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Tucker, David --- "Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia" [1999] SydLawRw 22; (1999) 21(4) Sydney Law Review 567

Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia


1. Introduction

‘Textualism’ refers to a judicial method for interpreting either a statute or a constitution that places a special emphasis on ‘what was agreed to’, taking the text of the instrument as the best evidence of this. Ever since the landmark decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd[1] that placed an emphasis on legal formalism, textualism has been regularly adopted as a methodology by some Australian judges.[2]

As (then) Justice Anthony Mason tells us, explaining his adoption of this interpretative methodology in Attorney-General (Vic) (ex rel Black) v Commonwealth, ‘a constitutional prohibition must be applied in accordance with the meaning which it had in 1900’.[3] We find him again defending and adopting this interpretative methodology in two important recent decisions, Commonwealth of Australia v Tasmania (the Tasmanian Dam case)[4] The meaning of a constitutional phrase is critical in both these decisions and Justice Mason draws upon the historical record in determining what this is. Thus, facts external to the Constitution are sometimes deemed to be relevant. More recently in McGinty v Western Australia[6] the High Court has reaffirmed the view that historical research is relevant in constitutional law, as well as its commitment to textualism, refusing to follow the United States Supreme Court in supervising the drawing of electoral district boundaries. As Justice Michael McHugh explains:

The Constitution contains no injunction as to how it is to be interpreted. Any theory of constitutional interpretation must be a matter of conviction based on some theory external to the Constitution itself. But since the people have agreed to be governed by a constitution enacted by a British statute, it is surely right to conclude that its meaning must be determined by the ordinary techniques of statutory interpretation and by no other means. It must therefore be interpreted by late twentieth century Australians according to the ordinary and natural meaning of its text, read in the light of its history, with such necessary implications as derive from its structure.[7]

The aim of this paper is to contribute to the evaluation of textualism. In the first section, I present textualism as an ideal type, also referring to the widely accepted values and views about representative democracy that are usually associated with textualism in the Australian context. These are:

I do not attribute the position I explicate to any particular judge or writer; rather, my purpose is to explore the logical implications of the approach. I also consider how it has been applied in Australia and identify its strengths and weaknesses.

A further task that I undertake is to link textualism to views that have been articulated in the United States by important judges such as Chief Justice John Marshall, Justice Felix Frankfurter and Justice Antonin Scalia. As I show, reviewing some important opinions by Australian judges who have defended the methodology, the Australian High Court has at times articulated a theory of constitutional interpretation that is remarkably similar to the theory defended by Justice Scalia in the United States today.

In the third section of the paper, I try to advance our understanding of textualism by focusing on Professor Ronald Dworkin’s criticisms of Justice Antonin Scalia’s recent Tanner Lectures.[8]

Debates of this kind are of relevance to Australians because there has been more controversy in the United States about the use of textualism in modern circumstances.[9] Of course, some very distinguished American jurists have defended textualism, including two of the most celebrated judges of the twentieth century: Learned Hand and Oliver Wendell Holmes (also Felix Frankfurter, Hugo Black, and two judges on the present Supreme Court, Clarence Thomas and Antonin Scalia). Nevertheless, it has to be acknowledged that most American judges have been unhappy with the discipline required by textualism, preferring to use various techniques of the common law in reading the many abstract phrases of the United States Constitution.

It is this practice that Justice Scalia challenges and that Dworkin defends. I will attempt to evaluate the strengths and weaknesses of both sides in this important American debate. I conclude that Justice Scalia is successful in presenting and defending his approach, and that the criticisms advanced against textualism by Dworkin are either beside the point, irrelevant to Australians because we enjoy a different constitutional history, or based on a misunderstanding of Justice Scalia’s position.

2. General Characteristics of Textualism in the Australian Context

A focus of textualism is the backward-looking nature of much legal reasoning, as we search for the sources of law in relevant texts. It also stresses the distinctive nature of legal reasoning (it is not to be confused with moral reasoning, political philosophy, economics, or welfare planning). For the most part, the adherents of textualism agree that legal reasoning in constitutional law necessarily involves some references to sources, looking back to the context that phrases and terms in authoritative texts first came to be agreed upon. Most importantly textualists distinguish between text-based law and the common law. Quite different principles must be applied in determining the common law. What is important for textualists is that common law judicial methods should not be brought to bear when reading a legal text. According to textualists, judges are not free to make up new meanings for key constitutional provisions or statutes so that the law is brought up-to-date. Nor may they declare that values and conceptions that would never have been embraced by the framers (or by drafters of statutes) are in fact implied because we now believe this would be a good thing. Nor does textualism allow judges to develop our understanding of a constitution’s text by discovering a thread of guiding principle that is said to link cases disclosing underlying principles that the framers would never have endorsed.[10] Nor may they consider philosophical principles and other external sources of value such as international conventions, treating them as part of the constitution they are interpreting.

The position is well stated in the Australia context by Justice Michael McHugh in a recent case. He explains why he cannot accept various arguments that had been put forward by Justices John Toohey and William Deane who had appealed to principles or values they claimed to be fundamental, as underlying the Australian Constitution:

Underlying or overarching doctrines may explain or illuminate the meaning of the text or structure of the Constitution but such doctrines are not independent sources of the powers, authorities, immunities and obligations conferred by the Constitution ...[A]fter the decision of this Court in the Engineers’ Case, the Court had consistently held, prior to Nationwide News and Australian Capital Television Pty Ltd v The Commonwealth, that it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or are not necessary implications from its structure ... [T]he Engineers’ Case had made it plain that the Constitution was not to be interpreted by using such theories to control or modify the meaning of the Constitution unless those theories could be deduced from the terms or structure of the Constitution itself. It is the text and the implications to be drawn from the text and structure that contain the meaning of the Constitution.[11]

Textualism is not equivalent to what Americans refer to as ‘originalism’ because those judges who adhere to textualism do not place much significance on the beliefs, expectations and values of those who draft legal texts. This has been especially true in Australia where the High Court has been cautious about exploring and relying on opinions expressed in the convention debates that preceded the drafting of the Australian Constitution. What is important are the results of their work – what was actually agreed to – as exhibited in the actual words they chose to adopt. What the framers hoped to accomplish may well be beside the point. In this orientation Australian judges who embrace textualism follow American textualists such as Justice Oliver Wendell Holmes and his disciple Justice Felix Frankfurter who were also sceptical about arguments that appeal to the intentions of draftsmen in making claims about the significance of a phrase in a statute. As Justice Frankfurter explains:

All these years I have avoided speaking of the ‘legislative intent’, and I shall continue to be on my guard against using it. The objection to ‘intention’ was indicated in a letter by Mr Justice Holmes which the recipient kindly put at my disposal: ‘Only a day or two ago – when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what their words mean. Of course the phrase often is used to express a conviction not exactly thought out – that you construe a particular clause or expression by considering the whole instrument and any dominant purposes that it may express. In fact intention is a residuary clause intended to gather whatever other aids there may be to interpretation beside the particular words and the dictionary’.[12]

Following the advice of these great American judges, in reading the statute of the Imperial Parliament that establishes the Australian Constitution, Australian judges who adhere to textualism do not place importance on the beliefs and aspirations of the framers. Indeed, they have tended to ignore the convention debates, only turning to these discussions if there is a need to clarify the meaning of an obscure or ambiguous term. The framers’ intentions may also be relevant if there is a serious practical difficulty about a term’s literal application in a context that could not have been anticipated by them.

A. Marshall’s Authority

As I have noted, textualism is used by the High Court justices in the landmark case Amalgamated Society of Engineers v Adelaide Steamship Co Ltd[13] that allowed the Commonwealth to expand its power to deal with urgent problems that had not been foreseen. This case became a most important authority that has guided Australian judges for nearly eighty years. Sir Robert Menzies who, as a very young barrister represented the Amalgamated Society of Engineers, defends the approach. It is also defended by his mentor and friend Sir Owen Dixon who cites the authority of United States Chief Justice John Marshall in defending the methodology employed by the majority in this case.[14] As Sir Owen Dixon notices, the joint judgment in this case is careful to deny the relevance of relying on United States authority in Australia.[15] Nevertheless,

The warning against the use of light borrowed from the United States does not deter the judges giving it from resorting once more to Marshall as an authority for the interpretation upon which they rely ...[16]

The reliance of the Australian High Court on Chief Justice John Marshall’s opinions in Marbury v Madison[17] and McCulloch v Maryland[18] (for the United States Supreme Court) is worth tracing in more detail. The Australian decision in which Chief Justice Marshall’s authority is most openly acknowledged is D’Emden v Pedder.[19] Its guiding principles for delineating Commonwealth powers as later applied in Engineers, are:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress [or the Commonwealth], under the pretext of executing its powers, pass laws for the accomplishment of objectives not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.[20]

Let the end be legitimate, let it be within the scope of the Constitution, and all the means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution are constitutional.[21]

The words of this great judge and the principles he articulated so long ago have guided the Australian High Court in fulfilling its primary task of delineating the powers of the Commonwealth.

