Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes

Abstract

It is, of course, flattering to have not one, but two, fellow constitutional law scholars take issue, in print, with something I recently wrote in the pages of this law review. And so I am most grateful to both Elisa Arcioni and Jonathan Crowe. Now, given the space constraints, I will keep this short, focussed on a few core disagreements, and comprehensible to readers who may not have read the earlier articles. My original piece, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?’, in the pages of this law review was an extended critique of a recent High Court decision. Part of that critique involved a more foundational criticism of the entire judicially created implied rights jurisprudence. Crowe, in ‘Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni’, and Arcioni, in ‘Some Reflections on “Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?”’, took issue with my views on the proper approach to constitutional interpretation (though for Arcioni it was more to do with what sort of results that approach would deliver). As Crowe’s criticisms are far more deep-rooted, I will respond to him first. Note, however, that my original article was specifically aimed at criticising the High Court’s recent jurisprudence. It was not a wider theoretical piece defending a particular approach to constitutional interpretation. As it happens, I have written the latter sort of chapters and articles, too; indeed, Crowe cites one of them, and these can be consulted for a more detailed defence of what I will sketch out here. You see, I am a defender of what is known as ‘originalism’. Crowe is not. So perhaps it might be best to begin with a