The High Court on Constitutional Law: The 2012 Term — Explanatory Power and the Modalities of Constitutional Reasoning

31 Pages Posted: 31 Jan 2014

See all articles by Nicholas Aroney

Nicholas Aroney

The University of Queensland - T.C. Beirne School of Law; Emory University - Center for the Study of Law and Religion

Date Written: 2013

Abstract

This article is a revised and expanded version of the paper on ‘The High Court of Australia on Constitutional Law: The 2012 Term' presented at the Constitutional Law Conference sponsored by the Gilbert Tobin Centre of Public Law at the University of New South Wales held in Sydney in February 2013.

The article argues that the High Court's constitutional jurisprudence is best understood and evaluated by reference to the idea of ‘explanatory power’ as the prime goal and desideratum in the interpretation of authoritative legal texts. The article closely analyses two of the leading constitutional decisions of the High Court during the 2012 Term and shows how the Court’s utilisation of the various modalities of constitutional reasoning – textual, structural, historical, ethical, prudential and doctrinal – can best be understood as efforts to arrive at an interpretation that constitutes the best explanation of the Constitution considered as an authoritative legal document. In so doing, the article defends what Professor Akhil Amar has called a ‘documentarian’ approach to constitutional interpretation, in which textual analysis combines with the study of enactment history and constitutional structure to secure the best explanation of the Constitution.

On such an approach, the role of arguments based ethical principle or prudential compromise are disciplined by careful textual, structural and historical analysis. This is because there is a special relationship between arguments based on text, structure and history that is not shared by ethical and prudential arguments when these are not adequately grounded to the Constitution considered as a document. When text, structure and history are meticulously examined the findings of each inquiry tends to reinforce the others. Insights acquired through careful investigation into the historical process by which a constitution came into being, for example, often shed light on otherwise unnoticed textual details and overlooked structural relationships. Underlying principles, motivating purposes and prudential compromises which demonstrably shaped the document are also illuminated by textual-structural-historical inquiry, and a more thorough, detailed and informed understanding of the Constitution emerges as a result.

The article draws on other work on explanatory power, including: ‘Towards the “Best Explanation” of the Constitution: Text, Structure, History and Principle in Roach v Electoral Commissioner’ (2011) 30 University of Queensland Law Journal 145; Explanatory Power, Theory Formation and Constitutional Interpretation: Some Preliminaries’ (2013) 38 Australian Journal of Legal Philosophy 1, http://ssrn.com/abstract= 2378096.

Keywords: constitutional interpretation, textualism, structuralism, originalism

Suggested Citation

Aroney, Nicholas, The High Court on Constitutional Law: The 2012 Term — Explanatory Power and the Modalities of Constitutional Reasoning (2013). University of New South Wales Law Journal, Vol. 36, No. 3, 2013, University of Queensland TC Beirne School of Law Research Paper No. 14-11, Available at SSRN: https://ssrn.com/abstract=2387935

Nicholas Aroney (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

Brisbane 4072, Queensland
Australia
+61-(0)7-3365 3053 (Phone)

HOME PAGE: http://law.uq.edu.au/profile/1098/nicholas-aroney

Emory University - Center for the Study of Law and Religion ( email )

Atlanta, GA 30322
United States

HOME PAGE: http://cslr.law.emory.edu/people/senior-fellows/aroney-nicholas.html

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