Actions speak louder than words, results more than rhetoric. Peter Costello summarised it perfectly this morning. Wayne Swan really is out of his depth. Last year, Mr Swan promised no less than 500 times that he would deliver a budget surplus this year.
Senator Scott Ryan spoke in strong opposition against the Gillard Government’s attempt to regulate the media and stifle free speech in Australia.
Institute of Public Affairs, Melbourne — Thursday, 24 September 2009.
This is a Transcript of a discussion presented by Senator Scott Ryan at the Institute of Public Affairs on 29 September 2009 about a chapter he wrote for the 100 Great Books of Liberty. For the video of this presentation, click here.
Maybe it was a little odd for a sixteen year old, but I have long wondered about constitutional arrangements and their impact on liberty and the sort of society and government we develop.
I am also a bit of a natural contrarian – always a helpful starting point when the debate often turns to what governments can or should do to address a particular issue.
I first came across one of the federalist papers when I studied the French and American revolutions in my first year of University, sitting in the then dilapidated Education Resource Centre library at Melbourne University.
I had always been particularly interested in the American Revolution – both from a long-standing and instinctive unease with monarchy, as well as the ideas that underpinned it and it subsequent success as the great liberal republic – both in dealing with its own failings and challenges and its rise to international pre-eminence.
And something appealed to me that I had not otherwise read in my study of Australian politics, with its heavy focus on our British antecedence and the aspects of our system that were inherited from Westminster.
It was a particular passage that leapt out at me when I was reading a first-year textbook that led me to explore these further, to return to them for guidance over many years and provoke my thinking even as I wrote my own maiden speech last year.
It is from paper number 51, authored by Madison:
“It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other.”
One of the beauties of studying these two events together, and I should add by a particularly gifted lecturer in Peter McPhee of the University of Melbourne, is that it led me to clarify my own thoughts and beliefs about these issues.
I must also say that it was studying the French revolution, particularly the descent into the Committee of Public Safety and the Terror, that enlightened the true success of the American revolution.
This is not to say that the form of government or the authors are perfect, with their most glaring failure obviously being the issue of slavery and the position of African Americans in American society, but it is in the articulation of particular values that should underpin liberal constitutionalism and how they remain relevant today.
When considering the Federalist Papers, one needs to recall the historical events and timeline.
It is not widely recalled that the current form of government is not the first but the second of what we now call the United States.
Following the 1783 Treaty of Paris and the British acknowledgement of American Independence, the country struggled with the Articles of Confederation.
This approach had seen it successfully struggle through the War of Independence and since, but it contained a fundamental flaw.
There was no independent federal or national power – all decisions were dependent upon the ratification of states in the Congress, voting as blocs and with the members serving as delegates of state legislatures.
The federal government was not even a government in the sense that we might call one today. It had no authority to act independently of the states, it had no independent and permanent executive. In effect, it was more akin to a council of the states.
Most importantly, and this is the problem that the 1787 Constitutional Convention turned its mind to, it had no independent source of authority or relations with the people and was therefore racked with state rivalries and divisions.
But rather than simply revise the Articles of Confederation, the Constitutional Convention actually wrote a new one. Maybe it was the first lesson in the politics of hijacking a process and trying to deliver a different outcome.
It is also worth recalling that the leading states at the time were Pennsylvania and Virginia. New York was yet to rise to its place as the pre-eminent commercial and cultural centre of the United States.
James Madison was instrumental in this convention, so much so that he became known as the father of the constitution.
In this he worked very closely with Alexander Hamilton, a delegate from New York.
Interestingly both of them failed in persuading the majority of their own state delegations to sign the new document at the end of the Convention – Hamilton being one of only three from New York to do so, and Madison joining only two others of the seven delegates from Virginia to sign (one of the other two who did, being George Washington).
This set the stage for conventions to be elected across the states to ratify or reject the proposed new constitution.
It had to be ratified by nine states to come into effect – but it was critical that the larger states of Massachusetts, Pennsylvania, New York and Virginia adopted it. And of these, it was the latter two, New York and Virginia, where the most challenging debates and conventions would occur.
