One reason that some voted against the Voice was that the constitution was so important that changing it was like marriage.  It should not be entered into lightly or ill advisedly.  It was like the Ark of the Covenant.  Or, if that was too ethereal or presumptuous, Americans venerated their constitution, and so should we.

In the result, one of the worst suggestions I heard was that it may be in order to legislate for a voice, but not to change the constitution for it.  It is hard to imagine anything more insulting to the First Nations.

The whole of that state of mind looks to me to be misplaced.

Let us consider three different constitutions.  Two grew out of the first.

The English version is not contained in one document.  It arose out of and is supported by what we call the common law – together with a number of documents.  They include Magna Carta, legislation about habeas corpus, the Act of Supremacy and other statutes about the standing of the Church of England, the Declaration of Rights, the Act of Union, and the Act of Settlement. 

It is common ground among English historians that the fundamentals of the English constitution were settled in 1689 by the Declaration of Rights.  The fundamentals include what the common law – but not the Roman Law or civil law in Europe – knows as the rule of law, and the supremacy of parliament. 

What does that mean?  Parliament can alter or abolish the parts I have referred to.  Nothing is entrenched – as is the case in the U S or here.

The U S Constitution is entrenched in a union of states in one document.  Importantly, the amendments make the civil rights referred to in the Declaration of Rights part of the constitution.  They can only be altered to the extent and in the manner referred to in that document.  In the result, there is no supremacy of the legislature, the voice of the people.  To the contrary.  What we now see is the Supremacy of the Supreme Court.  And we certainly do not wish to go down that path.

Our constitution is altogether more prosaic.  It is in a schedule to an act of the Imperial Parliament that received the assent of the Queen of England and the Empress of India – after whom my state was named.  And it can only be changed by referendum. 

What does our constitution do?  It establishes the Commonwealth parliament, executive and judiciary, and allocates powers and rights between the federal and state entities.

Now, the three polities share the same broad aims of governance.  The US model has this.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This may be motherhood, but the objective is similar here, and in the UK.

But, when it comes to looking at what might be called the ‘rights’ of the people against government, the difference between the US on the one hand, and us and the UK on the other, is deeper than the Atlantic or Pacific Oceans.

One fundamental difference is that in the US, the Bill of Rights is part of the Constitution.  But, like any other part of the constitution, those rights are what the judges say they are.  That is, the relevant law is stated by the judges, not the Congress.  Sir Owen Dixon made a remark to the effect that we regard that result us undemocratic.

What ‘rights’ do Australians expect to see honoured by federal and state parliaments, governments, and judges?

They are of two kinds.  The government must not do some things.  It must not go against me except by due process of law.  It must treat me as equal to all other Australians in the eye of the law.  Noone is above the law and all are under it.  These rights have become part of our juristic dispensation by a process of accretion since 1215.  The English constitution derives from the common law.  The English concepts were unique to it and the common law.  The constitution is not so much the source, as the consequence, of rights of individuals.  As I said, the other model – Roman – was very different.

Next, government must do some things for us.  In addition to education, it must provide for our health, unemployment, and the aged.

The first may be called juristic rights.  The second are political expectations.

But you see immediately how different the U S is to us and England on each count.  The rule of law is not entrenched in the constitution here, but is subject to the supremacy of parliament.  The U S has never embraced the Welfare State.  It does not sit with their Puritan origin or capitalist dogma – both of which we find repellent.

So, it is very unlikely that our High Court, or the English Supreme Court, will give too many rulings which affect their people on the fundamental ‘rights’ referred to above.  The recent decision on excise will excite some in academe, and vex some in Treasury, but may mean less to ordinary people here than the due allocation of Grand Final tickets.

So, if you voted against amending the Constitution to allow the Voice for our First Nations on the ground that that document is so dear to us that we should not in any way flirt with its dispensations, you were I fear misled.

You had plenty of company.

Both here and in England.

Meanwhile, the disintegration of the U S proceeds apace. 

Thank Heaven we did not go down their path.