Constitutional Interpretation and a Theory of Evolutionary Originalism
| Author | Jeremy Kirk |
| Date | 01 September 1999 |
| DOI | 10.22145/flr.27.3.1 |
| Published date | 01 September 1999 |
| Subject Matter | Article |
CONSTITUTIONAL
INTERPRETATION
AND
A
THEORY
OF
EVOLUTIONARY
ORIGINALISM
Jeremy
Kirk*
A
Constitution
cannot
be
applied
without
employing
some
theory
of
interpretation.
An
adequate
theory-that
is,
a
coherent
method
or
approach-must
address
two
fundamental,
connected
questions.
In
what
sense
are
words
in
the
text
to
be
understood?
How
is
ambiguity
or
uncertainty
to
be
resolved? Resolution
of
these
matters
is
logically
prior
to
the
determination
of
particular
controversies.
Of
necessity,
judges
have
provided
some
answers
to
these
foundational
questions.
But
the
issues
have
only
begun
to
attract
significant
express
attention
in
recent
times,
particularly
in
light
of
developments
relating
to
implied
rights.
This
new-found
concern
is
not surprising,
for
the
further
one
moves
from
considering
clear
and
direct
stipulations
of
particular
text,
the
more
important
one's
interpretational
approach
becomes.
The
theory
of
constitutional
interpretation employed
affects
both
one's
readiness
to
recognise
implications,
and
the
nature and
age
of
the
sources
to
which
reference
is
made in
so
doing.
In
this
paper
my
aim
is
to
examine
the
approaches that Australian constitutional
jurisprudence
has taken,
and
should
take,
to
interpretational
theory.
1
In
particular,
my
aims
are
the
following:
"
to
show
that
there have
been
significant dynamic
or
evolutionary
elements
in
Australian constitutional
law;
"
to
argue
that,
within
limits, it
is
both
legitimate
and
desirable
to
take account
of
evolutionary
imperatives;
"
to seek
to
present
an open, internally
consistent
and
normatively
defensible
statement
of
how constitutional interpretation
should
be
approached
within
Australia.
The
theory
developed,
"evolutionary
originalism",
is
intended
to
balance
the
appropriate
place
of
dynamic
imperatives
with the
substantial
legitimating
force
of
originalist constitutional
theories.
It
draws
upon
rich
wells
of
authority,
but
does
not
purport
simply
to
be
descriptive.
BA,
LLB
(Hons)
(ANU),
BCL,
DPhil
(Oxon).
Legal
practitioner,
Sydney.
1
This
article
is
derived
from
a
doctoral
thesis,
submitted
in
1998,
entitled
"Implied
Rights"
in
Constitutional
Adjudication
by
the
High
Court
(f
Australia
since
1983.
A
copy
is
held
by
the
Bodleian
I
ibrary,
Oxford.
There
are
some
unavoidable
cross-references
here
to
that
broader
work.
I wish
to
thank
my
doctoral
supervisors,
Professor
John
Finnris
and
Sir
Anthony
Mason,
for
their
comments
and critique.
The
views expressed,
and
any
errors,
are
my
own.
Federal
Law
Reviewo
The
structure
of
the
paper
is
as
follows.
The
first two
parts
examine, respectively,
various originalist
and
non-originalist
strands
of
constitutional theory
to
be found
within Australian
law.
The
third
part
addresses
the
relevance
of
questions
of
sovereignty
in
Australia.
The
competing
merits
of
different
approaches
to
constitutional
interpretation
are
analysed
in
the
fourth
section.
The
fifth
and
final
part
sets
out
the
theory
of
evolutionary
originalism.
1
ORIGINALISM
IN
AUSTRALIA
1.1
Originalism, literalism
and
legalism
Originalist constitutional
theories
answer
the
first
foundational
question
of
interpretation
broadly
in
this
way:
constitutional
text
is
to
be
understood
according
to
its
intended
meaning,
seen
within the
context
in
which it
was
drafted
or
enacted.
Originalism
does
not
provide
a
clear
response
to
the second
question,
the
resolution
of
ambiguity
or
uncertainty.
Such
uncertainty
can
arise
either because
the
intended
meaning
is
communicated
unclearly
or
because
the
text
reflects
the
fact
that
the
framers
had
no
formed
intention
on
the
particular
matter requiring
decision.
