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Published online by Cambridge University Press: 24 January 2025
The United States is said to be undergoing a republican revival. Republicanism is a political theory and philosophy that has become enmeshed in the debates surrounding United States constitutionalism. Commentators have argued for several different paradigms of republicanism. Frequently, support for a particular paradigm has been sought from an understanding of historical and modern political thought and, more significantly for our purposes, from the era that saw the birth of the United States Constitution.
The multifarious origins of, and many views on, republicanism, as well as the number of commentators moulding the concept to suit their own ends, make republicanism difficult to pin down. The core elements of modern republicanism may be taken to refer to a system of government by the people equally that seeks to achieve the common good through deliberation by political actors who act not in their own interest or the interests of their constituents but for the community as a whole. This is a far cry from the “militarist, elitist, religious, and sexist sentiments” historically displayed by republicanism.
The author thanks George Winterton and Emma Armson for their comments on earlier drafts of this article. The views expressed are those of the author.
1 See G E White, “Reflections on the 'Republican Revival': Interdisciplinary Scholarship in the Legal Academy” (1994) Yale Journal of Law & the Humanities 1 at 32.
2 W Hudson, “Republicanism and Utopianism” in W Hudson and D Carter (eds), The Republicanism Debate (1993) at 159; CR Sunstein, “Beyond the Republican Revival” (1988) 97 Yale LJ 1539 at 1564-1576.
3 This conception of republicanism relies heavily upon that of C R Sunstein, above n 2. See BF Fitzgerald, “Proportionality and Australian Constitutionalism” (1993) 12 U Tas LR 263 at 266-267.
4 RA Epstein, “Modern Republicanism - Or the Flight from Substance” (1988) 97 Yale LJ 1633 at 1635. See F Michelman, “Law's Republic” (1988) 97 Yale LJ 1493 at 1495; DC Williams, “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment” (1991) 101 Yale LJ 551.
5 CR Sunstein, The Partial Constitution (1993) at 21.
6 R H Fallon Jr, “What is Republicanism, and is it worth Reviving?” (1989) 102 Harv L Rev 1695 at 1696. See B Ackerman, “Constitutional Politics / Constitutional Law” (1989) 99 Yale LJ 453 at 483.
7 R West, “The Supreme Court, 1989 Term - Forward: Taking Freedom Seriously” (1990) 104 Harv L Rev 43 at 60.
8 As has been suggested by K Abrams, “Law's Republicanism” (1988) 97 Yale LJ 1591 at 1591, “[l]egal scholars are natural scavengers”.
9 P P Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990) at 323.
10 M H Redish and G Lippman, “Freedom of Expression and the Civic Republican Revival in Constitutional Theory: The Ominous Implications” (1991) 79 California Law Review 267 at 268 and 311.
11 See, for example, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. Cf Theophanous v The Herald & Weekly Times Ltd (1994) 68 ALJR 713 at 718 per Mason CJ, Toohey and Gaudron JJ, 736 per Brennan J. See G Williams, “Engineers is Dead, Long Live the Engineers!” in (1995) 17 Syd LR 62 at fn 141.
12 See G Winterton, “Extra-Constitutional Notions in Australian Constitutional Law” (1986)16 FL Rev 223.
13 More accurately, the freedom has been described by Brennan J as “an immunity consequent on a limitation of legislative power” (Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 150). See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 50-51, 76.
14 (1992) 177 CLR 1.
15 (1992) 177 CLR 106.
16 (1994) 68 ALJR 713.
17 (1994) 68 ALJR 765.
18 (1994) 68 ALJR 791.1
19 R H Bork, The Tempting of America: The Political Seduction of the Law (1990) at 134.
20 In Republic Advisory Committee, An Australian Republic: The Options – The Report (The Report of the Republic Advisory Committee, 1993) Vol 1 at 41, republicanism is described as being “more philosophical than constitutional”.
21 P Pettit, “Republican Themes” in (1992) 6(2) Legislative Studies 29 at 29 describes the “classical romans” as the “first republicans”, that is, the “first people to think about republicanism and … the first people to organise their polity about those principles”.
