Weis, Lael --- "What Comparativism Tells us About Originalism" [2013] UMelbLRS 4

What Comparativism Tells us About Originalism

Lael K. Weis^[*]

(This article is forthcoming in the International Journal of Constitutional Law, Volume 11, Issue 4, 2013)


Introduction

When judges detect particular community values . . . they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold. . . . This suggests that the . . . cultured and cultivated patricians of the progressive judiciary—our new philosopher-kings and enlightened despots—are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude—the great beast, as Alexander Hamilton called it—ought to hold even though they do not.

The question . . . is not what the most enlightened possible meaning, judged by modern standards, might be borne by the words . . . . The question is what meaning [the Constitution’s framers] considered those words to bear.

If asked to name the judicial figure who authored the above quotations, U.S. Supreme Court Justice Antonin Scalia would no doubt come to mind. Scalia’s agenda is well-known: curbing the judicial expansion of constitutionally protected rights through strict adherence to the original meaning of the text, while simultaneously rejecting reference to contemporary values as a perversion of the rule of law, democracy and the Constitution itself.^[1] This brand of judicial conservatism is closely associated with the United States, where the Supreme Court’s high-profile role in adjudicating divisive public policy debates has been an ongoing source of anxiety that popular rule has been replaced by “the unfettered wisdom of a majority of [the] Court, revealed to an obedient people on a case-by-case basis.”^[2] Whether defended by members of the academy, the judiciary, or the public, originalism has been the dominant response to this set of concerns about activist judging.

Rather than offering an approach to constitutional interpretation with general appeal, then, originalism would appear to be a home-grown American eccentricity. In a recent comparative study, Jamal Greene puts this assumption to the test, and ultimately concludes that originalism is indeed a species of distinctively American preoccupations.^[3] If this is correct, then the study of originalism can speak only to the peculiarities of American constitutional culture and practice, making it of purely parochial interest to comparative scholars or theorists with a broader agenda.

The voice of these pronouncements on judicial method is not Scalia, however, but Australian High Court Justice Dyson Heydon. Like Scalia, Heydon’s outspoken views on judicial role have given him a “reputation for being somewhat arch.”^[4] The first set of comments, from a 2002 speech delivered shortly prior to his appointment,^[5] were a thinly veiled swipe at the progressive jurisprudence of the Court under the leadership of Chief Justice Sir Anthony Mason. Following Mason’s retirement, the two carried on an “extraordinary exchange of insults . . . partly disguised as an argument about judicial methodology.”^[6] The second quoted passage, from his dissenting judgment in a controversial 2010 decision expanding voting rights,^[7] reflects the originalist bent to Heydon’s crusade against judicial activism. In his final years on the High Court^[8] Heydon emerged as the Court’s “Great Dissenter,” dissenting in more than 45% of the cases decided in the 2011 term alone.^[9] During that period, the High Court was unusually active in high-profile rights cases invalidating government policies,^[10] and Heydon’s “stinging” dissents made him something of a hero to fellow conservatives. “Like a bruiser outnumbered and surrounded by thugs,” one admirer wrote of a recent judgment, “Heydon came out swinging.”^[11]

From a comparative perspective, this apparent convergence of judicial philosophies and personalities is surprising. In contrast to the U.S. Constitution, the Australian Constitution is—to put it bluntly—rather uninspiring. It is preoccupied with mundane structural issues rather than securing fundamental liberties, as its drafters (familiar with both the American and British systems) thought the latter were better protected by securing the means of good governance than through the judicial protection of rights. Consequently, in an era when rights-protection seems central to constitutionalism, the Australian Constitution looks more like an ordinary statute than a source of higher law meant to effectuate ideals of democratic self-governance. So how could it be that concerns about judicial activism premised on a constitutional system designed to guarantee responsible government, as opposed to one designed to secure individual rights, have yielded such a similar interpretive prescription?

One possibility is that originalism is simply an American import, borrowed in the exchange of ideas as judges are increasingly exposed to judicial philosophies and practices from foreign jurisdictions. If this is right, it would make originalism an awkward transplant in Australian soil from which little can be learned—beyond, perhaps, the limits of borrowing.^[12] The other possibility is that the conditions of constitutionalism in Australia have given rise to a distinct interpretive tradition, of which originalism is a natural outgrowth or component.

In this paper I make the case for the latter view: originalism thrives in Australia in a form that is virtually indistinguishable from that defended by Justice Scalia. Moreover, I will argue that the Australian constitutional system is in fact a better fit for an originalist theory of interpretation because the Australian Constitution can be plausibly understood as a legal text. That is, the Australian Constitution is better understood, if not simply as a statute, then as a binding legal agreement concerning the basic rules of collective governance—as opposed to a founding document in the more capacious sense of its American counterpart. This makes it more plausible to treat Australian constitutionalism as reducible to the written constitution, a thesis I refer to as “constitutional formalism.” Moreover, it makes it more plausible to think that the views of the framers are entitled to deference, on account of their unique position and special expertise qua drafting or contracting parties, a thesis I refer to as a “perfectionist” account of the founding. Both theses offer a far more theoretically coherent and normatively plausible foundation for originalism than what is typically found in the literature; the standard defense of the view offered there relies on features of American constitutionalism that cannot, I argue, support either of these grounds for adopting an originalist approach to constitutional interpretation.

Importantly, however, this paper is not a defense of originalism. Nor is it an attempt to specify a set of necessary or sufficient conditions for originalism to take hold. My aim is rather to bring to light a disconnect in the literature through the use of comparative constitutional law: the most plausible grounds for holding an originalist view have, at best, a weak foundation in the United States notwithstanding the view’s obvious popularity there. The fact that the vast literature on originalism in the United States has overlooked the possibility that the American constitutional system is not the best fit for originalist interpretation indicates the degree to which assumptions grounded in American debates about judicial activism have come to define the aims of interpretive theory. A comparative approach allows us to interrogate those assumptions.

I proceed as follows. The first section sets up the comparative analysis. After establishing the common ground between American and Australian originalism, I introduce the key features of Australian constitutionalism that distinguish it from American constitutionalism. The second section then argues that Australian constitutionalism provides a better foundation for originalism on account of these differences. I consider the formalist and perfectionist theses in turn, showing how each more plausibly describes the Australian experience and simultaneously provides a more plausible basis for originalism than defenses of the view that rely solely on its ability to curb judicial restraint or on its appeal to popular sentiments about the founding generation. Finally, I conclude with some observations about the role of comparativism in constitutional theory. Although theoretical work on constitutional interpretation and judicial review stands to benefit from comparativism, it requires a more considered approach. As the study presented here illustrates, the influence of local assumptions about constitutionalism on both the definition of particular interpretive views and the broader objectives of interpretive theory can be difficult to shake—even from a comparative vantage point.

1. Is Originalism Distinctively American?

1.1 Originalism in the United States and Australia

A theory of constitutional interpretation is “originalist” if it holds that a written constitution must be interpreted in light of the original understanding of the words contained in its written text. For an originalist, constitutional interpretation thus proceeds from a distinctly historical point of view, focused on the framers, ratifiers, or even the public at the time of enactment. Within these broad parameters, however, there are many different ways of being an originalist. The search for original meaning may seek to establish any one of the following: particularized expectations regarding the application of a provision; accepted meanings of terms and concepts; or, more broadly, the objectives of constitutional design and structure. As this array of possibilities suggests, the label “originalist” is not always informative as a means of differentiating interpretive views. Committed originalists can and do disagree about the sense of original understanding that ought to guide constitutional interpretation.

This paper focuses on what I take to be the mainstream and best-known variety of originalism in the literature, so-called “textualist originalism.” Typically understood as a conservative interpretive methodology, textualist originalism is self-consciously situated in opposition to “evolved meaning” approaches to interpretation, which hold that the meaning of constitutional provisions should be read in light of contemporary values. Three core commitments unite originalists of this stripe:

1. Textualism: a written law is (nothing more than) its text, including presumptions and implications that follow from text and structure.^[13]

2. Anti-intentionalism: objective meaning, not the subjective expectations of the drafters, is the relevant source of a written law’s meaning.

3. Semantic fixation: the language used in a written law continues to mean what it meant at the time of its enactment.^[14]

From these three commitments it follows that to interpret a written law otherwise than in accordance with its original meaning is simply to change the law. It is on these grounds that textualist originalists claim that non-originalist interpretation is inconsistent with both the rule of law and democracy: it allows for higher law-making outside of constitutionally prescribed procedures, which can then override ordinary laws made following those procedures. To give effect to original meaning, textualist originalists deploy orthodox methods of statutory construction and resist consulting considerations found “outside” of the text (by semantic fixation, the original meaning is part of the text). For the sake of brevity, I will refer to this view as “originalism” unless differentiating it from other interpretive views that draw on original meaning and the founding.

