Originalism and Constitutional Amendment
Lael K. Weis
4.05.2022
Introduction
With the federal election just a few weeks away, the next Commonwealth Government may be tasked with bringing forward one or two major proposals for constitutional change: the proposal for a constitutionalised First Nations Voice to Parliament set out in the Uluru Statement from the Heart, and the proposal for Australia to be a republic set out in the Australian Republican Movement’s Australian Choice Model.
Developing these proposals was an arduous task, spanning several decades. Despite agreement on the basic premise of constitutional change (constitutional recognition of Aboriginal and Torres Strait Islander peoples, republicanism) among the stakeholders in each case, the deliberations involved have often been fraught with disagreement about the specific form that constitutional change ought to take.
There are many reasons why it is difficult to develop proposals for constitutional change. One reason is that constitutional change often presents contested normative questions about national identity and the nature of the body politic that go to the foundations of ideas about constitutionalism. Constitutional recognition of Aboriginal and Torres Strait Islander peoples and republicanism are issues that exemplify these challenges, as other contributors to this blog have discussed (see, eg, Megan Davis’s post on the First Nation’s Voice to Parliament and Dane Luo’s post on the People’s Choice Model).
At the same time, developing proposals for constitutional change also presents pragmatic and lawyerly questions about constitutional interpretation. For, such proposals involve changes to the text of the Constitution using the amending procedure set out in s 128. A realistic, descriptive assessment of the High Court’s established interpretative practices—including how the Court has approached the task of interpreting and applying constitutional amendments in the past—therefore necessarily informs the drafting process. Although in some respects more mundane, these issues are equally challenging.
In this post, I discuss how my forthcoming article, ‘Originalism and Constitutional Amendment’, bears on this second set of questions. In brief, the article examines the problem that constitutional amendment uniquely poses for originalist theories of constitutional meaning, and it develops an approach to that problem. It is suggested that the High Court’s well-established method of constitutional interpretation shares the core commitments of originalism, meaning that the problem presents a live challenge in the Australian context. Insofar as the High Court maintains those interpretive commitments, the article’s proposal can provide the missing conceptual tools needed to address the problem.
Originalism
It is important to clarify what is meant by ‘originalism’. Unfortunately, the term tends to provoke a knee-jerk sceptical reaction due to its usage in American popular culture, where it is often used as a call for judicial restraint and associated with political conservativism. But this is misleading: it confuses originalism as a theory of constitutional meaning with a narrow and often partisan critique of so-called ‘judicial activism’.
As used here, ‘originalism’ refers to a theory of constitutional meaning that has two central commitments:
textualism, or the idea that a written law consists of its text and structure, including implications from text and structure; and
semantic fixation, or the idea that the text of a written law continues to mean what it meant at the time that it was drafted.
Originalism does not rule out the possibility that constitutional provisions may have different applications over time as a result of changing circumstances, even while their meaning remains unchanged. However, it does make it impermissible for judges to update constitutional meaning in light of evolving social needs and values. For an originalist, the only legitimate way to update the meaning of a constitutional provision is to change its text through formal amendment.
On an originalist approach to constitutional interpretation, then, drafters’ understandings are relevant insofar as they assist in determining the meaning of the text that was enacted by those drafters: ie, by the framers in the case of the original constitutional text, and by the amenders in the case of amended constitutional text. Drafters’ understandings may be used to confirm that the grammatical meaning was intended, or to clarify the meaning where it is unclear.
Thus described, originalism is not substantially different from the contemporary approach to statutory interpretation and the uses of extrinsic materials permitted by that approach. It also fairly describes the High Court’s well-established approach to constitutional interpretation, a form of textualism better known as ‘legalism’, and it is consistent with the uses of the Convention Debates confirmed in Cole v Whitfield (1988). Indeed, as I have argued elsewhere, originalism occupies a much more mainstream place in Australian constitutional practice than it does in the United States.
