REASONABLE DISAGREEMENT, DEMOCRACY AND THE
JUDICIAL SAFEGUARDS OF FEDERALISM
NICHOLAS ARONEY∗
I
Justice Ian Callinan’s judgments in federalism and free speech cases
present an apparent paradox. In federalism cases, his Honour has been ready
to affirm the existence of constitutional implications protecting the states
(here following previous decisions)1 and has been willing to read the literal
words of the Constitution conferring legislative powers on the
Commonwealth in a relatively narrow way with a view to preserving the
powers of the states (in this respect dissenting from majority opinion).2 In
rights cases, however, he has expressed extreme doubt about the legitimacy
of the implied freedom of political communication and has applied it
reluctantly and with reservation. 3 Thus, in one set of cases his Honour
appears to have been willing to go beyond the literal text of the Constitution
and to affirm constitutional implications; in the other he has resisted it.
What considerations could possibly justify this apparent contradiction?
The immediate context of the paradox has to do with a controversy
about how the Constitution ought to be interpreted. As often understood,
this controversy pits the literal text of the Constitution against extraconstitutional values,4 such as the idea of representative democracy as it has
been used in the political communication cases, and federalism as it has been
used in cases concerning the scope of Commonwealth and state legislative
power. Associated with this controversy is a further disagreement about the
∗
Reader in Law, TC Beirne School of Law and Fellow, Centre for Public,
International and Comparative Law, The University of Queensland. My thanks
to Adrienne Stone for her comments on an earlier version of this article.
1
New South Wales v Commonwealth (2006) 229 CLR 1, 272, 328-30 (Callinan
J), discussing Melbourne Corporation v Commonwealth (1947) 74 CLR 31;
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
and Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188;
Austin v Commonwealth (2003) 215 CLR 185.
New South Wales v Commonwealth (2006) 229 CLR 1, 246-385 (Callinan J);
XYZ v Commonwealth (2006) 227 CLR 532, 582-613 (Callinan and Heydon
JJ).
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208
CLR 199, 330–2, 336–339 (Callinan J). See also Coleman v Power (2004) 220
CLR 1, 109-14 (Callinan J); APLA Limited v Legal Services Commissioner
(NSW) (2005) 224 CLR 322, 477-81 (Callinan J), discussing Australian
Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide
News Pty Ltd v Wills (1992) 177 CLR 1; later revised in Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520.
See, eg, George Winterton, ‘Extra-constitutional notions in Australian
constitutional law’ (1986) 16 Federal Law Review 223.
2
3
4
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2008
respective powers and functions of the legislature and the courts. Judicial
review empowers courts to declare that statutes enacted by the legislature are
constitutionally invalid. It thus enables unelected judges to trump the
decisions of democratically elected parliaments. On democratic premises,
what could possibly justify the conferral of such powers upon the courts?5
There is a sense in which the paradox presented by Callinan J’s
judgments bifurcates into two separable, yet related, issues: one a question of
constitutional interpretation, the other a question of constitutional design.
When posed as a matter of constitutional interpretation, the conventional
defence of judicial review turns on the constitution itself: it is argued that
when a court exercises judicial review it is merely applying the law of the
constitution. 6 On this view, it is assumed that the constitution is itself
legitimate and the source of the court’s legitimacy, and that the court is
merely applying the constitution in a manner faithful to criteria such as its
text, structure and intended operation. 7 When, however, the question is
posed as one of constitutional design, it needs to be established that there is
good reason to empower courts to be able to overturn legislative decisions in
the first place. If judicial review in relation to individual rights or federalism
is to be justified according to democratic values, it must be defended on the
basis that democracy itself assumes the existence of, or is at least compatible
with, the specific individual rights or the particular federal institutions which
unelected judges are called upon to protect and maintain.8
Now although questions of constitutional interpretation and
constitutional design are quite distinct, there are certain arguments
concerning the legitimacy of judicial review which have a bearing on both.
In particular, Jeremy Waldron has advanced the argument that the
application of bills of rights inevitably gives rise to issues about which
reasonable persons disagree, that judges are not necessarily any more
reasonable about these issues than legislators, and that disagreement about
rights ought therefore to be resolved democratically, rather than through
5
6
7
8
See, eg, Alexander Bickel, The Least Dangerous Branch: The Supreme Court
at the Bar of Politics (1962).
See Marbury v Madison, 5 US (1 Cranch) 137 (1803), referred to as
‘axiomatic’ to the Australian constitutional system in Australian Communist
Party v Commonwealth (1951) 83 CLR 1, 263 (Fullagar J).
The role and relevance of criteria such as text, structure and intent is, of course,
contested. Justice Callinan has himself catalogued the various, competing
approaches to interpretation which have received judicial recognition in
Australia: see New South Wales v Commonwealth (2006) 229 CLR 1, 301-8
(Callinan J).