It was New York, the home of Hamilton, where the Federalist appeared in regular publication in the spring and winter of 1787-88.
They were published as essays in newspapers arguing the case for ratification of the constitution – but as they outlined the case for this new constitution, they also outlined the political and philosophical basis for a new form of government, liberal and republican, that remains relevant today.
Indeed more so than recent pieces published by one of our leaders in the Monthly.
Hamilton and Madison are better writers too, but that has as much to do with the quality of ideas as well as the writing. I have no doubt that in a century people will still be reading Madison and Hamilton, but the ideological diatribe of our Prime Minister will be long forgotten.
A total of 85 essays were written and published. All of them were originally published anonymously, under the pseudonym ‘Publius’.
The driving force of the series of essays was Alexander Hamilton, writing 51 of them. He was assisted in the early stages by John Jay, the future Chief Justice of the Supreme Court, who wrote 5 but was unable to continue due to illness.
Hamilton then recruited his fellow convention delegate James Madison, who wrote 29 of the pieces. On several articles Madison and Hamilton collaborated and they are now credited jointly.
While they were originally simply newspaper articles or essays, and their impact on the subsequent successful ratification and adoption of the new Constitution has long been questioned, they were soon acknowledged as a political classic.
They were first published in book form in 1788 simply as the Federalist and have been know since the beginning of the last century as the Federalist Papers.
Interestingly, despite their close collaboration at the convention and during the ratification debates, the close allies Madison and Hamilton would soon fall out bitterly over the powers and scope of the new government that they did so much to bring into being.
Hamilton became Treasury Secretary and the leading adviser to Washington as first President and the leading exponent of an active federal government while Madison became the leading exponent of one much more limited in scope and activity as a member of the House of Representatives, the de facto first leader of the opposition.
The first political parties were forming around the divergent ideas of the two men who thought they knew the new form of government better than anyone else – Hamilton’s Federalists and Madison and Jefferson’s Democratic-Republicans.
While Madison won the immediate political battle – supporting Jefferson’s successful campaign to unseat John Adams (primarily over the use of federal power and the Alien and Sedition Acts) and then subsequently was elected President after Jefferson – it is Hamilton’s vision of the federal government that ultimately prevailed.
Indeed, these competing visions of the federal government and the fissures opened up by these debates can be seen underpinning modern American political debate in many ways today.
We need to understand what this publication outlines beyond that which it immediately sought to achieve, which was simply the ratification of the new constitution in the state of New York.
It argues that the power of government or the state needs to be divided in order to limit it.
It builds on the work of Montesquieu in outlining the case for a strict separation of powers between the executive, legislative and judicial.
It further builds on this theory by outlining a compound republic. One in which power is divided within government (horizontally if you will) – with a further division of government in a vertical sense, between the national or federal authority and the states.
It was the first modern federal republic.
It does this at the same time as instituting popular control and popular sovereignty – via elections, conventions to adopt, ratify and amend the constitution, as well as through competing elections and competing mandates.
But it also does this by placing an authority above all three branches of government and both levels of government (or departments as they would describe the branches of government in the Federalist).
The constitution, adopted by the people via conventions, is supreme.
No elected official, no judicial officer can reach beyond this delegation of authority from the people and act as they see fit, or indeed as a majority of the population may see fit at any given time.
As people concerned with the limitation of the state, both in activities and reach, the lesson for liberals from the Federalist is a practical one in containing Leviathan.
And in terms of its success, I would argue it has stood the test of time.
The various failures of the American Polity, and as I mentioned earlier the place of slavery and civil rights for African Americans is undoubtedly the most critical, these were failures as much of society and politics as they were of constitutional arrangements following the Civil War and the abolition of slavery.
I might add that as liberals we do not seek perfection through government – it is in the limitation of its evils and wrongs that we believe our freedoms and liberties are protected.
The Australian experience of democracy is very different to that of the United States and Britain.
