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Published online by Cambridge University Press: 24 January 2025
The use of history in constitutional interpretation is widespread. It is defended by scholars and practised by judges, both in Australia and, in particular, the United States. Originalism, as this practice has come to be known, also attracts many critics. There is extensive debate, for example, about whether originalism disguises or serves political agendas, or whether constitutional pre-commitment is legitimate: in short, whether the present should be bound by the past. Originalism comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. Critics challenge this assumption primarily on normative grounds. What originalists and critics alike rarely consider is whether, and, if so, how, it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: if history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?
This paper explores what conventional historians do (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It surveys the High Court of Australia's record of reference to Australia's constitution-framing, including and following the leading ‘originalist’ case, Cole v Whitfield (1988) 165 CLR 360. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism but concludes that history should be used in constitutional interpretation only with great care and only rarely.
I am grateful to Ned Cooper and, especially, Giselle Kenny, for their invaluable research assistance, as well as to the article's anonymous reviewers for their insightful and helpful comments.
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19 Brest, above n 3, 222. Few non-originalists, however, are likely to argue that originalism would be compelling if it were possible to uncover historical intention definitively. See also Dorf, Michael C, ‘A Nonoriginalist Perspective on the Lessons of History’ (1996) 19(2) Harvard Journal of Legal & Public Policy 351.Google Scholar
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26 The expression ‘professional historian’ is often used, generically, to refer to all working historians. In the discipline, however, a distinction is made between ‘professional’ and ‘academic’ historians. The former write commissioned histories, not necessarily in their own area of interest or expertise, whereas academic historians’ work is mostly expertise driven, and engages with the research of others in the academic community. I have used the term ‘conventional’ to avoid a distracting, non-salient discussion about whether there are significant differences in the respective methodologies.
27 For a persuasive account of why recourse to history in constitutional interpretation is valid, see Goldsworthy, above n 4.
28 Constitutional interpretation is relatively loosely rule-bound compared to statutory interpretation, but constitutional interpretive rules or methods can be found in many texts. Rules of legal interpretation, of course, do not mean that different conclusions never arise in the (non-historical) legal interpretation of the same instruments. United States Supreme Court Justice Ginsburg's note about the difference between the French view of legal conclusions compared to the American view, could well be a comparative description of the 19th century's historical empiricism and the modern view of history as indeterminate: ‘Under the French practice, still followed in large measure in most civil law systems, judicial decisions typically portray the result demanded by the law as inexorable … In the United States, by contrast, court decisions recognize openly that the law is not always clear and certain, that the legislator often allows broad scope for interpretation, sometimes wittingly, other times inadvertently.’ Ginsburg, Ruth Bader, ‘Remarks on Writing Separately’ (1990) 65 Washington Law Review 133.Google Scholar Judges also disagree about what the history they have consulted means for their interpretation of a provision: the recent case of Williams v Commonwealth (2012) 86 ALJR 713 ('Williams’) illustrates this. French CJ and Heydon J refer to, and quote from, among others, statements made in the course of debate at the Federal Conventions of the 1890s regarding the scope of the Executive power. The Justices, however, reach opposing conclusions.
29 Macaulay, ‘History’ (Review of Neele, Henry, The Romance of History. England (E Bull, 1828)Google Scholar) (1828) 47/(94) Edinburgh Review 331.
30 Ibid 361.
31 Ibid 364.
32 Ibid 340.
33 Ranke, Von, ‘Preface: Histories of the Latin and Germanic Nations from 1494-1514’, in Stern, Fritz (ed), The Varieties of History (Vintage Books, 1972) 59.Google Scholar