22 J G A Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975).
23 Ibid; J G A Pocock, “Civic Humanism and its Role in Anglo-American Thought” in J GA Pocock, Politics, Language and Time (1971). For a more accessible account, see PP Craig, above n 9 at 318-323.
24 PP Craig, above n 9 at 319-320.
25 J Harrington, “The Commonwealth of Oceana” in JG A Pocock (ed), The Political Works of James Harrington (1977).
26 PP Craig, above n 9 at 323. See also FI Michelman, “The Supreme Court, 1985 Term … Forward: Traces of Self-Government” (1986) 100 Harv L Rev 4 at 47-50.
27 PP Craig, above n 9 at 329. See the references ibid at 328 nn 49, 50.
28 Ibid at 328-331; GS Wood, The Creation of the American Republic, 1776-1787 (1969).
29 PP Craig, above n 9 at 331. See GS Wood, above n 28 at 116-117 and 123.
30 RA Epstein, above n 4 at 1635. See W Hudson, above n 2 at 150; C R Sunstein, above n 2 at 1565.
31 See RA Epstein, above n 4 at 1635.
32 See, for example, SH Beer, To Make a Nation: The.Rediscovery of American Federalism (1993),ch 8; CR Sunstein, above n 2 at 1559. The Federalist No 10 has also been portrayed in an opposing, pluralist, light. See RA Dahl, A Preface to Democratic Theory (1956), ch 1.
33 J E Cooke (ed), The Federalist (1961) at 62.
34 G Winterton, Monarchy to Republic: Australian Republican Government (rev ed 1994) at 2.
35 CR Sunstein, “Interest Groups in American Public Law” (1985) 38 Stan L Rev 29 at 44.
36 Ibid at 42. Sunstein's view of traditional republicanism bears considerable similarity to Madison's conception of a democracy. In The Federalist No. 14 G E Cooke, above n 33 at 84) Madison stated that “in a democracy, the people meet and exercise the government in person; in a republic they assemble and administer it by heir representatives and agents”.
37 C R Sunstein, above n 2.
38 Compare, for example, Sunstein's vision to that of P Pettit, above n 21.
39 See B Ackerman, above n 6 at 484-486; CR Sunstein, above n 5 at 134-141.
40 CR Sunstein, above n 2 at 1548-1549.
41 Ibid at 1550.
42 Ibid at 1552.
43 Ibid at 1576-1578.
44 Ibid at 1554.
45 Ibid.
46 Ibid at 1555.
47 Ibid at 1555-1556.
48 Ibid at 1556.
49 See, for example, P P Craig, above n 9 at 340-357; R H Fallon Jr, above n 6; R A Epstein, above n 4; JR Macey, “The Missing Element in the Republican Revival” (1988) 97 Yale LJ 1673; M H Redish and G Lippman, above n 10: Note, “Civic Republican Administrative Theory: Bureaucrats as Deliberative Democrats” (1994) 107 Harv L Rev 1401.
50 RA Epstein, above n 4 at 1635. See C R Sunstein, above n 2 at 1539-1540.
51 J Mashaw, “As if Republican Interpretation” (1988) 97 Yale LJ 1685 at 1685.
52 M H Redish and G Lippman, above n 10 at 285-286.
53 F Michelman, above n 4 at 1495.
54 M H Redish and G Lippman, above n 10 at 268.
55 The use of the term “common good” can be misleading. In economic theory, various models may be used to ascertain whether an outcome would be for the “common good”. Under the Paretian optimum, the outcome would only be acceptable if, in making some people better off, no person would be worse off. On the other hand, under the Kaldor-Hicks criterion, the outcome would be acceptable if tht:! set of affected individuals is better off as a whole, whether or not specific individuals or groups of individuals within the set are themselves better or worse off or whether those better off are prepared to compensate those worse off. In practice, only the second method represents a viable model. The Kaldor-Hicks criterion can, however, have ominous implications for minority groups who might find a negative impact upon their special interests subsumed within a positive majority result. See VJ Tarascio, Pareto's Methodological Approach to Economics (1968) at 79- 82; CA Tisdell, Microeconomics of Markets (1982) at 68, 147, 367 and 415.
