by John M Williams, 1999
When Manning Clark set out to say something about Australian history he was able to dip his pen deeply into the theoretical well that provided an inspiration for his History of Australia. Thus in Volume I we are introduced to Catholic Christendom, the Protestant ascendancy and the Sons and Daughters of the Enlightenment. These three paths were to become familiar ground upon which his protagonists were to walk. The actions of individuals such as James Cook or Robert Menzies were to understood or rationalised within a larger theoretical context. It is this underlying theoretical narrative that is often emphasised by Clark boosters or detractors alike when discussing his work., While theoretical undertones are extricably linked to the historical project this has not always been the case with Australian Federation and the Australian Constitution.
The motivations and machinations of Australia becoming a nation (like the faltering move to a republic) has been the subject of theoretical discussion amongst historians and philosophers. The economic imperative of Federation, for instance, has prompted a lively debate amongst historians (Eastwood and Smith 1964). Yet, for the framers of the Constitution and those who have since interpreted its meaning, theory has been seen as largely anathema to the document. For instance, La Nauze stressed:
The reading of the framers of the Constitution could make an interesting and occasionally amusing study for a legal historian. Some delegates in 1891 knew little about federalism than that it was a system of government ... In 1897-8 most of the delegates, including those who had been members of the first Convention, were better informed about the theory and practice of federalism, but still only a minority could be justly described as well informed. (La Nauze 1972, pp. 272-3)
Even today the theoretical shutters have been closed when viewing the Constitution. Justice McHugh of the High Court, for one, is cautionary as to the role of theory in constitutional interpretation. He states that:
The Constitution contains no injunction as to how it is to be interpreted. Any theory of constitutional interpretation must be a matter of conviction based on some theory external to the Constitution itself.
While this paper has as its narrow focus the relationship between Bryce, Tocqueville and Australia’s Federation, what has become apparent in this investigation are the converging themes around the issue of constitutional theory and practice. The paper investigates the relationship between theory and the framers as well as Manning Clark’s interpretation of their actions.
Drafting a Constitution
Federation does not come off too well in Manning Clark’s account of it. In Volume V of the History the people are given the choice between ‘Federation or Revolution’ and chose the former (Clark 1981). For Clark the politicians and the ‘swells’ hijacked the people’s movement and gave to them second best. He states:
Federation was one of those constitutional devices recommended by apologists for bourgeois democracy for containing political equality, and stigmatizing all radical changes as something outside the constitutional powers of both parties to the federal compact. (Ibid, p. 139).
But what motivated and informed these conservative politicians as to the dangers associated with a people’s constitution? The answer, according to Clark, was their understanding of philosophers like Tocqueville. In drawing the lines of separation between the conservative and the liberal elites in Australian politics at the time of Federation, Clark uses Tocqueville as a mainstay of the conservative argument.
On all questions affecting the exercise of political power, differences emerged despite the polite bows by both sides to the spirit of compromise. And the need to be conciliatory. The conservatives rejected referendum of the peoples of constitutional change: the liberals accepted it as just another example of their faith in political democracy. The conservatives wanted a Senate or a State House possessing equal powers with the Representatives or People’s House: the liberals argued that would allow the minority to impose their will on the majority. The conservatives advocated the indirect election of Senators, de Tocqueville having taught them that indirect election was an effective protector of minority interests. (Ibid, p. 145).
The list goes on. What emerges is a theoretical account of the aspirations and motivations of the framers of the Australian Constitution. I will return to this account but for the moment it is important to evaluate the drafting of the Constitution.
The framers of the Australian Constitution were, to greater and lesser degrees, our first comparative constitutional scholars. In drafting the Australian Constitution they made use of the known constitutional precedents. By 1891 R. C. Baker had produced his Manual of Reference (Baker 1891) and T. C. Just, under the instructions of Andrew Inglis Clark, had undertaken a similar task for the Tasmanian delegates to the constitutional Convention (Just 1891). Both authors had concentrated their energy on the United States, Canada and the Swiss federal models and elements of these are evident in our current Constitution. While the Australian Constitution by necessity incorporated a federal aspect this was by no means the sole element upon which comparative templates would be needed. The ultimate court of appeal, the separation of powers, the amending provisions and the enunciated Commonwealth powers all drew upon overseas experience.
From the period after the 1890 Melbourne Conference the critical constitutional repository for the framers, after their own British parliamentary model, was to be the United States. It is at this point that the question of the influence the two great writers on the American Constitution come to the fore. Alexis de Tocqueville’s Democracy in America (1835) and James Bryce’s The American Commonwealth (1888) both traversed the cultural and constitutional landscape of America and clearly were texts of great importance to those who needed to know more of the American experience. Both writers had attempted to place the American Constitution in context and as such they had investigated the intricacies of American public life.
