The Pervasive Constitution: The Constitution Outside of the Courts

I The Constitution Outside of the Courts

To speak of the constitution ‘outside of the courts’ as a subject in need of further scholarly study is evidence of the degree to which our thinking about constitutions has become juridified. ¹ In constitutional systems around the world, it is now commonplace for scholars to suggest that courts are the locus of constitutional power rather than legislatures and that judges are the primary constitutional actors. But these are beliefs worth interrogating, even in countries with strong apex courts and robust judicial review.

The phrase ‘constitution outside of the courts’ emerges from the United States, where Mark Tushnet has used it primarily in describing how extrajudicial actors shape the interpretation of constitutional texts. ² On some accounts, extrajudicial actors have independent interpretative authority. ³ On others, they influence constitutional interpretation by judges in different ways. ⁴ Regardless of the precise position adopted, however, the focus of this scholarship is on how non-judicial actors shape constitutional law. Outside of this body of scholarship, the constitution outside of the courts tends to be associated with the political dimensions of constitutional practice, broadly conceived. In this Special Issue, we engage with the constitution outside of the courts in this broader sense.

Extrajudicial constitutional functions are an important part of all constitutional systems, and in some jurisdictions, they appear to be expanding. Courts are increasingly recognising the constitutional or quasi-constitutional status of laws enacted through the ordinary legislative process. ⁵ The executive and the legislature are involved, formally and informally, in scrutinising the constitutionality of proposed legislation. ⁶ In many systems, the legislature retains the ‘last word’ on constitutional rights questions by virtue of the presence of limitations and/or override clauses. ⁷ Federalism issues continue to be addressed largely outside of courts. And while their precise constitutional basis may be a matter of debate, ⁸ legislatures increasingly rely on accountability offices, such as the auditor-general, the ombuds office, and the electoral commissioner, to perform an oversight role. ⁹

In the face of a global trend of democratic backsliding, scholars are once again emphasising the importance of political checks on executive overreach. ¹⁰ This has led to a resurgence of interest in political parties, ¹¹ the official opposition, ¹² legislative committees, ‘fourth branch’ institutions, independent ‘knowledge institutions’, ¹³ federalism practices and social movements. ¹⁴ In some jurisdictions, this shift has been precipitated by political attempts to circumscribe the scope and independence of judicial review and thus the role of the courts. But it is also justified on the grounds that these constraints may prove more effective, legitimate, flexible and capable of achieving structural change than judicially imposed limits.

In countries renegotiating the relationship between Indigenous peoples and the state, scepticism over the courts’ ability to address the legacies of colonisation is longstanding. Indeed, the Supreme Court of Canada has itself emphasised the importance of pursuing a political, rather than judicial, path to reconciliation. ¹⁵ In Australia, unsuccessful attempts to negotiate legally enforceable rights for Aboriginal and Torres Strait Islander peoples have prompted a turn to solutions grounded in the political process. Most recently, this has led to the idea of a constitutional amendment that would create an institutional voice through which First Nations would communicate with the political branches, a ‘First Nations Voice’.

When we began organising this Special Issue, we envisioned writing an introduction that would map the existing scholarship on constitutional practice outside of the courts in Australia and some comparator jurisdictions, including the US, the UK, Canada and New Zealand. As the issue began to take shape, however, we realised that the collection approaches the field using concepts that are only now emerging clearly in the scholarship and draws them together in unique ways. What the collection reveals is a relational, pervasive vision of the constitution, one which is focused on the ongoing relationships of a broader set of constitutional institutions and actors. These relationships are mediated by the legal and political dimensions of the constitution and by the narratives and symbolism that grow up around it. This focus on relationships, narratives and symbolism renders visible a number of constitutional actors and dynamics that are often invisible in more traditional accounts of constitutionalism. ¹⁶ It also allows us to identify and critique the power dynamics in these relationships, which can result in some voices being ‘heard’ or ‘listened to’ more than others. In addition, this approach facilitates the study of constitutional relationships across time, rather than at a singular point of legal controversy.

