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Sydney Law School Legal Studies Research Paper No. 11/26 April 2011
Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution Helen Irving This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1800484.
Electronic copy available at: http://ssrn.com/abstract=1800484
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Counterf actual Consti tuti onal i sm: The A meri can Ci vi l War and the Frami ng of A ustral i a’ s Consti tuti on H el en I rvi ng, Facul ty of Law , The Uni versi ty of Sydney
A ll H istory takes on the appearance of inevitableness after the event. Looking backw ard the future w ill be tempted to say that A ustralian Union w as A ustralia's destiny from the first and that nothing could have prevented its consummation. But if this be true, it is certainly not true of its present accomplishment, w hatever might have resulted in later times, hereafter, w ith other men and other means.1
I ntroducti on Counterfactual history-- the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events --is a controversial business. It attracts and repels in equal measure. The critics range from the mild to the furious. E.H . Carr, for example, described counterfactualism as a “ parlor game” and a “ red herring.” 2 M ichael Oakschott, at the other extreme, denounced it as “ a monstrous incursion of science into the w orld of history.” 3 In the other camp, enthusiasts, applaud counterfactualism both for its epistemological value and its utility. M ax Weber thought counterfactualism unavoidable in historical analysis.4 N iall Ferguson claims that it illuminates contingency, recognizes chaos, and is a corrective to determinism, either supernatural or positivist. Counterfactuals, he w rites,
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Richard Lebow vigorously promotes the practice.
combat the deeply-rooted human propensity to see the future as more contingent than the past, reveal contradictions in our belief systems, and highlight double standards in our moral judgments. Counterfactuals are an essential ingredient of scholarship. They help determine the research questions w e deem important and the answ ers w e find to them. They are also necessary to evaluate the political,
Alfred Deakin, The Federal Story (Melbourne: Robertson & Mullens, 1948), 172. What is History? (Harmondsworth: Penguin Books, 1961), 97, 98. Objections are helpfully surveyed by Niall Ferguson, in the introduction to his edited collection, Virtual History: Alternatives and Counterfactuals (New York: Basic Books, 1999). 3 Quoted by Ferguson, Virtual History, 7. 4 Weber, The Methodology of the Social Sciences (Glencoe: Free Press, 1949). 5 Ferguson, Virtual History, 28. 1 2
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2 economic, and moral benefits of real-w orld outcomes. These evaluations in turn help drive future research.6 But can the know ledge generated by counterfactual history have a real-w orld, functional application? Is it possible to use w hat w e learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Can w e identify causative flaw s in history and alter or reconfigure them, to (re)construct the future, not only hypothetically but in reality? Constitution-making, I w ill argue, provides us w ith one answ er. It is a process in w hich counterfactual thinking is valuable; indeed, it is unavoidable. Some methodological foundations are needed, how ever, if this is not merely to be a “ parlor game.” Counterfactualism for real is a risky business; its conclusions must be coherent and persuasive. It requires rules. On the other hand, the rules cannot be “ scientific” or rigid. Sylvan and M ajeski set out a methodology draw n from the language of logic and calculus, in w hich the relationship betw een essential properties and contingent properties (of the event that, counterfactually, might have turned out differently) can be plotted and the probability of alternative counterfactuals calculated.7 Such precision, as w e shall see, is neither necessary nor possible for constitution-making. But neither is the recourse to simple imaginative scenarios of use in testing alternatives. A level of “ reality” is essential, even w here the reality of a past counterfactual moment is to put to the service of a future counterfactual moment. Plausibility is critical. Counterfactualism in history, Ferguson explains, is only useful if the alternatives it considers are draw n from “ the options and data actually available to the figures in question at the time.” 8 The counterfactual historian “ should consider plausible or probable only those alternatives w hich w e can show on the basis of contemporary evidence that contemporaries actually considered.” 9 Geoffrey H aw thorn also emphasizes the importance of plausibility in both the counterfactual antecedent and consequent, and w arns that the counterfactual end-point “ should not require us to alter so much else in the present as to make it quite a different place.” 10 Similarly, the antecedent actions of agents must not be re-draw n to the point w here the agents w ould cease to recognize or acknow ledge themselves. But, H aw thorn suggests, “ the constraints on the consequences w e can draw from the starting points are
Richard Ned Lebow, “What’s so Different about a Counterfactual?,” World Politics 52 (2000): 550. 7 David Sylvan and Stephen Majeski, “A Methodology for the Study of Historical Counterfactuals,” International Studies Quarterly 42 (1998): 79-108. 8 Ferguson, Virtual History, 2. 9 Ferguson, 86. 10 Hawthorn, Plausible Worlds: Possibility and Understanding in History and the Social Sciences (Cambridge University Press, 1991), 165. 6
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3 not so tight. Causal conditions can change, and even characters, before they die, can alter, or at least alter their beliefs.” 11 For M artin Bunzl, even implausible alternative antecedents can be tested against the plausibility of the counterfactual consequent, and thus, historical “ determinism” (denounced by Ferguson) has its place. 12 While Ferguson rejects the type of counterfactualism that attempts empirically to test historical hypotheses on the ground that it makes anachronistic assumptions, Bunzl suggests that experiments are possible. H istorians, he concedes, are not scientists, but this is not necessarily fatal: “ Lacking a laboratory, the next best thing for historians to resort to is comparative history, and w hile those comparisons are far too messy to allow for just one difference, under some circumstances they can yield a basis for causal claims.” 13 It is w ith these sorts of counterfactuals--plausible, but flexible comparisons, “ experiments” made under real circumstances--that this paper is concerned. It accepts that history is an account of causes, not “ causal” in the sense of describing an inevitable relationship betw een antecedent and consequent, but in describing a relationship of significance and sequence.14 The w ork of constitution-makers is, I argue, frequently, even unavoidably, counter-factual. Constitution-makers must proceed w ith a high level of both indeterminacy and confidence about causation, but at the same time they cannot embrace determinism. This is precisely w here historical evidence, including the plausible historical counterfactual, can come to their aid. They have to build their constitution as “ sailors w ho must rebuild [their] ship at sea.” 15 But they cannot do this if they know nothing about how ships have been built in the past, including how the w ork of ship-builders has failed; nor can they simply contemplate an already completed ship w ithout asking: How did that get there? M y argument for “ counterfactual constitutionalism” is illustrated by a particular design dilemma faced by the framers of A ustralia’ s Constitution in the last decade of the nineteenth century. The dilemma, briefly, w as this: In w riting a Constitution to federate the six A ustralian colonies, the A ustralian framers borrow ed significantly from the United States Constitution. They admired in particular the A merican model of federalism, and considered it w ell suited to their needs and interests. A t their first Hawthorn, 166. Martin Bunzl, “Counterfactual History: A User’s Guide” The American Historical Review 109 (2004): 845-158. 13 Bunzl, “Counterfactual History”, 856. 14 There are, of course, other types of history than the lineal--for example, social history that seeks to recreate a particular social or cultural context, or oral history, in which the past is reconstructed through memory-based accounts. But, as soon as there is any attempt to explain what happened in the past, there will be a necessary and unavoidable recourse to a causative account. 15 Metaphor from Otto Neurath, employed by Quine, cited by Bunzl, 858. 11 12
4 decisive meeting, in M elbourne in 1890, they committed themselves to follow ing it. But they also knew that this attractive federal package had suffered a catastrophic failure less than thirty years earlier. Were they setting themselves up for a repeat of history? If w hat had caused the A merican Civil War had a constitutional character, w hat might they do to retain the federal model but alter the design, and thus avert a future tragedy? Despite disagreement over the historical causes of the Civil War, the framers of the A ustralian Constitution w ere sufficiently convinced of the risks in A merican federalism to take this counterfactual challenge seriously. They adopted w hat they believed to be a constitutional solution. Did they succeed? Their strategy w as put to the test some thirty five years later, w hen one of the states, Western A ustralia, attempted to secede from the A ustralian federal union (the “ Commonw ealth of A ustralia” ). The Western A ustralians pursued constitutional avenues. They w ere unsuccessful. N o w ar or other emergency follow ed. Their failure, and the success of the Commonw ealth in holding together w ithout conflict prompts my final counterfactual question: Did the A merican Civil War prevent an A ustralian civil w ar?
