The Rise and Fall of Our Constitutional Legal Systems: Part I: And a Potential Solution to the Debate between Professor Goldsworthy and Kirby J of the High Court of Australia?

Abstract

The following paper will address the debate between Professor Jeffrey Goldsworthy and Kirby J of the High Court of Australia as it relates to the debate on which constitutional interpretive methodology is legitimate. Professor Goldsworthy arguing against radical non-originalism whilst Kirby J in defence of his progressivist approach to constitutional interpretation. The paper defines with some discussion of the various approaches to constitutional interpretation including: originalism, moderate originalism, non-originalism, etc… Professor Goldsworthy argues that radical non-originalism or progressivism as a methodology of constitutional interpretation results in the destruction of the rule of law, democracy and in the Australian context federalism by arguing that this form of constitutional interpretation effects illegitimate change, that is, by allowing the Constitution to be interpreted according to the changing needs of society, the definition of progressivism or radical non-originalism in constitutional interpretation, would enable the judiciary to avoid s 128 of the Australian Constitution (the referendum procedure), …in a haphazard fashion… resulting in the destruction of these vital constitutional principles – the rule of law, democracy and in the Australian context federalism. The paper also seeks to define the rule of law from a Diceyan perspective and also what is meant by democracy to clarify on the debate and determine whether codification of judicial review would enhance such principles, also as enshrined in section 128 of the Australian Constitution. The paper will propose the codification of judicial review or constitutional interpretation and codifies the interpretive methodology of McHugh J and submit that by codifying Kirby’s J radical non-originalism and submitting it to a constitutional referendum as approved would in fact enhance the rule of law, democracy and in the Australian context federalism, thus, providing a solution to the debate between Professor Goldsworthy and Kirby J of the High Court of Australia. The hypotheses, can progressivism or radical non-originalism actually enhance the rule of law, democracy and federalism rather than resulting in their destruction contrary to what Professor Goldsworthy claims? And would the reforms so mentioned be constitutional from a separation of powers perspective? In the answering of the latter question, the separation of the powers doctrine is defined and introduced with discussion on whether codification of judicial review would breach the separation of powers doctrine.