The Invisible Constitution in Comparative Perspective

ex hypothesi, a new one. The judges could hold that it is already implied by the 

constitution, either because it is a fictional implicature or implicit assumption 

of the constitutions’ new, pretended author or because the clause or provision 

136 

R. Posner, ‘Enlightened Despot’ The New Republic, 29 April 2007.

137 

See Barak’s use of the word ‘designed’ in note 132.

138 

R. Ekins, ‘The Relevance of the Rule of Recognition’ (2006) 31 Australian Journal of Legal  

Philosophy 95, 100.

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The Implicit and the Implied in a Written Constitution 

143

is necessary to enable the constitution to fulfil one of that author’s purposes. 

The constitution would spontaneously sprout whatever new implications are 

necessary to achieve whatever new purposes the judges attribute to the con-

temporary community. No formal, democratic amendment procedure would 

need to be followed. Neither the community nor its elected representatives 

would need to be asked whether they really want the constitution to achieve 

that new purpose or whether, on reflection, they really want it to include the 

new provision that it supposedly requires in order to do so.

This seems a logical consequence, and not a fanciful and unfair carica-

ture, of Barak’s theory. It is surely unnecessary to spell out how blatantly it 

would violate the principles of democracy and the rule of law. It could resem-

ble a method of interpretation criticised previously, where all the provisions 

of the Constitution are, holistically, regarded as instantiating such abstract 

principles as ‘democracy’, ‘freedom’ or even ‘justice’ and anything not men-

tioned that (in the opinion of the judges) helps secure democracy, freedom 

and justice are regarded as impliedly guaranteed.

139

In common law jurisdictions, the courts draw a distinction between ‘objec-

tive’ intentions (including purposes) and the ‘subjective’ intentions of law-

makers. Objective intentions have been described as expressed or outwardly 

manifested intentions.

140

 The distinction is between the actual mental states 

of lawmakers, which might be obscure or inaccessible, and evidence of those 

mental states that was publicly manifested or exhibited by the terms of the law, 

understood in the context of its enactment. But even if ‘objective’ intentions 

are sought, ‘subjective’ intentions remain relevant. An ‘objective’ intention 

amounts to this: what a reasonable audience would conclude was the author’s 

‘subjective’ intention, given all the publicly manifested evidence of it. The 

existence of a subjective intention is a crucial presupposition of our attribu-

tion of an objective intention to the author of a text and, consequently, to the 

text itself. If we knew that the creators of a text were incapable of having a 

subjective intention – for example, they were monkeys pounding randomly 

on keyboards – we would have no rational basis for attributing any objective 

intention to them or their text.

141

I can make sense of the idea of an ‘objective’ purpose only by thinking of it 

in this way, as what publicly manifested evidence suggests was the lawmakers’ 

purpose. It is a purpose that reasonable members of the lawmakers’ intended 

139 

See note 62.

140 

Byrnes v. Kendall (2011) 243 CLR 253, 273 [53], 274 [55], 274–5 [57], 275 [59] (Gummow and 

Hayne JJ); 282 [94] (Heydon and Crennan JJ).

141 

For further discussion, see J. Goldsworthy and R. Ekins, ‘The Reality and Indispensability of 

Legislative Intentions’ (2014) 36 Sydney Law Review 39.

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144