constitution, either because it is a fictional implicature or implicit assumption
of the constitutions’ new, pretended author or because the clause or provision
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.