What comparativism tells us about originalism

Transcription

1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please What comparativism tells us about originalism Lael K. Weis* Defended as a method of constitutional interpretation, originalism is typically thought to reflect uniquely American anxieties about the judicial expansion of rights and the place of popular constitutional culture in judicial review. As such, it has appeared to be of little general interest to constitutional scholars. This paper uses comparative constitutional law to challenge that assumption. Australian constitutionalism lacks the key features thought to make the view distinctively American and yet, the paper argues, originalism not only thrives in Australia but has a firmer foundation in the Australian constitutional system. This has important implications for the application of comparativism to constitutional theory beyond the debate about originalism: the fact that theorists have largely overlooked the possibility that the American constitutional system is not the best fit for originalist interpretation helps show how assumptions grounded in American debates about judicial activism have come to define the aims of interpretive theory. 1. 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, US 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 * 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. lweis@unimelb.edu.au. I CON (2013), Vol. 11 No. 4, doi: /icon/mot049

2 What comparativism tells us about originalism 843 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 percent 1 The definitive statement of Scalia s interpretive view is in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (A. Guttman ed., 1998). The most recent elaboration can be found in Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). See also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev (1989); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1988). 2 Morrison v. Olson, 487 U.S. 654, 712 (1988) (Scalia, J., dissenting). 3 Jamal Greene, 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, Aust. Fin. Rev., Apr. 28, 2006, at 1. 5 Dyson Heydon, Judicial Activism and the Death of the Rule of Law, 47 Quadrant 9 (2003), reprinted in 10 Otago L. Rev. 493, 505, 514 (2003). 6 David Soloman, A Courtly Brawl, Courier Mail, Feb. 27, 2003, at 15. Mason launched his counterattack in a Feb. 21, 2003 speech, given about a month after Heydon had joined the Court, at the Parliament House in Sydney. See Anthony Mason, The Centenary of the High Court, 5 Const. L. & Pol y Rev. 41 (2003). A speech delivered in Adelaide later that year echoed the same remarks: Anthony Mason, Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary?, 24 Adel. L. Rev. 15 (2003). 7 Rowe v. Electoral Commissioner [2010] HCA 46, 303 (Aust.). 8 Heydon retired in March 2013, just before his 70th birthday (the mandatory retirement age for High Court Justices, Australian Constitution, 72).

3 844 I CON 11 (2013), 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 US 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 true, 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 article, 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 9 Andrew Lynch & George Williams, The High Court on Constitutional Law: The 2011 Statistics, 35 U. New S. Wales L.J. 846 (2012). 10 See, e.g., Rowe [2010] HCA 46 (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 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) 228 CLR 45, (holding that foreign sources are irrelevant unless they influenced the drafting of the Constitution).

4 What comparativism tells us about originalism 845 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 article 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. Section 2 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. Section 3 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 activism 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. 2. Is originalism distinctively American? 2.1. 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

5 846 I CON 11 (2013), 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 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, 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. See Lawrence B. Solum, Semantic Originalism, Ill. Public Law Research Paper No , 2008, available at abstract= 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

6 What comparativism tells us about originalism 847 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 was the youngest person ever to become Professor of Law at the University of Sydney, and was elected Dean from 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 , 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, 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 ( Pastoral Leases Case ) (1996) 187 CLR 1. See Clark, supra note Mabo v. Queensland (No. 2) (1992) 175 CLR 1; Pastoral Leases Case, supra note Australian Capital Television (ACTV) Pty Ltd v. Commonwealth (1992) 177 CLR 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 Mabo (No. 2) (1992) 175 CLR at 42 (Mason, C.J. and 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: , 30 Sydney L. Rev. 7, (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) 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 ( 51(xxix)). Siding with the majority, Mason, J. held that a broad reading of 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. Koowarta (1982) 153 CLR at Heydon has only three publications on interpretive method. See Dyson Heydon, One Small Point about Originalism, 28 U. Queensland L.J. 17 (2009); Dyson Heydon, Theories of Constitutional Interpretation: A Taxonomy, Bar News 12 (2007); and Heydon, supra note 5. The best known Australian defender of originalism in scholarly circles is Jeffrey Goldsworthy. See e.g. Jeffrey Goldsworthy, 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.