We begin this introduction by reviewing the existing literature on the constitution outside of the courts, before exploring the themes that emerge from the Special Issue. We explain how these themes reveal a more complex, dynamic and pervasive understanding of the constitution than is present in conventional accounts of constitutional practice. We conclude by describing the individual contributions to the Special Issue by reference to these themes.

II The Constitution Outside of the Courts in the Literature

III The Pervasive Constitution: The Importance of Relationships, the Multiplicity of Constitutional Actors and the Role of Narratives

Three interconnected themes emerge from the articles in this Special Issue as being key to understanding the constitution in its more pervasive sense: the importance of relationships, the multiplicity of constitutional actors and the role of constitutional narratives.

First, continuing the work of scholars such as Griffith and Kavanagh, the contributions to this Special Issue emphasise that the constitution is best understood as establishing relationships. These include relationships between nations that coexist on the same territory, between government institutions, between citizens and the state and between orders of government. It also includes relationships between a much broader set of supporting and emerging constitutional actors. It would be inaccurate to characterise constitutions as simply memorialising a political bargain struck at a moment in time. Rather, constitutions are reflective of and create frameworks within which ongoing relationships unfold and new relationships develop, driven by the agendas of a range of constitutional actors and influenced by constitutional narratives that seek to explain, direct, reform or defend constitutional practice.

Constitutional relationships have been largely neglected as a subject of serious scholarly inquiry outside Indigenous constitutional systems. This has left scholars of these legal systems with insufficiently developed conceptual frameworks for identifying, analysing and critiquing constitutional relationships and how they might be sustained and evolve over time. Focusing on the ways in which constitutions are productive of and developed in response to the societies of which they are a part enables us to think about how constitutional relationships might be cultivated so as to be more meaningfully expressive of their constituent parts, instead of favouring traditional hierarchies.

Turning first to the traditional institutions of government, the constitutional relationship between the courts and the political branches has often been cast in negative terms, and more specifically, in terms of ‘disagreement’. ⁶⁹ On this account, the executive defends legislation before the courts. If a law is struck down, the legislature has the option of pursuing new legislation that either adopts the court’s interpretation of what the constitution requires or resists it to some degree. ⁷⁰ This is dialogue theory, or the New Commonwealth Model of Constitutionalism, as it has been described by Hogg and Bushell, Gardbaum and others. ⁷¹

In Westminster systems, the relationship between the executive and the legislature is also thought to be well understood. The legislature has dual responsibilities around which its relationship with the executive is defined. As the most directly representative and diverse of the constitutional actors, it is responsible for passing laws that accord with the will of the people. The executive then is responsible for administering those laws. The executive’s faithful administration of the law is supervised by the court, as well as by the legislature fulfilling its second role to ensure the exercise of executive power is held to account. In this second role, the importance of the dissonant chorale of voices in the legislature is highlighted. Opposition, minor parties and independent members of parliament must be valued and empowered to ensure this responsibility can be met. An executive-controlled legislature undermines the realisation of the creative tension in this relationship.

Kavanagh’s work seeks to imagine a more productive relationship between the branches of government, and in doing so, emphasises the potential for positive relationships between and among constitutional actors. There is considerable value in doing so. At the same time, it is important to consider relationships that exist beyond the executive, legislature and courts. In countries in the process of decolonisation, this is a matter of some urgency, since the focus on these institutions has been maintained with significant cost to other constituent possibilities. A pervasive view of the constitution enables those previously excluded, or often marginalised constituent parts, to be heard within a constitutional system more responsive to their needs.

