Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes
| Author | James Allan |
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1177/0067205X211050853 |
| Subject Matter | In Focus: Response to Jonathan Crowe and Elisa Arcioni |
In Focus: Response to Jonathan Crowe and Elisa Arcioni
Federal Law Review
2021, Vol. 49(4) 499–504
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X211050853
journals.sagepub.com/home/flr
Arcioni, Crowe and Allan on
Constitutional Interpretation: A
Worder of Crowes
James Allan
It is, of course, flattering to have not one, but two, fellow constitutional law scholars take issue, in
print, with something I recently wrote in the pages of this law review.
1
And so I am most grateful to
both Elisa Arcioni
2
and Jonathan Crowe.
3
Now, given the space constraints, I will keep this short,
focussed on a few core disagreements, and comprehensible to readers who may not have read the
earlier articles.
My original piece, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text:
Can the HCA Fix Its Own Mess?’, in the pages of this law review was an extended critique of a
recent High Court decision. Part of that critique involved a more foundational criticism of the entire
judicially created implied rights jurisprudence. Crowe, in ‘Constitutional Text, Authorial Intentions
and Implied Rights: A Response to Allan and Arcioni’, and Arcioni, in ‘Some Reflections on
“Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its
Own Mess?”’, took issue with my views on the proper approach to constitutional interpretation
(though for Arcioni it was more to do with what sort of results that approach would deliver). As
Crowe’s criticisms are far more deep-rooted, I will respond to him first. Note, however, that my
original article was specifically aimed at criticising the High Court’s recent jurisprudence. It was not
a wider theoretical piece defending a particular approach to constitutional interpretation. As it
happens, I have written the latter sort of chapters and articles, too; indeed, Crowe cites one of them,
4
and these can be consulted for a more detailed defence of what I will sketch out here. You see, I am a
defender of what is known as ‘originalism’. Crowe is not. So perhaps it might be best to begin with a
T. C. Beirne School of Law, University of Queensland
1. James Allan, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?’
(2020) 48(1) Federal Law Review 30.
2. See Elisa Arcioni, ‘Some Reflections on “Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can
the HCA Fix Its Own Mess?”’ (2020) 48(2) Federal Law Review 279.
3. See Jonathan Crowe, ‘Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni’
(2021) 49(1) Federal Law Review 149.
4. The piece of mine Crowe cited was James Allan ‘The Curious Concept of the “Living Tree”(or Non-Locked-In)
Constitution’in Grant Huscroft and Bradley W Miller (eds), The Challenge of Originalism: Theories of Constitutional
Interpretation (Cambridge University Press, 2011) 179. More recent pieces of mine, more narrowly focused on this issue
of constitutional interpretation, include James Allan, ‘In Honor of a Simple-Minded Originalist’(2019) 34(2) Consti-
tutional Commentary 401; James Allan ‘ATribute toAustralia’s Killer of “Living Constitutionalism”and “Common Law
Constitutionalism”’ (2020) 31(1) Public Law Review 86; James Allan ‘The Special Kay Defence of Non-Originalist
Judges: A Serial with an Unhealthy Final Ingredient’(2021) 52(5) University of Connecticut Law Review 1529.
To continue reading
Request your trial