ORIGINALISM IN CONSTITUTIONAL INTERPRETATION Jeffrey Goldsworthy* Our duty is to declare the law as enacted in the Constitution and not to add to its provisions new doctrines which may happen to conform to our own prepossessions. 1 1 INTRODUCTION In this article I will discuss two questions concerning "originalism" in Australian constitutional law. The questions are, first, the extent to which the contemporary meanings of constitutional provisions, express or implied, are the same as their original meanings in 1900, when the Constitution was created; and secondly, the extent to which those original meanings are determined by the intentions of the people responsible for creating it (whom I will call "the founders"2). These two questions are distinct. Almost all literary critics would agree that the language in Shakespeare's plays should be understood in its original sixteenth century sense, but many would deny that any other evidence of Shakespeare's intentions is relevant in interpreting it. Similarly, a literalist, who believes that the meaning of the Constitution is exhausted by the meanings of its words, could hold that their original literal meanings are critical, but reject the relevance of any other evidence of the founders' intentions. I will argue that both original meanings and original intentions help determine the contemporary meaning of the Constitution. But the position I will defend can aptly be described as "moderate originalism", because it falls somewhere between more extreme versions of originalism and non-originalism. My defence of that position will be both descriptive and normative: I will argue that moderate originalism is more faithful than its rivals to legal precedents and conventions, and more attractive from the perspective of political morality. Recent decisions of the High Court suggest uncertainty and even ambivalence in approaching these questions. For example, in a number of cases over the last ten years, it has relied heavily on evidence of the founders' intentions, evidence which it would not previously have been willing even to consult; yet more recently, in dealing with Associate Professor of Law, Monash University. This article originated as a paper presented at the Workshop on Legal Interpretation, organised by the Social and Political Theory Group, Research School of Social Sciences, Australian National University, on September 12, 1996. I am grateful to participants at the Workshop for their comments, and to Richard Holton and Rae Langton for commenting on an earlier presentation. AG (Cth); ex reI McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 44 per Gibbs J. Just who these people should be taken to have been - those who drafted and debated the Constitution in Constitutional Conventions, the voters who approved it in referendums, the members of the Imperial Parliament who enacted it - is discussed in Part 5, below. 1 2 2 Federal Law Review Volume 25 implied rights, majority Justices have often either side-stepped, or denied the relevance of, those intentions. The clearest evidence of ambivalence can be found in the reasoning of several Justices in McGinty v Western Australia,3 particularly when read in the light of obiter dicta in Cheatle v R4 and Langer v Commonwealth. s The ambivalence revealed in the reasoning in these cases, which I will describe in this section, provides a useful context for an examination of originalism. McGinty's case concerned the constitutional validity of Western Australian legislation governing the distributions of electorates for both Houses of the State Parliament. The legislation permitted distributions to favour country electorates; the most populous city electorates contained several times more voters than the least populous country ones. 6 The plaintiffs argued that this violated the "one vote, one value" principle, which they submitted was guaranteed by both the Western Australian and Commonwealth Constitutions (for convenience I will call it "the equality principle".) Their challenge was rejected by a majority of four Justices (Brennan CJ, Dawson, McHugh and Gummow JJ) to two (Toohey and Gaudron JJ). The case raises difficult issues concerning the two constitutions and the relationship between them. To simplify discussion, it is helpful to ignore the issues of State constitutional law, and also the bearing of the Commonwealth Constitution on State electoral distributions. The issue which brings the question of originalism into sharpest relief was one raised only indirectly: whether or not the Commonwealth Constitution guarantees the equality principle for the purposes of Commonwealth elections. On that issue no majority opinion was expressed: although Dawson, McHugh and Gummow JJ denied that it did, Brennan CJ expressed no opinion. 7 It is possible to argue that the Constitution guarantees the equality principle either because it is implicit in the express words of ss 7 and 24, which require that Members of the Commonwealth Parliament be "directly chosen by the people", or because it is part of a broader implication of those sections together with others, namely, that Commonwealth electoral laws must comply with the essential conditions of representative democracy.8 But a major obstacle for either version of the argument is the undeniable fact that in 1900, when the Constitution was enacted, there was little support for the equality principle. Electorates of the British Parliament and of colonial legislatures varied greatly in size, and that was generally believed to be justifiable. If the meaning of the Constitution depends in relevant respects on the intentions of the founders, it is very difficult to argue that it guarantees the equality principle. To make the argument plausible, it is necessary to establish that the meaning of constitutional provisions, whether express ("directly chosen by the people") or implied ("representative democracy"), should be determined by the concepts and values of today, rather than those of 1900, when the provisions were enacted. (It is then 3 4 S 6 7 8 [1993] HCA 44; (1996) 186 CLR 140. (1993) 177 CLR 541. (1996) 186 CLR 302. (1996) 186 CLR 140 at 165-166 per Brennan J for the statistics. Ibid at 175. Whether the Constitution does implicitly guarantee representative democracy will be not be discussed here. The four members of the majority seem to deny that "representative democracy" is contained in the Constitution as a principle in its own right: ibid at 168-171 per Brennan CJ, at 182-183 and at 188 per Dawson J, at 232-236 per McHugh J, and (less explicitly) at 284-286 and 291 per Gummow J. 1997 Originalism in Constitutional Interpretation 3 necessary to establish that either the expression "directly chosen by the people", or the principle of representative democracy, is understood today to include the equality principle. That is itself debatable.) In Cheatle v R, decided two years before McGinty was argued, the High Court unanimously agreed that, despite the fact that in 1900 juries were composed exclusively of men who satisfied some minimum property qualification, in the 1990s the requirement in s 80 of "trial ... by jury" would invalidate the exclusion of women or the poor from juries. 9 The Court said that s 80 required juries to be representative of the wider community, and that at least some elements of the concept of representation varied according to "contemporary standards and perceptions".lo This reasoning encouraged the plaintiffs in McGinty to argue that the concept of representation implicit in provisions such as ss 7 and 24, dealing with parliamentary elections, also varies according to contemporary standards. The two dissenters in McGinty, Toohey and Gaudron JJ, accepted this argument. "The Constitution must be construed as a living force", said Toohey J, "and the court must take account of political, social and economic developments since [1900]".11 As for representative democracy, "its significance within the Constitution cannot be frozen by reference to the year 1900 or thereabouts"; "[i]t is the current perception which is embodied in the Australian Constitution".12 Gaudron J took the same view of the words "chosen by the people": their "content and application ... [must] be determined in the light of developments in democratic standards and not by reference to circumstances as they existed at Federation".13 It came as no surprise that Toohey and Gaudron JJ took this position, as both have been at the forefront of attempts to expand the Constitution's protection of rights. 14 More significant is the fact that Gummow J agreed with it to some extent, as did McHugh J in the Langer case, decided on the same day as McGinty, while Brennan CJ in McGinty conceded that it was "at least arguable".15 Fears concerning the right to vote seem to be responsible for persuading even these more cautious judges to partly accept the "evolving meaning" thesis. In 1900, only two colonies had given women the right to vote, and no such right was included in the Constitution. At that time, neither the words "directly chosen by the people", nor any principle of representative democracy which may have been implied by the Constitution, would have been understood to require full adult suffrage. Whether or not women would be permitted to vote in Commonwealth elections was a matter deliberately left to the new Parliament to decide, subject only to s 41, which guaranteed that women already entitled to vote in State elections would also be permitted to vote 9 10 11 12 13 14 15 Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 at 560-561. Ibid at 560, quoted in full in the text to n 212, below. (1996) 186 CLR 140 at 200. Ibid at 200 and 201. Ibid at 221. See in particular Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 and Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455, as well as cases on the implied freedom of political speech. McGinty's case (1996) 186 CLR 140 at 286-287 per Gummow J, and at 166-167 per Brennan CJ, and Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 342 per McHugh J. 4 Federal Law Review Volume 25 in Commonwealth ones. 16 What apparently worries these judges is this: if the Parliament today or in the future attempted to repeal the right of women to vote in Commonwealth elections, would the Constitution have to be interpreted as permittin it to do so? Although in 1975 four Justices in McKinlay's case said that it would,l Gummow and McHugh JJ, and possibly Brennan CJ, were reluctant to agree. Gummow J stated that at any particular time such questions are: to be determined by reference to the particular stage which then has been reached in the evolution of representative government ... [U]niversal adult suffrage ... has become a characteristic of popular election ... which could not be abrogated by reversion to the system which operated in one or more colonies at the time of Federation. 18 9 In Langer v Commonwealth, McHugh J said that the "vague but emotionally powerful abstraction known as 'the people' [is] a term whose content will change from time to time. He continued: In the light of the extension of the franchise during this century, for example, it would not now be possible to find that the members of the House of Representatives were "chosen by the people" if women were excluded from voting or if electors had to have property qualifications before they could vote .... Whether or not a member has been "chosen by the people" depends on a judgment, based on the common understanding of the time. 19 In McGinty's case, Brennan J said that, "In view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote".20 Dawson J is the only currently serving member of the Court who has expressly taken the opposite view: "[T]he qualifications of electors are to be provided for by parliament under ss 8 and 30 and may amount to less than universal suffrage, however politically unacceptable that may be today."21 On the other hand, Dawson J was a member of the Court which, in Cheatle's case, unanimously endorsed the proposition that today, the requirement in s 80 of "trial ... by jury" would invalidate the exclusion from juries of women or unpropertied persons, even though in 1900 it did not do so.22 The position is therefore that a majority of at least four, and perhaps five, of the Justices (Toohey, Gaudron, McHugh and Gummow JJ, and possibly Brennan CJ) would agree that in some sense the meaning of either the words "chosen by the people", or the concept of representative democracy, "evolves" according to contemporary concepts and values. The same four, or possibly five, would agree that at least one of these has evolved so that it now guarantees the right of women to vote. But if so, it is at least possible that it also guarantees the equality principle. That connection was made 16 17 18 19 20 21 22 Section 41 is no longer regarded as having any practical operation: R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254. Attorney-General (Cth); ex reI McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 19, 44, 56-57 and 62 per Barwick CJ, Gibbs, Stephen and Mason JJ respectively. McTiernan and Jacobs JI, and Murphy J, disagreed: ibid at 36 and 69 respectively. McGinty's case (1996) 186 CLR 140 at 286-287. [1996] HCA 43; (1996) 186 CLR 302 at 342. (1996) 186 CLR 140 at 166-167. Ibid at 183; see also Australian Capital Television Pty Ltd v Commonwealth [No 2] [1992] HCA 45; (1992) 177 CLR 106 at 188. Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 at 561. 1997 Originalism in Constitutional Interpretation 5 explicitly by Toohey and Gaudron JJ.23 It is, in fact, difficult to reconcile the comments of Brennan CJ and McHugh and Gummow JJ, just quoted, concerning the evolution of the right to vote, with much of the reasoning which persuaded them to reject the equality principle in McGinty. This is the evidence of ambivalence which I referred to earlier. An apparent inconsistency between McHugh J's comments in Langer's case, concerning the evolution of the right to vote, and much of his reasoning in McGinty, seems especially difficult to reconcile. Admittedly he denied, in McGinty, that the equality principle is generally regarded even today as an essential ingredient of representative democracy.24 If true, this is a valid ground for distinguishing the equality principle from the right to vote, because no-one would say the same of women's right to vote. But that was not his only reason for rejecting the equality principle. He argued that the Constitution must be interpreted "according to the ordinary and natural meaning of its text, read in the light of its history"25; that "[r]ecourse must be had to history and context to give meaning to the words 'directly chosen by the people"';26 that "[s]ince the requirement of an equal number of voters in electoral districts was not seen as necessary for the preservation of the Constitution or its system of government at the time of Federation, it is difficult to see how it can be rationally concluded that it is necessary at the present time";27 and that "[i]n the light of ss 29 and 30 of the Constitution, the electoral practices at the time of Federation in Great Britain and Australia and those express provisions of the Constitution that require or authorise unequal voting power, it is impossible to hold that the Constitution requires equality of electoral districts".28 The problem is that these reasons also require the conclusion that even today, the words "directly chosen by the people" cannot be interpreted to guarantee the right of women to vote. Section 30, read in the light of s 41 and s 128, expressly left open the possibility that the Parliament would not give women the right to vote. If it is true that "the electoral practices at the time of Federation in Great Britain and Australia and ... express provisions of the Constitution ... authorise unequal voting power", it is equally true that they authorise an exclusive male franchise, and make it "impossible to hold" that the Constitution guarantees women's right to vote. 29 23 24 25 26 27 28 29 McGinty's case (1996) 186 CLR 140 at 201 and 222. Ibid at 245-250. Ibid at 230. Ibid at 239. Ibid at 245. Ibid. I also have difficulty understanding some of McHugh J's remarks in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104. He denied that "the actual intentions of the makers control the meaning of the Constitution" and said that ,"The meaning that the Constitution has for the present generation is not necessarily the same meaning that it had for earlier generations or for those who drafted or enacted the Constitution": ibid at 197. But he then added that "each generation must read the provisions of the Constitution in their context and that includes the historical context of the Constitution" (ibid), argued that a general theory or principle can legitimately be used in interpreting the Constitution "only when there are grounds for concluding that the meaning of the constitutional provision was intended to be understood by reference to [it]", grounds which can "arise from what was said and done at the Conventions leading up to the enactment of the Constitution" (ibid at 198), and later relied heavily on what "the makers of the Constitution probably had in 6 Federal Law Review Volume 25 The reasoning of Gummow J also includes a heavy emphasis on historical evidence of the founders' intentions which is difficult to reconcile with the notion of an evolving right to vote. He said that the "contemporary background" of the enactment in 1900 of ss 7 and 24 shows that the purpose of the words "directly chosen by the people" was to require direct elections of parliamentarians rather than some indirect method of selection.30 Subject to s 41, which protected the right of women in those States with full adult franchise, the determination of who would be entitled to vote was left "at large for provision by the new parliament" pursuant to s 30. 31 As with many other aspects of government: [The Constitution] accommodate[d] the notion that representative government is a dynamic rather than a static institution .. , [by] authorising the legislature to make appropriate provision from time to time. It is by this means that the Constitution continues to speak to the present and allows for development of the institution of government by changes which may not have been foreseen a century ago or, if foreseen by some, were not then acceptable generally". 32 "[I]t was, as Barton had said in 1891, a case of "trust the parliament of the Commonwealth". The Constitution explicitly proceeds on that footing".33 Gummow J seemed to think that this was true of the right to vote: he e~ressly stated that "the Constitution did not entrench ... any universal adult franchise". ~ But then, out of the blue, he said that what constitutes a direct choice by the people is determined by reference to "the particular stage which then has been reached in the evolution of representative government"; no development which has become "a characteristic of popular elections" can be "abrogated by reversion to the system which operated in one or more of the colonies at the time of Federation".35 This is very odd. It is as if the Constitution provides for the system of representative government to develop, by trusting Parliament "to make appropriate provision from time to time", except that Parliament cannot legitimately decide that some earlier version of representative government was better than the current version. Whatever the Parliament has done it cannot undo; reforms, once made, cannot be regretted and repealed. But only a naive faith in the inevitability of~rogress (which I do not attribute to Gummow J) could make this position intelligible. 3 Consider compulsory voting, for example, which was introduced in 1924. It can truly be said today that this has become a "characteristic of popular elections" of senators and members of the House of Representatives. But surely it cannot be the. case that it could not be "abrogated by reversion to the system which operated in one or more colonies at the time of mind" (ibid at 200-201). "[T]he makers of the Constitution did not intend, and the Constitution does not give effect, to any general doctrine of representative democracy. No doubt ... the makers of the Constitution trusted the Parliament to protect representative democracy": ibid at 201. McGinty's case (1996) 186 CLR 140 at 279. Ibid. Ibid at 280-281 (emphasis added). Ibid at 284 (emphasis added). Ibid at 283. Ibid at 286-287. As Justice Antonin Scalia puts it, "[N]ote the wide eyed, youthful meliorism in this sentiment: Every day, in every way, we get better and better. Societies always mature, they never rot": "The Role of a Constitutional Court in a Democratic Society" (1995) 2 The Judicial Review 141 at 145. 30 31 32 33 34 35 36 1997 Originalism in Constitutional Interpretation 7 Federation", that is, optional voting. It would surely be unacceptable for the Court to hold that compulsory voting, which many people believe to be less democratic than optional voting, is now mandated by the Constitution simply because it has become "characteristic" of our modern system of representative government. Gummow J must mean that the constitutional requirements of representative government are determined by contemporary values, not by whatever happen to be the characteristics of our contemporary system of government. (Although note that even this seems optimistically to assume that contemporary values are certain to be superior to those of the past.) His view must be that past methods of government cannot be revived if they are incompatible with contemporary values, but otherwise can be, as in the case of optional voting. If so, the same should be true of innovations, that is, the adoption of methods of government not tried before. They should be constitutionally valid only if compatible with contemporary values. But if this is his view, it is inconsistent with his historical argument that the Constitution was designed to trust Parliament with such developments. It makes the opposite assumption, that it is for the High Court to decide whether developments are compatible with contemporary values. Brennan Crs judgment in McGinty also includes passages which are difficult to reconcile with his concession that "it is at least arguable" that the Constitution now guarantees rights to vote which it did not guarantee in 1900. 