The constitution pervades the governance practices of a state, far beyond its application and interpretation in the courts. This Special Issue draws together a field of scholarship that considers these extrajudicial dimensions of constitutional practice to reveal a very different constitution to the juridified version. It is a more complex, dynamic and pervasive vision of the constitution, focused on the ongoing relationships of a broader set of constitutional institutions and actors. These relationships are mediated by the legal and political dimensions of the constitution and by the narratives and symbolism that grow up around it. In this introduction, we explore three themes of the pervasive constitution: the importance of constitutional narratives and symbols, the multiplicity of constitutional actors and the relational nature of constitutionalism. This recalibrated understanding of the constitution reveals constitutional actors and power dynamics that are often invisible in more traditional accounts of constitutionalism. This recalibration is particularly important in addressing contemporary constitutional challenges. In settler systems hoping to decolonise, courts have proven important but insufficient sites of constitutional change, and it is in political spaces that new constitutional stories can be told, stories which acknowledge the full sovereignty of Indigenous peoples and their claim to territory. In countries experiencing democratic backsliding, extrajudicial actors have been championed as the backstops to democracy and human rights. We argue that only by understanding the space outside the courts will we appreciate the breadth of new constitutional possibilities.

Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.

Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that have a role to play in safeguarding electoral democracy against government attempts to undermine the fairness of the electoral process. This article explores the extent to which the Australian Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting electoral democracy. It demonstrates that independence, impartiality and a supportive legislative framework help the AEC to be effective in performing these roles, but that inadequate powers, lack of budgetary autonomy and answerability to political actors operate as constraints. More generally, the analysis presented shows the value of expanding our understanding of the role of fourth branch institutions so that we take account of their activities in both fostering and safeguarding key democratic values.

This article explores the idea that constitutional scholars may be thought of as constitutional actors analogous to integrity institutions and examines the normative implications of conceiving of constitutional scholars in this way. One implication of such an analogy is to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing constitutional scholars as constitutional actors also sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in this highly politicised populist moment.

This article considers how the use of referenda to enact constitutional change relates to the concept of a ‘constitution outside the courts’. It argues that the referendum is a challenge to this concept but that these challenges arise in a more complex manner than might first be assumed. First, a referendum occurs within a legal framework which calls into question the notion of the referendum as an extra-legal interruption to the constitutional order. Secondly, this suggests that the referendum is more likely to be the end point of a process of constitutional change rather than the vehicle or impetus for it. This means that the relevant developments may occur elsewhere in society. Using Ireland as a case study, the article argues that there is a constitution outside the courts which depends to a significant extent on the mediating influence of multiple actors—including the courts.

The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’—to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.

The Uluru Statement from the Heart offers an opportunity to reorder the Australian constitutional hierarchy as it relates to First Nations. The proposal for a First Nations Voice provides a tailored, structural response to the experiences of Aboriginal and Torres Strait Islander people under the Australian state. For the First Nations Voice to meet this potential, it will require more than careful design of the Voice as a new constitutional institution; it will require existing constitutional institutions within the legislature and executive to learn to ‘listen’. This article draws on the political and democratic listening literature to examine how political listening might be practised at the interface between the First Nations Voice and existing constitutional institutions. We suggest five principles to guide this cross-institutional relationship together with ways these principles might be incorporated into governance structures.

According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.

In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Māori may have initially welcomed the intent of te Tiriti as a means for seeking British help to protect their international borders, the British prioritised the English version of the Treaty which recorded the transfer of sovereignty from Māori to the British. As the British transposed their dominant legal traditions of governance, including bringing to the fore their doctrine of parliamentary supremacy, Māori have been seeking their survival ever since. We extend this by focusing on why the doctrine of parliamentary sovereignty needs to adapt to the Treaty’s promise of bicultural power sharing.

The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback.