Written Constitutions and the Politics of Recognition: Symbolism and Substance

Abstract

Written constitutions are a major site of contestation in the political struggles by marginalised groups to have their identities respected within public institutions – the ‘politics of recognition’, in Charles Taylor’s influential coinage. I argue in this paper that, in struggles over recognition, two dimensions of written constitutions are pertinent. The first – the constitutional dimension, which is the primary role of written constitutions – is to distribute and limit the most fundamental aspects of public power within the state. Accordingly, written constitutions may be amended to redistribute public power in a way that better respects a given group’s identity. A second element of written constitutions – a non-constitutional, symbolic dimension – is their status as cultural symbols of the polities to which they are attached. Constitutional amendments recognising identity groups may thus seek to render these symbols more inclusive and representative of the polity overall.

The politics of constitutional recognition have played out in recent years in Australia in relation to the nation’s Indigenous peoples, the Aboriginal and Torres Strait Islander peoples. Though many proposals for constitutionally recognising Indigenous peoples have been controversial, one sort of reform has garnered significant mainstream political support. This kind of reform entails the insertion of explicit but legally ineffectual mentions of Indigenous peoples within either a preamble or discrete section of the constitutional text. Several amendments along these lines have already been made to constitutions at the State level, and there will likely be a similar proposal put forward at the national level within the next few years.

Though these reforms take place within written constitutions, there is nothing particularly constitutional about them. Having no effect on the distribution of public power within the Australian legal order, such reforms focus entirely on the non-constitutional symbolic function of written constitutions. In this paper, I argue that attending to the expressive dimension of written constitutions should not be discarded from the politics of recognition: symbolic recognition in written constitutions can have salutary effects for those being recognised. However, as the Australian example shows, constitutional recognition that is purely symbolic can be deficient in two major ways. First, denying such forms of recognition any substantive constitutional function can have negative symbolic effects in itself. Second, the pursuit of wholly symbolic recognition in written constitutions often neglects valid grievances about how power is wielded by the state over the group in question. For both problems, the solution is pursuing substantive forms of constitutional recognition.

Keywords: constitutional law, politics of recognition, Indigenous peoples, Australia