In this regard, the Special Issue points to the pre-existing and now coexisting Indigenous constitutional systems in Australia, New Zealand and Canada as examples, not just of the demands made on modern constitutions, but as representative themselves of pervasive constitutional systems that emphasise networks of relationships. For many Indigenous constitutional systems, the relationships that exist between constituent parts inform the functions of the system itself and the resulting obligations and responsibilities of those systems. ⁷² For instance, in her contribution to the Special Issue, Karen Drake contemplates how Anishinaabe constitutionalism could inform future practice in the Canadian system, with its focus on mutual relationships between actors and the importance of maintaining good relations to ensure compliance through a concept she refers to as ‘mutual aid’. These Indigenous constitutional orders then emphasise the institutional role of relationships as constitutive of society itself, rather than as a subordinate function of or secondary to a more narrowly and hierarchically defined system. ⁷³ This differentiates many Indigenous constitutional systems from those of non-Indigenous societies. ⁷⁴

Many of the constitutive elements of Indigenous legal systems continue to be misunderstood by settler colonial systems of government due to the legacy of dismissive practices by non-Indigenous actors when interacting with and recoding Indigenous peoples’ societies, especially early anthropologists, who could only identify what they found based on their own terms of reference. Because they could not locate the ‘hard’ facts and institutions of law they recognised as constitutional, Indigenous constitutionalism was too often dismissed as something other than law, belonging to culture and tradition. This characterisation has made it difficult for liberal constitutionalism and its institutions to approach Indigenous peoples in any way other than through limited accommodations. Notable successes beyond this have only been achieved through the cultivation of more expansive relationships and institutions that bring different peoples and systems together, rather than forcing one into the other. ⁷⁵

Once we understand constitutions as relational, we are encouraged to pay attention to the health of these relationships, their degree of reciprocity, the power dynamics within them and the processes which facilitate them. ⁷⁶ In the case of the central institutions of government, we are concerned with relationships among equals, or at least relationships in which there are contesting sources of constitutional authority and powers. Once we move beyond the well-established relationships, however, constitutional relationships are often revealed to be asymmetrical. For instance, within a federation, central governments are often fiscally dominant, and at the subnational level there are ‘have’ and ‘have not’ states. Social movements are almost always populated by groups that have been unable to access electoral power. They must therefore pursue their agendas as political outsiders. Integrity institutions have relatively modest powers available to them to exercise oversight of a powerful executive branch. We can ask, as Ng and Kildea do in this Special Issue, where these accountability institutions derive their power from, and whether they are too dependent for their continued existence and efficacy on the very individuals they are meant to police. ⁷⁷

In thinking through the power dynamics of these relationships, we can draw on a deep well of critical scholarship that has examined the structural inequalities inherent in current constitutional arrangements. We can ask, for example, why so many seem to be on the outside of the constitutional compact looking in, seeking basic membership and respect in the constitutional community. ⁷⁸ We can also ask how the constitutional relationships between First Nations people and the settler state might be rebalanced, acknowledging the longstanding mistrust and deep structural and constitutional inequality that has so far characterised interactions between them. As the contributions of Appleby and Synot, Ruru and Kohu-Morris and Drake demonstrate, if we approach these questions in institutional, outside-of-the-court terms, we see that rebalancing requires institutions that recognise Indigenous sovereignty and voice, and bring Indigenous laws to bear on the seemingly intractable challenge of reconciliation. ⁷⁹

The second theme of this Special Issue is the emergence of a multiplicity of constitutional actors and the complexity of the interrelational dynamics that exist between them. When the focus is on the constitution inside the court, our view is a relatively myopic one: the constitution is a legal instrument invoked in a transactional moment by parties challenging the lawfulness of executive or legislative action. However, once we understand the pervasiveness of constitutional practice, we must look to the constitution far more often (indeed, all the time) and consider the role of actors other than the usual constitutional coterie.