Following the period of reforms in Britain from the Glorious Revolution through to the beginning of the 19th Century and the rise of the Whigs and Liberals, Parliament was seen as the liberator and the guarantor of liberty, primarily from an executive.
Constraining the power of the executive and its various privileges was the prime driver of liberalism.
This was followed, in the 19th Century, by the Reform Acts that liberalised the franchise and saw Parliament take its place at the centre of national life.
The Colonial Self Government Acts instituted in Australia reflected this, with the vote being seen as the tool to protect liberty – but also to achieve common aims, following the rise of utilitarian liberalism.
Our tradition is primarily one that sees Parliament and elected Government as a force for liberalism.
But I think this undervalues the structures we have inherited by virtue of our written, federal constitution. The American aspects of our body politic and constitutional arrangements are as important as the Parliamentary form of government we have adopted – particularly when considering the defence of our liberties.
And I contend that in this day of government and the state reaching further and further into our national and personal lives that it is the values and principles expounded in the Federalist that we should look back to today for inspiration.
For can we any longer say Parliament is a tool or vehicle for liberalism?
It is the separation of powers within a level of government that stands out as the most obvious difference between Australia and the United States, and it is the focus of much of the Federalist.
Virtually no-one argues today, particularly in Australia, that Parliament performs the role it theoretically used to – the House of Representatives has long since given up its role as a serious check upon the executive.
The rise of modern political parties, and in particular the binding caucus rule adopted by the Labor Party, have long since seen to that.
I am proud to say that the party I represent has never adopted this rule, indeed I hope it never does. It has killed the independence of Parliament and neutered this historic role.
But this also means we need to reconsider our arrangements and test them against the realities of today, rather than the theories of Dicey, Bagehot and Bryce.
I am not claiming that the House of Representatives does not do anything to hold the government to account – it occasionally does – but it is more a forum for the government of the day than it is for the opposition.
It is this combination of the executive and legislature and the consequent concentration of power that poses a danger to liberal society through dramatically empowering agents of the state.
In this sense the Federalist holds that process is important – not simply the outcome on any given issue.
It is through competing centres of power and competing popular mandates – the executive versus and within the legislature itself – that it is most effective at protecting freedoms and constraining an eager state or an eager majority.
The different methods of election, constituencies and terms of office of our Senate reflect the arguments outlined in the Federalist.
They flow from a belief that a Parliamentary majority (by definition a temporary one in a democracy such as Australia) should not have the power to act as it sees fit at any given time, absent of constraints other than a subsequent election.
The separation of powers and division of the legislature is intended to constrain elected officials – both the legislature and executive in the United States, but mainly the legislature in Australia.
We are currently debating a transformative piece of legislation in the proposed Emissions Trading Scheme. Does anyone here think that Australia would be better off with the government of the day simply being able to ram legislation through as it saw fit with a majority in one house of Parliament?
But the Government reacts with outrage at the concept of having to negotiate – as if its election gave it the right to legislate as it sees fit.
We see a different situation regarding the same issue in the United States – where the acceptance of the need to negotiate and consider issues over time are not questioned.
This is a key lesson from the Federalist that liberals should retain – regular elections on their own are but one measure to protect liberty and freedom.
A simply majoritarian view where a government or parliament acts as it sees fit (what we might say is the classic Dicey view of an utterly sovereign Parliament) is not necessarily a force for liberalism. It can lead to highly illiberal outcomes.
It is this fear of the tyranny of the majority that underpins the division of power within government and between levels of government outlined in the Federalist.
Madison outlines in number 10:
“A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party.”
For the state does not always act in an illberal fashion without the public support to do so – or occasionally with assumed public support.
Our own experience in Australia can illustrate this.
When the Commonwealth sought to ban the Communist Party, the legislation was passed by the Parliament and subsequently rejected by the High Court. It was then rejected by the people at referendum.
Similarly, the Chifley Government’s attempts to nationalise the banks and airlines were overturned and then rejected by the people at an election at which it was a major focus.
I will return to these events later as they illustrate another key lesson we can learn from the Federalist.