Hence the voluminous literature discussing the compatibility of democracy
with both individual rights and federalism. For a recent debate within
Australia on the compatibility of federalism and democracy, see Graham
Maddox, ‘Federalism and Democracy’, Democratic Audit of Australia, Audit
Paper published 9/2002 and Andrew Parkin, ‘Federalists can be democrats –
and democrats ought to be federalists: A response to Maddox’, Democratic
Audit of Australia, Audit Paper published 1/2003.
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judicial review.9 This kind of argument is marshaled by Waldron, not only
to attack the existence of judicially enforced bills of rights, but also to insist
that the courts ought to interpret constitutions in a manner which adheres
closely to their textual content and which therefore eschews the drawing of
implications based on values extraneous to that text.10
Adrienne Stone has recently contended that, while this general line of
argument is characteristically directed against the judicial enforcement of
rights, the argument has as much force against the judicial enforcement of
structural or institutional features of a constitution, including the division of
powers between the federation and the states in federal systems such as
Australia’s. 11 Stone’s contention is directed, explicitly, to the abstract
question of constitutional design and not to the more concrete question of the
interpretation of this or that constitution.12 Given, however, the relationship
between the two issues, Stone’s argument is relevant to matters of
constitutional interpretation and indeed constitutes a way of expounding the
apparent paradox in Callinan J’s constitutional jurisprudence. Thus, if
Callinan J’s hesitancy about the implied freedom of political communication
is justified for the kinds of reasons advanced by Waldron and others,13 then
the apparent paradox lies in the puzzle why the same considerations do not
9
10
11
12
13
Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13
Oxford Journal of Legal Studies 18; Jeremy Waldron, Law and Disagreement
(1999); Jeremy Waldron, ‘The Core of the Case Against Judicial Review’
(2006) 115 Yale Law Journal 1346. See also Jeremy Waldron, ‘The Irrelevance
of Moral Objectivity’ in Robert George (ed), Natural Law Theory:
Contemporary Essays (1992) 180-2.
Waldron, Law and Disagreement, above n 9, 142-6, discussed in Jeffrey
Goldsworthy, ‘Legislation, Interpretation and Judicial Review’ (2001) 51
University of Toronto Law Journal 75, 80-6.
Adrienne Stone, ‘Judicial Review Without Rights: Some Problems for the
Democratic Legitimacy of Structural Judicial Review’ (2008) 28 Oxford
Journal of Legal Studies 1.
There is an important body of literature discussing the legitimacy of federal
judicial review specifically under the United States Constitution. See, eg,
Herbert Wechsler, ‘The Political Safeguards of Federalism: The Role of the
States in the Composition and Selection of the National Government’ (1954)
54 Columbia Law Review 543; John Yoo, ‘The Judicial Safeguards of
Federalism’ (1997) 70 Southern California Law Review 1311; Larry Kramer,
‘Putting the Politics Back Into the Political Safeguards of Federalism’ (2000)
100 Columbia Law Review 215; Lynn Baker and Ernest Young, ‘Federalism
and the Double Standard of Judicial Review’ (2001) 51 Duke Law Journal 75.
See, eg, Jeffrey Goldsworthy, ‘The Constitutional Protection of Rights in
Australia’ in Greg Craven (ed), Australian Federation: Towards the Second
Century (1992); James Allan, ‘A Defence of the Status Quo’ in Tom Campbell,
Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights:
Instruments and Institutions (2003) 175.
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call for a similar hesitancy about the use of federal implications in order to
protect the states from federal interference.14
Can this challenge be met? Can the apparent paradox be resolved? In
the remainder of this essay I will address this two-fold challenge in two
separate ways. First, in relation to the constitutional interpretation side of
the question, I will argue that although the argument from reasonable
disagreement relevantly brings home the practical consequences of the
judicial construction of constitutional ‘implications’, the soundest objection
to over-reaching judicial creativity lies in its failure to remain faithful to the
duly constituted legal order established under the constitution. Second,
concerning the constitutional design side, I will argue that Waldron’s
argument in relation to judicial review under a bill of rights does not, and
cannot, have the same bearing on federal judicial review. Waldron’s core
argument rests upon an account of the relationship between individual rights
within a unitary democracy, a relationship which simply does not exist in the
same way within a federal system.
