The Invisible Constitution in Comparative Perspective

4.3.4.  Elliptical Expressions

Constitutional provisions, like other utterances, can include ellipses, a term I 

use in a non-technical sense to refer to an omission of a word or words in an 

uttered sentence that the audience ‘fills in’ through pragmatic enrichment. 

Ellipses are sometimes called ‘implicitures’, from the adjective ‘implicit’.

30

Some sentences are inherently elliptical, in that they require pragmatic 

enrichment to express complete propositions: e.g., ‘She is ready’ [for what?] 

or ‘I’ve had enough’ [of what?]. Section 92 of the Australian Constitution is an 

29 

Consider also the meanings of ‘foreign power’ in s. 44(i) and ‘foreign corporation’ in s. 51(xx) 

of the Australian Constitution.

30 

Bach, Supra note 21.

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The Implicit and the Implied in a Written Constitution 

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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).

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