Justice Edelman’s originalism, or hints of it
06.11.2017
Justice Edelman has only been on the High Court for a matter of months but he has already sat on a number of significant constitutional cases, and there are more on the horizon. The newest Justice may be at the High Court until 2044 (when he reaches the constitutionally prescribed age of retirement), which would make him the longest serving justice since the middle of last century and would give him an unprecedented opportunity to shape our modern constitutional jurisprudence. All of which is to say that Justice Edelman’s approach to constitutional interpretation is something that we ought to care very much about. The purpose of this post is to parse his Honour’s recent dissent in Graham v Minister for Immigration and Border Protection [2017] HCA 33 for clues as to his interpretative approach to the Constitution. I pay particular attention to his Honour’s use of history and the weight he gives to the constitutional text’s original public meaning. In this respect I am taking my lead from Jill Lepore, the Harvard historian, who asserts that a judge’s use of history and their attitude to original public meaning are the most important aspects of their judicial philosophy.
The High Court’s decision in Graham concerned the work that s 75(v) does in the Constitution. At base, s 75(v) confers jurisdiction on the High Court in all matters in which certain remedies are sought against Commonwealth officers. At a more schematic remove, s 75(v) is understood to be the constitutional source of the High Court’s power to enforce the law’s limits on executive action. For that reason, s 75(v) has been said to secure ‘a basic element of the rule of law’ (at 482 (Gleeson CJ)). To understand the context in which s 75(v) arose for consideration in Graham, it is necessary to begin by descending into some level of procedural and factual detail.
Graham arose out of two separate proceedings – one in the High Court’s original jurisdiction, the other in the Federal Court – pursued by two men whose Australian visas were cancelled by the Minister for Immigration and Border Protection. Each of the men was a New Zealand citizen but was resident in Australia and held a valid visa. The Minister’s decisions to cancel the men’s visas were made under a provision of the Migration Act 1958 (Cth) (‘the Act’) that relevantly required the Minister to be satisfied that the cancellation was ‘in the national interest’. In reaching the view that it was in the national interest to cancel each of the men’s visas, the Minister took into account information that was ostensibly protected from compulsory disclosure to the men, and to any court, by s 503A of the Act. For present purposes it is sufficient to reproduce only a portion of that provision:
(2) If:
…
(b) information is communicated to the Minister … in accordance with [an earlier provision of the Act];
then:
(c) the Minister … must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person;
Each man challenged the Minister’s decision on a number of grounds. After a special case and questions were stated to the High Court, the issues largely reduced to whether s 503A(2) was invalid insofar as it so limited the right of the men to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of s 75(v) in the constitutional structure.
The majority (composed of Chief Justice Keifel and Justices Bell, Gageler, Keane, Nettle and Gordon) concluded that s 503A(2) was invalid to the extent that it would prevent the Minister from being required to disclose the information to the High Court exercising s 75(v) jurisdiction or, in certain circumstances, to the Federal Court. Justice Edelman dissented, holding that s 503A(2) was valid. His Honour’s dissent ran for almost twice the length of the majority’s opinion and is a treasure trove for readers interested in his Honour’s views about judicial review, the rule of law, and various principles of constitutional and statutory interpretation. Although much more could, and no doubt will, be written about the dissent, this post is limited to four observations, which are followed by a caveat.
A wariness of constitutional implications
The first thing to note is that although Justice Edelman accepted that the Constitution ‘secure[s] the existence of judicial review’, his Honour expressed some doubt that the Constitution necessarily requires a ‘minimum content’ to such review (at [73]). For their part, the majority drew no such distinction between a constitutional implication as to the existence of judicial review and a constitutional implication ensuring a minimum content to judicial review (and, as a matter of logic, it is difficult to conceive of something as existing without a minimum content). All of the counsel in the case – including five of the State Solicitors-General – appeared to proceed upon the same basis as the majority. In the end, Justice Edelman was prepared to assume the existence of a minimum content to judicial review but only with ‘grave caution’, and ‘in the absence of any submissions to the contrary, and not without doubt’ (at [76]). His Honour’s doubts appear to have stemmed from the silent weight of over a century of legislative and judicial history, he wrote:
This appears to be the first case in any court since Australian Federation in which it has been sought to apply this implication so as to ensure a minimum content to judicial review rather than merely to secure the existence of judicial review. Novelty is not a basis to reject a submission. But novelty invites grave caution where no submission having this effect has ever been made and accepted during a century of legislation … (at [74]).