II
The truth in legal positivism, as John Finnis has put it, lies in the value
of living within a system of duly constituted law.15 The public determination
of general moral principles into relatively specific rules of law provides
members of society with a degree of certainty about content of the law and
provides a measure of security that those vested with power to apply and
enforce the law will do so in a predictable manner. Legal positivists and
natural law theorists may differ about the identity and perspicuity of the
principles according to which social life ought to be guided, but they tend to
agree that specific determinations of the content of the law are desirable and
helpful.16 Written constitutions are one such way of providing a measure of
legal certainty about the content of the law at its most abstract and general
level. Within a society which has adopted and recognizes a written
constitution judges have good reason to respect that document and to adhere
to the law which it lays down, taking into consideration also the manner and
purposes of their own appointment – not as elected representatives charged
with the duty of enacting statutes – but as judges appointed by the
14
15
16
See, similarly, Keven Booker, ‘Review of Aroney, Freedom of Speech in the
Constitution’ (1998) 21 University of New South Wales Law Journal 967, 96970.
John Finnis, ‘The Truth in Legal Positivism’ in Robert George (ed), The
Autonomy of Law: Essays on Legal Positivism (1996).
On the positivist side, see, eg, Neil MacCormick, ‘The Ethics of Legalism’
(1989) 2 Ratio Juris 184; Tom Campbell, The Legal Theory of Ethical
Positivism (1996); Jeremy Waldron, ‘Normative (or Ethical) Positivism’ in
Jules Coleman (ed), Hart’s Postscript: Essays on the Postscript to the Concept
of Law (2001).
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government on account of their technical legal skills to adjudicate particular
cases in accordance with the law.
Now written constitutions, like all legal determinations, provide only a
measure of specificity, and none of them are self-interpreting. The meanings
of words and phrases must be understood; structures and relationships have
to be discerned; and the constitution’s provisions have to be applied to
particular and varying circumstances. While written constitutions serve to
provide a relative specification of the general principles under which a
society is to be ordered, the act of judgment required when judges exercise
judicial review itself involves a further degree of specification of the law as
it applies to the situation at hand. In this context, as I have argued
elsewhere, it is important to distinguish between several different forms of
constitutional interpretation commonly called ‘implications’. 17 Some
implications are little more than working out the strictly logical entailments
of the meanings of particular propositions and verbal formulations; others
involve attempts to give constitutional provisions a real-world practical
effect; still others entail the court injecting moral judgments about how
particular provisions should be understood or operate in practice; and some
so-called implications are nothing but the introduction of substantive moral
judgments without any discernable warrant in the text of the constitution at
all. Implications of the first and second kind are logically and practically
unavoidable; implications of the third kind undoubtedly occur, although they
involve the courts in making value judgments; implications of the doubtful,
fourth kind lack any specific justification in the constitution whatsoever; and
this goes likewise for instances where implications of the third kind are built
upon one another, especially when it is the extraneous normative judgment
in the first implication which provides the grounds for the second and
subsequent inferences.
This kind of analysis provides criteria for the assessment of the various
ways in which both federal and rights implications have been formulated by
members of the High Court of Australia.18 In relation to rights implications,
the most clearly illegitimate according to these criteria were the attempts by
Murphy J to reason, simply, from ‘the nature of our society’ to certain
fundamental rights, without an attempt to demonstrate that the characteristics
of the society to which he referred were in any way referable to the text of
the Constitution.19 Similiar was Mason CJ’s and Deane and Toohey JJ’s
invocation of the idea of popular sovereignty as the conceptual foundation of
17
18
19
Nicholas Aroney, Freedom of Speech in the Constitution (1998) 96-106;
Nicholas Aroney, ‘Implied Constitutional Rights: Implications and Inferences’
in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford
Companion to the High Court of Australia (2001).
Compare Nicholas Aroney, ‘Lost in Translation: From Political
Communication to Legal Communication?’ (2005) 28 University of New South
Wales Law Journal 833.
McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, 667-70.
