This article was first published in the New Zealand Law Review, pp.

45-68, 2009

Heritage Lecture:
Comparativism in Constitutional Interpretation
Adrienne Stone

Introduction !i"e #ost $ud%es char%ed with the interpretation of constitutions, the $ud%es of the &i%h 'ourt of Australia co##onl( refer to, anal(se, and are so#eti#es persuaded b( the anal(ses of courts in other countries decidin% si#ilar )uestions. *ecentl( in Roach v Electoral Commissioner +,Roach-.,/ the &i%h 'ourt considered a challen%e to a 2006 a#end#ent to the 'o##onwealth 0lectoral Act /9/8 +'th. that e1tended the class of disenfranchised prisoners fro# an( person ser2in% a sentence of three (ears or lon%er 2 to an( person ,who is ser2in% a sentence of i#prison#ent-. 3 4n the course of decidin% that this law contra2ened the re)uire#ent of the Australian 'onstitution that #e#bers of 5arlia#ent be ,directl( chosen b( the people-,4 the $ud%es referred in the course of their reasons to decisions of the Supre#e 'ourt of 'anada and the 0uropean 'ourt of &u#an *i%hts.5 This practice raises two )uestions that are at the centre of #( lecture6 whether $ud%es interpretin% constitutions should use forei%n precedent in that tas" and, if so, how that precedent #i%ht be used. To those who are not deepl( en%a%ed in constitutional law, this topic #i%ht see# technical and arcane, and thus a surprisin% choice for a public lecture. &owe2er, it raises funda#ental )uestions. 4t raises )uestions about the nature the $udicial obli%ation to show fidelit( to the constitution itself. 4s it proper for $ud%es char%ed with interpretin% a constitution which is e1pressed in writin% and which has its own histor(, to be attenti2e to decisions #ode elsewhere in different conte1ts and in relation to different constitutional te1ts7 4t also raises related )uestions about a constitution-s role in shapin% national identit(. Should we understand a constitution as %i2in% effect to a uni)ue for# of %o2ern#ent, shaped b( its own histor( and in response to local conditions7 8r should we understand a constitution as i#ple#entin% a for# of %o2ern#ent shared with other de#ocracies7 4n other words, does a constitution re2eal that the political co##unit( it %o2erns is uni)ue or that it is
5rofessor, 9irector of the 'entre for 'o#parati2e 'onstitutional Studies, :elbourne !aw School. This article for#ed the basis of the second of the Heritage Lectures, deli2ered on 23 ;ul( 2008 as part of the celebrations of /25 (ears of teachin% at the Auc"land <ni2ersit( !aw School. / +200=. 233 '!* /62. 2 'o##onwealth 0lectoral Act /9/8 +'th., s 93+8.. 3 'o##onwealth 0lectoral Act /9/8 +'th., s 93+8AA.. This pro2ision applied onl( to ,detention on a full-ti#e basis for an offence a%ainst a law of the 'o##onwealth or a State or Territor(-6 s 4+/A.. 4 Australian 'onstitution, ss = and 24. 5 See the report of ar%u#ent in Roach at +200=. 233 '!* /62 at /66, citin%, a#on% other cases, Sauv v Canada (Attorney- eneral! >/993? 2 S'* 438@ Sauv v Canada (Chie" Electoral #""icer! >2002? 3 S'* 5/9@ Hirst v $nited %ingdom &No '( +2005. 42 0&** 4/.