While associated most closely with Justice Scalia, outside of the United States originalism has attracted another vocal defender in Australian High Court Justice Dyson Heydon. In some respects the originalist approach that has come to define Heydon’s constitutional judgments was unclear at the time of his appointment. Although widely regarded as a brilliant conservative mind, Heydon was better known for his influential equity law texts than his views on judicial role or interpretive method.^[15] In other respects, however, originalism was part of the job description. By all counts, Heydon’s appointment to the High Court in 2002 helped fulfill a promise on the part of Prime Minister John Howard’s government to fill vacancies with “capital-C Conservative” judges.^[16] Under the leadership of Chief Justice Mason in the 1980s and 90s, the High Court had come under fire for a series of landmark rights judgments, including the recognition of native title^[17] and an implied freedom of political communication.^[18] Departing from the Court’s longstanding “legalist” tradition, which favors formal textual analysis and canonical common law methods of construction, the Mason Court embraced the idea that the meaning of constitutional terms could evolve with social values,^[19] and sought to validate Australia’s place within a human rights conscious international community.^[20]

During his time on the High Court, Heydon was one of the principal contributors to a reinvigorated legalist interpretive methodology, with a decidedly originalist rebranding. To date, however, Heydon’s interpretive view has not been widely published or debated in academic circles.^[21] One contribution this paper makes is to reconstruct that view, using the reasons given for his judgments during his time on the High Court along with his few publications on interpretive method.^[22] This is a timely contribution, following Heydon’s recent retirement from the High Court.^[23]

It is fair to say that Heydon’s originalism bears a striking resemblance to Scalia’s.^[24] In the first place, Heydon—like Scalia—is interested in the original meaning of constitutional terms but not in the subjective intentions of their authors.^[25] He has likened the search for intent rather than meaning as the “pursuit of a mirage,”^[26] “both delusive and lacking in utility.”^[27] While serving on the High Court with fellow originalist Justice Ian Callinan—who did endorse intentionalism^[28]—Heydon was careful to distinguish his own originalist interpretive stance.^[29] Secondly, Heydon’s interpretive practice is heavily formalistic and has many affinities with Scalia’s textualism. As with Scalia, Heydon’s starting point for interpretation is the proposition that a law is equivalent to its text,^[30] and he relies on standard common law tools used in the construction of ordinary statutes. The third and final consideration that aligns his originalism with Scalia’s is Heydon’s emphasis on the rule of law. Both view originalist interpretive method as necessary to give effect to the basic prohibition on arbitrary exercises of power that is thought to distinguish a government of laws from a government of men.^[31]

1.2 A Comparative Perspective on Originalism

Notwithstanding this remarkable convergence, it is typically assumed that originalism has its most natural home in the United States. Jamal Greene’s recent effort to submit that assumption to a comparative analysis is illuminating in this regard.^[32] Although he observes that originalism is firmly embedded in Australian constitutional practice,^[33] in Greene’s view this offers no insight into “the origins” of originalism because Australian originalism is less reactionary, less focused on rights, and lacks the credentials as a “species of popular constitutionalism”^[34] that has defined its success in the United States.^[35] He concludes by suggesting several possible explanations for the unusual popularity of originalism in the United States, focusing on its reception in American constitutional culture.

Greene is correct to observe that the reception of originalism in Australia cannot be explained in the same terms as its reception in the United States. However, to then conclude that Australian practice has nothing to add to our understanding of originalism is puzzling, to say the least. The purpose of Greene’s comparative study is not, one presumes, to affirm that American originalism has American roots. But then why think that the American reception of originalism should serve as the sole point of departure for evaluating the foundations of originalism as a theory of constitutional interpretation—something that virtually guarantees the answer to Greene’s question?^[36]

Part of the difficulty in locating a comparative vantage point is that the literature on originalism has overwhelmingly centered on American debates about constitutional interpretation, thus taking for granted elements of American constitutionalism that inform those debates. There are two elements in particular that appear to make the American reception of originalism unique. The first is the revolutionary character of the American founding and, in particular, the central importance of the founding moment in popular constitutional culture. The American Colonies’ decisive break with the United Kingdom marked a new national identity; and even as that identity has been contested and renegotiated over many generations, there is little doubt that the founding generation left a palpable mark on the aspirations and character of Americans as a people. The founding occupies a prominent place in popular self-understandings; it is commonplace, for instance, for constitutional principles to serve as reference points in public debate, linking historical inheritance to contemporary ideals. This implies that original understanding of the constitution could be thought to embody the popular will—at least if described at the appropriate level of abstraction. Moreover, it helps explain why American originalism is not simply a conservative jurisprudence, but a political practice and “site of popular mobilization.”^[37]

The second element that appears to make the American reception of originalism unique is the U.S. Constitution’s vague and morally-loaded rights provisions. Although certainly not unique to American constitutionalism, the U.S. Supreme Court’s rights jurisprudence has a particularly notorious legacy. By all accounts, originalism emerged as a distinctive interpretive approach in the U.S. precisely in response to public controversy surrounding the judicial expansion of rights. While consulting founding history has always had a place in interpretation, the distinctly anti-activist and conservative cast of this practice was only secured in the aftermath of Brown v. Board of Education,^[38] a decision that is generally agreed to have expanded the equal protection clause beyond what its drafters, ratifiers, or members of the public anticipated at the time that the Fourteenth Amendment was adopted. In the wake of Brown, originalist pioneers Raoul Berger and Robert Bork rebranded originalism as a tool for curbing broad interpretations of constitutional guarantees.^[39] The view gained momentum during the Warren Court era, in the face of judicial expansion of constitutional rights in areas such as criminal law, privacy, and electoral regulation.^[40] Today, originalism endures as the predominant “anti-activist” narrative in both scholarly and popular commentary.

It is understandably difficult to escape the impression that originalism is distinctively American when the articulation, defense, and critique of the view have been tied to these two elements. However, it would be a mistake to assume that a robust popular constitutional culture and central founding moment or a socially profound rights jurisprudence are necessary components of originalism simply because they are necessary to understand the reception of originalism in the United States. Australia is a case in point. While born from the same common law tradition and influenced by the American example, Australian constitutionalism lacks both of these features. Consequently, the manner in which theories of constitutional interpretation are articulated and debated is different in Australia than it is in the United States. Originalism is no exception.

There are three principal features of Australian constitutionalism that color the comparative analysis. First of all, the Australian Constitution has a very different historical pedigree from the American Constitution, and thus does not carry the same popular or cultural significance. Enacted in 1900 as an Act of British Parliament,^[41] the Australian Constitution’s popular acceptance as an Australian founding document was won gradually over time. This status was formally solidified by enactment of the Australia Acts in 1986, which terminated the United Kingdom’s power to legislate for and govern on behalf of Australia.^[42] Significantly, however, there has been no central constitutional “moment” in Australia; the Australian founding was not the progeny of a social or political revolution, but rather a pragmatic exercise in nation building. It is important not to overstate this point: even from the time of enactment, the Constitution was unquestionably a “political compact of the whole people of Australia”^[43] and not merely a statute, as evinced by its design within Australia, the popular ratification process required for its adoption,^[44] and the language of the Preamble, which refers to an agreement by “the people” of the states “to unite in one indissoluble Federal Commonwealth.” Nevertheless, it would still be difficult to sustain the claim that enacting the Constitution “constituted” the Australian people.^[45] Nor has the Constitution come to assume a role in popular political deliberation analogous to the role played by the American Constitution; outside of the referendum process for amendment,^[46] Australian constitutional politics is the province of lawyers, not the general public.^[47] Indeed, a significant portion of the population doesn’t even know that Australia has a written constitution.^[48]

Second, rights protection is not a central feature of the Australian constitutional system. The framers of the Australian Constitution rejected the American model of “checks and balances” in favor of the British model of responsible government, meaning that structure rather than rights protection is the principal mechanism for securing democratic governance. Today, the Australian Constitution is among the few modern constitutions lacking an entrenched bill of rights and it contains very few explicit rights guarantees.^[49] The contents of the Constitution instead principally concern the basic structure and functions of the federal (“Commonwealth”) government, and the relationship between the states and the Commonwealth government.^[50] The technical and structural-oriented nature of the Constitution reflects its status as a founding document: notwithstanding its popular ratification, in substance the Constitution is a compact between the people of the states, not a statement of the values and aspirations of a sovereign Australian “people.”

Thirdly, and no doubt owing to the statute-like character of the Constitution, the High Court’s predominant interpretive method has always been heavily formalist, or “legalist”—that is, relying predominantly on the meaning of the text at the time of enactment, in light of structure and history.^[51] Many of the early High Court Justices had a hand in drafting the Constitution, and established this approach early on. Chief Justice Samuel Griffith, one of the principal architects of the Constitution, was emphatic that “whatever [a word conferring power on the Parliament] meant in 1900 it must mean so long as the Constitution exists . . . .”^[52] Thus, as early as 1904, it was held that interpreting 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 . . . is to be gathered from the other provisions . . . aided by a consideration of surrounding circumstances. In all cases . . . you may have recourse to contemporaneous circumstances . . . . In considering the history of the law, . . . you must have regard to the historical facts surrounding the bringing the law into existence.^[53]

Echoing the approach advocated by early High Court Justices, Chief Justice Sir Garfield Barwick later wrote that:

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, beyond the reach of any Australian Parliament, subject only to alteration by the [amendment procedure] provided by s. 128 of the Constitution.^[54]

Insofar as it is a theory of constitutional interpretation, Australian legalism is closely aligned with originalism. Some contemporary commentators have even preferred to describe the High Court’s legalist methodology in originalist terms.^[55]

However it is labeled, a critical difference between Australian legalism and American textualist originalism is that the latter is but one variant of formalism (among others) to emerge at a particular historical moment and has never commanded a majority of the U.S. Supreme Court. ^[56] Legalism, by contrast, has continuously defined the High Court’s approach to constitutional interpretation, albeit in various strengths at different moments of the Court’s institutional history.^[57] As Justice Michael McHugh has observed, “[p]robably, most Australian judges have been in substance what Scalia J of the United States Supreme Court once called himself—a faint-hearted originalist.”^[58] The somewhat more vigorous originalist approaches of recent members of the Court—including Justice Heydon and former Justice Callinan—reflects a self-conscious attempt to reign back what conservatives have perceived to be “activist” departures from legalist orthodoxy, most notably the implication of substantive rights from the Constitution’s text and structure.^[59]

Taken collectively, these differences virtually guarantee that originalism in Australia looks different from originalism in America. However, that does not prove that originalism is distinctively American unless we assume that features of the American debate about constitutional interpretation must apply to interpretive debates elsewhere. Far from being inconsequential to the study of originalism, I will show that considering Australian originalism on its own terms can help make sense of the view’s underlying logic and justification as an interpretive theory. Australia presents an interesting comparative case precisely because its constitutional system defies standard assumptions about why originalism might seem attractive. Likewise, the popular constitutional culture that has shaped the reception of originalism in the U.S. is altogether absent in Australia. And yet, as Greene himself observes, in many respects the originalist method Scalia defends is much more firmly embedded in Australian constitutional practice. Moreover, while less reactionary in this sense, it is clearly incorrect to suggest (as Greene does) that it is not defended as a remedy for judicial activism.

