Interpreting the Constitution
Ever since its inception, one of the High Court’s primary duties has been to interpret the Australian Constitution. There have been many methodologies used to do so and many schools of thought (have been adopted by different judges) in approximately the last hundred years, but so far there still isn’t one consistent and cohesive way of interpretation . In this essay three types of options or methodologies that have been more commonly used by High Court judges will be discussed. They include: literalism/legalism, originalism and progressivism. Other options that may be considered by the High Court will also be examined in this paper.
Since the Engineers’ Case 1920, the Australian High Court has interpreted the Constitution using Literalism. This is based on the belief that the Constitution is a statute and that it should be interpreted in its “natural and ordinary meaning” . The decision in the Engineer’s Case also removed the “implied immunity of instrumental” and “reserved State powers”. In doing so, the Engineers’ Case started the modern foundation for the creation of a true nation, seeing the Constitution as merely a contractual obligation between the States was an outdated belief and there was a new understanding of the meaning of federalism . The High Court also adopted the literalist/legalistic approach through the Engineers’ Case . In creating the Constitution, the government has set out the law through framing the Constitution in words, and the words of the Constitution are binding . The Court’s duty when there is a binding text is to interpret the meaning of the wordas by giving the literal words legal meanings because they are not at liberty to re-construct a textually binding Act, especially the Constitution .The failing of the literalist/legalist approach is that usually the issue being decided from the text does not usually have a rigid and limited meaning .
The second type of methodology is