The Challenge for Courts in a Moderately Rigid Constitution

Abstract

While the challenges with highly flexible and highly rigid constitutions are well-known, comparatively little is understood about the challenges that may arise with moderately rigid constitutions. This article argues that moderately rigid constitutions increase the challenge for courts in two related respects. First, it places them between competing normative and practical demands. A moderately rigid constitution weakens the normative case for the judiciary to develop the constitution to, for example, expand protection for rights and freedoms, yet places considerable practical demands on courts to undertake such developments. Second, a moderately rigid constitution introduces an additional point of uncertainty into the law because its degree of rigidity is capable of supporting diametrically opposed conclusions depending on whether formal amendment is interpreted as being largely available or largely unavailable. The article illustrates this challenge by reference to Australia’s experience with a moderately rigid constitution.

Keywords: Constitutional Law, Constitutional Rigidity, Australia