With regard to the powers of the States, however, a very different approach was taken. Engineers discards notions such as State sovereignty and State reserved powers, in effect overruling D’Emden v Pedder on the question of whether Australia, like the United States at that time, embodies a system of dual sovereignty. In denying that it does, the Australian High Court had to assert that American authorities on the important issue of dual sovereignty did not bind them. But as Sir Owen Dixon has argued, this does not call into question the claims I have made about Chief Justice Marshall’s influence. For, in recognising the paramountcy of Commonwealth legislative power under the Constitution, and in reading the Commonwealth’s listed powers in a literal manner, the High Court necessarily assumes the framework articulated in McCulloch v Maryland that is taken over from D’Emden v Pedder.

Chief Justice Marshall’s approach has been more difficult to apply consistently in orientating the High Court’s response in dealing with the demand that it recognise civil and political rights. The problem we confront here is that Chief Justice Marshall’s instructions can be read in various contradictory ways; moreover, the changing circumstances of life often make it extremely difficult to reach a consensus about the most appropriate way forward. Certainly, a judge who is keen to secure a liberty or to promote justice could construe Chief Justice Marshall’s caution ‘that we should never forget that it is a Constitution we are expounding’ (reflected in principle 4) so as to strengthen the power of the judiciary (under principle 1). All that is needed to accomplish this is that he or she provide an expansive reading of what the Constitution forbids a government from doing.

However, it is clear from the context in which Chief Justice Marshall actually uses this phrase in McCulloch v Maryland that he is not considering restraints on power; rather he is suggesting an expansive reading of the powers allocated to the national government. He is suggesting what Chief Justice Rehnquist claims, namely that:

Representative government is predicated upon the idea that one who feels deeply upon a question as a matter of conscience will seek out others of like view or will attempt to persuade others who do not initially share that view. When adherents to the belief become sufficiently numerous, he will have the necessary armaments required in a democratic society to press his views on the elected representatives of the people, and to have them embodied into positive law.[23]

This kind of reading, that supposes that ‘representative government’ is an implication of the framework for government in the United States Constitution, makes sense because the framers of a constitution would wish to establish procedures for dealing with problems they had not foreseen. This is why any arrangement for allowing a national parliament to take responsibility for developing the law in a specified area in confronting challenges must be given an expansive reading, unless a restrictive interpretation is specifically required by an unambiguous text that addresses the problem.

This reflection exhibits the connection already noted between textualism and democratic theory. The context of Chief Justice Marshall’s comment ‘that we should never forget that it is a Constitution we are expounding’ is important to notice. ‘Democracy’ is facilitated when elected representatives are allowed to make important policy decisions in dealing with circumstances that may never have been contemplated by those who framed the Constitution. However, it may not be facilitated when restraints on the exercise of a power are read expansively. In this connection it is worth noting (then) Justice Mason’s warning:

As a prohibition is a restriction on the exercise of power, there is no reason for enlarging its scope of operation beyond the mischief to which it was directed, ascertained in accordance with the meaning of the prohibition at the time when the constitution was enacted.[24]

I do not claim that the Australian High Court resorted to democratic theory in making its decision to embrace textualism in Engineers. I claim only that this kind of judicial deference, because it allows the appropriately situated legislators to provide leadership in adapting to new circumstances, is difficult to object to; thus, it was easy for judges to adopt an expansive reading of the listed Commonwealth powers. In contrast, the expansion by judges of constitutional clauses limiting the power enjoyed by an elected national government is much more controversial and raises quite different issues.

B. Finding Implications

In McCulloch v Maryland[25] Chief Justice Marshall reads Article 1, Section 8, of the United States Constitution (that delegates to Congress the power ‘to regulate commerce with foreign nations, and among the several States’) to favour national power over the economy. At issue in the case is whether Congress enjoys the power to charter a national bank even though there was no explicit grant of any such power in the Constitution. Chief Justice Marshall suggests that such a power be nevertheless implied. In reaching this conclusion, he relies on the fact that related powers (for example, to lay and collect taxes, to borrow money and to regulate commerce) are listed. He also claims that the Congress’s general authority ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers’ provides additional authority for his interpretation.

Marshall’s reasoning undoubtedly influenced Sir Owen Dixon who in a number of important cases challenged the view that because the doctrine of implied inter-govermental immunities was overthrown in the Engineers case, no other implications could be drawn from the Constitution. To the contrary, he defended the view that the drawing of implications is a necessary part of good constitutional interpretation.[26] In reaching this conclusion Sir Owen Dixon is not challenging textualism. An approach to constitutional interpretation that tries to secure original understandings that have been embodied in the text does not necessarily preclude the finding of various constitutional implications. What it does require is that any claim of this kind (suggesting that some power or liberty that is not listed is nevertheless available or protected) should have an objective basis in inferences that can be made from the text or structure of the Constitution. The alleged implications must follow as an entailment of provisions and values actually endorsed.

As Justice Michael McHugh makes clear:

Implications derived from the structure of the Constitution are also part of the Constitution’s meaning but such implications may be drawn only when they are “logically or practically necessary for the preservation of the integrity of that structure” [citing Chief Justice Mason, Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 135]. [27]

More recently, Justice Scalia makes an assertion about constitutional implication in a case concerning the Brady Handgun Prevention Act that President Clinton sponsored and attempted to implement. At issue was whether the federal government could command state police officials to perform background checks on people applying to purchase a handgun, helping the Federal Government to administer a regulative scheme to control the licensing of handguns. In his opinion, writing for the majority, Justice Scalia argues that this cannot be allowed because the Madisonian design of the United States Constitution contemplates ‘that a State’s government will represent and remain accountable to its own citizens’. This principle of separation, he tells us, is an essential structural protection of liberty; and he goes on to suggest that:

The power of the Federal Government would be augmented immeasurably if it were able to impress into its service – and at no cost to itself – the police officers of the 50 states.[28]

Those Australian judges who have embraced textualism as a methodology have tended to follow this approach; indeed, as my quotation above from Justice McHugh’s judgments in McGinty’s case indicates, the High Court has recently reaffirmed it.

C. The Role of Intentions

Textualist judges insist that the meaning of a legal text can only be discovered when regard is paid to the context in which it is used. Certainly, to understand what is said, we must try to see the point and purpose to which the words have been put. However, a discovery of the intentions of those who have used a word or phrase is not necessarily conclusive in establishing meaning. Indeed, the discovery of intentions can be misleading for what a speaker intends to do with words may not be what he or she actually accomplishes. (A fact that is readily appreciated when we consider the mistakes that are often made by speakers using a foreign language. You may intend to describe yourself as a lawyer, using your travellers’ French, but actually describe yourself as an avocado! Similarly, John on his bicycle may intend to greet his girlfriend by waving his hand vigorously but actually signal a righthand turn!) Even if a speaker accomplishes the intended effect through the use of language (for example, entering into a marriage by saying ‘I do’ at the appropriate moment) what he or she accomplishes may not result in the expected consequences. (The marriage may prove an unhappy alliance and the relationship a disappointment.) What counts are the purposes that give the context in which words must be interpreted. Thus, the broader motivations of the participants in the act of communication should not be taken into account. For example, the context of a marriage ceremony when a speaker says, ‘I do’, is relevant; but the romantic vision of a happy family life with the desired partner and good relationships with his or her partner’s family that inspired the parties to it is not. Similarly, the context of riding a bicycle in traffic when waving a hand is relevant, not the emotional response that followed the surprise glimpse of a girlfriend on the pavement.

Another problem about intentions that textualists are attuned to is that legislators and constitutional framers may agree to embrace a phrase or a particular term for a variety of different and conflicting reasons – each hoping that his or her own understanding of how it will be interpreted will prevail. Very often, the politicians involved are concerned more with appearance than with substance – insisting that a phrase or term be incorporated in a statute/constitution that will enable them to persuade their constituents that they intend to help them. Yet the politicians may know that the phrase may well be read in a quite different way by judges. This is not to say that the intentions of legislators/framers are not part of the evidence that judges must consider when declaring the meaning of a statute/ constitution. However, the highly charged political context in which most legislating/constitution-drafting takes place itself makes a strategy that relies on clarifying intentions, as the sole or even as the most important determinant of meaning, highly suspect.

Australian judges who approach a text, whether constitution or statute, in the manner recommended by textualism are usually sensitive to these complexities. For example, although the intentions shared by the framers of our Australian Constitution are relevant in assessing its meaning, many judges have preferred to take guidance from ordinary understandings, looking at how the Constitution’s terms were generally understood at the time of their enactment. Indeed, for a long time the framers’ intentions were deliberately ignored as a complication that judges could generally refuse to consider. This was a matter of self-conscious strategy. Thus, in 1935 Sir Owen Dixon makes clear his view that:

[The Constitution] is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions. and he goes on,

We treat our organs of government simply as institutions established by law. And we interpret their powers simply as authorities belonging to them by law.[29]

In terms of this approach, the underlying values and theoretical understandings of democracy that inform the work of the Constitution’s framers are not taken very much into account by the High Court when reading the terms of the document. This is not to say that these intentions are irrelevant or that they should never be noted. In understanding the meaning of the text, the context in which it was agreed to must be the critical point of reference. Thus, the purposes for which it is intended, including the problems that were being addressed at the time, are essential to take into account in understanding what was done. However, intentions that reflect the broader beliefs and aspirations of various framers are not usually relevant, apart from to signal how they intended various words to be understood.

A serious problem that is solved by the choice of many Australian judges to regard the text of a legal instrument, including the Constitution, as the best evidence of ‘what was enacted’ is the difficulty that we have in deciding whose intentions should count. If legislators have different reasons for agreeing to adopt a phrase or a particular word it is hard to say which reasons should be taken as guidance by judges. This is certainly a problem when Australian judges must interpret the Commonwealth of Australia Constitution Act. Clearly the statute is a product of Australian deliberation but, as Sir Owen Dixon points out in the quotation above, it was negotiated in London and enacted by the Imperial Parliament and not by Australians. This is an important reason why so many Australian judges have favoured textualism as the best approach in delineating the legal effect of this text – recognising that what the British may have thought they were doing may have been very different from what the Australians had hoped for. A factor, here, is that for most of this century appeals on points of interpretation could often be made beyond Australia to the Privy Council. Thus, by understanding that its task is to respect the text, in so far as its ordinary or technical meaning in law is clear, the High Court’s adoption of textualism enabled it to avoid potential conflict with British authorities.

As I have noted, textualism is an approach to interpretation that is highly formalistic and sometimes produces results that would not necessarily have been welcomed by the framers. Jeffrey Goldsworthy makes the point in the following way:

[O]nly the founders’ ‘enactment intentions’ are relevant to the meaning of the Constitution, and not their ‘application intentions’. The object is to clarify the meaning of the provisions which they enacted, and not to discover their beliefs about how those provisions ought to be applied.[30]

His strategy is to have us distinguish between the various purposes that inform us of the work of legislators or of the framers of a constitution. In reading a legal text most of the interpretative weight must be placed on what was enacted, the particular words chosen, rather than on background factors, beliefs and values. In ascribing meaning to contentious phrases, the context of enactment must be examined to show the problems that the legislators/framers intended to address – that is, to ascribe to what was enacted the appropriate meaning. As United States Supreme Court Justice Scalia notes in his recent Tanner Lectures, ‘the import of language depends upon its context, which includes the occasion for, and hence the evident purpose of, its utterance’.[31] Without some understanding of what may have been intended at the time of enactment, no full account of the context that secures meaning to a text can be provided. Nevertheless, not all intentions can carry the same weight in ascribing this meaning, for beliefs about how what is enacted will actually work out are of less significance (as Chief Justice Mason points out in the quotation from the Tasmanian Dam case above).[32] This is why it is important for judges to keep in mind the distinction Goldsworthy has emphasised between ‘enactment intentions’ and ‘application intentions’.

For example, the Australian framers stipulated in section 51(xxix), that the Commonwealth was to enjoy power to make laws relating to ‘external affairs’. This important power is what they provided for. Nobody is confused about this: it is understood that if an international treaty requires some domestic legislation to facilitate its implementation so that Australia is in compliance, the Commonwealth Government enjoys the authority to take on the responsibility for enacting the relevant laws.[33] However, as (then) Justice Mason points out in his opinion in the Tasmanian Dam case, most people in 1900 assumed that the application of this power would be limited and rare.[34] Nobody supposed that section 51(xxiv) could seriously influence the federal balance of power by consolidating the national leadership role of the Commonwealth. Indeed, most people in the early twentieth century supposed that very few international agreements would need domestic legislation to secure implementation. And they supposed that ‘external affairs’ would be limited to the relations between states so that (a) very few agreements would be entered into and (b) very little domestic legislation would be needed to ensure compliance. Thus, they did not contemplate concerns that preoccupy contemporary political leaders, such as the protection of human rights and the protection of wilderness areas. Had they lived to see the importance of the ‘external affairs’ power in broadening the scope of the Commonwealth’s regulation of Australian life, some of the framers may well have been outraged. They did not intend the power to be used this way, although they clearly allocated it to the Commonwealth.

D. Institutional Maintenance

The frequent adoption of textualism as an orientation by Australian judges does not mean that political ideals and the competing conceptions of democracy that various theorists advocate are irrelevant in constitutional law. Certainly judges who have embraced textualism take great pride in sustaining high standards of legal professionalism, viewing the practice of law as a special calling with its own distinct discipline. One of the great bonds between the American Supreme Court Justice Felix Frankfurter and Sir Owen Dixon was their shared appreciation of the craft skills they both valued and exemplified in their work.[35] They admired each other’s polished and scholarly judgments, lavishing praise on one another that was surely deserved. But having said this, it is worth noting that the value each of these great judges placed on this vision of law, as a highly sophisticated craft, is not some abstract commitment unrelated to a vision of the role of the judiciary within a well-functioning democracy. Indeed, an underlying value that gives a substantive justification for the adoption of a formalist approach in law, establishing the core convention that judges should take the text of instruments read in context as their point of departure, is that this kind of disciplined adjudication facilitates democratic authority. Justice Frankfurter also emphasises that textualism is likely to be more efficient in leaving policy leadership in the hands of legislators who must respond to the wishes of the people.[36] In this connection, Justices Frankfurter and Sir Owen Dixon both understand that the disciplined approach required by textualism is functional in establishing trust. It is only if courts are disciplined that politicians will know that the deals that they have struck with one another will be honoured, so long as the results of their work are embodied in laws.

It is important to notice that textualism has served well as a methodology for those Australians working at the beginning of the twentieth century who wished to secure the flexible Westminster-style conception of democracy. American constitutionalism with its emphasis on constraining abuse by majority rule was not admired at that time, certainly not to the same extent that it is today. Indeed, leading writers such as Lord James Bryce and Albert Dicey thought that liberty would be best protected by legislators, assisted by judges applying the common law, rather than through a constitutionally entrenched Bill of Rights of the American kind. At that time, most of those who tried to secure progressive changes did not seek to entrench their favoured values in constitutional clauses that could then be cited by future judges frustrating legislators; rather, they worked politically to encourage legislators to assert parliamentary leadership to bring about the desired changes. The central idea was to ensure that political conflicts would come to be worked through in parliaments and that persistent disputes would be settled through competitive elections. Indeed, they hoped that by expanding the franchise to include women and other excluded groups in the community, all the interests of society would eventually be secured through the representative system.

Nor is it true to say that Australian judges have applied textualism in a mechanical manner without regard to other considerations or to the likely consequences of their judgments. The High Court in Australia (like constitutional courts in other nations) has necessarily served as an instrument for ‘institutional maintenance and development’.[37] Indeed, the landmark Australian case where textualism was first forcefully articulated and endorsed as the best methodology for the High Court to embrace, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd,[38] offers us an example of judges taking responsibility for transforming the federal relationship. As Brian Galligan notes, the choice to adopt textualism:

favoured the consolidation of national powers because now the Commonwealth’s enumerated powers were to be read, with some minimal restrictions, in a full and plenary sense regardless of the impact on the States.[39]

But this case is not unique. A Constitution must be applied in new, often unforeseen, circumstances. Thus, the Australian judges have often been obliged to weigh very carefully the benefits and cost involved when following precedent, deciding when it is appropriate to allow further evolution through flexible interpretation. In this connection, however, it is important to notice that the ‘takethe- accepted-meaning of a term’ rule of interpretation adopted in Engineers has proved remarkably resilient in guiding the High Court’s work for most of this century. Also:

Because of these complexities, it cannot be said that textualism is applied in a value-neutral manner in Australia.