37 For example, in discussing the Western Australian Constitution he said, "The language of s 73(2)(c) must be construed in the light of the constitutional history of the State and the circumstances existing when that provision was introduced".38 But if that is true of s 73(2)(c), why is it not equally true of the provisions of the Commonwealth Constitution, including those governing the franchise? Again, he said that if the plaintiffs were right, an implication in the Commonwealth Constitution would have invalidated State electoral laws in 1901, "a startling and unintended consequence of Federation".39 But if the meaning of constitutional provisions can evolve with time, this is not a logical consequence of the plaintiffs' argument: an implication might invalidate State electoral laws today, but not have done so in 1901, because it might then have meant something different. The upshot is a tension between, on the one hand, the general reasoning of these judges, which seems to assume that the contemporary meaning of constitutional provisions is the same as their original meaning, and is partly determined by the founders' intentions, and on the other hand, their obiter dicta concerning an evolving right to vote. In Parts 2 to 5 and 7, I will argue that the former assumption is strongly supported by orthodox principles of statutory and constitutional interpretation, by independent reflection on the nature of meaning, interpretation and change, and by considerations of political morality. However, in Part 6, I will show that the assumption is compatible with various ways in which the operation of the 37 38 39 Brennan CJ did not discuss whether or not the Constitution today guarantees the equality principle for the purpose of Commonwealth elections: McGinty's case (1996) 186 CLR 140 at 175. He may have thought that this was just as arguable as the proposition that it guarantees full adult suffrage. But this possibility does not affect the point made in the text. Ibid at 178. Ibid. 8 Federal Law Review Volume 25 Constitution, and constitutional law, can legitimately change. In Part 8, I will consider whether or not the assumption is therefore consistent with an evolving right to vote. 2 ORIGINALISM IN LEGAL INTERPRETATION If Bill asks me to "give this money to Susan", and I know, and he knows I know, that he means his daughter Susan, then it is a fact that his request means "give this money to my daughter Susan", even though he has not said this in so many words. The meaning of an everyday utterance is a "social fact", determined by social conventions, including conventions which make certain kinds of evidence of the speaker's intentions relevant, as well as others which fix dictionary meanings and rules of grammar. These conventions are accepted for normative reasons: the former one, concerning speakers' intentions, could be abandoned, but only at the cost of forcing us to make our everyday utterances much more prolix and convoluted, in order to incorporate everything needed to express our intentions exactly and completely in verbal form. But despite the normative basis of the convention, as long as it is generally accepted, it helps to determine what, as a matter of (social) fact, everyday utterances mean. 40 Much the same is true of the meanings of legal provisions, which are determined by generally accepted legal conventions. As in the case of everyday utterances, one of the most fundamental of these conventions requires that certain kinds of evidence of the intentions of the "speaker" - the law-maker - be taken into account. For centuries, the common law has recognised that the object of all interpretation "is to determine what intention is conveyed either expressly or by implication by the language used", or in other words, "to give effect to the intention of the [law-maker] as that intention is to be gathered from the language employed having regard to the context in connection with which it is employed".41 Tindall CJ said that this was "the only rule" for the construction of statutes, and Higgins J, in 1920, said that it was "[t]he fundamental rule of interpretation, to which all others are subordinate".42 Mason and Wilson JJ recently agreed: "The fundamental object of statutory construction in every case is to ascertain the legislative intention ... The rules [of interpretation] ... are no more than rules of common sense, designed to achieve this object". 43 This is a view which leading cases and textbooks on statutory interpretation in En~land, Australia, Canada and the United States have supported for a very long time. 4 Indeed, it can be traced at least as far back as the fifteenth century; Chrimes reports that it was "certainly established by the second half of the fifteenth century", and by Henry VII's reign was "sufficiently 40 41 42 43 44 For an enquiry into the nature of social facts, see J Searle, The Construction of Social Reality (1995). P P Maxwell, On the Interpretation of Statutes (1875) at 1, and Attorney-General v Carlton Bank [1899] 2 QB 158 at 164 per Lord Russell. Sussex Peerage Case [1844] EngR 822; (1844) 8 ER 1034 at 1057 per Tindall CJ; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 161. Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. P P Maxwell, above n 41 at 1; Halsbury's Laws of England (4th ed) Vol 44 at para 522; F Bennion, The Interpretation of Statutes (2nd ed 1992) at 345-347; P Langan, Maxwell on the Interpretation of Statutes (12th ed 1969) at 28; H Black, Handbook on the Construction and Interpretation of the Laws (1896) at 35f£; Norman J Singer, Sutherland Statutory Construction (5th ed 1992) Vol2A, 22-23; E Driedger, Construction of Statutes (2nd ed 1983) at 105-106; PA Cote, The Interpretation of Legislation in Canada (2nd ed 1991) at 4-5. 1997 Originalism in Constitutional Interpretation 9 established to be clearly stated several times from the bench".45 The many early authorities which consistently attest to the crucial role of legislative intention in statutory interpretation include A Discourse Upon the Exposicion and Understandinge of Statutes (pre-1567), Plowden, Selden, Coke's Institutes (1630s), Bacon's New Abridgement of the Law (1736), Blackstone's Commentaries (1765) and Dwarris's General Treatise on Statutes (1848).46 When the fundamental principle of statutory interpretation is ignored, as it too often is, many of the traditional maxims and presumptions of interpretation can seem like a jumble, or worse, a series of mutually contradictory directives, able to be selectivell, marshalled to support whatever interpretation is preferred on policy grounds. 7 But once it is understood that the clarification of a statute's meaning requires taking account of all relevant evidence of legislative intention, then it should be appreciated that there can be a wide variety of evidence, that some pieces of evidence may contradict others, and that a final judgment requires weighing them against one another. The difficulty of the task should not impugn its authenticity. A long-standing principle of interpretation which is entailed by this fundamental commitment to legislative intention is that until they are formally amended, statutory provisions mean what they meant when they were enacted. 48 The principle was endorsed in Coke's Institutes in the early seventeenth century.49 Lord Esher's somewhat extreme formulation of it has often been quoted and applied: "[T]he words of a statute must be construed as they would have been the day after the statute was passed".50 Maxwell thought it "obvious that the language of a statute must be understood in the sense in which it was understood when it was passed",51 presumably because otherwise Parliament's statutes would be, in effect, vulnerable to amendment by extra45 46 47 48 49 50 51 S B Chrimes, English Constitutional Ideas in the Fifteenth Century (1966 reprint) at 294. Most of these authorities are cited in R Berger's excellent collection of early English sources, "'Original Intention' in Historical Perspective" (1986) 54 George Washington L R 296 at 299-308; see also R Berger, "The Founders' Views - According to Jefferson Powell" (1989) 67 Texas L R 1033 at 1059-1065. To Berger's copious references can be added Plowden's summary of various cases involving statutory interpretation, as "hav[ing] always been founded upon the intent of the Legislature": Stradling v Morgan (1560) 1 Plowd 199 at 205; and Sir Edward Coke's statement that "every statute ought to be expounded according to the intent of them that made it": 4 Co Inst 330. Coke's conception of interpretation is discussed in R A MacKay, "Coke - Parliamentary Sovereignty or the Supremacy of the Law?" (1924) 22 Michigan L R 215 at 236-237. See also F Dwarris, A General Treatise on Statutes (2nd ed 1848) at 551-552 and 556-560. See also n 106. The classical statement of this view is K Llewellyn, "Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed" (1950) 3 Vanderbilt L R 395. In his list of the canons of interpretation, Llewellyn does not include the principle that statutes should be interpreted according to the intentions of the legislature. This is surprising, given that in the very next article, Charles Curtis says "[w]e have, almost all of us, I think, been brought up in the belief that the interpretation of legal documents consists essentially in a search for the intention of the author", and that this "familiar doctrine is current as well as orthodox": C Curtis, "A Better Theory of Legal Interpretation" (1950) 3 Vanderbilt L R 407 at 407 and 408. See generally D J Hurst, "The Problem of the Elderly Statute" (1983) Legal Studies 21. "[T]hose ancient acts and graunts must be construed and taken as the Law was holden at that time when they were made": 2 Co Inst 2. Sharpe v Wakefield (1888) 22 QBD 239 at 242. P Langan, above n 44 at 264. 10 Federal Law Review Volume 25 parliamentary means. A law necessarily means something - nothing meaningless can be a law - and its meaning is part of what it is. Therefore to change the meaning of a law is to change the law. To hold that a law no longer means what it meant when it was first enacted would be to hold that it is no longer the same law - and therefore that it has been changed, without the constitutionally prescribed method of change having been employed. The maxim contemporanea expositio est optima et fortissima in lege is an application of this principle. 52 Holt CJ, as well as many others, justified the use of that maxim on the ground that "a contemporary exposition of the law, if there be any question about it, as our books tell us, is always the best because the temper of the law makers is then best known".53 It is true that British and British Commonwealth courts were traditionally reluctant to consult extrinsic evidence of legislative intention, such as official reports of parliamentary debates. But it is a mistake to infer from this that they never took seriously the principle just mentioned, that statutory interpretation is first and foremost concerned with clarifying the original intentions which statutes convey, either expressly or by implication. 54 The courts traditionally limited the kind of evidence which they were willing to use to ascertain the intentions of law-makers, because a law is supposed to be something which can be readily understood by those who are subject to it, or at least by their legal advisers, rather than something the meaning of which depends on esoteric information. 55 The courts' traditional evidential limitations may have been too restrictive, but some limit to the relevance of hidden legislative intentions is crucial to what we call "the rule of law". The law can provide a useful framework for social interaction only if its meaning is made public, or at least readily ascertainable; moreover, inflicting penalties or other costs for a failure to comply with hidden intentions is obviously unfair. 56 In addition, an evidential limitation reflects a sound principle which we use in everyday life as well. As the case of Bill and Susan demonstrates, the full meaning of what people say to us depends partly on what we know about their intentions; but it does not depend on esoteric information such as what they confide only to their spouses or write in their private diaries. The meaning of an utterance depends partly on what its intended audience knows, or can reasonably be expected to know, about the speaker's intentions, but not about concealed intentions. 57 In the case of laws, the courts have therefore distinguished between 52 53 54 55 56 57 See D J Hurst, above n 48 at 23-24. Harcourt v Fox [1693] EngR 19; (1693) 1 Show KB 506 at 535, quoted in Hurst, above n 48 at 24 footnote 17 (emphasis added). This mistaken inference badly mars the arguments made in H Jefferson Powell, "The Original Understanding of Original Intent" (1985) 98 Harvard L R 885 at 885-890, 895-896, 903-906 and 948. This was not the only reason: evidence ot what was said in parliamentary debates was also excluded because it was regarded as unreliable, and as unprofitably adding to the time and expense of litigation. See T R S Allan, "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism" (1985) 44 C L JIll at 117-118 and 122-124. See J Goldsworthy, "Marmor on Meaning and Interpretation" (1995) 1 Legal Theory 431. Since that article was written, in 1994, I have discovered that a very similar theory of literary meaning was previously proposed by W E Tollhurst, in "On What a Text Is and How It Means" (1979) 19 British Journal of Aesthetics 3, and adopted by J Levinson in "Intention and Interpretation: A Last Look", in G Iseminger (ed) Intention and Interpretation (1992) 221. 1997 Originalism in Constitutional Interpretation 11 whatever hidden intentions the law-makers may have had, and those intentions they have communicated by the law they have enacted, given readily available knowledge of its context and purpose. While the former are irrelevant, the latter may be crucial. That is why, when interpreting a law, judges often take into account the circumstances when the law was made and what it was intended to achieve, when these are, or were when the law was made, matters of common knowledge. 58 In the case of laws, it is not altogether clear who the "intended audience" is. The courts have always held that the meaning of statutory provisions may depend on specialised knowledge possessed by lawyers; for example, knowledge of the technical legal meaning of particular words or phrases, or of pre-existing deficiencies in the law which a statute was intended to remedy. It is not the case, therefore, that they have admitted as evidence of legislative intention only matters known by the general public. It is as if they have treated lawyers as the "intended audience", or at least lay-people only through the medium of professional legal advice. That is one reason why I said in the previous paragraph that "a law is supposed to be something which can be readily understood by those who are subject to it, or at least by their legal advisers", and that the courts are prepared to take into account "readily available" knowledge of a law's context and purpose. Sometimes it may be "readily available" only by consulting a lawyer. This is relevant to the meaning of the Constitution. Alfred Deakin said in 1898 that: [The proposed Constitution] requires for its full interpretation a considerable amount of constitutional knowledge. Although the members of the Convention and others will have every opportunity of expounding it, in the light of their constitutional knowledge, to the public, the measure itself will not, except to a student of our form of government, convey a great deal of what it necessarily means. 59 For example, the interpretation of the words "peace, order and good government", used in ss 51 and 52, is properly determined by the well known legal meaning which they had acquired by the 1890s, as a result of earlier Privy Council decisions. 60 Contextual evidence of the legislature's intentions is not an optional extra, to be taken into account at the judges' discretion only when a statute is unclear and judicial creativity is required to clarify it. On the contrary, it helps to determine what statutes mean: what the law is, rather than what it ought to be. To cite a wholly typical example, Barwick CJ, in interpreting s 64 of the Judiciary Act 1903 (Cth), said that, "If ... the Court's task in this case were merely to construe s 64 without regard to historical considerations", he would have arrived at a certain conclusion. He continued: "However, the Court is not able, in my opinion, simply to construe the relevant words of the Judiciary Act as if enacted in a vacuum," and so he went on to examine at some 58 59 60 See, eg, Maxwell (1875), above n 41 at 20-21; P Langan, above n 44 at 47-50; E Driedger, above n 44 at 149-151; J F Burrows, "Statutory Interpretation in New Zealand", reprinted in N J Singer, above n 44, 647 at 658; J Bell and G Engle, Cross on Statutory Interpretation (2nd ed 1987) at 140-142; G Devenish, Interpretation of Statutes (1992) at 127-129 and 130-133; D Gifford, Statutory Interpretation (1990) at 117-119. Official Record of Debates, Ausfralasian Federal Convention, Melbourne, 1898, at 1064 (17 February). See J Goldsworthy, "Implications in Language, Law and the Constitution", in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150 at 177-178. 12 Federal Law Review Volume 25 length the historical background to the statute's enactment, eventually coming to a different conclusion. 61 We can summarise all this, somewhat inexactly, by saying that the meaning of a statute is its original meaning, and that this is partly determined by the intentions of the enacting legislature. Combining these ideas, we can say that the fundamental principle of statutory interpretation is that the meaning of a statute is its original, intended meaning, unless it has been formally amended in the meantime. I will henceforth refer to this as the principle of original, intended meaning. The formulation is inexact in that it ignores the previously explained limitation on the kind of evidence of legislative intention which is relevant. The High Court from its very beginnings acce£ted that this principle is equally applicable to the interpretation of the Constitution. 2 In the Union Label case in 1904 it assumed that the meaning of a constitutional term is the original meaning which it had when enacted in 1900. 63 Even Isaacs and Higgins JJ accepted this precept, although they often disagreed with the majority as to its application. 64 As Griffith CJ said in 1912, the Court should not "vary its construction from time to time to meet the supposed changing breezes of popular opinion". 65 This orthodox understanding was later expressed by Windeyer J when he said that: [I]n the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes. 66 In King v Jones, Barwick CJ said: There are some basic propositions of constitutional construction which are beyond controversy. The words of the Constitution are to be read in that natural sense they bore in the circumstances of their enactment by the Imperial Parliament in 1900. That meaning remains ... subject only to alteration by the means provided by s 128 of the Constitution. The connotation of words employed in the Constitution does not change though changing events and attitudes may in some circumstances extend the denotation or reach of those words. These propositions are fully documented in the reported decisions of this Court. 67 There can be no serious doubt that, at the time, Barwick CJ was right to say that these propositions were "beyond controversy", and "fully documented" in the decisions of 61 62 63 64 65 66 67 McGuire v Simpson [1977] HCA 63; (1977) 139 CLR 362 at 369-370 and following. See the authorities cited in P Lane, The Australian Federal System (2nd ed 1979) at 1107 and 1110-1113; L Zines, The High Court and the Constitution (4th ed 1997) at 17. AG (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1904) 6 CLR 469 at 501, 521-522, 534-541, and 610 per Griffith CJ, Barton, O'Connor and Higgins JJ respectively. Ibid at 610 per Higgins J; Federated Saw Mill etc Employees of Australasia v James Moore & Son Pty Ltd [1909] HCA 43; (1909) 8 CLR 465 at 487 per Griffith CJ, and at 521 per Isaacs J; Australian Tramway Employees' Association v Prahran and Malvern Tramway Trust [1913] HCA 53; (1913) 17 CLR 680 at 695-696 per Isaacs and Rich JJ; Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1919) 26 CLR 545 at 552-554 per Isaacs and Rich JJ, and at 576 per Higgins J R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild [1912] HCA 85; (1912) 15 CLR 586 at 592. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers [1959] HCA 47; (1959) 107 CLR 208 at 267; see also Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 at 230. [1972] HCA 44; (1972) 128 CLR 221 at 229. 1997 Originalism in Constitutional Interpretation 13 the Court. Moreover, this continued to be true until very recently, and although these propositions are now more controversial, no current or recent member of the High Court has clearly repudiated them. 68 Barwick Crs reference to the relevance of the circumstances in which the words of the Constitution were enacted in 1900 is significant. Although at the time King v Jones was decided the Court did not refer directly to the records of the 1890s Convention Debates, it did use other historical information concerning the legal and social circumstances of the time as evidence of the founders' intentions, and therefore of the meaning of the words which were chosen to communicate those intentions. The relevance of such information to the interpretation of the Constitution was recognised as early as 1904. In Baxter v Commissioners of Taxation (NSW), Griffith CJ, Barton and O'Connor JJ scoffed at the idea of "what has been called an 'astral intelligence', unprejudiced by any historical knowledge, and interpreting the Constitution merely by the aid of a dictionary".69 They insisted that it was necessary to take into account "the relevant historical facts" in order to show what "the framers of a Constitution at the end of the nineteenth century may be supposed to have known", the "object of the advocates of Australian federation", and "the mischief and defect" which the relevant constitutional provision was intended to remedy.70 In Tasmania v Commonwealth, O'Connor J said: I do not think it can be too strongly stated that our duty in interpreting a Statute is to declare and administer the law according to the intention expressed in the Statute itself. In this respect the Constitution differs in no way from any Statute of the Commonwealth or of a State .... The intention of the enactment is to be gathered from its words. If the words are plain, effect must be given to them; if they are doubtful, the intention of the legislature is to be gathered from the other provisions of the Statute aided by a consideration of surrounding circumstances. In all cases in order to discover the intention you may have recourse to contemporaneous circumstances - to the history of the law .... In considering the history of the law ... you must have regard to the historical facts surrounding the bringing [of] the law into existence.... You may deduce the intention of the legislature from a consideration of the instrument itself in the light of these facts and circumstances, but you cannot go beyond it. If that limitation is to be applied in the interpretation of an ordinary Act of Parliament, it should at least be as stringently applied in the interpretation of an instrument of this kind, which not only is a statutory enactment, but also embodies the compact by which the people of the several colonies of Australia agreed to enter into an indissoluble union. 