Comparative constitutional adaptation: Democracy and distrust in the High Court of Australia

Abstract

Abstract The ideas developed by Ely in Democracy and Distrust have had an important influence on at least one member of the High Court of Australia—Justice Stephen Gageler, first as counsel and now as a justice of the Court. This influence has not involved the straightforward “borrowing” of those ideas. Rather, it has involved a more standard-like application of US-style tiered scrutiny in contexts such as the protection of the “channels of political change” and giving narrower ambit to the judicial protection of “discrete and insular minorities.” This, the article suggests, reflects a distinctive form of comparative constitutional adaptation—a process involving, first, the attempt to develop a contextual understanding of Ely’s thought; second, a quite “thick” or “deep” form of comparison between the original and new context; and third, a context-sensitive adaptation of the theory to that new setting. This comparative adaptation has some similarity to the process of “recontextualization” identified in Gunther Frankenberg’s account of an “IKEA” style of global constitutional transfer. But it is distinctive in its direct engagement with foreign constitutional ideas at their source and its attention to the importance of constitutional context, difference, and generality or commonality. Similar forms of comparative constitutional adaptation can be found elsewhere, including in the engagement by Australian Chief Justice, Susan Kiefel, in the development of proportionality doctrines. But attention to Ely’s influence on Justice Gageler’s thought provides a useful window not only into Australian constitutional practice, but also into this distinctive and normatively attractive form of comparative engagement.