The special problem that amendment poses for originalism: the ‘incongruity problem’
One of the key tasks of my article is to identify the special problem that amendment poses for originalism, which I refer to as ‘the incongruity problem’. The problem occurs where:
(1) a provision has been amended in a way that leaves some of the original text (or previously amended text) in place, so that there is an ‘intermeshing’ of original text and amended text;
(2) the resulting text is inconclusive as to the meaning of a provision (ie, the meaning of the original text is not clearly overridden or displaced by the textual changes resulting from the amendment); and
(3) consulting extrinsic sources reveals a conflict between drafters’ understandings.
In these circumstances, which set of drafters’ understandings ought to prevail?
This presents a special problem for originalism that it does not present for non-originalism due to originalism’s commitment to semantic fixation. A non-originalist could reject the relevance of drafters’ understandings altogether, or else adopt one set of drafters’ understandings over another based on preferred values. For example, a non-originalist might favour the original understanding based on a preference for the continuity of constitutional rules, or favour the amenders’ understanding based on a preference for constitutional rules that reflect the popular will. However, these options are not available to an originalist.
In short, the incongruity problem occurs where originalism’s resources to address such conflicts runs out: the text is inconclusive and semantic fixation is indeterminate.
A genuine (if infrequently encountered) interpretive problem for the High Court
Given the narrow scope of the incongruity problem—not to mention the relative infrequency of amendment in the Australian context—it may not arise frequently. It is, nevertheless, a genuine problem that the High Court has confronted and may well confront again. An example discussed in the article that will be familiar to many readers concerns the interpretation of s 51(xxvi), the so-called ‘races power’.
As originally enacted in 1900, the text of s 51(xxvi) expressly excluded Aboriginal peoples from its conferral of Commonwealth legislative power, providing that:
The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.
The provision was amended in 1967 to include Aboriginal peoples. In order to achieve this, the amendment struck out the phrase ‘other than the aboriginal race in any State’ from the text, so that s 51(xxvi) now reads:
The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … the people of any race for whom it is deemed necessary to make special laws.
An unresolved interpretive question is whether s 51(xxvi), as amended, includes the power to enact laws that disadvantage Aboriginal peoples, or whether it is limited to beneficial laws. The text itself does not provide explicit guidance, and there is a conflict between drafters’ understandings. On the one hand, it seems clear that the framers understood the power to include enactment of racially discriminatory laws. On the other hand, it seems equally clear that the amenders understood the modified provision to extend only to laws that benefit Aboriginal peoples.
Interpreting the amended s 51(xxvi) therefore requires determining whether the 1967 amendment displaced the original understanding of the scope of the power, or whether original understanding continues to inform its scope—and if so, how the two ought to be reconciled.
The High Court confronted this question in 1998 in Kartinyeri v Commonwealth. Of the four Judges who addressed the issue, three held that a ‘bare deletion’ within an existing provision cannot override the original understanding of that provision. Accordingly, in the result, the power was found to extend to laws that discriminate against Aboriginal peoples as well as those that benefit them.
But this approach isn’t obvious. Another possibility would have been to hold that original understanding prevails with respect to laws concerning non-Aboriginal peoples (the subject matter of the provision as originally drafted), while simultaneously finding that amenders’ understanding prevails with respect to laws concerning Aboriginal peoples (the subject matter of the amendment). Indeed, this appears to have been the interpretation adopted by Deane J in the Tasmanian Dam Case (1983).
This is not to suggest that this alternative interpretation is to be preferred. It is rather to insist that there is a genuine interpretive problem posed by conflicting drafters’ understandings that the ‘bare deletion’ approach overlooks. Further explanation is required. This illustrates why an originalist account of amendment is needed.
An originalist approach to the incongruity problem
The article ultimately develops and proposes an originalist approach to amendment. The approach is originalist in the sense that it is consistent with the basic commitments of originalism as a theory of constitutional meaning—textualism and semantic fixation—but it is simultaneously novel in that it introduces a set of considerations that, whilst compatible with those commitments, is not derivable from them.