34 Buckle, ‘Introduction to the History of Civilization in England’ in Stern, above n 33, 125.
35 Bury, ‘The Science of History’ in Stern, above n 33, 210.
36 Trevelyan, ‘Clio, a Muse’ in Stern, above n 33, 234.
37 ‘[T]he history of the world is but the biography of great men.’ Carlyle, Thomas, On Heroes and Hero Worship and the Heroic in History (James Fraser, 1841) 47.Google Scholar
38 For example, Suzanna Sherry points out that, ‘[f]or each issue examined, careful historical analysis of the same evidence may yield opposite conclusions. Unfortunately for proponents of originalism, there are similar disputes about any issue worth taking to the Supreme Court'. Sherry, Suzanna, ‘The Indeterminacy of Historical Evidence’ (1996) 19 Harvard Journal of Law and Public Policy 437, 440.Google Scholar Traversing the histories that have been written of a range of provisions in the United States Constitution, Thomas B McAfee, on the other hand, argues that originalism is more determinant than non-originalism: McAfee, Thomas B, ‘Originalism and Indeterminacy’ (1996) 19 Harvard Journal of Law and Public Policy 429.Google Scholar
39 For example, Goldsworthy, above n 4, considers the meaning of the words ‘directly chosen by the people’ in ss 7 and 24 of the Constitution. The historical evidence, he writes, was that the founders would not have intended to include women among ‘the people’ to which these sections refer (that is, as voters). But, did they intend to exclude them (as Natalie Stoljar interprets Goldsworthy's argument to mean? Stoljar, Natalie, ‘Counterfactuals in Interpretation: The Case Against Intentionalism’ (1998) 20 Adelaide Law Review 29).Google Scholar Goldsworthy was writing contemporaneously with the publication of new historical research that revealed not only an organised involvement on the part of women in the federation movement (of which the framers were aware), but also the wider significance of the South Australian delegates’ insistence at the 1897–98 Federal Convention that South Australian women, already enfranchised in their colony, should be included in the first Commonwealth Franchise Act. This determination (which, as Goldsworthy notes, led to the particular wording of s 41 of the Constitution) was also accompanied by an implicit commitment of the whole Convention to a uniform Commonwealth franchise, and with this, an understanding that all (white) Australian women would be eligible for the Commonwealth franchise (as indeed they became, in 1902). Had the history, as it was ‘known’ prior to 1996, been decisive in a High Court ruling that women were not protected (as members of ‘the people’) from disenfranchisement under a Commonwealth statute, the result would have been historically questionable (if not more). See Irving, Helen (ed), A Woman's Constitution: Gender and History in the Australian Commonwealth (Hale & Iremonger, 1996) 1–20.Google Scholar
40 As happened, for example, with the digitisation of the Federal Convention Debates in 2001: <http://adc.library.usyd.edu.au/index.jsp?database=ozfed&page=home>.
41 See Curthoys, Ann and Docker, John, Is History Fiction? (UNSW Press, 2006).Google Scholar
42 Portelli, above n 22; McQueen, above n 20; Kirby, Michael, ‘Alex Castles, Australian Legal History and the Courts’ (2005) 9 Australian Journal of Legal History 1.Google Scholar
43 The law itself changes, of course: precedents are overruled, new precedents created; statutes are amended and repealed. Many verdicts or orders that were made at one time would probably come out differently, even with similar facts, at a later time. In this sense, there is no ‘last word’ in law, any more than in any other field. However, to the extent that historians, these days at least, are prepared to present their own conclusions as ‘truth', such truth remains different from legal ‘truth'; unlike a verdict or orders (which are taken to represent the truth), historical conclusions are immediately open to challenge and rebuttal by fellow practitioners.
44 Carr, E H, What is History? (Penguin Books, 2nd ed, 1987).Google Scholar
45 Ibid 15.
46 Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1, 36.
47 Roach v Electoral Commissioner (2007) 233 CLR 162, 174 (emphasis added).
48 In the United States, Randy Barnett, for example, has researched the history of the commerce clause in an exemplary fashion. In his own words, he ‘avoid[ed] cherry picking,’ and, with research assistance, identified every reference to ‘commerce’ in the Philadelphia Convention, The Federalist, and the ratification conventions, plus numerous contemporary dictionary definitions and an entire run of the Pennsylvania Gazette, 1728 to 1800, in the quest to identify the ‘normal’ usage of the term at the time of the U.S. Constitution's framing: see Barnett, above n 17, 635. Rob McQueen's history of English and Australian Colonial companies law, written for the purpose of enlightening interpretation of a section — s 51 (xx) — of the Australian Constitution, is also noteworthy for its detailed historical research: see McQueen, above n 20. Curiously, despite many references to the drafting history of this provision in the leading s 51(xx) case, New South Wales v Commonwealth (2006) 229 CLR 1 (‘Work Choices’), McQueen's article is not cited by the Court.
49 Theodor Mommsen, ‘Rectorial Address (1874)’ in Stern (ed), above n 33, 195.
50 John Williams rejects a particular type of counterfactual reasoning in interpretation that he finds in Goldsworthy's account of moderate originalism (Goldsworthy, above n 4). This involves, in Williams's words, effectively asking: ‘If the framers knew of [a current development, unknown at the time] would they have included it in the [relevant] section’ of the Constitution?’ Williams finds this approach ‘fictitious': ‘It would be the equivalent of asking Shakespeare of his opinion of the film adaptation of King Lear.’ Williams, John M, ‘Constitutional Intention: The Limits of Originalism', in Naffine, Ngaire et al (eds), Intention in Law and Philosophy (Ashgate, 2001) 327.Google Scholar Natalie Stoljar, above n 39, 48, also objects that counterfactuals ‘used in intentionalist interpretation … are vague or indeterminate'. Williams's objection is, in reality, similar to my objection to anachronism of concept.
