The Constitution as a box of chocolates?
In the course of his response to my rant on "law and economics", John Quiggin
mused in passing about approaches to the interpretation of law:
"I'm not a big fan of judicial legislation, though I dislike even more the kind of spurious literalism that allowed people like Garfield Barwick to impose their own political views while posing as conservatives. I prefer an 'original intent' approach to the interpretation of the law, with sensible modification in the light of changing social and technological conditions."
I presume John mostly has in mind Barwick's "literalist" interpretation of the old section 260 (from memory) of the Income Tax Assessment Act
(the principal tax avoidance provision at the time). Barwick's interpretation was in reality a blatantly political exercise, masquerading as "literal interpretation" while ignoring the manifest intention of the legislators. He succeeded in effectively gutting the ITAA, and is fondly remembered by many accountants as the father of Australia's tax avoidance industry of the late 1970s and early 80s ('bottom of the harbour' schemes etc). Judges almost always have "leeways of choice" in the decisions they make, as one of my intellectual heroes Julius Stone
put it, and the fiction of 'literalism' merely serves to disguise the fact that choices are being made.
As John Quiggin observes, an 'original intent' approach accords far more comfortably with democratic principles and the rule of law. The destructive 'literalist' efforts of Barwick and others led the Federal Parliament in the early 1980s to enact amendments to the Acts Interpretation Act
, whose effect is to mandate the 'original intent' requirement that John advocates (see section 15AA
). The section is mirrored in all states and territories. As a result, judges today, in theory at least, are no longer able to "do a Barwick" and thwart the intention of Parliament by adopting an idiosyncratic approach to interpreting ordinary laws.
There is one arena, however, where the question of approaches to interpretation ('original intent' , 'literalism' etc) remains a live issue in Australia, and that is constitutional law. It is a live issue for the simple reason that it is not at all obvious in practice how one goes about applying an 'original intent' approach to a document like the Commonwealth Constitution. With ordinary legislation it's relatively easy. You just look at the responsible Minister's second reading speech and, if necessary, the commitee stages of the parliamentary debate. However, there was no single person or entity responsible for drafting the Constitution. It was a product of a number of Conventions held through the 1890s and attended by hundreds of delegates. There was no single guiding mind to whose 'intent' we can look for inspiration where the words themselves are ambiguous. The quality of the debate was patchy at best, and many provisions attracted almost no debate. Even where a delegate did
express a clear view of what he thought a particular provision meant, how can we know whether his (and I'm not being sexist here, there were no female delegates at any of the conventions) intention was shared by others? Jeremy Kirk makes this point well:
"Rarely, in assemblies of any size, will a majority of speakers express clear views. It would be very rare for most of the winning majority on any particular question to have spoken, let alone an overall majority of the assembly derived just from the winning majority. The Convention Debates are no exception in this regard. Collective intent can then only be gathered by assuming that the silent members agreed with the comments of the leading proponents. Ascertaining group intent from individual statements not expressly endorsed by the group is inherently speculative and may often be wrong. This problem represents one of the main reasons that the courts have long been wary of taking account of extrinsic materials."
In American constitutional law, 'original intent' has been far more influential, largely because there is a consensus that the Federalist Papers, a series of documents produced by key drafters of the US Constitution, including James Maddison and Thomas Jefferson, does
provide a faithful representation of the intentions of the Founding Fathers (yes, they were all blokes as well).
The principal drafters of Australia's Constitution included Alfred Deakin, Andrew Inglis Clark (the Tasmanian Attorney-General) and Sir Samuel Griffith (the first Chief Justice of the High Court). None of them has commanded the sort of venerable authority attached by the Americans to Maddison and Jefferson. Indeed Griffith's global view about the meaning of the Constitution was overthrown by the High Court in the Engineers' Case
in 1920, not long after Griffith himself retired from the Bench. So much for original intent!
In fact, until 1988 the prevailing High Court view was that, although their quest was (supposedly) for 'original intent', it was not permissible even to look at the records of the Convention Debates to find out if any such intention was apparent! In 1988 the Court revised this somewhat bizarre rule, but it remains the case that the Debates are utilised in a quite narrow fashion. The High Court's current approach largely coincides with the view of American jurisprudential scholar Ronald Dworkin, as explained in Freedom's Law
((1996) at 10):
"[C]onstitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. We have no need to decide what they expected to happen, or hoped would happen, in consequence of their having said what they did, for example; their purpose, in that sense, is not part of our study. That is a crucial distinction".
High Court Justice Michael McHugh reflected this Dworkinian approach in the following passage from a recent decision (which also effectively endorses John Quiggin's observation about 'sensible modification in the light of changing social and technological conditions'):
" Nevertheless, even when we see meaning in a constitutional provision which our predecessors did not see, the search is always for the objective intention of the makers of the Constitution. A commitment to discerning the intention of the makers of the Constitution, in the same way as a court searches for the intention of the legislature in enacting an ordinary statute, does not equate with a Constitution suspended in time. Our Constitution is constructed in such a way that most of its concepts and purposes are stated at a sufficient level of abstraction or generality to enable it to be infused with the current understanding of those concepts and purposes. This is consistent with the notion that our Constitution was intended to be an enduring document able to apply to emerging circumstances while retaining its essential integrity. The Constitution was addressed to posterity as well as to those living at the time of its enactment. Those who framed and enacted the Constitution knew that the meaning of the document would have to be deduced by later generations as well as their contemporaries. This Court has not accepted that the makers' actual intentions are decisive, and I see no reason why we should regard the understandings of the immediate audience as decisive."
In the same decision (Eastman
), McHugh also quoted with approval the following observations by Samuel Popkin about statutory interpretation generally:
"The simple act of thinking about the meaning of statutory language in this broader context - which the judge must do - requires judgment about how the text should interact with its past and future. That is why, despite its being an obvious fiction, the judge when engaged in statutory interpretation is unable to do without the concept of legislative intent. Intent is matched with text as an essential aspect of statutory meaning, not because the judge has any confidence that legislative intent is knowable, but because 'intent' (or 'will') captures the idea that choices must be made in order to apply a text to facts. Legislative intent is a useful judicial construct because the judge is required to make the choices that best express the statutory text's meaning."
Finally,Justice McHugh (who, as you may have guessed by now, is the Court's principal explicator of the dominant interpretative ideology) explained the conundrum of 'original intent' in even starker terms in another recent decision:
"What is decisive is that, with perhaps only two exceptions, the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 - which has an historical meaning - the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin, the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts."
The bottom line is that the majority of Australia's High Court (though certainly not Justice Michael Kirby) agrees with John Quiggin that 'original intent' is the correct approach. However, as the above collection of quotes shows, they have left themselves (probably necessarily) an awful lot of 'wiggle room'. You see, lawyers and economists are equally good at coining concepts that explain much less than it may seem at first glance. 'Original intent' ranks right up there with Coase Theorem in that respect. 'Law and economics', you may think, are fitting bedfellows. In both disciplines, as Forrest Gump famously observed, "you never know what you're gonna get".
For readers interested in finding out more about the delightfully esoteric (but nevertheless critically important) subject of constitutional interpretation, I recommend Kirk, J
"Constitutional Interpretation and a Theory of Evolutionary Originalism" Federal Law Review
, Volume 27 No. 3 (1999). For a slightly more prosaic view, you might also read a set of my lecture notes
published on my Australian Public Law website.
Finally, I am indebted to American post-modern constitutional scholar Jack Balkin
for the title to this piece.