The Invisible Constitution in Comparative Perspective

5.4.2.  ‘Realist’ Approaches to Interpretation

Not all implications generated by a legal text, including a written constitution, 

need to be understood as the results of communicative intentions. It is possi-

ble to identify a category of implications that arise not as a result of lawmakers’ 

intentions (and the context or background assumptions that shape or inform 

those intentions), but that arise as a result of the legal text containing terms 

whose reference is to be understood in what might be called ‘objective’ or 

‘realist’ terms. I will give two examples of such implication that arise within 

the Australian constitutional context.

The Australian Constitution mandates that the members of the legislature 

shall be directly chosen by the people.

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 It is understood that the underlined 

phrases do not refer simply to whatever the lawmakers understood to count as 

a direct choice, and to whomever the lawmakers understood to be the people. 

Hence, if the experiences of social and political life reveal that a certain law, 

or a certain sort of administrative action, is a burden upon direct choice (e.g., 

by prohibiting the free communication among the people that is a necessary 

incident of genuinely choosing one’s political representative) then that law or 

action will be unconstitutional, because it is at odds with the constitutional 

37 

Ibid.

 For instance, background assumptions about the role that courts will play in declaring 

and enforcing the law may establish a constitutional role for judicial review of the validity of 

legislation, even if this is not expressly stated in the constitutional text.

38 

Sections 7, 24.

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Patrick Emerton

mandate.

39

 Or, if a certain group of voters are without doubt members of the 

people, then a law which would disenfranchise them will be unconstitutional, 

because it is at odds with the constitutional mandate.

40

 These consequences, 

which can properly be described as implications – they are constitutional con-

straints upon government action which are not expressly stated in the text – 

follow not from the intentions of the lawmakers,

41

 but from their production of 

a text which talks about certain things (direct choices, people) and establishes 

certain requirements in relation to them.

42

The second example begins with the mandate in the Australian Constitution 

that there shall exist a federal supreme court (the High Court of Australia) in 

which shall be vested the judicial power of the Commonwealth (i.e., federal 

judicial power),

43

 and that this court shall have jurisdiction to hear appeals 

from the Supreme Court of any Australian state.

44

 It is understood that when 

the constitution refers to the judicial power of the Commonwealth, and to a 

federal court that is to wield this power, these are not terms that get their con-

tent simply from lawmakers’ subjective intentions or understandings in the 

use of such terms. Rather they refer to real phenomena, whose character must 

be properly understood in order to establish what the constitutional mandate 

requires.

45

 This in turn generates, by way of implication, constraints upon the 

sort of functions that legislation may vest in the High Court, or in other bod-

ies: the High Court cannot be vested with functions that would be at odds with 

its character as a court; and other bodies which are not courts cannot be vested 

with functions that would be tantamount to the exercise of the judicial power 

of the Commonwealth.

46

The establishment of a judicial hierarchy, with the High Court exercis-

ing appellate jurisdiction over state courts, generates a further implication 

in a similar fashion. The vesting of functions in a state court, by way of state 

39 

See e.g., Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520.

40 

See e.g., Roach v. Electoral Commissioner (2007) 233 CLR 16.

41 

Other than perhaps their linguistic intentions, to use certain referring terms (namely, direct