Constitution

Constitution (pronounced kon-sti-too-shun)

(1) The formal or informal system of primary principles and rules regulating a government or other institution.

(2) In law, a legal document describing such a formal system.

(3) In Roman Catholicism, a document issued by a religious authority serving to promulgate some particular church laws or doctrines.

(4) A person's physical makeup or temperament, especially in respect of robustness; the general health of a person (now less common except in technical use).

1350-1400: From the Middle English constitucioun & constitucion (edict, law, ordinance, regulation, rule, statute; body of laws or rules, or customs; body of fundamental principles; principle or rule (of science); creation), from the twelfth century Old French constitucion (constitution, establishment) (which persists the in modern French constitution), a learned borrowing from the Latin cōnstitūtiō & cōnstitūtiōnem (character, constitution, disposition, nature; definition; point in dispute; order, regulation; arrangement, system), from cōnstituō (to establish, set up; to confirm; to decide, resolve).  A common use of cōnstitūtiōnem was as a noun of state from past-participle stem of constituere (to cause to stand, set up, fix, place, establish, set in order; form something new; resolve),  The construct was constitute +‎ -ion.  Constitute was from the Middle English constituten, from the Latin cōnstitūtum (neuter of cōnstitūtus, past participle of cōnstituō (to put in place, set up, establish).  The –ion suffix was from the Middle English -ioun, from the Old French -ion, from the Latin -iō (genitive -iōnis).  It was appended to a perfect passive participle to form a noun of action or process, or the result of an action or process.  Constitution & constitutionality are nouns, constitutionally is an adverb, constitutional is an adjective; the noun plural is constitutions.

The meaning “action of establishing; creating" dates from circa 1400 while that of "way in which a thing is constituted" was from circa 1600.  The once common sense of "physical health, strength and vigor of the body" was from the 1550s, extended some thirty year later to "temperament & character", both now rare though not yet archaic.  The sense of "mode of organization of a state" emerged around the turn of the seventeenth century, evolving gradually to by the 1730s conveying the idea of a "system of principles by which a community is governed", finally by the late eighteenth century being understood as “document of basic or foundational laws”, something which reflected the influence of the US and French constitutions.  Although rare, constitutions of nations can be described as “unwritten” which is a little misleading because probably every aspect of an “unwritten” constitution in a modern state does exist somewhere in writing (statute, legal judgments etc) so a better expression is probably “un-codified”.  The best known example of the “unwritten constitution” is that of England where it’s understood as the collective name for the fundamental principles established by the political development of the English people embodied variously in common law, statute and in long-accepted precedents.  Liking the flexibility afforded, no British government has ever seriously contemplated a written constitution.

The adjective constitutional dates from the 1680s in the sense of "pertaining to a person's (physical or mental) constitution" and came to be used to mean "beneficial to bodily constitution" in the mid-eighteenth century and came later to be applied adjectivally to heath remedies as varied as morning walks and the odd medicinal brandy.  The meaning in legal judgements "authorized or allowed by the political constitution" was first used in 1765 while the “constitutional monarchy” (a monarchy constrained by law and democratic institutions) was first described (in France and apparently without irony) in 1801.  From constitutional as a legal concept came the inevitable adverb constitutionally, recorded first in 1767 although the noun constitutionality (quality of being in accord with a constitution) seems not to have left the judicial pen until 1787.

The substantive moments in Australian constitutional development

1770: Captain James Cook, on a voyage under the auspices of the Admiralty, claims eastern coastline of Australian continent for the British Crown.

1788: Government of the UK conducts successful invasion on 26 February.  Colony of NSW established and occupation of the continent begins as a colonial project, initial as a penal settlement.

1825: Limited self-government granted by the Colonial Office which (with variations in detail) is between 1825-1890 introduced for the colonies of NSW, Tasmania, New Zealand, Victoria, South Australia, Queensland and Western Australia.

1901: The six Australian colonies federate as the Commonwealth of Australia.  The Australian Constitution, an act of the Imperial Parliament, becomes basic law on 1 January 1901 creating the Parliament of Australia which subsequently also passes the act of constitution, thus creating the nation state in its original form.

