¹ George Mason's opening comments on the question of constitutional amendment at the 1787 Philadelphia Convention: see Farrand, M, The Records of the Federal Convention of 1787 (1937) vol 1 at 202-203Google Scholar, quoted in S Levinson, “Introduction: Imperfection and Amendability” in S Levinson (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995) at 3.

² For example, some provisions in the Indian Constitution are, by judicial interpretation, absolutely entrenched, in the sense of not being subject to amendment; unamendable provisions of the German Basic Law are expressly provided for in the constitutional text. See Katz, E, “On Amending Constitutions: The Legality and Legitimacy of Constitutional Entrenchment” (1996) 29 Colum J L & Soc Probs 251 at 265-273Google Scholar. Only under the Austinian version of legal positivism, where the existence of an unlimited sovereign is a necessary condition for the existence of law, does the notion of immutable constitutional limits court logical absurdity.

³ For example, Rawls, J, Political Liberalism (1993) at 238-239Google Scholar argues that Art V, the amendment provision of the United States Constitution, sanctions only those amendments which are historically in line with the “original promise” of the Constitution, excluding those which fundamentally contradict the constitutional tradition.

⁴ For example, Bruce Ackerman's constitutional theory holds, contrary to orthodoxy, that Art V is not the exclusive route by which the United States Constitution may be amended. See Ackerman, B, “Constitutional Politics/Constitutional Law” (1989) 99 Yale LJ 453CrossRefGoogle Scholar and Ackerman, B, We the People: Foundations (1991)Google Scholar.

⁵ The current debate in the United States over the exclusivity of Art V is one of the defining debates for contemporary American constitutional law and theory.

⁶ Winterton, G, “The States and the Republic: A Constitutional Accord?” (1995) 6 PLR 107 at 118-123Google Scholar discusses how some such issues arise in the context of establishing a republic.

⁷ H Zwar, “Let's stay the way we are” Australian 28 January 1998 at 13 claims that this “encapsulates nearly the strongest argument for retaining the present system”.

⁸ There is also scope for disagreement as to whether a particular harm or benefit is caused by or occurs in spite of the Constitution. For example, whether the level of individualism, egoism and social conflict in the United States is the result of constitutional “rights-talk” or is the product of other cultural factors may be a matter of debate.

⁹ S M Griffin, “Constitutionalism in the United States: From Theory to Politics” in S Levinson, above n 1 at 44.

¹⁰ Ibid.

¹¹ Lessig, L, “What Drives Derivability: Responses to Responding to Imperfection” (1996) 74 Texas LR 839 at 847Google Scholar refers to Roberto Unger's political theory to make this point.

¹² In Australia all would agree that the Constitution is working to the extent that there is an absence of frequent or dramatic constitutional crises (Griffin's other indicia of constitutional success). I examine below the possibility that this extreme sense of constitutional breakdown underpins the monarchist's notion of brokenness.

¹³ Russell, P H, Constitutional Odyssey: Can Canadians Become a Sovereign People? (2nd ed 1993) at 106Google Scholar.

¹⁴ In moral theory it is generally accepted that “ought” implies “can”. That is to say, the imposition of moral duties must pass the requirement of practicability—it cannot be that one must do what one is in fact unable to do. But whether or not a polity can undertake deliberate constitutional change depends on the strength of its own political will and commitments, factors which can in theory be influenced and changed by the actions of individuals and groups who are part of the polity. To that extent, whether or not a political community can effect constitutional amendment is, at least in part, within its own control. (How much control will depend, of course, on how well democracy is working.)

¹⁵ Elster, J, “Forces and Mechanisms in the Constitution-Making Process” (1995) 45 Duke LJ 364 at 394 (footnotes omitted)CrossRefGoogle Scholar.

¹⁶ P H Russell, above n 12 at 106.

¹⁷ In the context of the republic debate, we might say that an attempt to codify constitutional conventions would proceed in more conducive circumstances now than in those existing immediately after November 1975. Of course, absence of crisis in no way guarantees constitutional good sense — but it does better the odds.

¹⁸ Michael Detmold has suggested to me that it is a “carry-all” argument which must be met. That is to say that the monarchist's argument is one in which people are asked to use their own criteria for constitutional success (whatever they may be) and then to apply the “if it ain't broke, don't fix it” maxim. However, if this is the nub of the monarchist's argument, it simply does not even call for a response from reformers, for on the republican's criteria the Constitution is patently not succeeding in some significant respect and that is precisely what they assert when calling for change. The monarchist's argument does not, therefore, constitute a response to the reasons republicans put forward as to why the Constitution should be altered.

¹⁹ S Holmes and C R Sunstein, “The Politics of Constitutional Revision in Eastern Europe” in S Levinson, above n 1 at 275.

²⁰ See E Burke, Reflections on the Revolution in France (J Pocock ed 1987).

