—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?
As for the constitutional dimension, the central point is that constitutions may be amended to restructure or limit the basic power of the state in ways that better respects a subordinated group’s identity. Possible constitutional reforms include guarantees of citizenship rights such as the franchise; protections against invidious discrimination; guarantees of representation in government institutions; protections of group rights to culture, language and territory; and the creation of federal arrangements to facilitate self-government.
As for the expressive dimension, constitutional amendments recognising marginalised groups can help to render an important public symbol – the constitution – more inclusive and representative of the polity. The constitution, as a public cultural artefact, can come to symbolise a respect for and validation of the perspectives, experiences and identities of subordinated groups.
Let me turn now to the Australian context, in which struggles over the constitutional recognition of Aboriginal and Torres Strait Islander peoples have played out in recent decades. Like other Indigenous peoples around the world, Aboriginal and Torres Strait Islander peoples have in the past 50 years increasingly articulated claims for recognition – of their citizenship, their peoplehood, their historical grievances of dispossession and discrimination – from the settler state. Australia’s constitutions, especially the Federal Constitution, have been a key domain in which demands for Indigenous recognition have been made. Australia’s constitutions contain few rights protections in general, let alone provisions on Indigenous rights. Indigenous demands for constitutional recognition have included protection against government discrimination; guaranteed representation in Parliament; rights to land, culture, language, self-determination and sovereignty; and entrenchment of a treaty between Indigenous peoples and the state.
For the most part, these Indigenous demands for constitutional recognition have been resisted by mainstream politicians. At the national level, the Constitution is very difficult to change, requiring majority approval in a referendum by voters nationwide and in at least four of six States. Indigenous peoples comprise 3 per cent of the population, making the task of generating enough support for constitutional recognition very difficult. A recent and ongoing official process to pursue Indigenous recognition within the Constitution has confirmed the difficulty of the task: comparatively modest reform proposals – the most significant is a constitutional prohibition on racial discrimination – have faced a major uphill political battle.
One exception to this general resistance to Indigenous constitutional recognition has emerged, however. Since the late 1990s, Australian governments at the national and State levels have proposed – and, in four States, enacted – constitutional provisions designed to formally and explicitly recognise Aboriginal and Torres Strait Islander peoples within the constitutional text. Contained in a preamble or discrete section towards the start of the constitution, these provisions take the form of a formal declaration acknowledging certain dimensions of Indigenous identity. For instance, the New South Wales provision states:
(1) Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State’s first people and nations.
(2) Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales:
(a) have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and
(b) have made and continue to make a unique and lasting contribution to the identity of the State.
Significantly, however, these forms of recognition are to be wholly symbolic and without legal effect. The New South Wales provision concludes:
(3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales.
Returning now to the distinction between the constitutional and expressive dimensions of constitutions, it’s clear that these recognition provisions disavow the constitutional and seek to instrumentalise the expressive. They are not substantively constitutional because they have no impact on the basic institutions of the state and how those institutions operate. The respective powers and rights of the state and of Aboriginal and Torres Strait Islander peoples are left entirely unaltered. The focus of these provisions is instead on the constitution as a cultural artefact and symbol, and on remedying its failure to respect Indigenous identity in constructing an image of the polity.
It would be very easy to dismiss such wholly symbolic attempts at recognition, and many people in Australia do. While I think they have a point, it’s worth acknowledging that the symbolic aspect of the politics of recognition can be important. (Of course, substantively constitutional forms of recognition, such as rights protections, can be powerfully symbolic too, a point I will return to below.) One potential virtue of symbolism is that it might help to generate a sense of belonging and self-respect among those recognised. Another is that symbolic recognition may positively affect social attitudes and behaviour towards those being recognised, creating attitudinal change and potentially paving the way for more significant future reforms. Symbolic forms of recognition might also be used as focal points for political activism (though this has not happened in Australia).
But there are nonetheless major shortcomings of pursuing wholly symbolic forms of recognition in constitutions, of the sort Australia has pursued in relation to Aboriginal and Torres Strait Islander peoples. One problem is that the symbolic message they send lacks coherence. On the one hand, by referring to Indigenous identity in the constitution, they symbolise the constitutional significance of Indigenous identity. On the other hand, the disclaimers attached to the Indigenous recognition provisions symbolically (and legally) repudiate that constitutional significance. These provisions, contained within constitutions but lacking constitutional force, commit a kind of performative contradiction and so are ill-suited to the task of conferring symbolic recognition.
The second problem is that real constitutional grievances held by subordinated groups such as Indigenous peoples are ignored and even occluded in the insertion into constitutions of wholly symbolic recognition. Aboriginal and Torres Strait Islander peoples in Australia have legitimate, proven concerns over the capacity of the settler state, especially the political branches, to disrespect their identities as citizens, as peoples and as members of a historically aggrieved group. Yet the Indigenous recognition provisions leave the question of whether or not the state will respect these statuses entirely at the state’s discretion. The problem is exacerbated by the fact that these reforms are typically framed as the endpoint of the recognition process, so as to shut down more significant demands for constitutional recognition. As the Prime Minister Tony Abbott has frequently said, Indigenous recognition is about ‘completing’ the Constitution.
I suggest that a better way to pursue symbolic recognition in constitutions is through substantive constitutional reforms: the symbolism of such reforms is more potent and coherent than wholly symbolic recognition. And if a particular group is of such fundamental significance to the polity as to be recognised within the constitution, surely such recognition should be constitutional in more than name only.
Suggested Citation: Dylan Lino, Constitutions and the Politics of Recognition: Some Australian Observations, Int’l J. Const. L. Blog, July 30, 2014, available at: http://www.iconnectblog.com/2014/07/constitutions-and-the-politics-of-recognition-some-australian-observations