The uti l i ty of counterf actual hi story In some respects, the hostility to counterfactualism is puzzling. Functional counterfactualism is, in a very ordinary sense, commonplace. M uch engineering is fundamentally counterfactual.16 Past construction failures are analyzed for design flaw s, on the counterfactual understanding that a failure w ould not have occurred had the design been different. These counterfactual lessons are then integrated into design modifications. Simulations prior to implementation, or in strategic anticipation of future events, are also common.17 M ilitary strategy is deeply conditioned by counterfactual thinking, and such practices are routine in many other realms. Indeed, it is broadly descriptive of human (even animal) behavior to say that w e learn counterfactually; w e learn not to repeat our mistakes, by implicitly hypothesizing that our past behavior, absent w hat w e identify as the antecedent of the mistake, w ould have given us a different, and a better or preferable, outcome. Law -making is also implicitly counterfactual. Identifying the “ mischief” that a new or amended law is intended to overcome, assumes both a continuation of the mischief in the absence of the new law and an implicit hypothesis that, had the gap or defect in the law been filled in the past, a preferable, alternative outcome w ould have resulted. Legal reasoning is also frequently counterfactual. The common law test for negligence rests upon a counterfactual proposition underpinning the principle of Bunzl, “Counterfactual History”, makes a similar point in setting out the reasons for the collapse of the first Tacoma Narrows Bridge in 1940. 17 Lebow, “What’s so different about a counterfactual?”, gives an example of anticipatory counterfactualism prior to a failure that never happened, that is, running an experiment, assuming a design flaw, in order to anticipate its effects, illustrated by the simulations in anticipation of “K21” global computer system failure before 1 January 2000. 16
5 causation.18 Duty of care, tests of proximity and foreseeability, and the principle of restitutio in integrum construct a linear counterfactual narrative: that the injury suffered could have been foreseen; that an injurious outcome may be attributed to a single, unintentional act (often of the kind that people commit routinely w ithout tortious consequences); that the tortfeasor’ s actions might be rew ound in the imagination to the moment before the tort occurred; that potential tortfeasors might pre-empt or avert the causal sequence by contemplating its happening for real, and then removing the cause or altering the causal antecedent. The novus actus interveniens that breaks the “ chain of causation” stands as a competing historical narrative, ready to test the counterfactual scenario, to uncouple the antecedent and consequent. It is, indeed, broadly impossible for any legal “ corrective” that relies upon a theory of either anticipatory or restorative causation not to rest upon counterfactual reasoning. H istory, too, is counterfactual. Indeed, as many counterfactual historians have noted, an implicit counterfactual judgment lies in any assertion of historical causation. Implicit alternative outcomes shape the explanatory and narrative character of the discipline. E.H . Carr, as w e saw , w as an anti-counterfactualist. Consider, how ever, Carr’ s account of “ historical facts.” 19 What makes a particular event interesting, w hat turns it into a historical fact, he w rites, is its contribution to, or significance for, a larger event or process. H ow do w e identify the historical fact? H istorical facts are singled out from the multitude because they are causative, or generative of significant outcomes (or so the historian must demonstrate); they are markers on the historical map. “ The study of history,” w rote Carr, “ is the study of causes.” 20 A fact becomes a historical fact because it gave rise to a significant outcome; w ithout it, a different outcome w ould have occurred. To give one example, w e can be certain that hundreds of fires (maybe more) have broken out in bakeries in London over the centuries, but one particular fire only (in a bakery in Pudding Lane) gave rise to the great fire of London, and for that reason that particular fire is interesting. We cannot imagine its historical significance, and w e cannot select it as a historical fact, w ithout a sense of an alternative universe, w ithout an alternative truth claim, and w ithout an implicit counterfactual scenario, in w hich the great fire did not happen.
“But for” might, indeed, be the title of a counterfactual history, competing with the overworked What if?, For example: What If?: Eminent historians imagining what might have been; Essays by Caleb Carr et al, ed. Robert Cowley (New York: G.B. Putnam’s Sons, 2001); Nicholas Rescher, What if?: Thought Experimentation in Philosophy (Rutgers: Transaction Publishers, 2005); What If?: Australian History as it might have been, ed, Sean Scalmer and Stuart Macintyre (Melbourne: Melbourne University Press, 2006). 19 Carr, What is History? 20 Carr, What is History?, 87. 18
6 H istory that lacks a counterfactual premise may w ell be w hat W. G. Runciman calls a “ report,” rather than “ description” involving explanation.21 It may also simply be parasitic on other historians’ counterfactuals (refusing to engage in historical interpretation of the significance of events, but draw ing its material from others w ho have chanced their arm). H ow ever, to the extent that this is true, it may be merely analytically true. If history is unavoidably counterfactual, then there is nothing particularly interesting about counterfactual history. What, then, is the relevant difference between “ ordinary” history, and counterfactual history? It cannot merely be a matter of use. For one, the question of utility might be asked about history tout court . If, as Carr insists, the value of history lies in its record of w hat happened (not w hat might have happened), w e might just as easily question the usefulness of know ing w hat actually happened. It’ s over. It’ s spilled milk.22 But if w e can learn about present and future conduct from learning about w hat happened, w e are back in the counterfactual paddock. Why can w e learn about the future from learning about the past? Because w e can learn about the choices that face us now , in anticipation of the transformation of the present into past history, and w e can learn about alternative probable outcomes, from seeing how choices gave rise to concrete outcomes in the past. A nd in order to see this, w e need to have a sense of the counterfactual. The differences betw een “ ordinary” history and counterfactual history diminish as the plausibility of the counterfactual increases. 23 The difference betw een counterfactual history and “ counterfactual constitutionalism” should, how ever, be clearer: the counterfactual scenario not only has to stand up to certain historical standards of evidence applied to the past, but the pre-emptive counterfactual (in constitution-making) must stand up to the test of plausibility in the future.
Geoffrey Hawthorn draws attention to this, in his account of counterfactualism. In Hawthorn’s words, paraphrasing Runciman, “reports” are “uncontested characterizations of what presents itself for explanation” (W.G. Runciman, A Treatise on Social Theory: The Methodology of Social Theory, 1983.), Hawthorn, Plausible Worlds, 169. 22 Ferguson notes the “no crying over spilled milk” objection to counterfactual history; that is, the objection to imagining any alternative to things that cannot be reversed. But surely there is every point in crying over spilled milk; one should not or at least need not cry over what can be reversed, or recovered! And this, in a sense, is the point of counterfactual constitutionalism, among other forms of learning from historical mistakes. 23 We also need a sense of scale. Kiser and Levi draw attention to this. Cotenability– the demonstration that the antecedent logically implies the consequent – they write, “is more likely the smaller the change proposed by the counterfactual.” Edgar Kiser and Margaret Levi, “Using Counterfactuals in Historical Analysis,” in ed. Philip E. Tetlock and Aaron Belkin, Counterfactual Thought Experiments in World Politics (Princeton: Princeton U.P. 1996), 195. For constitutionmakers, however, there is no option. The choices they make must involve both the micro- and the macro-level counterfactual scenario. 21
7 Law yers and hi stori ans It is rare for counterfactualism to be applied to legal scenarios24 (other than in legal reasoning itself). Why is this? Perhaps, on the one hand, the conclusions w ould be tautological or trite.25 Perhaps the reason is larger and more complex, having something to do w ith the w ay historians and law yers w ork and/ or fail to recognize commonalities in each others’ disciplines. But w hatever the reason, it is unlikely to lie in law yerly zeal in defending the purity of history. There is no shortage of law yers making use of (noncounterfactual) history, or of historians (or historically-minded legal academics) pointing out the shortcomings--including methodological sloppiness, lack of thoroughness, and tendentiousness--in how they do it. Law yers, M artin Flaherty says, are loose w ith accuracy; they are politically-motivated; they use insufficient sources; they produce history lite.26 In response, Cass Sunstein has advanced a defense of w hat he calls “ useable” history. 27 A lthough historical accuracy and other “ duties of fidelity to the past” are still demanded of law yers, w rites Sunstein, it is important to recognize that law yers and historians are doing different things w ith history. They are asking different questions and serving different causes: “ The constitutional law yer interested in history need not be a politically motivated scavenger of real historical w ork, but a different sort of creature altogether, w ith a special and not dishonorable function.” The law yer’ s interpretation of historical events associated w ith the constitution must be disciplined. H ow ever, unlike the historian’ s, it is directed to the making of “ political or moral sense …to current generations.”
