Constitutional Fixed Points & the Australian Constitution: Cass Sunstein on ‘How to Interpret the Constitution’
21.2.24
Cass Sunstein is well known to many readers – for his work on constitutional law and theory, but also (with Richard H Thaler) on 'nudges' and how government and private actors can make better decisions using the insights of social psychology and behavioural economics. On some measures, he is the most cited contemporary legal scholar, and so prolific that he is the lawyer’s equivalent of Kevin Bacon – the person we use to judge 'degrees of separation' in the academy.
Any new book by Sunstein is thus highly anticipated, and his new book on constitutional interpretation, How to Interpret the Constitution (Princeton University Press, 2023), does not disappoint. In this pithy new work, Sunstein provides an interesting and novel account of how to approach the interpretation of a written constitution.
The approach courts should take, according to Sunstein, is one that makes a 'constitutional order better rather than worse'. At the same time, in making judgments of that kind, Sunstein argues that judges and citizens should not simply give effect to their own moral and political preferences. Instead, they must reconcile those preferences with a set of constitutional 'fixed points' – or points that are 'not merely precedents' but also 'commitments that people would be exceedingly reluctant to give up'.
In this sense, Sunstein advocates a form of constitutional pragmatism, but one that is constrained rather than open-ended in approach. But his aim is not to endorse constitutional pragmatism per se, but rather a constrained consequentialist approach to selecting a preferred method of constitutional interpretation.
One way of reading Sunstein would make these constraints quite limited. At times, Sunstein suggests that constitutional “fixed points” are identified purely by each judge, using their own best individual judgment – without reference to any notion of shared principles or values. And on this view, the constraints imposed on judicial pragmatism in interpretive selection will be quite modest. But there are also intimations in Sunstein of what Jurgen Habermas called a more “inter-subjective” or shared conception of constitutional fixed points, which treats such points as widely shared understandings of constitutional principles and practice (albeit as seen through the lens of individual judges). (Sunstein, for instance, notes the relevance of both academic and legal professional attitudes to the identification of an individual judge’s constitutional fixed points.) Fixed points of this kind are close to the idea of “constitutional purposes” or what elsewhere I and others have called constitutional “values”. And it this version of Sunstein’s argument that I think is the more compelling one, at least in an Australian context.
A large part of Sunstein’s argument is focused on rebutting the current emphasis in the United States on originalist approaches to constitutional interpretation, and their claim to the only legitimate approach to constitutional construction, or indeed, legally required by the text of the Constitution itself. Instead, Sunstein argues that there is no single 'correct' or legitimate approach to constitutional interpretation in any given country. Rather, there is always a voice facing judges, citizens or legislators as to how best to interpret a constitution. And no constitution, and especially the US Constitution, dictates how it should be interpreted.
There is a great deal one could explore about Sunstein’s claims. Here, however, I want to focus on what it would mean to take seriously Sunstein’s proposed approach in Australia.
Sunstein’s focus in How to Interpret the Constitution is on the US Constitution, but the logic of his argument extends more broadly. Indeed, it arguably speaks as much to a country such as Australia, as to the US. As I explore below, however, it requires adaptation in each context – to account for the different ways in which constitutional fixed points are developed and evidenced in various legal traditions.
Australian Constitutional Fixed Points
Toward the end of How to Interpret the Constitution, Sunstein proposes a list of clear and tentative fixed points under the US Constitution. The list is illuminating.
1. The Constitution does not forbid maximum hour and minimum wage laws.
2. Brown v. Board of Education was correctly decided; the Constitution does not permit racial segregation.
3. The Supreme Court has been right to strike down laws that discriminate on the basis of sex.
4. The First Amendment should be understood to give very broad protection to political speech, subject to the qualification in (5).
5. The Supreme Court should be much less aggressive in reviewing restrictions on campaign contributions and campaign expenditures.
6. The Supreme Court should be much less aggressive than it has been in reviewing restrictions in commercial advertising.
7. The Supreme Court was wrong to hold that 'political gerrymandering' presents a political question, not subject to judicial review.
8. The Constitution allows Congress to grant broad discretion to administrative agencies.
9. Griswold v. Connecticut, protecting the right of married couples to use contraceptives, was correctly decided.
10. The Supreme Court should continue to allow the existence of independent agencies, such as the Federal Communications Commission and the Federal Trade Commission.
What would it mean to adopt a similar list for Australia? My suggestion is that there are seven fixed points in Australian constitutional law, at least if we understood the idea as a set of shared constitutional practices and understandings (rather than my own preferred constitutional understanding of that idea).
1. The Constitution creates and entrenches a system of representative and responsible government (ACTV, Lange).
2. The Constitution creates a powerful central government, with the Commonwealth Parliament having a list of enumerated powers to be given broad scope, subject only to a limited number of exceptions (Engineers, Jumbunna).
3. The Constitution contemplates a central government capable of advancing Australia’s interests on the international stage, including through legislating to implement international obligations (Tasmanian Dams).
4. The states have an important but residual role to play in the Australian federal system, though their independent functioning must be preserved as part of the federal nature of our constitutional system (Engineers, Melbourne Corporation).
5. The Constitution contemplates a unified national economy, with free movement of goods and services within Australia, subject only to restrictions necessary to the preservation of public health and safety (Cole, Castlemaine).
6. The Constitution prescribes a fairly strict separation of federal judicial and non-judicial power (Boilermakers) ('fairly' because there are some clear exceptions to the general rule), and a less strict but still meaningful effective separation of judicial and non-judicial power at a state level (Kable).
