to its breaking point.

Taken together, these considerations question the Court’s ability to serve its necessary function as a check on power and legal backstop. Contrary to Justice Roberts’s claim that the Court’s job is merely to “call balls and strikes,” the prevailing perception is that justices are overwhelmingly motivated by their personal political agendas and, thus, the Roberts Court stands committed to effecting the Right’s political will.

So what do we stand to gain by maintaining the fiction that justices are nothing more than umpires? Why deny the Court is composed of “Obama judges or Trump judges, Bush judges or Clinton judges”?

However well these cynical accounts reflect the reality, it does great and lasting damage to our legal system to reduce the High Court to just “another political institution” — a nine-member Congress replete with the familiar political hackery and partisan warfare. That damage can’t be undone by simply expanding the bench to instill balance and force it to better reflect citizens’ diverse viewpoints. Any politics-driven reform to the Court threatens to undermine whatever is left of the public’s trust in the institution. The Court’s role as guardian of individual rights, ultimate interpreter of the Constitution, and final arbiter of the law is very much at stake. Ultimately, the Court’s decisions confer legitimacy only insofar as we believe in its singular ability to apply the law in neutral fashion, according to a standard we (perhaps naively) think insulated from political ideology.

These convictions have led Justice Breyer to claim that the “peril facing the Supreme Court comes less from partisan judges than from citizens who, encouraged by politicians, equate impartial justice with agreeable judicial outcomes.” Rather than focusing on results, we should expect judges first and foremost to follow the law. Public trust comes from our faith that, in interpreting the law, justices rely on their legal ability and interpretative powers rather than fidelity to a particular political party. We call on the Court to deliver legal pronouncements rooted in a theory of constitutional interpretation rather than barefaced political morality. The Court stands apart from other political institutions because we see its members as possessing a specific kind of expertise and assessing cases according to a unique and independent metric. Judging is about applying neutral legal criteria, not about partisan policy preferences; it’s about divining the meaning of words, the intentions of authors, and the implications of past precedents. It’s an investigation rather than a contest, a deliberation rather than a quarrel, an art rather than a science.

Apart from this prioritizing of procedure over product, we also tend to think that the justice’s lifetime tenure insulates them from political pressure. On the one hand, this makes the justices unaccountable to the people; these unelected officials exercise enormous power over the lives of citizens without fear of recall. On the other hand, this suggests that judges are freed from the rancor of party politics and are beholden to no one (including the person who appointed them).

But what do we do with the incongruity between this idealized fantasy and our political reality? How do we restore (or at least maintain) public trust in the institution? Expanding the bench threatens to burn whatever credibility the Court has left, but staying the course promises death by a thousand cuts. From regular appointments to term limits, perhaps President Biden’s Supreme Court reform commission can show us the path forward, though no one seems to be holding their breath.

Gun Control and Constitutional Interpretation

photograph of gavel resting on Bill of Rights

Since the beginning of 2021, there have been 133 mass shootings in the United States. While some of these shootings find their roots in racism, misogyny, and xenophobia, they are also the result of the relatively easy access to firearms in the United States. Many Americans might attribute this prevalence of guns to the right guaranteed in the United States Constitution, enunciated in the Second Amendment’s phrase “the right of the people to keep and bear Arms.” However, the application of the Second Amendment as affording the individual liberty of gun ownership is a modern, highly disputed, doctrine in constitutional law. Two contemporary landmark cases, District of Columbia v Heller (2008) and McDonald v City of Chicago (2010) fundamentally altered the power of state and federal governments to regulate gun ownership by recognizing an individual right to own and keep firearms. These cases were highly divisive, included multiple dissenting opinions, and were decided by bare, 5-4 majorities. However, the majority and minority in both cases relied a type of constitutional interpretation called originalism to bolster their conclusions. The difference, however, lies in the majority’s use of original meaning and the minority’s use of original intent.

How were the different forms of originalism employed in both cases? What are the moral pitfalls of either type of originalist interpretation? And is relying on the ideas or desires of the Founders an ethical basis on which to decide cases?

In District of Columbia v Heller (2008), several individuals, including members of lobbying groups like the National Rifle Association and the Cato Institute, challenged the constitutionality of a D.C. law which imposed several restrictions on gun ownership, including the regulation that rifles and shotguns be kept “unloaded and disassembled or bound by trigger lock.” In an opinion written by Justice Antonin Scalia, the Supreme Court held that the Second Amendment granted individual citizens the right to keep and bear arms for the purpose of self-defense. Though the Court had previously defined the scope of the Second Amendment in United States v Miller (1939), the widely-accepted application of the Second Amendment in constitutional law was that the right to bear arms only applied to ownership of weapons in the context of use in an organized militia. For this reason, many decisions involving individual gun ownership in the 20th century refused to acknowledge that the Second Amendment bestowed an individual right which restricted states or the federal government from regulation.

The little room that was left open for gun regulation after District of Columbia v Heller was quickly closed two years later in McDonald v City of Chicago (2010). The majority opinion, this time penned by Justice Alito, held that Chicago’s regulation which essentially prevented firearm registration and ownership was a violation of rights bestowed to individuals by the Constitution. This case was significant because it granted individuals broad legal protection from gun regulation. Many constitutional scholars and theorists view both Heller and McDonald as landmark Supreme Court decisions which fundamentally altered the legal conception of the Second Amendment.

Originalism is a form of constitutional interpretation which understands the Constitution in terms of what it originally meant when it was written, the original intent of the Framers, or both. One consideration, which applies to both original meaning and original intent interpretation is the reliance on the ideas and intentions of people long-dead and gone when deciding what rules should govern society. Nobody alive today had a hand in writing the original Constitution. Sometimes known as the “dead hand problem,” a moral and philosophical paradox arises when considering whether one can consent to a government, they had no hand in designing.

Fundamental to the reasoning employed in both Heller and McDonald was originalist meaning. Proponents of original meaning generally argue that it ultimately benefits society by limiting the discretion given to judges. By limiting the power of judges to use their own authority to decide what the Constitution says (or should say), originalism might be said to prevent an unequal application of the law and to leave political battles to the legislature where it can be more democratically controlled.

Those critical of originalism, however, might see it as giving far too much weight to the language, culture, and politics of a long-gone society and see it as detrimentally rigid and inapplicable to a rapidly changing society. Upholding the original meaning of the Constitution might also force one to condone immoral provisions, such as those enabling slavery or only bestowing rights upon certain groups of people. While originalism might safeguard certain moral values present in the Constitution it also prevents moral correction. For example, in the case of gun reform, even if the original meaning of the Constitution was meant to bestow individual gun rights, perhaps this liberty should be reexamined in the face of advanced technology and the prevalence of gun violence.

Turning not to the original meaning but instead to the original intentions of the Framers is another strategy used in originalist constitutional interpretation. In their dissents in Heller, both Justice Stevens and Justice Breyer point to historical evidence which implies that the Second Amendment was intended only to apply to militias and was not conceived to apply to individual self-defense. Originalism which focuses on the intentions of the Framers in terms of gun rights has also been a popular method among gun reform advocates, and late night comedy hosts, who point out that firearm capabilities at the time of ratification were vastly different than firearm capabilities today. While many gun regulation advocates might agree with the application of the Framers’ intention in this instance, the pitfall of applying such an interpretive strategy includes reckoning with some of the potentially immoral intentions present in certain provisions of the Constitution. Article I, Section 9 of the Constitution condoned slavery, and experts have contended that the Framers did not intend for certain Constitutional rights, like the right to vote, to extend to poor men, women, or BIPOC folks.

Another potential problem with considering the intention is that the Founders were arguably themselves immoral. More than a few of the Founders owned slaves, and though some expressed moral grief over this fact, their decision to subjugate human beings is entirely reprehensible. Even relativist arguments which defend the Founders and advocate for original intent, might fail on the basis that the point is exactly that we have changed as a society and should not be turning to the dead for guidance in solving society’s most pressing legal problems.

Since Heller, the rate of gun deaths in the United States have increased 17%. The United States is the one of the leading countries in the world when it comes to firearms death, and there is a clear political, cultural, and moral interest in reexamining the individual right to gun ownership. If one’s goal is to regulate firearms, the most effective form of constitutional interpretation to do so might very well lie outside of originalism altogether. However, it is important to recognize how originalist application has greatly influenced gun control in the United States. By understanding the moral quandaries that belie the forms of modern constitutional interpretation applied to firearms cases, we can better understand which types of arguments best support the gun regulation we seek.

Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals, as nations and in international relations. Nearly every mature, liberal democracy has a constitutional bill or a charter of rights to which lawmakers and keepers must defer. 

Rights language has become entrenched in the way we speak, that it is often taken as fundamental. A claim that “I have a right to X” will often trump other arguments. A right is an entitlement. A right entails a duty – the right to freedom of expression entails the duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity, self-determination of persons. They are important because they promote those conditions necessary for well being, for humans to flourish and for society to promote that flourishing. 

But there can be a dark side to rights claims – for example a claim to the right of free speech can be used to protect racism and lies, the right to freedom of religion can be used to protect discriminatory practices and the right to bear arms, enshrined in the US constitution, has made it nearly impossible to tackle the scourge of gun violence in America. 

Some important philosophical questions about rights – what they are grounded in, what things should be considered rights, how they are protected and what to do when rights appear to clash with one another – remain a challenge. Some of these questions are central to the current national debate in Australia over whether a bill or charter of rights should be instituted. 

Australia is the only mature liberal democracy that does not have a charter or a bill of rights. Many feel that the introduction of constitutional rights is long overdue, yet others do not believe that a bill of rights is needed. In fact, many feel that such a bill might even be a hindrance to the administration of justice.  

