September 9th, 2012

The Captain's Prop

Inflection Points: Some History, Some Speculation

I have to admit, I was a bit shocked when a simple observation of mine, that the GOP has a plank in its platform stating its aim to "explore a greater role for private enterprise in appropriate aspects of the mail-processing system", blew up into such a kerfuffle. The GOP, after all, has long been the party supported by anti-union forces in general and business leaders with private operations that compete with the USPS. Sometimes both.

I guess I was surprised by the anti-union rhetoric spewed in that post simply because I have long held a different mindset as to what drives union membership, one that seems to me as totally non-controversial, as natural as laws driving cloud formation. My mindset has blinded me to mindsets that lack this simple understanding about human nature, that instead rely upon a complex political and pseudo-economic rational for explaining the very phenomenon of unions. I'll address the latter later, but first I'd like to share my theory Collapse )

Collapse )
Son of Man

Fetish and Constitutionalism

In 'Does Australia have a Constitution?' Howard Schweber and Kenneth Mayer argue that a constitution has two components.  First, it establishes the organs of the state, defining and legitimising them, and establishes the mechanisms for resolving political conflict.  Second, it defines the limits of authority for those organs ('usually (but not necessarily) by defining a set of "rights"').

Schweber and Mayer contend that Australia lacks a constitution because the document called 'the Australian Constitution' fails to contain either of those components (short version: there is an organ of the State called 'the Prime Minister' but that organ is not mentioned in the Constitution, thus failing the first part; the limits of authority for those organs is not defined in the Constitution).

For discussion, I'm going to raise the question of whether Schweber and Mayer are correct when they assert these two components of a constitution, or whether they fall victim - as so many of us do - to the fetishing of constitutions.

There strong association in public discussion between constitutions and rights.  Australia has been criticised for being one of the few liberal democracies in the world without a charter of rights.  It should be noted that James Bryce, at one point one of the greatest liberal writers in the Anglophone world, praised the Australian Constitution for its lack of 'rights'.  When Bryce was writing, he had already finished his book, The American Commonwealth, which claimed the growing inequality and increasing poverty within America was, in part, due to the American rights-discourse.  The lack of rights in Australian constitutional law was indicative of its modernity, he said, and Australia's commitment to democracy.

Have we reached a point in political and legal theory where we entrench the concept of rights so deeply into our discourse that we are unable to challenge it?  Is Schweber and Mayer's analysis a product of that fetishism of constitutions which sees constitutional law as, necessarily, a higher form -- a more moral form? -- of law?