–Dylan Lino, PhD Candidate, Melbourne Law School; Visiting Researcher, Harvard Law School
Constitutions are a major site of contestation in what Charles Taylor has influentially termed the ‘politics of recognition’. As marginalised groups struggle to have their identities properly respected within public institutions, attention frequently turns to the contents of constitutions and the ways in which they reflect the concerns of dominant groups and exclude those of subordinated groups. In this post, I consider recent developments from Australia where efforts have been made to recognise Australia’s Indigenous peoples, the Aboriginal and Torres Strait Islander peoples, within State and Federal constitutions. These developments help to show that, when it comes to the politics of recognition, there are two pertinent dimensions of constitutions: a constitutional dimension and an expressive dimension. The Australian developments also underscore problems that result from privileging the expressive at the expense of the constitutional. (This post is based on a longer, more detailed paper, which can be found here.)
I’ll start with an overview of what I’m calling the constitutional and expressive dimensions of constitutions. The constitutional dimension concerns constitutions’ role in establishing, channeling and limiting the basic power of the state. They typically create major governmental institutions such as legislatures, executives and courts; define those institutions’ powers and interrelations; delineate important aspects of the relationship between the state and citizens, including guarantees of basic rights; and for federal systems, set out the respective powers, rights and duties of the different orders of government. The constitutional dimension of a constitution is its primary function, its main reason for being.
The expressive dimension of constitutions concerns their role in expressing values, attitudes, histories and identities. Such an expressive quality may be designed self-consciously, as is often the case for constitutional preambles, but it will also be implicit within ordinary constitutional provisions and structures. The choice to set up a polity in a particular way – through a federal structure, for instance – inevitably expresses factual and normative beliefs possessed by the constitutional drafters. Constitutions, as against other laws, have a distinctive capacity to express what is of basic importance to the polity. This stems from the constitutional role they play (described above), as well as the formal entrenchment, legal supremacy and democratic pedigree that typically accompany them. The expressive dimension of constitutions concerns their place as reflections of and influences upon the polity’s identity.
What significance do these two dimensions have for the politics of recognition?