Flat White

The sprig of 4 July at the heart of our constitution

4 July 2018

2:44 PM

4 July 2018

2:44 PM

Most Australians would know that today, July 4, is the anniversary of the signing of the Declaration of Independence of the United States of America in 1776. They might even know that it is the 242nd birthday of the Declaration, which literally sent a shock wave around the world. They might even know that our very own Constitution adopted the same division of powers as is found in the United States Constitution, the latter being drafted in 1787 and ratified by the people in 1788.

It has been said of the US Constitution, that it is the only one that is devoted to the principle of natural right; not arbitrary human rights, but what is right by nature natural right. The source of that devotion is to be found in the Declaration of Independence which opens with a claim to be entitled to the separate and equal station ‘to which the Laws of Nature and Nature’s God’ entitle them. It next declares certain truths to be self-evident and makes the following fantastic claim considered fantastic at the time:

That all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Even at the distance of 242 years how can we not be mightily moved by that statement? We rightly feel that it should be read and read and read again and again until its principles are etched on to our souls.

What most Australians will not know, however – and this includes most Australian lawyers since 1919 – is that within the above, small portion of the Declaration of Independence is the very seed of our very own constitution.


Sure, it took the form of a federal division of powers from the USA, It also took the organisation of responsible government from the UK, but only because that was what the founders were familiar with. But the animus, the moving spirit, the marriage of minds at the convention, the conception of the document by the founders and the delivery of the Commonwealth Constitution by the Australian people into life as the Commonwealth of Australia, that whole process was based on one line in the Declaration of Independence.

The principle that underpins the Commonwealth Constitution as much as it does the United States Constitution says: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” That line, the consent of the governed, held particular sway in the land Down Under. The colonial parliaments who participated each passed legislation containing identical provisions, requiring ten delegates who with the consent of the of the colonial electorate, would assemble in convention in 1897 to draft a federal constitution. Led by Edmund Barton (who was the real midwife of the constitution), the 50 delegates, in three sessions from March 1897 to April 1898 drafted a constitution which was then submitted to the colonial people for their consent.

But, they had already gone one step further. Within the constitution at s. 128 they embedded the principle of the consent of the governed, not once but twice, the consent of the people of the Commonwealth and the consent of the people of a majority of States was required in the event that the parliament wanted to change the Constitution.

The constitution by which this nation was to be governed was the one consented to by the people. In common with the USA, we are now facing the question whether those appointed to interpret the constitution can in the course of that task disregard its clear provisions including its structure as approved by the people.

The warning given by Alexander Hamilton in the Federalist Papers No 78 rings aloud, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” This idea of judicial restraint has its basis in the principle of the consent of the governed, their authority being required to change the Constitution.

The Supreme Court of the USA and our own High Court were supposed to be the guardian of the Constitution. It begs the age-old question, who guards the guardians? Unsurprisingly the First President George Washington provides the answer:

The foundations of our National policy [need be] will be laid in the pure and immutable principles of private morality; [for] and the pre-eminence of a free Government, be exemplified by all the attributes which can win the affections of its Citizens, and command the respect of the world… since there is no truth more thoroughly established, than that there exists in the economy and course of nature, an indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity.

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