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The Implicit and the Implied in a Written Constitution
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4.3.1. Indexical Terms
‘Indexicals’ are expressions whose referential content is fixed by context, for
example: ‘I’, ‘you’, ‘he’, ‘she’, ‘it’, ‘this’, ‘that’, ‘now’, ‘then’, ‘today’, ‘yesterday’,
‘here’. If I say ‘Yesterday he hid it over there’, the words ‘yesterday’, ‘he’, ‘it’ and
‘there’ all have semantic content, but to know when, who, what and where my
utterance refers to, you must infer my referential intentions from contextual
information. But my utterance does not refer to these things by implication;
it does so expressly.
26
When a word such as ‘he’ is used in a statute or constitution – as ‘he’
frequently is in the Australian Constitution – its reference is almost always
fixed by its relationship to preceding words.
27
For example, s. 5 states: ‘The
Governor-General may appoint such times for holding the sessions of the
Parliament as he thinks fit’. Here, words such as ‘he’ are anaphors: they simply
refer back to a term used previously in the text, to avoid repetition. Unless
there is some ambiguity, their referential content is fixed by the text, and
recourse to extra-textual evidence of the lawmakers’ intentions is unnecessary.
Statutes and constitutions rarely use indexicals whose references are not fixed
in that way, but they do use some.
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4.3.2. Relational Terms
Some words – such as citizen, alien, foreign, native, queen, mayor – function
somewhat like indexicals. It is part of their meaning that they involve a
relation between a person and a place, and when the place is not explicitly
specified (as in ‘I am a citizen’) it must be fixed by context.
Section 51(xix) of the Australian Constitution gives the Commonwealth
Parliament power to make laws with respect to ‘aliens’, but it does not explic-
itly specify the relevant place. In its context, it is clearly intended to refer
to those who are aliens – non-subjects or non-citizens – in relation to the
Australian community. Otherwise the Parliament could make laws about any-
one, since everyone is an ‘alien’ in relation to countries of which they are
not citizens. Alternatively, the power could be reduced to a practical nullity,
26
Bach, Supra note 21, 132–3.
27
See Sections 5, 15, 17, 33, 34, 35, 40, 46, 48, 58, 64, 72, 84, 117 and 126. I thank Patrick Emerton
for this point.
28
But see C. Green, ‘“This Constitution”: Constitutional Indexicals as a Basis for Textualist
Semi-originalism’ (2009) 84 Notre Dame Law Review 1607, who constructs an argument for
originalism on the use of indexicals such as ‘this Constitution’, ‘now’, ‘we’ and ‘here’ in the
American Constitution.
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Jeffrey Goldsworthy
if it were confined to ‘aliens’ in the science fiction sense (beings alien to
Planet Earth).
The reference of ‘aliens’ in this context is obvious. Nevertheless, it is signifi-
cant that it is not determined solely by semantics; the dictionary definition(s) of
‘aliens’ is consistent with the absurd alternatives just dismissed. Their absurd-
ity is revealed by contextual evidence of authorial intention, not by semantic
convention. The obviously intended meaning is arrived at through pragmatic,
or contextual, enrichment, even if unconsciously because it is so obvious.
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4.3.3. Ambiguous Terms
A word is ambiguous when it has two or more semantic meanings, in which
case the context of its use in an utterance will usually determine which of
those meanings was intended. Of many possible examples, consider s. 119 of
the Australian Constitution: ‘The Commonwealth shall protect every State
against invasion and, on the application of the Executive Government of
the State, against domestic violence’. Today, the usual meaning of ‘domestic
violence’ is (something like) ‘violence within the home, especially spousal
and partner violence’. But in this case the context – textual and historical –
establishes that the words mean (something like) ‘local rioting or rebellion’.
The textual context consists of the link between ‘domestic violence’ and ‘the
protection of every State’, as well as the term ‘invasion’. The historical context
includes the accepted meaning of the words in the late nineteenth century,
when the Constitution was enacted, and their derivation from a similar clause
in the American Constitution (Article IV, s 4) whose meaning was well known
at the time. All this is relevant because it is evidence of authorial intention.
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