Why Originalism?

Designing a political system from the ground up is no doubt a complex and contentious challenge. There are many different approaches that may be adopted, many different principles that may guide drafters and interpreters, and many different value judgements that may be drawn into the process at different points.

The reality is that it is incredibly unlikely that all members of a society will agree about all, or even most things. Therefore, the challenge for constitutional drafters will always fundamentally be one of how to design a system that satisfactorily resolves these differences in opinion.

Originalists, broadly defined, generally view constitutions as stable documents with a fixed meaning. This often means that they may defer to the views of the original framers of a constitution in seeking to interpret it later down the track.

This is, understandably, one of the principal grounds for critique of originalism. The key question originalists are challenged to answer is: why should the views of a nation’s ‘founding fathers’ be privileged over the views of politicians today?

Many originalists might seek to sidestep these questions through ever more elaborate theoretical devices. For example, I consider the textualist strand of originalism popular in the United States to be one that has evolved to provide an answer to this core concern.

Textualists emphasise that it is the original meaning of the words used in a constitution, as they would have generally been understood by any reasonable observer at the time, towards which we should defer. This pivot away from a more intent-oriented originalist theory avoids much of the criticism attached to appearing to give preference to the views of 18th and 19th century politicians and also accords with the counter-majoritarian arguments often advanced by constitutional conservatives concerned with ever-growing judicial activism.

However, textualism is also apt to lend itself to wilfully over-strict misapplication of the written law by ambitious aspiring judicial lawmakers. Take for example the Victorian Supreme Court of Appeal’s decisions in Boulton v The Queen [2014] and DPP v Walters [2015].

Walters in particular, both at trial and at appeal, demonstrates this aptness for textualism to be misused to frustrate and undermine clear and unambiguous parliamentary intent. Overly zealous strict interpretation of the term ‘median’ was the device through which the court determined that it did not have to increase sentences imposed as clearly intended by Parliament through its enactment of the baseline sentencing regime.

If the baseline regime were not intended to increase sentences, what could have been its purpose? There was no other purpose for the scheme.

For my part, I remain unconvinced that a court can or should engage in interpretation of any enactment of Parliament (constitutional or otherwise) without considering the clear, objective intent of its drafters.

In the case of the Commonwealth Constitution, it would be wrong to consider the document itself without also considering the bargain that it represented between the people of the several colonies and their governments.

As Justice Callinan articulated in the WorkChoices case, that bargain was the institution of a new system of government defined by the underlying and essential policy of federalism. Therefore, any interpretation of the Commonwealth Constitution that undermines the federal compact should be viewed with great scepticism and caution.

But why preference federalism, merely because it was the system that the Australian people chose to adopt in the late 1800s? Isn’t it a little arbitrary to preference their views of those of people today? The answer is simple.

There will, inevitably, always be arbitrariness in any political system in which there is wide room for disagreement between members of society. Given that we will not always be able to satisfy everyone, we must make certain choices about how our political and legal systems operate by relatively imperfect means.

However, history has confirmed time and time again, that when the power to make such choices is granted to small groups of elites there is hugely disproportionate risk of abuse and corruption. What group in society today can we truly trust to make decisions in the best interests of all people?

Better, I think, to accept the arbitrariness we already have and to seek to improve it incrementally, rather than risk introducing a whole lot more of it. Therefore, the most important function of civil society and our system of laws is to protect minorities from abuse by the majority – a topic for another day.

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