a #e#ber of an international co##unit( with shared 2alues7 8nce these underl(in% )uestions are re2ealed, it should be less surprisin% that the )uestion is actuall( hotl( debated a#on%st scholars of constitutional law and $ud%es char%ed with constitutional interpretation. 4 a# also aware that 4 a# spea"in% about this proble# in a conte1t that is )uite different to Australia-s. Aith no written constitution, the )uestion of the use of forei%n law in constitutional interpretation #i%ht see# inapplicable to Bew Cealand. Bonetheless, the Bew Cealand Dill of *i%hts Act /990 +BC., despite its status as an Act of 5arlia#ent rather than entrenched constitution, perfor#s #uch the sa#e role of identif(in% funda#ental co##it#ents and, perhaps, establishin% national identit(. Thus, the utilit( of forei%n precedent, and particularl( the #anner of its use, are )uestions raised s)uarel( b( the Bew Cealand Dill of *i%hts Act. Einall(, 4 should note that while there is a parallel issue that arises in relation to the use of international law, 4 will put it aside, because it raises rather particular issues that would re)uire separate treat#ent. 4nternational law raises the di#ension of obli%ation6 international law, unli"e the $ud%#ents of forei%n courts, so#eti#es places obli%ations on nation states. The #atter is further co#plicated b( the distinct for#s that international law ta"es and the sources fro# which is drawn. Fi2en the di#ension of obli%ation, it #a( be that the case for the use of international law is e2en stron%er than the case for the use of forei%n do#estic law. &owe2er, it deser2es at least a separate treat#ent, which 4 will not atte#pt here.

Constitutional Comparativism: The Debate So Far

)he $nited States

As with #an( debates in constitutional theor(, the debate o2er constitutional co#parati2is# has its ori%in +and finds it fullest and #ost 2i%orous e1pression. in the <nited States. 4ts #ost fa#ous interlocutors are Scalia ;, on the one hand, and Genned( and Dre(er ;;, on the other. !i"e so #an( debates about the <nited States 'onstitution, it has produced an especiall( interestin% literature that has capti2ated constitutionalists elsewhere.6 A recent flare-up of the A#erican debate occurred in a series of Supre#e 'ourt decisions concernin% the ,cruel and unusual punish#ents- prohibition of the 0i%hth
6 Eor e1tra-curial co##ents fro# #e#bers of the Supre#e 'ourt of the <nited States, see, e%, 8-'onnor, ,Ge(note Address- +2002. 96 A# Soc of 4nt ! 5roc 348@ Dre(er, ,Ge(note Address- +2003. 9= A# Soc of 4nt ! 5roc 265@ Scalia, ,Ge(note Address6 Eorei%n !e%al Authorit( in the Eederal 'ourts- +2004. 98 A# Soc of 4nt ! 5roc 305@ 9orsen, ,The *ele2ance of Eorei%n !e%al :aterials in <S 'onstitutional 'ases6 A 'on2ersation Detween ;ustice Antonin Scalia and ;ustice Stephen Dre(er- +2005. 3 4nt ; 'onst ! 5/9@ Finsbur% ,HA 9ecent *espect to the 8pinions of >&u#an?"indI6 The Jalue of a 'o#parati2e 5erspecti2e in 'onstitutional Ad$udication- +2005. 64 'a#b ! ; 5=5. Eor acade#ic co##ent, see, e%, 'houdhr(, ,FlobaliKation in Search of ;ustification6 Toward a Theor( of 'o#parati2e 'onstitutional 4nterpretation- +/999. =4 4ndiana ! ; 8/9@ ;ac"son, ,Barrati2es of Eederalis#6 8f 'ontinuities and 'o#parati2e 'onstitutional 01perience- +200/. 5/ 9u"e !; 223@ Aaldron, ,Eorei%n !aw and the :odern 4us Fentiu#- +2005. //9 &ar2 ! *e2 //9@ Saunders, ,The Feor%e 5 S#ith !ecture in 4nternational !aw6 The <se and :isuse of 'o#parati2e 'onstitutional !aw- +2006. /3 4ndiana ; of Flob ! Stud 3=@ 'houdhr( +ed., )he *igration o" Constitutional +deas +2006.@ 9i1on, ,A 9e#ocratic Theor( of 'onstitutional 'o#parison- +2008. 56 A# ; of 'o#p ! 94=@ ;ac"son, Constitutional Engagement in a )ransnational Era +2009. +forthco#in%..