7. The Constitution is predicated on respect for and protection of the rule of law (Communist Party, Plaintiff S157).
As noted, all these points find express support in decisions of the High Court of Australia. Following Sunstein’s lead, I have tried to simplify the decisions of the Court, in the process, necessarily downplayed some of the nuance to these points. But broadly speaking, I suggest that these are all principles that find express support in decisions of the Court over the last 100 years. Indeed, they are principles that have been affirmed multiple times by the Court.
They are also decisions that are especially important because of their connection to the broad structures, functions and values of the Constitution as a whole. That is they are fixed points that approximate what myself and others have called “constitutional values”.
Because of this, Sunstein suggests, they can help us understand the range of plausible interpretive approaches to constitutional interpretation in Australia. If a constitutional theory cannot account for all or at least most constitutional fixed points, Sunstein argues, it lacks plausible fit with an existing constitutional tradition.
This also suggests obstacles to a wholly textualist or 'originalist' approach to constitutional interpretation or construction in Australia.
Fixed Points as Express or Implied, Positive or Negative
Two things are worth noting about this list of 'Australian constitutional fixed points'. First, the list includes decisions that place heavy reliance on the text of the Constitution alone, and a so-called 'ordinary and natural' reading of constitutional language (eg point 2, Engineers), as well as decisions that rely on a mix of constitutional text and structure (eg points 1, 3, 4 and 5).
This accords with Sunstein’s list – of points that are closely sourced in the text of the US Constitution and more implied common law-style interpretive ideas. It also means that a wholly textualist account lacks plausible fit with existing Australian law and tradition. (Note that textualism is importantly distinct from legalism, in this context. Legalism clearly permits attention to constitutional structure as well as text and history.)
Second, in understanding the scope and content of these various fixed points, it is useful to understand them as defined in both affirmative terms, and through what the Court has rejected as guiding or 'fixed' principles.
Point 2, for example, is stated above in affirmative terms, and reflects the Court’s approach to constitutional interpretation after Engineers, qualified by the prior decision in Jumbunna Coal Mine (which the Court did not reference, but also did not overrule, in Engineers). It also reflects a series of important decisions by the Court in the 1980s, 1990s and 2000s [HC1] on the scope of the external affairs power (Tasmanian Dams) and the corporations power (Work Choices). The principle, however, gains even greater clarity if it is read in conjunction with point 3, which reflects the rejection by the High Court in Engineers of the 'implied immunity of instrumentalities' and 'reserved state power' doctrines.
The same could be said for the other points or principles. Sunstein himself also implicitly acknowledges this, stating some of his principles in terms of what the Supreme Court has held the Constitution requires (points 2-4, 6-10), and others as a mix of prohibition and permission (points 1 and 5).
Together, points 2 and 3 also make it even clearer that there are challenges facing a strictly originalist approach to constitutional interpretation in Australia. Most leading academic originalists have embraced a 'modified' or qualified approach that takes this challenge seriously. But the most prominent Australian judicial proponent of originalism, Justice Callinan, attempted to so with far less success. For instance, in Work Choices, he attempted to revive a form of 'federal balance' argument rejected in Tasmanian Dams, and which is arguably in tension with points 2 and 3. This was also one reason the majority of the Court in that case found it so easy to reject Callinan J’s approach, as lacking plausibility as an approach to interpreting the Commonwealth Constitution.
Constitutional Fixed Points and the Political Constitution
One of the things that Sunstein stresses is that not all political or moral fixed points for a society or individual plausibly count as constitutional in nature. Indeed, he suggests that it is plausible that certain principles (social rights, for example) could be omitted from the list of constitutional fixed points in modern American constitutional law, even though Sunstein himself has previously argued for their treatment as constitutional or quasi-constitutional in nature.
One might challenge that view even on its own terms, in the US, as giving too much primacy to the text of the Constitution and the role of the Supreme Court as its interpreter. Putting that to the side, however, it does not seem a plausible approach to the interpretation of the Australian Constitution – which has a truly mixed legal-political constitutional identity or tradition.
In Australia, there are a range of principles that find limited expression in the text of the Constitution, and decisions of the High Court, but which are critically important parts of the
small 'c' political constitution. This is clearly highlighted in recent work by a range of scholars, including Professor Adrienne Stone, Associate Professors Will Bateman and Will Partlett, Dr Lynsey Blayden and myself. Importantly these principles also include the idea of positive as well as negative constitutionalism, and a strong role for the state as the guarantor and protector of citizen rights and welfare, not simply potential rights-infringer. It also includes a set of egalitarian principles, including commitments to social, political and economic equality, as well the role of the state in ensuring universal access to a range of core goods, and income support.
In Australia, at least, the idea of constitutional fixed points must also be understood to encompass these ideas – or else risk privileging the text of the constitution and/or legal constitutional approaches and traditions, over more implicit, conventional, statutory and political ones.
While Sunstein clearly offers ideas that catalyse useful reflection in all constitutional systems, his ideas also clearly require adaptation in each one before they can fully ground what Chief Justice Gageler has called a truly 'autochthonous' approach to constitutional construction.
Rosalind Dixon is a Professor at UNSW Law & Justice and Director of the Gilbert + Tobin Centre of Public Law. The author thanks Professor Lisa Burton Crawford, Dr Lynsey Blayden, and Patrick Knowles SC for helpful comments, and Hayden Clift for outstanding research assistance.
Suggested citation: Rosalind Dixon, ‘Constitutional Fixed Points & the Australian Constitution: Cass Sunstein on ‘How to Interpret the Constitution’’ on AUSPUBLAW (21 February 2024) <https://auspublaw.org/blog/2024/2/constitutional-fixed-points-the-australian-constitution-cass-sunstein-on-how-to-interpret-the-constitution/>