Constitutional Interpretation, the High Court, and the Discipline of History
| Published date | 01 March 2013 |
| DOI | 10.22145/flr.41.1.4 |
| Date | 01 March 2013 |
| Subject Matter | Article |
CONSTITUTIONAL INTERPRETATION, THE HIGH
COURT, AND THE DISCIPLINE OF HISTORY
Helen Irving
ABSTRACT
The use of history in constitutional interpretation is widespread. It is d efended by
scholars and practised by judges, both in Australia and, in particular, the United States.
Originalism, as thi s practice has come to be known, also attracts many critics. There is
extensive debate, for example, about whether originalism disguises or ser ves political
agendas, or whether constitutional pre-commitment is legitimate: in short, whether the
present should be bound by the past. Originalism comes in many forms, but common
to all is the assumption that the meaning of constitutional provisio ns is to be found in
the past. Critics challenge this assumption primarily on normative grounds. What
originalists and critics alike rarely consider is whet her, and, if so, how, it is possible to
know the relevant history. Surprisingly little attention has been paid to this
fundamental methodological question: if history is to guide constitutional
interpretation, h ow should the courts ‘do’ history? What are the disciplinary rules of
research that should be followed if historical meaning is genuinely to be delivered?
This paper explores what conventional historians do (and the fallacies and errors
they attempt to avoid), and identifies some of the basic rules of historical methodology,
an awareness of which is a precondition for any claim to interpret historically. It
surveys the High Court of Australia’s record of reference to Australia’s constitution-
framing, including and following t he leading ‘originalist’ case, Cole v Whitfield (1988)
165 CLR 360. It considers several alternative ways in which judge s might approach the
use of history methodologically, albeit without becoming historians. It neither defends
nor contests originalism but concludes that history should be used in constitutional
interpretation only with great care and only rarely.
_____________________________________________________________________________________
Professor, Faculty of Law, The University of Sydney. I am grateful to Ned Cooper and,
especially, Giselle Kenny, for their invaluable research assistance, as well as to the article's
anonymous reviewers for their insightful and helpful comments.
96 Federal Law Review Volume 41
____________________________________________________________________________________
INTRODUCTION
Clio [the muse of history] deserves no throne; but may she not claim a corner seat at the
[court's] conference table?
1
What do jud ges do when they turn to history to interpret their country's constitution?
There are several ways to answer this question, s ome of which have received a great
deal of scholarly attention, and one of which, very little. This asymmetry is surprising,
since t he answers are interdependent; indeed, the most neglected is foundational for
the others. To proceed without considering it is like starting a game of chess without
regard for the rules. It can be done, but it is unlikely to produce 'chess'.
The a nswer that has attracted most attention is essentially normative. It goes like
this: when judges base their interpretation on history, they declare a choice about
constitutional authority. They privile ge original historical meaning over current
meaning because they believe the former to be a uthoritative, or worthy of deference, or
binding in a contractual sense. They make, effectively, a principled commitment to a
meaning embedded in the past. This meaning, 'originalists' believe, can be found in
history. Whether 'new' or 'old',
2
or 'strict',
3
or 'arch';
4
whether they are advocates of
'simple-minded',
5
'moderate',
6
'faint-hearted',
7
'hard',
8
'soft',
9
'evolutionary',
10
or
'living'
11
originalism, originalists turn to history to deliver constitutional meaning.
A vast and (it would seem) limitless body of literature surrounds originalis m;
virtual armies of advocates and antagonists l ine up on either side.
12
They argue over
_____________________________________________________________________________________
1
Louis Henkin, 'Some Reflections on Current Constitutional Controversy' (1961) 109
University of Pennsylvania Law Review 637, 657.
2
Steven D Smith, 'That Old-Time Originalism', in Grant Huscroft and Bradley Miller (eds),
The Challeng e of Originalism: Theories of Constitutional Interpretation (Cambridge University
Press, 2011) 223. 'New' originalism focuses on the 'public meaning' of a constitution,
whereas 'old' originalism focuses on the intention of the constitution's framers.
3
As Paul Brest describes Raoul Berger , in Paul Brest, 'The Misconceived Quest for Original
Understanding' (1980) 60 Boston University Law Review 204, 231.
4
As Jeffrey Goldsworthy describes Robert Bork, in Jeffrey Goldsworthy, 'Originalism in
Constitutional Interpretation' (1997) 25 Federal Law Review 1, 34.
