Implication and the Concept of a Constitution

Abstract:     
Recent decisions of the High Court of Australia have highlighted a distinction between two conceptions of written constitutions that may be applied by judicial interpreters. One treats constitutional text as defining governmental powers and limitations thereon, whilst the other, more controversially, treats the text as merely illustrating broader, unwritten principles that ultimately set the scope of governmental powers. This article analyses the distinction and traces the history of the "illustrative" conception as applied in Australian and United States constitutional adjudication.

Number of Pages in PDF File: 18

Keywords: Constitutional interpretation, federalism, individual rights, due process of law, comparative constitutional law

Accepted Paper Series