51 Bork, Robert, The Tempting of America: The Political Seduction of the Law (Simon & Schuster, 1990) 144Google Scholar, describes similar sources in his account of what courts should look for to identify the meaning of the United States Constitution's words at the time of its drafting. He refers to these as ‘secondary materials', supplementary to the meaning manifest in the words themselves.
52 A E Housman, quoted in E H Carr, above n 44, 10.
53 This goal (now identified with the ‘new’ originalism: see Smith, above n 2), to which the High Court committed itself in Cole v Whitfield (1988) 165 CLR 360, frames our methodological discussion. As will be evident, if the goal were instead the subjective beliefs of key individual framers about the meaning of a constitution's provisions, certain fallacies would not apply, and the search for sources would take different directions.
54 Consistency regarding the meaning of a constitutional provision should not, in any case, be assumed on the part of delegates who later became Justices of the High Court. For example, although, as John Williams points out (above n 50, 324), Isaac Isaacs's views at the Federal Convention in 1898 on the limits of s 80 dealing with trial by jury were ‘replicated in his determination of the issue as a Justice of the High Court', on the question of whether the Inter-State Commission could validly exercise judicial powers, Isaacs's Convention views were not: see Goldsworthy, Jeffrey, ‘Original Meanings and Contemporary Understandings in Constitutional Interpretation’ in Lee, H P and Gerangelos, Peter (eds), Constitutional Advancement in a Frozen Continent (Federation Press, 2009) 245, 254.Google Scholar The views held by Henry Higgins about the scope of the judicial power with regard to advisory opinion jurisdiction also changed between his tenure as a delegate at the second Federal Convention and as a Justice of the High Court: see Irving, Helen, ‘Advisory Opinions, the Rule of Law, and the Separation of Powers’ (2004) 4 Macquarie Law Journal 105, 112.Google Scholar
55 Walter F Murphy makes similar points about treating the Congressional Record as evidence of the intention of the Congressmen who supported the Fourteenth Amendment's passage in 1866: see Murphy, Walter F, ‘Constitutional Interpretation: The Art of the Historian, Magician or Statesman?’ (1978) 87 Yale Law Journal 1752.CrossRefGoogle Scholar
56 See Irving, Helen, ‘The Most Eccentric of Them All: J.W.R. Clarke’ in Headon, David and Williams, John (eds), Makers of Miracles: The Cast of the Federation Story (Melbourne University Press, 2000) 189.Google Scholar
57 La Nauze, J A, The Making of the Australian Constitution (Melbourne University Press, 1972) 201.Google Scholar Discussed in ibid.
58 In the constitutional context, the ‘connotation – denotation’ distinction, used in the High Court's reasoning, which distinguishes between the core meaning of a constitutional provision, as it was at the time of framing, and the extended scope to which that core can apply, incorporating later developments and new objects, is methodologically unobjectionable. It is, however, an anachronism to treat the denotation as part of the history (which, itself, must still be discovered).
59 Powell, above n 24, 659-61.
60 Ibid 677.
61 Ibid 674.
62 Ibid 680.
63 Finkelman, above n 25, 356.
64 McCamish, Carl, ‘The Use of Historical Materials in Interpreting the Commonwealth Constitution’ (1996) 70(8) Australian Law Journal 638.Google Scholar McCamish observed that the Court had always used Quick, and Garran, , The Annotated Constitution of the Australian Constitution (Angus & Robertson, 1901)Google Scholar as a ‘conduit’ to the Convention Debates. This is also discussed in Helen Irving, ‘Its First and Highest Function: The Framers’ Vision of the High Court as Interpreter of the Constitution’ in P Cane (ed), Centenary Essays for the High Court of Australia (2004) 17.
65 Thomson, James A, ‘Constitutional Interpretation: History and the High Court: A Bibliographical Survey’ (1982) 5(2) University of New South Wales Law Journal 309, 318Google Scholar (quoting Nauze, La, ‘A Little Bit of Lawyers’ Language: The History of “Absolutely Free”, 1890-1900’ in Martin, A W (ed), Essays in Australian Federation (Melbourne University Press, 1969) 58.Google Scholar)
66 Ibid.
67 Official Report of the National Australasian Convention Debates (Melbourne, 1891; Adelaide, 1897); Official Record of the Debates of the Australasian Federal Convention (Sydney, 1897; Melbourne, 1898) 5 vols (Legal Books, 1986) ('Convention Debates’).
