Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution

Abstract:     
Counterfactual history - the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events - is a controversial business. Among supporters, counterfactualism is defended as serving a valuable heuristic function, and furnishing questions to drive research. But can the knowledge generated by counterfactual history have a real-world, functional application? Is it possible to use what we learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Constitution-making provides us with one answer. This proposition is illustrated with a discussion of the use made of the American Civil War by the framers of Australia’s Constitution in the 1890s.

Number of Pages in PDF File: 30

Keywords: constitutional history, comparative constitutionalism, counterfactual history, history and law

JEL Classification: K10, K30

Accepted Paper Series