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27 Adel. L. Rev. 183 (2006)
Bill of Rights as Centralising Instruments

handle is hein.journals/adelrev27 and id is 187 raw text is: James Allan* BILLS OF RIGHTS AS CENTRALISING INSTRUMENTS ABSTRACT I am a long standing opponent of bills of rights, be they constitutionalised or statutory. I have developed something of a sideline interest and niche market writing about their sins, omissions, flaws, failings, tendency to promote puffed-up, sanctimonious moralisers in the judiciary and academia, and most tellingly their raw illegitimacy in democratic terms.' W hat I have not done before is to write of their centralising, anti- ~federalist tendencies. In turning to do just that my initial inclination was to proceed straight to the issue of the effects these instruments have on federalist constitutional arrangements. Yet on second thoughts I have decided that would be a mistake. To make the case for the centralising tendencies of a bill of rights it is first necessary to be given a taste of how they work, how they enumerate a set of moral abstractions that virtually everyone supports, but that are so indeterminate their words resolve nothing. Instead, the resolving of the myriad rights-based disputes thrown up by bills of rights is handed over to the unelected judges, to committees of ex-lawyers. Bills of rights are sold up in the Olympian heights of moral abstractions where there is near consensus. (Who, for example, is against the right to free speech?) Yet they have their real, practical effect down in the quagmire of social policy line-drawing, and down here there is only ever disagreement and dissensus - more exactly, there is disagreement between smart, reasonable, well-meaning, even nice people who just happen to disagree about where to draw lines when it comes to, say, immigration procedures or who can marry or how best to strike the balance between accused criminals and public safety or even what sort of campaign finance rules or hate speech provisions we might want. (And notice that you can chant the mantra Garrick Professor of Law, The University of Queensland. An earlier version of this paper was first published in Upholding the Australian Constitution (Proceedings of the Samuel Griffith Society, Volume 18, 2006 The author wishes to thank the anonymous referee of this journal for his or her very helpful suggestions.). See, for instance, James Allan, Bills of Rights and Judicial Power - A Liberal's Quandary? (1996) 16 Oxford Journal of Legal Studies 337; Sympathy and Antipathy (2002); Rights, Paternalism, Constitutions and Judges in G Huscroft and P Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002); Paying for the Comfort of Dogma (2003) 25 Sydney Law Review 63; A Modest Proposal (2003) 23 Oxford Journal of Legal Studies 197; Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century (2006) 717 King's College Law Journal 1; and Thin Beats Fat Yet Again - Conceptions of Democracy (2006) 25 Law & Philosophy 533.

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