“To be fair, the Australian Constitution doesn't exactly invite reading, “ he claims. “Lacking the soaring prose of the US's transcendent example, or the Rainbow Constitution of Mandela's South Africa, much of ours resembles a conveyancing form quilled by a few local solicitors. Which in some ways it was.”
…has Mr. Adams actually read the US Constitution?…
As Thomas Flynn observes, Mr. Adams is probably thinking of the Declaration of Independence for its prose rather than the Constitution:
“Occasionally in Australia somebody who should know better confuses the landing of Captain Cook in 1770 with that of Captain Phillip in 1788. Perhaps the American equivalent is mixing up the Declaration of Independence of 1776 with the Constitution passed by the Philadelphia congress in 1787, which contains no soaring prose and is hardly a transcendent example of literary style. If sections 121-124 of the Australian constitution (admission of new states) is somehow worse writing than Article IV.3 of the American constitution (same topic) then I am too dull to see it. I would have said section 61 of the Australian constitution “the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General…” is more poetic than its US equivalent, “the Executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years…”
The virtue of the US constitution is that it is succinct and does not try to anticipate every contingency. But the US Constitutional preamble is, in my view, no more moving than our Preamble that is the Preamble to Commonwealth of Australia Constitution Act.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
“Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: “
( Western Australia was admitted later, but still as an Original State, by Queen Victoria after she was satisfied they wished to join, demonstrated by the WA referendum results )
What mars the US constitution was the provision in Article 1, subsequently modified by the Fourteenth Amendment. This was that in determining the population of the states for the purpose of deciding the numbers of the House of Representatives the following formula was to be used. This was to take the “whole Number of free Persons”, exclude “ Indians not taxed”, and then add three fifths of all “other Persons.”
“Other persons “meant slaves, who of course did not vote. This meant that the slave owning states would gain seats in the House. Mr. Adams should be reminded that notwithstanding the soaring prose of the Declaration of Independence, the protection of the institution of slavery was one of the significant causes of the War of Independence. It was the basis of an alliance between Northern lawyers and Southern slave owners. Their delegates had a good command of the English language, although they did guild the lily.
The provision of the Australian Constitution in repealed section 127 is hardly of the same enormity “ [i]n reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”
This did not mean Aborigines could not vote. But this provision reduced the number of seats which Western Australia, in particular, could claim, which led to calls for its repeal before 1967.
Alone among the continents, Australia has never known the institution of slavery. Our first Governor Arthur Phillip, was determined to keep it that way. How proud we should be of our country.
…and South Africa?….
The South African experience is different from Australia’s. it is not surprising their recent constitution would be unlike ours. It is incidentally fortunate we did not put in a values clause in 1900; it would have included the White Australia policy which would probably have impeded its progress in the Imperial Parliament. The British government was strongly opposed to such racist policies.
There are proposals to write a new Preamble for the Australian Constitution, notwithstanding the rejection of the second referendum on this in 1999.
Preambles speak from the time of the adoption of a document; it seems to me to be curious to insert a new preamble more than 100 years after its adoption. I would think that if you proposed this in the US, or in the UK as regards, say, Magna Carta, this would not be taken seriously.
In any event the South African Constitution opens with these words:-
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country;
and Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person;
and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
a. Human dignity, the achievement of equality and the advancement of human rights and freedoms.
b. Non-racialism and non-sexism.
c. Supremacy of the constitution and the rule of law.
d. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness