particular provisions that collectively give it only partial express protection,
of privacy.
ber of specific provisions which reflect the doctrine of legal equality serves to
M. Stokes, ‘The Role of Negative Implications in the Interpretation of Commonwealth Leg-
complex and debatable argument that does not reflect current High Court doctrine.
note, 178–82; W. Sinnott-Armstrong, ‘Two Ways to Derive Implied Constitutional Rights’, in
Ashgate, 2002), 234–8.
57, 234–5.
The Implicit and the Implied in a Written Constitution
125
make manifest . . . the status of that doctrine as an underlying principle of the
Constitution as a whole’.
59
The suggestion is that, if a number of specific provisions appear to partially
protect a general principle, that may be evidence that
the principle as a whole
is part of the constitution. Let us assume that this might sometimes be plausi-
ble. The question is how we should understand the nature of such inductive
arguments, and of the implications they are used to reveal. Inductive argu-
ments are inferences to the best explanation of some observed phenomena:
they seek to explain the observed in terms of the unobserved. When used
in science, for example, an inductive argument might take some observed
regularities to be evidence of an underlying causal relationship that can be
expressed by a general physical law. In the legal context, what is the nature of
this unobserved (unexpressed) thing, which is the counterpart of the physical
law? Legal provisions are the products not of mindless causal processes gov-
erned by general physical laws, but of intentional human action. The legal
equivalent of the physical law revealed by scientific induction is therefore the
lawmaker’s intention or purpose.
It follows that an inductive argument is persuasive only if particular provi-
sions that selectively instantiate some general principle are evidence that the
framers intended the principle itself, and not just the particular provisions, to
be judicially enforceable. An implication is justified when there is sufficient
evidence of the existence of such an intention. The catch, of course, is that if
this is what the inductive argument points to, then other evidence that such
an intention could not have existed will defeat the argument. Inductive argu-
ments are defeasible, not conclusive: although they may include evidence of
an implication, they can be defeated by stronger counter-evidence.
A comprehensive review of the evidence will often reveal that the framers
intended to pursue some general purpose, or implement some general prin-
ciple, only by particular means and to a limited extent. As Terrance Sandalow
pointed out,
By wrenching the framers’ ‘larger purposes’ from the particular judgments
that revealed them, we incur a loss of perspective, a perspective that might
better enable us to see that the particular judgments they made were not
imperfect expressions of a larger purpose but a particular accommodation
of competing purposes. In freeing ourselves from those judgments we are
not serving larger ends determined by the framers but making room for the
introduction of contemporary values.
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