A#end#ent to the <nited States 'onstitution and the ,due process- clause of the Eifth A#end#ent.= 4n Lawrence v )e,as8 in 2003, a #a$orit( of the 'ourt +o2errulin% -owers v Hardwic..9 found unconstitutional a Te1as law cri#inaliKin% certain ho#ose1ual se1ual acti2it(. Eorei%n law L includin% the decri#aliKation of ho#ose1ual se1 in Dritain in the /960s/0 L was rele2ant to the deter#ination of the Supre#e 'ourt of the <nited States that the Te1as law 2iolated the respect for pri2ac( re)uired b( the due process clauses of the Eourteenth A#end#ent. Eorei%n law has also featured in a series of recent decisions on the death penalt(. 4n At.ins v /irginia// in 2002, the 'ourt held, b( #a$orit(, that the 0i%hth A#end#ent-s prohibition on ,cruel and unusual punish#ents- prohibited the i#position of the death penalt( on the intellectuall( disabled. 4n Ro0er v Simmons/2 in 2005, the Supre#e 'ourt held, b( #a$orit(, that the 0i%hth A#end#ent precluded the application of the death penalt( to offenders under the a%e of /8 at the ti#e of the offence./3 4 will dwell on the 0i%ht A#end#ent a #o#ent because these cases, in particular Ro0er v Simmons, are at the centre of #( anal(sis of the <nited States position. The 0i%hth A#end#ent prohibits ,cruel and unusual punish#ents- and that concept, accordin% pre2ious Supre#e 'ourt precedent, ta"es its #eanin% fro# ,e2ol2in% standards of decenc(-. /4 To put it another wa(, the #eanin% of the 0i%hth A#end#ent depends partl( on modern 2alues. The uni2ersal re$ection of the death penalt( for #inors in other countries was thus e2idence, at least for the #a$orit(, that the e1ecution of #inors was contrar( to ,e2ol2in% standards of decenc(- and that it contra2ened the ,cruel and unusual- standard./5 The debate is #ar"ed b( rather inte#perate $udicial lan%ua%e, #ost especiall( fro# Scalia ;. 'onsider Scalia ;-s response to the citation of forei%n le%al sources in Lawrence v )e,as6 ,this 'ourt ... should not i#pose forei%n #oods, fads, or fashions on A#ericans-. /6 8r, in response to the #a$orit( opinion in Ro0er v Simmons, Scalia ; be%an b( recallin% Ale1ander &a#ilton-s characteriKation of the $udiciar( as a bod( with ,neither E8*'0 nor A4!! but #erel( $ud%#ent-/= and continued6 Ahat a #oc"er( toda(-s 'ourt-s opinion #a"es of &a#ilton-s e1pectation M 4 do not belie2e that the #eanin% of our 0i%hth A#end#ent, an( #ore than the #eanin% of other pro2isions of our 'onstitution, should be deter#ined b( the sub$ecti2e 2iew of fi2e :e#bers of this 'ourt and li.e-minded "oreigners M/8 8ne co##entator captured the fla2our of the debate in the Supre#e 'ourt b( in2o"in% the i#a%e of a $udicial ,5unch and ;ud( show-, with each forei%n citation leadin% to a predictable
= These A#end#ents are applied to States b( the Eourteenth A#end#ent to the <nited States 'onstitution. 8 539 <S 558 +2003.. 9 4=8 <S /86 +/986.. /0 See Lawrence v )e,as 539 <S 558 at 5=2N5=3 per Genned( ; +2003., citin% the Se1ual 8ffences Act /96= +<G.. // 536 <S 304 +2002.. /2 543 <S 55/ +2005.. /3 That decision o2erturned Stan"ord v %entuc.y 492 <S 36/ +/989., decided in $ust /989, in which the 'ourt upheld the constitutionalit( of the e1ecution of #inors a%ed /6 (ears and abo2e at the ti#e of the offence. /4 )ro0 v 1ulles 356 <S 86 at /00N/0/ per Aarren '; +/958.. /5 Ro0er v Simmons 543 <S 55/ at 5=5N5=8 per Genned( ; +2005.. /6 539 <S 558 at 598, )uotin% 2oster v 2lorida 53= <S 990 at 990 fn per Tho#as ; +2002.. /= 543 <S 55/ at 60= +2005., )uotin% The Eederalist Bo =8, p 465. /8 543 <S 55/ at 608 +2005. +e#phasis added..

