Functions, Context and Constitutional Values

Jonathan Crowe, ‘Functions, Context and Constitutional Values’ in Rosalind Dixon (ed.), Australian Constitutional Values (Hart, 2018)

12 Pages Posted: 18 Apr 2018

See all articles by Jonathan Crowe

Jonathan Crowe

University of Southern Queensland - School of Law and Justice

Date Written: April 15, 2018

Abstract

What are constitutional values and where do they come from? One plausible answer to this question is that constitutional values reflect the functions or purposes of the Constitution and its provisions. However, this response raises the further question of where those functions or purposes themselves come from. This chapter argues that at least some of the functions or purposes that give rise to constitutional values properly derive from contemporary beliefs and attitudes about the Constitution, rather than the intentions of its framers. I begin by examining the concept of a function as it applies to legal texts and other artifacts. I explore the relationship between functions and intentions, showing how functions can arise from contemporary beliefs and attitudes, not just authorial intentions. I discuss the implications of this argument for the notion of ordinary meaning, explaining how the role of contemporary context in shaping the meaning of constitutional texts creates a problem for originalism. I then introduce the idea of constitutional narratives, showing how this helps to make sense of the role of contemporary practices in grounding constitutional values. I argue that constitutional narratives can provide a sound basis for constitutional implications (even when not grounded in authorial intentions). I conclude with a brief comment on functionalist theories of constitutional interpretation.

Suggested Citation

Crowe, Jonathan, Functions, Context and Constitutional Values (April 15, 2018). Jonathan Crowe, ‘Functions, Context and Constitutional Values’ in Rosalind Dixon (ed.), Australian Constitutional Values (Hart, 2018), Available at SSRN: https://ssrn.com/abstract=3163247

Jonathan Crowe (Contact Author)

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

HOME PAGE: http://jonathancrowe.org/

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