THE CHALLENGE FOR COURTS IN A MODERATELY RIGID CONSTITUTION.

• Date: 01 April 2021
• Author: Stephenson, Scott
• Published date: 01 April 2021
• Author: Stephenson, Scott

CONTENTS I Introduction II What Is a Moderately Rigid Constitution? III Does Australia Have a Moderately Rigid Constitution? IV The Burden of Justification V The Effect of Highly Flexible and Highly Rigid Constitutions A Highly Flexible Constitutions B Highly Rigid Constitutions VI The Effect of Moderately Rigid Constitutions VII The Australian Experience VIII Conclusion I INTRODUCTION

The challenges with constitutions that are exceptionally easy and exceptionally difficult to amend are well-known. (1) Highly flexible constitutions are vulnerable to instability (ie constant revisions to the system of government) and abuse (ie elected officials using formal amendments to entrench themselves in power). Highly rigid constitutions are vulnerable to the 'dead hand of the past' problem (ie the inability of the people to revise their system of government) and unnecessary replacement (ie the need to resort to disproportionate measures to update the constitution). Comparatively little is understood about the challenges that may arise with moderately rigid constitutions--constitutions that are neither highly flexible nor highly rigid.

The purpose of this article is to examine an underappreciated challenge for courts that can arise in a moderately rigid constitution. Courts are often faced with decisions about whether or not to develop the constitution--for instance, to adopt a new interpretation of a provision, or to imply a new rule or principle into the text. For many of these decisions, the counter-majoritarian difficulty potentially looms large in the calculus. Take, for instance, the decision to develop the constitution by implying a new right or freedom into the constitution or by considerably expanding the scope of an existing one. This type of decision amounts to a transfer of power from an elected arm of government (the legislature) to an unelected arm of government (the judiciary) to resolve an issue that is subject to reasonable, good faith disagreement. The counter-majoritarian difficulty provides grounds for challenging the legitimacy of this decision on the basis that issues over which there is reasonable, good faith disagreement should be resolved by the arm of government that represents members of society on the most equal basis--that is, by the legislature, not the judiciary.

Highly flexible and highly rigid constitutions reduce the strength of the counter-majoritarian difficulty. A highly flexible constitution does so by reducing the counter-majoritarian effect of the judiciary's decisions. The majority is able to reverse those judicial developments with which it disagrees by means of formal amendment. A highly rigid constitution does so by supplying a response based on the concept of necessity. The impossibility or near impossibility of formal amendment means it is possible to claim that it is necessary for the judiciary to develop the constitution because it is the only institution capable of doing so--judicial development is, despite its problems, normatively superior to constitutional obsolescence.

By contrast, in a moderately rigid constitution the counter-majoritarian difficulty has considerable strength because formal amendment is sufficiently unavailable to undermine the claim that it is a plausible means of reversing those judicial decisions with which the majority disagrees. Furthermore, necessity cannot be invoked to answer the counter-majoritarian difficulty because formal amendment is sufficiently available to undermine the claim that, without judicial development, the constitution will atrophy. In a moderately rigid constitution, therefore, formal amendment forms part of the normative case against judicial development of the constitution because it is neither reversable nor necessary.

At the same time, a moderately rigid constitution places considerable practical demands on the judiciary to develop the constitution--that is, the constitution's rigidity makes it challenging for the judiciary to avoid the issue by simply declining to develop the constitution. A moderately rigid constitution is sufficiently difficult to amend such that many developments are unlikely to occur unless the judiciary undertakes them. While it cannot plausibly be claimed that the judiciary is the only institution capable of developing the constitution, in practice there may be few other available ways of achieving the types of development that give rise to the counter-majoritarian difficulty (ie the creation and expansion of rights and freedoms that limit the scope of legislative power). For those judges that are of the view that the constitution requires development, they are faced with the stark reality that, if they do not bring about developments of this type, no one else likely will.