critical response./9 The ensuin% public debate at its #ost h(sterical has seen calls a#on% conser2ati2e co##entators and politicians for Genned( ;-s i#peach#ent.20 The clearest #oti2ation for Scalia ;-s anti-co#parati2is# lies in other aspects of his &onour-s $udicial philosoph(. 02en #ore well "nown than his anti-co#parati2is# is his co##it#ent to te1tualis# and ori%inalis#.2/ That is, Scalia ; belie2es that the <nited States 'onstitution should be interpreted accordin% to its te1t, %i2en #eanin% principall( b( reference to the public #eanin% it had at the ti#e of its ratification in the late ei%hteenth centur(. Thus, his &onour-s ob$ection to the ,e2ol2in% standards of decenc(- test L used as a #easure of what constitutes cruel and unusual punish#ent L is that that standard as hopelessl( uncertain, sub$ect to chan%e and un"aith"ul to the original understanding o" the Constitution.22 &is &onour-s ob$ection is not $ust to the use of forei%n law but to an( doctrinal o2erla( that allows $ud%es to i#pose their own conception of a constitutional pro2ision, rather than %i2e effect to its historicall( deter#ined #eanin%. D Com0arativism in the Australian High Court

This debate appears to ha2e an echo in recent $ud%#ents in the Australian &i%h 'ourt, where &e(don ; appears to be e#er%in% as Australia-s own ,;ustice Scalia-, i#placabl( opposed to the use of forei%n law in constitutional interpretation. 4t is the e#er%ence of this strand of opinion that has inspired #e #ost of all to ta"e up the debate in this lecture. Roach,23 the case concernin% e1clusion of prisoners fro# the franchise, which 4 ha2e alread( #entioned, pro2ides the #ost i#portant recent e1a#ple. The 'ourt, with &a(ne and &e(don ;; dissentin%, concluded that the 2006 a#end#ent +disenfranchisin% all prisoners. 24 was in2alid but that the pre-e1istin% restrictions on the prisoner franchise +disenfranchisin% onl( prisoners ser2in% sentences of three (ears or lon%er.25 were 2alid. Althou%h the Australian 'onstitution allowed prisoners who co##itted serious offences to be denied 2otin% ri%hts, the blan"et ban i#posed b( the a#ended law was i#per#issibl( broad. 4n their approach to co#parati2e #aterials, the four $ud%#ents can be placed into three %roups. At one end of the spectru# is the $ud%#ent of the Fleeson ';, who, without apparentl( feelin% an( need to $ustif( the practice, relies on forei%n law in the course of his reasons. At the other end of the spectru# stands &e(don ;, who appears to ob$ect in principle to the use of co#parati2e law in #ost circu#stances. 4n the #iddle stand the $oint #a$orit( $ud%#ent of Fu##ow, Girb( and 'rennan ;; and the dissent of &a(ne ;. Althou%h these latter two $ud%#ents differ on the result, the( de#onstrate a si#ilar approach to the
/9 Au, ,Eorei%n 01chan%e6 Should the Supre#e 'ourt 'are Ahat 8ther 'ountries Thin"7-, Slate, 9 April 2004, http6OOwww.slate.co#OidO2098559O. 20 See %enerall( Toobin, ,Swin% Shift6 &ow Anthon( Genned(-s 5assion for Eorei%n !aw 'ould 'han%e the Supre#e 'ourt-, Bew Por"er, /2 Septe#ber 2005, p 42. See also !aw, ,Feneric 'onstitutional !aw- +2005. 89 :inn ! *e2 652, 656N65= for resolutions and le%islation of the <S 'on%ress atte#ptin% to prohibit reference to forei%n law. 2/ Scalia, ,8ri%inalis#6 The !esser 02il- +/989. 5= < 'in ! *e2 849@ Scalia, A *atter o" +nter0retation3 2ederal Courts and the Law +/99=.. 22 Ro0er v Simmons 543 <S 55/ at 60=N608 +2005.. 23 +200=. 233 '!* /62. 24 0lectoral and *eferendu# +0lectoral 4nte%rit( and 8ther :easures. Act 2006 +'th.. 25 As applicable followin% the 0lectoral and *eferendu# A#end#ent +5risoner Jotin% and 8ther :easures. Act 2004 +'th..