56 According to M H Redish and G Lippman, above n 10 at 278: “A belief that one can ascertain and impose on society some form of absolute moral truth, derived by a means external to an assessment of public will, is fundamentally at odds with a belief in either societal or individual self determination.”
57 Ibid at 296.
58 Ibid at 294. See generally, on the interaction of free speech jurisprudence and republicanism, W V Luneburg, “Civic Republicanism, the First Amendment, and Executive Branch Policymaking” (1991) 43 Administrative Law Review 367; R Post, “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v Falwell” (1990) 103 Harv L Rev 601; R West, above n 7 at 62-63.
59 C R Sunstein, above n 2 at 1563.
60 Despite the ironic tone of Sunstein's statement, one wonders whether it is indeed facetious,given F Michelman's argument in “Bringing the Law to Life: A Plea for Disenchantment” (1989) 74 Cornell Law Review 256 at 257 that “law is best understood as a form of politics”.
61 C R Sunstein, above n 2 at 1563.
62 Ibid.
63 Ibid at 1576.
64 Ibid.
65 See, for example, T M Fisher, “Republican Constitutional Scepticism and Congressional Reform” (1994) 69 Indiana Law Journal 1215 at 1248-1254.
66 424 us 1 (1976).
67 Ibid at 48-49.
68 See C R Sunstein, above n 2 at 1576-1578.
69 Ibid at 1577.
70 Republicanism has been put forward as a potential foundation of criminal justice policy in Australia. See J Braithwaite, “Reducing the Crime Problem: A Not So Dismal Criminology”(1992) 25 Aust & NZ Journal of Criminology l; J Braithwaite and P Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1990).
71 The meaning of “republic” has itself been a source of debate. See G Winterton, above n 34 at 2-4; H Evans, “A Note on the Meaning of 'Republic"' in (1992) 6(2) Legislative Studies 21;G Winterton, “Modern Republicanism” in (1992) 6(2) Legislative Studies 24.
72 P Pettit, above n 21. See J Warden, “The Fettered Republic: The Anglo-American Commonwealth and the Traditions of Australian Political Thought” (1993) 28 Australian Journal of Political Science 83 at 86-87.
73 P Pettit, above n 21 at 29.
74 Republic Advisory Committee, above n 20, Vol 1 at 1; see also at 41; G Winterton, “A Constitution for an Australian Republic” and “A Republican Constitution” in G Winterton (ed), We, the People (1994).
75 A Fraser, “Strong Republicanism and a Citizen's Constitution” in W Hudson and D Carter (eds), The Republicanism Debate (1993) at 37 (emphasis in original). See K Boehringer, “Against Clayton's Republicanism” (1991) 16 Legal Service Bulletin 276; P Kavanagh, “A Republican Meeting at Manly-by-the-sea” (1993) 18 Alternative Law Journal 216 at 219. Cf G Winterton, “A Republican Constitution”, above n 74 at 39-40.
76 Republic Advisory Committee, above n 20, Vol 1 at 40.
77 A Fraser, above n 75 at 39 states that the transfer of sovereign authority would be from the British Crown to the Commonwealth Parliament. It is interesting to note that the High Court has been developing the notion that the efficacy of the Constitution, the law that defines and binds the Commonwealth Parliament, is derived from the “will of the people”. See University of Wollongong v Metwally (1984) 158 CLR 447 at 476-477 per Deane J; Leeth v Commonwealth (1992) 174 CLR 455 at 486 per Deane and Toohey JJ; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 70 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138 per Mason CJ; Theophanous v The Herald & Weekly Times Ltd (1994) 68 ALJR 713 at 743 per Deane J; G Lindell, “Why is Australia's Constitution Binding? … the Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 FL Rev 29 at 37 and 49; G Williams, “Civil Liberties and the Constitution - A Question of Interpretation” (1994) 5 PLR 82 at 95-96; G Winterton, “The Constitutional Implications of a Republic” in M A Stephenson and C Turner, Australia: Republic or Monarchy? (1994) at 16; Republic Advisory Committee, above n 20, Vol 1 at 39. See also B Galligan, “Regularising the Australian Republic” (1993) 28 Australian Journal of Political Science 56 at 65.
