out asserting that it does. An example is an utterance of ‘The current King
statement is false, or pointless (because it is neither true nor false).
of certain rights, shall not be construed to deny or disparage others retained by
the people’. The existence of other rights is at most presupposed, not stated.
Subject to some possible exceptions it seems that they are also not created or
presupposed to pre-exist it. But what if – like the King of France – they do not,
in fact, exist? For example, what if the Constitution’s makers were referring to
then be taken to refer to whatever real rights – if any – are most similar to the
1999), ch 2, and p. 196. There is also debate about whether such presuppositions are semantic
120
Jeffrey Goldsworthy
the Constitution? Or does the Amendment merely declare that they continue
to have whatever force and effect in public opinion or state law they previously
had (which may, in itself, be difficult to determine)? The answer to these ques-
tions must depend either on the meaning of ‘deny or disparage’, or on some
kind of implication in addition to the presupposition that such rights exist.
The historical evidence suggests that, rather than implying that such rights
can be judicially enforced, the Amendment merely preempts or cancels a
negative implication that its makers feared might be drawn in its absence: that
the enumeration of some rights implied the non-existence of other, unenu-
merated ones.
42
The nature of that kind of implication is explained in the next
section.
Section 73(ii) of the Australian Constitution provides that the High Court
‘shall have jurisdiction’ to hear appeals from ‘the Supreme Court of any State’.
This presupposes but does not state that State Supreme Courts exist, and they
were (and still are) established not by that Constitution but by state constitu-
tions. Does the presupposition require that these courts must continue to exist –
that the States cannot abolish their Supreme Courts? The High Court has
said that, by implication, it does.
43
But this cannot follow merely from the fact
that s. 73(ii) presupposes their existence. Many such presuppositions – like
the presupposition that there is a King of France – just render the expressions
in which they appear false or pointless if the presupposed object does not or
ceases to exist.
44
Indeed, s. 73(ii) goes on to add that the High Court also has jurisdiction to
hear appeals from ‘any other court of any State from which at the establish-
ment of the Commonwealth an appeal lies to the Queen in Council’. When
the Constitution was enacted in 1900, this referred to a particular court in
South Australia that no longer exists today.
45
Yet no one has suggested that its
abolition violated an implication inherent in or following directly from the
presupposition of its existence. It might be argued that the word ‘any’ func-
tions like ‘if any’, suggesting that such courts need not continue to exist. But
s. 73(iii) gives the High Court jurisdiction to hear appeals from ‘the Inter-State
Commission’, which has not existed for most of Australia’s federal history (not-
withstanding the express words in s. 101 that ‘There shall be an Inter-State
42
For a good discussion of many of these issues, see R. C. Williams, ‘The Ninth Amendment as
a Rule of Construction’ (2011) 111
Columbia Law Review 498. See also notes 52 and 53.
43
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