68 Burmester, Henry, ‘The Convention Debates and the Interpretation of the Constitution’ in Craven, Gregory (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (Legal Books, 1986) 26.Google Scholar
69 Ibid 35.
70 Cole v Whitfield (1988) 165 CLR 360.
71 Blackshield, Tony and Williams, George, Australian Constitutional Law and Theory (Federation Press, 5th ed, 2010) 1208.Google Scholar
72 This expression, in my view, is regrettable. It does not sit well with Australia's constitutional culture, which is less reverential of both the constitutional instrument and its authors than the United States, from which the expression is borrowed. As I have noted elsewhere, ‘[s]ymbolically, it appropriates a female-specific experience as a masculine attribute… In the manner of traditional biographies of great men that begin by identifying their subject as the son only of a named father (without mention of the mother), it treats women and the experience of birth [of the constitutional nation] as mere vessels for “true” parenthood, that is, paternity.’ Irving, Helen, Gender and the Constitution: Equity and Agency in Comparative Constitutional Law (Cambridge University Press, 2008) 44.CrossRefGoogle Scholar
73 Cole v Whitfield (1988) 165 CLR 360, 385.
74 My concern here, I emphasise, is historical methodology, not the Court's historical conclusion, which, from my own research, I think is correct.
75 Report of the Privy Council Committee for Trade and Plantations, British Parliamentary Papers (1849); Report of South Australian Royal Commission on Intercolonial Free Trade 1891; First and Second Report of the Victorian Board of Inquiry 1894 and 1895.
76 The Convention Debates; Samuel Griffith's ‘Notes on the Draft Federal Constitution Framed by the Adelaide Convention of 1897', Queensland Legislative Council Journals (1897), vol. 47, pt. 1, p. 12 [sic]. The latter is sourced in La Nauze's ‘A Little Bit of Lawyers’ Language: The History of “Absolutely Free”, 1890-1900', above n 65.
77 As cited in the judgment [all sic]: ‘Samuelson, Hancock and Wallace, Economics, 2nd Aust ed. (1975)'; ‘Patterson, The Tariff in the Australian Colonies 1856-1900 (1968)'; ‘LaNauze, J.A., ‘A Little Bit of Lawyers’ Language': The History of ‘Absolutely Free’ 1890–1900” in Martin, ed., Essays in Australian Federation (UP, 1969)Google Scholar'; ‘F.R. Beasley, “The Commonwealth Constitution: Section 92 — Its History in the Federal Conventions (1948) 1 Annual Law Review (W.A.) 97.’ Robert Garran's autobiographical Prosper the Commonwealth (Angus and Robertson, 1958) 415, is also cited, but the quote is sourced from ‘LaNauze, “Absolutely Free” at p 58’ [all sic], above n 65, and is a mere quip, not an element in the history.
78 Quick, John and Garran, Robert, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901)Google Scholar; SirParkes, Henry, Fifty Years in the Making of Australian History (Longmans, Green and Co, 1892).Google Scholar
79 For example, was the reliance on La Nauze's essay ‘A Little Bit of Lawyers’ Language: The History of “Absolutely Free”, 1890-1900', above n 65, influenced by the fact that La Nauze's major work, The Making of the Australian Constitution, above n 57, had been favourably reviewed in the Federal Law Review by a constitutional lawyer, Leslie Zines (as well as a historian, Manning Clark), with Zines’ review reproducing the now-famous exchange in the Concrete Pipes case between bench and counsel, in which the enticing glimpse of what is to be found in the Convention Debates is held out to the Court and then withdrawn on command? Zines, Leslie, ‘Review by a Lawyer’ (1972) 5 Federal Law Review 158, 159.CrossRefGoogle Scholar
80 The Debates, entitled Official Report of the National Australasian Convention Debates (1891, 1897) and Official Record of the Debates of the Australasian Federal Convention (1897, 1898) are referenced simply as ‘Convention Debates’, plus city and year in which the relevant Convention session took place. See above n 67.
81 The extract from Barton's speech that begins: ‘a matter of course that at some period, after the federation of the colonies …’ is cited as appearing on p 44 of the Convention Debates (Sydney, 1891), whereas it is to be found on p 89. The extract from Griffith's speech that begins: ‘so soon as uniform duties are imposed …’ is cited as appearing on p 255 of the Convention Debates (Sydney, 1891), whereas it is to be found on p 528. Cole v Whitfield (1988) 165, 388.
