Nicholas Aroney (University of Queensland - TC Beirne School of Law) has posted Towards the ‘Best Explanation’ of the Constitution: Text, Structure, History and Principle in Roach v Electoral Commissioner (University of Queensland Law Journal, Vol. 30, No. 1, pp. 145-164, 2011) on SSRN. Here is the abstract:
This article explores what it would mean to interpret a constitution in terms of the proposition that the best interpretation is that which possesses the most explanatory power. Building on a related article in which the meaning of 'explanatory power' is clarified and its potential application to questions of legal interpretation is explored and defended, this article seeks to show what difference a rigorous attempt to maximise the explanatory power of our interpretations would make to a very specific problem of constitutional interpretation. The particular issue on which the article focuses is whether a national constitution, in providing for a system of government in which members of the legislature are 'chosen by the people', necessarily implies that there are definite limits on the extent to which convicted prisoners can be automatically disqualified from voting in elections.
Questions of implied rights, such as the right to vote, especially arise under constitutions which either do not have a constitutionally entrenched bill of rights, or whose catalogue of rights is thought to have certain lacunae which the implied rights are somehow meant to fill. Such questions have arisen, for example, under the United States Constitution in relation to so-called penumbral rights and specifically in relation to the right to vote itself; and they have also arisen under the Canadian Constitution, especially in the period prior to the enactment of the Charter of Rights and Freedoms. This article focuses on the reasoning of the High Court of Australia in a particular case, Roach v Electoral Commissioner, in which it was held that the Australian Parliament does not have an open-ended power to disqualify prisoners from voting, especially where they are serving sentences of a very short duration in circumstances where the length of the sentence is not necessarily related to the seriousness of the offence or the personal character of the prisoner.
The article argues that the concurring and dissenting judgments in the case illustrate the real practical difference that a deliberate and rigorous pursuit of the best explanation of a constitution will make in implied rights cases such as this. It is shown that when judges, apparently wishing to come to a conclusion that is thought justifiable in terms of their perception of contemporary values and expectations, undertake an analysis of the text, structure and history of a constitution at a level of such generality that it enables them to incorporate prudential judgments and ethical values that accord with those contemporary perceptions, it leads to conclusions that have less explanatory power compared to approaches that involve closer and more rigorous analyses of text, structure and history, and which are directed to the disclosure of a more precisely defined set of prudential and ethical judgments which demonstrably motivated those involved in the making of the constitution.
It is argued that when this latter approach is adopted an interpretation possessing a higher level of explanatory power is likely to result, because the enquiries into text, structure, history, principle and pragmatics tend to reinforce each other in a mutually illuminating way. Insights acquired through careful investigation of the historical context in which a constitution came into being frequently shed light on otherwise unnoticed textual details and overlooked structural relationships; moreover, through this process underlying ethical principles and motivating prudential judgments are also illuminated, and a more thorough, detailed and ethically-informed understanding of the constitution emerges as a result. Furthermore, recognising this relationship between text, structure and history, together with the specific prudential and ethical judgments to which a constitution actually gives effect, offers a basis for distinguishing between authentic constitutional implications and those which rest upon ethical and prudential judgments that have an inadequate grounding in the text, structure and history of the constitution. A more rigorous approach is morally preferable because it offers a way to maintain and preserve the judicial duty to do justice in accordance with the law, and it is theoretically preferable because it offers a way to integrate arguments from text, structure, history, ethics and prudence into a coherent whole, and in this way to maximise the explanatory power of our theories of the constitution. Text, structure, history, doctrine, ethics and prudence all have legitimate roles to play in constitutional interpretation, but if their use is to be coherent, it is argued, we ought to pursue those interpretations that offer the best sense of them all.