Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni

DOI10.1177/0067205X20973479
Date01 March 2021
Published date01 March 2021
In Focus Response to Volume 48
Constitutional Text, Authorial
Intentions and Implied Rights:
A Response to Allan and Arcioni
Jonathan Crowe*
Abstract
Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied
rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional
text and the historical intentions of its authors. Elisa Arcioni’s response accepts that con-
stitutional doctrines should be grounded in the text and authorial intentions but argues that
the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said
about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give
effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not
only what they had in mind when the text was written but also what those intentions entail in
a contemporary setting. This involves placing both the constitutional text and authorial
intentions within a broader context of legal and social institutions. The High Court’s implied
rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the
Constitution’s intended meaning.
Introduction
Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied
rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text
and the historical intentions of its authors.
1
Elisa Arcioni’s response accepts that constitutional
doctrines should be grounded in the text and authorial intentions but argues that the implied rights
cases meet this standard.
2
Arcioni is correct, but more can usefully be said about the precise
interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’
* Professor of Law, Bond University. Thanks to Elisa Arcioni, Danielle Ireland-Piper and Peta Stephenson for their
comments on an earlier draft. The author may be contacted at jcrowe@bond.edu.au.
1. James Allan, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own
Mess?’ (2020) 48 Federal Law Review 30.
2. Elisa Arcioni, ‘Some Reflections on “Constitutional Interpretation Wholly Unmoored from Constitutional Text”’ (2020)
48 Federal Law Review 279.
Federal Law Review
2021, Vol. 49(1) 149–157
ªThe Author(s) 2020
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DOI: 10.1177/0067205X20973479
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