Jack Balkin's Constitutionalism and the Expert Panel on Constitutional Recognition of Indigenous Australians

University of New South Wales Law Journal, Vol. 37, No. 2, pp. 407-433, 2014

Sydney Law School Research Paper No. 14/83

28 Pages Posted: 4 Sep 2014

See all articles by Luke Beck

Luke Beck

Monash University - Faculty of Law

Date Written: September 2, 2014

Abstract

This article approaches the Report and recommendations of the Expert Panel on Constitutional Recognition of Indigenous Australians from the perspective of constitutional theory. It argues that the Expert Panel's Report and proposals strong reflect the constitutional theory of the American constitutional theorist Jack Balkin, as set out in his books Living Originalism and Constitutional Redemption: Political Faith in an Unjust World. The article claims that the Expert Panel conceives of the functions of the Australian Constitution in much the same way as Balkin conceives of the functions of the United States Constitution as simultaneously basic law, higher law and our law. The article also claims that the Expert Panel's adoption of this kind of thinking, which is misplaced in the Australian context, can be seen as a critique of the legitimacy of the Australian Constitution. The Expert Panel implicitly suggests that the Australian Constitution can be made more legitimate. Finally, the article also claims that the Expert Panel is engaged in a project of constitutional redemption.

Keywords: Balkin, Expert Panel, constitutional recognition, indigenous people, constitutional amendment, constitutional redemption, constitutional legitimacy, basic law, higher law, our law

JEL Classification: K10, K30

Suggested Citation

Beck, Luke, Jack Balkin's Constitutionalism and the Expert Panel on Constitutional Recognition of Indigenous Australians (September 2, 2014). University of New South Wales Law Journal, Vol. 37, No. 2, pp. 407-433, 2014; Sydney Law School Research Paper No. 14/83. Available at SSRN: https://ssrn.com/abstract=2490771

Luke Beck (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
47
Abstract Views
298
PlumX Metrics