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The Implicit and the Implied in a Written Constitution
141
[sic] to achieve in a modern democracy at the time of interpretation . . . [In
other words] society’s basic normative positions at the time of interpretation’.
132
Strictly speaking, words and texts – like other inanimate objects – do not
have intentions or purposes. A purpose is a kind of intention: an intention
to achieve something. Only intelligent, reasoning beings can have intentions
and purposes. It is true that we casually say things such as: ‘The purpose of
a hammer is to bang in nails’. Could this be a hammer’s ‘objective’ purpose,
independent of the purposes of human beings? Surely not: the purpose of any
particular hammer must be the purpose for which it was either designed or
acquired in order to be used, or for which it is in fact used, and that must be a
purpose of the person or people who either designed, acquired or use it.
133
The
purpose of a hammer that has not yet been purchased might differ from that
of a hammer that has been purchased for some idiosyncratic purpose, such
as to be part of a modern sculpture. The purpose of a law must, similarly, be
the purpose of either: (1) the people who made it; or other people who subse-
quently use it, such as (2) (a majority of) the community as a whole, or perhaps
(3) the judiciary, acting on the community’s behalf.
Barak appeals to the supposed purposes (or fundamental values) of the com-
munity as a whole.
134
But it is surely difficult to attribute purposes or values to
the community other than at the most abstract level (‘democracy’, ‘equality’,
‘justice’ and so on), which provides little assistance in resolving concrete con-
stitutional disputes. Given that very few citizens would have any knowledge
of the particular constitutional provisions in question or of their functions,
to attribute helpful purposes to them would usually be to indulge in blatant
fiction.
In descending from the community’s unhelpfully abstract basic commit-
ments to more specific ‘purposes’ that can actually assist in resolving inter-
pretive disputes, the judges would have to rely on their own value judgments,
which leads to the third possibility previously mentioned.
135
But to allow the
132
A. Barak, Purposive Interpretation in Law (Princeton, NJ: Princeton University Press, 2005),
190, and see also 148, 152–3, 155. ‘Sic’ is inserted because any constitution was designed by
those who made it; even if it is later put to different purposes than theirs, it is not redesigned.
Perhaps he meant ‘intended’.
133
In biology, we speak of bodily organs such as the heart having ‘functions’ that are their con-
tributions to the operation of a larger system (the body), even though neither the body nor
its component organs were intelligently designed to serve a purpose (at least, according to
evolutionists). But we do not attribute ‘purposes’ to bodily organs.
134
He describes purposivism as emphasising ‘public understanding at the time of interpretation’:
‘On Constitutional Implications’, note 130, 66.
135
Hence the common criticism that Ronald Dworkin was almost always able to derive from the
abstract clauses of the American Bill of Rights and Fourteenth Amendment legal conclusions
that matched his own political predilections.
142
Jeffrey Goldsworthy
judges to attribute to laws whatever purposes they deem best would undermine
the essential role of elected lawmakers, which is precisely to represent the
community in intelligently designing laws (including constitutions) to serve
chosen purposes. The purposes the lawmakers choose to pursue on behalf of
the community have better credentials than anyone else’s to be deemed the
purposes of the community itself. But on Barak’s approach, democratically
elected lawmakers merely provide a ‘first draft’, which the judges turn into
law by deciding what purposes it should serve and reshaping its meanings
(especially its implied meanings) accordingly.
136
Moreover, the judges can,
in effect, keep redesigning the law as it ages and community values (as the
judges see them) evolve.
137
As Richard Ekins once described a somewhat
similar approach,
[t]he courts are enjoined to interpret each statute as a purposive commu-
nication – but not a communication from real legislators. Instead the stat-
ute should be read as though it were a communication from the judge to
himself.
138
To combine the third possibility with those methods of finding or fabricat-
ing implications that we have previously examined would be a particularly
potent recipe for constitutional quasi-amendment by the judiciary. This would
involve pretending that the contemporary community has re-authored the
constitution, and then treating the text as either pragmatically enriched by
whatever intentions and purposes the judges attribute to the pretended author
or as including whatever fabricated implications are deemed practically
necessary to achieve those purposes.
Suppose that the judges held that the community has come to expect the
constitution or part of it to serve some new purpose which its actual mak-
ers did not intend, and also that applying the constitution’s express meaning
cannot achieve that purpose. In other words, some content in addition to the
constitution’s express meaning is deemed necessary to achieve that purpose.
According to Barak, that content would not need to be added to the constitu-
tion by formal amendment, despite the purpose it is needed to achieve being,
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