82 Quotations from the Convention Debates are inconsistent; several are taken from the published volumes of the Debates themselves; others are quoted from secondary sources, including La Nauze (given as ‘LaNauze’), above n 65, and Beasley, above n 77: see Cole v Whitfield (1988) 165 CLR 360, 387, 389, 390, 391 for examples of the latter. As noted above, n 77, the quote from Garran's Prosper the Commonwealth is taken from La Nauze, above n 65, 392; strictly speaking, this should be counted as one secondary source rather than two.
83 Some of these, granted, are innocuous, but others are contentious; for example: ‘The difficulties which inhere from s 92 flow from its origin as a rallying call from federationists who wanted to be rid of discriminatory burdens and benefits in trade and who would not suffer that call to be muffled by nice qualifications'. Cole v Whitfield (1988) 165 CLR 360, 390. It is very unlikely that the federationists would have felt stifled by detailed wording in a provision of the Constitution Bill. Their ‘rallying calls’ rarely included actual quotes from the Bill. See, for example, the compilation of primary materials from the colonial referendum campaigns for and against the Bill, in Bennett, Scott (ed), Federation (Cassell, 1975).Google Scholar
84 The tally includes references only to the individuals as delegates, ie not as justices. I have also not counted references to the parliamentary speeches or post-federation publications of any of the delegates.
85 The others are Alfred Deakin, John Quick, George Reid, John Cockburn and William McMillan.
86 Cole v Whitfield (1988) 165 CLR 360, 390.
87 Singh v Commonwealth (2004) 224 CLR 322, 347.
88 To give a more recent example, the ‘public meaning’ of the 1967 referendum which removed the provisions referring to Australian Aborigines in the Constitution could not be understood by reading the speeches made in the Commonwealth Parliament when the relevant Constitution Alteration Bill was introduced. Much of the Australian public, it is clear, misunderstood the purpose of the referendum, believing it to be about Aboriginal ‘citizenship’ or ‘rights'. See Attwood, Bain and Markus, Andrew, ‘(The) 1967 (Referendum) and All That: Narrative and Myth, Aborigines and Australia’ (1998) 29(111) Australian Historical Studies 267.CrossRefGoogle Scholar
89 (1990) 169 CLR 482 ('Incorporation Case’).
90 McQueen, above n 20, 246.
91 Ibid 264.
92 Schoff, Paul, ‘The High Court and History: It Still Hasn't Found(ed) What It's Looking For’ (1994) 5 Public Law Review 253, 254.Google Scholar
93 Ibid 261.
94 McCamish, above n 64.
95 Ibid 639.
96 Ibid 650.
97 My tallies have been assembled painstakingly, but should not be treated as statistically precise. In identifying constitutional cases, I have applied Anne Twomey's definition — ‘cases that dealt significantly with constitutional issues’ — but have given it a narrower application than she probably intended: Twomey, Anne, ‘Review of High Court Constitutional Cases 2007’ (2008) 31 University of New South Wales Law Journal 215, 215.Google Scholar My interest is in cases in which historical reasoning is applied to constitutional interpretation, including in dissenting judgments. Partly for manageability, and partly because minor constitutional questions or brief references to constitutional provisions do not provide an opportunity for methodological depth, I have concentrated on cases where the constitutional question is ‘significant'. I have also focused on cases where there is an opportunity for historical reasoning. I have left out s 109 cases, since these do not engage history; as with cases where the High Court is acting as a court of disputed returns, notwithstanding the mention of constitutional provisions. I have also not included cases that concern only state constitutional questions. My approach delivers a slightly different range of cases than that taken by Stephen Gageler ('that subset of cases decided by the High Court in the application of legal principle identified by the Court as being derived from the Australian Constitution’), an approach followed in the annual statistical survey of constitutional cases undertaken by Andrew Lynch (later joined by George Williams) who also includes cases which involve questions of state constitutional law. Gageler, Stephen, ‘The High Court on Constitutional Law: The 2001 Term’ (2002) 25 University of New South Wales Law Journal 194, 195Google Scholar; Lynch, Andrew ‘The Gleeson Court on Constitutional Law: An Empirical Analysis Of Its First Five Years’ (2003) 26 University of New South Wales Law Journal 32, 38-9.Google Scholar
98 References to Quick and Garran, above n 64, which would increase the percentage, are not included in this tally (since Quick and Garran has always been an ‘authorised’ source in constitutional interpretation).
