A constitution, like any document, leaves certain things unsaid. In Australia, the duty to interpret constitutional silences falls to the courts. This paper engages with constitutional theory in order to explain what ought to—and does in fact—dwell
The challenges of constitutional silence: Doctrine, theory, and applications
Abstract. In this introduction to our symposium on “Constitutional Silence,” we situate the articles in this collection and explore the significance of the
Soundings and Silences
In studying existing constitutions or in assisting with drafting a new one, it is impossible not to notice that formative decisions about what to say and what not to say as a constitution is being created bear heavily on later decisions about how to interpret what a constitution says or fails to say, including whether to construe any given silence or gap only as a source of insight or as a kind of performative utterance. Among the features of the United States Constitution that have been crucial to its success has been the widespread recognition of its connected structure that, despite its gaps—some deliberate and others unintended—invites understanding as a coherent, if at times internally inconsistent, whole. Constitutional silences, like silences of other kinds, are everywhere and come in many varieties. There are as many reasons to be silent as there are to speak and as many ways to hear meaning in the sounds of silence as there are to attribute meaning to statements. The first section of this essay distinguishes silences that open a constitutional conversation by leaving options on the table from those that shut conversation down by limiting the options to one. The second section separates silences that bear on the structure created by the Constitution from those that bear on the individual rights the Constitution protects against government infringement. The third section turns to the special case of silences in the Constitution’s rules of interpretation and asks whether the Supreme Court should be silent on a particular constitutional matter or should address it squarely, recognizing that whatever an authoritative interpreter says about what the Constitution itself says or omits can be evaluated only against the background alternative of somehow contriving to remain silent.
The silences of constitutions
Abstract. Glossing a passage from Benjamin Constant’s Reflections on Constitutions, this article first assesses the roles performed by silences, gaps, and
Mind the gap: Analyzing the divergence between constitutional text and constitutional reality
Abstract. Constitutional economics—the analysis of constitutions drawing on the economic approach—has made important progress over the last two decades. Th
Colonial institutions still rule Australia. Recognising this is not an act of pessimism: it is an epiphany | Larissa Behrendt
Systemic racism is not a glitch in our institutions, it is a design feature – and the seeds of it lie in our constitution
Designing a Constitution for a Community (Camille Canon) : Metagovernance Seminar
This is a talk exploring Apiary's work on the purpose/constitutional design of Radicle. We have been supporting the founders and community in drafting a...
The Constitution of Knowledge
America has faced many challenges to its political culture, but this is the first time we have seen a national-level epistemic assault: a systematic attack, emanating from the very highest reaches of power, on our collective ability to distinguish tr...
Former High Court Justice warns that poverty is eroding Australia's democracy
Poverty is eroding Australia’s democracy, with former High Court Justice Michael Kirby warning that the growing divide between the powerful and the vulnerable is creating a vicious cycle of disadvantage and political exclusion.
Anti-union bias in Australian legal processes
Exhibit A: the Victorian construction industry Royal Commission
Can Claude Consent to its own Constitution? AI Constitutionalism and the Paradox of Constituent Power
Frontier AI systems are trained on “constitutions” and model specifications that shape their values, reasoning, and conduct. Debate over these documents has foc
Requiring Government Permission to Protest Is an Erosion of the Fundamental Right
The Australian Democracy Network has released a report which explains why requiring permission from authorities to protest is the antithesis of democracy.
First Nations – Victorian Socialists
Australia is built on the dispossession of Aboriginal and Torres Strait Islander people. Treaty should deliver material change – not just symbolic recognition.
Justice Policy | The Australian Greens
Policy principles and aims as adopted by members on 27 July 2026.
The Faux Free Speech Warriors Attacking Free Speech
There’s a particularly insidious and cynical form of censorship gaining prominence in America: the weaponization of “free speech” rhetoric, combined with abuses of the judicial sy…
Constitutional agents for online governance – Writings and rehearsals by Nathan Schneider
In this reflection, I want to share an about-face I’ve been having in the strategy for defeating “implicit feudalism” with “governable stacks.” Both of these concepts are described in depth in my book Governable Spaces. Implicit feudalism is the widespread tolerance of highly centralized, low-accountability forms of governance in online communities, from big platforms to little group chats. Governable stacks are efforts to build socio-technical systems that can be co-governed by their participants in diverse and accountable ways.
From Haymarket to Prairieland: How dissent has unleashed the long arm of the law
The Prairieland sentencing has dark historical parallels, Kim Kelly writes. But we can change the end of the current story.