71 68 69 70 71 Deane J has probably come closest to doing so, but see the text to nn 101-106, 108-109 and 111, below. [1907] HCA 76; (1907) 4 CLR 1087 at 1106. Ibid at 1104-1106. [1904] HCA 11; (1904) 1 CLR 329 at 358-360; at 339-340, Griffith CJ quoted Tindall CJ's statement in the Sussex Peerage Case (see n 42, above) with approval, and referred to the historical context of s 93 of the Constitution; at 350-356, Barton J said that "the intention of the instrument must be gathered from the obvious facts of history - if we are at all to go outside the four corners of the instrument", and consult "facts well known and purposes clear to all of us" in order to reveal "the considerations which must have been present to the minds of the framers". See also Murray & Co v Collector of Customs [1903] HCA 3; (1903) 1 CLR 25 at 32, where Griffith CJ cited "a well-known fact" in explaining the purpose of s 95 of the Constitution; Parkin and Cowper v James (1905) 2 CLR 315 at 330, where Griffith CJ said that the original purpose of some words in s 73 was "a matter of common knowledge"; and The Federated 14 Federal Law Review Volume 25 In the Engineers case in 1920, a majority of the Court rejected important constitutional doctrines which Griffith CJ and Barton and O'Connor JJ had favoured. 72 But they did not reject the general principles of interpretation on which those doctrines had been based. 73 The majority judgment, written by Isaacs J, placed much emphasis on the constitutional text, but also stated that it should be "read ... naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it".74 In other cases, Isaacs J accepted that in interpreting a statute, it was legitimate to consider "the ground and cause" of its enactment,75 "the subject matter with respect to which [its words] are used, and the object in view", and "the time when, and the circumstances under which" it was made. 76 He was certainly no literalist; in another case, he insisted that "the Courts have not been merely careful but astute to see that the plain intention of the legislature did not fail by reason of some inexactitude, as it has been called, in the method of expression" .77 These principles have been applied by the Court ever since. 78 As Professor Lane put it, "[T]he High Court has frequently grubbed around the historical roots of a constitutional term in order to unearth its content".79 This is what Barwick CJ and t11e other judges did in King v Jones. 80 Barwick CJ was always averse to consulting the Convention Debates, but not at all to taking into account the historical context of constitutional provisions when it illuminated their meaning, which is to say, their original, intended meaning. 81 Another example of the traditional approach can be found in the judgments in Attorney-General for Victoria; ex reI Black v Commonwealth. 82 At issue was the meaning of the prohibition in s 116 of the Constitution of any Commonwealth law "for establishing any religion". The judgment of Sir Anthony Mason typifies the approach of the majority. He affirmed the orthodox principle that the meaning of s 116 in 1900 was crucial: "a constitutional prohibition must be applied Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 534 per Griffith CJ. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129. L Zines, The High Court and the Constitution (4th ed 1997) at 12-13. [1920] HCA 54; (1920) 28 CLR 129 at 152. Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 407. Evans v Williams [1910] HCA 76; (1910) 11 CLR 550 at 570-571, quoting from judgments of Lord Blackburn and Lord Halsbury. Hodge v R [1907] HCA 68; (1907) 5 CLR 373 at 386. H Burmester correctly refers to "one of the basic principles of constitutional interpretation in Australia, namely that the interpretation of the Constitution can take account of historical understandings, and should be made in light of circumstances existing at the time when the Constitution was made": "The Convention Debates and the Interpretation of the Constitution", in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 25 at 30. For a recent examination of the case law in point, see C McCamish, "The Use of Historical Materials in Interpreting the Commonwealth Constitution" (1996) 70 A L J638. See P H Lane, The Australian Federal System, above n 62 at 1110, and the examples referred to there. See also J Thomson, "Constitutional Interpretation: History and the High Court: A Bibliographical Survey" [1982] UNSWLawJl 17; (1982) 5 UNSWLJ 309 at 310 and 316-317 (footnotes 23-27). [1972] HCA 44; (1972) 128 CLR 221. See Attorney-General (Cth); ex reI McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 17. [1981] HCA 2; (1981) 146 CLR 559. 72 73 74 75 76 77 78 79 80 81 82 1997 Originalism in Constitutional Interpretation 15 in accordance with the meaning which it had in 1900".83 In accordance with then standard practice, he did not use what was said during the Convention Debates as evidence of the meaning of the prohibition. But he did refer to other historical evidence of what he thought was probably "in the minds of the citizens of the Australian colonies at the end of the nineteenth century", referring to their "acute awareness" of the history of established religion and religious discrimination in the British Isles, and their concern to avoid it in Australia. 84 This is an example of the use of evidence of the circumstances when the law was made and what it was intended to achieve, insofar as these were matters of common knowledge when the Constitution was framed. 85 In Attorney-General (Cth); ex reI McKinlay v Commonwealth,86 R v Pearson; ex parte Sipka,87 and Brown v R,88 the same principles were applied. Brown's case concerned the meaning of s 80 of the Constitution. Gibbs CJ said that it was "necessary to consider the purpose which the framers of the Constitution had, or must be supposed to have had, in including the provisions of s 80 in the Constitution".89 He took into account the state of the law, including American law, in 1900, as evidence of what "the framers must have intended".90 Wilson J said that, "It is true, of course, that in interpreting a statute it is necessary to determine the meaning of the words used as they were understood at the time when the statute was passed". Although a provision might later have a different operation because of changed circumstances, its meaning did not change. The question was "how is s 80, given its original purpose, consistently maintained, to be applied to the new situation?"91 Dawson J said exactly the same thing, although he disagreed with Wilson J's interpretation of s 80. 92 Far from abandoning these orthodox principles, the Court since 1988 has placed even greater emphasis on historical evidence of the founders' intentions. In Cole v Whitfield, it decided that the time had come to consult the Convention Debates, not in order to establish the founders' "subjective" intentions, but "for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged".93 This limited use of the Debates is consistent with the point made earlier, that the meaning of a law is something public and in that sense objective, rather than hidden, or as the Court puts it, subjective: the founders' intentions are relevant only insofar as they contributed to that public meaning. The Court proceeded to rely heavily, and persuasively, on historical evidence to establish "the historical object of s 92".94 In the following year, in 83 84 85 86 87 88 89 90 91 92 93 94 Ibid at 614-615. Ibid at 616. See text to nn 57-58, above. [1975] HCA 53; (1975) 135 CLR 1, especially af17 and 47 per Barwick CJ and Gibbs J respectively. [1983] HCA 6; (1983) 152 CLR 254, especially at 261-262 ("As a matter of historical fact, the object intended by the framers of the Constitution to be achieved by s 41 is quite clear") and at 277 ("The meaning and purpose of s 41 may be gleaned from its terms and context and by reference to the circumstances in which the section was to operate immediately after federation"). [1986] HCA 11; (1986) 160 CLR 171. Ibid at 179. Ibid at 180-81. Ibid at 190 (emphasis added). Ibid at 216-17. Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385. Ibid at 393. 16 Federal Law Review Volume 25 Port MacDC)nnell Professional Fishermen's Association Inc v South Australia, the Court again examined the Debates, in order to illuminate "the purpose which it [s 51(xxxviii)] was intended to serve".95 In the Incorporation Case, the Debates were used to show that s 51(xx) "was not intended to confer power" over the incorporation of trading and financial corporations. 96 More recently, the Court has examined the history of treaty ratification and implementation in Australia at the turn of the century in order to vindicate the broad interpretation of the external affairs power which is now well established. 97 There are some dicta which are hard to reconcile with the principle of original, intended meaning, and which therefore may have to be rejected as erroneous. In Victoria v Commonwealth (the Payroll Tax case), Windeyer J famously said that he had never regarded the Engineers case, in which the High Court overturned earlier decisions which had purported to find important implications in the Constitution, "as the correction of antecedent errors or as the uprooting of heresy"; instead, "in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians are now one people and Australia one country and that national laws might meet national needs".98 This statement has sometimes been cited with approval, although in some instances perhaps rather unthinkingly. It does not seem to be consistent with orthodox principles. Later in the same judgment, Windeyer J said that the only implications which the Court has authority to enforce are those which really are part of the Constitution. 99 How, then, can the earlier remarks be justified? Either the implications which the pre-1920 decisions purported to find within the Constitution were really part of it, or they were not. If they were not, then the Court in Engineers corrected an antecedent error. If they were, then surely the Court in Engineers made an error. lOO Neither extrinsic developments, nor the High Court, can remove an express provision from the Constitution: how, then, could either one of them have removed an implied one? If implied provisions really are as much part of the Constitution as express ones, as Windeyer J himself apparently believed, there is no difference in status between them. Windeyer J's position can be rescued from incoherence only if somehow the Constitution included the implications before 1920 but not afterwards, the Court in Engineers recognising but not itself making that change. But that could have happened only if the meaning of the Constitution somehow spontaneously "evolved", as a result of changing social values. In Theophanous v Herald & Weekly Times Ltd, Deane J argued at length that the Constitution should be interpreted as a "living force" rather than "a lifeless declaration of the will and intentions of men long since dead".lOl But his remarks are far from straightforward. He insisted that it would be wrong "to construe the Constitution on 95 96 97 98 99 100 101 [1989] HCA 49; (1989) 168 CLR 340 at 375-379. New South Wales v Commonwealth [1990] HCA 2; (1990) 169 CLR 482 at 501-503. Victoria v Commonwealth (1996) 138 ALR 129 at 138-144. [1971] HCA 16; (1971) 122 CLR 353 at 396-397. Ibid at 402. If it was simply not clear, one way or the other, whether they were really part of the Constitution, then the Court in Engineers corrected an antecedent error, because such an unclear implication cannot be regarded as a "necessary" implication in accordance with orthodox principles of interpretation: see J Goldsworthy, above n 60 at 168-170. [1994] HCA 46; (1994) 182 CLR 104 at 171-174. 1997 Originalism in Constitutional Interpretation 17 the basis that the dead hands of those who framed it reached from their graves to negate or constrict the natural implications of its express provisions or fundamental doctrines".102 This is to assert that the intentions of the founders are irrelevant when the question is what the express provisions or fundamental doctrines of the Constitution naturally imply. It does not follow that the founders' intentions are irrelevant when the question is the more fundamental one of what those fundamental doctrines are. In other cases, Deane J suggested that in that respect those intentions are critical, and as I have argued elsewhere, this seems clearly correct. 103 Deane J may therefore be saying no more than that, once we know the founders enacted something by implication - because we have the requisite evidence that they intended to do so then their intentions concerning how the implication ought to be applied, in the very different circumstances of the late twentieth century, are irrelevant. That is perfectly consistent with the principle of original, intended meaning, as I will show in the next Part. 104 Deane J quotes the following words of Inglis Clark at length, and with approval: [T]he Constitution must be applied, and hence it must be read and construed ... as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it. ... Every community of men is governed by present possessors of sovereignty and not by the commands of men who have ceased to exist. las This seems inconsistent with the principle of original, intended meaning. But once again, appearances may be deceptive. Clark's next sentences, also quoted by Deane J with approval, take us back to that principle: But so long as the present possessors of sovereignty convey their commands in the language of their predecessors, that language must be interpreted by the judiciary consistently with a proper use of it as an intelligible vehicle of the conceptions and intentions of the human mind, and consistently with the historical associations from which particular words and phrases derive the whole of their meaning in juxtaposition with their context. If the present possessors of sovereignty discover that the result so produced is contrary in particular cases to their will in regard to future cases of a like character, they will amend the language which they previously retained as the expression of their will. l06 102 Ibid at 171. 103 See nn 108-109 and 111, below, and J Goldsworthy, "The High Court, Implied Rights, and 104 This is because of the distinction between enactment intentions and application intentions, which is explained in the t~ird paragraph of Part 3. Deane J is clearly denying the relevance of application intentions only, when he argues that it is irrelevant that "the implications to be drawn from the Constitution's doctrine of representative government were not seen, in all the circumstances of times that are gone, as precluding the application of the ordinary laws of defamation to political communication and discussion": Theophanous's case [1994] HCA 46; (1994) 182 CLR 104 at 173. 105 Ibid at 171-172. 106 'Ibid at 171-172, quoting A Inglis Clark, Studies in Australian Constitutional Law (1901) at 2122. Inglis Clark does seem to have been a kind of originalist. Just before these passages quoted by Deane J, he said that: "It has been repeatedly stated that the fundamental rule for the interpretation of a written law is to follow the intention of the makers of it as they have disclosed it in the language in which they have declared the law". When the circumstances of the case before the Court "could not have been in the contemplation of the Constitutional Change", Quadrant, March 1995 at 50. 18 Federal Law Review Volume 25 This is somewhat reminiscent of some ambiguous comments of McHugh J in the same case. His Honour said both that, "[t]he meaning that the Constitution has for the present generation is not necessarily the same meaning that it had for earlier generations or for those who drafted or enacted the Constitution", and that "each generation must read the provisions of the Constitution in their context and that includes the historical context of the Constitution" .107 These dicta apart, all recent members of the Court seem to have continued to accept the principle of original, intended meaning. Most of them have assumed that if the Constitution includes an implied right to freedom of speech, it must also have done so in 1901. Even Deane and Toohey JJ, the most radical with respect to implied rights, have said that the Constitution must "be read and construed in the context of other more particular provisions which either are to be discerned in the particular provisions of the Constitution or which flow from the fundamental rights and principles recognised by the common law at the time the Constitution was adopted as the compact of the Federation".108 In Leeth v Commonwealth, they justified this kind of reasoning by appealing to what they regarded as "the general approach of the framers of the Constitution".109 In Theophanous, Mason CJ and Toohey and Gaudron JJ said of the implied freedom of political speech that: [A]lthough it may not have been apparent in 1901 or, indeed, at any time prior to the decisions in Nationwide News and Australian Capital Television [in which the freedom was first recognised], if the content of the freedom so required, the common law must be taken to have adapted to it in 1901. 110 Deane J said: "Upon Federation, the federating colonies were transformed into States which thenceforth derived existence and authority from the Constitution itself ... subject to the provisions of the Constitution as a whole, including the Constitution's implication of freedom of political communication and discussion".lll Dawson J said that "[t]he first defendant would have the court accept that the Constitution, when it ca'me into effect on 1 January 1901, radically altered the law of defamation in this country", and observed sardonically that "this change ... has entirely escaped attention during the 93 years since federation".l12 And McHugh J said that "[i]f the argument for the defendants in this case is correct, the law of defamation has been constitutionally invalid since federation".113 Even in Cheatle's case, in which the Court suggested that s 80 might no longer permit women to be excluded from jury duty, the Court interpreted the words "jury makers of the law", it is necessary to examine the language of the law "for the purpose of ascertaining whether it is such as we may reasonably believe the makers of the law would have regarded as sufficient to embrace the particular act or set of circumstances in question if it had been foreseen by them". If the answer is that they would have so regarded it, "then the language of the law is construed to embrace" that act or set of circumstances: ibid at 1920. The passages quoted by Deane J then follow, in order to explain and justify this method of interpretation - although how they do so is not entirely clear. (1994)182 CLR 104 at 197 (emphasis added). See also above n 29. Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 69, (emphasis added). [1992] HCA 29; (1992) 174 CLR 455 at 484-485. Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 126. Ibid at 164. Ibid at 188. Ibid at 205. 107 108 109 110 111 112 113 1997 Originalism in Constitutional Interpretation 19 trial" in s 80 in the light of what the words meant in 1900. The question was whether or not s 80 required that convictions be supported by unanimous verdicts. The Court, after reviewing the historical evidence, concluded that "the history of criminal trial by jury in England and in this country up until the time of Federation establishes that, in 1900, [unanimity] was an essential feature of the institution".114 Again: [A]t the time of the adoption of the Australian Constitution, the overwhelming weight of authority in the United States favoured the conclusion that the words 'trial ... shall be by jury' in Art III, which were adopted in s 80 of our Constitution, carried with them the requirement of unanimity.1 15 The Court assumed that the meaning of "jury trial" today is determined by the "essential feature[s] of the institution of trial by jury in 1900".116 This technique of identifying an "essential meaning", which must remain unchanged despite changes in inessentials which reflect "contemporary standards", is also central to the reasoning of Toohey and Gaudron JJ in McGinty's case. 117 Even they pay at least lip service to the principle of original, intended meaning! 3 MODERATE ORIGINALISM The firmly entrenched principle of original, intended meaning is consistent only with a "moderate originalist" theory of legal meaning and interpretation, such as the one I have defended elsewhere. 118 No other theory of statutory and constitutional interpretation could satisfy Dworkin's "dimension of fit": his requirement that a legal theory be consistent with the bulk of the institutional history it is supposed to describe. 119 Greg Craven is therefore wrong to assert that "any theory of original intent stands in flat contradiction to the existing orthodoxy of constitutional interpretation in Australia".120 His assertion would be substantially correct, however, if it were confined to extreme versions of originalism. 114 Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 at 562. 