5
Larry Alexander, 'Simple-Minded Originalism', in Huscroft and Miller (eds), above n 2.
6
Goldsworthy, above n 4, 87.
7
Antonin Scalia, 'Originalism the lesser evil' (1989) 57 University of Cincinnati Law Review
849.
8
Mitchell N Berman, 'Originalism is Bunk' (2009) 84 New York University Law Review 1.
9
Cass Sunstein, 'Five Th eses on Originalism' (1996) 19 Harvard Journal of Law and Public
Policy 311.
10
Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary Originalism'
(1999) 27 Federal Law Review 323.
11
Jack Balkin, Living Originalism (Harvard University Press, 2011).
12
The 'battle' metaphor is not original. Gary McDowell defends originalists as warriors in a
'contemporary war for the [American] Constitution', engaging in 'tumultuous battles'
against the commission of 'unforgiveable political and constitutional sin[s].' Gary
McDowell, The Language of Law and the Foundations of American Constitutionalism
(Cambridge University Press, 2010) 1. See a lso Helen Irving, 'Embattled Originalism' (2011)
47 Tulsa Law Review 163.
2013 Constitutional Interpretation, the High Court, and the Discipline of History 97
____________________________________________________________________________________
whether originalism is desirable; whether it disguises or serves curre nt political
agendas;
13
whether cons titutional pre-commitment is legitimate:
14
in short, whether
the present should be bound by the past. But, with very few exceptions, almost no one
answers the question 'what do judges do when they turn to history to interpret their
country's constitution?' by explaining how they come to know about the past.
Originalists assume that history is the guide, but they neglect what is required, in a
disciplinary or methodological sen se, for discovering what history reveals. Yet, if
constitutional interpretation is to be grounded in history, originalists must surel y want
to get the history right.
Methodological questions are certainly raised in the literature o n originalism, but
these are almost always subsumed under debates about constitutional interpreta tion.
To give tw o recent examples: the index of a multi-authored collection, The Challenge of
Originalism: Theories of Constitutional Interp retation,
15
has an entry 'Interpretation,
constitutional’, with eleven sub-heading s, but not a single entry or sub-heading
'Interpretation, historical.’ A journal symposium on a new book, Living Originalism,
16
with nine articles offering criticisms and encomiums, includes no disc ussion of
historical methodology, despite the book's central claims about the historical meaning
of the United States Constitution, and the highly detailed exploration in one of the
symposium articles of the history of a particular constitutional provision (the
commerce clause).
17
Scholarly neglect is not the most troubling part of the picture. In numerous cases in
which history is employed in constitutional interpretation, judges are silent on ho w,
methodologically, they have reached their historical conclusions. Historical sources are
cited, historical actors are quoted, but little if anything is said about their choice or the
interpretive principles with which the historical material is a pproached (Cole v
Whitfield
18
comes close to being an Australian exception, but for reasons explored
below, does not quite get there). Without more, it would appear, indeed, that the
'history' done by judges occupies a different her meneutical space from the 'history'
done by historians. Perhaps a case can be made for such a distinction. Even the n, the
originalist will need to engage with 'conventional' history i n order to show what makes
lawyers' history special.
Some, no doubt, will object that historical methodology is far from neglected. Many
critics of originalism, in particular, contemplate what is involved in the search for
original meaning in the course of arguing (or, at least, asserting) that the latter cannot
be ascertained. Paul Brest, for example, concludes that historical certainty is
unattainable because co nventional historians would need to shed their preconceptions
_____________________________________________________________________________________
13
Richard H Fallon, 'Are Originalist Constitutional Theories Principled, or are they
Rationalizations for Conservatism?' (2011) 34 Harvard Journal of Law and Public Policy 5.
14
Stephen Holmes, 'Precommitment and the Paradox of Democracy' in Jon Elster and Rune
Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, 1988) 195;
Jeremy Waldron, 'Precommitment and Disagreement' in Larry Alexander (ed),
Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998) 271.
15
Huscroft and Miller (eds), above n 2.
16
[2012] University of Illinois Law Review 101. See Balkin, Living Originalism, above n 11.
17
Randy Barnett, 'Jack Balkin's Interaction Theory of "Commerce"' [2012] University of Illinois
Law Review 623.
18
Cole v Whitfield (1988) 165 CLR 360.
To continue reading
Request your trial