Jeffrey Goldsworthy

Originalism in Constitutional Interpretation

Our duty is to declare the law as enacted in the Constitution and not to add to its provisions new doctrines which may happen to conform to our own prepossessions.1

Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia

Introduction, Jeffrey Goldsworthy Institutional Performance: Australian exceptionalism: rights protection without a Bill of Rights, Brian Galligan F.L. (Ted) Morton The performance of Australian legislatures in protecting rights, John Uhr Improving legislative scrutiny of proposed laws to enhance basic rights, parliamentary democracy, and the quality of law-making, Bryan Horrigan The performance of administrative law in protecting rights, Robin Creyke Australias constitutional rights and the problem of interpretive disagreement, Adrienne Stone Particular Human Rights Issues: Rights and citizenship in law and public discourse, Helen Irving Chained to the past: the psychological Terra Nullius of Australias public institutions, Megan Davis Constitutional property rights in Australia: reconciling individual rights and the common good, Simon Evans International Perspectives: American judicial review in perspective, Robert Nagel The unfulfilled promise of dialogic constitutionalism: judicial-legislative relationships under the Canadian Charter of Rights and Freedoms, Christopher Manfredi Strategies for institutional reform: a modest (but robust) defence of statutory bills of rights, Jeremy Webber Australias first Bill of Rights: the Australian Capital Territorys Human Rights Act, Hilary Charlesworth An Australian Rights Council, George Winterton Human rights strategies: an Australian alternative, Tom Campbell Index.

The Limits of Judicial Fidelity to Law: The Coxford Lecture

In this lecture I question my own legalist inclinations, and ask whether judges might sometimes be morally justified in covert law-breaking - whether some measure of judicial subterfuge might be desirable - because it enhances the rule of law, justice or good governance. A plausible argument can be made that judges engage in subterfuge more frequently than we tend to think, and are justified in doing so. My attempt to explore these issues is not an exercise in judge-bashing, and I sincerely hope that no judge will construe it in that way.

The Case for Originalism

The best argument for originalism is simple, straightforward, and powerful:1. A constitution, like any other law, necessarily has a meaning that pre-exists judicial interpretation of it.2. The meaning of a law is part (perhaps all) of what it is; therefore, to change the meaning of a law is to change the law.3. The original meaning of a constitution is neither its original literal meaning (called “sentence meaning” by philosophers) nor its originally intended meaning (“speaker’s meaning”)’ it is, instead, its “utterance meaning,” which is determined by a restricted range of evidence, extra-textual as well as textual, of what its founders intended it to mean.4. When a constitution itself requires that it be changed only by some special democratic procedure, this binds judges as well as other officials. The judges must not change the constitution – or, by inference from Proposition 2, its meaning – by purporting to “interpret” it.5. Any judge who violated that requirement would flout the constitution itself, the rule of law, the principle of democracy, and (in many federal systems) the principle of federalism.6. When interpreting such a constitution, the judges; primary duty is to reveal and clarify its pre-existing meaning. When that meaning is insufficiently determinate to resolve the case at hand, their secondary duty is to act creatively and supplement it. To supplement the meaning of the constitution is not to change it.Two additional propositions respond to popular but misguided non-originalist criticisms:7. Although judges must not deliberately change the constitution, there are at least four ways in which constitutional law can and does legitimately evolve over time. To that considerable extent, originalism is perfectly consistent with “common law constitutionalism” and “living constitutionalism.”8. Consistent application of any constitutional theory, including originalism, might lead to grave injustice in a particular case. Judges might then be morally bound to disobey the constitution while pretending to obey it. But a theory justifying occasional “noble lies” about what the constitution means is not a theory about what it really means.

Abdicating and Limiting Parliament's Sovereignty

THE DOCTRINE that Parliament possesses sovereign—legally unlimited—legislative authority has long been part of the foundation, if it is not indeed the foundation, of Britain’s largely unwritten constitution.1 But the doctrine gives rise to a well-known conundrum: can Parliament’s authority be used to limit itself ? If it cannot, then it is already limited in this one respect; on the other hand, if it can, then while it is unlimited today it might not be tomorrow. According to the former view, Parliament’s unlimited, sovereign authority is “continuing”; on the latter view, it is “self-embracing”.2 On the former view, parliamentary sovereignty is a potential obstacle to effective constitutional reform: any statute purporting to limit Parliament’s authority can supposedly be repealed, even by implication, which means that it can simply be ignored. In the past, this view made it difficult for constitutional lawyers to conceive of how Britain’s dominions could ever achieve full constitutional independence by lawful, rather than revolutionary, means. Even today, some lawyers have difficulty conceiving of how Parliament could effectively subordinate its authority to a constitutionally entrenched Bill of Rights, to a federal constitution transferring part of its authority to other legislatures within Great Britain, or to a new constitution for the European Union. In an important new book, Peter Oliver deals with the question of colonial independence, although he hopes that his theoretical insights will shed light on other types of constitutional reform.3 He offers an explanation of how the “well-behaved” British dominions4—Australia, Canada and New Zealand—achieved genuine constitutional independence by means that were fully lawful rather than revolutionary. It