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In one of the rare other examples to consider constitutional design counterfactually, Robert A. Shapiro asks, first, would constitutional law have changed much “if the words ‘equal protection of law’ were removed from the Fifth Amendment?” He concludes: “Presumably, not very much.” He also asks: “What if the drafters of the Eleventh Amendment had specified that the provision barred only suits against states by citizens of other states?” and answers: “Again, res ipsa loquitur. In neither instance has the particular constitutional language proved especially significant.” Shapiro then goes on to ask a “grander” question: what if President Roosevelt’s plan to “pack” the Supreme Court had succeeded? The difference, he concludes, would have been less significant than many imagine: “if one looks for constitutional revolutions, particular nominations are dinosaurs, mattering much less than the fluttering political realities.” “Must Joe Robinson Die?: Reflections On The “Success” Of Court Packing”, 16 Constitutional Commentary (1999) . See also Win-Chiat Lee, “Statutory Interpretation and the Counterfactual Test for Legislative Intention Author(s),” Law and Philosophy, 8, (1989): 383-404. 25 Providing us with such trite observations, as: if the death penalty had been abolished in Australia before 1967, Ronald Ryan (the last person to be executed in Australia) would not have been executed (at least not in Australia). 26 “History ‘Lite’ in American Constitutionalism,” Columbia Law Review 95 (1993): 523590. 27 Cass Sunstein, “The Idea of a Useable Past,”Columbia Law Review 95 (1995): 601-608. 28 Sunstein, “The Idea of a Useable Past,” 602. Emphasis added. 24
8 There is, thus, a division of labor; but also a difference in purpose. Sunstein defends the “ useable past” in the construction of a legally persuasive argument. H e does not apply it specifically to law -making or constitution-making. H is general point is sound, how ever. A ccuracy is important, but the historian’ s maxim “ accuracy is a duty, not a virtue” is more than a platitude to the law -maker or constitution-maker. Consider again the fire in Pudding Lane. This fire w as the cause of one of the most dramatic events in England’ s history. It may also have been relevant to the legal history of English public safety standards. Possibly it led to new regulations governing the use of fires and ovens in commercial premises in London. If so, it does not really matter w hether the fire that started it all w as in Pudding Lane, or in another lane. For the record of history, it w ould be a jolt to learn that the little fire that kindled the Great Fire started elsew here, but, for the law , the required level of historical accuracy required is only in identifying an unregulated commercial fire as the relevant antecedent. Law -makers concerned w ith preventing a recurrence w ould assume that, had relevant regulations been in operation before September 1666, the great fire may have been averted. Their counterfactual logic w ould suggest that the regulations that might have prevented the fire in the past w ould be likely, if adopted, to prevent a fire in the future. For this prospective counterfactual scenario, it does not matter in w hich bakery or w hich lane the fire started, and it does not matter w hether the law -makers got the lane w rong, or w hether the Great Fire of London might still have ocurred, either in the past or the future (for example, resulting from the fire that destroyed the H ouses of Parliament in London in 1834) even w ith the regulations in place. A ccuracy and predictability are closely related, but the (legal) counterfactual scenario has only to pick up the relevant plausible causes tied to the project of law . Just as new law s are required follow ing events such as the Great Fire, new constitutions must sometimes be w ritten: w hen new states come into being through w ar or federation; w hen a regime changes; w hen an existing constitution breaks dow n or fails to resolve fundamental conflicts, or loses legitimacy. In such cases, there is no alternative to making institutional choices. N o matter how aspirational, a constitution, if it is to be a constitution, must come off the draw ing-board and operate. This imperative places its framers under pressures w hich w riters w ho w ork in other genres can avoid. H ard choices confront constitution-makers; design flaw s may prove as catastrophic as those responsible for engineering failures. The design of a country’ s constitution is not at large, and the choices constitution-makers have before them are not unconstrained. Their w ork is shaped and constrained by many uncontrollable factors: the characters, skills, and stamina of the individuals involved; the range of cultural options available; the political climate; the need for compromise, and more. Choices w ill be influenced by the information available, among other things, about other countries’ constitutional histories. To the extent that they draw upon, or borrow from, existing constitutions, constitution-makers are in a counterfactual moment.
9 N o constitution-maker w orthy of the title w ould start w ith a blank slate, w ithout know ledge of both the history of the projected constitutional community and of the history of other constitutions in the w orld, including in the country’ s ow n past. Existing constitutional histories may be happy; they may be tragic. 29 Claims of historical causation w ill be unavoidable; constitution-makers w ill need to decide w hether the inclusion or exclusion of a particular provision w as a (or the) source or “ cause” of either tragedy or felicity. They w ill need to w ork, as Ferguson suggests, w ith plausible alternatives, based on choices available at the time, both the time at w hich pre-existing constitutions w ere w ritten, and that in w hich they now find themselves, w riting a new one. The A merican Civil War w as a tragedy.30 In the eyes of some historians, it w as a constitutional tragedy, or “ constitutional crisis.” 31 For the framers of A ustralia’ s Constitution, it w as a constitutional tragedy that could have been avoided. Whether or not they w ere correct in their assessment of either the cause of the Civil War or of w hat might have prevented it, is not the subject of this paper. M y concern is the explanation they provided for themselves, in the process of seeking to pre-empt an Australian civil w ar
The cri ti cal choi ce The A ustralian Constitution w as framed in the last decade of the nineteenth century in a process that began in 1890, w ith a conference in M elbourne, at w hich the representatives of seven colonial legislatures committed their colonies to pursuing a full, federal union under a w ritten constitution. 32 A t this initial conference, the critical choice w as made to adopt a federal model. The A ustralians closely studied the several alternatives currently in practice in the w orld, tw o of w hich--the Canadian and the A merican--w ere the only serious contenders. A s a Constitution for a federation w ith parliamentary government “ under the Crow n” of Great Britain, Canada’ s British North America Act (1867) w ould appear to have fit the A ustralians’ purpose w ell. A ll seven colonies had already adopted “ responsible
But what did George Eliot say? The happiest nations have no history. Tragically, there may be something in this. 30 And, it appears, the very type of tragedy that attracts counterfactualism. Robert Fogel: “Every historian who has set out to deal with the causes of the Civil War … has implicitly or explicitly presumed what would have happened to slavery if some events had unfolded in a way that was different from the actual outcome.” Without Consent or Contract: The Rise and Fall of American Slavery (New York: Norton, 1989),413 31 Kenneth M. Stampp, ‘The Concept of a Perpetual Union’, The Journal of American History 65 (1978): 5-33 32 There had been earlier attempts, each unsuccessful, to get the federation process moving. The most serious a federal “authority,” known as the Federal Council of Australasia, created in 1885. It had failed for reasons that draw parallels with America’s Articles of Confederation. 29
10 government” in their ow n constitutions, and all retained their link to the Crow n. With the exception of Western A ustralia (granted self-government in 1890) all the colonies had practiced this form of government since the mid-nineteenth century. It might seem natural that they w ould follow the one constitutional model already in operation in w hich the Westminster system had been incorporated into a federal system. This w as not, how ever, to prove the majority view . Delegates from the smaller colonies w ere quick to denounce the Canadian alternative, w ith unequivocal assertions that their colony w ould never agree to federate along such lines. So pow erful w as their rhetoric that the Premier of the largest state, N ew South Wales, and leader of the Federal Conference, H enry Parkes,33 having opened the Conference w ith a reference to the virtues of follow ing Canada, now quickly declared that he had never suggested such a thing. The reasons for this hostility are complex,34 but the core objection w as simple. Canada, to A ustralian eyes, w as too centralized. Unlike in the United States, the British North America Act included enumerated pow ers for both the federal and the provincial legislatures, w ith the residue of pow ers left to the federal legislature. Canada’ s federal government, so the A ustralians thought, w as thus, excessively pow erful, the provinces correspondingly w eak. This constitutional imbalance, they told themselves, resulted from an over-reaction on the part of the Canadians to the A merican Civil War, w hich had been concluded only tw o years before the passage of the British North America Act . Canada, the A ustralians said, had opted for a pow erful federal government to ensure national control against the sort of federal disunion it had w itnessed south of its border. But, setting this historical example aside, the 1890 A ustralian Conference, dominated by states’ rights proponents from the smaller colonies, roundly preferred the United States Constitution. Follow ing the M elbourne Conference, a full Federal Convention convened in Sydney in early 1891. There, the name “ Commonw ealth” w as chosen for the future federated A ustralia,35 and a full --indeed polished--draft of the A ustralian Constitution w as completed. Tasmanian delegate, A ndrew Inglis Clark, one of its primary authors and amateur of all things A merican, led the campaign for A ustralia to follow the A merican model in the Constitution’ s design. Ten years later, he w as to w rite: 30 1815-1896. Five times Premier of New South Wales, and the most powerful of the colonial leaders in the second half of the nineteenth century. He died before Australia’s federation was completed. 34 See Helen Irving, “Sister Colonies with Separate Constitutions: Why Australian Federationists Rejected the Canadian Constitution,” in ed. Linda Cardinal and David Headon, Shaping Nations: Constitutionalism and Society in Australia and Canada, (Ottawa: University of Ottawa Press, 2002). 35 See J.A. La Nauze, “The Name of the Commonwealth,” in ed. Helen Irving and Stuart Macintyre, No Ordinary Act: J. A. La Nauze on Federation and the Constitution (Melbourne: Melbourne University Press, 2001).
