Unchanged changed constitutions: formal and informal constitutional change and rights in Australia, Ireland, and the United States
The protection of rights, whether constitutional or not, is a prevalent issue within contemporary society. In Australia, there exists no constitutional Bill of Rights within which rights are afforded and protected. This lack of formal rights-recognition in Australia – with the exception of the implied freedom of political communication – has resulted in a clear deficit in human rights protections. By contrast, in the United States and Irish Constitutions, a formal Bill of Rights is provided. Notwithstanding, rights-violations have still always been documented in these countries. To this end, there exists an interesting dichotomy between the ways in which rights are protected amongst Western democratic countries with written constitutional texts, namely, between the differing variations in formal and informal rights recognitions. There is also a correlation between these differing models and the frequency of rights violation occurrences. Recent studies have shown that the more rights are constitutionally recognised, the more they are violated. To this end, there are several questions that arise as to whether the recognition of rights is a purely symbolic matter. Despite the current prevalence of ‘rights’ discussions, there exists no comprehensive analysis as to how the issue of rights violations could be practically – and constitutionally – resolved. What is needed is a comparative study of the differing approaches to rights-recognition. I intend on undertaking this study by reference to Australia, the United States, and Ireland, and by reference to the principles of democratic constitutionalism. This thesis will critically analyse the differing uses of formal constitutional review and informal constitutional change in each of these three countries. In doing so, I intend on answering the question: what form of constitutional amendment, whether formal or informal, is it the most appropriate to entrench and update constitutional rights protections? As a starting point, it is not clear whether formal constitutional amendment for entrenching constitutional rights even matters at all. It is also not clear whether this formal procedure is more or less effective than informal constitutional change. A codified answer to these questions and issues is yet to be provided.