The article thus argues that a moderately rigid constitution is apt to place the judiciary in a difficult constitutional position in two respects. First, a moderately rigid constitution subjects the judiciary to competing practical and normative demands. While the constitution's rigidity weakens the normative basis for the judiciary to develop the constitution to, in particular, impose novel limits on legislative action, it also generates considerable practical demand for the judiciary to undertake such developments. Second, a moderately rigid constitution introduces an additional point of uncertainty into constitutional law. As its degree of rigidity is fundamentally ambiguous, it can support diametrically opposed conclusions. With a moderately rigid constitution, it is possible to interpret formal amendment as largely available--it is difficult, but not impossible --and therefore conclude that it is illegitimate for courts to develop the constitution (ie development should be left to formal amendment). However, it is also possible to interpret formal amendment as largely unavailable--it is difficult even if not impossible--and therefore conclude that it is legitimate for courts to develop the constitution (ie it is not practicable to leave development to formal amendment). The article illustrates these two difficulties by reference to Australia's experience with a moderately rigid constitution.

The article proceeds in six principal Parts. Part II sets out the definition of a moderately rigid constitution. Part III explains why Australia has a moderately rigid constitution. Part IV provides an overview of the burden of justification that is imposed on courts when they develop the constitution. Part V evaluates how highly flexible and highly rigid constitutions help meet that burden of justification. Part VI considers how a moderately rigid constitution makes it harder to meet the burden and how this places the judiciary in a difficult constitutional position. Part VII demonstrates how this challenge can be seen in the Australian experience. The conclusion briefly discusses whether this argument affects the desirability of a moderately rigid constitution from the standpoint of constitutional design.

II WHAT IS A MODERATELY RIGID CONSTITUTION?

Before discussing the challenge that arises with a moderately rigid constitution, it is necessary to say something about what amounts to a moderately rigid constitution for the purposes of this article. Constitutional rigidity can be mapped along a spectrum that spans from highly flexible to highly rigid. Highly flexible constitutions are those where it is only slightly more difficult to bring about formal amendment to the constitution than it is to bring about the enactment of ordinary legislation. Highly rigid constitutions are those where it is almost impossible to bring about formal amendment to the constitution. Moderately rigid constitutions refer to those that are towards the middle of the spectrum where it is neither easy nor almost impossible to bring about formal amendment to the constitution. Two points need to be made about this definition.

First, the definition is deliberately imprecise. As is well-known, it is not easy to evaluate the rigidity of constitutions. (2) Evaluations will depend on whether rigidity is assessed by reference to the frequency of formal amendment, the significance of formal amendments, or some combination of the two. The task is 2 further complicated by the fact that in some countries different parts of the constitution are subject to different levels of entrenchment. (3) The difficulty of measuring constitutional rigidity is reflected in the fact that a number of political scientists have attempted to comparatively evaluate the phenomenon and each has arrived at a different set of rankings. (4) Given this difficulty, this article does not propose to place constitutions into very precise categories, especially because it is not necessary for the purposes of the argument. As will be seen below, the argument is developed through a process of exclusion--the challenge this article discusses arises in constitutions that are neither highly flexible nor highly rigid.

Second, the definition focuses on the rigidity of constitutions in practice, not the rigidity of formal amendment procedures. It is well-known that there is a difference between the two types of rigidity because constitutional design choices do not fully determine the operation of constitutions in practice. A moderately rigid formal amendment procedure may not necessarily produce a moderately rigid constitution in practice. A moderately rigid constitution in practice may not necessarily have a moderately rigid formal amendment procedure. (5)

The reason for focusing on practical rigidity is that the experience with formal amendment is ultimately what drives conclusions about constitutional rigidity. It would, for instance, make little sense to describe a constitution as highly rigid if, in practice, it was frequently amended. It is particularly important to focus on rigidity in practice for the purposes of this article because it is the lived experience with formal amendment that...