7 848 I CON 11 (2013), 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 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 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 supra note Heydon even cites Scalia on occasion. See e.g. Pape v. Federal Commissioner of Taxation (2009) 238 CLR 1, Pape (2009) 238 CLR 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, A Matter of Interpretation, supra note 1, at New South Wales v. Commonwealth ( WorkChoices Case ) (2006) 229 CLR 1, Saaed v. Minister for Immigration & Citizenship (2010) 241 CLR 252, Attorney General (Victoria) v. Andrews (2007) 230 CLR 369, 434; WorkChoices (2006) 229 CLR at 311, 319; Singh v. Commonwealth (2004) 222 CLR 322, White v. Director of Military Prosecutions (2007) 231 CLR 570, 650; WorkChoices (2006) 229 CLR at 97 98; Singh (2004) 222 CLR at Byrnes v. Kendle (2011) HCA 26, Cf. Scalia, A Matter of Interpretation, 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, supra note 5; Scalia, A Matter of Interpretation, supra note 1, at Greene, supra note Id. at 5, 19.

8 What comparativism tells us about originalism 849 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 selfunderstandings; 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 US Constitution s vague and morally loaded rights provisions. Although certainly not unique to American constitutionalism, the US Supreme Court s rights jurisprudence has a particularly notorious legacy. By all accounts, originalism 34 Reva B. Siegel, Heller & Originalism s Dead Hand In Theory and Practice, 56 UCLA L. Rev. 1399, 1399 (2009). 35 Greene, supra note 3, at 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, (2006).

9 850 I CON 11 (2013), emerged as a distinctive interpretive approach in the US 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 counter-narrative to judicial activism 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 ar ticulated 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, 38 Brown v. Board of Education, 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); Robert H. Bork, 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, in Originalism in American Law and Politics 67 (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).

10 What comparativism tells us about originalism 851 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 structure-oriented nature of the Constitution reflects its status as a founding document: notwithstanding its popular ratification, in substance the 43 Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (1920) 28 CLR 129, On the ratification process, see J. A. La Nauze, The Making of the Australian Constitution (1972). 45 As Saunders, supra note 41, at 27, observes, [t]he status of Australia at the time of federation... left the idea of its people oddly inchoate. See also Jeremy Kirk, Constitutional Interpretation and a Theory of Evolutionary Originalism, 27 Fed. L. Rev. 323, (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 See Jeffrey Goldsworthy, Constitutional Cultures, Democracy, and Unwritten Principles, 2012 U. Ill. L. Rev. 683, 685 (2012) (reviewing Jack M. Balkin, Living Originalism (2011)). 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% 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% 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 ( 51(xxxi)); trial by jury ( 80); freedom of religion ( 116); and freedom from discrimination on grounds of state residence ( 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).

11 852 I CON 11 (2013), Constitution is a compact between the people of the states, not a statement of the values and aspirations of a sovereign Australian people. Third, 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 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 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 US Supreme Court. 56 Legalism, by contrast, has continuously defined the High Court s approach to constitutional interpretation, albeit in various strengths at 51 See generally Jeffrey Goldsworthy, Australia: Devotion to Legalism, in Interpreting Constitutions (Jeffrey Goldsworthy ed., 2006). 52 R v. Barger (1908) 6 CLR 41, 68 (Griffith, C.J., Barton & O Connor, J.J.) 53 Tasmania v Commonwealth & Victoria (1904), 1 CLR 329, (O Connor, J.) Justice O Connor was a member of the constitutional committee. 54 King v. Jones (1972) 128 CLR 221, 229 (Barwick, C.J.) 55 See Goldsworthy, supra note 21, at (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 US 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.

12 What comparativism tells us about originalism 853 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 rein 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 US 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. 3. 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 contemporary 57 Saunders, supra note 42, at Eastman v. The Queen (2000) 203 CLR 1, Justice Callinan s dissent in WorkChoices (2006) 229 CLR at , a controversial federalism decision, and Justice Heydon s dissent in Rowe [2010] HCA , 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 (2009) 238 CLR at (Heydon, J.); Scalia, A Matter of Interpretation, supra note 1, at 37.

13 854 I CON 11 (2013), values. 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 re concile with American constitutionalism even if Justice Scalia occasionally makes a bid for them 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 61 Scalia, Originalism: The Lesser Evil, supra note Scalia, A Matter of Interpretation, supra note 1, at Scalia, Originalism: The Lesser Evil, supra note 1, at 855.

14 What comparativism tells us about originalism 855 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. 64 Scalia, A Matter of Interpretation, supra note 1, at 146; Scalia, Originalism: The Lesser Evil, at Scalia, Originalism: The Lesser Evil, at Id. at See discussion immediately preceding and following note 43, supra. It is common to refer to the Constitution as a compact or as the federal compact. 68 See, e.g., Goldsworthy, supra note 51, at (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).