115 116 117 118 119 120 Ibid at 557. Ibid at 560. See text to nn 209-10, below. J Goldsworthy, above n 60; J Goldsworthy, above n 57; J Goldsworthy, above n 103. R Dworkin, Taking Rights Seriously (1977) at 340. Even moderate originalism is to some extent revisionary. It is impossible for any such theory to be completely consistent with the very extensive and complex judicial practices it attempts to describe, because those practices are themselves not entirely consistent with one another. Such a theory can only claim to provide a better overall "fit" than any of its competitors. For some alleged inconsistencies among the principles of constitutional interpretation which judges have espoused from time to time, which in some cases may not be able to be reconciled, see M Coper, "The Place of History in Constitutional Interpretation", in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986), 5 at 6 ff. When the theory of moderate originalism is unable to accommodate some judicial practice, it is usually because the practice is more, rather than less, originalist than the theory recommends. For example, the judicial practice of referring to previous drafts of the Constitution is difficult to reconcile with the theory's requirement that evidence of the founders' intentions must be readily available to its intended audience (see the following paragraph in the text). G Craven, "Original Intent and the Australian Constitution - Coming Soon to a Court Near You?" (1990) 1 Public L R 166 at 176 (emphasis added); see also at 167 and 171-172. It should be clear from the preceding Part that I disagree with Craven's description of the 20 Federal Law Review Volume 25 Moderate originalism differs from, and is superior to, extreme versions of originalism for three important reasons. First, it holds that the meaning of the Constitution depends on evidence of the founders' intentions which in 1900 was readily available to their intended audience, but not on other evidence of their intentions. The reason for this has already been discussed. The meaning of a law, like that of any other utterance, is something public, not hidden. It is partly determined by what its intended audience knows, or can be reasonably expected to know, about its author's intentions, but not about concealed intentions. Moderate originalism lies between extreme originalism, which holds that the Constitution means whatever the founders intended it to mean, whether or not evidence of their intentions was readily available to their intended audience, and non-originalism, which holds that the meaning of the Constitution is completely independent of the founders' intentions. Second, moderate originalism holds that only the founders' "enactment intentions" are relevant to the meaning of the Constitution, and not their "application intentions". The object is to clarify the meaning of the provisions which they enacted, and not to discover their beliefs about how those provisions ought to be applied. 121 Those beliefs are not part of the Constitution and have no legal status. Our system of government is based on the principle of the separation of powers, including the independence of the judiciary: law-makers enact the law, and judges apply it according to its true meaning, regardless of the law-makers' opinions or preferences. In addition, the law-makers' beliefs about how their law ought to be applied may be erroneous: they are not infallible authorities when it comes to interpreting and applying their own laws. This is partly because of the previous reason: law-makers may have intended their law to mean something, but failed to ensure that adequate evidence of that intention was readily available to their intended audience. Lord Halsbury went so far as to assert that the worst person to construe a statute is the person who drafted it, because "he is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed".122 Third, moderate originalism concedes that resort to the founders' intentions cannot answer all, or probably even most, interpretative disputes of the kind which appellate courts are required to resolve. It holds that interpretation begins with an examination of all relevant evidence of the law-makers' intentions, but not that, in difficult cases, it very often ends there. If relevant evidence of those intentions does not resolve a dispute, then judges may be forced to act creatively, and after considering matters such as consistency with general legal doctrines and principles, public policy, and justice, stipulate what the disputed provision should thenceforth be taken to mean. They must High Court's interpretative methodology since the Engineers case as "literalism": see his "Cracks in the Facade of Literalism: Is there an Engineer in the House?" [1992] MelbULawRw 2; (1993) 18 MULR 540, and "The Crisis of Constitutional Literalism in Australia", in H P Lee and G Winterton (eds), Australian Constitutional Perspectives (1992) 1. As Richard Kay puts it, "[The intentions which are relevant] are intentions about the extent and consequences within the legal system of the rule that the constitution-makers were creating. They are not intentions about the resolutions of specific controversies": "Original Intentions, Standard Meanings, and the Legal Character of the Constitution" (1989) 6 Constitutional Commentary 39 at 40. I highly recommend this excellent article, as well as an earlier one by the same author, "Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses" (1988) 82 Northwestern University L R 226. Hilder v Dexter [1902] AC 474 at 477. 121 122 1997 Originalism in Constitutional Interpretation 21 settle the dispute: they cannot wash their hands of it and leave the parties to fight it out in the street. Furthermore, when judges act creatively in this way, they are free to take into account contemporary concepts and values. Some of the traditional maxims and presumptions of statutory interpretation can possibly be understood as contributing to this creative process, rather than to the logically prior cognitive process of discovering a statute's pre-existing meaning. All the moderate originalist asserts is that before any need for creativity has been established, when the judges are still considering what the law does in fact mean, they must be guided by relevant evidence of the founders' intentions. Because moderate originalism purports to describe and justify what the High Court has been doing all along, it is not vulnerable to the objection that judges are busy, practical people, who cannot be expected to engage in complicated, abstract philosophical theorising. It is not the kind of theory which seeks to change the practices it describes. 123 Insofar as it is addressed to judges, it seeks merely to reassure them that they can continue to apply the well-established principle of original, intended meaning, with confidence that it can be successfully defended against fashionable, nonoriginalist criticisms. 4 THE UNITED STATES AND AUSTRALIAN CONSTITUTIONS DISTINGUISHED Even in the United States, originalism is central to statutory interpretation. Indeed, American courts have long taken it much further than their British Commonwealth counterparts, combing through extrinsic evidence of their legislatures' intentions or purposes. It can be argued that in interpreting statutes, American courts routinely practise extreme, rather than moderate, originalism. Even T Alexander Aleinikoff, the leading proponent of a radically non-originalist, "dynamic", method of statutory interpretation, concedes that his views are unorthodox. 124 But the same is not true of constitutional interpretation, which at least for some time seems to have been much less concerned with the original intentions of the American founders. It is well known that a fierce debate between originalists and non-originalists has raged in the United States for many years. Some Australian lawyers and philosophers have gained the impression that the non-originalists have won the debate, and discredited originalism. It may therefore be useful to point out that the most persuasive arguments which have been made against originalism are either aimed at what I call extreme originalism, rather than moderate originalism, or are inapplicable to the Australian context. Many self-proclaimed "non-originalists" are really moderate originalists. Even Ronald Dworkin has now revealed himself to have been a closet moderate originalist all along. Dworkin's argument against extreme originalism is that in the grand clauses of the Bill of Rights and the Fourteenth Amendment, the founders intended to enact abstract moral principles, the application of which by future judges would require 123 124 Subject to the qualification that the theory is necessarily partly revisionary: see n 119, above. T Alexander Aleinikoff, "Updating Statutory Interpretation" (1988) 87 Michigan L R 20 at 21 and 46; see also W Eskridge, "Dynamic Statutory Interpretation" (1987) 135 University of Pennsylvania L R 1479 at 1479 and 1554, and C Curtis, above n 47. 22 Federal Law Review Volume 25 moral judgments rather than historical judgments about the founders' "application intentions".l25 This argument depends on whether the founders did in fact intend to enact abstract moral principles: in other words, it depends on their enactment intentions. Dworkin has recently explicitly acknowledged this. Discussing his own "moral reading of the Constitution", which holds that constitutional clauses protecting rights be interpreted and applied "on the understanding that they invoke moral principles", he says: Two important restraints sharply limit the latitude the moral reading gives to individual judges. First, under that reading constitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. 126 I Dworkin apparently concedes, for example, that if in 1791 the word "cruel" meant "expensive", then the Eighth Amendment's prohibition of "cruel and unusual punishments" would today have to be interpreted as prohibiting "expensive and unusual punishments".127 The original, intended meaning has to be preserved. Dworkin's historical claim about the enactment intentions of the American founders may turn out to be wrong. 128 But in any event, it is of little relevance to Australia, since our Constitution contains few abstract moral principles of the kind which he claims to find in the American Constitution. Ours is concerned almost entirely with structures and procedures, rather than with substantive principles. A closely related argument against extreme originalism also depends on moderate originalist premises. Thomas Grey and Suzanna Sherry have argued that the American founders, influenced by the natural law tradition, intended the S~reme Court to enforce natural rights not explicitly enumerated in the Constitution. 1 Some scholars argue that this intention is expressed in the Ninth Amendment, which states that the enumeration of certain rights "shall not be construed to deny or disparage others retained by the people", or in the privileges and immunities clause of the Fourteenth Amendment. 130 Again, this kind of argument has no purchase in Australia. Our 125 See the second paragraph of Part 3, above, on the distinction between "enactment 126 R Dworkin, "The Moral Reading of the Constitution", New York Review of Books, 21 March 127 128 129 1996, 46 at 48. The article is an extract from Dworkin's latest book, Freedom's Law: The Moral Reading of the American Constitution (1996). J Harrison, "Book Review; Utopia's Law, Politics' Constitution" (1996) 19 Harvard Journal of Law and Public Policy 917 at 920, citing Dworkin, Freedom's Law, above n 126 at 291. For a powerful opening salvo by an originalist critic, see J Harrison, above n 127, passim. T Grey, "Do We Have an Unwritten Constitution?" (1975) 27 Stanford L R 703, and "Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought (1978) 30 Stanford L R 843; S Sherry, "The Founders' Unwritten Constitution" (1987) 54 University of Chicago L R 1127. These and similar works are critically scrutinised in P Hamburger, "Natural Rights, Natural Law, and American Constitutions" (1993) 102 Yale L J 907. These arguments are critically examined in R Kay, "Adherence to the Original Intentions in Constitutional Interpretation", above n 121 at 263-273. The Ninth Amendment is discussed by R Barnett, C Massey, B Patterson and E Van Loan, in R Barnett (ed), The Rights Retained by the People (1989). intentions" and "application intentions". 130 1997 Originalism in Constitutional Interpretation 23 Constitution lacks anything like this or the other famous "open ended" clauses of the American Constitution. Moreover, by the time that it was drafted, at the end of the nineteenth century, natural law theory had been almost totally eclipsed by utilitarianism, and the profound distrust of government which characterised political thought at the American founding was absent in the Australian colonies. 131 It has also been argued, by Bruce Ackerman and Akhil Reed Amar, that the American founders did not intend that the new Constitution could be changed in the future only through the formal amending procedure prescribed by Article V. One of their arguments is that the founders believed that the unlimited sovereign power of "the people" to alter their governmental arrangements could not be fettered by clauses such as Article V.132 These arguments are also inapplicable to the Australian Constitution. It was not created ex nihilo by "the people", a body incapable of binding its own sovereign power. It was enacted by the British Parliament in conformity with pre-existing constitutional norms, and nothing in our history provides even a foothold for an argument that our founders envisaged that it might legitimately be changed, at least within Australia, otherwise than by a popular referendum, as required by s 128. That section states explicitly what Article V at best implies: "This Constitution shall not be altered except in the following manner". Admittedly, other arguments against strong originalism in the United States are not themselves based on moderate originalist premises. But the strongest of these are also inapplicable to Australia. For example, it is often said that non-originalist interpretation is an American tradition. After Judge Robert Bork's nomination to the United States Supreme Court was rejected amid great controversy in 1987, because he favoured originalism, Ronald Dworkin asserted that, "Bork was defeated mainly because he challenged a style of interpreting the Constitution that has become part of the American political tradition".133 Bork himself has subsequently conceded that: "From the establishment of the federal judiciary at the end of the eighteenth century, some judges at least claimed the power to strike down statutes on the basis of principles not to be found in the Constitution". He has also stated that it is "somewhat unclear whether the modern Court is more political than Courts of previous eras", and that controversy as to the appropriate limits of judicial power "constitutes a venerable tradition".134 These are damaging admissions for a positivist lawyer such as Bork to make. For a positivist, the law is ultimately based on social conventions. 135 If there is no convention requiring originalist interpretation, then originalism is not mandated by 131 See J Goldsworthy, "The Constitutional Protection of Rights in Australia", in G Craven (ed), 132 B Ackerman, "The Storrs Lectures: Discovering the Constitution" (1984) 93 Yale L J 1013; Australian Federation, Towards the Second Century (1992) 151 at 152-153. "Constitutional Politics/Constitutional Law" (1990) 99 Yale L J 453, and We The People (1991). In "Amending the Constitution Outside Article V" (1988) 55 University of Chicago L R 1043, Akhil Reed Amar makes the slightly different argument that change outside Article V can be constitutional as well as legitimate. Both arguments are discussed in D Dow, "When Words Mean What We Believe They Say: The Case of Article V" (1990) 76 Iowa L R 1. 133 R Dworkin, "Bork's Jurisprudence" (1990) 57 University of Chicago L R 657 at 657; see also P Brest, "The Misconceived Quest for the Original Understanding", reprinted in J Rakove 134 R Bork, The Tempting of America, The Political Seduction of the Law (1990) at 15 and 129. 135 H L A Hart, The Concept of Law (1961). (ed), Interpreting the Constitution, The Debate Over Original Intent (1990) 227 at 243. 24 Federal Law Review Volume 25 law. That is why Charles Fried, a politically conservative lawyer who shares Bork's distaste for judicial activism, said that: "It was the courts and the Supreme Court that had made our system of individual liberty a model for the whole world. It would have been not just Quixotic but anticonstitutional and thus lawless to seek a wholesale reversal of that tradition".136 This is closely related to a second argument, that the weight of accumulated precedents which are inconsistent with the founders' intentions is now so great that originalists cannot legitimately turn back the clock: the principle of stare decisis rules out originalism as a viable judicial methodology.137 Neither of these arguments has any force in Australia where, as I have shown, there is no tradition of non-originalist interpretation. It has been argued that constitutional doctrines which have permitted Commonwealth powers to exrand inexorably since 1920 are inconsistent with the founders' well known intentions. 38 But whether this is true, and even if it is, whether those doctrines are inconsistent with the founders' enactment intentions, or merely with their application intentions, is debatable. 139 No doubt the prevailing interpretation of some Commonwealth powers, and other constitutional provisions, is inconsistent with the founders' enactment intentions, and in those cases stare decisis may rule out moderate originalism. But generally speaking it is non-originalism which would be inconsistent with our legal tradition, and with our settled precedents. Finally, there is the difficulty of amending the American Constitution. Article V lays down a procedure which is much more intractable, as well as less democratic, than the referendum procedure prescribed in s 128. The argument that the American Supreme Court has no choice but to "keeg the Constitution up-to-date" is to that extent more persuasive there than it is here. 14 I 136 C Fried, Order and Law, Arguing the Reagan Revolution - a Firsthand Account (1991) at 18. 137 H Monaghan, "Stare Decisis and Constitutional Adjudication" (1988) 88 Columbia L R 723. 138 M Cooray and S Ratnapala, "The High Court and the Constitution - Literalism and Beyond", in G Craven (ed), The Convention Debates 1891-1898: Commentaries and Indices: (1986) 203; G Craven, "The States - Decline, Fall, or What?", in G Craven (ed), Australian Federation, Towards the Second Century (1992) 49. Many members of the founding generation, at the Convention Debates and during discussion of the Judiciary Bill in 1903, expressly supported the idea that the Constitution's general terms should be interpreted broadly in order to accommodate the future needs of the Commonwealth: see A R McGregor, "What Role Did the Framers of the Constitution I Intend For the High Court?", unpublished LLB (Hons) thesis (submitted 2 September 1996, Faculty of Law, Monash University) at 33-44. The reference to application intentions is to those concerning the characterisation of Commonwealth powers. The founders may have assumed that the High Court would adopt the Canadian approach to characterisation, but the provisions they enacted did not require it to do so. See J Crawford, "The Legislative Power of the Commonwealth", in G Craven (ed), The Convention Debates, above n 138 at 113, 121-125 and especially 124-125. J Gardner, "The Positivist Foundations of Originalism: An Account and Critique" (1991) 71 Boston University L R 1 at 32-33. For criticisms of this argument as applied to Australia, see J Crawford, "Amendment of the Constitution", in G Craven (ed), Australian Federation, Towards the Second Century, above n 138 at 177, 179 and 192, and J Goldsworthy, abOVE n 103 at 52. I I 139 I I I I 140 1997 Originalism in Constitutional Interpretation 25 5 OTHER ARGUMENTS AGAINST ORIGINALISM Some of the arguments made against originalism in the United States are applicable in Australia, but these tend to be weak. One is that the very idea of a collective legislative intention is incoherent or fictional. This argument is surely impossible to sustain. The idea of a collective intention is not, of course, that there can exist an ontologically queer "group mind", which somehow transcends the individual minds of the members of the group. It is simply that people collectively engaged in a co-operative enterprise can knowingly hold the same or inter-related intentions with respect to it. As the eminent American philosopher John Searle recently put it, "[I]t seems obvious that there really is collective intentional behaviour as distinct from individual intentional behaviour. You can see this by watching a football team execute a pass play or hear it by listening to an orchestra".141 Once the "in principle" objection to the very possibility of collective intentions is dismissed, the remaining problems are first, to identify the conditions which have to be met in order to attribute such an intention to a group of people, and then to ask whether, in any particular case, those conditions are met. Analytical philosophers have recentll tackled the first problem, and I commend to readers the solution proposed by Searle. 42 As for the second problem, the conditions obviously are met in many cases. I would be surprised if anyone reading these words has not participated in groups in which decisions have been reached not only by majority vote, but by a consensus of opinion and purpose within that majority. If this were not also true of legislatures, "the phenomenon of legislation [would be] a rather mysterious achievement. After all, legislation is often a result of a well-recognised desire on the part of a political party to bring about a particular change ...."143 The enactment of the Constitution does raise special difficulties. What group of people are we talking about? Who were "the founders" whose intentions are relevant: the members of the various Conventions which drafted it, the voters who endorsed it in referendums as a condition precedent to its enactment, the members of the Imperial Parliament which enacted it, or all of them? Without attempting a comprehensive analysis, I would suggest the following. The Imperial Parliament played a purely formal role, enacting the Constitution as it had been drafted and endorsed by voters in Australia (except for amendments to s 74 dealing with Privy Council appeals, which were debated at length). Its role was analogous to that of the monarch in assenting to Bills: to rubber stamp proposed laws prepared by other people to serve their purposes, and therefore embodying their intentions. 144 141 JSearle, "Collective Intentions and Actions", in P R Cohen, J Morgan and M E Pollack (eds), Intentions in Communication (1990) at 401. 142 Ibid, and for a more recent and much simpler exposition, his The Construction of Social Reality (1995) at 23-26. 143 A Marmor, Interpretation and Legal Theory (1992) at 164-165. 