Without attempting an exhaustive listing of constitutional actors in a pervasive understanding of the constitution, it is useful to consider their possible breadth. Undoubtedly it includes actors within the established branches of government, from the well-known to the more obscure. Within the executive this includes the head of state, ministers within government departments and public servants. ⁸⁰ Private actors may be contracted to perform public services, including providing legal advice. Within federal and quasi-federal systems, the national and subnational polities are constitutional actors in their own right, and the relationships between the institutional and individual actors within them are an important dimension of the constitutional order. In constitutional orders struggling to become postcolonial, where Indigenous and non-Indigenous constitutional systems now coexist, Indigenous polities and institutions add an additional set of actors and relationships. The public acts in a constitutional capacity when it votes in elections, plebiscites and referendums. ⁸¹

Moving even further afield, others can make a serious claim to constitutional status. Social movements, knowledge institutions (which include the press, higher education institutions, government scientific offices and NGOs) emerge as important constitutional—although not necessarily governmental—actors, all contributing to and shaping the constitutional conversation. In her contribution to the Special Issue, Liora Lazarus argues that constitutional law scholars should be added to this list. Dylan Lino similarly highlights the role of those of us who study and teach the constitution in contributing to its wider public symbolism and its political potential.

This brings us to the final theme that emerges from this Special Issue. Constitutions have a folklore—a set of narratives that influence their social force. These narratives affect how the constitution is interpreted in courtrooms, the manner by which other constitutional actors engage with and make use of it, and how it is understood by the broader public. ⁸² Constitutional relationships are shaped by these narratives and the symbols they construct and project. Different constitutional actors may bring fundamentally different narratives to a constitutional relationship. If the ultimate goal is workable relationships, these divergent accounts must be reconciled, or entirely new narratives created. ⁸³ As Lino argues, understanding the power of these narratives and the motivations of the constitutional actors who advance them is crucial to conceptualising the constitution both inside and outside the courts.

The picture that begins to emerge is of a highly complex system in which constitutional actors seek to exert influence and authority, often through the construction of narratives and the use of symbolism. Within this system, constitutional actors must sustain relationships and uphold the principles upon which good governance depends. Given the networked character of this system, it is conceivable, perhaps inevitable, that nurturing or at least sustaining some relationships will undermine others. The defence or adoption of one constitutional narrative over another will also affect these relational dynamics and the locus of power within constitutional systems. Constitutional actors must therefore perform a series of delicate balancing acts across a complex, webbed landscape.

Taken together, these themes suggest a different constitutional landscape than the highly juridified one presented in much of the constitutional scholarship. Courts are undoubtedly important actors in this landscape. But while their interpretation of the constitution is highly influential, the reality is that constitutional practice is concerned with far more than the interpretation of fundamental law. This Special Issue reveals that the constitutional actors within this landscape and their relational dynamics defy simple explication. For one, the constitutional landscape is significantly more crowded than traditional accounts of constitutionalism would have us believe. The title of the Special Issue—the pervasive constitution—gestures at this. Much can be learned from separating out individual constitutional actors, their relationships and narratives and studying them in isolation. At the same time, the constitutional system also has a dynamic and an energy that can only be appreciated when the entire network of constitutional actors, relationships and narratives is considered. This is no easy task.

IV The Special Issue—Overview

The first set of articles in the Special Issue considers the constitutional functions of political institutions, actors and processes. Ng examines the constitutional moment in which political constitutionalism is currently practised in Australia and the challenges that have emerged for traditional mechanisms of control. She tracks the development of Australia’s political constitution through three distinct stages, beginning with the adoption of responsible government at the Australian Commonwealth’s founding through to the emergence of party government and the growth of oversight bodies. Although party politics arguably weakens the mechanisms of political accountability, Australia’s bicameral federal legislature with an upper house elected through proportional representation goes some way towards tempering its worst excesses. New accountability officers who report to Parliament provide yet another check on the executive, though their continued existence is ultimately dependent upon political will. At the same time, ‘[w]ithin the context of a sprawling administrative state that has become increasingly plural, fragmented and dispersed, with a heterogeneous range of bodies, some of which are immune from judicial review by virtue of corporatisation and contracting out’ their role has never been more important.