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The Constitution of the Commonw ealth of A ustralia so closely resembles the Constitution of the United States of A merica that it may be not improperly described as an adaptation …[and] the authors of its A merican prototype may be fitly regarded as being also the primary authors of the Constitution of the Commonw ealth of A ustralia.36 The 1891 Convention w ound up w ith a commitment to taking the Constitution back to the colonial parliaments for debate and eventual endorsement. In the event, how ever, this did not happen and the 1891 Constitution w as “ put by.” 37 But federation w as still a popular goal, and w ithin tw o years, Federal Leagues (so-called “ citizens” ’ leagues) w ere established in several colonies, putting pressure on the colonial governments to begin the process again. N ot only did they lobby, but they also came up w ith a new plan, one in w hich all the steps to ultimate success w ere set out like a map. The plan called for a new federal convention to w rite a new federal constitution. This time the convention w as to be directly elected by the voters, and the constitution w ritten by the elected delegates w ould be put to the voters in colonial referendums, before its adoption in the colonial parliaments as an A ddress to the Queen, requesting enactment by the Imperial Parliament. To the surprise of many (both contemporaries and later A ustralian historians) the plan w as approved by all the colonial Premiers. Furthermore, it w as implemented.38 Four colonies39 held Convention elections in M arch 1897, and fifty elected delegates began sitting in A delaide one month later. Three Convention sessions, spanning a year and occupying a total of close to four months, follow ed. Referendums on the new Constitution Bill w ere held in four colonies in June 1898, but insufficient support in N ew South Wales forced amendments to the Bill, requiring a second round of referendums a year later, this time successful. By mid 1900, all colonies had approved the Constitution; it w as taken to London, enacted by the
Inglis Clark, Studies in Australian Constitutional Law, Melbourne, 1901 (St. Leonards: Legal Books, 1997), 358 37 As noted by J. A. La Nauze, in The Making of the Australian Constitution, (Melbourne: Melbourne University Press, 1972). 38 With one small alteration – the federal convention would sit twice, with a break in between sessions, giving the colonial parliaments and the public the opportunity to debate the draft constitution, which had been completed in the first session, and for proposed amendments to be considered by the Convention in its second session. In the event, close to 400 amendments were proposed and, for reasons of time, a third session (the longest of the three) was held. In the event, also, two rounds of referendums took place in four colonies in 1898 and 1899, after the first failed. Two colonies – Queensland and Western Australia did not participate in the first round, but their voters approved the Constitution in 1899 and 1900 respectively. 39 Queensland was unrepresented at this Convention; Western Australia chose its ten delegates by legislative “election”. 36
12 Imperial Parliament, and the Commonw ealth of A ustralia w as inaugurated on 1 January 1901. Throughout these processes, the original understanding that A ustralia’ s federal system w ould be modeled on the United States did not falter. The identification of federal pow ers, the particular distribution of pow ers betw een federal and state legislatures, the design (and names) of the Senate and H ouse of Representatives, their respective pow ers, and the overall commitment to retaining state pow ers (indeed, states’ rights) w ere all copied from the United States (along w ith the section on the federal judiciary-- Chapter III--closely resembling A rticle III). A s in A merica, states’ rights sentiments w ere strongest in the smaller colonies. During the referendum campaigns much opposition in the larger colonies focused on the “ undemocratic” character of the proposed Senate.40 Still, the alternative of a Canadian-style confederation gained no supporters. It w as alw ays intended that, under the Constitution, the A ustralian states w ould give up only those pow ers that w ere suited to the purpose of federating; the federal legislature w ould have limited exclusive pow ers and enumerated concurrent pow ers, and the states w ould exercise the residue. The A ustralians knew that equal state representation in the American Constitution had been conceded by its opponents as the price of union; their ow n experience w as similar. They knew that other compromises had been made in the making of the United States Constitution, and w ould have to be made in their ow n case, but they deeply admired w hat the United States had accomplished both at the time, and in the one hundred years since its federation, and they hoped to draw similar good fortune to their ow n union. There w as one flaw , how ever. A dmirable though it w as, the A merican Constitution had failed in a very dramatic w ay. It had not prevented civil w ar. Indeed, some believed, it had encouraged civil w ar. A t the very least, it had failed to stand in the path of w ar. If A ustralia w ere to be built on a similar constitutional model, the historical tragedy of the Civil War w ould have to be confronted, and a repeat avoided. A s they debated the relationship betw een the Civil War and the design of the United States Constitution, the framers of A ustralia’ s Constitution applied counterfactual reasoning to their project. They sought a constitutional account of the Civil War; they implicitly imagined an alternative A merican constitution, absent w hat they identified as the relevant design flaw . They imagined, thus, an alternative A merican history in w hich there w as no w ar. They projected both the real and the counterfactual history into alternative futures for A ustralia: one w here civil w ar might occur and, the second, w here it w ould be averted. They acted on w hat they considered to be the key difference. “Undemocratic” because it gave equal representation to the states, regardless of population size, not because of the means of choosing the Senators. Unlike in the US at that time (and unlike in the 1891 draft of the Australian Constitution), the Australian Senate was directly elected from the start.
40
13
A consti tuti onal tragedy? Constitution-making requires, among other things, optimism about the stability of the future, confidence in the superior, indeed “ constituting,” status of a constitution, and an expectation that institutions w ill conform to w hat the constitution commands. A constitutional counterfactual requires a belief in history as an account of causation; a belief in human agency and an anti-determinism; a belief in constitutions as instruments of agency; an idea of constitutional language as performative; and a belief that the constitutional agency is sufficiently unassailable and autonomous for it to “ cover” or “ pre-empt” the field w here other competing agents or causes lie. Working w ith such background beliefs, the A ustralians had first to consider w hether the Civil War w as fundamentally a constitutional tragedy, or at least sufficiently constitutional for the threat of an antipodean re-play to be taken seriously. A constitutional explanation of the w ar w as far from the only explanation available, but it w as supported by sufficient numbers of influential historians and political scientists in the late nineteenth century and, on the evidence (and consistent w ith familiar approaches to historical interpretation) w as a reasonable perspective for the A ustralians to adopt. The A ustralian people had a long historical interest in the United States.41 In addition, many of the A ustralian framers, some of w hom had visited the United States, w ere familiar w ith A merican constitutional law and history. A merican history--both revolutionary and Civil War--w as cited frequently during Convention debate and, once the decision w as taken to draw on the A merican Constitution as a federal model, their reading of A merican history w as closely inflected through a constitutional lens. What did the framers of A ustralia’ s Constitution read? Several publications comparing existing federal constitutions w ere prepared specifically for the Conventions, or w ere w ritten in anticipation.42 We can assume that these w ere consulted at least by those delegates most closely involved in the drafting; w e also know from the record of the Convention debates that many other w orks w ere read. The stand-out w as James
Historical affinities - one might even say a common historical DNA - had always existed between the American and the Australian colonies. Note the date of the founding of New South Wales (the “Mother Colony”) – January, 1788. The loss of the American colonies had prompted Britain to seek other sites for convict transportation. Australia’s constitutional journey, thus, began just as the Philadelphia Convention completed its work. 42 Richard Chaffey Baker, Manual of Reference to Authorities for the use of the Members of the National Australasian Convention, 1891; Thomas Just, Leading Facts connected with Federation. Compiled for the information of the Tasmanian Delegates, 1891; G.B. Barton, The Draft Bill to Constitute the Commonwealth, 1891; Samuel Griffith, Notes on Australian Federation: its Nature and Probable Effects, 1896; John Quick, A Digest of Federal Constitutions, 1896; Robert Garran, The Coming Commonwealth (Sydney 1897). 41
14 Bryce’ s tw o volume w ork, The American Commonwealth, published only three years before the first Convention met.43 Bryce, w ho had first visited the United States in 1870, told a predominantly constitutional story of the Civil War, one in w hich the Senate featured large. The principle of equal state representation in the Senate, he w rote, “ w as long resisted by the delegates of the larger states in the Convention of 1787, and ultimately adopted because nothing less w ould reassure the smaller states, w ho feared to be overborne by the larger.” (H ad Bryce been w riting about A ustralia’ s debates over the design of the Senate, he need not have altered a w ord of this passage.) This constitutional arrangement, he concluded, had the important result of making the slaveholding party, during the thirty years w hich preceded the Civil War, eager to extend the area of slavery in order that by creating new slave states they might maintain at least an equality in the Senate, and thereby prevent any legislation hostile to slavery.44 Bryce’ s w as not the only perspective. A n alternative w as offered by South A ustralian delegate, Richard Chaffey Baker, w hose M anual of Reference assured delegates to the 1891 Convention that “ States rights w ere the pretext for w ar; but …[t]he question of ‘ slavery, or no slavery,’ w as the cause …and if the States rights doctrine had never been heard of this w ar w ould have taken place all the same.” 45 A ndrew Carnegie’ s Triumphant Democracy (1886), read by at least one delegate and cited in the Convention, conveyed a similar message, disposing of the causes of the Civil War as the outcome of “ one unpardonable sin” : the shot “ fired upon the flag” that brought home to the national conscience that “ slavery as a political institution w as inconsistent w ith the republican idea.” 46 M any other sources w ere read and cited, but it w as Bryce’ s The American Commonwealth that dominated and became, indeed, the Convention’ s “ Bible.” 47 If nothing else, Bryce’ s constitutional account w as unsettling. H is ow n reassurances that the A merican union w as now secure might have been read to convey a w arning. The James Bryce, The American Commonwealth, 2 vols (first published 1888, 2nd ed. 1890) (New York: Macmillan, New York, 1924). 44 Bryce, The American Commonwealth, p. 45 Baker, , p. 26 46 Triumphant Democracy: Sixty Years March of the Republic (New York, Charles Scribner’s Sons, 1893), 18 (First edn 1886). The belief in equality of all and free trade among the states, Carnegie wrote, now ranked among the most powerful agents for preservation of the union. The Australians were not directly interested in the “republican idea” and they did not need to be persuaded of the latter; their commitment to “absolutely free” trade and commerce among the states had featured among their foundational resolutions at the opening of the 1891 Convention, 16. 47 La Nauze, The Making of the Australian Constitution, 273 43
15 union, he w rote, w as now held together by “ the universal respect felt for the Constitution, a respect w hich grow s the longer it stands,” as w ell as by a w illingness to allow conflict betw een Congress and the state legislatures to be settled by the Supreme Court:48 It is now admitted that the Union is not a mere compact betw een commonw ealths, dissoluble at pleasure, but an instrument of perpetual efficacy, emanating from the w hole people, and alterable by them only in the manner w hich its ow n terms prescribe. It is ‘ an indestructible Union of indestructible States’ ....The doctrine of the legal indestructibility of the Union is now w ell established. To establish it, how ever, cost thousands of millions of dollars and the lives of millions of men.49 Despite this tragedy, Bryce continued, the A merican Constitution still suffered from a number of “ remarkable omissions.” These included: [T]hat there is no grant of pow er to the national government to coerce a recalcitrant or rebellious state. A nother is that nothing is said as to the right of secession. A nyone can understand w hy this right should not have been granted. But neither is it mentioned to be negatived.50 The A ustralians w ere committed to adopting a federal system w ith a pow erful Senate; they knew about the doctrine of nullification, and the “ compact” theory of South Carolinian, John C. Calhoun, in w hich the right of a state to secede w as promoted; they had read (or read about) Daniel Webster’ s famous speech to the Senate in M arch 1850,51 denouncing the theory and speaking of the union as permanent. N o doubt they also noted his w arning that “ peaceable secession is an utter impossibility.”