1903: High Court of Australia constituted.

1927: Division of the Imperial Crown which, in effect, creates the Kingdom of Australia although this will not be formalised until 1973.  This was the mechanism which began the process of the relationship with the monarch being one increasingly disconnected from the UK government.

1931: Statute of Westminster granted (almost complete) legislative independence to the Dominions (including Australia) although it would be some time before the Australian government sought to formalize the implications of this.

1949: Australian citizenship created.

1969: The removal of rights of appeal from federal courts to the Judicial Appeal Committee (the board) of the Privy Council.  This had the effect of making rulings of the High Court final in all matters of Commonwealth law while appeals to London from state and territory courts remained possible.

1986: The Australia Acts (simultaneous acts of the UK and Australian parliaments) sunder last remaining legal connections between the two parliaments and legal systems (section 74 of the constitution notwithstanding).

The passage of the Australia Acts meant Australia retained two remote constitutional connections of which, strictly speaking, only one was with the United Kingdom.  The first is through the monarch, not as the King of England but of Australia and of each of the states and the relationship between the monarch (as head of state) and the Commonwealth is purely personal and wholly unconnected with the UK.  Were the UK to become a republic this would have no constitutional effect in Australia and the head of state would remain whomever is the relevant living successor in the line of succession from Queen Victoria (1819-1901; Queen 1837-1901).  The argument that more correctly the line of succession should begin from a later monarch because of the change in constitutional relationship is an interesting one for legal theorists but because of the biological continuity, there’s no difference in consequence.

King William IV sits before a pie containing two dozen blackbirds, served to him by Lord Melbourne (1836), colored lithograph by HB (John Doyle (1797-1836).  Lord Melbourne (1779–1848; UK prime-minister 1834 & 1835–1841) was the last prime minister dismissed by the monarch, William IV (1765–1837; King of the United Kingdom & King of Hanover 1830-1837) determining his commission in 1834.

The relationship is of interest because in legal theory, everything done by the governments (state and federal) is lawful because of powers which can be traced back to those of the monarch.  These powers are a construct of conventions, codified law, legal fictions and precedent and can be understood when deconstructed rather than observed in operation.  For example, the King, being the Lord Paramount in Australia technically owns all the land and other traditional forms of ownership (leasehold & freehold) are actually grants from the crown which may be revoked.  This is of course best thought of as a legal fiction and more of a trustee relationship but does illustrate the way that all power exercised by governments is ultimately derived from those held by the monarch.

A saltwater crocodile.

The powers of the monarch of course exist but can’t in most cases be exercised by the monarch.  Of great interest to Australians is the right of the monarch to dismiss a prime-minister and this power still exists in the UK (those who suggest otherwise have no basis on which to base the assertion) but because in Australia the powers have been delegated to a governor-general, the monarch does not usually retain this personal authority.  However, although it’s not certain, it’s probable that a monarch does re-assume the power if standing on Australian soil but its exercise is politically unthinkable so were the need to arise to sack an Australian prime-minister while a Monarch was visiting, they would immediately be taken for a day’s deep-sea fishing, it being necessary only to be 12 miles (20 km) off the coast to be in international waters, thus allowing a governor-general do their dirty work.  If the need was to dismiss a state premier or territory chief minister, then the monarch would need only to go for a swim because once beyond the low-water line off the coast, they would be splashing around in commonwealth waters and the governor would be free to swing the axe.  That sound tactic would be fine except in the Northern Territory because up there, anyone stepping foot in the ocean will probably be eaten by a saltwater crocodile (known up there, almost affectionately, as "salties") so a wise monarch will make a sudden dash for the Queensland, South Australian or Western Australian border, presumably choosing whichever is the closer.  Even though the Northern Territory government has (most unfortunately) done away with the de-restricted (ie no speed limits) roads in the outback, the monarch is exempt from such tiresome rules so it’d be a quick trip.

In the pink, taking a morning constitutional: Lindsay Lohan out walking, Los Angeles, 2010.

The other connection has long been thought a historic relic.  Section 74 of the constitution provides for an appeal from the High Court to the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the High Court, however unlikely, remains possible.