Howard and constitutional interpretation

And he rejects Kirby’s view that meanings of words change: in practice substantive linguistic change occurs very slowly, particularly in legal phraseology (763).

Callinan J accepts that the Constitution must be construed by looking to the original intention of the founders: The Court is … obliged, to have regard to the Convention Debates (763); but then, as if quoting from the American Founding Fathers, His Honour refers to a mischief that our federal democracy remedies: [federalism] is a feature that tends to protect liberty and to restrain the over-concentration of power. (612). This is not from the Convention debates.

And later he will say: To disregard entirely a ... fundamental "policy" of the Constitution, federalism, and the careful division of power that it involves, is to disregard … the object which … the framers intended, the people … adopted, and the Imperial Parliament implemented ... (741).

His Honour’s words resonate with sense - until he reaches the last clause. If the Constitution’s implementation is the result of British legislation, then it can be legally revoked by an amendment of the British parliament (assuming Australians bothered to take any notice). No British or Australian legislation can prevent this. Our independence, is therefore, a legal fiction; Unless there had been some revolutionary event which severed the legal connection with Britain.

This, in fact, occurred. The better view of the Constitution, is that it is a political document, a compact between the people who agree to be governed in a certain way for a definite purpose. Ratification by the citizens of the Australian colonies was the implementing power for the Constitution. The legal conundrums that followed were the direct result of a High Court that misconstrued the ratifying act of the people.

Justice Callinan, rightly, looks to the United States Constitution as the source of our Constitution; but the source and meaning of federalism can be found best explained in the Federalist Papers which were written by the American founders to convince New York State citizens to ratify their new Constitution.

We assume, without knowing, but knowing how well read he is, that His Honour has read them.

Had he included appropriate references to those essays in his judgment, he would have established a principle of constitutional interpretation whereby future constitutional lawyers could look to the original intent of the original founders. Inter alia, they would discover the purpose of a federal republic such as ours is to better secure the citizen’s natural rights, expressed by Abraham Lincoln to apply to all men (including Australians) at all times.

One can not help but be sympathetic to Callinan J’s opinion of the majority’s decision. It is worth considering that if “the peace order and good government” of corporations permits the Commonwealth to regulate employment contracts, how much more can be regulated by a law for “the peace order and good government” of our currency coinage and legal tender (they being another head of Commonwealth power)?

The expansion of the Commonwealth’s power to date has been more gradual and silent than sudden; but, thanks to the High Court, it is probably now complete.

Some looking at Australia must wonder if it doesn’t resemble more the Weimar Republic in 1931 waiting for the Ubermensch than the liberal democracy it once aspired to be.