The shadow of the Ci vi l War A t the 1890 Federation Conference, proponents of a United States style federal constitution faced a challenge. James Bryce had attributed the Civil War to the doctrine of states’ rights. If the future A ustralian states w ere to retain their current pow ers (and sense of sovereignty), what w as to prevent a similar w ar from occurring in A ustralia?
“If they had been left to be settled by Congress,” he added counterfactually - “the dangers of a conflict would have been extreme, and instead of one civil war there might have been several.” 49 Note 46. 50 Bryce, note 46, p. 321 51 Baker’s Manual of Reference, note 44, refers to Webster’s speech, and lists his collected speeches among his references. 48
16 A ndrew Inglis Clark confronted the challenge. “ It has been supposed,” he told the Conference, that the reservation of the residue of pow ers to the states has been a source of a deal of controversy and trouble in the United States, and the real cause of the Civil War. I differ from that opinion. I believe that the cause of the political controversies of the United States, w hich resulted in that w ar, w as the question of slavery. …[This issue] roused all the passions and the faculties of human nature, good and evil, on one side or the other, and induced attempts to give the most tortuous interpretations to the Constitution, either to assist or resist its encroachments. …[W]e shall be cursed w ith no such question in A ustralia.52 This w as, in one sense at least, historically incontrovertible. A lthough the colonies had depended upon convict labor in their early years, A ustralia had never had slaves.53 Except in remote rural cattle stations, the A boriginal people had never been conceived of as a class of laborers. In addition, the majority of A ustralian colonies had long applied race-based immigration restrictions (principally anti-Chinese), and they congratulated themselves on avoiding the creation of a racial under-class through such a means. Clark’ s perspective on the Civil War w as accepted by the Conference. H ow ever, by the time of the second Convention, and the constitutional referendums in the late 1890s, much opposition had grow n to the constitutional arrangements proposed for the Senate, and the simple claim that slavery, unknow n in A ustralia, w as the cause of the Civil War and therefore, in the absence of slavery, a pow erful A ustralian Senate w ould pose no threat, became insufficient and, for many, unpersuasive. A prominent N ew South Wales politician, A .B Piddington, mounted an energetic, negative campaign. The proposed A ustralian Constitution, he claimed, reflected an arrangement similar to the antebellum view of the A merican union. Its bicameral arrangement, he w rote, w as a copy of the United States Constitution, w hich had empow ered the Senate to defeat the H ouse of Representatives w hen the H ouse had attempted to prevent the admission to the union of slave-ow ning states or provide for the exclusion or abolition of slavery from the union. In copying the United States, he concluded, the Commonw ealth of A ustralia w ould be at risk of a similar rupture. The issue, in Piddington’ s eyes, w as equal state representation in the Senate. The Senate, representing almost half the numbers of persons represented by the H ouse, had the pow er defeat majority-supported legislation and initiatives. “ H ad the A merican Constitution either been based upon the representation of citizens,” he w rote,
Official Record of the Federal Conference, Melbourne 1890, p. The parallel had been drawn between convict labor and slavery by the Anti-Slavery Society in Britain, and the ending of convict transportation in the 1840s had resulted, in part, from their campaigning, along with public opposition in Australia. 52 53
17 or else provided any machinery w hereby, even if tardily, the veto of the H ouse of the States might be overridden by the H ouse of the people, as that of the President may be over-ridden by both H ouses, the Civil War might never have been fought, and slavery might have been extinguished in A merica w ith little more violence than w as employed to …put a stop to convict transportation in A ustralia.54 Once it began to exercise its pow ers, the Senate w as unlikely ever to bend to the popular w ill: “ a vicious principle in the body politic, like a germ of disease is sure to propagate itself, till by some forcible interruptions it is either killed or kills its host.” The delusion of artificial strength in the smaller states in A merica, Piddington w rote, had led them to see themselves as “ sovereign states.” People’ s allegiance to their state w as greater than to their nation. Once adopted, equal representation in the Senate w ould never be abolished, because the consent of each state w ould be required. If A ustralians follow ed this path, Piddington continued, they w ould put their “ free young limbs into a straight-jacket.” Those w ho believed that the spirit of compromise w ould prevail and w ould correct anomalies in the relations of pow er should observe how , in the period before the Civil War broke out, “ at this delicate juncture, w hen feeling w as running dangerously high, the possessors of State pow er bore themselves” : the Senate passed pro-slavery resolutions and vetoed Bills coming up from the H ouse. These observations, Piddington stated, “ are matters not of argument but of record” . H e w as not alone in this view . A lthough Piddington lamented that the members of the Federal Convention had simply “ denied that equal state suffrage in the [A merican] Senate w as responsible for the Civil War” , a good number of the delegates at the 1897-1898 Convention had in fact been far from happy w ith equal representation or w ith co-equal pow ers for the H ouses. While, as w e have seen, Clark, in 1890, had persuasively put the case to follow the United States federal model, his attribution of the cause of the Civil War to slavery alone still left contentious the role of the Senate. Equal state representation had been conceded early in 1891, but the conflict over co-equal pow ers w as never fully resolved. It w as, indeed, the matter that occupied the greatest amount of time in the second Federal Convention, and nearly destroyed the processes of federation. In the referendum campaigns, both co-equal pow ers and the principle of equal representation w ere fiercely debated, w ith many in N ew South Wales acknow ledging that these concessions had been extracted by the smaller colonies as the price of federation, but declaring that the price w as too high, and concluding that federation should not proceed.
‘The Senate and the Civil War in America’, in Popular Government and Federation, Angus & Robertson, 1898, p. 29.
