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25 Fed. L. Rev. 1 (1997)
Originalism in Constitutional Interpretation

handle is hein.journals/fedlr25 and id is 5 raw text is: ORIGINALISM IN CONSTITUTIONAL INTERPRETATION Jeffrey Goldsworthy* Our duty is to declare the law as enacted in the Constitution and not to add to its provisions new doctrines which may happen to conform to our own prepossessions.1 1 INTRODUCTION In this article I will discuss two questions concerning originalism in Australian constitutional law. The questions are, first, the extent to which the contemporary meanings of constitutional provisions, express or implied, are the same as their original meanings in 1900, when the Constitution was created; and secondly, the extent to which those original meanings are determined by the intentions of the people responsible for creating it (whom I will call the founders2). These two questions are distinct. Almost all literary critics would agree that the language in Shakespeare's plays should be understood in its original sixteenth century sense, but many would deny that any other evidence of Shakespeare's intentions is relevant in interpreting it. Similarly, a literalist, who believes that the meaning of the Constitution is exhausted by the meanings of its words, could hold that their original literal meanings are critical, but reject the relevance of any other evidence of the founders' intentions. I will argue that both original meanings and original intentions help determine the contemporary meaning of the Constitution. But the position I will defend can aptly be described as moderate originalism, because it falls somewhere between more extreme versions of originalism and non-originalism. My defence of that position will be both descriptive and normative: I will argue that moderate originalism is more faithful than its rivals to legal precedents and conventions, and more attractive from the perspective of political morality. Recent decisions of the High Court suggest uncertainty and even ambivalence in approaching these questions. For example, in a number of cases over the last ten years, it has relied heavily on evidence of the founders' intentions, evidence which it would not previously have been willing even to consult; yet more recently, in dealing with Associate Professor of Law, Monash University. This article originated as a paper presented at the Workshop on Legal Interpretation, organised by the Social and Political Theory Group, Research School of Social Sciences, Australian National University, on September 12, 1996. I am grateful to participants at the Workshop for their comments, and to Richard Holton and Rae Langton for commenting on an earlier presentation. AG (Cth); ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 44 per Gibbs J. 2 Just who these people should be taken to have been - those who drafted and debated the Constitution in Constitutional Conventions, the voters who approved it in referendums, the members of the Imperial Parliament who enacted it - is discussed in Part 5, below.

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