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the Constitution as a whole.20 Slightly closer to the text of the Constitution,
but still incorporating ideas that were not to be found within its text or
structure, was the open-ended use of the idea of representative democracy by
the majority of the Court in the political communication cases. 21 Some
justices, however, came to prefer the more circumspect idea of
representative government and insisted that this idea could legitimately be
used only to the extent that the text and structure of the Constitution required
it, an approach which became the official stance of the Court in 1997.22 And
exercising the most restraint of all, Dawson J relied solely on the
requirement in ss 7 and 24 of the Constitution that members of Parliament
are to be ‘chosen’ by the people, and maintained that there could be a point
at which the wholesale restriction of communications about candidates for
office might prevent the voters from exercising the genuine choice referred
to in these provisions, but declined to say that this amounted in any sense to
an implied freedom of political communication.23
The first of these, reasoning from ‘the nature of our society’, is clearly
an instance of the fourth kind of supposed ‘implication’ explained above, as
it is not referable to the Constitution in any specific sense at all. Reasoning
from abstract ideas such as popular sovereignty and representative
democracy, although offered as a way of understanding the Constitution
itself is tantamount to the same thing, especially when these ideas are used as
the basis upon which further inferences are derived. By contrast, to reason
from the requirement in ss 7 and 24 of the Constitution that members of
Parliament are chosen by the people voting in elections to the proposition
that that choice must be genuine is no more than to give a substantive
meaning to the phrase ‘chosen by the people’, at most in the manner of a
relatively straight-forward third order implication. Presently, the court has
adopted a position between these two approaches, using the language of
20
21
22
23
Leeth v Commonwealth (1992) 174 CLR 455, 483; Cunliffe v Commonwealth
(1994) 182 CLR 272, 336; Australian Capital Television Pty Ltd v
Commonwealth (1992) 177 CLR 106, 138 (Mason CJ). For a discussion, see
George Winterton, ‘Popular Sovereignty and Constitutional Continuity’ (1998)
26 Federal Law Review 1.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106,
137–8 (Mason CJ), 149–50 (Brennan J), 168, 174 (Deane & Toohey JJ), 184–
5, 187–8 (Dawson J), 210–11 (Gaudron J); Nationwide News Pty Ltd v Wills
(1992) 177 CLR 1, 47–8 (Brennan J), 70–2 (Deane & Toohey JJ);
Theophanous v The Herald and the Weekly Times Limited (1994) 182 CLR
104, 123, 125, 130, 133, 137 (Mason CJ, Toohey and Gaudron JJ). See,
further, Tony Blackshield, ‘The Implied Freedom of Communication’ in
Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law
(1994), 240–5.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. See
Nicholas Aroney, ‘Justice McHugh, Representative Government and the
Elimination of Balancing’ (2006) 28 Sydney Law Review 505.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106,
180-9 (Dawson J).
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representative democracy and representative government but insisting that
the content ascribed to these ideas is no more than is required by the text and
structure of the Constitution. Whether this is a sustainable position to adopt
has provoked a great deal of debate.24
A similar analysis can be applied to the High Court’s federalism
jurisprudence. The implied immunity of the states from Commonwealth
interference,25 especially as it has most recently been articulated,26 arguably
rests simply on the proposition that the Constitution confirms the continuing
existence of the states and ascribes to them governing functions (ss 106 and
107) and that those functions involve, by definition, a capacity to determine
and implement government policy without significant external interference.
It is true that in some of the judgments in this area federalism has been
referred to in relatively abstract terms, seemingly divorced from the
language of the Constitution itself.27 But there are other passages in which
the idea is brought back to the Constitution’s explicit text28 and structure,29
and the implication is limited to what is necessary to preserve the continuing
24
25
26
27
28
29
Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of
Review and the Freedom of Political Communication’ (1999) 23 Melbourne
University Law Review 668; Coleman v Power (2004) 220 CLR 1, 46-53
(McHugh J); Adrienne Stone, ‘The Limits of Constitutional Text and Structure
Revisited’ (2005) 28 University of New South Wales Law Journal 842.
I here leave aside Commonwealth immunity from state interference as
developed in Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108
CLR 372; Re Residential Tenancies Tribunal of New South Wales; Ex parte
Defence Housing Authority (1997) 190 CLR 410.
Austin v Commonwealth (2003) 215 CLR 185.
Eg, Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 99 (Williams
J); Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 242-3
(Latham CJ); Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 216 (Stephen
J); Commonwealth v Tasmania (1983) 158 CLR 1, 129 (Mason J), 213
(Brennan J); Queensland Electricity Commission v Commonwealth (1985) 159
CLR 192, 205 (Gibbs CJ), 212, 214, 217-18 (Mason J), 222 (Wilson J);
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106,
163 (Brennan J); Austin v Commonwealth (2003) 215 CLR 185, 207 (Gleeson
CJ), 276-7 (McHugh J). But contrast Victoria v Commonwealth (1971) 122
CLR 353, 423-4 (Gibbs J).
Pirrie v McFarlane (1925) 36 CLR 170, 191 (Isaacs J); West v Commissioner
of Taxation (NSW) (1937) 79 CLR 319, 683 (Dixon J); Melbourne Corporation
v Commonwealth (1947) 74 CLR 31, 66 (Rich J); Re Australian Education
Union; Ex parte Victoria (1995) 184 CLR 188, 249 (Dawson J); Australian
Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 241-2
(McHugh J).
Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 70 (Starke J),
81-2 (Dixon J); Victoria v Commonwealth (1971) 122 CLR 353, 403
(Windeyer J); Re State Public Services Federation: ex parte Attorney-General
(WA) (1993) 178 CLR 249, 271-2 (Mason CJ, Deane and Gaudron JJ), 275
(Brennan J); Re Australian Education Union; Ex parte Victoria (1995) 184
CLR 188, 224-6 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh
JJ).