Kildea sheds new light on the functions of integrity institutions through a critical analysis of the work of the AEC. His contribution extends the literature on integrity or ‘fourth branch’ institutions in two ways. First, it explains that the AEC’s mandate to ensure election integrity extends beyond reining in political self-interest and includes regulating the corrupting influence of money in politics and preventing foreign interference in elections. These functions transcend the traditional accountability functions of integrity institutions. Second, he shows that in practice, integrity institutions are not just engaged in protecting constitutional democracy but also in facilitating or promoting, its good practice. Focusing on three characteristics of fourth branch institutions—independence, accountability and vulnerability—Kildea explains that the current design and mandate of the AEC constrains its ability to perform its functions effectively.

Lazarus’s article advances an argument for recognising constitutional law scholars as constitutional actors. ⁸⁴ She explains that while all academics should be understood as being part of constitutionally significant ‘knowledge institutions’, ⁸⁵ constitutional law scholars have a particularly important role to play in ‘holding constitutional reasoning to account’, whether in the judicial or non-judicial sphere. In this respect, they are ‘part of the accountability fabric of the constitutional order’. She also argues that through their many activities, from teaching to public engagement, ‘constitutional scholars contribute to and shape the constitution’. She goes on to show how this constitutional role gives rise to specific protections (academic freedom, freedom of expression and academic independence) as well as specific responsibilities (including a duty of objectivity and a duty of independence from partisan interests). These protections and responsibilities are especially important in this moment of rising populism, in which truth and expertise are increasingly devalued and under threat.

Eoin Carolan’s article considers the use of referenda as part of the constitutional amendment process in Ireland. ⁸⁶ In Ireland, formal changes to the constitutional text must be ratified by a majority of citizens. A recent innovation has been to convene a citizen’s assembly prior to the legislature voting on a constitutional amendment and a referendum being held. While these two features seem to inject a substantial popular element into the amendment process, Carolan cautions against reaching this conclusion too quickly. He notes that citizens’ assemblies are susceptible to capture by political elites, who both convene these assemblies and determine their mandates. Moreover, too great an emphasis on citizens’ assemblies may obscure the important, longer term work of grassroots organisers who may spend decades pushing for constitutional change.

In his contribution, Paul Blokker suggests that constitutional mobilisations and constitutional resistance are meta-phenomena worthy of study from the perspective of comparative constitutional law. In sketching the contours of such a research agenda, he adds considerable texture to our understanding of popular mobilisations and their constitutional significance. ⁸⁷ To date, the scholarship on the constitution outside of the courts has focused primarily on social movement activity within a single jurisdiction. But new insights emerge when we consider political mobilisations across jurisdictions and across different types of states, such as authoritarian states, backsliding states and established constitutional democracies, as well as transnationally. By adopting a political sociological approach to the study of constitutional mobilisations, as Blokker does, we are invited to move beyond the study of single issue campaigns to consider how constitutional mobilisation and resistance is sometimes aimed at either preserving or reforming the political system as a whole and its foundational values. These dynamics emerge strongly in Blokker’s case studies of Italy and Poland.

In the second part of the Special Issue, scholars from Australia, Canada and Aotearoa New Zealand reflect on the importance of the space outside the courts for constitutional systems in the process of decolonisation. In their contribution, Appleby and Synot examine the constitutional reform called for in the Uluru Statement from the Heart and consider what might be required to build a meaningful inter-institutional relationship between a First Nations Voice to Parliament and the Parliament itself. Rather than focusing on how a First Nations Voice should be structured to ensure its success (a ‘deficit’-type approach), ⁸⁸ they examine the obligations of the existing constitutional institutions in this relationship. Appleby and Synot advocate for a form of ‘constitutional listening’ that is attentive to the ‘complexity and diversity of Indigenous experience and perspectives’ that the Voice represents. They develop five principles to inform this relationship and consider ways in which these principles might be incorporated into extrajudicial constitutional institutional structures.