Yet we know that it was Bryce and not Tocqueville that was to hold centre stage in the discussion of the American model during the Federation period. Indeed Tocqueville’s influence in Australia waned at the very moment when one would expect it to be at its most obvious. Why was this the case? There appears to be three issues involved; time, place and theory.
Time, Place and Theory
The timing of the publication of Bryce’s text was fortuitous. It appeared just at the moment when Federation was again being contemplated. Alfred Deakin, who had introduced the work to many delegates at the 1890 Melbourne Conference, had had personal contact with Bryce in London in 1887 as part of a delegation to the Imperial Conference (Deakin 1944). There was thus a freshness and immediacy that attracted delegates to the three volumes. In contrast Tocqueville, while a classic, had dated.
Moreover, the publication of The American Commonwealth was at a time when English constitutional thinking was at its most formidable. That other great legal scholar, A. V. Dicey had published his Introduction to the Study of the Law of Constitution in which he propounded his notion of legal and political sovereignty (Dicey 1885). One theme that is consistent between Bryce and Dicey is the distance that they placed their work from that of Tocqueville and other Continental writers. Thus Dicey, while acknowledging Tocqueville’s contribution, highlighted the weakness in his arguments as to parliamentary sovereignty. He concluded that ‘the dogma which is so naturally assented to by Englishmen contradicts that idea of the essential difference between constitutional and other laws which appears to have a firm hold on most foreign statesmen and legislators’ (Dicey 1961, p. 124). In short, the English had developed their own unique constitutional theory.
Bryce, like Dicey, distanced himself from the ‘elevated thinking’ of writers such as Tocqueville and Montesquieu. Thus the rise of English constitutionalism actively diverted attention away from those other scholars of America. Bryce also held another familiarity for the framers. He was after all British, the Member for Aberdeen, legally qualified — the Regius Professor of Civil Law at Oxford. His work contained examples tempered towards the English experience. For instance, his examples such as value of goods or salary always contained the conversion of dollars into pounds.
The work of Bryce was first introduced to delegates by Deakin at the Melbourne Conference of 1890. The American Commonwealth, the ‘monumental work of Mr Bryce’ was to be a constant companion for delegates (Debates 1890, pp. 89, 247). Deakin informed delegates that almost all the lessons which the political student could hope to cull from an exhaustive, impartial, and truly critical examination of the institutions of that country with which we are so closely allied. As a text book for the philosophic study of the constitutional questions it takes its place in the very first rank (Ibid).
The three volumes of The American Commonwealth lay on the table during the proceedings in the 1897-8 Conventions. ‘It was quoted or referred to more than any other single work; never criticised, it was regarded with the same awe, mingled with reverence, as the Bible would have been in an assembly of churchmen’ (La Nauze 1972, p. 273).
Deakin's ‘indebtedness’ to Bryce is expressed in a letter he wrote to him less than two weeks after the 1890 Conference. The letter outlines the ‘guarded’ and restrained manner with which Deakin approached the issue of Federation.
When it became my duty to qualify myself as far as possible in the Conference upon Australian Federation I returned to your book and found it the most suggestive and most luminous of all the works bearing upon the special questions which we are called upon to consider. Of course the consideration of detail was beyond our province and reference to them required to be guarded in order that we might not appear to be pledging our Parliaments in advance nor arousing the suspicions of local factions whose function may be effected, but upon all questions of principle I found your book of greatest possible service and our sending the Official Report of our proceedings to illustrate (at once) my indebtedness and its frank confession (Deakin to Bryce 1890).
Indeed, such was the authority of Bryce that G. B. Barton, Edmund’s journalist-brother, wrote to him in 1891 to inform him that ‘[y]ou will be pleased to hear that your work "The American Commonwealth" is in great vogue among Australian politicians. I fancy the Convention adopted the title "Commonwealth" from your pages’ (La Nauze 1971, p. 71). By 1891, according to Rutledge, ‘I dare say hon. gentlemen have nearly all of them very carefully read the admirable work of Mr Bryce’ (Debates 1891, p. 147). The picture that emerges is of a text that had become the key resource for the framers of the Constitution. Quoted and by no means contested.
Why then were the framers so comfortable with Bryce and why did they doubt Tocqueville and others? One explanation is given by Bryce himself. In the introduction to his work, Bryce states that whilst it may have seemed ‘natural’ for him to ‘tread in the steps’ of Tocqueville, he rejected the offer. He states that what Tocqueville has ‘given us is not so much a description of the country and people as a treatise’ (Bryce 1888, pp. 4-5). Bryce, on the other hand, assures his readers that he has
striven to avoid the temptation of the deductive method, and to present simply the facts of the case, arranging and connecting them as best I can, but letting them speak for themselves rather than pressing upon the reader my own conclusion (Ibid, p 5).