2. The Authority of Original Meaning Reconsidered

The most basic challenge originalists face lies in explaining why understandings of a constitution at the time of drafting and adoption ought to be binding in the present day. This is especially perplexing in the case of old constitutions, such as those of the United States and Australia. Unlike ordinary laws, constitutions tend to be written in broad outlines, contain general terms, and in virtue of both purpose and design, are meant to endure over many generations. For that reason, as even originalists acknowledge, constitutions appear to present a distinct set of interpretive problems related to their adaptation to changes in civil society.^[60]

Accounts of the authority of original meaning responding to this challenge have largely tracked the reasons that the view is thought to be distinctively American. Firstly, originalism is presented as the best means of limiting opportunities for judicial activism, by acting as a check against the expansion of rights in light of current notions of morality. Secondly, originalism draws on popular reverence for the founders, and the central importance of the founding moment in defining the ambitions of the constitutional system. The former is quite explicit, whereas the latter operates more covertly, as a “built-in” or “ready-made” justification for consulting founding history.

This section presents two alternative foundations for originalism: a formalist conception of constitutionalism, and a perfectionist conception of the founding. I argue that each thesis presents a more plausible and theoretically coherent basis for originalism, in that they largely avoid the set of difficulties and objections that have beset defenses of originalism in the literature. Moreover, I will show that each thesis has a stronger presence in Australian constitutionalism and plays a central role in the originalism practiced by Justice Heydon. By contrast, they are far more difficult to reconcile with American constitutionalism—even if Justice Scalia occasionally makes a bid for them.

2.1 Formalism and the Constitution

Originalism is most commonly defended as method of judicial restraint. Both proponents and critics present the view as singularly preoccupied with curbing the “activist” tendencies of judges and, in particular, with curbing broad interpretations of rights provisions in light of popular understandings. Originalism has thus often appeared to be a theory of judicial restraint dressed up as a theory of constitutional meaning, where considerations in favor of the former drive the latter. This has led to two principal criticisms of the view. First, critics have argued that originalism cannot deliver its promise of restraint because judicial inquiries into original meaning are at least as susceptible to manipulation as other approaches. Worse, the search for original meaning is simultaneously less transparent in that it purports to be concrete and factual, but cannot avoid evaluative judgments. Second, as a theory of constitutional meaning, critics have argued that originalism is unattractive because it gives insufficient weight to the distinctive character of the legal text being interpreted. Unlike statutory interpretation, constitutional interpretation seems to require giving effect to moral values that color the status of a written constitution as higher law.

Originalists have responded to these objections with a rather dissatisfying set of concessions. Scalia, for his part, has acknowledged that originalism cannot prevent judicial activism, and has instead defended his interpretive view as a “lesser evil.”^[61] This more modest defense of originalism relies on the contention that, contrary to non-originalist approaches, “the originalist at least knows what he is looking for,”^[62] and that original meaning is “at least an agreed-upon point of departure.”^[63] Moreover, Scalia has conceded that there are limits to originalism when it comes to fixing the meaning of constitutionally embedded moral principles. Thus, when confronted with thorny issues such as whether punishments administered at the time of the founding can “fix” the meaning of the Eighth Amendment’s prohibition on “cruel” punishments,^[64] Scalia admits that he is only a “faint-hearted” originalist^[65] and that “any espousal of originalism as a practical theory of exegesis” must “come to terms” with “the reality” that punishments such as “public flogging and hand-branding” could not plausibly be sustained in the present day.^[66]

While concessions along these lines seem perfectly reasonable, it is difficult to see how they can be made without admitting that originalism requires interpretive tools that go beyond the text and its original meaning. But then, does the originalist really know what he is looking for? The difficulty that originalists have encountered in responding to these objections has led to the impression that, if original meaning has any independent interpretive weight, it is an irrational form of “ancestor worship.” At the end of the day, the desire for more effective judicial restraint does not provide a satisfying basis for the interpretive authority of original meaning. To the contrary, focusing on judicial restraint appears to be a distraction from it.

Here we arrive at the first thesis. An alternative and more plausible source of the authority of original meaning lies in the defense of a formalist view of constitutionalism, or “constitutional formalism.” Constitutional formalism is the view that constitutionalism is contiguous with and reducible to the text of the written constitution. Implicit in the formalist’s insistence that a constitution is a legal text like other legal texts is one of two views. One might take the view that a constitution is a statute in all relevant respects, differing only in its subject matter and the process of its revision or repeal. Or, one might take the view that a constitution is a kind of contract—that is, a binding legal agreement. The contract view allows for a firmer distinction between a constitution and ordinary legislation than the former view. However, it is not to be confused with the normative concept of a “social contract”: the constitution is a basic or higher law because it reflects an agreement or bargain between the contracting parties establishing the ground rules for collective governance, and not because it reflects the values or aspirations of a people. The duty of a court, which defines its interpretive task, is to give effect to the agreement as it was made and to respect the terms of the constitutional bargain.

While both views are possible sources of constitutional formalism, they may not be equally plausible accounts of a given constitution. As discussed above, even in Australia few would accept that the contemporary Constitution is nothing more than a statute, despite its legal pedigree and statute-like character.^[67] This includes prominent Australian originalists.^[68] Accordingly, in what follows I focus primarily on the contract view as a source of constitutional formalism, noting where the ability to think of a constitution as a statute helps give a formalist treatment greater credibility.

A defense of originalism grounded in constitutional formalism effectively circumvents the set of objections that judicial restraint-focused defenses of originalism face. First, for the formalist, the judicial imperative to give effect to the original meaning of the written constitution is not driven by a single-minded preoccupation with restraining the expansion of rights, but by a view about the nature of constitutionalism. The objector changes the subject by focusing on the view’s ability to restrain judges. Second, a formalist view denies that a constitution is the sort of thing that lends itself to a moral reading. The objector begs the question by assuming that there is something more to constitutionalism than the written constitution; the objector’s preferred understanding of constitutionalism is then used to challenge the plausibility of originalism as an account of constitutional meaning. Thus resituated, the real source of objection to originalism goes to the appropriate way to characterize a given constitution. But that requires a different kind of argument.

It is not difficult to see why formalism lends itself to an originalist approach. Once it is admitted that a law is its written text, it is difficult to dismiss original meaning out of hand: all laws have a meaning; a law is what it means; thus, if the meaning of the law changes, the law changes.^[69] This appears to make originalism, at least in a broad sense, uncontroversial. The controversy lies in giving an account of a constitution that lends itself to a formalist understanding. Formalist approaches are fairly common and much less controversial for interpreting ordinary legal texts such as statutes and contracts. A standard view found in both the United States and Australia, and indeed much of the common law world, is that judges ought to begin with the plain meaning of the text, discern purpose through structure, and consult extrinsic sources only as evidence of objective (rather than subjective) intent. To appreciate what is at stake, then, it will be helpful to consider the reasons why one who accepts this approach to other written law might nevertheless resist a formalist approach to constitutional interpretation.

To begin with, purely as a descriptive matter, there are reasons to suspect that there is more to constitutionalism than simply the written constitution. Although many constitutions are written documents adopted following a formal drafting convention and ratification process, constitutionalism itself does not depend upon this; Israel and the United Kingdom are two prominent examples. But this point applies even to jurisdictions with written constitutions. As critics of originalism have frequently observed, doctrine and precedent often play a more central role in interpretive practices than the text of a constitution; moreover, constitutional doctrine is frequently derived from natural law-like principles that have no apparent basis in the written constitution.^[70]

A second set of reasons goes to the arguably distinctive role that a constitution plays in a democracy. Constitutions define the legitimate exercise of government power, specifying the basic functions and structure of government. Yet, they are often thought to do more than this, defining basic values and ideals that go to understandings of what it means to constitute a people as self-governing. If one takes this “constitutive” function seriously, the analogy to an ordinary statute is a non-starter. But it also becomes difficult to uphold the contract analogy that otherwise underlies a formalist treatment of a written constitution; a constitution begins to look less like a contract in the sense of a legally binding agreement than what contemporary political philosophers refer to as a “hypothetical contract.” On the latter view, a constitution is fundamentally moral rather than legal, approximating an ideal (as opposed to actual) agreement based on basic normative principles, such as the status of citizens as free and equal. The fact that a constitution is written, then, might only imply that it serves as a “locus for civic justification,” a reference point for arguments about the powers of government and the rights of citizens.^[71] By implication, to the extent that text or original meaning receive any interpretive weight on this kind of view, it is on account of the fact that they play this role in public deliberation.

This second set of reasons for rejecting constitutional formalism goes to the crux of the disagreement between originalists and non-originalists. Even if one accepts that the text of written law is all that ordinary law is, one need not think that the same is true of constitutional law for reasons that reflect its different status. Few legal theorists—even proponents of living constitutionalism—would of course deny that a written constitution has a more basic (legal) significance than the justificatory (moral) role imagined by political philosophers. Still, the collection of reasons given for a written constitution’s significance need not (and often do not) point to a formalist understanding of constitutionalism.