78 See G Maddox, “The Possible Impact of Republicanism on Australian Government” in G Winterton (ed), We, the People (1994); J Uhr, “Instituting Republicanism: Parliamentary Vices, Republican Virtues?” (1993) 28 Australian Journal of Political Science 27.
79 The debate has also been approached from the perspective of Pettit's second theme, that is,the need for checks and balances. E Thompson, “A Washminster Republic” in G Winterton (ed), We, the People (1994) at 103, 104-105 and 109-110 has suggested appropriate checks and balances for an Australian republican system of government, such as a bill of rights and constitutionally specified and circumscribed powers for the Head of State.
80 A Fraser, above n 75 at 38.
81 E Thompson, above n 79 at 103-104. See G Winterton , above n 77 at 28.
82 A Fraser, above n 75 at 43-45.
83 Ibid at 45.
84 See F Michelman, above n 60.
85 RH Fallon Jr, above n 6 at 1697.
86 For one notable exception, see B Galligan, Politics of the High Court (1987). The interaction of law and politics was explicitly referred to by Dixon J in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82, where he stated: “[I]t has often been said that political rather than legal considerations provide the ground of which the restraint [of Commonwealth or State legislative power] is the consequence. The Constitution is a political instrument. It deals with government and government powers. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.”
87 F Michelman, above n 60 at 257.
88 See G E White, above n 1 at 33.
89 G Winterton, above n 12 at 235.
90 South Australia v Victoria (1911) 12 CLR 667 at 674-675, 704-705 per Griffith CJ, 709 per O'Connor J, 715 per Isaacs J, 742 per Higgins J; New South Wales v Commonwealth (No 1) (1932) 46 CLR 155 at 185 per Starke J; Kahn v Board of Examiners (Viet) (1939) 62 CLR 422 at 437 per Starke J.
9 Cf J Warden, above n 72 at 85 who argues that: “[T]he rhetoric, the language and the discourse of republicanism was manifest in Australia in the movement for the abolition of gubernatorial absolutism, for property rights, in anti-felon self-determination and in self-government, and carried through to the constitution of the Commonwealth of Australia.” Warden further states that republicanism was “invisibly embedded” in such streams of political discourse (at 89) and that “the federation debates are free of emphatic republican statements” (at 97).
92 Official Report of the National Australasian Convention Debates (6 vols including commentaries, indices and guide, 1986).
93 Sir Owen Dixon, “The Law and the Constitution” in Jesting Pilate (1965) at 44; Sir Owen Dixon, “Marshall and the Australian Constitution” in Jesting Pilate (1965) at 166-167; E Thompson, “The Washminster Mutation” in P Weller and D Jaensch (eds), Responsible Government in Australia (1980); E Thompson, above n 79; J Uhr, above n 78 at 37-38.
94 See C Condren, “The Australian Commonwealth, a Republic and Republican Virtue” in (1992) 6(2) Legislative Studies 31 at 33; G Maddox, “The Origins of Republicanism” in (1992)7(1) Legislative Studies 35 at 37.
95 G A Davies, “A Brief History of Australian Republicanism” in G Winterton (ed), We, the People (1994). See J Warden, above n 72.
96 SeeJ Warden, above n 72 at 97.
97 See J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901,reprinted 1976) at 95.
98 424 US 1 (1976). Buckley v Valeo was cited in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 144 fn 27 per Mason CJ, 231 and 239 per McHugh J.
99 (1992) 177 CLR 1.
100 (1992) 177 CLR 106.
101 (1994) 68 ALJR 713.
102 (1994) 68 ALJR 765.
103 (1994) 68 ALJR 791.
104 Theophanous v The Herald & Weekly Times Ltd (1994) 68 ALJR 713 at 759-760 per McHugh J.
105 Political Broadcasts and Political Disclosures Act 1991 (Cth), s 958(6).
106 Section 95A(l).
107 Senate Select Committee on Political Broadcasts and Political Disclosures, Political Broadcasts and Political Disclosures Bill 1991 (November 1991) at 36-37. As the Senate Select Committee makes clear, the imposition of this format was not designed to improve the quality of or the ability to convey information by the broadcasts. See Joint Standing Committee on Electoral Matters, Who Pays the Piper Calls the Tune … Minimising the Risks of Funding Political Campaigns (Report No 4, June 1989) at 103.