99 I have attempted to avoid negative references to constitutional history; that is to say, references to the Constitution's framing that reject its utility for constitutional interpretation. Some, however, effectively reject and accept at the same time, and are included: for example, Deane J, in Theophanous v Herald & Weekly Times (1994) 182 CLR 104, 168 ('Theophanous’):
To the extent to which the views of the framers of the Constitution can be gleaned from the largely ex tempore and sometimes ill-informed speeches and comments of participants in the Convention debates, they lend no real support for the proposition that the absence of an express bill of constitutional rights was intended by the framers to preclude the implication of [particular] rights.
100 The count includes references to delegates to the Federal Conventions, purely in their capacity as delegates. Where the name appears more than once in a sentence, or in reference to the same speech, or where it is repeated in the relevant footnote, this was counted, in each case, as one.
101 (2012) 86 ALJR 418 ('Betfair’).
102 (2012) 86 ALJR 713 ('Williams’).
103 Above, n 64.
104 Of which 14 include no other reference to the Constitution's history.
105 Above, n 57.
106 In Eastman v The Queen (2000) 203 CLR 1, 44, McHugh J commented that ‘[p]robably, most Australian judges have been in substance what Scalia J of the United States Supreme Court once called himself — a faint-hearted originalist.’ This is probably true, although only in the sense that McHugh J himself explained, which allows for the accommodation of original meaning to present realities, expressed in the Australian connotation–-denotation distinction. Australian originalism is also modified, McHugh J explains, because Cole v Whitfield affirmed that ‘the intention of the makers of the Constitution is one to be determined objectively, [and therefore] the present generation may see that the provisions of the Constitution have a meaning that escaped the actual understandings or intentions of the founders or other persons in 1900': at 46 (emphasis in original). This, then, says little more than that Australian judges, for the most part, have used constitution-framing history eclectically, as well as inconsistently, as one source among others.
107 Ha v New South Wales (1997) 189 CLR 465; Incorporation Case (1990) 169 CLR 482; Williams (2012) 86 ALJR 713.
108 William Gummow, for example, refers to the ‘history in Britain and the colonies before 1900 of disqualification from exercise of the franchise’ as ‘a matter of critical importance’ in the judgment of Gummow, Kirby and Crennan JJ in Roach v Electoral Commissioner (2007) 233 CLR 162, 189–92. Gummow, William M C, ‘Law and the Use of History’ in Gleeson, Justin T and Higgins, Ruth C A (eds), Constituting Law: Legal Argument and Social Values (Federation Press, 2011) 61, 73.Google Scholar
109 The conclusion in Williams (2012) 86 ALJR 713 on the scope of s 61 is significantly based on the history of the Constitution's framing, including successive drafts of the Constitution and the views of notable framers; it does not rest on federation history more broadly.
110 Notably, Callinan J, as noted by Dyson Heydon, ‘Theories of Constitutional Interpretation: a Taxonomy’ (2007) Winter Bar News 12, 19.
111 The statement in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 473–4 ('Castlemaine Tooheys’) by Mason CJ, Brennan, Deane, Dawson and Toohey JJ, that
the validity of the [impugned] legislation rests on the proposition that the legislative regime is appropriate and adapted to the protection of the environment in South Australia from the litter problem and to the conservation of the State's finite energy resources and that its impact on interstate trade [with reference to s 92 of the Constitution] is incidental and not disproportionate to the achievement of those objects
is not likely to have been comprehensible, without more, had it been made as a proposition at the Federal Conventions.
112 Eastman v The Queen (2000) 203 CLR 1, 46.
113 Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law: An Essay (Princeton University Press, 1997) 36Google Scholar: ‘[L]egislative history is extensive, and there is something for everybody. As Judge Harold Leventhal used to say, the trick is to look over the heads of the crowd and pick out your friends.'
114 The higher figure is the total for both the 1891 and 1897–98 Federal Conventions, factoring in the 17 who attended both. At the 1897–98 Convention, the five participating colonies sent 10 delegates each; the extra four are explained by the fact that Western Australia swapped four delegates in between Convention sessions.
115 John G Wofford, albeit a critic of originalism, supports a case for giving ‘special weight’ to the views of particular framers of the United States Constitution. He cites Charles A Beard, who, among others, counted those at the 1787 Philadelphia Convention who displayed, in his words, ‘character, ability, diligence and regularity of attendance'. Wofford, John G, ‘The Blinding Light: The Uses of History in Constitutional Interpretation’ (1964) 31 University of Chicago Law Review 502, 508CrossRefGoogle Scholar, quoting Beard, Charles A, The Supreme Court and the Constitution (Macmillan, 1912) 16–17.Google Scholar Some framers, like James Madison, also played notable roles in post-Convention American history. However, even without ‘post-hoc election’ as a reason for singling out certain framers, I see no historical case for privileging the views of the Convention ‘stars', if what one wants to know is the public historical meaning of a constitutional provision.