This brings us to the current state of play in the constitutional theory literature. Disagreement about the appropriate characterization of a given constitution may be implicit in the disagreement between originalists and non-originalists, but it certainly has not been front and center in the scholarly debate. Relative inattention to this more basic point of contention, I now want to suggest, is not simply a function of preoccupation with judicial restraint but due to the inherent difficulty in sustaining the formalist thesis in the American context. American experience drives most of the theoretical work in this area, and few, if any, legal scholars doubt that America’s written constitution has special significance. Yet, while the significance of the written constitution has been understood in a variety of ways, the overwhelming majority of those accounts cut against the formalist thesis. Indeed, to the extent that there is any scholarly consensus about the status of the U.S. Constitution as a founding document, it would appear to be that its status cannot be explained in formalist terms. It is thus unsurprising, I submit, that the ability of originalism to address concerns about the usurpation of popular will by an unelected judiciary has been at the forefront of the debate instead.

Even so, attempts to present the American Constitution in a formalist light have often been used to bolster defenses of originalism that otherwise rely on the promise of curbing the activist tendencies of judges. Scalia’s descriptions of the Constitution are exemplary in this regard. He is emphatic, for instance, that it isn’t “philosophical” or “aspirational,” but rather a “pragmatic and practical charter of government” that consists of concrete and specific provisions.^[72] Moreover, Scalia de-emphasizes the importance of rights to the constitutional order, insisting that structural provisions concerning federalism and the separation of powers are the “real” Constitution. “[I]t is a mistake,” he argues, “to think that the Bill of Rights is the defining, or even most important, feature of American democracy.”^[73]

Leaving aside whether this is an attractive way of thinking about the essential or defining functions of a constitution, there can be no doubt that Scalia’s formalist characterization of American constitutionalism sits uncomfortably with both contemporary understandings and the Supreme Court’s own interpretive practices. As already noted, critics of originalism have been quick to point out that doctrine plays a far more central role in adjudicating constitutional issues than the text. American constitutional doctrine is permeated with natural law-like principles with a loose (at best) textual basis; these include prevailing notions of justice and fairness, as well as longstanding principles of governance, such as considerations of democracy or federalism. Some scholars have even suggested that the United States effectively has a “common law” constitution.^[74]

The claim that the text of the written constitution has overriding weight, by contrast, is not only inconsistent with experience but is quite often untheorized, drawing its intuitive appeal from the presumption that the interpretation of written law must always begin with the text—a move that begs the formalism question. To be sure, some scholars have attempted to give priority of the Constitution’s text a firmer theoretical grounding by pointing to the special functions served by writing itself; for instance, it has been argued that writing has an important rule of law function in virtue of “locking in” rules of governance.^[75] However, as a foundation for originalism, this view is subject to a wide range of criticisms.^[76] More to the point, it too is difficult to reconcile with constitutional practice, and in particular with the unique role that the U.S. Constitution is widely thought to play in American political culture.

In short, while there have been attempts to describe American constitutionalism in formalist terms, these accounts are better understood as revisionary and prescriptive rather than offering constitutional theories that make sense of current practice. Given the anti-formalist consensus, more plausible grounds for assigning a special status to the written constitution would appear to be found in public veneration of the document as the product of a revolutionary historical achievement. Even if constitutional doctrine has dramatically changed since the founding, one might argue, the written constitution—itself little changed—is testament to an ongoing commitment to democratic governance and the protection of basic liberties. As such, questioning its status is regarded as sacrilegious, an indication of lack of faith in the constitutional project,^[77] a fact that may also go some way to explaining why the priority of the text is often assumed rather than defended.

This way of accounting for the significance of the written constitution is consistent with the Constitution’s emphasis on rights protection and the “unwritten” elements of American constitutional practice. However, for obvious reasons it fares poorly as a foundation for originalism. It gives a dynamic rather than static significance to original meaning, suggesting that it is the inheritance of particular values, ideals, and aspirations that matters^[78]—not their firm settlement in a legal agreement. It is precisely in this manner that many contemporary American constitutional scholars have transformed originalism into a form of living constitutionalism,^[79] a trend recently referred to as the “new textualism” in constitutional interpretation.^[80] In absence of a compelling formalist account of the American constitution, Scalia and other originalists have thus understandably focused on the view’s promise of judicial restraint instead.

Things are different in Australia. It is far more plausible to think of the Australian Constitution as a legal text, whether predominantly as a statute or as a contract. As Sir Owen Dixon, celebrated jurist and former Chief Justice of the High Court, once put it: “[i]n Australia . . . [w]e conceive a State as deriving from the law, not the law as deriving from a State.”^[81] As a consequence, the defense of originalism in Australia is more closely attached to a formalist conception of constitutionalism than it is to concerns about judicial activism (at least as those concerns are typically understood). In defending his interpretive approach, Heydon has thus relied on the proposition that “the Constitution is a statute, to be construed as a statute”^[82] and equally on the idea that the Constitution is a “compact” or “agreement” that is federal in character. Furthermore, he has maintained that constitutional interpretation, statutory interpretation and the construction of contracts are tasks that not only share common principles but require a virtually identical judicial method.^[83]

To be sure, in Australia too originalism is commonly associated with conservative backlash against rights implied from the text and structure of the Constitution.^[84] However, concerns about judicial activism play out differently in Australia, given the structural orientation of the Australian constitutional system and its more firmly entrenched textualist approach to interpretation.^[85] Originalism is less an attempt to make the Constitution appear formalistic or to deny that it has a broader status as a founding document than it is an attempt to reconcile its formalistic character as a government charter with special considerations thought to distinguish a constitution from ordinary law. Indeed, even Dixon, himself an advocate of “pure legalism,” once remarked that the structural and statute-like character of the Australian Constitution make it “easy to treat the written instrument as the paramount consideration, unmindful of the part played by the general law . . . in determining [its] effect.”^[86] Thus, in addition to originalism’s anti-implication strand, the practice of consulting history is defended equally on the grounds that it mitigates the potentially distorting effects of legalism, which is often criticized for a rigid “literalism” that has, inter alia, led to an expansion of Commonwealth power not contemplated by the Constitution’s framers.^[87] Notably in this regard, Cole v Whitfield, the landmark case permitting the consultation of convention debates alongside other standard historical sources, was a response to perceived failures of overly-literal readings of textual provisions.^[88]

In both its anti-implication and anti-literalist strands, the common logic of originalism in Australia is preserving the constitutional bargain struck between the people of the states at federation. Rights implications are suspect insofar as they upset that bargain, permitting Commonwealth standards to become entrenched as constitutional limits on the legislative power of the states.^[89] Australian originalism is thus not necessarily about preventing broad judicial interpretations of rights. To the contrary, because there are so few explicit rights-guarantees in the Australian Constitution, Heydon has indicated that it is appropriate to read these expansively rather than narrowly if original understanding reflects liberal construction.^[90] Moreover, it is evident that Heydon’s appeal to original meaning is not simply a tool for avoiding the perception of judicial creativity. For instance, his originalism invites the question of what meanings the founding generation “would reasonably have considered they might bear in [the] future,”^[91] and it can reveal that there was no settled meaning at the time of enactment.^[92]

In summary, the American and Australian constitutional traditions both contain powerful reasons for thinking that their respective written constitutions carry special importance. However, whereas the reasons most commonly given for the significance of the U.S. Constitution are at odds with treating it as a text like other legal texts, in Australia it is far more plausible to regard the notion of higher law as reducible to the written constitution. For that reason, the logic of originalism seems more compelling in the Australian context. In the same way that it makes sense to inquire into the objective understanding of legislators when interpreting a written statute, a view long-accepted by the High Court, it makes sense to ask the same about the Constitution’s drafters. By contrast, Scalia’s well-known rejection of inquiries into the purpose or intent of ordinary legislation, and in particular his hard-line stance on excluding drafting history, stands somewhat uncomfortably with his revisionist presentation of American constitutionalism. His position tends to confirm the impression that curbing judicial activism drives his originalism. Otherwise, it suggests that the discontinuity in the interpretive approaches he advocates might be explained in terms of his greater esteem for the founders (as opposed to legislators).

2.2 Perfectionism and the Founding

In absence of a plausible formalist characterization of the Constitution, then, American originalists are left defending their view as an antidote to judicial activism. That puts greater onus on American originalists to rebut the charge that originalism amounts to “ancestor worship.” Yet, while Scalia and his brethren clearly have great reverence for the contributions of the U.S. Constitution’s framers, they generally offer very little in the way of defending the idea that the framers’ views are worthy of respect. This is undoubtedly because of the status the founding has in popular constitutional culture: no argument for the wisdom of the founding generation is needed, because it is widely assumed. As a consequence, there has not been much effort to establish independent grounds—that is, grounds beyond its utility for restraining judges or beyond its relevance to the semantic meaning of the text—for thinking that the founding generation is entitled to authority.

