Paul T. Babie (Adelaide Law School, The University of Adelaide) has posted Ancestor Worship, Living Trees, and Free Exercise in the Australian Constitution (Canopy Forum, 2020) (8 pages) on SSRN. Here is the abstract:
My question in this brief essay is simple: why should we care what the framers had to say, and whether we can find support in what they thought about a provision for contemporary Australia? My answer is equally succinct: we shouldn’t care. I suggest in this essay that we need not and ought not be so bound when interpreting Section 116. Instead, I propose, rather boldly for Australia, that we look to the words of Section 116 to understand its meaning for contemporary Australia. Rather than originalism, I suggest, we should pursue a “large and liberal” “living tree” interpretation of the words. We might even go further, and look to the way in which very similar words have been understood in a somewhat analogous context. In other words, I suggest, boldly, that we might find the spirit of the words of Section 116 revealed in the American experience with the First Amendment. But taking a large and liberal approach, informed by American experience might show us that the correct approach is already to be found, hidden in plain sight, in a decision of the High Court handed down almost 80 years ago.
And from the introduction (footnotes omitted):
The narrow interpretation [of the Australian free exercise clause] emerges from a fascination with a very Australian form of originalism, or “ancestor worship”, as Michael Kirby, a former High Court justice, has pejoratively called it. When encountered in the United States, originalism tends to be associated with those on the right, used in conjunction with “strict construction” so as to reach outcomes “that conservatives like.” [Ed.: well, I have several thoughts about hat point.] In Australia, however, appeals to originalism come from those of every political stripe, right and left, who together adhere to a consensus that what matters most when interpreting the Constitution in twenty-first century Australia is what the nineteenth century framers said about this or that provision when drafting it. The protagonists may disagree about what the framers said, but what matters, they say, indeed, all that matters, is the search for what the framers said and what they meant when they said it.
This strange ancestor worship began with the publication in 1901, contemporaneously with the coming into force of the Constitution, of John Quick and Robert Randolph Garran’s The Annotated Constitution of the Australian Commonwealth.8 John Quick was one of the framers and Garran was a secretary to some of the delegates to the Constitutional Conventions at which the drafting took place. As such, Quick and Garran’s approach to the new constitution generally, which was merely a recounting of the Convention Debates which produced the draft text enacted by the United Kingdom Parliament, formed the roots of a fascination with originalism that took hold in Australian soil. It has served as the foundation to most of the interpretation of the Constitution ever since.9 At its heart lies an unspoken assumption that one must always “return to the framers” as part of the process of interpreting what the Constitution means, and that doing so involves recourse to “Quick and Garran”. And the quest to return to the framers has, in a word, been distracting, diverting attention away from what a constitution ought to be and to do.
I did not understand that originalism was so widely accepted in Australia (albeit in a somewhat different form) — it's interesting to see that claim, even if it's viewed negatively by the author.
Posted at 6:50 AM