Australian Popular Political Constitutionalism

Political constitutionalism has long been strongly associated with the conceptual categories and debates of British political constitutionalism. Looking to the constitutional text that ultimately emerged from the Australian convention debates of the 1890s, this article will show how Australia broke with British political constitutionalism by giving ‘the people’ a direct role in Australian political constitutionalism. This unique Australian constitutional system of ‘popular political constitutionalism’ has led to distinctly Australian practices and questions. First, this approach to political constitutionalism supports the implications the High Court has drawn from Sections 7 and 24 of the Constitution. The critical question for this jurisprudence is how the High Court can protect the role of the people without undermining Australian political constitutionalism. Second, this popular political constitutionalism has also shaped the role of proportionally elected upper houses in representing more than a simple popular majority in parliament. This practice raises the central question of how parliament can move beyond majoritarianism without creating too many checks on political majorities.