Constitutional intention : The limits of originalism

Abstract

The question of original intention within the Australian constitutional context can be traced bad nearly sixty years before Isaacs' death, to Sydney in 1891. This chapter investigates the role of the framers and their constitutional imprint on the lives of those who succeed them. It does so primarily from an Australian perspective, though analogous situations from other countries will often be considered. It argues that originalism, even in its moderate guise, misunderstands the role of the framers and rests the dead hand of the past too heavily on the lives of the current generation. The problem of ascertaining original intention and its application to particular constitutional controversies has given rise to a large body of constitutional literature. Ultimately, it is argued, while 'hard' or 'moderate' originalism are unacceptable methods of establishing constitutional meaning, there is room for a weak or 'soft' originalism.