I thank Patrick Emerton, Tria Gkouvas and Dale Smith for helpful comments on an earlier draft.
110
Jeffrey Goldsworthy
instrument, but of all instruments a written Constitution seems the last to
which it could be applied’.
4
This was no doubt because, in order to provide a
framework for government
able to endure for generations, a constitution must
be ‘expressed in general propositions wide enough to be capable of flexible
application to changing circumstances’.
5
The method of drafting ‘is rather
to outline principles than to engrave details’.
6
It is often said to follow that
some details are ‘taken to be so obvious that detailed specification is unneces-
sary’;
7
they ‘go without saying because they are implicit in the structure of the
constitutional system’.
8
But constitutional implications are not all of the same kind, for two rea-
sons. First, implications of different kinds can be
identified within ordinary
language usage. Insofar as the use of language in legal texts just is ordinary
language usage, despite including some technical vocabulary, its interpreta-
tion will properly be guided by the same principles and find the same variety
of implications within it. Second, some legal systems use terms like ‘implied’
and ‘implication’ in ways that depart from ordinary linguistic usage, to refer
to norms identified by distinctively legal interpretive principles that may vary
from one system to another.
9
Interpretive principles used to disclose constitutional implications of the
same kinds as those found in ordinary language usage are likely to be uni-
versal, given that such usage tends to be relevantly similar in most if not all
natural languages. These principles are studied by linguists and philosophers
of language. Distinctively legal interpretive principles used to disclose, or fab-
ricate, so-called ‘implications’ that are peculiar to legal texts may (but will not
necessarily) vary from one legal system to another.
The distinction between these two general categories of what are called
implications is related to another distinction, concerning the nature of legal
interpretation. The word ‘interpretation’ is used in law to denote at least two
different processes. The first aims at revealing or clarifying the meanings of
a legal text, both express and implied, that even if previously obscured were
possessed by the text all along. (Note that a law must have some meaning that
pre-exists its interpretation, whose primary object is to recover that meaning;
4
West v. Commissioner of Taxation (NSW) (1937) 56 CLR 657, 681–2.
5
Australian National Airways v. Commonwealth (1945) 71 CLR 29, 81 per Dixon CJ.
6
Tasmania v. Commonwealth and Victoria (1904) 1 CLR 329, 348 per Barton J.
7
Australian Capital Television Pty Ltd v. Commonwealth (1992) 108 CLR 577, 650 per
Gaudron J.
8
J. Balkin, Living Originalism (Cambridge: Harvard University Press, 2011), 204.
9
See Section
4.5
.
The Implicit and the Implied in a Written Constitution
111
otherwise it would be meaningless, and nothing meaningless could be a law.)
10
The second process is more creative, adding new meanings to the text that it
did not previously possess, or changing it in other ways.
To mark this distinction, some American theorists call the second, crea-
tive, process ‘construction’ rather than ‘interpretation’.
11
But since popular
and professional use of the term ‘interpretation’
encompasses both processes,
I prefer to call the first process ‘clarifying’, and the second one ‘creative’,
interpretation.
12
The least contentious kind of creative interpretation involves supplement-
ing the meaning of the text by adding new meanings to it. Clarifying interpre-
tations are sometimes unable to resolve interpretive problems such as stubborn
ambiguity, vagueness and gaps.
13
Since judges cannot wash their hands of a
dispute and leave the parties to fight it out in the street, they must resolve such
problems through this kind of creative interpretation. This is legally legitimate
when and insofar as it is necessary.
But occasionally, creative interpretation goes further than this. Judges
sometimes change the meaning of the text in order to correct or improve it.
Some examples that are often considered legally legitimate in common law
jurisdictions include: (1) the correction of obvious drafting errors, including
internal inconsistencies; (2) ‘reading down’ over-broad terms to avoid consti-
tutional invalidity;
14
(3) incremental adjustments to the meanings of provi-
sions to enable them to achieve
their intended purposes, which unanticipated
social or technological developments may have made otherwise impossible;
15
(4) ‘implying into’ the text terms deemed necessary for its efficacy; and (5)
what used to be called the ‘equitable interpretation’ of provisions to avoid
unintended and undesirable consequences in unusual and unanticipated
circumstances.
16
10
See J. Goldsworthy, ‘The Case for Originalism’, in G. Huscroft and B. Miller (eds.),
The Chal-
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