This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible and most democratic protections for Australians, versus those who think that the system is failing in some key areas which a bill of rights would help to rectify. 

At the time Australia’s constitution was written, early in the twentieth century, having a bill of rights as part of the constitution was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.”

Some constitutional provisions function as rights provisions– such as freedom of religion. But it is the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination. Many of these have been based upon Australia’s ratification of international treaties. 

Various parties feel this process has worked well because it gives flexibility to the system, where charters of pre-existing, inalienable rights can make the system inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy usually works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. 

A further objection to the introduction of a bill of rights, that such a bill would lead to a kind of ‘judicial imperialism’ by way of transferring power currently held by the legislative body, to the courts – unelected (usually white, middle-aged, male) judges. The worry is that, a bill of rights could result in the entrenchment of values of said judges into law, in a way that would prevail even over Parliamentary statutes. 

However, the argument that it would politicize the courts and allow too much power in the hands of judges, who are unelected and therefore not as accountable in the democratic system, may be losing ground. One contributing factor is this era of increased populism, from which Australia, following the results of the most recent election, is certainly not immune. In that vein, one could also add the growing  sense that people’s trust in democracy has been eroded through the influence of many different, powerful forces from corporate lobby groups to misinformation spread on social media. 

Nevertheless, the issue of flexibility is still present. As the example of the right to bear arms in the US illustrates, things which may be important fundamental rights at one time, may not be appropriate in another. Having protections enshrined as rights can make them very difficult to amend later. The Australian constitution, like the US constitution, is very difficult to alter, so the worry is that the community could be stuck with rights that end up resulting in more harm than good. 

A bill of rights drawn up now may not have the capacity to deal with problems of the future. We live in an age of such exponential technological change, we may not yet know what problems internet technology, biotechnology, genetics or artificial intelligence may pose. It is not likely that a bill of rights drawn up now would be able to predict or manage all of the issues that these advances might bring. The argument is that it is better to leave rights and responsibilities associated with these issues to be dealt with as they arise by the parliament of the day through the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity. 

On the other hand, the democratic system may have its own flaws when it comes to equal protections for every person. It does, of course favor the majority, and for this reason it is felt by some that a bill of rights is necessary to ensure the interests of minorities and other vulnerable individuals are equally protected. As Justice Michael Kirby, a strong advocate for a bill of rights in Australia, said in a recent address on the subject:  

Democracies look after majorities. Democracies are good in looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it. 

Though it is true that rights can sometimes be inflexible, and that there are difficulties in deciding what rights to enshrine, how to enforce them, and how to manage situations where they may come into conflict with one another, from the perspective of the question of how a society can best protect minorities or vulnerable individuals it is prudent to remind ourselves about the philosophical case for rights. 

The notion of inalienable rights is based on an ethical principle of equality and dignity. It is a deontological principle which has at its core the imperative to treat persons with respect, as ends in themselves but never as means to an end. This fundamental tenet is at the center of the notion of human rights. 

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions for basically political reasons. Justice Kirby argues that: 

Basically, the idea of finding the fundamental principles that bind us together and that our rules for a fair society are principles that should be bipartisan and not consigned to one side of politics.

A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all Australians, and all those under Australia’s protection. Minorities and the vulnerable would be protected from the possibility of legislation which would undermine these things. These protections communicate our convictions about principles like equality, justice and kindness, which is the essence of a good and free society.

The National Popular Vote Bill: Innovative Solution or End Run around the Constitution?

A sign directing people to a voting area

Donald Trump won the 2016 presidential election with 306 Electoral College votes.  He became the President of the United States despite the fact that more people voted for Hillary Clinton.  Clinton won the popular vote by over 2.8 million votes.  This result revived a familiar debate—should we abolish the Electoral College?  At this point, advocates for a change to the system acknowledge that it is unlikely that the change will come about via an amendment to the Constitution.  As a result, lawmakers have put their creativity to the test.  

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Death Row Dilemmas: The Sentencing and Execution of Ronald Smith Jr.

In the early hours of the morning, on November 8th, 1994, Casey Wilson was working his shift at a Circle K in Huntsville, Alabama.  That morning, 23-year-old Ronald Bert Smith Jr. came into the station with the intention to rob it.  He pistol-whipped Wilson and forced him to the convenience store restroom where he shot him.  Wilson died of his wounds.  To avoid detection and identification, Smith removed the store’s surveillance videotape from that night and brought it with him.

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Reconsidering the Electoral College

In the early hours of the morning on November 9th, 2016, it became clear that Donald Trump would be the next President of the United States.  Though vote counts within many contentious states were close, he won the Electoral College handily—with Michigan still outstanding, Trump received 290 Electoral College votes and Clinton received 228.  Despite his Electoral College victory, Trump appears to have lost the popular vote.  This is the second time that this has happened in the 21st century.  In 2000, Al Gore won the popular vote while George W. Bush won the Electoral College.

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