One reason for the persistence of textualism in Australia is the absence of many value commitments in the Constitution and its reliance on procedural arrangements. Thus, Australian judges have not been attracted to unqualified originalism (the notion that the founders’ hopes and values should be decisive) because the arrangements clearly presuppose that the various governments of the day will make the important choices on behalf of the people. As Justice Gummow points out, the phrase ‘until the Parliament otherwise provides’ which recurs in the Constitution has a special significance:

Its effect is to accommodate the notion that representative government is a dynamic rather than a static institution and one that has developed in the course of this century. The accommodation is effected in the Constitution itself by authorising the legislature to make appropriate provision from time to time. It is by this means that the Constitution continues to speak to the present and allows for development of the institution of government by changes which may not have been foreseen a century ago or, if foreseen by some, were not then acceptable generally.[40]

By embracing textualism our judges have found ways to give further effect to this plan by allowing those elected in nationwide elections, serving in the Commonwealth Parliament as the representatives of the nation as a whole, to take the greater responsibility for major policy choices. By disciplining themselves, textualist judges have also kept constitutional rigidity to a minimum because the legislators have been left free to face the various challenges that have arisen. Many High Court justices have acted in this way precisely because the framers of the Australian Constitution made little effort to bind the present to the values of the past. This assumption would be contestable, of course, had Australians agreed to entrench a Bill of Rights or had they used the Constitution to shackle the representative institutions in special ways, frustrating ‘representative government’ in the name of other substantive values. But they did not choose to embrace this device, preferring to leave a broad discretion with the various parliaments.

By forbidding judges from relying on external values and principles, textualism has enabled the High Court to weaken the rigidity that constitutionalism brings, establishing Australia as a flexible system of the kind that Dicey would have approved.

3. Scalia v Dworkin

The kind of textualism, reflected in Engineers, that I have described in the last section, has been defended in the United States by Justice Antonin Scalia. However, Justice Scalia’s views are often attacked and the debate that has ensued about his ‘textualism’ is worth careful scrutiny.[41] In this paper, I concentrate on Ronald Dworkin’s criticism although he is by no means alone in finding fault with Justice Scalia’s approach.[42]

Surprisingly, Dworkin’s point of departure has an important element in common with textualism because he thinks that what happened in the past is relevant in constitutional law; thus, he endorses a moderate ‘originalism’ that he describes as ‘semantic originalism’. Dworkin tells us that he is in favour of ‘semantic originalism’, arguing that we should understand our obligation to uphold constitutional decisions made in the past as requiring that we honour the concepts that the framers wished to entrench (such as ‘due process of law’, ‘cruel and unusual’ or ‘freedom of speech’ in the United States Constitution) but without being bound by their values, hopes or expectations in reaching an understanding of what these phrases refer to. For example, in approaching the problem of how best to read the Bill of Rights in the United States Constitution, he asks us to distinguish ‘semantic originalism’, ‘which insists that the rights-granting clauses be read to say what those who made them intended to say’, and ‘expectation originalism’ ‘which holds that these clauses should be understood to have the consequences that those who made them expected them to have’.[43]

Justice Scalia and Dworkin both embrace ‘semanitic originalism’ (what I have described as textualism) for they each make clear why courts should not try to implement the hopes and expectations of those who have drafted statutes or a constitution.[44] What matters for each of them are the actual agreements reached as these are embodied in the text of the instruments being interpreted. As Dworkin explains, he and Justice Scalia agree that in establishing the relevant meaning of a legal text, it is necessary to distinguish:

between the question of what a legislature intended to say in the laws it enacted, which judges applying those laws must answer, and the question of what the various legislators as individuals expected or hoped the consequences of those laws would be, which is a very different matter.[45]

However, this commonality does not lead to any consensus between them about how critical constitutional phrases and terms should be read or about how the past is relevant to the present. Indeed, each criticises the other for inconsistency. Dworkin emphasises that judges should normally ignore the expectations that a constitution’s framers may have had when they embraced certain terms. Only what is incorporated within the constitution counts and in determining this only the ‘semantic intentions’ of the framers should be taken into account. He thinks that Justice Scalia accepts this view but suggests that he is inconsistent in applying the interpretative methodology. This inconsistency arises, according to Dworkin, because Justice Scalia fails to accept the discipline required by ‘semanticoriginalism’ when reading the important abstract clauses of the Bill of Rights and the ‘equal protection of the laws’ clause of the Fourteenth Amendment. In this context, according to Dworkin, Justice Scalia relies heavily on judgments he makes about the framers’ expectations. Thus, he accuses Justice Scalia of crude ‘expectation-originalism’ when he deals with matters to do with the protection of rights and liberties, claiming that he abandons the kind of approach that is required by the more defensible ‘semantic originalism’. He writes, considering Justice Scalia’s discussion of whether capital punishment offends the Eighth Amendment’s prohibition against ‘cruel and unusual’ punishments:

An expectation-originalist would certainly hold that it does not, for the reasons Scalia cites. The ‘framers’ would hardly have bothered to stipulate that “life” may be taken only after due process if they thought that the Eighth Amendment made capital punishment unconstitutional anyway. But the question is far more complicated for a semantic originalist. For he must choose between two clarifying translations – two different accounts of what the framers intended to say in the Eighth Amendment. The first reading supposes that the framers intended to say, by using the words “cruel and unusual”, that punishments generally thought cruel at the time they spoke were to be prohibited – that is, that that they would have expressed themselves more clearly if they had used the phrase “punishments widely regarded as cruel and unusual at the date of this enactment” in place of the misleading language they actually used. The second reading supposes that they intended to lay down an abstract principle forbidding whatever punishments are in fact cruel and unusual.[46]

In his response to this attack Justice Scalia does not accept the dilemma that Dworkin presents him. Nor is he happy with either of the two translations of ‘cruel and unusual’ that Dworkin offers. Contrary to the view attributed to him by Dworkin, Justice Scalia certainly thinks that a modern judge should sometimes find that what the framers thought to be a perfectly acceptable practice is in fact ‘cruel’ – and thus forbidden under the Eighth Amendment. Thus, a modern judge could find that being forcefully exposed to the secondary effects of cigarette smoke is ‘cruel’ in the relevant eighteenth-century sense of ‘cruel’ even though the framers of the Eighth Amendment would not have made this judgment. This difference in the application of the standard between the eighteenth and twentieth centuries arises because we now have a better understanding of the links between exposure to the smoking of tobacco products and cancer. This example shows why Justice Scalia would never accept the translation of the Eighth Amendment offered by Dworkin that is attributed to him, as forbidding ‘punishments widely regarded as cruel and unusual at the date of this enactment’.

But this does not mean that Justice Scalia supposes that the framers’ understandings are irrelevant. What they believed to be cruel is part of the historical record that judges need to learn about when determining the conception of ‘cruelty’ that must be applied. In this connection, traditions and practices that were widely accepted at the time as not being ‘cruel’ must serve as a guide to what the framers understood by the term ‘cruel’. Similarly, for example, textualist judges interpreting the First Amendment (protecting ‘speech’) will need to take into account the prevailing laws against obscene and defamatory speech in the eighteenth and nineteenth centuries. This evidence will show them what the framers understood by ‘freedom of speech’. According to Justice Scalia, then, a good judge who is interpreting abstract terms such as ‘free speech’ or ‘cruel’ must first seek to understand the conception of ‘cruel’ or ‘free speech’ that the framers shared and then apply it in new circumstances.

We see from this analysis that Justice Scalia is innocent of the charge of inconsistency that he is accused of (that is, that he professes to be applying what Dworkin describes as ‘semantic originalism’ yet actually applies what Dworkin describes as ‘expectations originalism’).

Dworkin is himself more vulnerable. This is because he places much more emphasis than Justice Scalia does on an historical claim about what he thinks are the relevant expectations or intentions of the framers. His argument relies on the historical claim that, by placing abstract clauses in the Bill of Rights (and other rights-bearing amendments in the Constitution), the framers must have been intending to empower judges. According to Dworkin, the abstract nature of the text in the United States Constitution is itself sufficient evidence for this interpretation. It shows us, according to him, that the framers deliberately left judges free to give a content or meaning to abstract political principles (for they would have known that their words would have to be applied in circumstances that they could not accurately envisage).[47] What we find Dworkin claiming is that judges must honour this alleged strategic intention/expectation even though this may require them to give the abstract phrases a content that is in conflict with the framers’ own conception of the abstract terms in question. At the core of this view is his understanding that many of the abstract phrases in the Bill of Rights are best understood as an endorsement of abstract moral and political principles. Dworkin thinks judges must take responsibility for applying what he takes to be ‘the general principles of political morality’ reflected in the Constitution’s abstract clauses. Because he relies heavily on this thesis about what the framers expected or intended when they embraced abstract terms in the Bill of Rights, Dworkin seems himself to have unwittingly abandoned ‘semantic originalism’ for a form of ‘expectation originalism’! Thus, it is ironic that he should accuse Justice Scalia of just this inconsistency.