His Honour’s hesitance to recognise this constitutional implication, in the face of an apparent consensus among some of Australia’s pre-eminent legal minds, is a telling indication of the conservative approach to constitutional construction we might expect from his Honour in later cases.
An ‘avowedly historical’ approach
Having expressed his reservations, Justice Edelman proceeded to succinctly articulate his approach to constitutional interpretation:
What do the terms and structure of the Constitution require? The … question first requires interpretation and construction of the constitutional text, in its context, to determine the essential meaning of its expressions and implications. Like the interpretation and construction of any other text, the essential meaning is not necessarily literal and it proceeds by reference to the way that the essential meaning would be understood by a reasonable, legally informed person at the time of utterance, which in this case is Federation. That process, as the submissions implicitly accepted, is avowedly historical (emphasis added, quotation marks omitted) (at [76]).
There is nothing particularly unorthodox or surprising in this statement. In Australia, it is largely accepted that the original public meaning of constitutional text (‘meaning … at the time of utterance’) will be a relevant input in the interpretative calculus (at [19]-[23]). When a controversy arises, it is usually over whether original public meaning is merely relevant, or whether it is controlling or dispositive. Justice Edelman neatly sidesteps this debate by stating simply that the interpretative inquiry proceeds ‘by reference to’ original public meaning (at [76]). A close reading of the entirety of the dissent, however, reveals just how important history – and particularly original public meaning – is to his Honour’s interpretative philosophy.
First, and somewhat superficially, we can look to the semantics of the Graham decision. Justice Edelman uses the word ‘history’ or its derivations 27 times in Graham, as compared to plurality’s use of the same just three times.[1] Why is this important? In Australia, it is generally the case that historical methods of constitutional interpretation are geared towards ascertaining original public meaning. Justice Edelman’s focus on history – which, in Graham, was pre-Federation history – thus suggests that he considers original public meaning to be a very important interpretative factor.
Secondly, Justice Edelman’s emphasis on history is evident in the passages of the judgment where his Honour rejects certain arguments on the basis that they are ‘ahistorical’. This is not a new concern for his Honour. In one of his last statutory interpretation decisions on the Federal Court he also used the word ‘history’ or its derivations 27 times and also dismissed certain arguments on the ground that they were ‘not consistent with the history and context of [the statutory provision under consideration]’.
Thirdly, we can look to his Honour’s explicit statement of the value of legal history to constitutional interpretation. His Honour writes: ‘Legal history … is used to establish the essential characteristics of an expression (at [79]).’ We know, from the general statement of principle in the inset quote above, that when his Honour speaks of the use of legal history he is speaking of the original public meaning inquiry, or – to put it in his Honour’s words – the question of how the constitutional text ‘would be understood by a reasonable, legally informed person at the time of utterance’ (at [76]). At a stretch, then, we might think that original public meaning is controlling – rather than merely relevant – on his Honour’s account, because it ‘establish[es] the essential characteristics’ of the constitutional text’s meaning. It must be immediately acknowledged, however, that his Honour never explicitly stated as much in Graham.
In the final analysis, perhaps all that can fairly be said is that his Honour’s reasons display a distinct preference for an ‘avowedly historical’ approach to constitutional interpretation, an approach that places considerable weight on legal history and, particularly, original public meaning. The alternative, in his Honour’s view, is thinly veiled judicial ‘intuition or divination’ (at [79]).
A scepticism as to the relevance of ‘changing social attitudes’
Justice Edelman framed his approach in Graham in contradistinction to a mode of interpretation informed by ‘changing social attitudes’ (at [83]). Of this approach, Justice Edelman writes ‘it has been suggested that essential constitutional or legislative meaning can change with changing social attitudes or changing common law so that the same circumstances could have a different constitutional consequence at different times.’ The scepticism in the introductory words ‘it has been suggested’ is hard to miss, especially when coupled with his Honour’s labelling of such an approach as ‘controversial’ and productive of ‘curious’ consequences. What is the significance of his Honour’s apparent reluctance to take into account changing social attitudes?
It is important to note that Justice Edelman is not doubting the idea that constitutional provisions can apply to circumstances that did not exist at the time of their drafting. That proposition is uncontroversial and was, for a time, expressed in the connotation/denotation distinction. Nor is Justice Edelman necessarily doubting that, on rare occasions, a constitutional or statutory provision may be drafted in such ‘ambulatory’ language as to allow that its meaning may change over time. Nor, finally, is Justice Edelman discarding constitutional doctrines developed by the Court since Federation.
