Heresy as Orthodoxy: Were the Founders Progressivists?

Published date01 March 2003
DOI10.22145/flr.31.1.3
Date01 March 2003
Subject MatterArticle
HERESY AS ORTHODOXY: WERE THE FOUNDERS
PROGRESSIVISTS?
Greg Craven*
INTRODUCTION
Probably the most basic contemporary contr oversy over the interpretation of the
Australian Constitution is that between the methodologies of originalis m (or
intentionalism)1 and progressivism. According to the first, the fundamental task of the
Courts (and especially the High Court) usually is regarded as being to interpret the
Constitution so as to give effect to the intentions of those who framed it at the great
Conventions of the 1890s, commonly referred to as 'the Founding Fathers' or (as here)
'the Founders'.2 Progressivists, on the ot her hand, believe that a searc h for historical
intention is at best incidental in the process of constitutional interpretation, and that
the Court should construe the Constitution so as to bring it into accord with modern
needs and exigencies. Between the two sides in this fiercely contested debate stretches
a vast chasm both of theoretical approach and rhetoric.3 A third approach, literalism,
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* BA, LLM (Melbourne), Barrister and Solicitor of the Supreme Court of Victoria, Foundation
Dean and Professor of Law at the University of Notre Dame, Australia.
1 There are subtle differences between the two, with originalism comprising essentially a
particularly historicist version of intentionalism, but these differences are largely
immaterial for the purposes of this article. For a discussion of such issues see, generally,
Jeffrey Goldsworthy, 'Origina lism in Constitutional Interpre tation' (1997) 25 Federal Law
Review 1; Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary
Originalism' (1999) 27 Federal Law Review 323.
2 The Founders are most commonly identified as the relevant source of constitutiona l
intention in Australian intentionalist and originalist literature: see, eg, Goldsworthy, above
n 1; Greg Craven, 'The Crisis of Constitutional Literalism in Australia' in H P Lee and
George Winterton (eds), Australian Constitutional Perspectives (1992) 1. Progressivist
commentators sometimes argue that the relevant source of intention is comprised in the
colonial populations themselves: see, eg, Kirk, above n 1, 326, 341–3; Stephen Donaghue,
'The Clamour of Silent Constitutional Principles' (1996) 24 Federal Law Review 133, 151–2.
For obvious reasons, this article proceeds on the former assumption.
3 There is now a voluminous and recent literature on such issues in an Australian context:
see, by way of example only, Goldsworthy, above n 1; Jeffrey Goldsworthy, 'Interpreting
the Constitution in Its Second Centur y' (2000) 24 Melbourne University Law Review 677; Kir k,
above n 1; Sir Anthony Mason, 'Constitutional Interpretation: Some Thoughts' (1998) 20
Adelaide Law Review 49; Justice Michael Kirby, 'Constitutional Interpretation and Original
Intent: A Form of Ancestor Worship?' (20 00) 24 University of Melbourne Law Review 1;
Donaghue, above n 2; Craven, above n 2.
88 Federal Law Review Volume 31
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despite a hallowed history in Australian constituti onal law4 and its routine
deployment in virtually all important cases concerning federa l legislative power,5
today largely is overshadowed in the minds of constituti onal lawyers by the
fascinations of its two rivals.
The central importance of progressivism a s a potential constitutional method ology
is clear. By wielding the Constitution as a 'living force',6 the Court can mould its
provisions so as to permit the judicial disposition of an entire range of important social
and policy questions, ranging from the scope of particular powers of the
Commonwealth Parliament, to the constitutional r ecognition and protection of selected
human rights. Traditionally, the operation of progressivism as a constitutional force
has tended to be disguised by the deployment of some m ore conventional forms of
legal reasoning, such as literalism,7 but increasingly it has of late dared openly to speak
its name.8 Equally clear is the basis of the opposition to progressivism. To it s critics,
progressivism is objectionable primaril y on two grounds, each rooted in a version of
democratic theory.9 First, progressivism is a device whereby unelected judges assume
power over a range of matters not confided to them by the Constitution, matters which
properly fall for disposition by elected legislatures. Second, and even more
fundamentally, progressivism—at least in its more potent forms10—involves nothing
less than the judicial amendment of the Constitution in usurpation of the rights of the
electors of the Commonwealth and the states acting under s 128. It is these charges,
that progressivism represents an assault by stealth on traditional co nceptions of
constitutional democracy, that gives the debate much of its academic and political
intensity.
