Introduction The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution. Cole v Whitfield Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
Booker T. Washington thought that Blacks should earn their respect gradually after getting an education and becoming business man of the industrial world. W.E.B Du Bois was more of demanding it and he also thought they should try everything they could to earn the respect they needed. Although Booker and W.E.B had there differences, Booker's strategy was more appropriate for the time period and that W.E.B wanted the Blacks to make some sacrifices in order to achieve there goals.
This paper discusses the contrast of two landmark United States (U.S.) Supreme Court cases that helped to clearly define how the Fourth and Fifth Amendments of the U.S. Constitution is interpreted, and analyzes the difference between the “Constitution” and “Constitutional Law.” Two cases that are referenced in this analysis are (1) Katz v. United States, 386 U.S. 954 (U.S. March 13, 1967), and (2) Olmstead v. United States, 277 U.S. 438 (U.S. June 4, 1928), which differed in ruling; one eventually overturning the other. Finally, a conclusion is drawn as to the importance of these case decisions in the lives of Americans.
In this paper I explain and reject Dworkin's arguments for his view of constitutional interpretation. But with Dworkin, I reject the "originalism" of Justice Scalia and Robert Bork. I champion, instead, the moderate view that Justice Hugo Black presents in his dissent in Griswold v. Connecticut. (2)
In Palgo Holdings v Gowans , the High Court considered the distinction between a security in the form of a pawn or pledge and a security in the form of a chattel mortgage. The question was whether section 6 of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) (‘the 1996 Pawnbrokers Act’) extended to a business that structured its loan agreements as chattel mortgages. In a four to one majority (Kirby J dissenting) the High Court found that chattel mortgages fell outside the ambit of section 6 of the 1996 Pawnbrokers Act. However, beyond the apparent simplicity of this decision, the reasoning of the majority raises a number of questions. Was it a “turning back to literalism” as Kirby J suggested, or was it simply a case where the court declares that parliament has missed its target?
Interpreting the Constitution as you see it, is very difficult because of the fact is when time changes, people change. What I mean by this statement is that different generations have different interpretations of what people believe that the Constitution says that they can do. Which leads to people becoming a textualism which means that the judges of the Supreme Court try to decide that they can make news laws, even though their job is just to interpret the laws. They figure since the Constitution was written in 1788, that the Constitution doesn’t have the same meaning as it did back then. On the other hand, you have people that believe that you should interpret the laws that come in with using the Constitution the same way judges did way back then. An example of a person that is a textualism would be Supreme Court Antonin Scalia and a person that is a originalist is Supreme Court Justice Stephen Boyer. In this paper, I am comparing and contrast, both of these judges to determine which person and their argument is right.
Although the original constitution was designed to endure and last, ruling with the “original intent” would not be ideal due
The Originalist’s theory represent What Would the Founding Fathers Say? The Founding Fathers created the constitution for a reason, being that it would presumably be the law of the land and it has. The constitution is known as “the supreme law of the land” and for that reason it should be followed as it is written, it includes everything that the Founding Fathers created to help run a country. The original intent of the Founding Fathers is meant to be kept, who are we to change their views on things? When they wrote it out for us, what they wrote is what we should follow. We cannot be rule by the passions of our time and not consider the constitution and the past. We are bound to the constitution as it serves as a mean to hel...
The Australian constitution is a national legal document, enacted by the British government on the 1st of January 1901 as a part of Australia’s federation, it can be very difficult to change yet it requires constant renewal to keep up to date with today's society. As the Australian states and territories have the ability to create their own laws, the Constitution is employed to regulate them. Any state or territory law that is viewed to be in direct defiance of the constitution can be repealed and then is reviewed and examined via the High Court of Australia. If the High Court rules that the state's law is unconstitutional it will then be voided. Due to the fact, the constitution overlooks all the laws carried out by the Australian states and
The decision for Australia to adopt the Federal system was on the principle of which the State’s governments wanted to keep their power. For this reason there was the separation of powers between the newly formed Commonwealth government and the existing State governments. At a constitutional level, there are rulings in which the powers are separated, these rulings due to disputes have slightly changed since 1901. These changes all fell towards the one government, the Commonwealth (Federal) government. However this was not just a landslide event, the Constitution of Australia set up this imbalance of powers between the Commonwealth and State governments. We will explore this further in the points discussed later in this essay.
In presenting Justice Scalia 's majority opinion in Prinz v. United States, it is obvious that, using the principles of originalism, is no more than taking history out of context to support a conclusion that appears consistent only to support a predetermined conclusion. Justice Scalia 's brand of originalism only uses history when it supports a particular conclusion, and denies it when it doesn
Whether the adoption of a constitutional Bill of Rights promotes freedom and liberty is a highly debated topic. I agree that Australians should avoid the immediate adoption of a constitutional Bill of Rights as it gives the judiciary too much power. This essay will explore the advantages and disadvantages in implementing a constitutional Bill of Rights and whether implementing a Bill of Rights will shift the balance of the government and courts and what those consequences will be. This essay will further attempt to provide an alternative solution to protecting human rights in Australia if a Bill of Rights is necessary.
While an uncodified constitution has the advantages of dynamic, adaptability and flexibility to meet the ever-changing needs of the society , it poses much difficulty in pinpointing the ultimate constitutional principle that should provide legitimacy in the British constitution. This results in a battle between two broad schools of thought––political constitutionalism and legal constitutionalism.
The case against a Bill of Rights as shown above includes the fact that it is foreign to our traditions and Australia has survived to date through its existing protection of basic rights. It is argued that a Bill of Right may provide too much power to the judges.
Certainly one may think that the constitution and constitutional courts are the “weapons” in hands of power to set down mutual interests and relations. However, constitutional law, establishing a framework for the society and its members, belongs to every and each one, who can count on it either it is unwritten or written.