co#parati2e #aterials6 the( do not oppose the use of co#parati2e law alto%ether 26 but e1press so#e reser2ations about the use of the co#parati2e #aterial in this case. 2= 4 will put these latter two $ud%#ents to one side for the #o#ent, thou%h 4 will return at the end of this lecture to e1plore the reasons for their refusal to consult forei%n sources in this case. +a. Fleeson ';6 The co#parati2ist

Fleeson '; was in the #a$orit( in concludin% that the blan"et e1clusion effected b( the 2006 a#end#ent was in2alid. &is &onour-s $ud%#ent is distincti2e, howe2er, for his willin%ness to refer to forei%n authorit(, in particular to the decisions of the Supre#e 'ourt of 'anada in Sauv v Canada (Chie" Electoral #""icer!28 and the 0uropean 'ourt of &u#an *i%hts in Hirst v )he $nited %ingdom (No '!.29 The co#parati2e ele#ent of the case arose in this wa(. The Australian 'onstitution re)uires that the #e#bers of 5arlia#ent be ,directl( chosen b( the people-. 30 Fleeson ';, in turn, interpreted this as a re)uire#ent that there be ,a substantial reason for e1clusion fro# such participation-.3/ 'o#parati2e anal(sis beco#es rele2ant in deter#inin% what counts as a substantial reason. Thus, the Supre#e 'ourt of 'anada-s decision in Sauv v Canada (Chie" Electoral #""icer! was cited b( Fleeson '; in course of reachin% his &onour-s conclusion that a de#ocratic societ( has an interest in curtailin% ,the 2ote te#poraril( of people who ha2e de#onstrated a %reat disrespect for the co##unit( b( co##ittin% serious cri#es, on the basis that ci2ic responsibilit( and respect for the rule of law are prere)uisites to de#ocratic participation-.32 +b. &e(don ;6 The anti-co#parati2ist.

D( contrast, &e(don ; utterl( re$ected the co#parati2e #aterial. 8f the reference to a ran%e of international #aterial and co#parati2e #aterial b( the plaintiff in Roach, &e(don ; wrote6 these instru#ents can ha2e nothin% whate2er to do with the construction of the Australian 'onstitution. These instru#ents did not influence the fra#ers of the Australian 'onstitution, for the( all postdate it b( #an( (ears. M The lan%ua%e the( e#plo( is radicall( different.33