54
18 Residual pow ers for the states and equal state representation in the Senate w ere indeed the price; federation simply w ould not have proceeded on any other basis. But, having made this concession, Federal Convention delegates from the more populous states turned to the respective pow ers of the tw o H ouses, seeking a means of mitigating the effects of this equality. Tw o particular issues w ere in contention. One w as the pow er over money bills, w here (after the second Convention had come close to splitting) a compromise w as ultimately forged, prohibiting the Senate from initiating or amending money bills.55 The second concerned w hat should be done in the event of a deadlock betw een the H ouse of Representatives and the Senate in the passage of ordinary legislation. A debate that dragged on for w eeks concluded w ith a provision in the Constitution for the dissolution of both H ouses, an election and a joint sitting on the deadlocked bill or bills. This, it w as believed, would give the H ouse of Representatives the final advantage. N either resolution w as entirely satisfactory, but it w as the best they could do. Good w ill and a spirit of compromise--the very assumption Piddington had w arned against--w ould, it w as assumed, make up for the legal shortcomings. Still, discomfort w as felt. The ghost of the A merican Civil War had not been dismissed in the first Convention and it continued to haunt the second, hanging over the referendum campaigns that follow ed. Victorian delegate (and future Justice of the H igh Court of A ustralia), H enry H iggins, led the campaign against equal pow ers for the Senate. In the Convention he spoke at length about the historical causes of the Civil War, concluding that the United States w as “ a compromise betw een a confederacy and a federation,” reached under pressure. The adoption of tw o equal H ouses of Congress had been accepted only w ith misgivings: H istorically, the United States w ere in such a terrible mess that they could not afford to come to some agreement, no matter if it w as a bad agreement … When Delaw are w as saying, ‘ Unless you concede equal representation, w e w ill make terms w ith the British,’ and w hen they felt that if the British had Delaw are and the guns w ere at the gates of the other colonies, this new federation w ould be ruined, I do not see w hat they had to do but to accept the inevitable, and take the equal representation offered to them. But I am thankful to say that w e are in no such circumstances. We have not to frame our constitution w ith the guns of the enemy at our gates. 56
Although leaving it to the future to determine whether this meant that the Senate could refuse to pass money bills, something tested most dramatically in Australia’s constitutional crisis of 1975, when the government was dismissed by the Governor-General, because the Senate refused to pass the bills providing ordinary supply for governing. Piddington would have been smiling in grave. 56 Official Record of the Debates of the Australasian Federal Convention (hereafter Debates) five vols. Second session (Sydney), 1897, vol III [IV], Legal Books, 1986, p.264 55
19 H iggins continued: A s soon as some of the states found that they could not get any other new state South of M ason and Dixie's [sic] line, w hich w ould be a slave state; as soon as they found that by the increase of the number of the states to the w est and the north, they w ere being out-voted in the Senate; as soon as they felt that they w ere no longer to have a majority in that Senate to w ork in the interests of the slave states, the southern states put into practice the doctrine they had long been preaching of the absolute right of any state to secede. When A braham Lincoln w as elected they said ‘ that election show s that those states w ill return senators w hich w ill outnumber our senators, and w e shall have no protection,’ and they at last determined to secede. 57 H iggins felt “ chagrined,” he said in conclusion, “ at the thought that in place of trying in our Constitution for A ustralia, to make an improvement on the federal constitutions of the U.S., Sw itzerland, and Germany w e are going back to the first form of federation w hich w as suggested.” 58 A lthough the pow ers of the Senate w ere a lost cause to all but die-hards like H iggins, the Civil War still made other delegates anxious. In the debate on the means to amend the Constitution, delegate Joseph Carruthers from N ew South Wales, told the Convention that the Constitution they w ere framing should not be too rigid: We are not going to have the pow er to secede or dissolve, and therefore it behoves us to frame our Constitution in that elastic w ay that w e can amend it in consonance w ith the grow ing aspirations of the people … [If] you have the Constitution so rigid that you cannot either secede or amend it, it is just possible that civil w ars and disasters similar to those w hich took place in the United States w ould eventuate in the A ustralasian Colonies.59 If you provide for amendments, Carruthers continued, w hen the Constitution “ is found not to express the desires and ambitions of the people … amendment w ill be simple and
Debates, vol III, p.265 Debates, vol III, p. 262; p.266. Almost alone of the delegates, Higgins never resigned himself to bi-cameral equality, and he actively campaigned against the Constitution Bill in his colony in the referendums of 1898 and 1899. Later, as one of the Justices of the High Court, he was notable for his part in a new approach to interpretation of the Constitution which had the effect of diminishing the power of the states, and rejecting the direct influence of US Supreme Court jurisprudence. 59 Debates, vol II [III], first session (Adelaide), p.94 57 58
20 easy. If you do not … you w ill create a greater danger, and instead of the blessings of union there may be greater evils than those of disunion.” 60 Conceding that equal representation of the states in the Senate w as “ plainly inevitable,” Victorian delegate Isaac Isaacs (future H igh Court Justice, and later Governor-General) also pressed for easier amendment of the Constitution than in the United States: Under the provisions of their Constitution they need majorities in such a w ay, and under such circumstances, that practically the pow er is useless …[T]here has been no great amendment, although it w as eminently desired, except under the extreme pressure of the civil w ar. We know that the real amendments--the only amendments strengthening the Constitution, extending the liberties of the people, and recognizing their rights--w ere made at the close of the civil w ar, w hen N orthern troops w ere in the Southern States. This is not an example to follow here.61 Pow ers of the Senate, and the means of amendment w ere not the only matters for concern. In a remarkable leap of logic, the Civil War w as invoked even against an (unsuccessful) proposal for universal suffrage to be constitutionally entrenched. The South A ustralians at the Convention (w ho had been elected by the female voters of their colony, as w ell as male voters) w ere adamantly in support of female suffrage. Opposition w as mounted principally on states’ rights grounds, but other rhetorical tactics w ere adopted. One N ew South Wales delegate, Bernhard Wise, had a novel argument: We cannot get aw ay from this fact--disguise it as w e may--that the ultimate sanction of all law is physical force. I need not go back far for an illustration, than only look to the early history of the United States Federation. It may yet be in our country, if w e have female suffrage, that a law would be passed by a majority of w omen and a minority of men, w hich they w ould not have the physical force to carry into effect, and w hich can only be given effect to by a dissolution of society. … The question that shook the A merican constitution to its foundation w as the question of slavery. Do w e not know that the attitude and object of all the prominent states of the United States betw een 1826 and the outbreak of the Civil War, or certainly up to 1850, w as to have compromise on this question, and w hy? N ot w ith regard to many of them because they w ere in favor of slavery, but
60 61
Debates, vol II, p.94 Debates, vol II, p. 173
21 because they knew that the time w as not yet ripe for the immediate abolition of it.62 A proposal for a federal pow er over old-age pensions--this time successful--w as supported by the same delegate, on the grounds that “ nothing w ould be more likely to stimulate a feeling of interest in the continuance of the union than the fact that all the inhabitants of the Commonw ealth depended on its continuance for their support in indigence and old age. It w ould strengthen the feeling in favor of the union” . Indeed, added delegate George Reid, Premier of N ew South Wales, “ it might have averted the Civil War if they had had it in A merica” .63 A more considered issue w as w hether the A ustralian Constitution should include a statement of equal rights or equality under the law , resembling the Fourteenth A mendment of the United States Constitution. The proposal, w hich came indirectly to the 1897 Convention from A ndrew Inglis Clark (w ho w as not a member of the second Convention), led to a lengthy discussion of the nature of rights in a common law system, w hether the parliament or the judiciary w ere best placed to protect rights, w hat it w ould mean to be a “ citizen” of the new Commonw ealth of A ustralia, and other matters. In theoretical and historical terms, it w as one of the better debates, and naturally the Civil War came into it. For the most part, the delegates again sought to reassure themselves that the conditions in the United States could not be repeated in A ustralia. The Fourteenth A mendment, said John Cockburn from South A ustralia, “ w as no part of the original United States Constitution, and it never has legally become part of that Constitution; it w as simply forced on a recalcitrant people as a punishment for the part they took in the Civil w ar. We are not going to have a civil w ar here over a racial question.” 64 For this and other reasons, the proposal did not proceed. So, in the final version of the A ustralian Constitution, the states got equal representation in the Senate, and the Senate got almost co-equal pow ers w ith the H ouse, the popular referendum w as adopted for constitutional amendment, female suffrage w as not included (although there w as a provision protecting those w ho already enjoyed the right to vote), the federal parliament w as empow ered to create old-age pensions, and the proposal to include a Fourteenth A mendment provision w as dropped. Slavery, the A ustralians reassured themselves, w as not an issue.