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existence of the states and the performance of their constitutional functions.30
Along these lines also is the recent decision of a majority of the Court to
deny that discrimination against the states is of itself sufficient to amount to
unconstitutional interference and that discrimination ought in itself to be an
independent ground of constitutional invalidity. 31 The way the implied
immunity has been expressed (if not also derived) has thus oscillated
between a fourth order ‘implication’ on one hand, and a third or second
order implication on the other. Undoubtedly, determining those cases in
which federal law or administration amounts to a sufficiently significant
interference with the capacity of the states to perform their constitutional
functions is a matter on which reasonable minds may disagree, but when
understood in a way that is closely tied to the text and structure of the
Constitution at least the task of determining whether this is the case is one
referable to the language of the Constitution itself.
As noted, Callinan J has given every indication that while he disagrees
with the implied freedom of political communication, he agrees with the
implied immunity of the states from federal interference. What, then, of his
approach to the interpretation of federal heads of legislative power in its
more mundane sense? Here, as has also been noted, Callinan J has often
been in the minority, reading federal heads of power in a relatively narrow
sense,32 against a majority defending an expansive interpretation of federal
power on the basis of the kind of interpretive literalism introduced into
Australian jurisprudence by the Engineers case in 1920.33 However, as I
have argued elsewhere,34 the approach to interpretation adopted in Engineers
lies not simply in a literal textualism, but in a decision to adopt a specific
theory of Australian federalism which is not the only theory defensible in
terms of the text, structure and intended operation of the Constitution.
30
31
32
33
34
Victoria v Commonwealth (1971) 122 CLR 353, 424 (Gibbs J); Queensland
Electricity Commission v Commonwealth (1985) 159 CLR 192, 206 (Gibbs
CJ); Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188,
229-30, 232 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ);
Austin v Commonwealth (2003) 215 CLR 185, 249 (Gaudron, Gummow and
Hayne JJ), 301 (Kirby J).
As was the conclusion of the majority in Austin v Commonwealth (2003) 215
CLR 185 (per Gleeson CJ, Gaudron, Gummow and Hayne JJ, as well as per
Kirby J although in dissent in the result). Compare Melbourne Corporation v
Commonwealth (1947) 74 CLR 31, 54-5 (Starke J).
New South Wales v Commonwealth (2006) 229 CLR 1, 246-385 (Callinan J);
XYZ v Commonwealth (2006) 227 CLR 532, 582-613 (Callinan and Heydon
JJ).
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28
CLR 129.
Nicholas Aroney, ‘The Griffith Doctrine: Orthodoxy and Heresy’ in Michael
White and Aladin Rahemtula (eds), Queensland Judges on the High Court
(2003).
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Moreover, as I have also argued,35 the abstract language in which heads of
legislative power are conferred upon the Commonwealth leaves open a great
deal to judicial interpretation; judges approaching such questions are left free
by this language to adopt either relatively narrow or relatively wider
interpretations of the scope of federal power; and neither approach is more
obviously ‘textual’ than the other. In adopting a relatively narrow approach,
Callinan J has proceeded in a manner which is no less consistent with the
Constitution than the majority.36
III
So much for the problem of constitutional interpretation as it relates to
both federal and implied rights jurisprudence. What about the problem of
constitutional design? As noted, the argument from reasonable disagreement
has until now been focused on the appropriateness of judicial review in
relation to individual rights, but the question now posed is whether it also
militates against federal and other forms of structural judicial review.37 To
determine whether this is indeed the case, it is necessary to attend closely to
the argument from reasonable disagreement. I therefore propose in this final
substantive section to focus on the argument as it has been formulated by
Jeremy Waldron and to assess whether the argument has similar implications
for federal judicial review. What I will contend is that the argument from
reasonable disagreement simply does not, and cannot, apply within a
federation in the same way that it does in a unitary state and that it has no
decisive bearing on the question of how federal disputes ought to be
resolved.
Waldron himself has suggested that judicial review may not be an
appropriate mechanism for resolving federalism disputes among ‘free and
democratic’ peoples. 38 But a close examination of his argument against
rights judicial review suggests that it is not, in fact, applicable to federal
judicial review. The reasons for this are several, and they begin with the
underlying assumptions of Waldron’s argument.
Waldron’s most
fundamental political commitment, with John Locke, is to the basic equality
of all human beings,39 and his essential method is to argue from a conception
of the equal rights of all individuals to the conclusion that all citizens should
have an equal say in the determination of political decisions affecting their
35
36
37
38
39
Nicholas Aroney, ‘Constitutional Choices in the Work Choices Case, or What
Exactly is Wrong with the Reserved Powers Doctrine?’ (2008) 32 Melbourne
University Law Review (in press).
Indeed, there are good reasons, embedded in the text, structure and intended
operation of the Constitution for adopting a relatively narrow approach to
federal heads of power. See ibid.
