Representation-Reinforcement and Australian Constitutionalism

Abstract

Constitutional theory in Australia, as in the USA and other liberal democracies, is contested by rival views of the proper roles of courts and legislatures. Simple adherence to the literal text of the Constitution or the original intentions of its framers is inadequate to protect against unjust actions by legislative and executive officials (the raison d'étre of an entrenched Constitution) when these appear in novel guises. But empowering judges to strike down laws they consider 'unjust' risks sacrificing democratic self-government, and the process can undercut the very goal (equal respect for all citizens) that it is supposed to ensure as an outcome. American theorists of 'representation-reinforcing' or 'process-policing' judicial review - outlined by Justice Harlan Stone in US v Carolene Products (1938), then elaborated by Professor John Hart Ely in Democracy and Distrust (1980) - offer a solution. Representation-reinforcement opposes judicial activism except on two grounds. The first is protecting majority rule, invalidating laws that entrench those in power against opposition or removal. The second is protecting minority rights, by invalidating laws motivated by prejudice that discriminate against unpopular groups. Constitutional courts should avoid dictating substantive policy outcomes, lest this undermine democracy. Instead, judges should concentrate on 'reinforcing representation' - on ensuring that political processes function properly, producing decisions that have maximum popular support. Many US constitutional scholars have criticised Ely's theory. But even so, representation-reinforcement remains a promising doctrine for Australia to adopt. Ely's American critics disagree even more with each other than with Ely, and most of their criticisms carry weight only in the USA's rights-based, individualistic context. Australia's Benthamite culture of majoritarian constitutionalism is more receptive to representation-reinforcement. And most other criticisms of Ely can be answered by revising, instead of abandoning, the concept of process-policing judicial review.