The Chief Justice Series: Sir Isaac Isaacs – the Sun Wukong of Australian history #auslaw #lawweek

There are two posts in this series to which I have been thoroughly looking forward.  Most of my friends are tired of me talking incessantly about the subject of today’s entry: Sir Isaac Isaacs.

When I was in high school, we had five houses named after historic Australians.  I started out in Lalor, named after Peter Lalor a leader of the Eureka Stockade.  The three other houses were named after John Monash (an Australian General during WWI), Mary Gilmore (one of our only communists who became a Dame Commander for literature), Paterson (after Banjo), and Caroline Chisholm (more on whom later, but was an activist who worked with immigrants to Australia).  Due to growth of the school, it was decided that we needed a fifth house and the school ran a small competition to submit ideas for the name of the new house.

I entered two names: Chamberlain (after Azaria Chamberlain, because I was as hilarious as a 17-year old as I am now) and Isaacs.

Isaacs, alas, lost out to Franklin (after Miles Franklin, a writer).  A deep shame.

It’s difficult to underestimate how much I like this guy.  If it weren’t for another amazing — internationally amazing — Chief Justice (who rhymes with Schmowen Schmixon), Isaacs would easily be my favourite Chief Justice.

So what did Sir Isaac — Chief Justice of the High Court of Australia for less than a year — do to inspire young Mark so completely?  The short answer is ‘Patriotism‘.  The long answer begins now…

In Wu Cheng-en’s Journey to the West, it was said that the universe poured energy and elemental forces into a stone as old as creation.  From that investment of energy sprang Monkey (‘Sun Wukong’), who would be instrumental in the transmission of Buddhist teachings from India into China.  Monkey embodied that moment of transition: between inanimate stone and animate creature, between Taoism and Buddhism, between beast and human, between mortal and divine, between base nature and enlightenment.

Xyj-sun_wukong

It is my argument that Sir Isaac Isaacs is the Sun Wukong of Australian history.

When Melbourne was only twenty years old, Isaacs was born to a Jewish tailor in Melbourne.  Australia had only been settled/invaded some seventy years earlier.  An economic migrant (as we might call him today) Alfred Isaacs had journeyed from Poland to Australia in 1854 via Germany, France, and England.  Victoria’s economic prosperity arising from the Gold Rush was alluring to nearly everybody, and settlements around Victoria were springing up as more gold was found.  In 1855, in a cottage on Elizabeth Street, Melbourne, Isaac Isaacs was born.  In the decade following his birth, this is what Elizabeth Street looked like:

Elizabeth Street, Melbourne: 1860s

A first generation Victorian, he was intensely proud of his heritage and his homeland.  Just as Monkey was a lightning rod for the creative energies of the heavens, Isaac Isaacs was a complex mash of cultural identity: Victorian and British (as all people in the colonies considered themselves) and continental and Jewish.  Almost contemporaneous with Isaacs’ birth, Richard Wagner published ‘Judaism in Music’, and de Gobineau’s ‘Inequality of the Human Races’ was still being circulated among the educated elite.  Politically, he was born during a period of upheaval: the Eureka Stockade occurred only two years earlier, and the passing of Victoria’s Electoral Act — which introduced full suffrage for (white) males, established secret ballots, and made Victoria the first democracy in Australia — had occurred a mere five months earlier.  It would be another four decades before white males born in Australia would outnumber those who immigrated.

But for all this ‘white male’ talk, perhaps one of the most important people in Isaacs’ world was his mother:

Rebecca, who was London-born, had a powerful mind, wide-ranging intellectual interests, and the capacity to understand and discuss complex matters. She was an ambitious and dominating woman who exercised a very strong influence over her first-born. [Source: Australian Dictionary of Biography]

Even when Isaacs ascended into Australia’s political elite, he would still make sure he contacted his mother daily.  I love that.

isaacs

Just like Monkey, Isaacs was a person of extraordinary natural talent.  His family moved to northern Victoria and Isaacs began his education, a task in which he both delighted and excelled with ease.  He mastered languages: his parents spoke Russian and German, he picked up Italian, Greek, and Chinese from the local miners.  Soon, he would be privately tutoring and then formally teaching other students.  He taught at Beechworth from age 15 to 20, leaving after a dispute with the education department about pay.

