BY HELEN IRVING
In his AUSPUBLAW blog post on 6 November 2017 discussing Justice Edelman’s dissent in Graham v Minister for Immigration and Border Protection  HCA 33, Julian R Murphy finds evidence of a particular, conservative commitment on the judge’s part to the method of constitutional interpretation known as ‘original public meaning’ originalism. Murphy’s account of Justice Edelman’s methodological ‘hints’ is skilful and persuasive. Edelman, he tells us, may not be an ‘originalist’ in the US sense (which treats ‘original’ meaning as controlling), but his repeated references to history, his citation of US originalist jurists, and his stated ‘aversion to “judicial updating”’ of the Constitution suggest ‘language that is at least redolent of … US originalism’. We should keep our eye on this language, Murphy warns, since (paraphrasing the American historian, Jill Lapore) ‘a judge’s use of history and their attitude to original public meaning are the most important aspect of their judicial philosophy.’
Murphy’s observation may well be true, at least if the ‘use of history’ is thought of as a sort of metonym, standing for a larger universe of propositions and perspectives. But, to find a relationship between judicial use of history and judicial philosophy is not merely to observe a concurrence. The two elements in the relationship demand their own identification, their own credentials. My interest here is in one of these elements: history.
Murphy notes that there is nothing particularly ‘unorthodox or surprising’ in the idea that ‘original public meaning’ is a relevant component in Australian constitutional interpretation. But Justices on the High Court, he writes, ‘tend to take a less dogmatic, more pragmatic, pluralist approach to constitutional interpretation than their contemporaries on the famously divided US Supreme Court.’ Certainly, in its restraint and its eclecticism, the High Court has spared Australians the great controversies and battles (jurisprudential and political) that the use of history in constitutional interpretation excites in the United States. But they have also missed out on the deeper issues, including, specifically, the question of what ‘history’ involves. The Justices have proceeded, blithely, as if they knew the answer. In this post, I want to ask, specifically: when one says that the ‘the use of history’ is important, what does one mean by history?
The term ‘history’ conveys two alternative references: one is to things of, or in, the past; the second, to the description and interpretation of the past – that is to say, the work that is done by historians. The two are distinct, if often confused. The things of the past are not history, as such. They – or rather, their records – are the material that is used in the writing of history. If, in Justice Edelman’s words in Graham, ‘original public meaning’ refers to the way the Constitution’s text ‘would be understood by a reasonable, legally informed person at the time of utterance’ (at ), it can only be described as ‘historical’ in the first sense: to things of, or in, the past. Its ‘meaning’ lies simply in the records, in the legal text itself and in the texts that offer an account of how the legal text was likely to have been understood by the legally educated person of the relevant era. Legal texts are not, in themselves, ‘history’. Their meaning is simply past meaning. It is not historical meaning.
It is undisputed that the definition of legal words changes over time. In that sense, there is a ‘historical’ meaning and there is current meaning. The two may be compared. It is perfectly possible to know, for example, that ‘domestic violence’ (as, for example, in s 119 of the Constitution) meant something quite different in the 1890s from its meaning today. However, the ‘history’ that informs us of this difference is nothing more than a record of changes in textual meaning over time. The ‘original’ definition, found in legal treatises or case law or legal dictionaries of the relevant era, is attributed to imaginary legal ‘minds’ of the same era. What was in these minds is extrapolated from the same records. The change itself has not been explained.
Any work that purported to be a ‘history of domestic violence’ but that simply recorded or catalogued the term’s evolving legal definitions would be guilty of misleading, to say the least. Likewise, the Federal Convention Debates of the 1890s are a record, telling us only what the speakers said on a particular day about a particular proposal for a constitutional provision. A ‘history’ of the Australian Constitution that simply reproduced extracts from the Debates would be similarly guilty. Reading and reporting records such as these is not doing history. It is not even ‘using’ history.
Of course, there is no law against judges’ consulting records in this manner. Nor is there a law against judges’ reading secondary sources written by historians in order to inform themselves about the past (as the High Court did – albeit imperfectly – in Cole v Whitfield (1988) 165 CLR 360). So, what is the objection? As I have argued elsewhere, it is not, as might be thought, a matter of competence. Although some may suggest otherwise, there is nothing to say that judges are incapable of interpreting primary sources or recognising authoritative historical accounts or, indeed, of being ‘trained’ historians themselves. But historians and judges are not just people with different titles. They are people who work in different disciplines. Their tasks are not interchangeable.
The objection is epistemological. History is a way of understanding human life and its evolution over time. It is a narrative, not a catalogue. It offers a complex picture of the past and an equally complex account of the way the past has changed. It does not reach conclusive and enforceable verdicts. It recognises that the historical record is also a record of disagreements over meaning, including over what words meant ‘at the time of utterance.’ History draws on primary sources, but the sources do not speak for themselves. They are identified, chosen, given significance and interpreted in the course of dedicated (and time-consuming) research. The epistemology of history is reflected in the disciplinary ‘rules’ that guide the research and writing of history.
Foremost among these ‘rules’ is methodological scepticism. History is a sceptical discipline. Historians do not treat their material with credulity. They know that records can be inaccurate, incomplete, partial, and one-sided. They know that people leave self-serving or tendentious accounts of events or actions or motivations, whether deliberately or not. They know that silences and gaps in the record can be revealing. They know also that purpose and intention are not always openly revealed. Historians do not reach conclusions about their subject matter until they have immersed themselves in the records and examined multiple alternative sources, looking for evidence and counter-evidence, always open to finding something new, to having their incremental conclusions challenged. Historians do not simply declare or repeat what they find in documents. As the great French historian and founder of the ‘Annales School’, Marc Bloch, wrote in The Historian’s Craft (published in 1953), the historian’s task is not ‘purely and simply recording the words of our [historical] witnesses’ but of ‘cross-examining’ them. Indeed, Bloch insisted, cross-examination ‘is the primary necessity of well-conducted historical research.’
Justice Edelman’s repeated claims in Graham (at [79-81]) that the plaintiff’s and applicant’s submissions were ‘ahistorical’ – that is to say, contrary to case law – suggest a confidence about what is and what isn’t ‘historical’ that would make historians blush. Justice Edelman, it must be acknowledged, refers as frequently to ‘legal history’ as he does to ‘history’ (without the adjective), and he cites Dixon CJ from a 1973 article by Victor Windeyer on the nature of legal history (albeit on a different point). It is unclear if he intends to draw a distinction. Perhaps there is a distinction. Perhaps the term ‘legal history’ can accommodate or describe the cataloguing of legal texts and the sort of definitional meaning that derives from them. Perhaps it is sui generis, its own disciplinary species, with its own rules. But, if so, it cannot be confused with ‘history’ as such. The selection of extracts from judgments, legal terms and their definitions is not history.
Certainly, a judge’s ‘use of history’ will be revealing and it may well illuminate his or her judicial philosophy. But, just as important is the judge’s understanding of the limits of using history. Circumspection in drawing conclusions about ‘historical’ meaning is not simply a matter of disciplinary humility. It is a core part of doing what a judge should do – that is to say, resolving legal controversies in the present, and not imagining that ‘history’ has the answer.
Helen Irving is Professor of Law, The University of Sydney Law School.
Suggested citation: Helen Irving, ‘What is history, again?‘ on AUSPUBLAW (5 February 2018) <https://auspublaw.org/2018/02/what-is-history-again/>