CONTENTS I Introduction II Theories of Constitutional Interpretation A National Context B Moderate Originalism C Accommodating Constitutional Change III International Law in Constitutional Interpretation A The Purpose, Structure and Status of International Law B International Law and Municipal Law C 'Easy' Cases: Express Licence to Consult International Law D 'Hard' Cases: No Express Licence to Consult International Law 1 Australia 2 United States E Revisiting the 'Hard' Cases: Distinguishing Originalism from Localism IV Originalist Pathways to Consulting International Law A Pathway One: The Common Law Connection 1 The Common Law Influencing Constitutional Interpretation 2 International Law Influencing the Common Law 3 The Common Law Connection in Action B Pathway Two: International Law Resolving Ambiguity in Constitutional Texts 1 Identifying Ambiguity 2 The Construction Zone 3 International Law Giving Content to Objective Moral Categories of Constitutional Significance 4 Comparing Constitutions (a) United States (b) Australia C Pathway Three: Discerning Engagement with International Law 1 Expository Consultation 2 Empirical Consultation V The Utility of International Law in Constitutional Interpretation A Universality and Transnational Dialogue B Objectivity and the Rule of Law C Practical Orientation D Selectivity E Persuasive Guidance VI Conclusion I INTRODUCTION
[A] constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. (1) [O]pinions that seek to cut off contemporary Australian law (including constitutional law) from the persuasive force of international law are doomed to fail. They will be seen in the future ... with a mixture of curiosity and embarrassment. (2) Several great divides shape the terrain of constitutional interpretation. (3) The question of what role international law can play in construing national constitutions is a major fault line. (4) Reactions have ranged from 'cheers and applause to jeers and catcalls', with the 'cacophony reach[ing] its most feverish pitch in the realm of legal scholarship'. (5) Even in the Australian constitutional context--largely 'untouched by the [global] juggernaut of the human rights movement' (6)--the use of international law in constitutional interpretation has triggered judicial and academic controversy. This article revisits that debate, specifically addressing the role of contemporary international law, as distinct from foreign domestic law.
Many responses to the issue of consulting contemporary international law in the interpretation of domestic constitutions have been plagued by a lack of precision. Some commentators have repeatedly failed to distinguish between international law and foreign domestic law. (7) 'Legal xenophobia'--the view that international law should not influence domestic legal reasoning (8)--may underly and explain this oversight. Polarisation of the debate has also seen supporters of the domestic application of international law ignore compelling reasons against the consultation of international law. (9) Different theories which (allegedly) oppose the use of international law in constitutional interpretation, such as originalism and localism, have been conflated.
Yet, amid all this confusion, there is no doubt that Australia does indeed present a hard case for engaging international law in constitutional interpretation. (10) Characterised by a devotion to cautious legalism and 'dry legal argument', (11) Australian jurists tend to limit the scope of judicial choice that inheres in the interpretation of legal materials, including the Australian Constitution. (12) Coupled with the doctrine of stare decisis, this has had a 'subtle and formidable conservative influence'. (13) Despite contemporary pressure to change this orthodox attitude, reliance on international law in constitutional interpretation continues to be 'inhibited by ... the content of the Constitution and the prevailing interpretive approach. (14)
Opposition to the use of international law in constitutional interpretation is especially strong among proponents of originalism. (15) Although Australian judges are usually reluctant to embrace a general theory of constitutional interpretation (16)--arguing that no 'ism' (17) or formula 'can deliver all truth, all harmony, all simplicity' (18)--originalism seems to have a unique hold on Australian constitutional jurisprudence. (19)
Originalism strives to maintain a strong connection between constitutional doctrine and text. (20) However, it is a mistake to think that originalism is necessarily conservative. (21) Although this article does not aim to support either side of the originalist-non-originalist debate, it is fair to say that moderate originalism, espoused by Professor Goldsworthy, embodies the virtues of moderation. (22) It strikes a careful balance between the literalism of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (23) and pure, subjective intentionalism. (24)
Given that the majority of the High Court is likely to remain moderately originalist--adopting a cautious purposive approach that construes the Constitutions words in general terms consistent with original public meaning (25)--it is worthwhile examining the role which international law can play in constitutional interpretation through an originalist lens. That is the primary objective of this article.
To date, most of the justifications for consulting contemporary international law in constitutional interpretation have been external to the originalist framework. (26) Non-originalists have written prolifically in favour of using international law. (27) However, they (by definition) have adopted justifications antithetical to originalism. Non-originalists have frequently advocated for the convergence of international and domestic law, rallied against dualism and argued that constitutions should be 'updated' to better reflect international human rights law. In response, originalists have decried the idea of using contemporary international law to construe constitutions.
This article suggests that we should challenge originalists' offhand rejection of international law as a tool in constitutional interpretation. After all, why is it that originalists tend to so vehemently oppose consulting international law? Is it possible for originalists to engage international law without becoming non-originalists? Are there, perhaps, compelling reasons why originalists should consult contemporary international law? This article explores these questions by considering the ways in which originalists can have recourse to international law without contravening the principles of originalism.
This exploration is animated by constitutional cosmopolitanism, ie the principle that no jurisdiction can be an island unto itself. (28) There is a growing consensus that the era of cosmopolitan constitutionalism has dawned (29) and that international and domestic cross-fertilisation is likely to increase. (30) In particular, it is difficult to ignore the development of international human rights law. (31) While other countries have integrated international law into constitutional law by constitutionalising international instruments or adopting bills of rights, Australia's history of referenda makes such developments nearly impossible. (32) For Australian lawyers, constitutional interpretation is key.
This article proposes that originalism and constitutional cosmopolitanism are not diametrically opposed to one another. Cosmopolitan originalism--the openness of originalism to international law--is not an oxymoron, but a plausible approach to constitutional interpretation. While stubbornly insisting upon fidelity to the Constitution as a legal text, cosmopolitan originalism recognises that international law is a valuable interpretive resource and challenges the refusal of originalists to consult it.
In exploring cosmopolitan originalism, this article contains two interrelated prongs. The first prong outlines three pathways by which constitutional interpreters can have recourse to international law materials in a manner consistent with the essential commitments of moderate originalism. The second prong examines the utility of international law, emphasising that international law materials can provide helpful guidance to constitutional interpreters. This article finds that although originalism constrains the role that international law can play in constitutional interpretation, originalism is not a barrier to robust engagement with international law. (33)
Part II of this article reflects on the nature of originalism and its capacity to accommodate constitutional change. Part III briefly canvasses the purpose, structure and status of contemporary international law and evaluates the current debate concerning the role of international law in constitutional interpretation. Part IV explores three pathways, consistent with originalism, which cautiously support the consultation of international law in constitutional interpretation. Part V considers the utility of international law as an interpretive aide.
II THEORIES OF CONSTITUTIONAL INTERPRETATION
A National Context
The Australian Constitution does not expressly mandate the principles according to which it should be interpreted. (34) Theories of constitutional interpretation are, therefore, 'matter [s] of conviction based on some theory external to the Constitution itself'. (35) They encapsulate broader legal traditions and tacit assumptions. Yet, a theory of interpretation cannot be detached from the nature of the actual document to which it purports to give meaning. In Australia, although the Constitution occupies a special position in national jurisprudence, (36) it neither contains a comprehensive bill of rights nor stipulates the responsibilities of the government towards the people. (37) In this respect, Australia 'stands alone among English-speaking nations'....