There are several reasons why originalists ought to resist implicit reliance on the status of the founding in popular constitutional culture if they are to give the best defense of their view. In the first place, simply leaving the issue undefended gives the impression that originalism subordinates constitutional commitments to democratic governance to the “dead hands” of the past. Originalists require some account of the reasons that present generations could plausibly have to defer to original understanding; relying on the existence of amendment procedures only pushes the question of deference back one step. Moreover, appealing to popular sentiment is also a highly contingent defense of original understanding: if the founding generation was to fall out of public favor, originalism would no longer have a “hook.” Finally, and most importantly, there are risks in relying on popular constitutional culture to ground original understanding. Doing so opens the door for popular or living constitutionalist reappropriations of originalism much in the same way as originalism’s emphasis on the written constitution has been refashioned for progressive ends by liberal constitutional scholars.^[93]

This brings us to the second thesis concerning the authority of original understanding. More plausible grounds for deferring to the understanding of the founding generation lie in what I will refer to as a “perfectionist” account of the founding. On a perfectionist view, the founding carries great normative weight as the product of intense civic involvement and political deliberation among the group of people most likely to have selected the “correct” (because good or true) rules and principles for guaranteeing popular self-governance. In this sense, original understanding has epistemic authority. Against popular constitutionalism, it is not authoritative because the public esteems the founders, or because the founding plays a role in public deliberation (even if that happens to be the case). The challenge is to explain why the founding generation is more likely than other generations to have gotten it right.

There are two considerations which, taken in conjunction, help account for the epistemic authority of original understanding: purpose and expertise. The first consideration, the founding generation’s “purpose,” appeals to the nature of the founding project itself. To borrow Bruce Ackerman’s terminology,^[94] a constitution’s founding represents the quintessential moment of “higher-lawmaking” and manifestation of “the people.” The founding generation’s commitment to and active engagement with setting up a framework for democratic governance sets them apart from other possible manifestations of the people, which—as Ackerman tells the story—tend to emerge for instances of higher-lawmaking that concern problems more concrete and particularistic, and less all-encompassing and general, than that of the founding.

A critical limitation to the import of the Ackerman view is that once a constitution is in place, higher-lawmaking can only take place through the constitution’s formal procedures of amendment, and not through the informal track that it is the primary aim of Ackerman’s work to defend. The perfectionist thesis provides an additional and independent reason for giving primacy to the written constitution, which supports this stance on amendment procedures. Namely, the act of putting rules of governance in writing reflects a more thoughtful, intense, and deliberate process of law-making than rules that emerge through convention and practice.^[95] Formal amendment procedures are thus entitled to deference on the same epistemic grounds as other written provisions, irrespective of whether they are worthy of respect by some independent measure (whether it be rule of law considerations that favor putting rules in writing or populist considerations that favor giving weight to social values). Accordingly, so long as a written constitution is in place there is one (and only one) relevant manifestation of the people for the purpose of determining constitutional meaning.

The second consideration that helps account for the epistemic authority of original understanding has to do with personal characteristics and traits that distinguish the framers from other constitutional actors. Here Australian practice is particularly illuminating. Unlike American originalists, Australian originalists do not have a ready-made appeal to the authority of the framers; instead, they have emphasized the unique “expertise” of the framers and the relevance of that expertise to the project of federation. This is explicit in the originalism that Heydon defends and practices. As Heydon describes his interpretive method, consulting historical materials is:

pointless unless, in general, the meaning of an expression in the Constitution . . . comprises the meanings which skilled lawyers and other informed observers of the federation period would have attributed to it, and . . . the meanings which those observers would reasonably have considered it might bear in future.^[96]

This not a casual aside: all of Heydon’s references to the founding single out an educated legal and political elite with a specialized understanding of the concepts and principles under consideration. His originalism draws on the usages of “skilled lawyers and other informed observers,”^[97] debates that “[t]he most distinguished lawyers and political thinkers . . . attended and participated,”^[98] the views of “prominent writers at the time,”^[99] and “other materials reflective of the views of distinguished lawyers contemporary with the federation period, or persons acquainted with those views.”^[100] In short, the framers’ understanding is entitled to respect because of the expert knowledge and unique practical experience they brought to bear, and that only they were in a position to bring to bear, on the set of issues falling within the higher-lawmaking project.

So far, my claim has been that perfectionism provides originalists with more plausible grounds for deferring to original understanding than simply relying on popular reverence for the founding generation. The latter strategy would not even be an option in the Australian context, nor indeed in most countries outside the United States, and in any case it is better avoided. Taken together, the purpose and expertise of the framers provide a source of the authority of original meaning that is both consistent with originalist concerns and that meets the “ancestor worship” charge head-on instead of changing the subject to judicial restraint. Nevertheless, there are two important challenges to the perfectionist thesis that must be taken into consideration. Both challenges appear to present a greater problem for the defense of originalism in the United States than for the defense of originalism in Australia. For, as with the formalism thesis, perfectionism requires viewing a constitution as a legal agreement, whether manifest as a statute or a contract; the moment the founding is understood in any broader sense—for instance, as selecting a community’s basic moral commitments—it becomes difficult to sustain the view that the framers are entitled to epistemic authority on either basis.

Turning to the first challenge, there is a question as to how to accommodate constitutional amendments that enact a new set of “original” understandings against the understandings of the framers. The Reconstruction Amendments in the United States^[101] and the referendum to amend the race power in Australia to include Aboriginal Australians among those racial groups for whom Commonwealth laws can be made^[102] are two cases that present this challenge to the perfectionist thesis as a source of the authority of original meaning. In the former case, critics have argued that the Supreme Court’s relatively narrow reading of the Fourteenth Amendment’s equal protection clause (for example, to apply only to government action and to hold that all race-based classifications are constitutionally suspect) has impermissibly allowed a formalistic conception of equality from an earlier era to override a more substantive conception of equality found in the Reconstruction vision, defeating legislative reforms aimed at rectifying entrenched social hierarchies.^[103] In the latter case, critics have argued that the High Court’s strict textual reading of the Race Power amendment to uphold laws that burden Aboriginal Australians goes against the understanding of voters who supported the constitutional referendum,^[104] which was that its purpose was to benefit Aboriginal Australians.^[105]

Both cases present the question of how far the idea that the founding generation is a manifestation of “the people” par excellence can go to justify binding the understanding of “the people” who adopt the amendment by the original understanding of the founding generation. Although this presents a challenge for the defense of originalism in both jurisdictions, the lack of a central founding moment in Australia makes it less difficult to reconcile constitutional amendments with a perfectionist view of the founding. Because they do not obviously operate against the notion of a sovereign Australian “people,” amendments leave the essential character of the Constitution as a compact between the states in tact. Moreover, for better or worse, the Race Power amendment was not accompanied by a sense of constitutional “crisis” that might have signaled the need to define or constitute the Australian people.^[106]

In the United States, by contrast, the authority of original understanding is far more difficult to sustain on perfectionist grounds. Popular sovereignty is held to be the source of constitutionalism and both the founding and reconstruction are generally understood to have defined (or redefined) a self-governing American people.^[107] This presents a deeper problem than simply reconciling one set of “original understandings” with another; if it can be shown that the American people were reconstituted around a more demanding notion of equality, it would have implications beyond slavery and the racial inequalities that were the subject of the Reconstruction Amendments. If it is correct to think that reconstruction “reconstituted” the American people, in other words, the original understanding of the Constitution established at the founding is arguably no longer valid, or else no longer valid on all aspects of the Constitution. At the very least, this weakens the case for the epistemic authority of the founding generation.

The second and more pressing challenge to the perfectionist thesis lies in reconciling the claimed wisdom of the framers with views they held that are blatantly inconsistent with contemporary values, and yet which appear to bear on the meaning of constitutional terms. While offending views can be found among both sets of founders, this challenge too presents a much greater difficulty for American originalists. Rights-protection is a central feature of American constitutionalism, and the vague and morally-loaded language of the Constitution’s rights provisions make it far more difficult to rule out the relevance of popular understandings. This difficulty is compounded by the common usage of constitutional language in public debate. As such, attempting to characterize the founding in a perfectionist manner is likely to present the U.S. Constitution in an anti-democratic light.

That said, it is not entirely descriptively implausible to think of the U.S Constitution in this manner. Many of the founders were fundamentally suspicious of popular rule, and thus consciously designed the Constitution to be less democratic than the experiments in self-governance that preceded it. Their correctives included strong antimajoritarian and antipopulist elements, which set limits on majority rule and created a role for deference to a political elite. This is all well-known: commentators from the time of ratification^[108] up to the present day^[109] have questioned the Constitution’s democratic credentials on precisely these grounds. Nevertheless, in making this latent elitism visible, a perfectionist account of the founding stands in tension with the desire to describe American constitutionalism (and interpretation of the Constitution) in terms of its commitment to democracy. For that reason, it seems likely to meet objections.

In Australia, on the other hand, a perfectionist characterization of the founding generation is far less objectionable. Australian originalists can plausibly disregard lay-perspectives not only because of the lack of a popular constitutional culture but, more fundamentally, because of the character of the constitution itself. The Australian Constitution is a highly technical, legalistic document; as such, it does not readily lend itself to importing popular understanding. In the first place, most constitutional terms are drawn from legal concepts or terms of art. For instance, the Constitution grants the Commonwealth power to make laws for “peace, order, and good governance” with respect to a list of enumerated subjects.^[110] The ordinary meaning of that phrase appears to limit legislative power, implying that Commonwealth laws are subject to judicial evaluation for their conformity with substantive goals or values. In fact, however, at time of federation “peace, order, and good governance” was a well-known term of art used by the Privy Council that had the opposite meaning: a grant of plenary power with respect to enumerated subjects.^[111]

Moreover, because the dominant character of the Constitution is that of a bargain struck between the people of the states, even less technical terms may need to be understood in the context of federation. For example, Section 92 states that “trade, commerce, and intercourse between the states . . . shall be absolutely free.” The ordinary meaning of that phrase might be taken to imply substantial restrictions on the power of both the Commonwealth and the states to regulate in this area. It is on this basis that the view that Section 92 protects an individual right to free trade gained prominence for a period of time, an interpretation that is now widely agreed to have taken jurisprudence in this area off course.^[112] In 1988, the High Court finally overruled that view of Section 92 in an originalist decision that endorsed reference to the convention debates.^[113] The Court held that the individual right view was inconsistent with the objectives of the federal compact, and that a narrower reading of the provision as guaranteeing a system of free trade—in effect, a prohibition on discriminatory and protectionist laws—was the intention of the contracting parties.