As we have seen, Dworkin’s challenge to Justice Scalia’s textualism relies on claims about important expectations that he attributes to the framers. He asserts that contemporary judges reading the United States Constitution need not necessarily be bound by the understandings of a contested term’s meaning at the time of its adoption precisely because the framers contemplated that the Constitution’s abstract terms (for example ‘the equal protection of the laws’) would or could mean something very different to future generations. As I have noted, this seems to be unadulterated originalism rather than a form of textualism (or ‘semantic originalism’). In his view, the framers of the United States Constitution’s Bill of Rights understood that its abstract clauses embodied abstract moral principles that would be applied according the values of each subsequent generation. Thus, Dworkin thinks the American founders intended the meaning of some of the Constitution’s terms to evolve under judicial supervision and that they signalled this by embracing abstract principles rather than by delineating precise terms. In his view, then, the American framers meant to allow for a very broad discretion for judges; indeed, he claims that they deliberately established a form of democracy in which courts would have a legitimate and important role in policymaking. In terms of his account, judges are responsible for identifying the meaning that the Constitution’s abstract terms must have in a particular context because this is what the framers intended; so that American judges enjoy a very broad discretion to make principled choices on behalf of the nation.

A reason for Dworkin’s assertion that judges should/do enjoy a broad policymaking role is his claim that the United States Constitution includes abstract moral principles that can be interpreted in different ways. What I understand by ‘abridging freedom of speech, or of the press’ may be different from your understanding of the phrase in the First Amendment to the United States Constitution because we may embrace competing conceptions of ‘freedom of speech’. How are we to decide, for example, whether cable television or the Internet is to enjoy the privileges afforded to ‘the press’ in the First Amendment? Dworkin criticises Justice Scalia for failing to notice the importance of this. He claims, for example, that the United States Supreme Court must find the best application for ‘cruel and unusual’ (a phrase found in the Eighth Amendment). This is not a matter of giving the phrase a new meaning, according to Dworkin, but of taking the instruction to decide whether a form of punishment (say, capital punishment) is in fact ‘cruel and unusual’ seriously. He tells us that if constitutional interpretation requires a reading of abstract clauses:

to say what their authors intended them to say rather than to deliver the consequences they expected them to have [as Justice Scalia argues] – then judges must treat these clauses as enacting abstract moral principles and must exercise moral judgment in deciding what they really require.[48]

His claim is that a ‘semantic textualist’ who does not take the expectations and values of the framers into account (as Justice Scalia claims to be) must allow that some phrases in the United States Constitution rely for their application on the choices that judges make. They must decide, for example, whether capital punishment is unconstitutional even though the framers did not themselves suppose that it was.

Another argument that Dworkin uses to challenge Justice Scalia’s textualist approach is his claim that the adoption of abstract terms with a contested content in the United States Constitution is self-conscious. He tells us: It is near inconceivable that sophisticated eighteenth-century statesmen, who

were familiar with the transparency of ordinary moral language, would have used “cruel” as shorthand for “what we now think cruel”.[49]

According to him the framers knew that they were leaving the application of terms to be decided by judges in the future. They understood that:

key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules . . . [and] that the application of these abstract principles to particular cases, which takes fresh judgment, must be continually reviewed, not in an attempt to find a substitute for what the Constitution says, but out of respect for what it says.[50]

Thus he argues that, if Justice Scalia is to be true to his own method of adjudication (‘semantic originalism’), he should acknowledge that the Bill of Rights is actually a listing of terms that were deliberately chosen so as to allow judges a broad discretion in applying them, often requiring that listed moral principles reflected in ‘due process of law’, ‘freedom of speech’ and ‘cruel and unusual punishment’ be applied in the manner that they are understood today, contrary to the framers’ own understanding of what these terms demand.

Justice John Toohey has recently articulated an Australian version of this argument in his dissenting opinion in McGinty v Western Australia.[51] A problem the justices had to address in the case is how they should give a content to the concept of ‘representative democracy’. He tells us:

[A]round 1900 the method of choosing representatives involved significant inequality in voting power. At that time, the ratio between the number of electors in the largest and smallest electorates varied from 2:1 for the Legislative Council of South Australia to 38:1 for the Legislative Assembly of Western Australia. Clearly the expression of representative democracy then did not encompass equality of voting power. But just as clearly, the expression of the concept is now thought to do so at least in this country. Equality of electorate size, with an allowable percentage variation, is now required for parliamentary elections in the Commonwealth, New South Wales, Victoria, Queensland, South Australia and Tasmania. This move towards equality of electorate size reflects a change in society’s perception of the appropriate expression of the concept of representative democracy.[52]

Justice Toohey thinks that the concept of ‘representative government/democracy’ that is relevant in constitutional analysis evolves. But he differs from Dworkin because he takes trouble to cite evidence that there has been a change in Australia’s national conception of ‘representative democracy’. Thus, he thinks it relevant that various Australian State parliaments (and the Commonwealth) have endorsed equality as a value that must be taken into account in drawing electoral districts. In this regard his approach is more disciplined by objective sources than the approach advocated by Dworkin. Nevertheless, he seems to thinks that judges should take the prevailing conception of ‘representative democracy’ into account (providing evidence for their claims) when reading the Constitution. Thus, although he does not think that judges are free to choose the best conception of ‘representative democracy’ in the light of some overriding democratic theory that the various members of the court have embraced, he does argue that they are responsible for reading the Constitution’s text so that it is a ‘living force’. As he sees it, it is a judicial responsibility to identify a changing conception of a key constitutional value so as to bring the Constitution up-to-date.

A. Relative Terms

Unfortunately, both Dworkin and Justice Toohey seem to overlook the two quite different ways in which terms can come to have a different content, confusing the kind of relativity that arises:

[W]hilst the connotation of words in the Australian Constitution remains fixed, their denotation may vary over time. Equally, while the “essential feature” of a concept in the Constitution remains unchanged, the concept is necessarily applied to circumstances different to those which existed at the beginning of this century.[53]

But this is misleading because ‘representative democracy’ is a contested concept that cannot be understood apart from the political theory that informs its use – its meaning is different for various individuals because people disagree about the core values that they think are associated with democratic government.

Not surprisingly, in his response to Dworkin’s criticisms, Justice Scalia relies on this confusion. The important distinction is between an abstract term (whose meaning changes, depending on our conception of it and our conflicting theoretical assumptions, values, hopes and aspirations) and a relative term (whose meaning is fixed but which has a content that varies, depending on circumstance). ‘Unusual’ is a concept with a fixed meaning in most circumstances because there are few competing conceptions of it that judges need to regard as relevant. Thus, a judge from the eighteenth century would answer the question whether capital sentencing is ‘unusual’ in the United States in much the same way as a contemporary judge would go about the same task. For a textualist judge like Justice Scalia, the task of applying a relative term like ‘unusual’, ‘endangered species’ or ‘legal tender’, although it may prove difficult (in that it may involve a careful consideration of complex evidence) is nevertheless a relatively uncontentious matter because there is no disagreement over meaning. What disagreements do arise when these kinds of relative terms are applied will usually have something to do with:

As Justice Scalia notices, with regard to the application of this kind of relative term, he and Dworkin are very likely to agree. Indeed, the relativism that arises is not embarrassing for a textualist to acknowledge because the meaning of the critical term (for example ‘unusual’) does not change over time – ‘unusual’ means the same today as it meant when the Eighth Amendment was adopted. Just as ‘endangered species’ means the same today as it did when the Endangered Species Act was first enacted (the ‘connotation’, to use Justice Toohey’s term, is constant). Of course judges may still have trouble deciding on the content of these terms (what Justice Toohey describes as ‘denotation’), but the difficulties that arise in this context do not require the judges to make value judgments, setting different standards in the light of competing political and economic theories. They apply the same standard in a different context.

But Justice Scalia notices that conceptual disagreements are of a different kind, often involving judgments about the salience of substantive values. Of course, these kinds of conflict may occur even in disciplines that seem to be more objective than law, such as science or history. What is to count as ‘in danger of extinction’, for example, may itself become contentious between scientists who study the tiger populations of the world. Some scientists may define ‘in danger of extinction’ in terms of the number of tigers that remain alive today (including those in zoos); others may think that environmental changes that threaten the habitat of tigers are a more serious consideration to take account of. Depending on which conception of ‘in danger of extinction’ one subscribes to, one would apply the phrase in a quite different way. Its meaning (connotation) will be different.

Similarly, we might disagree about what percentage of criminal sentences, involving flogging or hard labour, is to count as an ‘unusual’ number. Thus, we can easily envisage a dispute between historians over just when flogging became ‘unusual’, just as they have disputes about when the ‘Renaissance’ began or about how to define the ‘Reformation’. Our historians’ problems, here, are conceptual and theoretical because they are disagreeing about the concepts in question rather than over the facts in different circumstances, offering different competing conceptions of how to proceed in making evaluations. These kinds of dispute usually involve conflicts that reflect value choices.

