• Zagorath@aussie.zone
    13·
    11 months ago

    I’ve seen some very interesting arguments from legal practitioners that the US’s highly political constitution is a significant part of the reason their courts are so political, and that this is a good reason to have a much less political constitution like Australia does.

    The US constitution says “you have the right to have weapons” and also “you have the right to freedom of speech”, among many other things. Australia’s constitution is almost entirely dedicated to stuff like “the Commonwealth has the power to make laws about trade between states” and “politicians must be Australian citizens exclusively”.

    So in America you get the unelected Supreme Court making very politicised decisions like inventing a “right to privacy” based on the right against self-incrimination (and other express rights), and then taking that right to privacy that was invented by unelected judges, and using that as the basis for inventing a right to abortion. Now, like me, you might think having a right to abortion is a good thing, but in this case the way it was enshrined is obviously bad, because it was invented by unelected judges, and decades later was removed by future unelected judges, rather than the actual elected representatives of the people enshrining it in law.

    Yes, I think we should have a bill of rights that explicitly enshrines a number of important civil liberties, including free speech. But I’m not sure that a conditional amendment is the best way to do that.

    • AJ Sadauskas@aus.socialOP
      3·
      11 months ago

      @Zagorath Interesting points.

      If it were up to me — and this is purely hypothetical and would never happen — a constitutional Bill of Rights would contain:

      1. A list on restrictions on government power. (i.e. if a government does it, you can get it overturned in the High Court)

      2. A list of obligations that a government holds to it’s citizens, including health care and public education. If a government winds these things back, it can be challenged in the High Court. If a government fails to provide these, it can be sued by citizens in a civil trial

      3. A clause that explicitly states that all government budgets must make provision for the items outlined in part two. Budget cuts can potentially be challenged in the High Court.

      4. A legally non-binding list of expectations on citizens.

      5. A Treaty with First Nations that grants some additional protections to Indigenous communities.

      • Petri3136@discuss.tchncs.de
        1·
        11 months ago

        A list on restrictions on government power.

        Why just governments? That lets churches and corporations off the hook and right wing governments tend to give them more power anyway.

  • Echinoderm@aussie.zoneEnglish
    8·
    11 months ago

    Depends. What are you trying to achieve? The US has constitutional protection for freedom of speech, but it doesn’t seem to prevent police aggressively breaking up protests they don’t like.

    There are other things I think are more of a priority. For example, I would rather have strong media laws that prevent the mega-rich from using the media as de facto cheerleaders for their political interests.

    • AJ Sadauskas@aus.socialOP
      1·
      11 months ago

      @RaymondPierreL3 @australianpolitics Yes, constitutional protections depend on governments and independent courts upholding the constitution.

      And autocratic governments don’t tend to be good at that. But then, they also don’t tend to be good at upholding other parts of the constitution, such as free and fair elections.

      So if your government has slid that far towards dictatorship, nothing in the constitution will help.

      Where it can help is with overreach by governments in democratic countries. It provides a mechanism where people can go to the High Court (or its equivalent) to get the law overturned.

  • LeftyLabourTechToronto@mstdn.social
    3·
    11 months ago

    @ajsadauskas @australianpolitics Interesting. Here in Canada we went through this process 40 years ago with the incorporation of the “Charter of Rights and Freedoms” into our constitution in 1982. Prior to that we were like you, using British common law. The Charter isn’t perfect by any means, but on the whole it has expanded rights and been a positive thing.