Recognising the fear of majority faction is critical to the Federalist Papers.
For liberals today, constraining the power of the state is critical to ensuring a vibrant civil society.
The state inevitably crowds out civil society and activity – economic and otherwise.
Constraining the power of the state can limit political bidding wars as politicians promise to solve every imaginable problem from family breakdown to climate change or to achieving perfect economic equality.
In this sense Australia has found itself at a convenient halfway house between Britain and the United States, and this in particular is attributable to our unique constitutional arrangements.
Again, returning to the mid 20th Century fad of nationalisation in Western countries, whereas post war parliamentary majorities in Britain nationalised industries and firms across the economy, in Australia this was unachievable due to the arrangements that constrained the elected majority of the Commonwealth Parliament.
In the United States we did see regulation of monopolies and significant industries but we never serious attempts to seize them and place them under state ownership.
While I am not aware of any studies further investigating this, I cannot help but wonder whether the fact that the model of the state outlined in the Federalist, limiting and delaying state action, placed limits upon the expectations of politicians as well as the electorate. These limits constrained passions that we now know were temporary and that were counterproductive to the very low aims they even set themselves when instituting such policies.
Does a constrained state limit the potential for simplistic statist bidding wars? Again, there can be no single answer to this question, but the fact that politicians may find it hard to continually promise what they cannot deliver may only constrain these tendencies.
Constraining the state, I believe, is important for liberals – for the simple view that what the state does cannot easily be undone, and it does not place sufficient weight on the problem of state inertia.
Every time the state grants a privilege or extends its sphere of activity, it creates a new class of people with an interest in perpetuating that activity.
To place it in a context apt to our own expanding nanny state, placing government on a strict diet and shedding the pounds is a lot more difficult than it is for the state to increase its scope, or to stretch the metaphor to breaking point, to increase its girth.
Finally, this division of power outlined by the Federalist is further strengthened by the creation of the compound republic I mentioned earlier – where power is further divided between the federal or national authority and the states, with the status of both levels of government entrenched, and only subject to amendment with a super majority or popular consent.
This is the element of our own constitutional arrangements that is most reflective of the Federalist – indeed our founding fathers took it further by requiring amendment to only be undertaken via referendum and direct vote of the people, with a geographically diverse majority as well as a popular one.
It is these aspects of our arrangements that I believe have been the most valuable in constraining illberal actions in Australia.
To return again to the issue of bank nationalisation and legislation banning the Communist Party – it was the federal nature of our constitution that prevented the Commonwealth taking such action.
It was not the British Parliamentary traditions, or the common law, that held these impulses in check or protected people from those actions.
Of course, it was always possible that people might vote differently at a referendum, and different outcomes could have occurred at the subsequent elections. No constitution can stand in the way of public opinion forever.
Similarly, following the 1987 double dissolution of Parliament, the Australia Card was knocked on the head by a Senator, I believe it was John Stone. He pointed out with a note from a former, senior public servant, that the regulations could be disallowed by the Senate, and the legislation therefore dismembered. Again, it was one of the aspects of our constitution that is outlined so strongly in the Federalist that protected us. It wasn’t the election itself, nor was it the House of Representatives.
It’s also worth pointing out that that issue was not in any way a subject of much public debate during the 1987 election.
Constitutional arrangements cannot totally prevent illberal abuse of power – but the competing mandates and sources of power place temporary limits on their use by leaders and political officials. They force issues to be considered over a longer period of time, allowing the opportunity for popular will to develop and then intercede.
I would also suggest that the Federalist has done a better job of protecting the federal division of power than our own.
Madison and Hamilton outline that federalism is not about borders. It’s not about where or when they are drawn – it is about an entrenched and constitutional division of power as I mentioned earlier, not amendable by one level of government. It is about different elections, competing mandates allowing communities choosing their own path.
Menzies once referred to the ‘curse of uniformity’ in Australia. Since he made the comment, this tendency has only grown.
