Your heart makes me feel, your heart makes me moan… In defence of the Constitution

Because a bunch of politicians can’t fill out their paperwork correctly, people are calling for a referendum.  Some (journalists) are even saying we need to scrap the Constitution and start again.

First up, it is utterly, utterly horrendous that we are even contemplating this discussion when we have real work before us: to enshrine Indigenous Australia in the Constitution.  I find it nothing short of offensive that actual problems with the Constitution have been eclipsed by the needs of our political class.

Worse, the debate about the Constitution has been dominated by people who don’t understand what they’re talking about (journalists again).  There appears to be an unspoken assumption that the Constitution is supposed to be convenient to them and their needs.  My concern is that the broader community depends on these journalists to give them the information they need to participate in debates about the Constitution and whether it continues to suit our needs.

Take, for example, the argument that we have a ’19th Century Constitution’.  I have no idea what the fuck this criticism means.  It was written in the 19th Century?  Okay.  The United States has an 18th Century Constitution.  Any written constitution is going to reflect, to some degree, the prevailing attitudes of the time.

But our Constitution has proven to be remarkably flexible and adaptive to current needs.  Worse, this whole s 44 debacle has been fuelled by exactly that flexibility: Sue v Hill would have been decided differently in 1901 than it was in 1999.  Here, we had a person with British citizenship who had been elected to Parliament and the High Court said: ‘Look, Australia is a different place than it was in 1901.  We need to read s 44 in line with contemporary understandings of who is a foreign power and, lo, Britain is now a foreign power.’

Contrast this with the United States where everything is so rigid because a bunch of curly wigs in the 1700s decided that people have a right to own guns, and guarantees of freedom of speech should extend to homophobes disrupting funerals.

Our Constitution was written in the 19th Century.  There are pressing needs (Indigenous enshrinement), it needs some tweaks in places, but it’s working most of the time.

But, fuck it, if we are going to talk about scrapping the Constitution and start again, let’s go whole hog.  Do you know what else is a relic of the past?  The States.  Federalism makes sense in a world before the Internet and before high speed travel.  It makes no sense in a world where I can commit a crime in Victoria and by daybreak be in Queensland outside the jurisdiction of Victorian police.  It makes no sense in a world where a teenager might want to study at one of the best universities in the country, but they have to apply to different government processes because they live in a State with no real universities (Tasmania).

And the Senate is shit.  Give me one vote with one value.  Better yet, give me the voting power to get rid of Leyonhjelm and Hanson.  Why are these slugheads able to make laws that govern me just because a bunch of New South Welshmen can’t read the ballot correctly and a bunch of Queenslanders are crazy racists?  It’s not like they vote in the interests of States anyway.

But we all know that, if we open the ‘Let’s start again’ door, what we’re going to end up with is some half-baked attempt at a Bill of Rights.  If there’s anything that fixes a constitution to a point in time, it’s entrenched constitutional rights.  Australia won an international court case against the tobacco industry which wasn’t possible in the US or Canada because of their rights framework.  We could ban Nazis tomorrow from protesting in Australia; the United State would have a protracted debate about their rights.  Atheist groups are running fruitcake cases in the US to shut down public displays of religion; here, the High Court has told atheist groups to keep their fruitcakery out of the courts.  The US had McCarthyism; the Australian High Court prevented the banning of the Communist Party.  We are, in every respect, better off without entrenched individual rights.

So let’s leave the Constitution out of it.  The s 44 problem is due to a baked political class.  There is no appetite to engage with serious reconstruction of the Constitution.  And people keep thinking that entrenched rights are nothing but glitter sparkles and unicorns and not a way for people who can afford lawyers to punch the rest of society.

But, more importantly, can we get back to Indigenous recognition instead of this freakshow debate fuelled by ignorance and liberal brain parasites?

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Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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