Originalism
is
frequently
associated
with
the
interpretivist
or
legalist
belief
that
ambiguities
can
be
resolved
purely
from
within
a
constitution.
Thus
in America the
terms "originalism"
and
"interpretivism", and
their
respective
opposites,
are
often seen
as
synonymous.
2
This
association
is
not
necessary,
however.
The
traditional
Australian
approach
to
constitutional
interpretation
has
long
been
understood
in
terms
of
"literalism" and,
to
a
lesser
extent,
"legalism".
These
two
themes
are
widely
taken
to
by
established
by
the
Engineers case
of
1920,
3
although
in
fact
both
were
present
in
Australian
constitutional law
before
that
decision
and, indeed,
were
characteristic
of
the
preceding
common law
of
statutory
interpretation.
4
The
Australian
literalist orthodoxy
falls
within
the realm
of
originalism,
as
both
Sir
Anthony
Mason
and
Jeffrey
Goldsworthy
have
argued.
5
Literalism
indicates
that
constitutional words
are
to
be
given
their
full,
natural
or
literal meaning
as
understood
in
their
textual
and
historical context.
The
courts'
role
is
to
give
effect
to
the
intent
of
the
Constitution's
framers,
or
perhaps
that
of
the Imperial
Parliament,
as
found
"by
an
examination
of
the
language
used
in
the
statute
as a
whole".
6
This
language
should
be
read
in
its
"natural
sense";
other
considerations
should.
be
excluded,
except
"the
state
of
the
law
as
it
was
when
the
statute
was
passed,
and
the
light
to
be
got
by
reading
it
as
a
whole".
7
Provisions
are to
be
understood
according
to
their
essential
meaning
at
the
2
For
example,
P
Brest,
"The
Misconceived
Quest
for
the
Original
Understanding"
(1980)
60
Boston
LTLR
204
at
204;
M
V
Tushnet,
"Following
the
Rules
Laid
Down:
A
Critique
of
Interpretivism
and
Neutral Principles"
(1983)
96
larvard
LR
781
at
786-804.
3
Amalgamated
Society
of
Engineers
v
Adelaide
Steamship
Co
Ltd
(1920)
28
CLR
129.
4
Note
T
C
Brennan,
Interpreting
the
Constitution:
A Politico-Legal
Essay
(1935)
at
137-144,
163-
168.
5
A
Mason, "The
Interpretation
of
a
Constitution
in
a
Modern
liberal
Democracy"
in
C
Sampford
and
K
Preston
(eds),
Interpreting Constitutions:
Theories,
Principles
and
Institutions
(1996)
at
14-16;
J
Goldsworthy,
"Originalism
in
Constitutional Interpretation"
(1997)
25
F
L
Rev
1
at
8-16.
6
Engineers
(1920)
28
CLR
129
at
162
per
Higgins
J;
also
at
142
per
Knox
Cj,
Isaacs, Rich
and
Starke
jJ.
7
Ibid
at
149.
See
also
at
144
and
152,
per
Knox
CJ,
Isaacs,
Rich
and
Starke
JJ.
Volume
27
Constitutional Interpretation and
Lolutionary
Originalisni
time
they
were enacted
in
1900.8
A
distinction
has
been
drawn
here,
derived
from
JS
Mill,
between
"connotation"
and
"denotation".
9
In
modern
philosophical
usage
this
distinction
tends
to
be
termed
"meaning"
or
"sense"
versus
"reference".
The
Court
seeks
the
connotation
or
meaning
of
the words:
the
essential
qualities
or
characteristics
of
the
concept
referred
to,
as
understood
at
1900.
The
particular
matters
falling
within
the
scope
of
those
words,
the
denotations
or
references,
may
change
over
time.
One
important
question
here
is
what
intentions
are
relevant.
Judges
have
sometimes
talked
of
what
"the
Constitution
intended".
10
An
intention
or
purpose
is
an
end
sought
to
be
achieved, which
presupposes
a
conscious subject
who
can
conceive
of
such
desired ends.
A
document
cannot
have intentions;
it
may
merely
manifest them.
Meaning
is
what
the
receiver takes
from
a
communication.