116 These tallies are as accurate as possible, but precision in counting is difficult, given, among other things, the occasional intermingling of references to delegates both in a pre-judicial and a judicial role, and the repetition of names in what is, effectively, a single reference. The likely variations in numbers in the event of a recount would not, however, alter the trends.
117 Theophanous (1994) 182 CLR 104, 169.
118 Theophanous (1994) 182 CLR 104, 172.
119 McGinty v Western Australia (1996) 186 CLR 140, 273.
120 La Nauze, above n 57, 64–8.
121 Bannon, J C, Supreme Federalist: The Political Life of Sir John Downer (Wakefield Press, 2009).Google Scholar
122 Official Report of the National Australasian Convention Debates, Adelaide, 23 March 1897, 11 (Edmund Barton).
123 In the words of Edmund Barton, ibid: ‘This is the first Convention directly appointed by the people, and therefore the inference from that is that the desire of the people is that, as far as possible, this Convention shall originate the Constitution.’
124 For example, Mason CJ, questions the view that the Constitution
was not a supreme law proceeding from the people's inherent authority to constitute a government … notwithstanding that it was adopted, subject to minor amendments, by the representatives of the Australian colonies at a Convention and approved by a majority of the electors in each of the colonies at the several referenda.
Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 CLR 106, 138
125 There is some confusion surrounding the reason for their absences from the second Convention. Griffith was appointed Chief Justice of Queensland in 1893, but we do not know if this would have disqualified him from standing for election to the second Convention. The simple fact was that Queensland did not send representatives to that Convention. Inglis Clark's absence is less easily explained. La Nauze points out that Clark planned to travel to the United States in 1897 and French CJ notes that Clark was appointed to the Tasmanian Supreme Court in 1898. (La Nauze, above n 57, 93; French CJ in Williams (2012) 86 ALJR 713, 731, [48]). These are not convincing reasons. The majority of the Premiers had agreed at a meeting in 1895 to proceed with an elected Convention, and Enabling Acts to effectuate it had been passed in the participating colonies in 1895 and 1896 (the Tasmanian Act passed on 10 January, 1896. See Williams, John M, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) 465–6).Google Scholar In other words, all who hoped to take part would have anticipated its eventuality around this time. Given Clark's prominence at the 1891 Convention, and his acute appreciation of the significance of the Philadelphia Convention, one would have expected his travel plans to be secondary. The historical record has not, as yet, revealed the reason they were not. As for the appointment to the Tasmanian Supreme Court, the expectation at the time of the Convention elections, in March 1897, was that only two Convention sessions would be held, both in that year. The decision to hold a third session in early 1898 was made late in the Sydney session, in September 1897, when time ran out for debate on the proposed amendments to the draft Constitution Bill. A judicial appointment in 1898, even if anticipated in 1897, could not, therefore, have impeded participation in the first two sessions of the Convention, and any difficulties in attending the third session would not have been foreseeable before late 1897.
126 Tushnet, Mark, ‘Interdisciplinary Legal Scholarship: The Case of History-in-Law’ (1996) 71 Chicago-Kent Law Review 909.Google Scholar Alfred H Kelly defines ‘law-office history’ as ‘the selection of data favourable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered.’ This history, he wrote, would fail ‘to stand up under the most superficial scrutiny by a scholar possessing some knowledge of American constitutional development.’ Alfred H Kelly, ‘Clio and the Court: An Illicit Love Affair’ (1965) The Supreme Court Review 119, 122 n 13, 132.
127 Tushnet, above n 126, 934–5.
128 Ibid 935.
129 Selway, above n 21, 129.
130 Selway acknowledges debates about historical indeterminacy, but treats these as ‘beyond the compass’ of his discussion: ibid 144.
131 Ibid 158.
132 Ibid 139.
133 Ibid 146.
134 Sunstein, above n 9, 313. See also Sunstein, , The Partial Constitution (Harvard University Press, 1993).Google Scholar
135 Sunstein, above n 9, 314.
136 In Selway's words: ‘[H]istory once used in legal reasoning, becomes part of the law — history becomes as fixed and unchangeable (or not) as the law itself.’ Selway, above n 21, 153.