144 When he introduced the Constitution Bill in the House of Commons, the Secretary of State for the Colonies, Mr. Chamberlain, denied that the Imperial Parliament was "merely a Court for the registration of their [the Australians'] decrees"; nevertheless, he immediately went on to say that "we have accepted without demur, and we shall ask the House of Commons to accept, every point in this Bill, every word, every line, every clause, which deals exclusively with the interests of Australia ... [W]e recognise that they are the best judges in their own case ... and the result is that the Bill ... is, so far as ninety-nine 26 Federal Law Review Volume 25 As for choosing between those who drafted and debated the Constitution, and the voters who approved it, very often no choice is necessary, because our evidence of the original intention applies equally to both: for example, evidence concerning the meaning of words in 1900, or beliefs and values which were widely shared at the time. In a recent article criticising originalism in legal interpretation, Stephen Donaghue rehearses the usual arguments about the difficulties of deciding whose and which intentions should be counted. 145 Yet later, he defends implied rights by asserting that "[m]any of the doctrines which underlie the Constitution were common ground between the framers, and indeed the Australian people, and thus were capable of being incorporated into the Constitution by pre-supposition"; for example, "[t]he framers knew that they wanted to continue to be governed within the framework of the Westminster system".146 Precisely! But if so, then it is likely that many other beliefs, values and intentions were "common ground" between the framers and the people. These are the subject of just the kind of evidence which, I argued earlier, judges have always taken into account, concerning "the circumstances when the law was made and what it was intended to achieve, when these ... were ... matters of common knowledge". 147 Statements made during the Convention Debates can constitute such evidence, particularly when they are numerous, rarely contradicted, made by representatives of diverse political interests, and corroborated by other, extrinsic evidence. As Richard Kay puts it: [I]t will be enough in most cases to learn what people, at the time, generally meant when they used certain language and what people involved in the process of enactment thought was at issue. A presumption that the majority adopting a measure shared that intention is reasonable unless evidence to the contrary is adduced. 148 Moreover, even if it is not possible, in a particular case, to choose between two alternative meanings, it will always be possible to rule out at least some other meanings, which might otherwise be logically open, on the ground that it is inconceivable that they would have been generally entertained in 1900. It is possible to make a further argument, that when a majority of voters approved the draft Constitution in 1899, they approved not just a text, but a scheme of hundredths of it, I think I might almost say 999-thousandths of it is concerned - as regards the vast proportion of the Bill - exactly the same as that which passed the referendum of the Australian people": Commonwealth of Australia Constitution Bill, Reprint of I the Debates in Parliament [etc.] (1900) at 12. The exception was s 74, concerning appeals to I the Privy Council, which he said "touches the interests of the Empire as a whole", and which was debated at length. S Donaghue, "The Clamour of Silent Constitutional Principles" (1996) F L Rev 133 at 151154. The only special problems raised by group intentions are to identify the members of the group and combine their intentions. As for the problems of deciding which of their' mental states are intentions (as opposed to hopes, expectations etc.), and at what level of abstraction they should be counted (ibid at 152-153), these also have to be resolved when ( we interpret the utterances of a single individual in the light of contextual evidence of his or her intentions. In that context we do not agonise over these problems, or regard them aSI reasons for doubting that it is possible to take that contextual evidence into account. Ibid at 165. Donaghue also says that the Constitution "was designed to ensure that the' government will be representative": ibid at 162 (emphasis added). This is to ascribe al collective intention to those designed it. See text to n 58, above. "Adherence to the Original Intentions in Constitutional Adjudication", above n 121 at 250. I I I I 145 146 147 148 1997 Originalism in Constitutional Interpretation 27 government whose details they did not always know. They must have taken a lot on trust: it is extremely unlikely that many of them read every clause in the draft Constitution. But if it is reasonable to believe that they approved the text, without knowing all its detailed provisions, it may be equally reasonable to believe that they approved the scheme of government which the text was designed to implement, without knowing all its details. If so, then aspects of that scheme which are not fully spelt out in the text, but which the Convention delegates who drafted and debated the text were familiar with and generally accepted, can be taken to have been implicitly endorsed by the voters. After all, the delegates to the later Conventions were elected by the voters in order to negotiate and agree upon a scheme of government, and to draft a text to implement it. Surely the voters, when they expressed approval of their representatives' handiwork, did not intend to restrict their approval to a set of bare words. However, I will not rely on this argument here. Another superficially plausible argument against originalism is that no good reason can be given for today's generation being ruled by "the dead hand of the past", rather than by its own principles and values. The argument loses its plausibility when it is realised that it is really an argument against having a constitution, or indeed any law, at all, since it is of the essence of law that decisions are governed by norms laid down in the past. Taken to its logical extreme, it is an argument not only that judges should ignore the law, but also that everyone else should ignore the judges, who owe their authority to laws laid down by "the dead hand of the past". This would, of course, be a disaster. A constitution laid down by a founding generation empowers as well as restricts subsequent generations, by providing them with the incalculable benefits of an established and accefted set of procedures for making collective decisions binding on all their members. 14 The empowerment conferred by such procedures is inseparable from the restrictions which they impose: they are two sides of the same coin. If some attempt to evade the restrictions, others may be tempted to follow suit, leading eventually to the collapse of the constitution and the loss of the empowerment it provided. Today's generation of Australians is not restricted by the dead hand of the past in any invidious sense, because the Constitution can be altered by popular referendum pursuant to s 128. Those who are really restricted by the referendum requirement are government officials, whether legislative, executive or judicial, who might otherwise have had power to alter the Constitution without first having to obtain the consent of the people. Those who argue that "we", or "today's generation", should not be bound by the dead hand of the past, usually mean that the High Court should not be bound by it. They want to defend the "discovery" of principles in the Constitution which the founders never intended to put there. The "dead hand" argument then amounts to this: that the judges should not be deterred from over-riding decisions of our elected representatives by the failure of "the dead hand of the past" to give them the power to do so. But since the authority of our elected representatives, as well as that of the judges, derives from the Constitution, created by the "dead hand of the past", this is a dangerous argument. It could just as plausibly be used by our representatives to claim powers which were not given to them by "the dead hand of the past". Why should they be bound by that hand if the judges are not? And if neither is, why should our representatives be bound by decisions of the judges rather than vice versa? 1149 S Holmes, Passions and Constraint: On the Theory of Liberal Democracy (1995). 28 Federal Law Review Volume 25 6 LEGITIMATE METHODS OF CONSTITUTIONAL "EVOLUTION" Australian judges have often said that all legal instruments, and especially constitutions, should be interpreted flexibly in the light of changing circumstances. O'Connor J, for example, said that, "[I]t must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve".150 And Dixon J said "it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances".151 No doubt these statements were inspired by, if not borrowed from, the famous words of Chief Justice John Marshall, that "[w]e must never forget that it is a Constitution we are expounding", which is "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs".152 Such statements were never intended to suggest that the meaning of a constitution changes in any substantial sense. Indeed, they are based on the opposite assumption that the original, intended meaning of a constitution persists until it is formally amended. Marshall CJ himself said that the principles of the American Constitution "are deemed fundamental [and] permanent", and "unchangeable" except by formal amendment. 153 It because of this, together with the fact that a constitution is intended to govern the community it serves for generations, through technological and social I changes which cannot be predicted in advance, that its original, intended meaning should be broadly construed to permit the required flexibility in its application. It is ; reasonable to assume that the founders intended that original meaning to be "broad enough to give the government the tools it will need both now and in the future" .154 If the meaning of a constitution were capable of changing to meet future necessities, it would never need to be interpreted broadly!155 (Note also, in passing, that when the need for flexibility in constitutional interpretation is invoked to restrict, rather than to expand, the powers of government, the paradoxical result is less flexibility in I government rather than more. This amounts to doing today precisely what the founders are praised for not doing - binding future generations by constitutionally entrenching the "contemporary standards" of one's own generation. That, for example, would be the result of holding the equality principle to be constitutionally mandated: it might prevent future generations from experimenting with electoral reforms to increase the representation of aborigines, for example. 156 ) The usual statements about constitutions being "broad and general", and requiring: flexible interpretation, are in any case vague, and their ritual incantation generally I I I I I I I I I I I 150 151 152 153 154 155 156 Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1910) 6 CLR 309 at 367-368. Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81. McCulloch v Maryland [1819] USSC 5; (1819) 4 Wheat 316 at 407 and 415. Marbury v Madison [1803] USSC 16; (1803) 1 Cranch 137 at 176 and 177, quoted by W Berns, "Judiciall Review and the Rights and Laws of Nature" (1982) The Supreme Court Review 49 at 52. A Scalia, "The Role of a Constitutional Court in a Democratic Society" (1995) 2 The Judiciall Review 141 at 142-143. Marshall's reasoning in McCulloch v Maryland concerned the need! for the powers of the legislature to be interpreted broadly for precisely this reason· W Berns, above n 153. A Scalia, "Originalism: The Lesser Evil" (1989) 57 Cincinnati L R 849 at 853. A Scalia, above n 154 at 146-147. 1997 Originalism in Constitutional Interpretation 29 unhelpful. There must be limits beyond which flexibility cannot be called interpretation in any real sense of the term: everyone agrees that judges are not entitled to amend statutes or constitutions as they see fit. The problem is to find the boundary between legitimate interpretative flexibility, and illegitimate judicial amendment; to identify the ways in which the meaning or application of a statute or constitution can in some sense change, consistently with the fundamental principle of original, intended meaning. As Sir Daryl Dawson put it, "[T]he metaphor of a living tree does nothing to tell the judge where he should allow growth to take place or where he should apply the pruning knife". 157 We are not forced to choose between two starkly opposed metaphors of constitutional law, the "living tree" versus the "dead hand of the past". The metaphor of the "living tree" does not imply that everything is subject to change: indeed, the very possibility of growth depends on the trunk and roots remaining firmly in place. The tree was designed and planted by the founders, and must not to be uprooted and planted elsewhere; nor should the judges, in allowing for growth, lop off branches or graft the branches of other trees onto it. Radical tree surgery must be authorised by s 128. On the other hand, no-one believes that constitutional law today is or should be exactly the same as that which the founders created in 1900. Clearly they did create something capable of growth. There are many ways in which constitutions not only can but should be given a flexible interpretation, according to contemporary circumstances or values, which are consistent with moderate originalism and the principle of original, intended meaning. I will not discuss two of them, although both are extremely important in explaining why constitutional law so obviously changes over the years. The first of these is the effect of the principle of stare decisis, which may require an erroneous interpretation to be followed in the future, in effect changing the Constitution. 158 The second is the enormous scope for legitimate judicial creativity when the Constitution is ambiguous, vague or internally inconsistent. A large part of what is called "constitutional law" consists of general doctrines, methodological principles, and interpretations of specific provisions which are consistent with, but not required by, the text of the Constitution and the intentions of the founders. 159 This perfectly legitimate, and indeed necessary, part of constitutional law, like the common law, is the creation of the judges, who may continue to develop it as they deem the good government of the nation to require. It is always "in movement", as Michael Detmold puts it. 160 But I do not agree with Detmold that the original, intended meaning of the Constitution is also legitimately "in movement": except when s 128 is invoked, it should be a fixed base upon which the superstructure of judicially created doctrines can be redesigned and renovated as time goes by. There are three more "methods" (for want of a better term) by which the Constitution can be given a flexible operation which need to be discussed. I will call them methods 1, 2 and 3. 157 158 159 : 160 D Dawson, "Intention and the Constitution - Whose Intent?" (1990) 6 Australian Bar Review 93 at 97. See text to n 137, above. See the penultimate paragraph of Part 3, above. M J Detmold, "Australian Law: Federal Movement" [1991] SydLawRw 4; (1991) 13 Syd LR 31. 30 Federal Law Review Volume 25 Method 1. Application and enactment intentions In deciding what a statutory or constitutional provision means, the law-makers' enactment intentions may be critical. But once its meaning has been determined, and the question is how it applies in a particular case, their further intentions are irrelevant. The law consists of the provision which the law-makers actually enacted, and not their possibly mistaken beliefs about its meaning or proper application. The rule of law and the separation of powers require that judges decide for themselves how a law should be applied, according to its meaning, rather than slavishly deferring to whatever the law-makers may have expected or wanted. 161 Because that decision depends on judgments of fact or value - depending on the terms of the provision - and because in making those judgments judges are likely to be guided by the beliefs and values common to their time and place, there is quite legitimate scope for temporal variation in the application of legal provisions. For an example of how changes in factual beliefs can lead to changes in the application of a legal provision, consider the 1952 law which prohibited the entry into the United States of any person with a "psychopathic personality".162 When this law was enacted, Congress believed that homosexuality was a pathological condition, and expected that the law would result in the exclusion of homosexuals. And indeed it did, for a considerable time. But today, because the scientific community rejects that understanding of homosexuality, judges would rightly refuse to exclude homosexuals. In doing so, they might be flouting Congress's application intention, but not its enactment intention. The law is what the law-makers choose to enact, even if it does not live up to their expectations. For the same reason, to properly apply a provision incorporating a moral or other evaluative principle judges must decide what the principle requires, rather than what the law-makers may have believed it requires. There are many cases involving statutory interpretation which are best explained on this basis. Statutory terms such as "obscene", "indecent", "the public interest", "exceptional depravity", "necessary" and "the interests of science, literature, art or learning", have been applied according to current understandh~gs,rather than those of the law-makers. 163 The United States Constitution arguably includes many moral principles, such as that ther~ shall be no cruel or unusual punishment. Flogging is now unusllal, although it was not in the founders' era. But is it also cruel? The founders may not have believed that it was, but arguably they enacted a moral principle forbidding cruelty, not their own beliefs about the application of the principle in particular instances. If so, then to apply that principle, judges today must make a moral judgment about cruelty, and not a factual judgment about the founders' beliefs. This may be true of many of the most controversial clauses of the American Constitution, such as the "equal protection" clause of the Fourteenth Amendment. That is why the Supreme Court's decision in 161 See Part 3, above. 162 Discussed by L Lessig, "Understanding Changed Readings: Fidelity and Theory" (1995) 47 Stanford L R 395 at 415-419, and T Alexander Aleinikoff, above n 124 at 47-49. 163 See the cases cited in D J Hurst, above n 48 at 33 footnotes 74-76, and J F Burrows, The' Problem of Time in Statutory Interpretation" [1978] NZLJ 253 at 257-58 footnotes (an)-(ao). See also F Bennion, Statutory Interpretation (2nd ed 1992) at 625, example 288.15 for "necessary", and 626 example 288.18 for "exceptional depravity". 1997 Originalism in Constitutional Interpretation 31 Brown v Board of Education,164 that racially segregated education violated the equal protection clause, was not necessarily wrong just because it was inconsistent with the application intentions of those who adopted the clause. In the United States, this kind of argument is often thought to refute "originalism". But it refutes only an extreme and implausible version of originalism, which holds that judges must defer to the founders' application intentions as well as their enactment intentions. The argument actually depends on moderate originalism, because it depends on whether the founders intended to enact a moral principle: it depends on their enactment intention, as Ronald Dworkin has admitted. 165 It must be conceded that enactment and application intentions are not mutually exclusive, and the distinction between them may be very difficult to apply, and perhaps in some cases illusory. Well known application intentions also serve as enactment intentions when they clarify the meaning of a law. For example, they may clarify what would otherwise be an ambiguity, or make it obvious that a word or phrase has been used in a non-literal or special sense. Or they might justify holding general terms to be subject to an implied qualification, because they make it obvious that the law-makers expressed themselves ineptly or, quite reasonably, took something for granted. The latter possibility is plausible only in limited situations, and subject to stringent conditions which I have explored elsewhere. 166 Method 2. Connotation and denotation The High Court has often said that the "connotation" of a constitutional provision must stay the same, although its "denotation" can change. The distinction between connotation and denotation derives from the philosophy of John Stuart Mill, and is similar if 110t equivalent to the modern distinctions between sense and reference, and intension and extension. 167 The denotation, reference or extension of a term is comprised of all the things in the world which the word refers to; its connotation, sense or intension consists of the criteria which define it, and thereby determine its denotation. It is undeniable that the denotation of a constitutional term can change. The denotations of terms are constantly changing: for example, every time an old lighthouse is demolished, or a new one is built, the denotation of the term "lighthouse" changes. The Constitution was obviously not intended to give the Commonwealth power only over those lighthouses which existed when it came into force on January I, 1901. When a new lighthouse is built, the question is simply whether it is a "lighthouse" according to the meaning, or connotation, of the word as it appears in the Constitution. This is equally true if it is not only a new lighthouse, but one of a novel kind or category, incorporating technol~gical developments which were unknown in 1901. 168 164 165 166 167 168 [1954] USSC 42; 347 US 483 (1954). See text to n 126, above. JGoldsworthy, above n 60 at 154-161. See, eg, T J Richards, The Language of Reason (1978) at 75 and 133-137, and M Devitt and K Sterelny, Language and Reality (1987) at 30-33 and 67-68. This distinction has also been recognised in the United States: Sutherland J once said that "meaning is changeless [while] application ... is extensible": Home Building & Loan Assoc v Blaisdell [1934] USSC 10; 290 US 398 at 451 (1934). See also Village of Euclid v Ambler Realty Co [1926] USSC 193; 272 US 365 at 367 (1926): "while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which ,are 32 Federal Law Review Volume 25 There are many cases of statutory interpretation involving the same principle: for example, the word "carriages" has been held to apply to bicycles, although the statute in question was enacted before they were invented, and an Act regulating the telegraph has been held to apply to the telephone. 