Stone, above n 11.
Waldron, ‘Core of the Case Against Judicial Review’, above n 9, 1358.
Jeremy Waldron, God, Locke, and Equality: Christian Foundations of John
Locke's Political Thought (2002).
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rights.40 In his most recent formulation of the argument in its ‘core’ form,
Waldron accordingly lays down several assumptions about the kind of
society which he has in view, and two of them especially reflect this
commitment to equality. First, Waldron posits a society which is essentially
democratic: a society that has a set of electoral processes and democratic
institutions which are operating in reasonably good working order and which
include, in particular, a representative legislature elected on the basis of
universal adult suffrage. Secondly, he stipulates that the members of the
society share a basic commitment to individual and minority rights.41 Both
of these assumptions obviously cohere closely with Waldron's essentially
Lockean commitment to the basic equality and equal rights of all human
beings.
Now while Waldron does not always spell it out explicitly, the structure
of these assumptions dictates a conception of political society as an
association of individuals who, from an original condition of fundamental
equality, agree to form a political society, and as a society agree to submit to
a particular form of government. The structure of this essentially Lockean
conception of political society and its government is inherently and
pervasively unitary and majoritarian, 42 something which Waldron
acknowledges and discusses. 43 Indeed, Waldron finds in Locke’s
majoritarian account of government a clear parallel to his own argument
against rights judicial review: while Locke considered the natural rights of
individuals to be ascertainable by reason, he also recognised the likelihood
of reasonable disagreement over the content of those rights, and looked to
the majoritarian decision-making processes of the legislature as the place
where such controversies ought to be resolved.44
Waldron’s argument is therefore focused upon and characterised by a
necessary, logical association between basic equality, human rights and
majoritarian decision-making processes. On this account, democracy is a
superior means of resolving political disputes, not just about anything, but
about the nature and scope of individual rights. (Disputes about rights are
assuredly a category which can be construed to encompass most political
disputes—but not all political disputes.) Waldron stipulates that the
decision-making procedure ought to be one which can be accepted by every
citizen who is affected by a decision concerning his or her rights. 45
Majoritarian decision-making processes, because they come closest to
40
41
42
43
44
45
Waldron, ‘A Right-Based Critique of Constitutional Rights’, above n 9.
Waldron, ‘Core of the Case Against Judicial Review’, above n 9, 1361-2,
1364-6.
See Nicholas Aroney, ‘Althusius at the Antipodes: The Politica and Australian
Federalism’ in Frederick Carney, Heinz Schilling and Dieter Wyduckel (eds),
Jurisprudenz, Politische Theorie und Politische Theologie (2004).
Waldron, above n 39, 128-31.
Ibid 131-4. See, also, Jeremy Waldron, The Dignity of Legislation (1999), ch
4.
Waldron, ‘Core of the Case Against Judicial Review’, above n 9, 1369-76.
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ensuring that the opinion of each citizen (or of each representative of the
citizens) is counted equally, entail the kind of decision-making rule which is
most consistent with the equal rights of the individual and are most likely to
be accepted by those persons affected by each decision.46
However, this fundamentally Lockean logic, founded upon a connection
between basic equality, human rights and majoritarian decision-making,
simply does not apply to the kinds of disputes which are characteristically
generated by federal structures of government; and this is so for two related
reasons. First, the Lockean social contract, like the Rawlsian original
position, is an intellectual construct devised for the purpose of deriving
normative conclusions about the nature and structure of a just political
society.47 Federations, and in particular integrative federations, however, are
founded upon actual agreements between the representatives of constituent
states. The historical and concrete character of federal agreements means
that their subject matter is of a different kind to that which is hypothesised
by social contract theory. Federations are historically negotiated agreements
generating historically contingent terms and conditions; social contracts are
intellectually-constructed mind experiments generating putatively normative
conclusions. Secondly, liberal political theory, especially the Lockean
variety to which Waldron generally subscribes, is essentially concerned with
unitary political societies, created through a hypothetical agreement among
rights-bearing individuals, and looks to democratically elected legislatures
making decisions by majority-rule as the most appropriate way to resolve
disputes over the meaning and scope of human rights. Federations, however,
while they may incorporate democratic processes and majority rule in certain
important respects, are obviously not unitary, and nor are they majoritarian
in any simple sense of the word. Rather, federations posit the continuing
existence of their constituent states as partially independent political
societies—which have agreed to form, for certain purposes, a larger political
society of which they will each become a part. The constituent units of a
federation are not a gathering of individuals wishing to unite for the better
preservation of their natural rights, but a collection of political societies
wishing to unite for the better preservation of their pre-existing powers of
local self-government. Federations are thus non-majoritarian in so far as
they come into being through a unanimous agreement among their
constituent states, as well as to the extent that, in terms of that agreement,
they establish a qualified form of majoritarianism, mixed with elements of
continuing unanimity.48 And because of this qualification of majority-rule
within federations, the equality of rights enjoyed by individual citizens is
likewise qualified. The separate existence of both federal and state
institutions of government and the division of competencies between them
46
47
48
Ibid 1386-95.