Lino examines the symbolic dimensions of the Australian constitution in his contribution to the Special Issue. ⁸⁹ While he acknowledges that there is some truth to the view that the Australian constitution is thin on symbolism, he urges scholars to consider how the Australian constitution might nonetheless perform symbolic functions that have political consequences, and what this might mean for their own work. Once we move beyond the more Americanised, patriotic conception of constitutional symbolism built on shared identity and values, we see that the Australian constitution is symbolic in a range of ways. Lino examines four common symbolic constitutions—the practical, the liberal, the outdated and the exclusory—that have recently been deployed in public debate both to support and to resist the recognition of a First Nations Voice. Lino’s nuanced, complex account of constitutional symbolism forces us to confront the ways in which the symbolic aspect of the constitution can both unite and divide, sometimes simultaneously.

Ruru and Kohu-Morris’ article charts the legal and political trajectory of Te Tiriti o Waitangi/the Treaty of Waitangi since its signing in 1840, telling the story of how key Māori actors led the push towards recognition of the Treaty’s constitutional status in key moments outside the courts. ⁹⁰ One of the actors in this story is Joe Williams (Ngāti Pūkenga, Te Arawa). As a young lawyer, Williams wrote Maranga Ake Ai, a song that gave voice to Māori demands for constitutional recognition. Williams went on to Chair the Waitangi Tribunal and to preside over the Wai 262 inquiry, ‘one of the most complex and far-reaching in the Tribunal’s history’. ⁹¹ In 2019, Williams was appointed to the Supreme Court, the first Māori to occupy this position. Williams has continued to advocate for greater political recognition of Māori nationhood. Ruru and Kohu-Morris’ article highlights a distinctive kind of constitutional actor operating both inside and outside the courts: Māori who are successfully reframing the constitutional compact to reflect Aotearoa New Zealand’s bijural status. Ultimately, however, Ruru and Kohu-Morris argue that unless legal reform is achieved that recognises Māori sovereignty as a limit on parliamentary supremacy, the intent of the Te Tiriti for which Williams has long fought—bicultural power-sharing in a relationship of equals—will not be achieved.

Karen Drake’s article considers how a new dispute resolution forum might operate if it were to be based on principles of Anishinaabe constitutionalism. She explains that liberal constitutionalism is incapable of facilitating reconciliation between Indigenous and non-Indigenous peoples because it posits that Indigenous people have rights against the state, but that the state retains ultimate jurisdiction and sovereignty over the territory. As Drake explains, this jurisdiction ‘is precisely what is contested’. Anishinaabe constitutionalism opens up space for true reconciliation. Drake explains that the forum could develop a mode of dispute resolution that is driven by the Anishinaabe concept of ‘mutual aid’, which recognises our interdependence and is focused on achieving good relations through giving gifts in response to needs, as well as ‘persuasive compliance’. ⁹²

Conclusion

With these themes in hand—the importance of constitutional narratives and symbols, the multiplicity of constitutional actors and the relational nature of constitutionalism—our view of the constitution is recalibrated. This recalibration is necessary, not only to correct the disproportionate focus on courts, but also because the most pressing challenges of modern constitutionalism cannot be solved by courts alone. Indeed, this too emerges as something of a theme of this Special Issue. For settler states hoping to decolonise, neutral ground outside of courts must be identified in which overlapping constitutional orders can be accommodated. In these spaces, new constitutional stories can be told, stories which acknowledge the full sovereignty of Indigenous peoples and their claim to territory. ⁹³ In countries experiencing democratic backsliding, current events suggest that courts are easily captured and even sometimes part of the initiating problem. Only vibrant extrajudicial resistance—in the streets, in the media, in the university and in the Parliament—can backstop democracy and human rights against the threat of populism. ⁹⁴ This Special Issue demonstrates that the space outside the courts is brimming with constitutional institutions, processes and actors that might play a role in addressing these challenges. None of these is without its flaws, but taken together, they suggest new avenues for preserving existing constitutional values and for pursuing new constitutional possibilities.