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41 Melb. U. L. Rev. 182 (2017-2018)
Cosmopolitan Originalism: Revisiting the Role of International Law in Constitutional Interpretation

handle is hein.journals/mulr41 and id is 190 raw text is: COSMOPOLITAN ORIGINALISM: REVISITING THE ROLE OF INTERNATIONAL LAW IN CONSTITUTIONAL INTERPRETATION NOAM KOLT The issue of consulting international law in the interpretation of national constitutions is polarising. Both in Australia and abroad, judicial and academic responses have lacked precision and subtlety. While originalists have decried the idea of using contemporary international law to construe constitutions, non-originalists have argued that constitu- tions should be updated to better reflect international human rights law. This article presents a middle road between two untenable extremes. It revisits the problematic association between originalism and localism, and explores the prospect of cosmopolitan originalism. While insisting upon fidelity to the text of the Australian Constitution, this article recognises that international law is a valuable interpretive resource. In order to challenge the reluctance of originalists to consult contemporary international law, this article outlines several pathways, compatible with moderate originalism, which permit recourse to international law. The role of the common law, the ambiguity inherent in constitutional texts and the distinctive features of international law help to overcome traditional originalist objections. This article finds that although originalism constrains the role which international law can play in constitutional interpretation, originalism is not a barrier to robust engagement with international law. CONTENTS I Introduction .............................................................................................................. 184 II Theories of Constitutional Interpretation ............................................................ 189 A N ational C ontext ......................................................................................... 189 B M oderate O riginalism ................................................................................ 190 C Accommodating Constitutional Change ................................................. 192 III International Law in Constitutional Interpretation ............................................ 195 BA, LLB (Hons) (Monash), GDLP (ANU). An earlier version of this article was presented at the Arnold Bloch Leibler Honours Conference (Faculty of Law, Monash University, 12 October 2015). I wish to thank Ronli Sifris and the anonymous referees for their helpful comments. I am particularly grateful to Jeffrey Goldsworthy for his invaluable guidance and insight. Any errors are my own. 182

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