108 Political Broadcasts and Political Disclosures Act 1991 (Cth), s 95G. This section also provided that the speaker had to be a candidate for election or an existing Parliamentarian and that the broadcast had to extend for, in the case of television, two minutes, or, in the case of radio, one minute.
109 Section 95S.
110 Joint Standing Committee on Electoral Matters, above n 107. See House of Representatives, Political Broadcasts and Disclosures Bill 1991 … Explanatory Memorandum (1991) at 2; Senate Select Committee on Political Broadcasts and Political Disclosures, above n 107.
111 Joint Standing Committee on Electoral Matters, above n 107 at 8.
112 Ibid at 108.
113 Ibid at 25.
114 Ibid at 88.
115 Ibid at xi.
116 H Reps Deb 1991, Vol 177 at 3477.
117 Ibid at 3480.
118 Ibid.
119 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 139 per Mason CJ (“freedom of communication in relation to public affairs and political discussion”), 149 per Brennan J (“freedom of discussion of political and economic matters”), 168 per Deane and Toohey JJ (“freedom within the Commonwealth of communication about matters relating to the government of the Commonwealth”), 212 per Gaudron J (“freedom of political discourse”), 233 per McHugh J (“right of the people to participate in the federal election process”). See also the extracts quoted in Theophanous v The Herald & Weekly Times Ltd (1994) 68 ALJR 713 at 716; Cunliffe v Commonwealth (1994) 68 ALJR 791 at 798, 814 and 843.
120 A Fraser, “False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution” (1994) 16 Syd LR 213 at 224 describes this as “a false sense of freedom”.
121 While the legislation was certainly aimed at these goals, they would not necessarily have been achieved. Mason CJ argued in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 132 that the legislation would favour “the established political parties and their candidates without securing compensating advantages or benefits for those wishing to participate in the electoral process or in the political debate which is an integral part of that process”.
122 G Williams, above n 77.
123 Brennan J dissented from the result in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 on the basis that in restricting freedom of political communication the Parliament should be allowed a “margin of appreciation” (ibid at 158-159).
124 Theophanous v The Herald & Weekly Times Ltd (1994) 68 ALJR 713 at 736 per Brennan J.
125 P Pettit, above n 21 at 30. This argument is elaborated in P Pettit, “Liberalism and Republicanism” (1993) 28 Australian Journal of Political Science 162;P Pettit, Liberty in the Republic (John Curtin Memorial Lecture, 1989).
126 B F Fitzgerald, above n 3 at 266-267; W Rich, “Approaches to Constitutional Interpretation in Australia: An American Perspective” (1993) 12 University of Tasmania. Law Review 150 at 178.
127 B F Fitzgerald, above n 3 at 267, In discussing republicanism, Fitzgerald refers (at fn 19) to C R Sunstein, above n 2.
128 See, for example, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 139 where Mason CJ stated that “[i]n truth, in a representative democracy, public participation in political discussion is a central element of the political process”,
129 That the Court still focuses upon the Westminster rather than the United States tradition is shown by Theophanous (1994) 68 ALJR 713 at 718 per Mason CJ, Toohey and Gaudron JJ, 736 per Brennan J.
130 Only eight out of 42 proposals to alter the Constitution have been passed by the Australian people at a referendum held under section 128 of the Constitution. See Australian Constitutional Commission, Final Report of the Constitutional Commission (1988) Vol 1 at 35- 37; E Campbell, “Changing the Constitution … Past and Future” (1989) 17 MULR 1; M Coper, Encounters With the Australian Constitution (1988), ch 9; L F Crisp, Australian National Government (4th ed 1978) at 40-55; G Evans, “The High Court and the Constitution in a Changing Society” in A D Hambly and J L Goldring (eds), Australian Lawyers and Social Change (1976) at 19-21; RD Lumb, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) FL Rev 148 at 153-163.
131 Civics Expert Group, Whereas the People: Civics and Citizenship Education (Report of the Civics Expert Group, 1994).