169 For an example of the way in which this distinction can explain quite dramatic changes in the operation of the Constitution, consider the Commonwealth Parliament's external affairs power, and assume that the connotation of the words conferring the power is such that it originally included power to legislate to implement international treaties which the Crown has entered into. 170 In the early part of this century that treaty implementing power was very modest, because the number of treaties entered into was small, and the kinds of subject-matters with which they dealt were very limited. Because of a massive increase in both respects, the power is now a very broad and important one. Yet although the denotation of the words conferring the power has changed, their connotation has not. The connotation/denotation distinction can be invoked in this fashion to justify many changes in the practical operation of the Constitution. 171 In 1900, when juries included only men, was the connotation of the word "jury", in s 80 of the Constitution, more like "a panel of men convened to decide questions of fact", or "a panel representing the community convened to decide questions of fact"? If the former, then women cannot even today serve on juries in trials involving indictable Commonwealth offences, but if the latter, they can. The High Court has rightly chosen the latter interpretation: there is no good reason to believe that, at a time when women's civil rights were being debated and reformed, juries were regarded as an essentially and permanently male preserve. 172 But in many cases the connotation/denotation distinction can be very difficult, and perhaps in some cases impossible, to apply. In 1900, when only those over 21 years of age were recognised by law as adults, was the connotation of the words "adult person", in s 41 of the Constitution, "person over 21 years of age", or "person recognised by law as of mature age"? If the former, the words cannot even today apply to persons between 18 and 21 years of age, despite legal reforms according them adult status for other purposes; but if the latter, they can. 173 In answering these kinds of questions, and also when it cannot answer them, the Court should choose the connotation which best reflects the purpose behind the provision in question. 174 constantly coming within the field of their operation". (Both quoted in L Lessig, "Fidelity in Translation" (1993) 71 Texas L R 1165 at 1185 footnote 68.) See also South Carolina v United States [1905] USSC 184; 199 US 437 at 448 (1905) per Brewer J. See the cases discussed in J F Burrows, above n 163 at 256; D J Hurst, above n 48 at 32 footnotes 68-71; J Bell and G Engle, Cross on Statutory Interpretation (3rd ed 1995) at 52; and F Bennion, above n 163 at 618 (example 288.1), at 621 footnote 5, at 622 (example 288.7) at 622 footnote 1, and at 628 generally. An assumption defended by the High Court in Victoria v Commonwealth (1996) 138 ALR 129. For an excellent account of some difficult cases, see L Zines, "Characterisation of Commonwealth Laws", in H P Lee and G Winterton (eds), Australian Constitutional Perspectives (1992) 33 at 34-39. CheatIe v R [1993] HCA 44; (1993) 177 CLR 541. This was the issue in King v Jones [1972] HCA 44; (1972) 128 CLR 221. L Zines, above n 171 at 40 and 41-42. 169 170 171 172 173 174 1997 Originalism in Constitutional Interpretation 33 Method 3. Non-literal, purposive interpretation The United States Constitution provides that Congress has power to raise "Armies" and "a Navy", and to regulate "the land and naval Forces" (Art I Sect 8). There is no mention of air forces, which were unknown when the Constitution was created. When technological change later made it possible to raise air forces, did Congress have power to do so? The connotation/ denotation distinction does not help if air forces do not come within the connotation of the words "Armies" or "Navy".175 But the founders' underlying purpose is quite clear: to give Congress power to raise and regulate all the military forces of the United States. Unless the nation is to be forced to formally amend the Constitution, which is a time-consuming and expensive business, the only way to reach the result which is obviously consistent with the founders' clearly expressed purpose is to interpret the words according to their spirit rather than their letter. There are a few cases of statutory interpretation involving the same principle, although apparently not many. For example, the words "bankers books" have been interpreted to include microfilms;176 and "document" to include a computer database. 177 In Australian constitutional law, cases in which the connotation/ denotation distinction has been used in a strained and artificial fashion may be examples. 178 This principle is not necessarily inconsistent with the principle of original, intended meaning, because that meaning may not be the same as the original, literal meaning. Immediately after the enactment of a statute, a court can interpret it "flexibly", departing from the literal meaning of its words in order to avoid absurdity and give effect to its obviously intended purpose. 179 There may be little difference in principle between new and very old statutes with respect to this kind of treatment, although the latter may require it more often. 180 But how far can this kind of purposive interpretation be taken? Laurence Lessig has recently proposed a theory of interpretation as "translation", according to which it can be taken very far indeed. According to Lessig, the courts ought to interpret the American Constitution so that the founders' purposes can be faithfully put into effect in today's much changed world, even if that requires radical departures from the words of the Constitution, involving in effect substantial judicial re-drafting. 181 Courts in the common law tradition have always been averse to engaging in such a process, regarding any necessary up-dating of statutes, for example, as the responsibility of the legislature. There is a difficult problem here. No-one would regard it as sensible for the 175 The definition (connotation) of the word "army" in the Concise Oxford Dictionary is 176 Barker v Wilson [1980] 1 WLR 884, cited in D J Hurst, above n 48 at 32-33. 177 Derby & Co Ltd v Weldon (No 9) [1991] 1 WLR 652, cited in F Bennion, above n 163 at 628. 178 See L Zines, above n 171. Michael Coper suggests that a progressive interpretation of the power over "lighthouses" would be called for if, in the future, lighthouses were replaced by a more sophisticated technological system for guiding vessels at sea: "The Place of History in Constitutional Interpretation", in G Craven (ed), above n 119, 5 at 18 footnote 74. See F Bennion, above n 163 at 607-617. That is no doubt one reason why the section in Bennion's text concerning the "presumption that updating construction to be given" to old statutes follows immediately after the section concerning the "presumption that rectifying construction to be given" to recent statutes: ibid, sections 287 and 288. L Lessig, above n 168. "organized force armed for fighting on land". 179 180 181 34 Federal Law Review Volume 25 courts to refuse to permit Congress to raise an air force until such time as the Constitution should have been formally amended. But if the courts can engage in redrafting to that extent, how and where is the line to be drawn? It is clearly a question of degree. I would expect Australian judges to take a "flexible" approach only when the words of the Constitution can be expanded or contracted in a simple and obvious way, and according to a very clear underlying purpose. A more important point for present purposes is that even Lessig's theory is an originalist one: he insists that the courts are bound to interpret, or "translate", a law according to the purposes of those who made it. Judges can adjust the words of the law if social changes have rendered those words incapable of achieving the law-makers' purposes, but not for other reasons. This is not in principle different from the approach of arch-originalists such as Robert Bork. Bork said, in the best-selling book discussing his controversial rejection as a nominee to the United States Supreme Court, that: It is the task of the judge in this generation to discern how the framers' values, defined in the context of the world they knew, apply to the world we know. The world changes in which unchanging values find their application .... Judges must never hesitate to apply old values to new circumstances, whether those circumstances spring from changes in technology or changes in the impact of traditional common law actions .... A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty.182 American Supreme Court Justice Antonin Scalia, another self-confessed originalist, has said much the same thing: old constitutional values must be projected upon new physical realities. But he adds that this "is a far cry from saying what the nonoriginalists say: that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids".183 Bork, of course, agrees: "When we say that social circumstances have changed so as to require the evolution of doctrine to maintain the vigor of an existing principle we do not mean that society's values are perceived by the jUd~e to have changed so that it would be good to have a new constitutional principle".1 4 Lessig, too, explicitly accepts this. His theory of interpretation as "translation" requires judges to adjust the Constitution's words so that the founders' purposes are not thwarted by changes in social facts, but it does not permit them to adjust those purposes themselves, in accordance with changed social values. In his view:: [Judges are] not allowed to make changes that turn on changing or current moral or political presuppositions. Tracking morality, or pplitical correctness, is the duty of the political branch .... Structural humility requires that the judge ... resolve the question as if the political presuppositions were as they were when the text being applied was authored - wilfully blind to the currently best moral theory, and embracing instead the original moral or political theory.18S 182 183 A Scalia, above n 154 at 142. See also the comments of two other well known originalists, W Rehnquist, in "The Notion of a Living CQnstitution" (1976) 54 Texas L R 693 at 694, and Attorney-General Edwin Meese, quoted in D Crump, "How Do the Courts Really Discover Unenumerated Fundamental Rights?" (1996) 19 Harvard J Law and Public Policy 795 at 821. R Bork, above n 134 at 169. L Lessig, above n 168 at 1259-60; Lessig may have changed his mind on this point: see L Lessig, above n 162 especially at 440. Note though that Lessig accepts method 1, above, R Bork, above n 134 at 168-169. 184 185 1997 Originalism in Constitutional Interpretation 35 This is indisputably the orthodox position in Australia. As Brennan J (as he then was) put it in Theophanous: The notion of "developing" the law of the Constitution is inconsistent with the judicial power it confers. Clearly the Court cannot change the Constitution, nor can it convert constitutional silence into a legal rule with constitutional force. I do not mean that, in changing conditions, the Constitution does not have a changing effect, that the denotation of its terms does not change, that the course of judicial interpretation does not reveal that a past constitutional doctrine is untenable or that new situations do not reveal new doctrines inherent in the constitutional text. The Constitution speaks continually to the present and it operates in and upon contemporary conditions. 186 7 NON-ORIGINALISM The three "methods" discussed so far are consistent with moderate originalism, and the principle of original, intended meaning which has been endorsed so often by the High Court. But there is a much more radical method of interpreting a statute or constitution "flexibly" and "progressively", which is not. I will call it non-originalism, although it is more extreme than some positions which have gone by that name. It holds that the meaning of statutory or constitutional provisions at any particular time depends entirely on the concepts, values and purposes of that time, rather than those of the lawmakers. 187 Judges are not constrained either by the meaning which the provision originally had or was intended to have, or by the purposes it was originally intended to serve, even if these were originally, or are still, well known. There are some recent British cases involving statutory interrretation which may exemplify this method, most notably Dyson Holdings Ltd v Fox,18 in which the words "the tenant's family", in a statute enacted in 1920, were interpreted in 1976 to include a de facto wife. James LJ said that, "The popular meaning given to the word 'family' is not fixed once and for all time .... I think that, having regard to the radical change which has by 1975 taken place, it would be a harsh and somewhat ossified approach to the present case to hold that in 1961 the defendant was not in the popular sense a member of the family ...".189 He added that an earlier decision arriving at a different conclusion had not been wrongly decided: "it is binding only upon the meaning to be given to 'family' at that time".190 But it is only recently that British courts have occasionally failed to apply the principle that the meaning of a statutory term is the meaning which it had when enacted, or, at least, the meaning which in contemporary circumstances best effectuates the legislature's original intention or purpose. 19 According to Hurst, 186 187 188 189 190 191 in the case of a constitutional provision which incorporates a moral principle so as to require judges to make a moral judgment in applying it: above n 168 at 1260. Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 143. T Alexander Aleinikoff has advocated this approach in the case of statutory interpretation, above n 124 at 59: "[T]he process of interpretation [should] be carried out in a presentminded fashion, as if the statute has recently been enacted." [1975] EWCA Civ 8; [1976] QB 503. Ibid 5 at 511-512. Ibid. D J Hurst, above n 48 at 37. But Hurst discusses two other breaches of that principle, ibid at 38-40, and J Bell and G Engle mention another, above n 169 at 54. In F Bennion, above n 163, examples 288.11 at 624, and 288.25 at 629, appear to be other instances. ' 36 Federal Law Review Volume 25 the approach in Dyson has subsequently been followed "without enthusiasm";192 Cumming-Bruce LJ objected that it was based on "a canon of construction which is novel to me and for which I know no previous authority".193 Bell and Engle say that updating the application of statutory language to give effect to its purpose in changed circumstances (what I have called method 3) is one thing, but "attempts to redefine the purpose of a statutory provision in the light of current legal policies have been less well received, and this approach must be considered as still controversial".194 As far as ; Australian courts are concerned, there has been almost no support for non-originalism I in either statutory or constitutional cases. It is certainly possible to argue that even if prevailing legal conventions in Britain I and Australia are, and have long been, committed to moderate originalism, they are necessarily subject to evaluation, and to being modified or rejected should that seem to I be desirable. This must be conceded. But a theory such as moderate originalism, which enjoys the overwhelming support of legal precedents and conventions, has at least a I very strong presumption in its favour. That presumption is strengthened when some ' powerful objections to non-originalism are taken into account. Two different versions of non-originalism are conceivable. According to one, the ~ meanings of a statutory or constitutional provision are exhausted by the literal I meanings of its words, determined by current dictionary definitions and rules of English grammar. I say "meanings" because this approach inevitably gives rise to many problems of ambiguity and vagueness, problems which cannot be resolved by resortit1g : to evidence of intention or purpose, which by definition are dismissed as non-existent I or irrelevant. Such problems must be resolved by judicial creativity. The judges may ascribe to a provision whatever meaning they believe will best serve the public interest I today, provided only that it is consistent with the current literal meanings of its words. This first version of non-originalism is open to the objection that it is inconsistent I with the existence of implications, other than those of strict logical entailment. If the' meaning of a statute or constitution is exhausted by the literal meanings which its i express words currently possess, then it cannot include implications, other than those of strict logic, because the former necessarily depend on factors in addition to literal I meanings. (The moderate originalist asks what these additional factors can possibly be'l if not evidence of the intentions of the law-makers?195) If judges ''\Tho adopted the first, literalist version of non-originalism were to say that something was implied, they' would be either lying or confused. This consequence would be a disaster for legal\' interpretation. As I have explained elsewhere, any attempt to read a text literallY'1 disregarding all evidence of underlying purposes and intentions, will inevitably, confront massive problems of indeterminacy and absurdity, partly because the propel understanding of any text depends on understanding unexpressed assumptions. 196 AE Felix Frankfurter remarked, the most fundamental question in legal interpretation is"What is below the surface of the words and yet fairly a part of them?"197 The literalisl i I I I I I I I 192 193 194 195 196 197 o J Hurst, above n 48 at 37-38. Helby v Rafferty [1979] 1 WLR 13 at 25. J Bell and G Engle, above n 169. J Goldsworthy, above n 60, and above n 103 . J Goldsworthy, above n 57 at 445-50, and above n 60 at 157-59. F Frankfurter, "Some Reflections on the Reading of Statutes" (1947) 47 Cohl1nbia L R 527 a 533. 1997 Originalism in Constitutional Interpretation 37 version of non-originalism is forced to reply: "nothing". It follows that an absurdity generated by a literal interpretation of a provision cannot be avoided, as it can be when orthodox principles are applied, by assuming that it could not have been intended and is therefore excluded by implication. The loss of genuine implications would be a particular disaster for those who approve of the judicial discovery of implied rights and powers. To begin with, the High Court's own power of judicial review rests on an implication!198 To avoid this impoverished literalism, a statute or constitution must be regarded as including underlying intentions and purposes - but for a non-originalist, these must be contemporary intentions and purposes, rather than those of the original law-makers. The second, non-literalist version of non-originalism therefore holds that a statute, or constitution, should be interpreted "as if" it has only just been enacted by the legislature, or the electors in a referendum. 199 The meaning of the statute or constitution is constituted not only by dictionary definitions and rules of grammar, but also by the intentions and purposes which the legislature, or the people, would most probably have had if they had enacted it this morning. This second version is like the orthodox theory of original, intended meaning, except that the intentions and purposes of those who really did enact the law are replaced by the supposed intentions and purposes of the legislature, or the people, of today. This second version of non-originalism is open to the objection that it is based on an obvious falsehood. The fact is that most statutes were not enacted by the current Parliament, and the Constitution did not come into force this morning by a sovereign act of today's Australians. To base the interpretation of laws on obvious falsehoods would be a dubious enterprise, to say the least. But this objection can probably be overcome. Non-originalists could reply that it is not a matter of falsely pretending that the Constitution really has just been enacted, but merely of recognising that the Constitution owes its continuing authority to its being accepted by today's Australians, and consequently of interpreting it in the light of their beliefs and values - as they understand it, or would understand it, if they read it. (Opinion polls reveal that something like a third of Australians do not even know the Constitution exists, and undoubtedly the remainder know very little of its actual provisions. 200 ) Nevertheless, this version of non-originalism might lead to some unpalatable conclusions. Yoking yesterday's words to today's values does not guarantee "progressive" results. The original understanding of a provision might be more "progressive" than the contemporary understanding. The decision in the Boilermakers' case would have been difficult to arrive at consistently with this version of nonoriginalism. 201 Given that it had been assumed for more than thirty years that federal courts could exercise non-judicial powers, and that they had in fact done so, how could the relevant clauses of the Constitution, as they were then generally understood, have been interpreted contrary to that familiar practice? For the same reason, the decision in 198 J Goldsworthy, above n 60 at 173. 199 "Suppose we treat the statute as if it had been enacted yesterday and try to make sense of it in 200 201 today's world": T Alexander Aleinikoff, above n 124 at 49 (emphasis in original). The Saulwick poll conducted in May 1992 is cited by S Donaghue, above n 145 at 146 footnote 87. R v Kirby; ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254. 