He returned to the City to begin studying Law.  Unlike Adrian Knox, Isaacs wasn’t born into connexions with the political elite of the day.  Despite this, his legal career was a roaring success and he earned enough to move his parents back to Melbourne from Beechworth.

It’s during this time that Isaacs became involved in the Australian Natives Association, a ‘friendly society’ for white men who were born in Australia.  It’s here that Isaacs’ views about his national identity are solidified: despite being a Jewish polyglot Briton born in Victoria to a Polish father and English mother, Isaacs wanted nothing more than to be Australian.  His passion for Federation would not find an equal at the Constitutional Conventions.

Here’s Alfred Deakin on Isaacs:

A clear, cogent, forcible and fiery speaker, he set himself at once to work to conquer the methods of platform and parliamentary debate and in both succeeded. He was not trusted or liked in the House. His will was indomitable, his courage inexhaustible and his ambition immeasurable. But his egotism was too marked and his ambition too ruthless to render him popular. Dogmatic by disposition, full of legal subtlety and the precise literalness and littleness of the rabbinical mind, he was at the same time kept well abreast by his reading of modern developments and modern ideas.

‘Rabbinical mind’ was not an accidental phrase.  From some of the greatest Australians we’ve managed to produce came petty and snide little quips about Isaacs’ ethnicity.  Edmund Barton once wrote to Sam Griffith: ‘I don’t think there is the least bit of sincerity in the Jew boy’s attitude.’ (I incorrectly attributed the quote to Griffith here)

But he could dish out as much prejudice as he took.  In Ex parte Walsh; Re Yates, Isaacs would later write:

Immigration, as I have explained in the O’Flanagan Case, is not obliterated for ever by the mere passage across the frontier, nor by the momentary leap over a barrier which magically and instantaneously transforms a Hindoo or a Kanaka, for example, into an Australian. If such were its meaning, the cherished national policy of Australia would indeed be in peril. And it would only nominally lessen the peril if the Hindoo [Hindu] or the Kanaka [Pacific Islander] by immediately adopting Australia as his “home,” as it is said, could, so to speak, dig himself into this Commonwealth, so as to be irrevocably, so far as the Commonwealth power is concerned, a member of the people of the Commonwealth—a true Australian—and thereby escape the immigration power for ever.

It’s hard for me to reconcile his staunch support for White Australia Policy with his embrace of his multicultural identity.  He embodied patriotism in a way that no other person had done before and yet still found room for an ugly racism.  And it’s hard to dismiss it as merely as him being a product of his age: we expect so much more of our heroes and it sucks when they have these feet of clay.

Where Isaacs held a littleness of mind when it came to racial equality, he was visionary when it came to Federation.  I included a speech from Isaacs in my Contrarian’s Companion where Isaacs could see beyond the immediate nature of the federation debate into the future where we would stop thinking of ourselves as Victorians, New South Welshpeople, Tasmanians, &c., but think of ourselves only as Australians:

Let us consider for a moment what it seems to me has been entirely lost sight of: the reason of this Federation and the meaning of it. We possess as separate and distinct colonies a host of powers and authorities. Most of these are purely of local concern. Most of these can be best worked out by us as we now stand as different and distinct identities. With most of these things no one State is concerned with the management of the other, but there are certain matters-such as defence, quarantine, and various other things-we generally agree upon, in which we as a people say we are concerned, not as residents of Victoria, Tasmania, or any other colony, but because our interests and our desires are united. We say there is henceforth to be no distinction between us; let us blot out of our future history and out of our future politics the arbitrary fact that we are residents of different colonies, and if we start with that and we select these subjects, it is on the distinct basis that our interests are identical.

Not only did he fail to succeed in abolishing the States, he also failed to prevent the concession to the States in the form of the Senate.

Fortunately, this set back didn’t halt his career.  Following Federation, in 1905 he became Australia’s fifth Attorney-General.  Praised (sometimes backhandedly) for his capacity for work by Sir Robert Garran, Isaacs relished the position, having previously been the Attorney-General of Victoria.

We often speak now of the separation of powers doctrine where the Parliament passes the legislation and then an independent body, the Courts, interprets it.  In folk law, this is often considered an a priori fact but, back in the early days of Federation, the lines were not so clearly drawn.  Isaacs had been a member of the group who drafted the Constitution.  As Attorney-General, he was now responsible for ensuring legislation was within the power conferred on the Commonwealth by the Constitution.