Debates, vol II, p. 718. Female suffrage was adopted - although not in the Constitution itself - with the first Commonwealth Franchise Act in 1902, and as yet has not led to civil war 62
63 64
Debates
22 The consti tuti onal “ sol uti on” Still the delegates w ere anxious, for the very idea of federation contains w ithin it the idea of separation.65 They might w ell have supported (or conceded) states’ rights, but they also feared secession. H ow , then, might the counterfactual (that the A merican Civil War did not happen) be made useful? In an account of the causes of an historical event, many antecedents present themselves. These may be immediate, or prior, or background antecedents (causes, or causes of causes, or pre-conditions). A counterfactual “ solution” may seek to alter or remove any one or more of these. It may, alternatively, respond at a level of generality that takes in the range of possible (prior or background) antecedents, by addressing the immediately precipitating antecedent or cause. In the constitutional context, this might mean prohibiting something, in order to prevent its becoming the immediate “ cause” of an undesirable constitutional consequent or outcome. The principal constitutional response of the A ustralian framers w as not to rule out any of the antecedents (such as equal state representation in the Senate) that might have “ caused” the Civil War, but to raise a barrier to their ripening into a cause. Given that the choice of the federal model w as long settled, and equal state representation and a pow erful Senate w ere simply non-negotiable, the A ustralians decided to add an exclusion clause (against secession) w hich they hoped w ould serve as a shield against the grow th of confederate thinking, regardless of any antecedent stimulus (or “ cause” ) for such thinking. Thus, they placed in the preamble of the A ustralian Constitution an interdiction against separation and secession, in the form of an affirmation. This, then, w as the result of the debate over the Civil War (emphasis added): Whereas the people of New South Wales, Victoria, South A ustralia, Queensland, and Tasmania, humbly relying on the blessing of A lmighty God, have agreed to unite in one indissoluble Federal Commonw ealth under the Crow n of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established. We have no direct record of the reason for the choice of the w ord “ indissoluble” ; it w as added by the Drafting Committee of the Federal Convention, and not debated in plenary. But Robert Garran, secretary to the Drafting Committee, probably knew the answ er. In 1901, in the celebrated Annotated Constitution of the Commonwealth of Australia, he and his co-author, John Quick (Victorian delegate to the Federal Convention) w rote: The w ord ‘ indissoluble’ w as added to the second draft of the Constitution, because of a perception among members of the Federal Convention, that it w as As intimated by Bryce, and A.V. Dicey, whose Introduction to the Study of the Law of the Constitution, 2nd ed 1886, they had also read. 65
23 [t]he omission from the Constitution of the United States of an express declaration of the permanence and indestructibility of the Union [that] led to the promulgation of the disastrous doctrines of nullification and secession, w hich w ere not finally exploded until the Civil War.66 Thus, the framers of A ustralia’ s Constitution, fearful of the doctrine, believed that they could use this w ord as a shield against civil w ar in A ustralia. Into the Constitution’ s preamble, then, w ent the w ord “ indissoluble.” 67 Why this relatively gentle term, rather than an express statement or provision prohibiting secession? Possibly the w ord w as chosen from the range on offer in the A merican case of Texas v White, in w hich the Supreme Court described the United States, variously, as: “ perpetual” , “ indestructible” , and “ indissoluble.” 68 The most likely strategic reason, as Greg Craven has convincingly suggested, w as that a “ statement that once the union w as formed it w as for better or w orse, and even if for w orse, forever,” w as considered imprudent, given that there w as still substantial opposition to federation, especially in the most pow erful colony, N ew South Wales,69 and given the need to secure popular approval of the Constitution Bill in all colonies, before federation could proceed. But if the w ord “ indissoluble” appeared anodyne, it w as not w ithout constitutional significance from another perspective. The A ustralian Constitution w as passed as an A ct of the Imperial Parliament in 1900. A ccording to British theories of parliamentary sovereignty, most famously that of A .V. Dicey, parliament could not bind its successors. Britain, therefore, w ould retain the legal pow er to alter, or even repeal, any of its acts, including the A ustralian Constitution. The preamble could not, thus, have any effect in declaring the A ct to be permanent or purporting to limit the originating parliament’ s pow ers. The stream could not rise above the source. Or could it? When Josiah Symon, South A ustralian delegate to the second Federal Convention, commented that one of the main causes of the Civil War was “ that it w as not clear, it w as not contained in express terms w ithin the four corners of the [A merican] Constitution, that no State should be able to secede” and that A ustralia “ should make … a considerable mistake if w e do not make it absolutely clear … that this Union is to be Annotated Constitution of the Commonwealth of Australia, Melbourne, 1901, p. 294 Having itself been approved by popular referendum before being adopted in law, the preamble to the second draft of the Constitution also stood as a reminder to the people voting in these referendums, that they were making a choice they could not reverse. 68 Texas v White 74 U.S. 700 (1869). Bryce quoted at length from this judgment in The American Commonwealth, note X, pp. 322-323. 69 “[S]upporters of federation were quite often at pains to suggest that there would be an escape valve”, G.J. Craven, “An Indissoluble Federal Commonwealth? The Founding Fathers and the Secession of an Australian State”, 14 Melbourne University Law Review 281 (1983-1984) p. 298. Note that the NSW Legislative Council proposed striking the word “indissoluble” out of the draft Constitution in 1897. The first referendum on the Constitution was defeated in New South Wales one year later. 66 67
24 permanent, and that there shall be no secession,” Isaac Isaacs interjected: “ There cannot if it is an A ct of the Imperial Parliament.” “ Well, I am not so very sure about that” , replied Symon.70 A nd not so very sure w as how things remained, at least for a w hile. The statement of indissolubility, Quick and Garran later w rote, did not suggest that Imperial parliament’ s pow ers w ere limited. H ow ever, because the people of A ustralia had a general pow er to amend the Constitution, a reminder w as placed at the “ forefront of the deed of political partnership … that the union … w as intended by the contracting parties to be a lasting one.” But as things w ould turn out, the parliament had, effectively, passed an A ct w hich bound its successors. The stream had risen above the source (as it has so often in history). These days at least, it is the view in A ustralia that, w hile the British Parliament may have been the original sovereign, sovereignty w as then passed to the people of A ustralia, the representatives of w hom had agreed to unite in “ one indissoluble federal Commonw ealth,” and w ho signified this, not by a break from Britain, but by their agreement to the Constitution Bill in the colonial referendums of 1899 and 1900.71
D i d the counterf actual sol uti on succeed? The framers’ strategy w as quickly tested. Soon after federation, notw ithstanding the Constitution’ s statement of indissolubility, Western A ustralia decided to secede. Reluctant to make its mind up, and last of the colonies to agree to join the federation, by 1906 it decided that it had had enough. Only five years after federation, the Western A ustralian Legislative A ssembly passed a motion declaring that: “ The Union of Western A ustralia w ith the other States has proved detrimental to the best interests of the State, and that the time has arrived for placing before the people the question of w ithdraw al from the union.” In one response, in a pamphlet entitled “ Is Secession Possible?,” John Quick asserted that Western A ustralia had “ freely and voluntarily joined the Commonw ealth in the full know ledge that it is not a mere compact or partnership, dissolvable at w ill …but that it is an indissoluble Federal Commonw ealth.” 72 The Western A ustralians w ere not persuaded. For tw o more decades they continued to complain of injustices. They had, they believed, been forced to give up their colonial tariffs (notw ithstanding a special constitutional arrangement that had been made for these to be phased out in that state over a five year period, rather than terminated once the Commonw ealth adopted its ow n uniform tariff, as w as to happen to the other states); they had not received their Debates, vol II, p. 128 A view put by the High Court of Australia in ACTV v Commonwealth 72 Quick’s use of the term “compact” is a little loose here: In 1901, he and Garran had written of the Constitution as a “deed or trust … a living organism”, and of the Australian national community as founded in “political compact” which must be protected “against the designs of those who wish to disturb it by introducing revolutionary projects.” Annotated Constitution of the Australian Commonwealth, Angus & Robertson, 1901, p. 988 70 71
25 fair share of the Commonw ealth tariff revenue; and an intercontinental railw ay had been promised but had not been quickly delivered (it had taken until 1917 to complete). In 1924, a Report of the Commonw ealth Tariff Board had given comfort to these ideas, w ith the observation that Western A ustralia w as in a position similar to the Southern States of A merica after the Civil War. The Western A ustralians also offered an interpretation of the Constitution’ s preamble: w hile the other states w ere bound by it, having agreed to unite in the “ indissoluble federal Commonw ealth,” their state had only given provisional consent. The preamble, they pointed out, failed to mention Western A ustralia in its recital of the colonies w hose people had agreed to unite. (This had occurred because Western A ustralia had taken so long to make its mind up, only holding its referendum after the Constitution w as enacted.) The Western A ustralians also noted that, w hile their state w as mentioned in one of the Covering Clauses below the Preamble, the Clause speaks of its being united in a “ Federal Commonw ealth” but does not include the w ord “ indissoluble” . In their campaign, the Western A ustralians pressed these discrepancies as hard as they could.73 The absence or presence of a single w ord w ould, it seems, have made all their difference. But, the argument upon w hich they most relied, w as that w hich indicated the most important difference betw een the A merican and the A ustralian Constitution: the latter existed in the form of an A ct of parliament; the former did not. Civil War w ould not be needed, as the Crow n could be appealed to: “ Force of arms is unthinkable … indeed impossible so long as w e are under the Crow n.” 74 The Imperial Parliament had made the Commonw ealth. It could now unmake it. In 1933, under intense popular pressure, the Western A ustralian government held a referendum on the question of secession. It w as overw helmingly approved. N inety-one per cent of the voters turned out, and sixty-eight per cent voted yes. The follow ing year representatives of the Western A ustralian government w ent to London, carrying w ith them a massive petition in a purpose-built box carved from Western A ustralian w ood. They asked the British parliament to alter the A ustralian Constitution, to release them from the “ indissoluble federal Commonw ealth.” The British had a dilemma. Could they grant secession? Could they alter the A ustralian Constitution unilaterally? Could they even look inside the box? What w ould the political consequences be if they did exercise constitutional pow ers?75 The However, the argument that the colony was effectively forced to join, and never gave full consent is thin. Among other things, at its referendum on 31 July 1900, it recorded the highest turnout of eligible voters (which included both men and women), as well as one of the highest affirmative votes among those who did. 74 Lovekin MP, quoted in Christopher Besant, ‘Two Nations, Two Destinies’, 20 University of Western Australia Law Review (1990) 75 What had had happened, it may be wondered, with the Statute of Westminster 1931 (UK)? Suffice it to say, while the Statute allowed for British legislation to have force in a 73