What Justice Edelman is apparently incredulous of, is the notion that post-Federation social facts and circumstances (particularly social “attitudes”) may inform the essential meaning of a non-ambulatory constitutional provision. If that is indeed Justice Edelman’s position, it would appear to be at odds with certain decisions, most since Cole v Whitfield (1988) 165 CLR 360, where members of the High Court have applied a purposive approach to constitutional interpretation.[2] The purposive approach is a broad church and in fact encompasses a number of divergent positions. But, according to a particular formulation of this approach, the essential meaning of constitutional text is not restricted by its original public meaning. Instead, it is accepted that the meaning of constitutional text may change over time in light of developing social facts where such change is necessary to give better effect to the constitutional provision’s purpose (which purpose will be informed, but not controlled, by the text’s original public meaning; the provision’s place in the overall structure of the Constitution; and the nature of a Constitution as an enduring governing document that is not easily amended). Jeffrey Goldsworthy has labelled this approach ‘[n]on-literal, purposive interpretation’ (at 33), whilst Jeremy Kirk describes something similar as ‘evolutionary originalism’ (at 357-366).
To be clear, the purposive approach discussed above is not synonymous with Canada’s ‘living-tree’ constitutionalism. Nor is it the same thing as Andrew Inglis Clark’s ‘living force’ approach which found favour with a few members of the High Court in the 1990s. It merely reflects the idea that the meaning of constitutional text may change over time in light of changes in social facts where the change in meaning is necessitated by the provision’s purpose.
That Justice Edelman appears to be sceptical of such an approach is disappointing. Justices on the Australian High Court tend to take a less dogmatic, more pragmatic, pluralistic approach to constitutional interpretation than their contemporaries on the famously divided US Supreme Court. This is generally acknowledged to be a strength, rather than shortcoming, of our apex Court. It is to be hoped, then, that Justice Edelman’s philosophy of constitutional interpretation is not so sceptical as to the relevance of changing social attitudes as some of his comments in Graham might suggest.
An aversion to judicial ‘updating’
Justice Edelman’s reluctance to include changing social attitudes in the interpretative mix stems from a particular understanding of the judicial role. It appears that, for Justice Edelman, changing social attitudes ought only gain legal traction through constitutional change by referendum or statutory amendment by the people’s representatives in Parliament. On Justice Edelman’s account, for judges to consider changing social attitudes in constitutional and statutory interpretation would amount to anti-democratic judicial ‘updating’.
In support of his position, Justice Edelman refers to the prominent US jurist, Judge Frank Easterbrook, of the United States Court of Appeals for the Seventh Circuit, and his statement: ‘[a written constitution] is designed to be an anchor in the past. It creates rules that bind until a supermajority of the living changes them’ (at 363). Given his academic pedigree, Justice Edelman could hardly be unaware that, in the US, Easterbrook is widely considered to be a leading light of the arch-conservative, originalist project. Indeed, the late Antonin Scalia is quoted as saying that he would have chosen Easterbrook to replace him on the Supreme Court.
The passage of Easterbrook’s that Justice Edelman quotes in Graham comes from a 1992 article in which Easterbrook repeatedly cites the scholarship and judicial decisions of US originalism’s founding fathers – Robert Bork and Scalia. Aside from these telling references, the article also discloses Easterbrook’s own staunch originalist philosophy. Easterbrook writes approvingly of ‘the power of the past to rule today’s affairs’ and asks rhetorically ‘Shouldn’t good interpreters of [the US Constitution] strive to exemplify the eighteenth-century mind?’ On this basis, Easterbrook concludes that the ‘cruel and unusual punishment’ prohibition in the Fifth Amendment to the US Constitution would not prevent the lawful imposition of horsewhipping as the punishment for double parking.
Whether or not Justice Edelman agrees with Easterbrook’s more radical originalist views, we know that there is at least significant overlap between their respective conceptions of the judicial role. Just as Justice Edelman in Graham expresses distaste for judicial ‘updating’ of statutory and constitutional text, so too does Easterbrook suggest that judicial ‘updating’ is anti-democratic and beyond the proper bounds of the judicial role.
Justice Edelman’s characterisation of judicial ‘updating’ as anti-democratic reads like it was lifted straight from the US originalist songbook. It harmonises with Scalia’s blistering dissent in Obergefell v Hodges, the 2015 case in which a majority of the US Supreme Court recognised that the Constitution protected a person’s right to marry a same-sex partner, where he wrote:
I write separately to call attention to this Court’s threat to American democracy … [the] practice of constitutional revision by an unelected committee of nine … robs the People of … the freedom to govern themselves.
