Judicial review and the politics of constitutional amendment

The theme of this book is the interaction between judicial decisions and political aspirations by reference to their alignment or misalignment. One goal of this book is to locate the High Court of Australia (the High Court) in the long-standing American debate about whether judicial review of constitutionality is-theoretically or empirically-or has been at different times, ‘countermajoritarian’.1 This chapter addresses how formal amendment of the Constitution-in prospect or in retrospect, and whether successful or unsuccessful-interacts with the task of judicial review. In matters of constitutional validity, the courts generally have the final say; a successful government will rejoice, while a frustrated government will abandon its program or seek other ways around the validity issue, whether by modification, cooperative arrangements, or similar. Sometimes a frustrated government, whether blocked by an uncongenial judicial decision or impeded by an uncongenial constitutional structure, will seek to change the Grundnorm - the basic charter itself - and in that way claim the last word. But even that may not be the last word, as the amended Constitution will most likely again fall for interpretation and the endless cycle of interaction continues.