26 government responded w ith a clever evasion. A parliamentary Joint Select Committee w as appointed to consider w hether the parliament could receive the petition in the first place. Its conclusion, handed dow n in 1935, was negative. The Committee’ s report noted that the United Kingdom could only respond to a request from a national government, “ speaking w ith the voice w hich represents it as a w hole and not merely at the request of a minority.” Western A ustralia, it stated, had surrendered such pow ers and had no standing to ask for legislation from the United Kingdom parliament. The pow ers of the Commonw ealth of A ustralia, furthermore, did not depend upon the delegation of pow ers from the states. The Commonw ealth could ask for the A ct to be amended and the union to be dissolved, but a state existed only as a constituent part of the Commonw ealth and could neither request dissolution nor dissolve itself. In response, the Western A ustralian Premier (a reluctant secessionist) declared indecisively that the people of his state w ould “ fight on.” The so-called “ Dominion League of Western A ustralia” advocated unilateral secession, w ithout either Commonw ealth or Imperial approval. There w ere calls for a volunteer army to stop the Commonw ealth collection of customs duties in Fremantle, and for a “ Fremantle sugar party,” to stop A ustralian exports from the eastern sugar producing states. Such proposals gained little support. In the 1930s, “ [t]he complexities of international affairs assumed centre stage and the secession movement itself dw indled into insignificance and w as buried in a pauper’ s grave by the end of the decade.” 76
Concl usi on One w ay or another, the A ustralian Constitution had repelled secession. But had A ustralia’ s constitution-makers misinterpreted the cause of the Civil War, or provided a flaw ed counterfactual remedy? H ad they failed to recognize that a statement of indissolubility w as not the constitutional solution to an attempt to secede? It might be assumed that counterfactual constitutionalism requires accuracy. In altering the design flaw in an earlier model in order to avoid repeating another country’ s constitutional tragedy, the framers of a new constitution, it might seem, w ould need to get the cause of the tragedy right, and provide an accurate analysis of the relationship betw een cause and effect, or antecedent and consequent. They need not necessarily identify a single cause, but it must be a relevant cause; that is, relevant to the w ork at hand. So, if the cause, or causes, of the A merican Civil War w ere in reality unrelated to the pow ers (or limits on pow er) set out in the A merican Constitution, then efforts at constitutional re-design w ould be pointless. If the cause w as unrelated to the Dominion but only on the request and consent of the Dominion government, Australia had not yet ratified it, and did not do so until 1942, backdating it to 1939. In any case, it was pretty clear that the Statute did not permit an individual state to “request and consent.” It is notable, however, that the parliament had allowed Western Australia to approach it directly over the passage of the Statute of Westminster. 76 Besant, note 81
27 constitutional provisions identified by subsequent constitution-makers, any counterfactual constitutional strategies w ould fail. But is this necessarily so? A ccuracy--at least the type of historical accuracy considered in the Pudding Lane example--might not matter. The reason for this lies w ithin the limits of counterfactualism. Counterfactuals are plausible alternatives, applied to particular historical moments; they assume stability in all the surrounding elements except antecedent and consequent. H ow ever, stability itself is not possible, or, if it w ere, an alternative antecedent w ould not be possible. A s thought experiments, counterfactuals postulate a relevantly different w orld. In a real different w orld--for example, the historical w orld of another country’ s constitution-framing--the mistaken antecedent may, in fact, be the correct antecedent for a re-run of the constitutional tragedy. The “ cause” of the Civil War that made the A ustralians most anxious--equal state representation in a pow erful Senate--did not factor in Western A ustralia’ s planned secession. Western A ustralia w as not obstructed in the Senate by the other states, nor did its numerically disproportionate Senate representatives combine w ith Senators from other small states to thw art the democratic w ill. The “ flaw s” identified by the Western A ustralians in the Constitution w ere mainly fiscal, matters that the Federal Conventions had considered at great length, but not as alternative causes of the Civil War.77 The constitutional “ shield” the A ustralian framers had adopted (at the same time as conceding a pow erful Senate) had not, at least not of itself, succeeded. Perhaps all that this demonstrates is that historical counterfactuals do not deliver w hat they promise. But perhaps there is more to the “ usability” of the Civil War counterfactual than this. The A ustralians did not believe that the w ord “ indissoluble” could, of itself, prevent secession. N o w ord, indeed, no instrument, could guarantee indissolubility or ensure permanence. Would the Civil War have happened if the w ord “ indissoluble” (or “ perpetual” ) had been included in the A merican Constitution? James Bryce seemed to think so. Whether the incorporation of such w ords in the There was some public discussion, in response to Piddington’s campaign, in which the federal tariff crisis in America was claimed to be the cause of the Civil War. However, I have found no debate in the Federal Convention on this as a possible cause. This was not for lack of controversy over the federal tariff question, a matter that infused the whole issue of federation. The relevant constitutional provision here (which served, more or less, to settle things) was section 87, requiring the Commonwealth to return three-quarters of customs and excise duties (over which it has exclusive powers) to the states for the first ten years, and thereafter as the parliament provided. Another constitutional “cause” of the Civil War –influentially argued by Arthur Bestor in 1964, was federal control of the territories, and federal policy against the expansion of slavery in the territories. “The Civil War as a Constitutional Crisis,” 68 American Historical Review 327 (1964). For apparently unrelated reasons, the Australian framers gave the Commonwealth similar powers over federal territories – section 122 of the Constitution – but a “territories power” interpretation of the Civil War need not have concerned them, even had it been in circulation at the time, as it tied the constitutional causes closely to slavery.
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28 Constitution of 1787 w ould have been sufficient to prevent the Civil War is problematic, w rites Kenneth Stampp.78 N otw ithstanding the Supreme Court’ s conclusion that no extra w ords w ere needed, since “ perpetual union” in the A rticles of Confederation and “ more perfect” union in the Constitution’ s preamble unequivocally “ convey[ed] the idea of indissoluble unity,” 79 neither the case for perpetual commitment on the part of the states nor the case for provisional membership of the union, he argues, is decisive. The w ord “ perpetual” (or, presumably, “ indissoluble” ) may not have prevented civil w ar, Stampp concludes, but w ould at the least have settled the “ prolix and convoluted debate over the legality of secession.” 80 If w e return to the A ustralian example, and reverse the counterfactual question, w e get a different perspective. Would the w ord “ indissoluble” have been inserted in the A ustralian preamble had the American Civil War not happened? The answ er must surely be no. The inclusion of the w ord w as important. What it did w as to transform the example of the Civil War into a piece of Sunstein’ s useable past, part of the “ repertoire of arguments and political/ legal narratives that place a (stylized) past and present into a trajectory leading to a desired future.” 81 Indissoluble w ould forever serve as a “ reminder” that the union w as permanent. Indeed, if Bryce w as right, it w ould even permit Commonw ealth action to pre-empt dissolution.82 Even if the w ord did not discourage the type of thinking that had allow ed the confederate states to turn their grievances (w hatever their cause) into a conviction that secession w as justified, it w ould encourage (or express) the alternative: a conviction, at least on the part of the federal authorities, that the Commonw ealth w as permanent.
Kenneth Stampp, “The Concept of a Perpetual Union” (1978) 65 The Journal of American History 5. 79 74 U.S. 700 (1869). 80 Stampp, p. 5. 81 Sunstein, note 23, p. 605 82 How might this work, at least in theory? Bryce suggested that the post-Civil War doctrine that no state had the right to secede (even without an express statement in the Constitution) lay in the principle that “[a]ny act of a State legislature or a State executive conflicting with the Constitution … is really an act not of the State Government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is therefore ipso jure void. Those who disobey Federal authority on the ground of the commands of a State authority are therefore insurgents against the Union … The coercion of such insurgents is directed not against the State but against them as individual though combined wrongdoers.” Bryce, note 46, p. 336. This was not the line, however, taken by the Commonwealth against Western Australia, although Quick did argue in response to the 1906 W.A. secession motion that, among other things, “[t]he Defence Forces …are vested in the Commonwealth. If the Government of Western Australia, or of any recalcitrant State, attempted to take possession of the Customs House, or the Post Office, the Federal militia would be called out to defend Commonwealth property. That would soon put an end to the disturbance.” The West Australian Discontent: Is Secession Possible? 1906 78
29 What prevented Western A ustralia from seceding from the A ustralian Commonw ealth w as not the w ord “ indissoluble” , but w hat the w ord conveyed: that the Constitution had created a new and pow erful sovereign. This sovereign w as the indissoluble, and thereby pow ers, federal Commonw ealth. A pow erful Commonw ealth w as w hat the advocates of a pow erful Senate (and opponents of the Canadian Constitution) had resisted. But an indissoluble Commonw ealth, so the A ustralians also agreed, w as a necessary shield against disunion; it w as necessary to prevent the A ustralian civil w ar that might (have) happen(ed), had A ustralia’ s constitution-makers never thought about how the A merican Civil War might not have happened.
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