This chapter examines key aspects of constitutional method. First, this chapter considers constitutional interpretation, which is concerned with working out what the terms and provisions of the Constitution mean and how they apply. Secondly, this chapter considers the technique of characterisation, which is concerned with working out whether a law is one with respect to a head of legislative power or a prohibition on legislative power. Finally, this chapter considers the nature and consequences of constitutional invalidity.

The Australian legal system is not an island, and Australian law has felt the influence of law and legal ideas from other jurisdictions, particularly other common law countries. Australian law has also been shaped by public international law both directly and indirectly and this interaction has become increasingly important as the scope and content of international law have grown. The relationship between Australian law and international law is mediated by Australia’s constitutional framework in which the separation of powers between the executive, legislature and the courts holds central place. Unlike the constitutions in many other legal systems, the Australian Constitution does not address the relationship between international and domestic law, and most of the relevant legal principles are to be found in the common law. This chapter examines how each arm of government in Australia has engaged with international law, identifying areas where the relationship is well settled (as it is in relation to treaties) and areas where there remains some uncertainty (as in relation to customary international law).

Two dominant constitutional issues in the 1790s illustrate the fluid nature of constitutional meaning in the early republic. One issue was whether the Constitution permitted individuals to sue states in federal court. The Supreme Court’s decision in Chisholm v. Georgia (1793) generated widespread state interposition to resist the Court’s broad interpretation of a constitutional clause and resulted in the Eleventh Amendment. A second constitutional issue generating interposition in 1796 was whether President Washington had exceeded his authority in negotiating the Jay Treaty with Great Britain. Federalists argued that the Constitution’s text clearly provided presidential authority while Republicans wanted Congress to speak for the sovereign people and have a vital role in assessing a treaty’s constitutionality. Both sides considered it important to understand the intent of those who drafted and ratified the Constitution and to employ that history in interpreting the document. Yet, this process of constitutional interpretation allowed inferences fromthe Constitution’s text, reliance on memory, and even thoughts about the framers’ intentions.

This chapter describes the application of the principle of proportionality in the case law of the Constitutional Court of Ecuador in a context that is highly favorable to its use, given the presence in the Constitution of 2008 of an amplified rights catalog, the reception of international human rights instruments into the constitutional block, and the explicit authority granted to the Court to resort to proportionality analysis to solve tensions and conflicts between rights. On the basis of decisions produced between 2008 and 2019, the authors show that the Constitutional Court has applied the method with different goals in mind and with regards an ample variety of subject matters covering civil and political rights but also economic, social, cultural and environmental rights. While the authors point out that the method has received inadequate uses, case law analysis also shows that it has been used to protect traditionally discriminated–against social groups, displaying a transformative potential.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

Federation is an inherently flexible form of political organisation that involves ongoing negotiation, coordination and compromise to meet changing local and temporal conditions.The history of Australian Federation illustrates this: from the origins of the federal idea in the mid-nineteenth century, amid the emergence of quasi-federal arrangements within the British Empire (1847-1890); to the creative outcomes of Australia’s constitution-making decade, when American and other influences garnered attention (1891-1901); and through the subsequent outworkings of the Australian Constitution as it has been interpreted and applied alongside the growth of the nation. The proven adaptability of Federation may inform contemporary approaches to the constitutional recognition of Australia’s First Peoples.

The Epilogue offers two different venues where the influence of claims to be able to avoid all tradition to arrive at truer readings are seen in modern society in the United States of America. These two are biblical literalism and constitutional originalism. The study examines a number of cases, both exegetical and legal. In each case, the rules for reading “correctly” and only according to the text are shown to be instead part of a complex reading tradition that foregrounds certain facets of the text while ignoring others. The argument is not that biblical literalists or constitutional originalists are wrong in their conclusions. Instead, the evidence demonstrates that the hermeneutical high ground that claims only to read the text with no further rules, traditions, or caveats – does not exist.