Within this fiercely contested discussion, however, one issue has received relatively
little attention. This is the question of whether the Founders actually intended that the
Constitution should be interpreted more or less strictly in accordance with their
intentions, or to put the matter the other way a round, whether the Found ers
themselves might not have intended that the Constitution should be interpreted
progressively. While it might be just possible to support an intentiona list theory of
constitutional interpretation in the a bsence of any Founders' intent to that effect,11 it is
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4 As expressed in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (' the Engineers
5See, eg, Commonwealth v Tasmania ('the Tasmanian Dam Case') (1983) 158 CLR 1.
6 The phrase memorably employed by Andrew Inglis Clark in Studies in Australian
Constitutional Law (1901) 21, and adopted by Deane J in Theophanous v Herald and Weekly
Times Ltd (1994) 182 CLR 104, 171–3.
7 As, for example, the expansion by the High Court of the power of the Commonwealth
Parliament to legislate wi th respect to external affair s (s 51(xxix)) in the Tasmanian Dam
8 See, eg, Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 168–73 (Deane J); Re
Wakim; ex parte McNally (1999)198 CLR 511, 600 (Kirby J).
9 For a sustained attack on progressivism as a constitutional phenomenon see Greg Craven,
'The High Court of Australia: A Study in the Abuse of Power (Thirty-First Alfred Deakin
Lecture)' (1999) 22 University of New South Wales Law Journal 216; see also Haig Patapan,
'The Dead Hand of the Founders ? Original Intent and the Constitutional Protection of
Rights and Freedoms in Australia' (1997) 25 Federal Law Review 211.
10 As to the different shades of progressivism see below nn 30-6 and accompanying text.
11 For example, by a paradoxica l argument to the effect that the Founders' intent is not
binding per se, and that th e Founders' views as to general modes of interpretati on therefore
2003 Were the Founders Progressivists? 89
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implicit in virtually every articulation of intentionalis m that the Founders of the
Australian Constitution intended, positively, that the document should be interpreted in
accordance with their intentions as to its meaning; and negativel y, that it should not be
the subject of progressive interpretation. In any event, if only as a matter of
constitutional rhetoric, any intentional ist theory that could not itself be inte ntionally
supported would be profoundly unpersuasive. The attitudes of the Founders to
progressivism, therefore, are of considerable significance within current constitutional
debate, and it hardly is surprising that some Australian progressivists are beginn ing to
hint that the Founders should have been counted among their o wn ranks from the
beginning.12
This is the central question addressed in this article: did the Founders intend that
the Australian Constitution should be the subject of progressive interpretation? First, the
notion of progressivism itself will be explore d, its different strands and levels iso lated,
and its relationship with Founders' intent identified. In particula r, the increasingly
frequent (if vague) suggestions that the Founders did indeed contemplate some form
of progressive constitutional interpretation will be noted. Second, and criticall y, these
assertions that the Founders were supportive of progressive constitutional
interpretation will be tested against a detailed analysis of the original Convention
Debates. The general conclusion drawn in this context will be that, while the Debate s
do undeniably disclose certain statements progressivist in tone, these are isolated,
ambivalent and heavily affected by context.
Third, a similar assessment as to progressive tendencies will be made of three
important sources of contemporary material from the period immediately after
Federation: some of the more influentia l constitutional commentaries writte n in the
wake of the passage of the Constitution; the debates on the Judiciary Bill 1902-3 (Cth)
in the Commonwealth Parliament; and some of the more sign ificant constitutional
decisions of the early High Court. The conclusion reached here will be that, while the
debates on the Judiciary Bill in particular contain more than one contribution that is
progressivist in flavour, such statements generally are qualified bot h by their context
and their own content, as well as being balanced by other (generally less well known)
statements extremely hostile to progressive interpretation. Moreover, it is highly
significant that the early constitutional decisions of t he High Court are markedly
inconsistent with any acceptance by the Founders of a progressive approa ch. The final
conclusion drawn from an examination of all these sources will be that there exists no
plausible evidence that the Founders in general or a significant number of the m
envisaged progressive judicial interpretation of the Constitution.
PROGRESSIVISM AND FOUNDERS' INTENT
Australian constitutional progressivism
The central idea behind progressivism as articulated above is relatively
straightforward. It lies in the notion that, in interpreting the Constitution, judges (and
especially the Justices of the High Court) consciously should s trive to construe the
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may be ignored, but that as matter of policy, intentionalism a s related to particular
constitutional expres sions and phrases nevertheless is the prefera ble mode of interpretation
having regard to such considerations as certainty and predictability.
12 See below nn 37–52 and accompanying text.

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