Justice Edelman's Originalism, or Hints of It

Abstract

The purpose of this post is to parse his Honour’s recent dissent in Graham v Minister for Immigration and Border Protection [2017] HCA 33 for clues as to his interpretative approach to the Constitution. I pay particular attention to his Honour’s use of history and the weight he gives to the constitutional text’s original public meaning. In this respect I am taking my lead from Jill Lepore, the Harvard historian, who asserts that a judge’s use of history and their attitude to original public meaning are the most important aspects of their judicial philosophy.