The
random
typing
of
monkeys
will
eventually
produce
a
work
capable
of
having meaning
to
us,
but
it
would
have
no
intended
meaning
and
we
would
have
no
reason
to
attach
significance
to
it.
Originalism
involves seeking
the meaning
that
the
speaker intended
to
convey.
The
High
Court
has
never
clarified exactly
whose
intent
counts and
why.
There are
three
main
possibilities:
the
Imperial
Parliament,
which
passed
the
Act
containing
the
Constitution; the
framers,
who
drafted
it
in
the
Conventions;
the peoples
of
the
colonies
in
1899/1900,
who
approved it
at
referenda.
References to
the
intentions
of
the
Parliament
have
tended
to
be
little
more
than
a
formality,"
apart
from
statements
that
because
the
Constitution
was
enacted
in
an
Act
of
the
Imperial
Parliament
the
ordinary
rules
of
statutory
construction
apply.
12
From
the first,
the
text
has
been
construed
in
its
Australian
context.
For
example,
"excise"
was
seen
as
bearing
a
distinctly
Australian
meaning.
1 3
Judges have
most
frequently referred
to
the
intent
of
the
framers.'
4
References
to
the
intentions
of
the people
have
also been
common,
15
8
For
example,
Peterswald
v
Bartley
(1904)
1
CLR
497
at
506-509; R
v
Barger
(1908)
6
CLR
41
at
68
per
Griffith
CJ,
Barton
and
O'Connor
JJ;
Federated
Amalgamated Government Railway
and
°'ramwvay
Service
Association
o
New
South
I/Wales
Railway
Traffic
Employees
Association
(1906)
4
CLR
488
at
539
(Railway
Servants
case);
Attorney-General
(NSV)
u
Brewery
Employcs
Union
of
New
South
Wales
(1908)
6
C1LR
469
at
501,
521,
535,
562,
604
and
610
(Union
labcl
case).
9
For
clear
expositions,
see
R
v
Commonwealth
Conciliation
and
Arbitration
Commission;
Ex
parte
Association
of
Professional
Engineers
(1959) 107
CLR
208
at
269
per
Windeyer
J;
Street
v
Queensland
Bar
Association
(1989)
168
CLR
461
at
537-538
per
Dawson
J.
10
For
example,
Lange
v
Australian
Broadcasting Corporation
(1997)
189
CLR
520
at
557.
For
example,
Engineers
(1920)
28
CLR
129
at
148
and
160
per
Knox
C,
Isaacs, Rich
and
Starke
JJ;
Attorney-General
of
the
Commonwealth
of
Australia
v
R
(1957)
95
CLR
529
at
536
(Boilermakers
case).
12
Engineers
(1920)
28
CLR
129
at
142-143,
148,
155
and
161-162;
Victoria
v
Commonwealth
(1971)
122
CLR
353
at
394
per
Windeyer
J
(Payroll
Tax
case);
Attorney-General
(Cth);
Ex
rtl
McKinlay
v
Commonwealth
(1975)
135
CLR
1
at
17
per
Barwick
Q;
Australian
Capital
Televzision
Pty
Ltd
v
Commonwealth
[No.
21
(1992)
177
CLR
106
at
183
per
Dawson
J
(Political
Advertising
case);
MeGinty
v
We/stern
Australia
(1996)
186
CLR
140
at
230
per
McIl-ugh
J.
13
Peterswald
(1904)
1
CLR 497.
14
For
example,
Tasmania
v
Commonwealth
(1904)
1
CLR
329
at
351-356
per
Barton
J;
Baxter
v
Commissioners
of
Taxation
(NST1'v)
(1907)
4
CLR
1087
at
1107-1109
per
Griffith
CJ,
Barton
and
O'Connor
JJ;
Engineers
(1.920)
28
CI-R 129
at
148;
Cheatle
z' R
(1993)
177
CILR
541
at
556.
15
Tasmania
v
Commonwealth
(1904)
1
CLR
329
at
348
per Barton
J,
359-360
per
O'Connor
J;
Baxter
(1907)
4
CLR
1087
at
11041105
and
1112-1113
per
Griffith
CJ,
Barton
and O'Connor
JJ;
Engineers
(1920)
28
CLR
129
at
142
and
160.
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