Granted, Justice Edelman is not so melodramatic as the opera-loving Scalia, but the sentiment is the same. Whether or not he is aware of it, Justice Edelman is employing some of the US originalist rhetoric. Nowhere is this more apparent than in Justice Edelman’s assertion that the interpretation of statutory and constitutional text in the light of changing social attitudes would ‘come at great cost to representative self-government’ (at [83]). These words do not appear in quotation marks in his Honour’s opinion, but they appear, verbatim, in the dissent of Judge Diane Sykes in the case of Hively v Ivy Tech, which his Honour footnotes. In her dissent, Sykes, a self-described originalist and Trump shortlisted candidate for the US Supreme Court, wrote:
Judicial statutory updating, whether overt or covert, cannot be reconciled with the constitutional design. The Constitution establishes a procedure for enacting and amending statues: bicameralism and presentment. Needless to say, statutory amendments brought to you by the judiciary do not pass through this process. That is why a textualist decision method matters: When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours. The Constitution assigns the power to make and amend statutory law to the elected representatives of the people. However welcome today’s decision might be as a policy matter, it comes at a great cost to representative self-government (emphasis added, reference omitted).
This was not the only discussion of judicial ‘updating’ in that case. Justice Edelman could have referred to the opinion authored by Judge Richard Posner, who is know to take a pragmatic approach to statutory and constitutional interpretation. Posner defended judicial ‘updating’ in the following terms:
[I]nterpretation can give a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text) – a meaning that infuses the statement with vitality and significance today … [This] form of interpretation … consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting of ‘original meaning.’ Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning …
The fact that Justice Edelman preferred Sykes’ dissent to Posner’s opinion is further evidence that his Honour is likely to place great emphasis on history and, particularly, original public meaning in interpreting the Constitution.
A caveat
It is appropriate at this point to acknowledge that my characterisation of Justice Edelman as an originalist – or at least someone deeply concerned about original public meaning – is intended to be provocative rather than definitive. Nowhere in his Graham dissent does his Honour explicitly assert that he considers original public meaning to be controlling of constitutional and statutory text. I have drawn inferences and extrapolated from his Honour’s choice of words and choice of references. Contrary inferences can be drawn. We might ask why his Honour quoted from the same paragraph of Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 in which Justices Gaudron and Gummow wrote that: ‘An appreciation of the essential characteristics of [a constitutional expression] … appropriately may include the understanding of that expression at the time of the commencement of the Constitution and thereafter’ (emphasis added, at [24]). We might wonder about the significance of his Honour’s decision to reference the plurality in Singh v The Commonwealth – who wrote that the interpretative inquiry does not end with the original public meaning – rather than Chief Justice Gleeson’s elegy for historical interpretation in the same case (at [5]-[27]). All of which is to admit that it may be premature to draw any firm conclusions about Justice Edelman’s approach to constitutional interpretation at such an early juncture.
Conclusion
By no means do I view Justice Edelman as an originalist, at least not in the sense that that word is commonly understood in the US context. He may not even be one of Justice McHugh’s ‘faint-hearted originalists’ (at [140]). I also want to make clear that I agree with the sentiment expressed by the High Court in The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 that the framing of Australian questions of constitutional interpretation in the language of other jurisdictions can be unhelpful (at [14]). And yet I do think that it is important to attend to his Honour’s deployment, in his Graham dissent, of language that is at least redolent of, if not directly lifted from, US originalism and to be cautious of where that language – followed to its logical extent – might lead us.
[1] This calculation does not include citations that use the word ‘history’ or its derivations, nor have I included the plurality’s reference to Mr Graham’s criminal ‘history’.
[2] See, eg. McGinty v Western Australia (1996) 186 CLR 140, 221 (Gaudron J); Ng v The Queen (2003) 217 CLR 521, 526 [9] (McHugh J); Commonwealth v Australian Capital Territory (2013) 250 CLR 441, 459 [23]; Alqudsi v The Queen (2016) 258 CLR 203, 208 [3], 221 [33]-[24] (French CJ, dissenting). See, generally, Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’, (1999) 27 Federal Law Review 323, 331-337.
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Julian R Murphy is currently a Human Rights Fellow and LLM candidate at Columbia University, New York.
Suggested citation: Julian R Murphy ‘Justice Edelman’s Originalism, Or Hints of It’ on AUSPUBLAW (6 November 2017) <https://auspublaw.org/2017/11/justice-edelmans-originalism/>