John Locke, Two Treatises of Government (1690); John Rawls, A Theory of
Justice (1971).
Under the Australian Constitution, for example, ss 51(xxxvii), (xxxviii) and
128 (para 5).
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means that citizens vote in different capacities at a state and federal level,
and their right to engage in the political process depends upon the particular
state in which they reside. Moreover, the special, and often equal,
representation of (the people of) each state in at least one of the houses of the
federal legislature means that individuals in different states do not, in that
respect, have equality of voting power. In these ways, federations are
special cases which do not strictly fall within the working assumptions of
Waldron’s ‘core’ argument.49
Waldron’s argument may indeed be applicable to controversies
concerning the political rights of individuals in federations in so far as these
rights can be coherently understood in terms of the Lockean logic of basic
equality, human rights and majoritarian decision-making. However, the
argument is simply inapplicable to disagreements concerning
characteristically federal issues, such as disputes over the interpretation of
the division of powers between a federation and its constituent states. Such
controversies are disputes over the terms of historical agreements negotiated
between representatives of constituent states. There may undoubtedly be
interpretive disagreement over the meaning of these compacts, but
Waldron’s argument, premised as it is on the normative Lockean logic of
basic equality, human rights and majoritarian decision-making, simply has
no bearing on the question of how federal disputes ought to be resolved.
Federal compacts are historically contingent agreements, and it is up to the
parties to the agreement to decide, essentially on prudential grounds, what
decision-making processes are best calculated to resolve disputes over the
allocation of powers in a manner that is considered fair and acceptable to all
concerned.
Indeed—and this follows from the foregoing—even if Waldron’s
argument were to be applied to federations (so that federal disputes ought to
be resolved by democratic means rather than by judicial review), it is not at
49
This is a matter of some moment for Waldron’s core argument even as it
relates to judicial review in individual rights cases, recalling that many of the
archetypical democratic states which he no doubt has in mind—such as the
United States, Canada, Germany and Australia—are federations. I do not
suggest that this necessarily undermines the argument as it relates to rights
judicial review, but it does suggest that some modification of the argument is
necessary to show how the federal qualification of individual equality does not
affect in any material sense the assumption of individual equality as far as
rights cases are concerned. How extensive the necessary adjustments to
Waldron’s argument need to be is not clear. Consider, for a start, that bills of
rights have a long-standing and vexed relationship to federalism (national
rights provisions may or may not apply to the states; state bills of rights do not
usually apply to the federal government). Consider also the special problem
posed by the question of equality of voting power in federal systems, on which,
see Nicholas Aroney, ‘Democracy, Community and Federalism in Electoral
Apportionment Cases: The United States, Canada and Australia in
Comparative Perspective’ (2008) 58 University of Toronto Law Journal (in
press).
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all clear which legislature within a federation should have the final decisionmaking power to resolve federal disputes over the allocation of legislative
and other governmental power. Should the federal legislature simply decide,
as it does in Switzerland? Should the state legislatures have a veto? Or
perhaps some kind of joint decision-making process should be adopted?
Alternatively, perhaps the issue might be resolved directly by the voters
through some system of initiative and referendum. But if so, which people:
of the states, of the federation, or somehow both? Each of these
mechanisms, or some permutation or combination of them, is a possibility,
but none of them is clearly required by Waldron’s line of argument when
applied to this problem. If we ask: which decision-making process is going
to satisfy the legitimate concerns of all individuals within the federation (no
matter where they reside), there is no clear answer. This is because the
legitimate interests of the individuals within a federation cannot be summed
up neatly in a majoritarian decision-making process (for federalism, as we
have seen, qualifies and complicates majoritarianism in several ways).
When applied to disputes over individual rights within the context of unitary
states, Waldron’s argument yields a relatively definite (majoritarian)
response, but when applied to federations, the answer is not clear at all.
Finally, even on the judicial review side of the question, there is a
problem in applying Waldron’s argument to the resolution of federal
disputes by the courts. The problem here lies in the fact that one of the
additional conditions of Waldron’s argument is that he excludes ‘weak’
judicial review (as in New Zealand) from consideration and only admits
judicial ‘dialogue’ (as in Canada) as a form of ‘strong’ judicial review on the
ground that its practical effect is to preclude an honest and effective
legislative response to a declaration of constitutional invalidity by the courts
(ie, under the notwithstanding clause of the Canadian Charter of Rights and
Freedoms).50 The additional problem in applying Waldron’s argument to
federal judicial review raised by this condition is that a court striking down a
federal statute on a particular topic leaves the state legislatures free to make
the same law. There remains, therefore, a democratic body constitutionally
able (if willing) to enact the law notwithstanding the judicial decision of
invalidity on federalism grounds.
