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

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