This lack of theoretical clutter appealed to many of the framers who congratulated themselves on their practical temperament. One example of the disfavour into which ‘elevated thinking’ had descended can be seen with regard to the separation of powers.
The American constitutional model came with a wealth of theoretical baggage. The Federalist and Anti-Federalist Papers provided analytical accounts of the very nature of the governance that the Constitution sought to establish. In turn these accounts drew explicitly from other theoretical texts. Perhaps the best known is the use of Montesquieu by both Hamilton and Madison when discussing the separation of powers in Federalist Papers numbers 47 and 78 (Federalist Papers 1987).
Yet while Madison could propound that the ‘celebrated’ Montesquieu was ‘the oracle who is always consulted and cited’ on the separation of powers, (Federalist Papers 1987, p. 303) the Australian reception was less forthright Sir Samuel Griffith, later Chief Justice of the High Court of Australia, observed at the 1891 Sydney Convention that
the framers of the American Constitution had been frightened by the tendency then lately exhibited in the United Kingdom of ministers to overawe Parliament, and they thought it extremely desirable to separate the legislature and the executive branches of government, following the arguments of a great writer — I should rather say a celebrated writer — of those days, Montesquieu, the wisdom of whose observations and the accuracy of whose deductions and assumptions of principles may be, I submit with great respect, very open to doubt (Debates 1891, p. 35)
How was it that in the case of Montesquieu, for example, the Australian framers had become so resistant to the interpretation of the American model? Partly this can be explained by the irresistible pull of responsible government. This was after all the system under which they had practised their politics. It was their legal inheritance. However, I would argue that there remains another, perhaps equally important reason, for the shearing of these models of their theoretical covers. It relates to the means by which the American model, was introduced as free of theoretical baggage.
I would like to return to where I began with Manning Clark and Federation. In the aftermath of 1975 Manning Clark wrote of the framers of the Constitution that they where not interested in the protection of fundamental liberties. ‘Our constitution’ he told his readers
was the creation of men who had quite different things in mind. They wanted a constitution that would reconcile the claims of defence, that pointed to a large state and centralized power, with their idea of liberty, that pointed to a small state and decentralized power - hence, the choice of a federal constitution. They wanted a constitution that would make capitalist society hum, but in which the institutions of the state could not be used to achieve what sections of the labour movement were already looking to the state to achieve - the making and unmaking of social conditions. The federal constitution was then work of bourgeois politicians. Just as we have been assured God made man in his own image, so the bourgeoisie made out federal constitution in their own image (Clark 1977, p. 18).
This view is consistent with Clark’s account of Federation. The framers opted for ‘facts; over ‘theory’ - thus Bryce over Tocqueville. The atheoretical inheritance has continued today with very little discussion of the theoretical dimensions of the Constitution. While it is possible to disagree with Clark’s account of the framers and their Constitution, He has given us an understanding of the theoretical aspects of the Constitution. Thus, according to Clark, our Constitution is Tocqueville’s constitution with its concern about the unruly mob and the rise of popular democracy. In making this claim Clark has opened up a debate that from the framers down we as a nation have been reluctant to have. The Constitution is a theoretical as well as a legal document. It remains however, contested terrain. While the framers may have shied away from associating themselves with the theories of Montesquieu and the Federalist Papers, they nevertheless adopted those institutions, like the separation of powers, that were critical to these authors. It may well be that a second look at our Constitution might highlight hidden theoretical footholds. However, unless authors follow the spirit of Manning Clark in seeing human and institutional events in their theoretical context the Australian Constitution will not get a second glance.
Clark, C. H. M. 1981. A History of Australia. Vol. V. Melbourne: Melbourne University Press.
Deakin A to Bryce J. 27 February 1890, MS Bryce 56 Folio 91, Bryce Papers, Bodleian Library, Oxford.
Dicey, A.V. 1885. Introduction to the Study of the Law of Constitution London: Macmillan. 10th edition 1961.
Eastwood, J. J. and Smith, F. B. 1964. Historical Studies in Australia and New Zealand, Selected Articles First Series. Melbourne: Melbourne University Press.
Just, T. C. 1891. Leading Facts connected with Federation. Hobart: "The Mercury" Office
Official Record of the Proceedings and Debates of the Australasian Federal Conference Melbourne 1890. 1890. Melbourne: Government Printer.
Official Record of the Proceedings and Debates of the Australasian Federal Convention Sydney 1891. 1891, Sydney: Government Printer.
de Tocqueville, Alexis, 1835 Democracy in America. London: Saunders and Otley.