Legislative Constitutional Baselines

Abstract

‘Constitutional baselines’ are interpretive tools that are widely used in constitutional reasoning, although often implicit and unarticulated. They provide standards for measure that enable courts to evaluate the adequacy of the state’s provision of constitutionally guaranteed goods. This article identifies constitutional baselines as a distinctive issue in constitutional interpretation, and it examines an important but under-theorised way that the High Court of Australia defines constitutional baselines: namely, by adopting legislatively–defined norms or standards. The best-known example of this is the electoral franchise line of cases: in determining what the constitutional guarantee of representative government requires, the High Court frequently consults Commonwealth electoral legislation. However, while other commentators have observed and criticised this interpretive practice, it has not been properly understood or evaluated. This article clarifies how legislative constitutional baselines function, refines objections to their use, and develops an analytical framework for their evaluation. It ultimately argues that, at least under some circumstances, legislative constitutional baselines are justified because they provide a more plausible and more defensible method of defining constitutional baselines than methods that rely on other sources of constitutional meaning.

Keywords: constitutional law, interpretation, judicial reasoning, constitutional theory, legislation