These considerations give support to the view that only the understandings of those engaged with the project of federation have interpretive weight. In principle, however, lay perspectives might have a supporting role to play when addressing issues of constitutional meaning that are not of that character—that is, terms that are both non-technical and less central to the constitutional bargain. Consider Forge v ASIC,^[114] which concerned the constitutional meaning of “court” under Chapter III, the section of the Constitution dealing with judicial power. Heydon primarily relied on the views of “well-informed lawyers” among the framers to conclude that the practice of appointing “acting judges” to tribunals falls within that meaning, finding the fact that two drafters had served as appointed judges themselves to be particularly persuasive.^[115] Nevertheless, in determining whether this practice created the appearance of corruption—an important factor in determining what constitutes a valid exercise of judicial power—he suggested that “estimations of . . . reasonable bystanders” may be the better measure.^[116]

We know that Scalia, like Heydon, assumes that most constitutional interpretation involves terms that have legal meanings (often technical legal meanings) rather than moral meanings. However, as I have already shown, this is a far more plausible characterization of the Australian Constitution than the U.S. Constitution. As a consequence, American originalists face pressure to grapple with the question of why popular understandings don’t count in a way that Australian originalists do not. This is the sense in which the two theses are connected: both depend on the ability to characterize a constitution as a legal text. The comparative analysis suggests that Australia—with its lack of a central founding moment or popular constitutional culture, and its predominantly structure-oriented constitutional system—is a more natural fit for originalist interpretation. Ironically, what the analysis also suggests is that despite the power of originalist thought in American popular constitutional culture, it is the American system’s hostility to popular understandings (implicit in a perfectionist reading of the founding) that appears to present the best case for the authority of original meaning.

3. Conclusion

The popularity of a given interpretive view is one thing; its soundness as a theory of constitutional interpretation is another. Although originalism has seemed as though it best fits a constitutional system like the American one, that is only because of the attention that originalism has received from American constitutional scholars and members of the American public. Once the features of American constitutionalism that account for the popularity of originalism in the United States are stripped away, it is clear that these features do not offer the best defense of the view. To the contrary, they have led to the transformation of the view to suit anti-originalist purposes, such as advent of “living originalism.” The comparative analysis offered in this paper has not only demonstrated that originalism has firm footing on Australian turf, but it has shown that the features of the Australian constitutional system that are most at odds with standard assumptions about what makes originalism an attractive theory of constitutional interpretation in fact allow for a far more plausible defense of the view.

This somewhat surprising conclusion has important implications for the debate about originalism. As indicated at the outset, however, the objective of this paper has not been to defend originalism but rather to show how American controversies over judicial activism have influenced the terrain of the debate. The argument presented here shows why it is counterproductive to evaluate originalism as a view that is narrowly concerned with limiting the judicial expansion of rights. For one thing, it oversimplifies the view. More critically, it obscures the source of disagreement between originalists and non-originalists. To be sure, originalists generally are concerned about expansive judicial interpretations of rights; but this should be understood as reflecting a view about the proper role and function of a constitution rather than a stand-alone concern. Attention to this set of issues would better serve the exchange between originalists and non-originalists. For instance, it could potentially explain why originalists are less wary of “activist” interpretations of federalism and separation of power provisions than rights provisions. While this stance is usually dismissed as hypocritical and politically motivated by American critics, it is consistent with the position defended here—that originalism is better understood as theoretically grounded in a view of a constitution’s founding as a legal agreement about the basic rules and structure of collective governance.

This is what comparativism tells us about originalism. But the comparative study of originalism also has broader implications for theoretical work on constitutional interpretation and judicial review, and for the role of comparative constitutional law. The most important lesson is that assumptions about constitutionalism need to be given more attention in both the development and analysis of theories of interpretation and judicial review as a general matter. Scholarly debate often proceeds as if the central conflict that interpretive theories must resolve is between judicial rights protection and majority rule, or the so-called “countermajoritarian” difficulty. Moreover, popular views about the constitution and constitutional terms are often thought to hold the key to mediating this conflict. This assumes that a democratic constitution is fundamentally about rights-protection, and that it functions primarily by demarcating certain domains beyond the reach of political debate and decision-making. It also assumes the existence (and relevance) of a popular constitutional culture. Whether or not this is an accurate description of American constitutionalism, it certainly does not describe a global or necessary truth about constitutional systems.

Insofar as comparativism puts assumptions about the structure and purpose of constitutionalism front and center, it has a potentially significant contribution to make to constitutional theory in this area. Although anxiety about judicial rights protection and the place of popular constitutional culture have played an important role in the development of theories of constitutional interpretation in the scholarly literature, these are both concerns grounded in American constitutional practice that may or may not have an analogue in other jurisdictions. Comparative approaches that, without justification or explanation, simply leave these concerns in tact—or, worse, rely on them as starting points that define the view under consideration—are of limited utility to scholarship that seeks to establish the underlying logic of a particular theory of constitutional interpretation or to find the best grounds for its defense. That project requires, at minimum, being open to the possibility that features commonly associated with the articulation and defense of that interpretive theory reflect local preoccupations rather than foundational necessities. Ideally, it also calls on a broader assessment of the status and role of the constitution being interpreted in the context of that jurisdiction’s constitutional practices. As the case of originalism illustrates, a comparative perspective can assist in both of these tasks by bringing assumptions about constitutionalism that have influenced the development and defense of a given theory of constitutional interpretation into plain view.

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^[*] Centre for Comparative Constitutional Studies, Melbourne Law School. I am indebted to Adrienne Stone, Jeff Goldsworthy, Cheryl Saunders, Ros Dixon, Farrah Ahmed and Dale Smith for their thoughtful discussions and helpful comments on earlier drafts of this paper.

^[1] The definitive statement of Scalia’s interpretive view is in A MATTER OF INTERPRETATION (A. Guttman ed. 1998) (hereafter “MI”). The most recent elaboration can be found in READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012) (co-authored with Bryan A. Garner). See also The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989); Originalism: The Lesser Evil, 57 U. CINN. L. REV. 849 (1988).

^[2] Morrison v. Olson, [1988] USSC 155; 487 U.S. 654, 712 (1988) (Scalia, J., dissenting).

^[3] On the Origins of Originalism, 88 TEX. L. REV. 1 (2009). Greene’s two comparative cases are Australia and Canada.

^[4] Andrew Clark, Judgement Days, AUSTRALIAN FINANCIAL REVIEW, Apr. 28, 2006, at 1.

^[5] Judicial Activism and the Death of the Rule of Law, 47 QUADRANT 9 (2003), reprinted in [2004] OtaLawRw 2; 10 OTAGO L. REV. 493, 505, 514 (2003).

^[6] David Soloman, A courtly brawl, COURIER MAIL, Feb. 27, 2003, at 15. Mason launched his counter-attack in a February 21, 2003 speech, given about a month after Heydon joined the Court, at the Parliament House in Sydney, The Centenary of the High Court, 5 CONST. LAW & POLICY REV. 41 (2003). A speech delivered in Adelaide later that year echoed the same remarks, Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary?, [2003] AdelLawRw 4; 24 ADEL. L. REV. 15 (2003).

^[7] Rowe v Electoral Commissioner (2010) HCA 46, para. 303.

^[8] Heydon retired in March 2013, just before his 70th birthday (the mandatory retirement age for High Court Justices, AUSTRALIAN CONSTITUTION s 72).

^[9] Andrew Lynch & George Williams, The High Court on Constitutional Law: The 2011 Statistics, [2012] UNSWLawJl 33; 35 U.N.S.W.L.J. 846 (2012).

^[10] See e.g. Rowe, supra note 7 (declaring invalid an electoral law that reduced the amount of time electors have to enroll before an election on the grounds that it offended the constitutional requirement that members of Parliament be "directly chosen by the people"); Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) HCA 32 (declaring invalid a government policy to send asylum seekers to Malaysia on the grounds that Malaysia did not meet basic human rights guarantees).

^[11] Ainslie Van Onselen, Heydon pulls no punches as lone dissident on Malaysia, THE AUSTRALIAN, Sept. 2, 2011, at 33.

^[12] Heydon, for his part, rejects borrowing from foreign jurisdictions; so he, at least, does not view his originalist interpretive method in this manner. See e.g. Momcilovic v The Queen (2011) 245 CLR 1, 183 (holding that the use of foreign sources is contrary to the function and character of courts vested with federal jurisdiction); Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45, 139-140 (holding that foreign sources are irrelevant unless they influenced the drafting of the Constitution).

^[13] I.e., textualism is not to be confused with a crude “literalism.”

^[14] I adopt this terminology from Lawrence B. Solum’s “fixation thesis.” Semantic Originalism (Ill. Public Law Research Paper No. 07-24, 2008), available at http://ssm.com/abstract-l 120244.

^[15] Heydon earned his reputation as a distinguished scholar and practitioner for his work on “black letter” law subjects. Howard stamp on High Court, SYDNEY MORNING HERALD, Dec. 21, 2002, at 24. At age 30, Heydon was the youngest person ever to become Professor of Law at the University of Sydney, and was elected Dean from 1978 – 1979. He is best known for his work in the law of equity, evidence and economic torts. Immediately prior to his appointment to the High Court, Heydon served as a judge on the New South Wales Court of Appeal from 2000 – 2002, during which time he would have seen few constitutional cases. The closest indication of his formalist impatience for purposive and value-based arguments was an exhortation to an appellant that: “The purposes of the legislation no doubt include the purpose that its own provisions . . . should be obeyed.” Melville v Craig Nowlan and Associates Pty Ltd (2002) NSWCA 32, para. 107.