In 1906, Isaac Isaacs was appointed to the High Court where he would now be involved in the interpretation of both the legislation he helped draft as Attorney-General, and the Constitution he helped draft (provisions of which he had vociferously opposed earlier).  This shouldn’t shock us.  Sir Samuel Griffith had all but written the Constitution by the power of his magnificent beard and was immediately appointed to the High Court as the Chief Justice upon Federation.

It’s important to bring up Griffith at this point and go on a bit of a detour into constitutional theory.  Even by 1906, Griffith had a clear view of how he thought the Constitution worked.  Later, Owen Dixon would write about anterior law to Australian law: a sort of body of law that exists prior and alongside Australian Constitutional law without which Australian Constitutional law doesn’t make sense.  To see why this is an interesting question, we need to look at the Preamble to the Constitution:

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

The important words to look at there are ‘the people’.  The idea this invokes is of the Constitution gaining authority and legitimacy through the agreement of the people of the soon-to-be-federated Australia.  But that’s not what happens in law.  As a strict function of law, the Constitution of Australia was an Act passed by the British Parliament.  In other words, unlocking what’s going on inside the Constitution, we can’t just look at the written words of the Constitution but, instead, this whole culture of Constitutions which stems back into British law and expands out into other colonies which break off from the Empire.

When Australia first Federates, we don’t really know what Australian Constitutional law is going to look like.  Griffith and Isaacs have completely different ideas of what they think the ideal situation will be.  Griffith draws upon this anterior law by referring to interpretations consistent with jurisprudence in the United States.  Griffith thinks that the Commonwealth is really a creature that exists at the pleasure of the States — consistent here with the American idea of States’ rights to limit the capacity of the Federal legislature.  For the first few years of the High Court, Barton (formerly the first Prime Minister) and O’Connor were happy to go along with Griffith.  In 1906, Isaacs and H.B. Higgins joined the Court and their outlook was very different.  Isaacs, particularly, was all about centralism, legalism, and he’s less likely to agree with American jurisprudence (preferring British).  Naturally, Griffith and Isaacs came to disagree sharply with each other on the Court.

Personally, I think Courts are maximally effective when they are set up in this way.  When you have exceptional legal minds that fundamentally disagree with each other on the Court, people have a greater opportunity to have important, difficult, and controversial cases heard fairly.  Not only can lawyers be more persuasive, but they can also be part of the mechanism which grapples with the big ideas of legal theory.  If you have a homogeneous Court where they all have fairly similar ideas and there’s not much creative disagreement, you get a stale Court.

Oh, there are bad sides to it: good luck finding the ratio where the justices writes separate decisions which come to a particular conclusion in different ways (don’t laugh; it happens).  Even so, the creative disagreement of Griffith and Isaacs must have been so much fun to work with.

The tension between Griffith and Isaacs was resolved when Griffith left the Court in 1919.  Barton left the year after and Knox became Chief Justice.  Over the next ten years, Isaacs is no longer outnumbered by the Griffith-Barton-O’Connor bloc and more decisions are handed down which have Isaacs’ clear hand on the rudder.  Perhaps the most famous of these decisions: the Engineers Case, where Isaacs was finally free to bring out the legalist tanks on State immunities.

Knox departed in 1930 and Isaacs was appointed Chief Justice.  The appointment doesn’t last long: ten months later, he became the first Australian-born Governor-General and completes his embodiment of the Sun Wukong myth.  He was there prior to Australia existing, but with the help of his incredible natural talents and his eagerness to meet challenges, he brings about an Australia in which he can be the first Australian head of state.

As I noted briefly, there are a few troubling moments — the racism is particularly troubling, he and Julius Stone disagreed strongly over the question of Israel, and so on and so forth.  On the other hand, this is the guy who embodied what it meant for a non-Indigenous person to be an Australian and to value that Australian identity alongside other aspects of their cultural and ethnic heritage.  He’s our first multiculturalist.  A racist — horribly racist — multiculturalist.

The fact that he’s not better known is a crime.  Culture wars, my foot.  If we’re not teaching primary school kids about this champ as part of the national curriculum, then our national curriculum should be cast into the flames.

Alas, Isaac Isaacs would not be able to keep his title as Australia’s greatest Chief Justice, but that’s a story for after the next two homeboys.

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2 thoughts on “The Chief Justice Series: Sir Isaac Isaacs – the Sun Wukong of Australian history #auslaw #lawweek

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