There are several steps in the development of this approach. Rather than attempting to summarise the argument, this post will only give a brief overview. Readers interested in the details can refer to my article.
The first part of the approach involves identifying the circumstances where the incongruity problem arises, which has been touched upon above. Although not discussed further here, it bears emphasis that not all interpretive questions presented by a constitutional amendment give rise to this special problem. Where the problem does arise, however, a method of determining how to reconcile conflicting drafters’ understandings is required.
The second part of the approach develops that method. In outline, the proposed strategy requires examining the relevance and relative weight of amenders’ understanding versus original understanding as a source of constitutional meaning. More specifically, amenders’ understanding should override original understanding only in those circumstances where:
it is relevant to the meaning of the text, and
it carries greater weight than original understanding as a source of constitutional meaning.
This analytical structure is a consequence of the status of original understanding as a more basic source of constitutional meaning, which—it is argued—follows from the characteristic features of framing a constitution that importantly distinguish it from amending. The status of original understanding as more basic means that it is always relevant to instances of amendment that pose the incongruity problem, which, by definition, are cases where the textual changes do not clearly override or displace original understanding. By contrast, I argue, there are at least some instances of the incongruity problem where the relevance of amenders’ understanding cannot be established in the usual way through semantic fixation, and additional considerations are required.
The article then goes on to identify those considerations that require assessment within this analytical frame. These are used to assist the interpreter in: (a) establishing the relevance of amenders’ understanding, and (b) assessing its relative weight. Here it is argued that there are two key elements that require evaluation:
First, the character of the drafting task presented by the amendment. This enquiry concerns the subject matter and purpose of the amendment. Its focal point is the extent to which the amendment concerns core elements of the constitution’s overall structure and design as originally enacted, or whether it concerns matters peripheral to framing qua drafting task.
Second, the character of the drafting process. This enquiry concerns specific features of the process used to draft and propose the amendment, including the identity of the group convened for that task and the manner and form of their engagement. Its focal point is the degree to which the process was appropriate for the drafting task.
Cumulatively, these two lines of enquiry provide a set of analytical tools that are germane to originalism and that provide originalism with a principled interpretive approach to instances of the incongruity problem that is consistent with the theory’s basic concerns and commitments.
Concluding thoughts
By way of illustration, the article goes on to consider how the originalist approach to amendment that it proposes could be applied to decide the constitutional question presented in Kartinyeri concerning the interpretation of the amended s 51(xxvi). Without reaching a definitive conclusion, the article suggests that there is a plausible case to be made for adopting the amenders’ understanding, at least in respect of the application of the provision to Aboriginal peoples. Among the key considerations are that the subject matter of the 1967 amendment did not concern an issue that was central to the project of federation, and that the amending process was well-suited to the drafting task, as it concerned a topic where public opinion and social values arguably hold greater sway.
Evidently, there is a great deal of detail that cannot be taken up in this post, and interested readers are encouraged to refer to the discussion in the article. Even for those who are not ultimately persuaded that an originalist approach to amendment is desirable or appropriate, the article nevertheless draws attention to the kinds of considerations that would be needed to deal with instances of the incongruity problem in a manner that is consistent with an approach to interpretation that is committed to textualism and semantic fixation.
Insofar as these commitments reflect the High Court’s own approach to constitutional interpretation, then the considerations proposed in the article—which are drawn from the idea that the task of producing constitutional text has normative dimensions, and that different drafting tasks pose different demands—may be of assistance in the Australian context. At the very least, the article’s analysis underscores why it is imperative that proposals for constitutional change make the intention to override and displace original understanding clear in the resulting text.
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Lael K Weis is an Associate Professor at Melbourne Law School.
Suggested citation: Lael K Weiss, ‘Originalism and Constitutional Amendment’ on AUSPUBLAW (4 May 2022) <https://www.auspublaw.org/blog/2022/05/originalism-and-constitutional-amendment>