137 Selway, above n 21, 158. See also Gummow, above n 108, 72. Gummow reflects on the need for definitive and permanent answers in the law. He identifies constitutional law as ‘[p]erhaps the most significant field where the High Court attends to matters of history’, an activity that the Constitution's text ‘invites, perhaps requires'. Nevertheless, as he notes with respect to the provenance of s 51 (xx), it may prove impossible from the historical materials ‘to distil any conclusions’ about the scope of the power.
138 Paul Brest also notes that the problems facing historians of political theory are analogous. He cites Skinner, Quentin, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3, 6CrossRefGoogle Scholar on the danger that the historian's expectations about what the historical actor meant will go beyond anything the actor would have accepted as an account of ‘his’ own action. Brest, above n 3, 219.
139 See, eg, Lacapra, Dominick, ‘Rethinking Intellectual History and Reading Texts’ (1980) 1916 History and Theory 245CrossRefGoogle Scholar; Janssen, Peter L, ‘Political Thought as Traditionary Action: The Critical Response to Skinner and Pocock’ (1985) 24 History and Theory 115.CrossRefGoogle Scholar
140 Enid Campbell, writing about legal history, decisional rules, and precedent, makes a similar point: ‘The contrast between the lawyer's “logic of authority” and the historian's “logic of evidence” should not … be pressed too far, for the search for authority is in part a search for evidence.’ Campbell, Enid, ‘Lawyers’ Uses of History’ (1968) 6 University of Queensland Law Journal 1, 1–2.Google Scholar
141 The absence of a contemporary legal meaning does not mean that a provision necessarily has a discoverable historical meaning. The word ‘intercourse’ which also appears in s 92 evades textualist meaning, but its contextual historical meaning remains equally unclear. The term was not debated in the Federal Conventions, and Quick and Garran, otherwise meticulous in turning their lens on every limb of every section of the Constitution, do not discuss ‘intercourse’ separately from ‘trade and commerce'. (Quick and Garran, above n 64, 845-58). In the leading ‘intercourse’ case, Gratwick v Johnson (1945) 70 CLR 1, 17, the Court simply asserts a definition without reference to legal or historical sources. Then, in Cole (1988) 165 CLR 360, 393, the Court restates the definition from Gratwick v Johnson: namely, ‘a guarantee of personal freedom “to pass to and fro among the States without burden, hindrance or restriction”.’ See Barnett, above n 17, 16 for an extended discussion of the alternative 18th century meanings of the term ‘intercourse’ in its relation to the United States Constitution's commerce clause.
142 Scalia, Antonin and Garner, Bryan A, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012) 33.Google Scholar
143 Cole v Whitfield (1988) 165 CLR 360, 385.
144 Ibid.
145 Something should be said here about s 15AB of the Acts Interpretation Act 1901 (Cth). This provision lists the types of purpose for which ‘extrinsic material’ — material not forming part of an Act — may be used in interpreting an Act. Section 15AB(2) sets down the material that may be considered. This is an anchored and disciplined list, directed specifically at ascertaining the legislative intention (not the ‘public meaning’) behind an Act. The materials listed are all directly related to the Act itself: relevant reports of official commissions or committees; documents referred to in the Act; second reading speeches, and explanatory memoranda relating to the Bill that were made available to the Parliament. Secondary sources, even those that may have something to say about the relevant mischief, do not feature. Of course, the Acts Interpretation Act cannot bind constitutional interpretation, but its emphasis on material explicitly directed at an Act's legislative purpose is methodologically instructive.
146 There can be no doubt, for example, that ‘marriage’ in the 1890s meant (publicly and legally) a heterosexual union, and that such a meaning — if the history is dispositive —should be treated as ‘embedded’ in s 51(xxi) of the Constitution.
147 For a discussion of the distinction between ‘method’ and heuristics in writing history, see Bevir, Mark, The Logic of the History of Ideas (Cambridge University Press, 1999).Google Scholar Whether the history of ideas offers a better methodological alternative to the ‘historical fact’ approach in constitutional interpretation is a topic for another paper.
148 Finkelman, above n 25, 355.
149 Enid Campbell observes that, in the United States, ‘suggestions have been made from time to time that courts should be assisted by independent research agencies under their own control'; such proposals, she comments, ‘have a good deal to commend them and merit further attention.’ Campbell, above n 140, 5.
150 To adapt Goldsworthy's comment that the search for ‘deeper principles’ in every provision would lead constitutional interpretation into an ‘explo[sion] into political philosophy'. Goldsworthy, above n 4, 47.