I hasten to add I am not arguing for ‘states rights’ – I don’t believe they have any – and the Federalist outlines exactly how local majorities can be just as problematic for liberty as national ones. Rights remain with the people.
But the division of power within the national or federal government in America, compared to its relative concentration in the Westminster system, has undoubtedly provided a greater opportunity for the federalist impulse to fight the centralist tendency.
Again, I hasten to add this has not always been used for liberal ends – particularly with respect to civil rights in the United States – but no level of government has clean hands in this regard.
Just as state governments in Australia have undertaken various illberal acts limiting speech and assembly over the years, so have they in America – as have both national governments.
The Federalist expounds the view that it is the division of power that is important – and the lesson for us today is that it is this principle we should defend.
Placing greater power in the hands of one person, one chamber, one level of government or indeed a single election only provides a greater opportunity for officials to act absent of checks and balances.
No one level of government or group of elected officials can provide all the answers to the issues that we expect our political system to address.
The critical measure by which a federal arrangement needs to be tested is whether it is entrenched and how effective the protections are for both levels of government.
And for those who desire a capacity for national action I would remind them that just as I would not want my hospitals to be run by the same people or to the same standards as New South Wales, I am sure the people of Western Australia are pleased that public safety and policing are being managed by their government rather than mine here in Victoria.
An independent and entrenched judiciary was a core element of the arguments outlined in the Federalist Papers.
This issue has been a less relevant subject as this had become the accepted wisdom in Britain at the time and was reflected in our own colonial and federation arrangements.
But there is a particular twist that is highly relevant today.
It is again often forgotten that the US Constitution did not originally contain the bill of rights. They are referred to as amendments for a reason. They were only adopted (the first ten) following ratification as the political price for various states to adopt the new constitution.
Indeed, the Federalist itself strongly outlines the case against a bill of rights.
In number 84, Alexander Hamilton pulls no punches when he says:
The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.
His view being that institutional arrangements were sufficient protections in themself.
But he also outlines the view that many proponents of such measures in Australia would do well to remember today:
Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
I will conclude with an observation about one of the issues that was prominent last decade and will likely rear its head again – the question of an Australian republic.
I will declare my own interests here. I have long been a republican (partly for the issue I mentioned at the beginning of this paper) but I did campaign and vote against the referendum in 1999.
My own thoughts in this regard have been highly influenced by the Federalist.
For as it outlines so extensively – republicanism is about a form of government rather than simply a head of state.
I appreciate the difficulty in crafting any consensus around constitutional change – indeed that is one of the great virtues of our own arrangements.
I could not help but think that the last republican debate in Australia was more about nationalism than it was republicanism – dominated as it was by the argument that we simply need an Australian for head of state.
Maybe I am an idealist, but republicans would do well do use the opportunity of this debate to investigate how those republican elements of our constitution could be strengthened.
What has been weakened over our first century? What could we do to strengthen for the next?
The model put forward last time weakened one of these by increasing the power of the Prime Minister, maybe only slightly, but in a time of crisis this could be a critical shift in the balance of power.
It failed the test outlined by the Federalist – does it constrain the arbitrary use of power? Does it provide for a check and balance? Does it provide for different opinions to be heard?
The federalist has stood the test of time. Like all political documents it has its inconsistencies and imperfections, but I am not a utopian. As a liberal I do not believe that any political document will or should desire perfection.
While the inconsistency of the treatment of people within the United States stands in stark contrast to many of the values expressed in the Federalist, the form of state it created did eventually deal with these.
The Federalist outlines a constrained state, but not one that is so weak that it cannot unify at times of crisis, address its own issues, and bring its incredible force to bear.
In this era of government seemingly reaching further and further into our lives – telling us what we can eat, how much we can drink, whether we can use our air conditioners on a summer day and what we can say – an unconstrained state represents the greatest threat to liberty and civil society that I believe we face at the moment.
Whenever the states brings its force to bear it constrains the choices of individuals.
We would do well to look at the Federalist and reconsider its place in our own thoughts about constitutional arrangements and how we envisage the protection of our liberal state and our second century of federation.