Justice Scalia holds us to semantic meaning (what he refers to as the ‘import’ of words at the time of their enactment), insisting on an historically-grounded conception of ‘cruel and unusual’, or ‘due process of law’, or ‘the free exercise of religion’, or ‘the abridging of freedom of speech’, or ‘unreasonable searches and seizures’ in reading the United States Constitution. However, he does not deny that these are relative terms. For example, he fully acknowledges that what is ‘cruel’ may have a different content in various historical circumstances. (If you have no idea that frequent exposure to tobacco smoke can cause serious, even fatal, illnesses, you will be unlikely to suppose that a lengthy confinement in a cell with someone who smokes cigarettes is a ‘cruel’ punishment). Depending on circumstances, relative terms with a fixed meaning can have a different reference.

As I have already noted, however, Justice Scalia is not troubled by this kind of relativity. Rather, he is focused on the quite different problem of conceptual disagreements that are often contested because of fundamental disagreements over substantive values. (For example, one person’s conception of an ‘unreasonable search’ may be quite different from another’s understanding because they place a different value on securing privacy). In this context, he insists that abstract terms in the Constitution should not be read in a manner that is in conflict with the actual traditions and practices of the American people because historical evidence of this kind shows us the moral assumptions that determined how these terms were understood in the past.

The judicial problem in dealing with abstract terms that embody substantive value judgements is to decide which of the competing conceptions of them is to be applied. The difficulty, here, is not factual or about scope, but involves substantive value choices. As I have noted, Justice Scalia has resort to history in this connection precisely because he is aware that there are various competing conceptions of most of the abstract terms and phrases in the United States Constitution. The critical question for him is – Whose conception of these phrases and terms should be authoritative? His answer that ‘The Supreme Court has a duty to uphold the precise understanding that was entered into when an abstract term was adopted as part of the United States Constitution’ does at least offer judges some guidance. It also reflects his well-considered view that judges have no expertise or authority to make policy choices and should only do this in rare circumstances. In contrast, Dworkin thinks that judges are free to articulate the underlying abstract principle and claims that they may then apply it in a manner that is compatible with what he calls the requirements of historical and textual integrity, offering a way for judges to bring the law into line with the most persuasive current political and ethical theories. Justice Toohey offers a third position – he thinks judges may bring the law into conformity with current community beliefs and values where these can be established.

Justice Scalia explains that an abstract concept can be applied consistently to unforeseen circumstances provided that we are clear about the conception of it that is to be applied (if we are agreed about its ‘connotation’). If you understand that attempts by a government to prevent a speaker from disseminating a view were regarded as a violation of ‘freedom of speech’ in the eighteenth century but that punishment after the fact would not be, then this conception of ‘freedom of speech’ can be applied in modern circumstances, as it has been through the First Amendment doctrine forbidding prior restraints. Similarly, the Eighth Amendment prohibition of ‘cruel’ punishments, for Justice Scalia, is restricted by the conception of ‘cruelty’ that prevailed in the eighteenth century and the practices of punishment permitted at that time offer relevant evidence that judges must take notice of. As Justice Scalia explains, what the Constitution’s reference to the term ‘cruel’ abstracts:

[I]s not a moral principle of ‘cruelty’ that philosophers can play with in the future, but rather the existing [eighteenth-century] society’s assessment of what is cruel. It means not (as Professor Dworkin would have it) ‘whatever may be considered cruel from one generation to the next’, but ‘what we consider cruel today’; otherwise, it would be no protection against the moral perceptions of a future, more brutal, generation. It is, in other words, rooted in the moral perceptions of the time.[54]

In the light of this analysis, Justice Scalia suggests that Dworkin’s reading of a term like ‘cruel’ is unconvincing when suggested as a strategy that judges should follow.

As Justice Scalia also shows, there are good reasons for caution in accepting Dworkin’s view that the framers intended to empower judges, so that their value choices would be final. One problem is that government at the discretion of officials is a violation of ‘the rule of law’ so that it is unlikely that the American framers would have wanted to give such a broad authority to judges. Justice Scalia finds this argument compelling, for he personally distrusts any system of rule by judges (because they enjoy no democratic authority and can claim no special competence to make policy choices relating to topics such as commerce, health, education, police work or even institutional design). This is why he insists that the judiciary be disciplined by history and the actual text of the Constitution. Thus, in his view, judges must usually show that they are disciplined by decisions about policy and value that have been made by others and should refrain from imposing their own values and policy preferences because they are not elected and cannot easily be dismissed.

Importantly, also, Justice Scalia is troubled by the fact that judicial decisions of the Supreme Court cannot be easily reversed by legislators. In this connection, he insists that Dworkin is wrong to suppose that the framers intended to afford such a broad unreviewable discretion to judges.

Another problem that could be raised to question Dworkin’s historical claim is that moral relativism is a modern approach that is unlikely to have been supported in the eighteenth century by theorists like Madison and Jefferson. Theorists at this time often believed in natural law and natural rights; so we need to be wary when claiming that ‘cruel’ as used by America’s eighteenth-century founding generation is meant to offer judges in future generations an opportunity to impose a quite different standard. Members of the eighteenth-century elite that insisted on a Bill of Rights did not think moral values merely reflected subjective choices; they believed in natural law and thought the standards they were articulating were universal (reflecting the individualist values that informs so much of the common law). Of course, the American founders knew that in other cultures people applied different standards in assessing behaviour as ‘cruel’, but they thought of the communities that applied harsher punishments than they themselves were prepared to tolerate, as barbaric. They regarded their own standards as the norm for an enlightened civilisation.[55] This is why they were prepared to impose their standard on future generations, binding Congress. In order to confront Justice Scalia’s argument in a more plausible manner, Dworkin needs evidence to show that the American founders embraced the abstract term ‘cruel’ because they wished to recognise that future generations might legitimately disagree with them about its meaning, making a different moral choice. Yet, as Justice Scalia points out, the very fact that the eighteenth-century framers thought a Bill of Rights was a useful device calls this interpretation into question. If they did not wish to bind the future, they would not have entrenched rights by including a list of fundamental value commitments in the Constitution.

Of course, Dworkin responds that the framers wished judges rather than legislators to make policy in deciding what punishments were to count as ‘cruel’. This is why he claims they used the Constitution to entrench abstract concepts, rather than leave decisions about core values with legislators. But there is little evidence to support the view that the eighteenth-century framers trusted judges more than they trusted elected representatives to make evaluations of this kind. As Chief Justice William Rehnquist has argued, a careful reading of Chief Justice Marshall’s argument in Marbury v Madison shows that he viewed the Supreme Court as the keeper of the covenant entered into by the people of the United States when they endorsed the Constitution. In the light of this conception of the role of a constitutional court, Marshall offers no support for the proposition that judges ‘have a role of their own, quite independently of popular will, to play in solving society’s problems’.[56] Without contrary evidence that the framers had actually thought about judicial review in a different way, Justice Scalia’s suggestion that it is more plausible to suppose that, for them at least, ‘cruel’ had a fixed and universal meaning when properly understood in the light of progressive moral theories, is the more compelling claim.

Dworkin seems to suppose that his solution (the empowering of judges to secure abstract principles of political morality) somehow reflects the will of the American people. The widespread adherence in the United States to a form of constitutionalism that supports a practice of judicial review that is less restrained than the judicial role envisaged by Chief Justice Marshall offers some support to this claim. Dworkin is suggesting that his interpretation of judicial review, not Chief Justice Marshall’s, is now the traditional one and that a national choice about this has been embodied in the longstanding practices of the Supreme Court. But this also is not a very plausible claim. For one thing, the practice of judicial review evolved very slowly after Chief Justice Marshall’s landmark ruling in Marbury v Madison and was very rarely made use of in the nineteenth and early twentieth centuries. Dworkin seems to be referring to the practices of the Warren-Burger Court; he cannot claim authority from the practices of the court before the Second World War.

But Dworkin’s argument is also weak as a proposition within democratic theory. The will of ‘we the people’ which is the source of law in the United States manifests itself most clearly through the electoral processes and in opinion polls. The Constitutions insist that Congress, as the representative branch of government, should make the law and it makes provision for constitutional amendment through processes that require the mobilisation of a very large section of the American people. It is not plausible to claim that judges have some special insight that enables them to identify national values that is so superior that it displaces the authority of Congress.

