Constitutional provisions, like other utterances, can include ellipses, a term I
or ‘I’ve had enough’ [of what?]. Section 92 of the Australian Constitution is an
Consider also the meanings of ‘foreign power’ in s. 44(i) and ‘foreign corporation’ in s. 51(xx)
The Implicit and the Implied in a Written Constitution
117
example: it provides that ‘trade,
commerce, and intercourse among the States
. . . shall be absolutely free’, but fails to specify from what it is to be absolutely
free. Judicial attempts to fill in this ellipsis produced more litigation than any
other interpretive issue concerning the Constitution. Eventually, in 1988, the
High Court authoritatively revived a much earlier interpretation, by inferring
the intended meaning from historical contextual evidence. The section was
rightly understood to mean ‘absolutely free [from discriminatory protection-
ism]’, rather than the absurd ‘absolutely free [from all legal constraint]’ or the
unworkable ‘absolutely free [from all unreasonable legal restraint]’.
31
Another example is Article 1, s 9 of the American Constitution, which
states: ‘No Bill of Attainder or ex post facto Law shall be passed’. Since this
was intended to bind only the national legislature, it is understood as if it con-
cludes with the implicit words ‘by Congress’.
32
Other uttered sentences need completion to avoid absurdity: for example,
an utterance of ‘Everyone has gone to Paris’ would (usually) be understood
non-literally to mean ‘Everyone [in some contextually defined group, such as
a family or group of friends] has gone to Paris’. Section 51(ii) of the Australian
Constitution gives the Commonwealth Parliament power to makes laws ‘with
respect to taxation’. This surely does not refer to all taxation, including State
taxation; otherwise, the Commonwealth Parliament could amend and repeal
State tax laws. What we naturally understand the section to mean is: ‘with
respect to [Commonwealth] taxation’. Moreover, I suggest that we would
intuitively agree that although this is not its literal meaning, it is its express
meaning, rather than that the express meaning is qualified by an unexpressed
implication.
Modern theories of pragmatics attempt to explain how we draw on context
to ‘fill in’ ellipses and also how to identify other kinds of implicit and implied
content.
33
They argue that even when we do so intuitively, without any con-
scious process of reasoning, the intuition must result from an unconscious
calculation. In essence, we interpret utterances by assuming that speakers and
authors have attempted to communicate with us in a co-operative fashion,
by respecting principles of communication enjoining ‘quality’ (speak truth-
fully based on evidence), ‘quantity’ (say enough but no more than enough to
be informative), ‘relevance’ (speak relevantly to some interest of the hearer)
31
Cole v. Whitfield (1988) 163 CLR 360.
32
See L. Solum Section
C-
sec-
309
3.6.2.2
.
33
In what follows I will ignore many subtle differences
between the competing theories, which
are almost all based on or inspired by the pioneering work of the philosopher H. P. Grice,
whose key papers are collected in his Studies in the Way of Words (Cambridge: Harvard
University Press, 1989).