Constitutional Reticence

our conduct be when pursuing constitutional reform?I believe that aspiration and reality can be bought into better conjunction.The solution lies in a combination of a more realistic sense-or at least a more focussed and more modest sense-of what constitutions should attempt to achieve, together with an ethic that citizens and politicians should observe in pursuing constitutional change, namely an ethic of restraint.Both are important.The first is crucial in order to determine what we should expect from our political structures.Being clear on that will produce better constitutionalism, less prone to illusion and more conducive to what makes for a healthy polity.And the ethic too is important, for we generally do expect something more from our constitutions than we expect from our ordinary politics.That 'more' is what we are grappling with when we invoke consensus or the 'common values that all Australians share'.As I have already made clear, I do not think that the language of consensus and shared values hits the mark, but it does capture the genuine insight that constitutions are different from day to day political life.This paper is an attempt to identify that difference and to suggest its consequences for constitutional reform.It is, in essence, a reflection on the role of constitutions, attempting to derive from that role prescriptions as to what we should seek to achieve when we create or revise them.Its fundamental argument is applicable to constitutional practice generally, not just reform.Its essential message is that the 'constitutional' should be discerned with some care, and that a clear sense of the institutional role(s) of constitutions within democratic societies should colour the ways in which we draft them, change them, i nterpret them, and organise the functions of the various organs of governments around them.Moreover, that colouration is not easily definable-indeed is not properly definable-as a set of rules or boundaries.It operates rather as a disposition-an ethic of constitutional reticence. Dimensions of the ProblemTo this point, one might be forgiven for thinking that tlris paper is simply about the usual gap between aspiration and execution: we would like constitutions to be above politics, but of course they're not.But there is considerably more at issue.This paper speaks to a number of problems that commonly afflict constitutional reform.One is a frequent tendency for the agendas of constitutional reform to run away with themselves, so that they intrude upon matters that seem manifestly to be the stuff of ordinary politics.Matters of perennial discussion and debate come to be entrenched in constitutional form.Perhaps the most extravagant examples are found in the Brazilian Constitution of 1988.The Brazilian State is, for example, instructed to 'favour organization of cooperatives for prospecting and placer mining activity', and told that 'Prospecting authorization shall always be for a limited period, and the authorizations and concessions provided for in the article may not be assigned or transferred, either in whole or in part, without a prior consent from the granting authority.'1The Brazilian Constitution contains complex provisions that govern the acquisition of various categories of land through prescription.2The constitution becomes cluttered with provisions that have little to do with the fundamental organisation of political life.Constitutional politics threatens to absorb all politics, and the coinage of constitutional protection is devalued.Brazil may be an extreme case, but the general tendency is familiar.The United States had its unhappy experience with the prohibition of alcohol in the 1920s, and more recently with a rash of attempts to require constitutionally that budgets be balanced.3In Canada, the round of constitutional negotiations that led to the failed 'Charlottetown Accord' in 1992 suffered from an overcharged agenda, as a wide range of political actors sought to have their interests reflected in the text of the constitution.Many of these items were a matter of legitimate constitutional concern, but others-such as a proposal for a social charter, which ultimately produced a set of 'policy objectives' to which all legislatures and governments were said to be committed-stretched the boundary between ordinary and constitutional politics.4The constitutions of various countries, including Ireland and India, contain 'directive principles' of governmental policy.5Indeed, the whole movement in international law towards the recognition of 'second' and 'third generation' rights,6 when translated into state constitutions, raises difficult questions about the role of constitutions both symbolically (are people who disagree with the constitutional policies deficient in their citizenship?)and as legal instruments (what effect, if any, should those policies have on governmental action?7).Is there a way of deciding what things are appropriate for inclusion and Constitution of Brazil, articles 174(3) and 176(3), translation from Albert Blaustein and Gisbert Flanz, (eds) Constitutions of the Countries of the World (Dobbs Ferry, New York: Oceana loose-leaf service) vol 3 Release 98-6.

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