Rights judicial review removes
contentious issues entirely from democratic and legislative competence. By
contrast, while federal judicial review certainly determines which democratic
institution is going to have the power to make the decision, the ultimate
50
Waldron, ‘Core of the Case Against Judicial Review’, above n 9, 1353-7. See
Canadian Charter of Rights and Freedoms, s 33. For a view contrary to
Waldron’s on this point, see Goldsworthy, above n 10, 80-82. For a critique of
‘weak’ judicial review, see James Allan, ‘The Effect of a Statutory Bill of
Rights Where Parliament is Sovereign: The Lesson from New Zealand’ in Tom
Campbell, K D Ewing and Adam Tomkins (eds), Sceptical Essays on The
Human Rights Act 1998 (2001) 375.
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decision still remains in democratic hands. On Waldron’s criteria, therefore,
judicial review of federal disputes is a ‘soft’ form of judicial review.51
All of this does not constitute a positive argument in favour of judicial
review of federalism disputes. As already suggested, the question of
precisely how a federal arrangement is best enforced and preserved raises
many complex questions of a largely prudential character. Most federations
use a combination of political and judicial safeguards, and it is difficult to
say, in the abstract, which combination is best calculated to enable a federal
system both to survive and to thrive. 52 Indeed, as has been seen, it is
something of a mistake to think about federal systems in abstract terms of
constitutional design without regard to the conditions under which they
come into being. And this is especially so of integrative federations, which
come into being through an agreement among the representatives of several
constituent states. 53 Integrative federations are formed through complex
processes of negotiation and agreement. And, as has been argued, this
process is an actual historical event—unlike the imaginary social contracts
and original positions of liberal political theory. Integrative federations, in
particular, emerge out of a set of preliminary constitutional and political
conditions which actually exist. Normative arguments in favour of
integrative federal systems must therefore depend, very substantially, on a
defense of these conditions and of the appropriateness of the constituent
states negotiating their way towards some agreed form of union.54 If this is
the case, however, it is out of place to apply an argument devised in response
to what is essentially a problem of normative liberal theory to the specific
problems raised by federal systems of government. At the point of
negotiating a federal constitution, the representatives of the constituent states
may choose among an array of possible institutional safeguards of both a
political and judicial character. These choices are properly influenced by
both prudential and normative considerations. But it is misplaced to apply to
these choices normative considerations premised upon the kind of
relationship between the individual and the state which prevails within a
51
52
53
54
It is no answer to respond that when a court strikes down a federal law it
removes the decision from the control of the representatives of a majority of
the entire federation and that this is the problem with federal judicial review.
To say that the decisively relevant majority is that of the federation as a whole
is to depart from federalism as it is actually embodied in most federal states.
For the reasons already recited, federations typically involve combinations of
federal and state majority decision-making procedures, neither of which are
treated as superior for all intents and purposes.
For a critique of the Australian High Court in this respect, see James Allan and
Nicholas Aroney, ‘An Uncommon Court: How the High Court of Australia has
undermined Australian Federalism’ (2008) 30 Sydney Law Review 245.
See Nicholas Aroney, ‘Formation, Representation and Amendment in Federal
Constitutions’ (2006) 54(1) American Journal of Comparative Law 277.
See, eg, Daniel Elazar, Exploring Federalism (1991).
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unitary society conceived of in Lockean terms. Federalism has its own
logic.
IV
This article began with an apparent paradox in the judgments of Justice
Callinan. While very ready to adjudicate on federalism issues, his Honour
was much less willing to do so in relation to implied rights. Under close
examination, however, the paradox has turned out to be much more apparent
than real. When understood as a question of constitutional interpretation, it
has been argued that what is important is that the power of judicial review is
exercised in a manner consistent with and constrained by the law of the
Constitution. In relation to constitutional implications, a distinction was
drawn between different degrees to which the final proposition in any
particular case can be shown to have been derived from the language of the
Constitution, and the High Court’s federalism and implied rights
jurisprudence was assessed in this light. Finally, in relation to the question
of constitutional design, it has been maintained that while the argument from
reasonable disagreement poses a powerful series of objections to judiciallyenforced bills of rights, the argument does not, and cannot, apply in the same
way to the judicial review of federal disputes.
Justice Callinan’s approach to constitutional jurisprudence has placed
him in the minority in cases involving both federalism and individual rights.
It has been one of the central objectives of this article to demonstrate,
however, that Callinan J’s approach, while it presents an apparent paradox, is
not in any sense self-contradictory or inconsistent.