²¹ Here is not the place to consider the plausibility of philosophical conservatism. However, to argue that all innovation equates to bad change would be to accept what Bentham called the “Hobgoblin argument”. Bentham's “exposure” of this “political fallacy” still hits the mark: “To say that all new things are bad is as much as to say that all things are bad, or in any event that all were bad at their commencement. For of all the old things ever seen or heard of, there is not a single one that was not once new. Whatever is now establishment was once innovation.” HA Larrabee, Bentham's Handbook of Political Fallacies (1952) at 94.

²² Maybe the fear is that one change will have a domino affect. Here Monarchists would also need to mount first order reasons against the predicted further changes. It is worth noting, however, that rapid constitutional change via amendment is not a spectre which haunts us in Australia.

²³ Lloyd Waddy's heart-felt plea in his opening address at the recent constitutional convention — “Hands off our Constitution!” — is indicative of this view. Such a position is liable to raise the familiar objection of the inter-generational legitimacy of any constitution, which can be used to question the sense of having a constitution at all. I express no views on this issue here. However, it is worth noting that the possibility and practice of constitutional amendment may absorb some of the force of the inter-generational objection (and, on some views, avoid what Bentham dubbed the “wisdom of our ancestors fallacy”, that is, the view that “the opinions of men by whom the country … was inhabited in former times” are inevitably or inherently superior to those of a reformer). Larrabee, above n 20 at 43.

²⁴ See Levinson, S, Constitutional Faith (1988)Google Scholar.

²⁵ SM Griffin, above n 9 at 37-38. White, S D, “Idolatry in Constitutional Interpretation” (1993) 79 Virginia L R 583 at 587Google Scholar has gone so far as to claim the civil religion of the United States Constitution extends beyond popular culture to the legal academy, describing the interpretive efforts of American constitutional scholars “as a species of 'idolatry"'.

²⁶ In recent constitutional theory the ability of the Australian people to have effective and meaningful recourse to the s 128 procedure has become an important consideration when assessing success or failure of our constitutional system. Also, given modern society is in a state of flux (where, as Marx said, “all that is solid melts into air”), we are at least entitled to ask whether the Constitution is in good working order if it is never, or rarely, amended.

²⁷ S M Griffin, above n 9 at 38.

²⁸ Dworkin, R, Law's Empire (1986) at 380Google Scholar.

²⁹ Ibid at 380.

³⁰ Ibid at 400-403.

³¹ For compelling refutations of his theory of legal interpretation, see Marmor, A, Legal Theory and Interpretation (1994)Google Scholar, and Waluchow, W J, Inclusive Legal Positivism (1994)CrossRefGoogle Scholar.

³² If the High Court were to adopt a Dworkinian approach to interpretation, it would clearly be prudent to take this into account when exercising powers of amendment.

³³ Goldsworthy, J, “Originalism in Constitutional Interpretation” (1997) 25 FL Rev 1 at 49Google Scholar.

³⁴ For accounts of this legitimating role, see B Ackerman, “Constitutional Politics/ Constitutional Law”, above n 4, and Toohey, J, “A Government of Laws, and Not of Men” (1993) 4 PLR 158Google Scholar.

³⁵ As Jeremy Waldron has explained, we sometimes have the right to do wrong, the right to do what we ought not do: see “A Right to do Wrong” (1981) 92 Ethics 21-39. Where rights protect an area of personal or collective choice, it thus makes perfect sense to argue that a particular exercise of those rights is foolish, immoral or unjust.

³⁶ S Levinson, “How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) >27: Accounting for Constitutional Change” in S Levinson, above n 1 at 26.

³⁷ Note, however, that Dworkin has long rejected the view that hard cases do not have a “right” answer, notwithstanding the Olympian nature of Dworkinian adjudication: see “No Right Answer?” in P Hacker and J Raz, Law, Morality and Society: Essays in Honour of HLA Hart (1977); Taking Rights Seriously (1978) at 279-290 and 331-345; and R Dworkin, above n 27 at 266-275.

³⁸ L Lessig, above n 10 at 845.

³⁹ (1992) 174 CLR 455.

⁴⁰ Detmold, M J, “The New Constitutional Law” (1994) 16 Syd LR 228 at 248Google Scholar.

⁴¹ Assuming also, for current purposes, that we want the substance of a Bill of Rights. It should be noted that part of Detmold's argument is that there are considerable advantages to be had by avoiding textual constraints on our freedoms, which he sees as best protected under a common law approach to adjudication: ibid.

⁴² G Brennan, “The Parliament, the Executive and the Courts: Roles and Immunities” (Address delivered at School of Law, Bond University, 21 February 1998).

⁴³ In assessing the risks of alternatives it is important to remember that successful constitutional government presupposes certain cultural conditions. (Cf Raz, J, “The Politics of the Rule of Law” (1990) 3 Ratio Juris 331.CrossRefGoogle Scholar) As such, how well particular arrangements suit a particular polity, given its history (told from various perspectives), institutions and political culture, is always an important question.