38 Federal Law Review Volume 25 Cole v Whitfield in 1988,202 reinterpreting s 92 of the Constitution, would also have been difficult to arrive at. Because s 92 had been held for over 40 years to guarantee "laissez faire" in interstate trade, its words had come to be generally understood to have that meaning. The same difficulty would confront any proposal to overturn orthodox understandings. Proposals that are truly "progressive" are more likely to reflect the understanding of future Australians rather than today's. Paradoxically, therefore, this version of non-originalism may be less amenable to such proposals than moderate originalism, which is less dependent on contemporary understandings. But these examples also expose the peculiar and uncertain nature of the thoughtexperiment which is required. Is the relevant question (a) how today's Australians understand some constitutional provision, (b) how they would understand it if they read it, or (c) how they would understand it if they read it and were told something of the history of its enactment and prior interpretation (if asked for their opinion, they might request that information)? And how could any of these questions really be answered? They are all impractically speculative. The fact is that judges have no reliable way of ascertaining what the people understand the Constitution to mean, or would understand it to mean if they read it, either in the light of its history or otherwise. The only reliable way of determining the attitudes of today's Australians is ; to ask them. That is the purpose of the referendum procedure prescribed by s 128. The second version of non-originalism replaces that procedure with judicial guesswork concerning hypothetical or imaginary understandings. There are other damaging objections to both versions of non-originalism. First, whether or not non-originalism enables a constitutional provision to be interpreted "progressively", according to contemporary standards, depends entirely on fortuitous factors. The first version enables judges to substitute another meaning for the one a provision was originally understood to have only if its words currently have more than one dictionary meaning, or if their dictionary meaning has changed over time. The second version permits such a change in these cases and, in addition, if the words, as they are supposedly understood by today's Australians, imply something which they did not originally imply - which also partly depends on their current dictionary meanings. As Michael McConnell has pointed out, "Functionally, to apply an unintended meaning is no different from introducing a principle that has no textual basis whatsoever. The only difference between the unintended meaning and the' extratextual principle is verbal happenstance".203 In other words, new principles can be ' smuggled into a constitution if the current dictionary definitions of its words are sufficiently pliable, but not otherwise, and whether or not they are has nothing whatsoever to do with their underlying purposes. Such a haphazard and opportunistic approach to constitutional interpretation has little normative appeal. A second objection to both versions is that if we were to discard all the contextual, historical evidence of what the provisions of the Constitution were originally intended to mean, we would often be left with sometlling quite insubstantial and indeterminate" and the scope, and indeed the need, for judicial creativity would be massive. Many I 1 I 1 I 1 'I 1 I I 1 1 I 202 [1988] HCA 18; (1988) 165 CLR 360. 203 M McConnell, "The Role of DemClcratic Politics in Transforming Moral Convictions into Law" (1989) 98 Yale L J 1501 at 1528. S Smith has argued, along the same lines, that thi~ kind of non-originalism replaces "the rule of law" with "the rule of fortuity": "Law Withou Mind" (1989) 88 Michigan L R 104 at 115-19. 1997 Originalism in Constitutional Interpretation 39 provisions would be turned into putty, able to be interpreted by the judges to mean whatever they would prefer them to mean. The effect would be to bypass s 128, which requires that any alteration be approved in a national referendum. Of many possible examples of this problem, the most striking is found in the opening words of ss 51 and 52 of the Constitution, which state that the Commonwealth Parliament has power to make laws "for the peace, order and good government" of the Commonwealth with respect to various subject-matters. As a result of several decisions of the Privy Council in the late nineteenth century, those words had a clear, well-understood meaning in 1900: they were used to grant plenary, absolute power similar to that of the Imperial Parliament. 204 But should that contextual evidence of their meaning be disregarded, the bare words would be open to the opposite interpretation. They could be construed as imposing whatever limits to the Parliament's powers the judges deemed not to be in the best interests of the nation. Of course, this result is only permitted, and not logically required, by non-originalism. But it is surely favoured by the first version: it follows from a much more straight-forward reading of those words than the historically intended meaning, which is difficult to square with the dictionary. As for the second version, who knows what today's Australians would understand by those words if they read them? A third general objection is that non-originalism is inconsistent with everyday notions of meaning and methods of interpretation. 205 It may be true that our choice of interpretative principles ultimately turns on normative considerations; nevertheless, principles which flout everyday conceptions of meaning, interpretation and change must tend to discredit the enterprise of legal interpretation. Concepts such as "meaning", "interpretation", and "change" are not legal terms of art. They are rooted in everyday life - in "common sense" - as is the law itself. Law is an everyday, practical thing, administered to a large extent by and for ordinary people, including elected legislators, the people who vote for them, public servants, and so on. That is one reason why, as I have said elsewhere, "interpretation of legal texts is a specialised case of linguistic interpretation in general, and ... relevant legal principles are explicitly formulated analogues of principles used intuitively in everyday life".206 As previously observed, since the meaning of a law is an essential part of what it is, to change its meaning is to change the law. To say that a law no longer means what it meant when it was first enacted, is to say that it is no longer the same law. 207 To insist that this is merely interpretation, and not change, is to flout the way in which those concepts are understood both in everyday life and in law, and to rationalise the evasion of s 128. 8 THE RIGHT TO VOTE REVISITED We now have the analytical tools needed to decide whether or not the obiter dicta in the Cheatle, Langer and McGinty cases, asserting that the Constitution today requires that women serve on juries and be allowed to vote, are consistent with the principle of original, intended meaning. Unless I have overlooked some other possibility, they are consistent with it only if they are based on methods I, 2, or 3, discussed in Part 6; 204 D' Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 110 per Griffith CJ 205 See the example of Bill's request, discussed at the beginning of Part 3, above; and for a 206 J. Goldsworthy, above n 60 at 163. 207 See text to nn 51-52, above. fuller argument, J Goldsworthy, above n 57. 40 Federal Law Review Volume 25 otherwise, they are tantamount to the adoption of non-originalism. None of the Justices responsible for those dicta has endorsed non-originalism. They seem to have had either method I, 2 or 3 in mind, and I will consider these possibilities in reverse order. Method 3. Non-literal, purposive interpretation It is difficult to see how method 3 could be invoked to justify these obiter dicta. Method 3 is employed when, because of technological and social changes, strict adherence to the literal meaning of the words of the Constitution would frustrate their clearly intended purposes. But this cannot justify the conclusion that the Constitution today guarantees the right of women to vote, when we know for certain that the founders intended otherwise, and included words giving effect to that intention (ss 3D, 41 and 128). That conclusion would involve going beyond the founders' purposes as well as the literal meaning of their words. There is no good reason to think that they had some deeper purpose, nowhere expressed, that if "contemporary standards" should change, new rights should be regarded as magically appearing in the Constitution without any formal amendment pursuant to s 128. Indeed, given the careful attention which they gave to the question of future amendments, and to the drafting of s 128, there is every reason to think the opposite. Method 2. Connotation and denotation Toohey and Gaudron JJ seem to rely on method 2, as did the plaintiffs. 208 Toohey J says: [W]hilst the connotation of words in the Australian Constitution remains fixed, their denotation may vary over time. Equally, while the "essential feature" of a concept in the Constitution remains unchanged, the concept is necessarily applied to circumstances different to those which existed at the beginning of the century ... [T]he essential feature of representative democracy is government by the people through their representatives ... In 1900, the popular perception of what this entailed was certainly different to current perceptions .... The point is that, while the essence of representative democracy remains unchanged, the method of giving expression to the concept varies over time and according to changes in society. It is the current perception which is embodied in the Australian Constitution. 209 While Gaudron J does not use the terms connotation or denotation, she too distinguishes between an "essential meaning" which cannot change, and other aspects of meaning which can change. The distinction between essential and inessential criteria has in the past been used as a key to identifying the connotation of a term. She says that "broad and general" words in the Constitution, such as the words "chosen by the people", are to be approached "on the basis that, although their essential meaning is unchanged, 'their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge.'" She continues: They must also be interpreted bearing in mind that democracy was not a perfectly developed concept at the time of Federation and, perhaps, is not yet so. These 208 209 McHugh J quotes the plaintiffs' argument that although the connotation of representative democracy "may be constant ... its denotation has been capable of adapting in an evolutionary way to new situations and standards in accordance with the growth of the Australian people": McGinty's case (1996) 186 CLR 140 at 234-235. Ibid at 200-201. 1997 Originalism in Constitutional Interpretation 41 consideration necessitate that the content and application of the words "chosen by the people" be determined in the light of developments in democratic standards and not by reference to circumstances as they existed at Federation. 210 Whether persons elected to Parliament can be described as "chosen by the people" therefore depends on "current democratic standards".211 This reasoning of Toohey and Gaudron JJ is similar to that of the Court in Cheatle's case when it said that s 80 no longer permits the practice in 1900 of excluding women and unpropertied persons from jury service. The COllrt distinguished between the essential and the inessential features of the institution of trial by jury: Neither the exclusion of females nor the existence of some property qualification was an essential feature of the institution of trial by jury in 1900. The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community .... The restrictions and qualifications of jurors which either advance or are consistent with it may, however, vary with contemporary standards and perceptions. The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property. It would, however, be absurd to suggest that a requirement that the jury be truly representative requires a continuation of any such exclusion in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of females and unpropertied persons would be inconsistent with such a requirement. 212 But Toohey and Gaudron JJ in McGinty, and the Court in Cheatle, seem either to misunderstand or to misapply method 2. The distinction between connotation and denotation is used to explain how a concept which applies to different things at different times can nevertheless have an essential meaning which does not change. But "representative democracy", according to Toohey J, "chosen by the people", according to Gaudron J, and "trial by jury", according to the whole Court, do not have an essential meaning which does not change. They attempt to show that these concepts do have such a meaning, which in each case includes the criterion that the people or the community are represented. But it turns out that this criterion itself changes according to "contemporary standards of democracy". As Toohey Jhimself puts it, "representative democracy... [is] not a fixed concept but rather is responsive to the time and circumstances in which it falls for consideration".213 This is not consistent with the idea of a concept the essential meaning, or connotation, of which remains unchanged despite changes in its application, or denotation. Gaudron J explicitly acknowledges that the "content" as well as the "application" of the words "chosen by the people" vary according to contemporary standards. She also says that the "concept" of democracy was not "perfectly developed" in 1900, which confirms that on her view the concept itself changes, and not merely its application. Again, her repeated insistence that "it is a question of what is required in the light of current democratic standards"214 reveals that her method is not that of applying a fixed standard to changing circumstances, but rather, that of applying a changing standard. 210 211 212 213 214 Ibid at 336-337, quoting Lord Wright in James v Commonwealth [1936] HCA 32; (1936) 55 CLR 1 at 43. Ibid. ~ Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 at 560-561. McGinty's case (1996) 136 CLR 140 at 216. Ibid at 223. 42 Federal Law Review Volume 25 The connotation/denotation distinction is normally used to explain how a constitutional term can apply both to things (persons, objects, events, transactions, etc) which existed, or were envisaged, in 1900, and to unanticipated things which only come into existence later on. It does so by supposing that the essential meaning, or connotation, of the constitutional term consists of criteria capable of being satisfied by the latter as well as the former. But Toohey and Gaudron JJ in McGinty, and the Court in Cheatle, do not identify a general concept capable of denoting both the things which existed in 1900 and subsequent things. They purport to identify a general concept which in 1900 denoted certain things, but in the 1990s no longer denotes those things and denotes, instead, their opposites. Toohey and Gaudron JJ argue that in 1900 either the principle of "representative government" or the words "directly chosen by the people" denoted electoral procedures incorporating gross inequalities between electorates, and gender and property-based franchises, but that in 1996 they no longer do so. How can an unchanging concept at one time denote one thing, but at a later time denote its opposite? This is possible in some unusual cases. Consider the words "legal tender" in s 51(xii) of the Constitution, the connotation of which is something like "currency that cannot legally be refused in payment of a debt". In 1965, pounds, shillings and pence were legal tender, but in 1967, after decimalisation, the opposite was true. Yet the meaning of the words had not changed. The same is true of the word "aliens" in s 51(xix) of the Constitution. As six Justices explained in Nolan v Minister of State, the connotation of this word is something like "people born outside a political community, not being citizens of it by reason of parentage or subsequent naturalisation, or people who have relinquished their citizenship by denaturalisation".215 In 1900, no British subject was an alien in Australia because of our membership of the British Empire: Australia was not an independent political c~mmunity with distinct citizenship. But today it is, and therefore large numbers of British subjects are now aliens, although they would not have been in 1900. As the Court said, however, "It is not that the meaning of the word 'alien' had altered".216 Constitutional terms such as "legal tender" and "alien" are relative terms. Their connotation includes criteria whose application varies dramatically from one time to another, and from one place to another. In these two cases, those criteria refer to laws, regulating currency and citizenship, which vary according to time and place. In the case of other terms, non-legal criteria produce the same kind of variability, or relativity. Consider, for example, the term "politeness". What is polite in Australia today may not be polite in Japan, or in Australia 50 years from now. It all depends on the social conventions of each time and place. The use of the connotation/denotation distinction by the High Court in Cheatle, and by Toohey and Gaudron JJ in McGinty, can be justified only by attributing the same 215 [1988] HCA 45; (1988) 165 CLR 178. 216 Ibid at 184. Consider also the words "adult person" in s 41. Although the High Court rejected this interpretation, it was argued in King v Jones [1972] HCA 44; (1972) 128 CLR 221 that even in 1900 these words meant "person recognised by law as of mature age", so that although 18 year olds were not adult persons in 1900, they were in 1974. If this were so, it would follow that if the age of legally recognised maturity had been raised rather than lowered, 21 yearolds who were adult persons in 1900 would not have met that description in 1974: the denotation of a concept with a fixed connotation would have included that group of people in 1900, but excluded them later on. 1997 Originalism in Constitutional Interpretation 43 kind of relativity to the words "trial ... by jury", "representative democracy", and "directly chosen by the people" respectively. But is this plausible? In the case of most relative terms, their relativity is part of their conventional, semantic meanings, and is therefore well known to everyone who understands those meanings. 217 Everyone knows that what is legal tender in Australia today is not legal tender in other countries, and may not be in Australia 100 years hence. Everyone knows that people who are aliens in Australia today are not aliens in all other countries, and some may not be in Australia in the future (if, for example, New Zealand were to join the Australian Commonwealth). The founders, too, must have known this. But relativity is clearly not part of the conventional, semantic meanings of "trial... by jury", "representative democracy" or "chosen by the people". Take "representative democracy", for example. Assume for the sake of argument that North Korea is regarded as a representative democracy by most North Koreans, because they accept their leader's claim to represent the people better than any conceivable alternative (a claim most tyrants have made). Assume, in other words, that by the "contemporary standards" of North Korea it is a representative democracy. But it does not follow that we would have to agree that North Korea is a representative democracy. We do not regard the concept of "representative democracy" as being relative to the standards of different places or times. We apply our own standards, according to which certain regimes are not representative democracies, no matter what they claim or their subjects believe. The founders would have done the same thing. As Justice Scalia has observed, the point of entrenching basic norms in a constitution is to ensure that their implementation does not vary according to changing values: A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect "current values". Elections take care of that quite well. The purpose of constitutional guarantees ... is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside. 218 For this reason, there ought at least to be a strong presumption against relativist interpretations of constitutional concepts, which allow them to expand or contract according to "contemporary standards", a presumRtion rebuttable only by clear evidence that the founders had a contrary intention. 19 That was an important factor which persuaded the High Court in King v Jones to interpret the word "adult" in s 41 as having the fixed meaning of "21 years of age" rather than the relative meaning of "person recognised by law as of mature age". The relative meaning may seem desirable when contemporary standards are believed to be more enlightened than those of the past, but what if the age of legally recognised maturity had risen to 25 rather than 217 218 219 Whether or not a term is relative in this sense is not always clear, of course, which is why moral relativism is still debatable, rather than clearly being either true or false. A Scalia, above n 155 at 862. It is true that the words "the people" in ss 7 and 24 could be given a relativist meaning, such as "all those who at any particular time are recognised as members of the political community with a right to vote". But what justification can be given for doing so other than the desire to reach a particular desired conclusion, a desire which does not also justify relativising in a similar way every other term in the Constitution? 44 Federal Law Review Volume 25 fallen to 18? Those a§ed between 21 and 24 would then have been denied a right which they formerly had. 22 One of the Court's remarks in Cheatle's case suggests a sensitivity to this problem, and counts against a relativist interpretation of "trial ... by jury". Having identified the "essential feature or requirement of the institution" of trial by jury as being "that the jury be a body of persons representative of the wider community", the Court said that "restrictions and qualification of jurors which either advance or are consistent with it [the essential requirement of representativeness] may ... vary with contemporary standards and perceptions".221 In other words, it is not enough that changes are consistent with "contemporary standards": they must, in addition, "advance" or at least be "consistent with" the representative principle. It follows that the representative principle is not wholly dependent on contemporary standards. If contemporary standards deteriorate, and support changes which detract from, rather than advance, the representative principle, they cannot affect the meaning of the Constitution. The "evolution" of the requirement in s 80 of trial by jury can only be progressive, and not regressive. This is too one-sided to qualify as genuine relativism. On this view, the representative principle includes a content which is independent of, and can be used to judge, contemporary standards, which might be regressive as well as progressive. But that content must therefore be independent of our standards, because it must be able to be used to judge our standards: it must be a content which was fixed in 1900, according to the founders' enactment intentions. But how can the content of such a principle be fixed in 1900, according to those intentions, and yet be understood by today's judges to require something which the founders did not believe it required? Only method 1 seems capable of making this intelligible. If, for example, the founders' enactment intention was to enact an abstract principle of political morality, today's judges must apply the principle regardless of the founders' application intentions, that is, their beliefs about how the principle should be applied. 