What our Covid policy disaster shows is that, in the end, the constitution that governs our ruling class is the one in our citizens’ heads.
Right now both legal and lay people are struggling to find a procedural way to protect their fundamental rights.
In Australia, some of the lay approaches are based in ignorance or misinterpretation of constitutional law, or in bizarre fantasies of property rights, the monetary system, birth certificates, sovereignty and…who knows what.
But legal scholars shouldn’t be too smug. Ironically, law is ineffective at protecting the rule of law. It certainly doesn’t defend the liberal norms that protect individuals, nor create accountability for governments determined to be unaccountable.
Liberal norms may not be part of any law or constitution. Nonetheless, they are still the values that underpin our society and the rule of law.
As can be seen in Communist countries, the presence of a constitution that protects individual rights means nothing. At various times, the Soviet Union and North Korea have had model constitutions. In action, the regimes ignored them. When criticised, the regimes merely pointed to their provisions. They meant nothing, because the people in those regimes didn’t value constitutionality, or the individual rights that those constitutions protected.
Over the last 30 years politicians in the developed world have increasingly paid little more than lip service to constitutionalism and the norms of liberal democracy. When convenient, governments breach constitutions and governing legislation without correction (example: Bush-Obama TARP spending). In Australia, governments regularly trample on liberal norms of privacy, autonomy, or freedoms of religion, commerce, movement, association and expression, generally with administrative state and court support.
Covid hysteria and policy incompetence have made this worse. As Michael Senger points out in one of the best and most comprehensive articles on the Covid disaster:
Having absorbed disinformation into policy, the formidable machinery of Western institutions has, perversely, helped promulgate a totalitarian hygiene regime around the world, and turned against those standing up for western values that politicians appear too spineless to defend. Police brutality is on the rise as law-enforcement personnel face protesters rightfully angry at the ongoing suspension of human rights through policies rationalized only by the exaggerated fears the policies themselves create, and which therefore have no endpoint. Whether COVID cases go up, down, or sideways, the solution offered by lockdown scientists and public health officials—the WHO being only the worst offender—is always the same: Be more like China. Every policy they’ve imported has been as deeply illiberal as it is ineffective, and many are disturbingly willing to suggest permanent changes to our civilization rather than admit error.
It isn’t just our political class that disregards liberal norms and constitutionality.
When our administrative state – more traditionally, if wrongly, called the Public Service – ignores longstanding liberal protections for individuals, no-one cares. When our courts disregard such behaviour under the blanket of delegated legislation and administrative law, no-one cares. Certainly, none of our elected representatives even notice.
Let’s cut through the self-serving lawyerliness. For big questions heard in the highest courts, legal reasoning is irrelevant. It reduces to a rhetorical tool used to justify a decision. That rhetoric can be better or more convincing than other rhetoric, but rhetoric it remains. Such law is just raw power covered in a multisyllabic glove. Increasingly, this is true of restrictions on parliamentary legislation or administrative fiat, which seem to be disappearing by the day.
Because of all this, the underlying beliefs, attitudes and behaviours of our politicians, bureaucrats and judges are decisive for the protection of our rights. Much more so than the form and content of legal documents or formal institutions. No constitution, no law, no judicial decision, no parliamentary process matters next to the implicit constitution in our leaders’ heads.
What counts, then, is the internalised culture of the people who have power over us. It is what they have learned at their mothers’ knee; the things you just don’t do.
These prerational commitments may be recognised legally and constitutionally, but many are not. Like an unwritten constitution, they exist in a cultural ether. That ether is the sum of our inherited cultural values.
Every citizen continues and recreates this cultural ether through their attitudes, beliefs and behaviours. It is this broad culture which limits the possible beliefs and actions of our ruling class.
When our citizens fail to value rights, liberal norms, and accountable government, our ruling class will not value them either. Then the laws and institutions that are designed to protect all of us will fail as well.
In the end, the constitution that governs our ruling class is the one in our citizens’ heads.
After fifty years of ruling class destruction of that culture and those beliefs, our citizens no longer understand or possess the constitution that matters. We are paying for it now.