17.3 Function Of A Constitution
17. The Role Of A Constitution

The argument is often made that the present Australian Constitution is out of date. The question is asked: what is the relevance of a constitution drafted in 1900 for the present? Yet the United States Constitution was drafted 200 years ago and it still endures. The mere fact that a constitution was drafted almost one hundred years ago does not mean that it is outdated. A constitution merely deals with limitations on power. The need for limitations on power does not change from year to year or century to century. Power corrupts and absolute power corrupts absolutely. The critics of a constitution fail to understand the purpose which a constitution is intended to serve. It is not intended to provide a recipe for efficient government or for government which can transform the society along socialist or capitalist lines. These are matters within the area of government and must arise from the interaction of people, government and many other factors. A constitution is concerned with the allocation of powers - what the legislature, the government and the judiciary may or may not do. A constitution is established to restrict the possibility of abuse of power by those exercising governmental functions, whilst providing a reasonable area for state activity.

The best short statement of the rationale of constitutionalism is that of James Madison, the most influential draftsman of the US Constitution.

"But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." (Federalist 51.)

Hayek in his analysis of modern democratic government starts from the premise that constitutionalism is identifiable with liberty and limited government:

"When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since. Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers. In the form in which we know this division of power between the legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. "(F A Hayek, Law, Legislation and Liberty, Volume 1, Rules and Order (1973) page 1).

Although Australia has a constitution which is conceived in the liberal tradition and is meant to be the supreme law alterable only by the people according to prescribed procedures, it has undergone substantial changes at the behest of legislative majorities sanctioned by the High Court, claiming increasing powers for government to act in the public interest. The High Court's attitude to the interpretation of the Constitution has reflected a departure from constitutionalism to the idea that a constitution should be responsive to needs of the time. This approach which is based on a misunderstanding of the role of a constitution is threatening to create a form of absolutism. Hayek makes the following comment about modern constitutionalism which is relevant to Australia.

"Constitutionalism means limited government. But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government. And indeed, what function is served by a constitution which makes omnipotent government possible? Is its function to be merely that governments work smoothly and efficiently, whatever their aims?" (F A Hayek, Law, Legislation and Liberty, Volume 1, Rules and Orders (1973) p 1).
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