The Hungarian constitutional democracy was born in 1989; the Constitutional Court commenced operation in 1990. László Sólyom, the first president of the Court, is thus considered a founder and developer of Hungarian constitutionalism. This chapter summarises Sólyom’s views on the characteristics of the 1989 constitutional transformation and the status of the Constitutional Court. It then examines his leading judgments and dissenting opinions, offering an explanation of his views on the judiciary, constitutional interpretation, and fundamental rights. Finally, it shows how Sólyom changed his point of view on key constitutional issues when serving as the head of state during the last years of the Republic of Hungary. The chapter rejects the popular view that Sólyom, as a liberal thinker and judge, consolidated the liberal democracy in Hungary. It also rejects the opposite claim that Sólyom’s judicial activism led to backsliding from liberal democracy. Instead, the chapter argues that, although his merits as leader of the first Hungarian Constitutional Court should be fully recognised, Sólyom’s legacy involves many paradoxical elements, for which it offers an explanation.

This chapter raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the US Supreme Court, the chapter argues that while it does engage in reason-giving to support its decisions, those reasons are (largely) legalistic and specifically juristic reasons – not the theorists’ idealized moral-political reasons on matters of fundamental principle. If constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: Prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The chapter extends beyond the US case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts.

The sixteen words on religion in the First Amendment have generated voluminous and vociferous scholarly interpretations. These controversies strike at the heart of the role of religion in American public life. How are we to decide which interpretation of the First Amendment is correct? Answers to this question have been laden with presuppositions. This chapter is an interdisciplinary analysis of recent historical, political, legal, and philosophical writing on the First Amendment to illustrate how key presuppositions inform the approach to arguments about the meaning, scope, and intent of the First Amendment. The chapter will first outline the contextual and philosophical problems of interpreting the First Amendment. It will then evaluate the providentialist, secular, and pragmatic presuppositions that have guided scholarly interpretations. Ultimately, the chapter will argue that there has not been a single understanding of the relationship between church and state in America, but that investigating these presuppositions can help us better appreciate the dynamic nature of religion, politics, and jurisprudence in America.

Debates over the original meaning of the establishment clause have usually revolved around the question of which broad church-state principle is represented by the clause. Strict separationists advocating a “wall of separation” highlight different historical evidence than do non-preferentialists who argue that the clause allows evenhanded government support for religion. A third group asserts that the clause was instead a federalism provision designed to reserve church-state decisions to the states. This chapter assesses these conflicting interpretations and concludes that the framers and the public understood the clause only as banning the establishment of a national church. That understanding did not necessarily represent an anti-establishment principle, however, and it assumed that church-state issues would continue to be resolved by the states. In light of the Supreme Court’s adoption of the incorporation doctrine, the combination of the federalism interpretation and the no-national-religion prohibition best encompasses the original constitutional decision.

Justice Antonin Scalia was a towering figure in jurisprudence and legal culture. Among other things, he was the most eloquent and prominent proponent of the idea that the Constitution should be interpreted according to its “original meaning.” Scalia was also a devout Christian: a traditional Catholic who set forth his Christian beliefs with honesty, pungency, and wit. He frequently told the story how during his college oral examinations, he was asked the most significant event in history; he answered, the Battle of Waterloo, whereupon the professor “shook his head sadly and said, ‘No, Mr. Scalia. The Incarnation.’” The lesson for the young Scalia: “[Never] separate your religious life from your intellectual life.” Yet this most publicly devout justice also frequently made clear that his beliefs had nothing to do with his judicial role. His job, he emphasized, was merely to apply the meaning of the text without regard to policy considerations or moral values, including religious values. “I’m a worldly judge,” he often said. This presents a puzzle: did Scalia end up separating his religious life from his jurisprudence, the core of his intellectual life? Or was he still somehow a distinctively Christian judge? The solution, I suggest, lies in distinguishing his first-order legal conclusions, which were driven largely (although not solely) by his positivist judicial method, from his second-order choice of that method, which may well have reflected aspects of his personal outlook on the world, including his faith.