Ancestor Worship, Living Trees, and Free Exercise in the Australian Constitution
U. of Adelaide Law Research Paper No. 2021-55
Babie, Paul T. “Ancestor Worship, Living Trees, and Free Exercise in the Australian Constitution.” Canopy Forum, October 2, 2020.
8 Pages Posted: 7 Jul 2021
Date Written: July 6, 2021
Abstract
My question in this brief essay is simple: why should we care what the framers had to say, and whether we can find support in what they thought about a provision for contemporary Australia? My answer is equally succinct: we shouldn’t care. I suggest in this essay that we need not and ought not be so bound when interpreting Section 116. Instead, I propose, rather boldly for Australia, that we look to the words of Section 116 to understand its meaning for contemporary Australia. Rather than originalism, I suggest, we should pursue a “large and liberal” “living tree” interpretation of the words. We might even go further, and look to the way in which very similar words have been understood in a somewhat analogous context. In other words, I suggest, boldly, that we might find the spirit of the words of Section 116 revealed in the American experience with the First Amendment. But taking a large and liberal approach, informed by American experience might show us that the correct approach is already to be found, hidden in plain sight, in a decision of the High Court handed down almost 80 years ago.
Keywords: The Australian Constitution
JEL Classification: K10
Suggested Citation: Suggested Citation