The Invisible Constitution in Comparative Perspective

4.4.1. Presuppositions

Sometimes an utterance refers to something, presupposing that it exists with-

out asserting that it does. An example is an utterance of ‘The current King 

of France is bald’, which presupposes that there is a current King of France. 

Philosophers have debated whether, given that there is no King of France, the 

statement is false, or pointless (because it is neither true nor false).

41

Constitutional and other legal provisions do this as well: simply by referring 

to something, they presuppose that it exists. The Ninth Amendment of the 

American Constitution provides that: ‘The enumeration in the Constitution, 

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 

constituted by any other provision or implication of the Constitution: they are 

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 

natural rights, but they do not really exist? (Arguably the Amendment should 

then be taken to refer to whatever real rights – if any – are most similar to the 

lawmakers’ imaginary rights.)

Moreover, even if such rights do exist, does a mere presupposition to that 

effect have the consequence that they are enforceable by federal courts under 

38 

(1999) 46 NSWLR 681, [5]–[6].

39 

(2012) 296 ALR 96 124–6.

40 

See note 17 and Section 

4.5

.

41 

W. G.  Lycan,  Philosophy of Language: A Contemporary Introduction (London:  Routledge, 

1999), ch 2, and p. 196. There is also debate about whether such presuppositions are semantic 

or pragmatic, a question 1 cannot explore here.

---

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