^[16] This comment came from then Deputy Prime Minister Tim Fischer following the controversial Pastoral Leases case, which upheld native title claims on land with pastoral leases. Wik Peoples v Queensland (1996) 187 CLR 1. See Clark, Judgement Days, supra note 4.

^[17] Mabo v Queensland (No 2) (“Mabo case”) (1992) 175 CLR 1; Pastoral Leases case, id.

^[18] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

^[19] Sir Anthony Mason, The Role of a Constitutional Court in a Federation - A Comparison of the Australian and the United States Experience, 16 FED. L. REV. 1, 5 (1986) (“courts interpreting [constitutions] must take account of community values”). Although not a constitutional case, the Court’s recognition of native title in the Mabo case, supra note 16, at 42 (Mason, C.J. & McHugh, J.), is exemplary. There, his Honor referred to the Court’s duty to update the common law in light of the “expectations of the international community” and the “contemporary values of the Australian people.”

^[20] See Michael McHugh, The Constitutional Jurisprudence of the High Court: 1989-2004, 30 SYDNEY L. REV. 7, 10-12 (2008) (citing changes in Australian society due to globalization as a key influence on the Mason Court’s jurisprudence). The approach taken in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, prior to his Honor’s appointment to Chief Justice, confirms this reading of Mason, J.’s jurisprudence. In Koowarta the Court upheld the Racial Discrimination Act as a valid exercise of Commonwealth legislative power by giving a broad interpretation to the external affairs power (s 51(xxix)). Siding with the majority, Mason, J. held that a broad reading of s 51(xxix) is necessary on the grounds that Australia’s international reputation requires the ability to give effect to its obligations under human rights treaties to which it is a signatory. Id. at 222-234.

^[21] Heydon has only three publications on interpretive method. One Small Point about Originalism, 28 U. QUEENSLAND L.J. 17 (2009); Theories of Constitutional Interpretation: A Taxonomy, BAR NEWS 12 (2007); and Judicial Activism and the Death of the Rule of Law, supra note 5. The most well-known Australian defender of originalism in scholarly circles is Jeffrey Goldsworthy. See e.g. Originalism in Constitutional Interpretation, 25 FED. L. REV. 1 (1997). While his is no doubt among the most well-developed theories of originalism available, in Australia or elsewhere, the trouble with relying on Goldsworthy’s “moderate originalism” for my purposes is that it doesn’t provide a good comparative baseline for the central question at issue. The modest role for history and original understanding that Goldsworthy ultimately defends means that, arguably, any plausible interpretive theory is originalist.

^[22] This project has all of the usual limitations and disadvantages that accompany reconstructions of this sort, and leaves to the side whether Heydon would likely defend such a view if pressed. Even so, it bears noting that Scalia has not been a perfect practitioner of the view he defends in writing. See e.g. Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. HAW. L. REV. 385, 385 (2000); Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953, 968 (1999).

^[23] See note 8, supra.

^[24] Heydon even cites Scalia on occasion. See e.g. Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 144.

^[25] Pape, id. at 148 (“Reference to history is not permitted for the purpose of substituting for the meaning of the words used in the Constitution the scope and effect which the framers subjectively intended the Constitution to have.”) Cf. Scalia, MI, supra note 1, at 38.

^[26] New South Wales v Commonwealth (“Work Choices case”) [2006] HCA 52; (2006) 229 CLR 1, 97-98.

^[27] Saaed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252, 277.

^[28] Attorney General (Victoria) v Andrews [2007] HCA 9; (2007) 230 CLR 369, 434; Work Choices case, supra note 25, at 311, 319; Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 424-25.

^[29] White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570, 650; Work Choices case, supra note 25, at 97-98; Singh, id. at 385-86.

^[30] Byrnes v Kendle (2011) HCA 26, para. 95-96. Cf. Scalia, MI, supra note 1, at 122 (“[t]he text is the law, and it is the text that must be observed.”)

^[31] See e.g. Heydon, Judicial Activism, supra note 5; Scalia, MI, supra note 1, at 17.

^[32] Origins of Originalism, supra note 3.

^[33] Id. at 5, 19.

^[34] Reva B. Siegel, Heller & Originalism's Dead Hand - In Theory and Practice, 56 UCLA L. REV. 1399, 1399 (2009).

^[35] Origins of Originalism, supra note 3, at 41.

^[36] This is a point about comparative method. I do not mean to deny that how and why originalism has come to be a rallying ground in American public opinion is an interesting inquiry in its own right. However, that question strikes me as better explored through empirical methods, such as the work on public opinion that Greene has pursued elsewhere. See Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, Profiling Originialism, 111 COLUM. L. REV. 356 (2011); Jamal Greene, Selling Originalism, 97 GEO. L.J. 657 (2009).

^[37] Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 548-549 (2006).

^[38] [1954] USSC 42; 347 U.S. 483 (1954).

^[39] Raoul Berger, GOVERNMENT BY THE JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); Robert H. Bork, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990); Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971).

^[40] Johnathan O’Neill, The Return of Originalist Analysis in the Warren Court Era, ORIGINALISM IN AMERICAN LAW AND POLITICS 67-93 (2005).

^[41] COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900 (UK).

^[42] Australia Act 1986 (Cth), Australia Act 1986 (UK). See generally Cheryl Saunders, THE CONSTITUTION OF AUSTRALIA: A CONTEXTUAL ANALYSIS 60 (2011).

^[43] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54; (1920) 28 CLR 129, 142.

^[44] On the ratification process, see J. A. La Nauze, THE MAKING OF THE AUSTRALIAN CONSTITUTION (1972).

^[45] As Saunders observes, “[t]he status of Australia at the time of federation . . . left the idea of its people oddly inchoate.” Supra note 41, at 27. See also Jeremy Kirk, Constitutional Interpretation and a Theory of Evolutionary Originalism. 27 FED. L. REV. 323, 338-42 (1999).

^[46] In Australia, proposals for constitutional amendments are first passed by both houses of Parliament (or twice by one house) and then submitted to the Australian people for a referendum; at referendum, proposed amendments must receive a overall majority of votes and receive a majority of votes in more than half of the states. AUSTRALIAN CONSTITUTION s 128.

^[47] See Jeffrey Goldsworthy, Constitutional Cultures, Democracy, and Unwritten Principles, 2012 U. ILL. L. REV. 683, 685 (2012) (reviewing Jack M. Balkin, LIVING ORIGINALISM). Goldsworthy makes the point that popular constitutionalist adaptations of originalism seem bizarre from an Australian perspective.

^[48] At least as recently at 1992, that number was 33 percent of the population. See Stephen Donaghue, The Clamour of Silent Constitutional Principles, 24 FED. L. REV. 133, 146 n.87 (1996). A marginally more recent study suggests that only 18 percent of the population has some awareness of the contents of the Constitution, and notes that some Australians (younger Australians in particular) have a greater awareness of the American Constitution. See Civics Expert Group, WHEREAS THE PEOPLE: CIVICS AND CITIZENSHIP EDUCATION (1994).

^[49] The Constitution contains four explicit rights provisions: compensation for the Commonwealth acquisition of property, (s 51(xxxi)); trial by jury (s 80); freedom of religion (s 116); and freedom from discrimination on grounds of state residence (s 117).

^[50] The first three chapters of the Constitution set out the structure and powers of the three branches of the Commonwealth government: The Parliament (Ch. 1), The Executive (Ch. 2), and The Judicature (Ch. 3). The remaining chapters concern: Finance and Trade (Ch. 4), The States (Ch. 5), New States (including territories) (Ch. 6), the location of the capital city (“Miscellaneous”) (Ch. 7), and amendment procedures (Ch. 8).

^[51] See generally Jeffrey Goldsworthy, Australia: Devotion to Legalism, INTERPRETING CONSTITUTIONS (J. Goldsworthy, ed.) 106-160 (2006).

^[52] R v Barger [1908] HCA 43; (1908) 6 CLR 41, 68 (Griffith, C.J., Barton & O'Connor, J.J.)

^[53] Tasmania v Commonwealth & Victoria [1904] HCA 11; (1904), 1 CLR 329, 358-360 (O'Connor, J.) Justice O’Connor was a member of the constitutional committee.

^[54] King v Jones [1972] HCA 44; (1972) 128 CLR 221, 229 (Barwick, C.J.)

^[55] See Jeffrey Goldsworthy, Originalism, supra note 20, at 12-19 (describing the High Court’s methodology as a “moderate originalism.”)

^[56] This is not to deny that consulting history and referencing the founding for broader interpretive purposes has always been a common practice. However, despite other measures of the view’s popularity, relatively few members of the U.S. Supreme Court have been proponents of originalism in the stricter sense that I’m interested in here. Besides Scalia, this arguably only includes former Justice Hugo Black, former Chief Justice William Rehnquist, and current Justice Clarence Thomas.

^[57] Saunders, supra note 41, at 90-91.

^[58] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 41.

^[59] Justice Callinan’s dissent in the Work Choices case, supra note 25, at 246-385, a controversial federalism decision, and Justice Heydon’s dissent in Rowe, supra note 7, at para. 267-315, a case where the majority judgment relied heavily on rights implications, are both excellent examples of this originalist reinvigoration of legalist interpretive method.

^[60] Pape, supra note 23, at 143-145 (Heydon, J.); Scalia, MI, supra note 1, at 37.

^[61] Originalism: The Lesser Evil, supra note 1.

^[62] MI, supra note 1, at 45.

^[63] Lesser Evil, supra note 1, at 855.