In an earlier paper discussing textualism Dworkin challenges this view arguing that the Supreme Court’s contribution in articulating fundamental principles of political morality has been educative, ensuring that public discussion on issues such as abortion and race relations in the United States has been conducted at a more sophisticated level than in most other democracies. But this is surely an exaggeration. I cannot think of a democracy where the public discussion (as opposed to elite deliberation) has been less elevated; and there is little evidence at all that reports about the Court’s work are read by a substantial number of Americans. But even if we concede that matters of political morality and principle are discussed in public bars and at family meals, it is well known that many Americans are alienated by the kind liberalism that Dworkin advocates, for example, they have a low regard for the American Civil Liberties Union. Richard Nixon, Ronald Reagan, George Bush and other conservatives gained enormous momentum by challenging the Court’s rulings on criminal justice issues (until Bill Clinton led the Democratic Party out of the wilderness by taking over much of their agenda). Nixon, Reagan and Bush also exploited other issues such as religious establishment, affirmative action, ‘busing’ and abortion. As I have noted, the political advantage enjoyed by conservatives may be changing thanks to President Clinton’s success in shifting the Democrats to the centre of the political spectrum. This change may also be due, in part, to the fact that the Supreme Court is now far more deferential. But in the light of this evidence it seems absurd to characterise the American people as having a better grasp of liberal moral principles than citizens have in other democracies because of the educative effects of the Supreme Court’s role in securing rights. To the contrary, American political culture seems to have been distorted towards hostility for liberal ideals by the Supreme Court’s interventions in the Warren-Burger years, a result that gave extremists on issues such as religion and race political opportunities they exploited effectively. Thus, Chief Justice William Rehnquist is on strong ground when he claims that Congress is the more appropriate institution for the nation’s deliberation about values and for securing social changes in the United States.[57]

B. Relevance of Dworkin’s Argument in Australia

Finally, it is worth noting that Dworkin’s argument against Justice Scalia relies on establishing an historical claim about the framers’ understanding that has little relevance in Australia. Their specific dispute is about what the American framers intended – Dworkin thinks the framers wanted to give judges power to change the way various abstract terms are conceptualised. According to him, they deliberately accepted that political life would be bound by liberal moral principles. In sharp contrast, Justice Scalia thinks there are no good grounds for accepting the relevance of this claim about what the framers thought they were doing.

This point of disagreement is especially significant for Australian judges like Justice Toohey who may be influenced by Dworkin because our history is so different. As Sir Anthony Mason notices, ‘the Convention delegates were opposed to the inclusion of express guarantees of fundamental rights on the ground that they were “unnecessary”’.[58] Although the Australian framers followed the American model in designing a complex constitutional division of authority that allows for a significant dispersal of power, they thought that civil rights and liberties could best be protected through the various parliaments of the nation exercising the constitutionally designated powers allocated to them. Thus, they did not entrench a Bill of Rights. In this connection, the framers seem to have thought that attempts by them to prescribe for the future would be arrogant and dangerous. It is one thing for Dworkin to claim that the American framers intended to empower judges to make fundamental values choices (an argument I find unconvincing for the reasons already given) and quite another for one of his Australian disciples to make-out this kind of argument with regard to the intentions of the framers of the Australian Constitution. As Justice Gummow so ably demonstrates, the Australian framers were influenced by a British conception of ‘representative government’ articulated in John Stuart Mill’s famous essay in which parliamentary leadership is thought to be central.[59] Thus, in contrast to the United States, our Constitution is very much a nuts and bolts set of instructions that contains few flourishes reflecting the fundamental underlying commitment to liberty, justice and equality that the founding generation shared. This is not surprising given that they were following the strategy, defended by Mill, of the:

placing of ultimate controlling power with the people, to be exercised by representatives of the people elected periodically in free elections to a legislative chamber or to the more powerful chamber of a bicameral legislature.[60]

Another reason why the Australian founders distrusted American natural law doctrines is that many of them were legal positivists who thought it necessary to retain a sharp delineation between law, politics and morality. It was Albert Venn Dicey’s thoughts about good constitutional design, rather than James Madison’s or Thomas Jefferson’s, that provided the inspiration.

Of course, the Australian framers ignored Dicey’s warnings about constitutionalism by choosing to establish a federal system, rather than a unitary system; but they nevertheless accepted his view of what good constitutional design involved, carefully noting Lord Bryce’s warnings about the inadequacies of a too rigid constitutionalism. This is why they thought it important to empower the various parliaments and to be cautious about including too many restraints. Thus, even if we concede that Professor Dworkin gets the better of the debate about how to read the United States Constitution in confronting Justice Scalia (and I do not, for the reasons already given), we must still allow that his success will have little relevance in guiding Australian judges.

4. Conclusion

Australians who dislike the American practice of unaccountable judges frequently making important national choices can breath a sigh of relief – thank goodness our framers were more careful!

Although Australians have a lot to learn from contemporary debates about textualism in the United States, they ought to approach the literature with some caution. One problem is that writers like Dworkin, who are critical of textualism, are often highly disillusioned about the practice of responsible parliamentary government as we know it in Australia, offering a quite different conception of democracy to the one that inspired our framers. Indeed, Dworkin tells us that (referring to parliamentary life in the United States):

Ordinary politics generally aims ... at a political compromise that gives all powerful groups enough of what they want to prevent their disaffection, and reasoned argument elaborating underlying moral principles is rarely part of or even congenial to such compromises.[61]

As we have seen, what saves the American system from this impoverishment, for him, is the nation’s recent reliance on the Bill of Rights and on the practice of judicial review. He argues that American political culture has benefited enormously from the debates about fundamental moral principles and rights that have engaged Supreme Court justices over the last three decades.

As I have shown, there is no evidence to support this idealistic view of the educative role of the judiciary and we have every reason to question whether democratic life in the United States is in good shape today. Certainly there is a lot of talk about fundamental rights in the United States – although little agreement about what these are or about how much money should be devoted to securing them. However, there is very little evidence of a willingness to pursue a common good or to deliver a fair deal to all. Indeed, in this connection, Australia seems to be in far better shape even though we rely almost entirely on our legislators to provide leadership (for example, to abolish capital punishment, to secure privacy and to make meaningful a woman’s right to terminate an unwanted pregnancy). Other American commentators, such as Mary Ann Glendon and Michael Sandel, seem to agree that contemporary American democracy is not providing an inspiring vision of democratic life.[62] They are convinced that American democracy has been impoverished precisely because issues of great significance have been taken out of the political arenas to be resolved by judges – the very practice that textualists deplore.

My paper has not fully addressed this underlying conflict over how best to conceive of democracy in modern circumstances.

There are other important and relevant issues that I have not considered. One important problem is the place of precedent in constitutional law. This issue creates special difficulties for textualists because we often find that courts offer a moral reading of key constitutional phrases and that such interpretations eventually come to be relied upon.[63] Textualist judges may reasonably disagree about what to do in such circumstances.

It is also important to stress that I have not claimed that in the hands of textualists law becomes a science or that reading a text can ever be an easy or purely mechanical process. To the contrary, I have noted factors that are likely to give rise to disagreements between conscientious judges, even if they adopt textualism as a theory of interpretation. These include:

Does this mean that textualism is little or no help?[65] I suggest that it can make a difference in:

(i) Helping judges co-ordinate their work

If they each respect what their various colleagues are trying to do, they can identify the points of disagreement more readily. More significantly a focus on the text of an instrument as the point of departure helps to secure common ground by providing an objective source.

(ii) Helping judges guide the legal profession

If lawyers know that judges will regard themselves as bound by norms that are well-established and understood, they can make better predictions about what courts are likely to do. Also, those who draft legal texts can more easily develop skills that will help to secure greater certainty in the law.

(iii) Helping to sustain legal legitimacy and the separations of powers

When politicians and other observers (such as academics and journalists) perceive that judges are trying to secure a good fit between their rulings and the textual sources of law, they will more readily accept the judicial role as autonomous and legitimate. On the other hand, if they perceive that courts are pursuing a political agenda and are relying on value arguments that cannot be supported by citing textual sources of law, they are likely to call for the judiciary to be more accountable.

This paper has not explored these benefits systematically looking at the utilitarian case that can be made-out for preferring textualism to other interpretive theories.

What I have shown is that some Australian judges have adopted textualism in reading the Australian Constitution and that American jurists of very high distinction (such as Chief Justice Marshall and Justices Holmes and Frankfurter) may have influenced them. I have also offered a modest defence of textualism that addresses one aspect of the current debate. In this connection, I have shown that the criticisms that Dworkin has made of Justice Scalia’s Tanner Lectures are not compelling. Thus, unless Dworkin can convince Australians that his vision of democratic deliberation offers a better prospect of developing a national sense of justice and for implementing it, we have no good reason for abandoning a tradition that has served us well. Certainly, Justice Scalia has offered an interesting and effective defence of what many Australian judges usually claim to be doing.