222 But it also requires the judges to apply that principle regardless of "contemporary standards", if those standards are morally inferior to those of the founders. This is how the objections to relativism are avoided: the question is what the principle truly requires, not what it was generally believed to require in 1900 or is generally believed to require today. Method 1. Application and enactment intentions application of any law requires judgments of fact or value or both, judgments whIch should be made independently of the law-maker's application intentions. Ther~~ore, whether the words "directly chosen by the people" are interpreted as requIrmg a factual or a moral judgment,223 it should be made independently of the founders' application intentions. Could this justify the High Court holding that Th~ 220 [1972] HCA 44; (1972) 128 CLR 221, especially at 248 per Menzies J. 221 Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 at 560 (emphasis added), quoted above at n 212. 222 See the third paragraph of Part 3, above. 223 Mc~ug~ J adopts the latter interpretation, when he says that they are "words of inexact ~pphcah~n, dependent upon matters of fact and degree and always involving a value Judgment: Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 342 (emphasis added). He also says that "the people" is a "vague but emotionally powerful abstraction" (ibid), which is not true of purely descriptive terms. 1997 Originalism in Constitutional Interpretation 45 Members of Parliament chosen only by men are not chosen by "the people", despite the founders' contrary opinion? This attempt to justify the obiter dicta in McGinty and Langer concerning an evolving right to vote faces several difficulties. It is true that the judges must decide what the Constitution requires, regardless of the founders' application intentions. But if for this reason the judges decide that it requires something which the founders believed it did not require, then they are logically committed to the view that the founders were wrong. Judges who think that the words "directly chosen by the people" guarantee the right of women to vote, even though the founders did not think so, should logically believe that the founders were wrong, and that the Constitution guaranteed that right in 1900 as well as today. The first problem is that the obiter dicta in Langer and McGinty do not suggest that women had a right to vote in 1900. They suggest, to the contrary, that the effect of ss 7 and 24 has changed. 224 But that suggestion depends on adopting either the relativist interpretation, criticised in the preceding discussion, or nonoriginalism. A second, related difficulty is that in applying a constitutional provision the judges must decide what it really requires. They should not apply "contemporary standards" unless the judges believe that those standards correctly reflect the provision in question. The judges' duty is to apply the Constitution, not pander to popular prejudices; they should no more defer to the opinions of the general public than to those of the government or the Parliament. Of course, the judges' factual and moral beliefs will usually be similar to those of the general public, but not always. In the United States, for example, Brennan J persistently held capital punishment to be "cruel", and therefore unconstitutional, even though a large majority of ordinary Americans disagreed. He was right to do so, if the Fifth Amendment requires the Supreme Court to make a moral judgment. To say that the proper application of a principle embodied in the Constitution requires deference to "contemporary standards", whether or not the judges believe them to be right, is to adopt the relativist approach. But there is a third, and greater difficulty, which must be overcome in order to interpret the words "directly chosen by the people" as guaranteeing the right of women to vote despite the founders' belief that it did not: it depends on a quite implausible understanding of their enactment intention. The crucial question is whether their intention not to guarantee women a right to vote is merely an application intention, or also evidence of their enactment intention. As I have previously observed, well known application intentions can also serve as enactment intentions, when they clarify the 224 For example, Gaudron J in McGinty's case says that it is a consequence of her approach that "what was permitted by s 24 at one time may not be permitted at another"; that "notwithstanding the limited nature of the franchise in 1901" women could not now be denied the right to vote; and that "the fact that the Constitution countenanced disparity in voting value at the time of Federation provides no basis for a conclusion that significant disparity in the numbers of electors in single member electorates does not now offend s 24": McGinty's case (1996) 186 CLR 140 at 222. Similarly, Toohey J says that: "Clearly the expression of representative democracy then [in 1900] did not encompass equality of voting power. But just as clearly, the expression of the concept is now thought to do so": ibid at 202. The same approach seems to be implicit in McHugh J's judgment in Langer's case, in Brennan CJ's and Gummow J's judgments in McGinty, and in the relevant passages in Cheatle's case concerning jury trials. 46 Federal Law Review Volume 25 meaning of an utterance. They can clarify ambiguities, or make it obvious that a word or phrase has been used in a non-literal, special or somewhat loose sel1se. In everyday life we constantly use our knowledge of other people's application intentions to clarify the meaning of what they have said to us; if we did not, we would regularly attribute absurd, unreasonable or obviously unintended meanings to them. The distinction between application and enactment intentions is not a licence for regarding all extratextual evidence of a speaker's meaning as pertaining only to her application intentions, and therefore as irrelevant to the meaning of what she has said. In the case of ss 7 and 24, the founders stated the Members of Parliament shall be "directly chosen by the people", and yet they did not understand these words to guarantee that women would be entitled to vote. A proposal to expressly provide that women were entitled to vote was debated at the 1897 COl1vention, and defeated by 23 votes to 12. What is now s 41 was then adopted as a compromise, to guarantee only that women entitled to vote in any of the six colonies would be entitled to vote in federal elections, but otherwise to leave the question of women's suffrage for the Commonwealth Parliament to determine. 225 To treat the founders' understanding of that compromise as a mere "application intention", which should now be ignored because it amounted to a misunderstanding of the meaning of the words they enacted in ss 7 and 24 (they said "people", and women are people!), is to attribute to them an elementary mistake which would have been obvious at the time. Even in 1900, women were regarded as people. The founders did not stupidly overlook this fact when they adopted the words of ss 7 and 24; rather, they used those words in a loose and nonliteral, but idiomatic, sense. The same would be true if those words were re-enacted today: they would not be understood literally, as guaranteeing the right of children to vote, even though children are people. 226 The words would not be understood literally, but in the light of current democratic principles and electoral arrangements, just as they were understood in 1900. In Britain, the idea that the House of Commons, as opposed to the House of Lords, was chosen by and represented "the people" had been popular for centuries, long before even most men, let alone women, were permitted to vote. 227 Throughout the English-speaking world, elections by men only, and often men of property, had characteristically been described as elections "by the people". That is why Section 2 of the United States Constitution, adopted in 1787, over 130 years before women were permitted to vote, states that "The House of Representatives shall be composed of Members chosen ... by the People of the several States"; why John Stuart Mill wrote in 1861 that "[t]he meaning of representative government is, that the whole people ... exercise through deputies periodically elected by themselves, the ultimate controlling power"; and why Abraham Lincoln in 1863 spoke of government "by the people, for the people, and of the people".228 In Australia, the words "chosen by the 225 This is not disputed by feminist historians. See H Irving, "A Gendered Constitution?: Women, Federation and Heads of Power", and A Millar, "Feminising the Senate", both in H Irving (ed), A Woman's Constitution? Gender and History in the Australian Commonwealth (1996) at 99 and 129-133 respectively. I trust that it is obvious that I am not comparing women with children in respect of their ability to vote intelligently and responsibly. See E S Morgan, Inventing the People; the Rise of Popular Sovereignty in England and America (1988), passim. J S Mill, Three Essays: On Liberty; Representative Government; The Subjection of Women (1975~ at 211; A Lincoln, Speech, 19 November, 1863. 226 227 228 1997 Originalism in Constitutional Interpretation 47 people of the States", and "chosen by the people of the Commonwealth", in ss 7 and 24 respectively, were used to require that both Houses of the new Parliament be elected rather than appointed, and also to contrast their constituencies. The Senate as the States' House was to represent "the people of the States" considered sectionally, whereas the House of Representatives was to represent "the people of the Commonwealth" considered as a whole. 229 Moreover, how could those words now be regarded as having really meant, even in 1900, that women as well as men had a right to vote, given that s 30 of the Constitution expressly provided that until the new Commonwealth Parliament dealt with the matter, the right to vote would be governed in each State by the laws of that State, laws which with two exceptions did not permit women to vote? Even if the suggested interpretation of ss 7 and 24 were otherwise plausible, it would be contradicted by s 30. It might still be argued that the founders' enactment intention was to entrench the principle of representative democracy, understood as an abstract principle of political morality; that they had mistaken, if not stupid, beliefs about the concrete application of that principle; and that the High Court today should apply the principle rather than the founders' mistaken beliefs about it. But to ascribe that enactment intention to them is also implausible. No doubt ss 7 and 24 were intended to help achieve certain purposes, and to that extent to serve deeper political principles. But this argument holds that the words go much further, and actually incorporate those principles, so that in order to apply the words, judges should go directly to the principles, and decide for themselves what the principles require, rather than apply what the founders thought the principles required, as expressed by the words they adopted. Furthermore, every clause in the Constitution was intended to serve deeper principles, and what reason is there to think that the founders intended the words of ss 7 and 24 in particular, and not those of every other clause as well, to stand as a mere proxy or representative for the deeper principles they were intended to serve? If the same interpretative method were applied to every clause, constitutional interpretation would explode into political philosophy, judges in every case applying abstract principles of political morality rather than the words by which those principles were given whatever practical implementation the founders thought desirable. On the other hand, if the method is confined to just a few clauses, such as ss 7 and 24, genuine historical evidence is needed to show that they in particular, and not all the others, were intended to incorporate or express abstract moral principles. In the absence of such evidence, this kind of argument has all the hallmarks of ad hoc and wishful thinking. In fact, nothing in the history of the adoption of these words suggests that they were intended to serve such a grand purpose. That is why, as I said earlier, Gummow 1's contention that the application of the words depends on "the particular stage which has ... been reached in the evolution of representative government" appears "out of the blue", with no relationship to the careful and thorough analysis which precedes it. 230 9 HORROR HYPOTHETICALS The analysis in the preceding Part may seem excessively technical or even pedantic, but the question it attempts to resolve is a very important one. That question is whether 229 230 J Quick and R R Garran, The Annotated Constitution of the Australian Commonwealth (1901) 447-448 and 449-450. See text to nn 34-35, above. at 48 Federal Law Review Volume 25 the obiter dicta in Cheatle, Langer and McGinty, concerning whether the Constitution now requires that women serve on juries and be entitled to vote, are consistent with the principle of original, intended meaning. I would be only too pleased to be shown that I they are consistent with that principle, either for one of the reasons I have just rejected, or for some other reason which I have overlooked. But if, as I have argued, they are not, they constitute a threat to the principle. Many people intuitively feel that the dicta i are so obviously "right" that it is churlish - perhaps even ludicrous - to question i them. But if they are right - in a legal, and not just a political sense - then the interpretative methodology which they presuppose must also be right, and therefore should be extended to the resolution of other constitutional problems. It would then follow that the principle of original, intended meaning should be abandoned, in favour I of non-originalism. In law, no conclusion can be so self-evidently correct that it should be accepted regardless of its consistency with general principles applied in other cases. The discipline of law is the discipline of general principles: it is inherently opposed to ad hoc decision-making. A non-originalist approach to issues such as the right of women to vote does have a I powerful intuitive appeaL We want the law to lead to just results, and always hope to I be able to interpret it so that it does. The very prospect of an attempt to deprive women I of that right is so outrageous that we immediately agree that were the High Court ever confronted with such an attempt, it should do everything in its power to defeat it. We ! have the same response to other "horror hypotheticals" which are put forward to I impugn orthodox legal principles, such as the old chestnut of the statute requiring all I blue-eyed babies to be killed. But what does our response demonstrate? Does the fact I that we would want the judges to reject such an outrageous statute guarantee that they would be able to find a sound constitutional basis for doing so? Does the Constitution I necessarily ll1clude a remedy for every possible abuse of power? Or does our response s110w that we would want the judges to do everything possible to defeat such a statute, even if they had covertly to distort the Constitution in order to do so? As Gibson J said, in his profound meditation on judicial review in Eakin v Raub, if a legislature committed a "monstrous" injustice, it "would justify even insurrection", in which a I judge should employ "every instrument of official resistance within his reach". He continued: "By this I mean, that while the citizen should resist with pike and gun, the judge might co-operate with habeas corpus and mandamus. It would be his duty, as a I citizen, to throw himself into the breach, and, if it should be necessary, perish there".231I But he denied that this proved that the judges had any legal authority to routinely I review the validity of legislation. What morality justifies in a desperate emergency maYI have little relationship to what the law requires in ordinary cases. It must always be remembered that general legal principles apply to a large range! of cases - an infinite range, if imaginary as well as real cases are included - andl cannot be expected to produce optimal results in everyone of them. This is particularlyI true of principles of interpretation which are applied in every area of law. Unpalatable' results of applying such principles in a handful of cases (hopefully imaginary ones)1 may be the price which has to be paid for satisfactory results in the vast majority ofl cases which are likely to arise. That is the meaning of the maxim "hard cases make badl laws": it is unwise to design general legal principles with very unusual cases in mind., When the "hard cases" are imaginary ones, which are extremely unlikely ever to arise, I I I I ! ! I I I I I I I I 231 (1825) 12 Sergeant & Rawles (Pa) 330 at 356. 1997 Originalism in Constitutional Interpretation 49 the maxim is especially pertinent. 232 An attempt to repeal the right of women to vote, or to exclude them from jury service, is not even a remote possibility in Australia today. It would be foolish to abandon well-established principles of interpretation in order to enable the judges to meet a non-existent danger, especially given the powerful objections to the alternative principle of non-originalism. If it were genuinely feared that the right of women to vote might one day be threatened, a formal constitutional amendment would be a far better pre-emptive strategy - much more reliable, as well as more legitimate. There can be no doubt that such an amendment would be passed by referendum if proposed: it would not encounter any substantial opposition. Even in the United States it was thought to be necessary, notwithstanding the existence of the "equal protection" clause of the Fourteenth Amendment, to add the Nineteenth Amendment in 1920 in order to guarantee the right of women to vote. Feminists who want the Constitution to be amended to improve its recognition and protection of women's interests should surely prefer a blunt recognition of its existing inadequacies, rather than the pretence that everything can safely by left to spontaneous "evolution". It would be a dangerous folly to imagine that we now have a "perfect constitution" - a constitution which includes everything that it ought to include. 233 If it did, the amendment procedure prescribed by s 128 would be redundant. When a change in "contemporary standards" makes the constitutional recognition of a new principle seem desirable, s 128 is the proper means for gratifying the desire. 10 CONCLUSION I have advocated a moderate rather than an extreme version of originalism in constitutional interpretation,234 on both descriptive and normative grounds. My descriptive claim is that moderate originalism is more consistent than its rivals with the approach to statutory interpretation which common law courts have taken for centuries, and which the High Court has consistently applied to the Constitution. 235 On the normative front, I have argued that the theory is not subject to many of the criticisms of originalism which have been made in the United States, and can be successfully defended against others. 236 In addition, I have claimed that it is preferable to its main rivals for reasons of political morality. Extreme originalism is incompatible with the rule of law and the separation of powers. 237 Non-originalism is committed either to an impoverished literalism, or to an awkward and impractical pretence that constitutional provisions embody relatively specific understandings of today's Australians. In either case, non-originalism amounts to an invitation to opportunistic 232 Ron Castan QC recently argued before the High Court that "this question of limits on State power is ultimately tested by taking the matter to an extreme case", and then took "the ultimate extreme case" of a law prohibiting any criticism of the government of the day to demonstrate the existence of implied limits to State power: Levy v Commonwealth, Transcript of Proceedings, 6 August, 1996 at 8. This kind of argument is fallacious, partly for the reason given in the text. H Monaghan, "Our Perfect Constitution" (1981) 56 Nezv York University L R 353. Part 3, above. Part 2, above; but see n 119. Parts 4 and 5, above. Text to nn 55-56, 121-122 and 161, above. 233 234 235 236 237 50 Federal Law Review Volume 25 judicial activism on a potentially vast scale, blatantly evading s 128 of the Constitution. 238 Moderate originalism is consistent with constitutional law changing, without any formal constitutional amendment, for five different reasons: the need for judicial lawmaking in cases involving ambiguity, vagueness or inconsistency; the doctrine of stare decisis; the elasticity of the denotations of constitutional terms; the general irrelevance of the founders' application intentions; and the priority of purposive interpretation over literalism. 239 The combined effect of these various sources of change is considerable scope for evolution and adaptation to contemporary values. The question is whether any greater interpretative flexibility is either necessary or desirable, given the requirement in s 128 that alterations of substance should first be approved by the people. I have argued that it is not. In the course of my argument, I have confronted the most attractive counterexample to my thesis: the right of women to vote in Commonwealth elections. After considering whether the proposition that the Constitution now guarantees that right is consistent with moderate originalism, for any of the five reasons just mentioned, I concluded that it is not. 240 But I then argued that moderate originalism should not be rejected on that ground, because the possibility that there will ever be a real practical need for such a guarantee is almost zero, and s 128 could easily be used to provide for it anyway. Moderate originalism is the better theory for practical purposes, even if as is true of any theory - it has counter-intuitive results in a few imaginary , situatiol1s. 241 238 239 240 241 Part 7., Part 6, Part 8, Part 9, above. above. above. above.