Abbott cannot guarantee how judges will exploit his constitutional change Tony Abbott reassures us that changing the constitution to recognise Aborigines as our "first Australians" will just be a symbolic change with no practical effect on the law: This would complete our constitution rather than change it. Professor James Allan doesn't believe it: In the past two decades our top judges have taken to interpreting our written Constitution in a way that is very hard to defend. Twenty years ago, the High Court discovered, or read in, or flat out made up (according to taste), an implied freedom of political communication. I count myself as one of the biggest free speech adherents in the country, and in substantive terms, I like this outcome. But as a matter of honestly interpreting the words of our Constitution, these cases strike me as so implausible as to be laughable. And in a democracy where all of us count equally with an equal vote to choose people to make social policy, that is a very bad thing. Or more recently, in a couple of voting rights cases, our High Court in my view issued two of the most interpretively implausible decisions I have read since coming to this country. In both instances they over-ruled the elected parliament and struck down statutes passed by the elected representatives of the people. And they did so with virtually no textual warrant from our Constitution. They treated the words as some sort of jumping off point for seeing the Constitution as a "living tree" that can be pruned and altered over time, but of course only by them, seven unelected ex-lawyers. Of course not everyone sees these cases the way I do. But notice that once you go down this road, it becomes something of an unknown how a change to our Constitution today will be treated by a future High Court in 15 or 20 years. And I fear that this mooted change to our Constitution to insert some sort of recognition clause might be used by latter day judges to do all sorts of things unimaginable, or pooh-poohed, today. If you doubt that, ask yourself how many people back at the start of the 1900s thought that the phrase "directly chosen by the people" could be used by judges to dictate when the electoral rolls could close or that some of those in prison could vote when parliament said they could not. The answer is that none of them back then thought this. They thought they were leaving these issues to the parliament. So when people today assure you that the words they propose to insert will transfer no power to our unelected judges, there are some sensible grounds for being sceptical, at least until we see what explicit words emerge as the proposed amendment.