[*] Reader in Political Science, University of Melbourne.
[1] [1920] HCA 54; (1920) 28 CLR 129.
[2] In his essay ‘Interpretation of a Constitution in a Modern Liberal Democracy’ in Sampford C & Preston K (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996), Sir Anthony Mason uses the term ‘originalism’ to describe the position that I have identified as ‘textualism’ at 14. ‘Originalism’ is also the term that is used by Jeffrey Goldsworthy in his essay, ‘Originalism in Constitutional Interpretation’ (1997) 25 Fed LR 1. I have preferred ‘textualism’ because it is more precise and is currently used in the United States. The problem with ‘originalism’ is that it is often confused with the position that Sir Anthony Mason identifies as ‘intentionalism’: Id at 15–16. I have also deliberately avoided the term ‘legalism’.
[3] (1981) 146 CLR. 559 at 614–15. In this case all the justices apart from Murphy J agreed with (then) Justice Mason’s statement. See Goldsworthy J, Id at 15–19, who cites this quoted statement by Mason J and provides further examples citing Isaacs J; Barwick CJ; Gibbs CJ; Wilson J; Dawson J.
[4] [1983] HCA 21; (1983) 158 CLR 1 at 126.
[5] [1988] HCA 18; (1988) 165 CLR 360 at 385.
[6] [1996] HCA 48; (1996) 186 CLR 140.
[7] Id at 230.
[8] For Dworkin’s general position see Dworkin R, Comment, in Scalia A, ‘Tanner Lectures’, Guttman A (ed), A Matter of Interpretation: Federal Courts and the Law (1997); Dworkin R, Law’s Empire (1986) at 225–275; 355–399; Dworkin R, Life’s Dominion (1993) and his assessment of Judge Learned Hand in Dworkin R, Freedom’s Law: A Moral Reading of the American Constitution (1996) at 332–347. Other important critics of textualism include Tribe LH & Dorf M, On Reading the Constitution (1991) and Eskridge W, ‘The New Textualism’ (1990) 37 UCLA LR at 621.
[9] This debate has been provoked by the forceful use that Justice Scalia has made of textualism in his many opinions as a judge of the Appeals Court of the District of Columbia and of the Supreme Court. He has also offered an articulate defence of the methodology and criticisms of alternative approaches that have been suggested by his critics. See Scalia A, ‘Tanner Lectures’ above n8.
[10] Contrast Justice John Harlan’s statement, dissenting in Poe v Ullman [1961] USSC 144; 367 US 497 (1961) at 543.
[11] McGinty v Western Australia, above n6 at 231–2.
[12] See Frankfurter F, ‘Some Reflections on the Reading of Statutes’ in O’Brien DM (ed), Judges on Judging: Views from the Bench (1997) at 228–9.
[13] Engineers’ Case [1920] HCA 54; (1920) 28 CLR 129.
[14] See Dixon O, ‘Marshall and the Australian Constitution’ in Dixon O, Jesting Pilate (1965) at 166–179.
[15] Above n13 at 146.
[16] Dixon O, above n14 at 171.
[17] [1803] USSC 16; 5 US 137 (1803).
[18] [1819] USSC 5; 17 US 316 (1819).
[19] [1904] HCA 1; (1904) 1 CLR 91.
[20] Marbury v Madison, above n17. As I have noted, the argument in this judgment suggest that, in exercising review, the Court would be upholding the authority of the people as expressed in the text of the Constitution. Not surprisingly, the Australian framers did not see anything strange or frightening about this idea even though they were schooled in the traditions of British law that requires the judiciary to be subordinate to the Parliament.
[21] McCulloch v Maryland, above n18 at 421.
[22] Id at 407.
[23] Rehnquist W, in O’Brien DM (ed), above n12 at 150.
[24] Attorney General (Victoria); Ex rel. Black v The Commonwealth.
[25] Above n18.
[26] Sir Anthony Mason describes this development and cites the relevant cases in ‘The Interpretation of a Constitution in a Modern Liberal Democracy’, above n2 at 24–5.
[27] McGinty v Western Australia, above n6 at 231.
[28] Printz v United States [1997] USSC 77; 521 US 898 (1997).
[29] Dixon O, ‘The Law and the Constitution(1935) 51 LQR 590 at 597. Sir Owen Dixon was a close friend of Justice Felix Frankfurter and shared his vision of the ‘rule of law’. See, Dixon O, ‘Mr Justice Felix Frankfurter’ in Dixon O, above n14. The position that he adopts here is consistent with the arguments advanced by Thayer JB, ‘The Origins and Scope of the American Doctrine of Constitutional Law’ (1893) 7(3) Harv LR 17. Thayer’s essay was almost certainly familiar to Dixon because Frankfurter thought it was perhaps the most important contribution to constitutional law. He would certainly have recommended it to Dixon.
[30] Goldsworthy J, above n2 at 20.
[31] Scalia A, above n8 at 144.
[32] Above n4.
[33] The position was first made clear in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168.
[34] Above n4.
[35] I wish to thank John Merralls QC for kindly letting me see the correspondence between Sir Owen Dixon and Justice Frankfurter. These letters provide evidence of the two friends’ deep concern about the lack of discipline on the part of some of Justice Frankfurter’s colleagues on the Warren Court and their high regard for one another. See, also, Dixon O, ‘Mr Justice Felix Frankfurter’ in Dixon O, above n14.
[36] See his opinions in the two Flag Salute cases (involving Jehovah’s Witnesses): writing for the Court in Minersville School District v Gobitis [1940] USSC 105; 310 US 586 (1940) and dissenting in West Virginia State Board of Education v Barnette [1943] USSC 130; 319 US 624 (1943).
[37] Galligan B, ‘The High Court’s Role in Institutional Maintenance and Development’ in Sampford C & Preston K (eds), above n2 at 184–202.
[38] [1920] HCA 54; (1920) 28 CLR 129.
[39] Galligan B, above n37 at 193–4.
[40] McGinty v Western Australia, above n6 at 280–1. Compare Rehnquist W, ‘The Notion of a Living Constitution’ at 693 in O’Brien D (ed), above n12.
[41] Justice Scalia defends his approach in the ‘Tanner Lectures’. These are published together with essays by a number of his critics, including Ronald Dworkin, in Guttman A (ed), above n8.
[42] In the discussion that follows, I focus on his ‘Comment on Scalia’s Tanner Lectures’ in Guttman A (ed), above n8 at 115–27.
[43] Id at 119.
[44] Justice Scalia provided strong arguments against this kind of originalism in his essay ‘Originalism: The Lesser Evil’ (1989) 57 UCinLR 849 and more recently in his ‘Tanner Lectures’, above n8. Dworkin identifies similar difficulties with originalism, see A Matter of Principle (1985) at 38–57 and in his criticisms of Judge Robert Bork’s views in ‘Bork’s Jurisprudence’ (1990) 57 UChicLR 657.
[45] Tanner Lectures, above n8 at 118.
[46] Id at 120.
[47] Id at 121.
[48] Id at 126.
[49] Id at 121.
[50] Id at 122.
[51] Above, n6 at 200–2 (Toohey J).
[52] Id at 201–2.
[53] Id at 200.
[54] Tanner Lectures, above n8 at 145, emphasis in original.
[55] Goldsworthy, above n2 at 43.
[56] Rehnquist W, in O’Brien (ed), above n12 at 144.
[57] Ibid.
[58] Mason A, in Sampford and Preston, above n2 at 28.
[59] McGinty v West Australia, above n6 (Gummow J) at 271–4.
[60] The quotation is taken from Gummow J’s judgment in McGinty v Western Australia, id at 273, summarising what he takes to be the essence of Mill’s view as expressed in his essay ‘On Representative Government’.
[61] ‘Learned Hand’ in Dworkin R, Freedom’s Law: The Moral Reading of the American Constitution (1996) at 344–345.
[62] Sandel, M Democracy and its Discontent (1997); Glendon MA, Rights Talk: The Impoverishment of Political Discourse (1991).
[63] The problem of what to do about the Supreme Court’s own past history of interpretation is a difficult one for textualists as it is for any constitutional theory. Scalia J tells us, ‘the whole function of the doctrine [of stare decisis] is to make us say what is false under proper analysis must nevertheless be held to be true, all in the interests of stability. It is a compromise of all philosophies of interpretation’. Tanner Lectures, above n8 at 139.
[64] On the differences between Justices Frankfurter and Black see the essays by Parrish M & Freyer T in Tushnet M (ed), The Warren Court in Historical and Political Perspective (1993) at 51–64 and 86–109.
[65] Sir Anthony Mason suggests that this is the case, above n2 at 14.

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