^[64] MI, supra note 1, at 146; Lesser Evil, id. at 861.

^[65] Id. at 864.

^[66] Id. at 855.

^[67] See discussion immediately preceding and following note 42, supra. It is common to refer to the Constitution as a “compact” or as the “federal compact.”

^[68] See e.g. Goldsworthy, Devotion to Legalism, supra note 50, at 106-107 (noting that the idea that the “Constitution is not only a statute, but a compact between the peoples of the states” has been accepted by the High Court since at least 1920).

^[69] See Goldsworthy, Originalism, supra note 20, at 9-10; Interpreting the Constitution in Its Second Century[2000] MelbULawRw 27; , 24 MELB. U. L. REV. 677, 684 (2000); Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 429-432 (2007).

^[70] See e.g. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975); Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REV. 844 (1978).

^[71] This view is defended by political philosopher Samuel Freeman. Original Meaning, Democratic Interpretation, and the Constitution, 21 PHIL. & PUB. AFF. 3, 37 (1992).

^[72] Scalia, MI, supra note 1, at 133-34. He concedes that the Prologue is a possible exception.

^[73] Foreword: The Importance of Structure in Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417, 1417 (2008).

^[74] See e.g. David A. Strauss, THE LIVING CONSTITUTION (2011); Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).

^[75] This view is defended by Randy E. Barnett, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004). Briefly, Barnett’s claim is that “writtenness” uniquely serves to constrain government interference with individual liberties; in his view, this mandates textualist originalism.

^[76] The trouble is that is isn’t clear that putting a constitution in writing serves this function at all; and even if it does, there are other methods of “locking in” rules than originalism. See Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. PA. L. REV. 1025 (2010); Eduardo M. Peñalver, Review: Restoring the Right Constitution?[2007] YaleLawJl 3; , 116 YALE L.J. 732 (2007).

^[77] See e.g. Jack M. Balkin, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011); Sanford Levinson, CONSTITUTIONAL FAITH (1988); Thomas Grey, The Constitution as Scripture, 37 STAN. L. REV. 1 (1984). Jamal Greene suggests that this “scriptural” attitude toward the constitution is one reason that originalism has taken hold in the way it has in the United States. Origins of Originalism, supra note 3, at 78-82. My point is that this also makes the view less plausible in its textualist incarnation.

^[78] This kind of view is defended by Laurence H. Tribe in response to Scalia. Comment, in MI, supra note 1, at 65-94.

^[79] See Jack M. Balkin, LIVING ORIGINALISM (2011).

^[80] James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523 (2011) (referring primarily to the work of Akhil Reed Amar and Jack Balkin).

^[81] Sources of Legal Authority, JESTING PILATE 199 (1965).

^[82] Pape, supra note 23, at 145.

^[83] Byrnes, supra note 29, at para. 90-118.

^[84] The freedom of political communication has been a prime target. See Jeffrey Goldsworthy, Constitutional Implications Revisited, [2011] UQLawJl 2; 30 U. QUEENSLAND L.J. 9 (2011). The High Court implied the freedom of political communication from textual provisions guaranteeing representatives “chosen by the people,” AUSTRALIAN CONSTITUTION secs. 7, 24. ACTV, supra note 17; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

^[85] Tanya Josev, The Late Arrival of the “Judicial Activism” Debate in Australian Public Discourse, 24 PUB. L. REV. 17 (2013).

^[86] Id. As this quotation indicates, there is evidence that despite his commitment to legalism, Dixon was sometimes attracted to an unorthodox view of constitutionalism that both rejected parliamentary supremacy and made unwritten rule of law and common law principles the ultimate foundation. See Michael Wait, The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited. 29 FED. L. REV. 57 (2001). Thus while he clearly held the view that the written constitution plays a different role in the Australian system than it does in the American system, it is not fair to say that Dixon thought that Australian constitutionalism is reducible to the written constitution.

^[87] For a survey of these criticisms and an argument that “progressivism” and “intentionalism” offer partial correctives, see Greg Craven, The Crisis of Constitutional Literalism in Australia. 30 ALBERTA L. REV. 492 (1992).

^[88] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385. See also the discussion immediately following note 110, infra. Although reference to the convention debates was formally prohibited prior to Cole, other historical sources were frequently used to discern objective intent. See Goldsworthy, Originalism, supra note 20, at 15.

^[89] See e.g. Rowe, supra note 7, at para. 311 (“The question is not whether an impugned legislative provision regresses from some higher standard established by the status quo. It is only whether it fails to meet a constitutional criterion. Legislative development, durable or otherwise, does not create constitutional validity or invalidity which would not otherwise exist. Otherwise the legislature could enact itself into validity.”)

^[90] ICM Agriculture [2009] HCA 51; (2009) 240 CLR 140, 211 (construing the property clause, s 51(xxxi), by appeal to the “centrality” of property rights to the “liberal creed” at the time of the founding); JT International SA v Commonwealth (2012) HCA 43, para. 193 (citing ICM Agriculture and reiterating s 51(xxxi)’s “extreme importance”).

^[91] Rowe, supra note 7, at para. 303; XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532, 584.

^[92] Wong v Commonwealth (2009) 236 CLR 573, 651.

^[93] See discussion in the paragraph immediately following note 76, supra.

^[94] WE THE PEOPLE: FOUNDATIONS (1991).

^[95] See e.g. Mark D. Walters, Written Constitutions and Unwritten Constitutionalism, EXPOUNDING THE CONSTITUTION (G. Huscroft, ed.), 246, 273 (2008).

^[96] XYZ, supra note 90, at 584.

^[97] Id. at 585.

^[98] Id. (on the authority of the House of Commons debates on the Commonwealth of Australia Constitution Bill (1900)).

^[99] Id. at 587 (on the authority of Quick & Garran and W. Harrison Moore).

^[100] Id.

^[101] U.S. CONSTITUTION Amends. XIII, XIV, XV.

^[102] Ch. 1, s 51(xxvi) of the Constitution originally provided that: “The Parliament shall . . . have the power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . [t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.” There is no question that the race power was intended to permit racially discriminatory legislation; indigenous peoples were expressly excluded only because indigenous affairs were regarded as a matter for the states. The 1967 referendum struck the exception clause from s 51(xxvi), leaving the rest of the provision in tact, and it eliminated s 127, which had provided that “aboriginal natives shall not be counted” among the population of the Commonwealth. The referendum passed with the overwhelming support of 90 percent of Australians, most of whom no doubt expected it to have the effect of remedying defects in the states’ handling of indigenous affairs by giving the Commonwealth power to legislate in that area. However, because no express language declaring the intent and scope of the race power was included in the amendment, it ironically left the door open for racially discriminatory legislation burdening indigenous peoples. See George Williams, The Races Power and the 1967 Referendum, 11 AUSTL. INDIGENOUS L. REV. 8 (2007).

^[103] The ongoing debate about affirmative action is an excellent example. There is evidence that drafters and members of the public at the time the Reconstruction Amendments were adopted anticipated the use of affirmative action like programs to advance the progress of black Americans. See Stephen A. Siegel, The Federal Government's Power to Enact Color Conscious Laws: An Originalist Inquiry, 92 NW. U. L. REV. 477 (1998). Yet, Scalia has consistently held that there can be no compelling government interest in using racial classifications to rectify past injustices. See e.g. Adarand Constructors, Inc. v. Pena, [1995] USSC 57; 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (“To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.)

^[104] On the referendum process, see note 45, supra.

^[105] The High Court addressed the scope of the amended race power in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337. Only four justices wrote judgments addressing the Race Power issue. Gummow and Hayne, J.J. held that it permitted racially discriminatory laws terminating a previous benefit to indigenous peoples; Kirby, J. held that it did not; and Gaudron, J. held that the language of “necessity” in s 51(xxvi) implies that such laws should be subject to a rigorous proportionality analysis, meaning that few if any laws burdening Aboriginal Australians would be permissible.

^[106] Here I borrow Sujit Choudhry’s “constitutional crisis” reading of Ackerman’s “constitutional moments.” Ackerman's Higher Lawmaking in Comparative Constitutional Perspective: Constitutional Moments as Constitutional Failures, 6 INT’L J. CONST. L. 193 (2008).

^[107] See e.g. Bruce Ackerman, FOUNDATIONS, supra note 93; WE THE PEOPLE: TRANSFORMATIONS (1998).

^[108] Large electoral districts, an elite upper house, and an unelected judiciary were among the features objected to. This was not lost on the public at the time of ratification; political satirists urged that “while ‘indulg[ing]’ the people in ‘something like a democracy,’ the wise drafters of the federal Constitution had ‘guard[ed] against every possible danger’ of actual popular control.” See Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, [2006] HarvLawRw 66; 119 HARV. L. REV. 2387, 2392-2393 (2005).

^[109] See Robert A. Dahl, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2002); Sanford Levinson, OUR UNDEMOCRATIC CONSTITUTION (2008).

^[110] AUSTRALIAN CONSTITUTION s 51.

^[111] This is the principal example Jeffrey Goldsworthy uses to defend originalist interpretation of the Australian Constitution. The Case for Originalism, THEORIES OF CONSTITUTIONAL INTERPRETATION, G. Huscroft & B. W. Miller (eds.), 42-69 (2011). For a discussion of these precedents by the High Court, see Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1.

^[112] See Leslie Zines, THE HIGH COURT AND THE CONSTITUTION (4th ed.) 118-23, 124-35 (1997).

^[113] Cole v Whitfield, supra note 87. As described in the accompanying text, Cole also formally permitted reference to the convention debates for the first time precisely on the grounds that such terms must be understood in the context of federation.

^[114] Supra note 11.

^[115] Id. at 141-46.

^[116] Id. at 148-149.