26 As will be no surprise to those who follow the $ud%#ents and e1tra-curial writin%s of Girb( ;6 see, e%, Al%ate4 v odwin +2004. 2/9 '!* 562 at 6/=N630 >/52?N>/92?@ 5urrid6al v onwealth +2009. 83 A!;* 399 at 452N456 >258?N>2=3?@ Girb(, ,9o#estic 4#ple#entation of 4nternational &u#an *i%hts Bor#s- +/999. 5 Aust ; of &u# * /09@ Girb(, ,!aw, !i"e the 8l(#pics, 4s Bow international L Dut Aill Australian Ain Fold7- +2000. = ;a#es 'oo" < ! *e2 4@ Girb(, ,9o#estic 'ourts and 4nternational &u#an *i%hts !aw N The 8n%oin% ;udicial 'on2ersation- +The &ondius !ecture 2008, <ni2ersiteit <trecht, 26 8ctober 2008.. 2= Roach +200=. 233 '!* /62 at 202N203 >/00? per Fu##ow, Girb( and 'rennan ;;., 220N22/ >/63?N>/66? per &a(ne ;. 28 >2002? 3 S'* 5/9. 29 +2006. 42 0&** 4/. 30 Sections = and 24. 3/ Roach +200=. 233 '!* /62 at /=4 >=?. 32 4bid at /== >/4?, citin% Sauv v Canada (Chie" Electoral #""icer! >2002? 3 S'* 5/9 at 583N585 >//6?N>//9? per Fonthier ;. 33 Roach +200=. 233 '!* /62 at 225 >/8/?.

This anti-co#parati2is# is e2ident in at least one other of his &onour-s $ud%#ents. 4n 2orge v Australian Securities and +nvestments Commission +,2orge-.,34 the &i%h 'ourt considered whether 'h 444 of the Australian 'onstitution pre2ented the appoint#ent of actin% $ud%es to the Supre#e 'ourts of the Australian states. 4n the course of re$ectin% that contention, &e(don ; was e#phatic in his &onour-s re$ection of an( insi%ht to be drawn fro# forei%n law. As in Roach, the rele2ant passa%e is short and e#phatic. 4n its entiret( it is as follows6
2oreign law7 'onsiderable reliance was placed on cases on the 0uropean 'on2ention for the 5rotection of &u#an *i%hts and Eunda#ental Ereedo#s, Art 6@ the 'anadian 'harter of *i%hts and Ereedo#s, s //+d. and the Dill of *i%hts of the 'onstitution of the *epublic of South Africa, s 34. These docu#ents all post-dated 'h 444. The( did not lead to 'h 444 and the( were not based on 'h 444. Accordin%l(, no assistance is to be obtained fro# cases on these docu#ents in construin% 'h 444 and e2aluatin% its i#pact on State laws. 35

As in Roach, this state#ent is an un)ualified ob$ection to the use of co#parati2e law, rather than an ob$ection to its use in the particular case in )uestion. :oreo2er, althou%h it is not )uite as e1plicit in the $ud%#ent of &e(don ; as it is in the $ud%#ents of Scalia ;, it appears that &e(don ;-s anti-co#parati2is# is also dri2en b( a co##it#ent to ori%inalis#. Objections to Comparativism

#riginalism

As 4 ha2e portra(ed it so far, the debate o2er the use of forei%n authorit( in constitutional law )uic"l( beco#es a debate about the place of ori%inalis# in constitutional interpretation, which in turn is one aspect of a #uch lar%er debate about constitutional interpretation. Eor this reason, a trul( co#prehensi2e treat#ent of the debate about co#parati2e constitutional law would en%a%e full( with the lon% and co#ple1 debate about ori%inalis# +and indeed constitutional interpretation %enerall(.. 5erhaps to (our relief, howe2er, 4 will en%a%e with this aspect of the debate onl( briefl( and su%%est that it can be lar%el( sidestepped for our purposes. 4 do not ta"e this path because 4 thin" that ori%inalis# as a #ethod of constitutional interpretation can be easil( dis#issed. 8n the contrar(, ori%inalist #ethods L b( which 4 #ean interpretation b( reference to a historicall( deter#ined #eanin% of the constitution under consideration L for#s a part of constitutional orthodo1(, at least in Australia.36

34 +2006. 228 '!* 45. :ore precisel(, the )uestion was whether 'h 444 of the Australian 'onstitution prohibited the appoint#ent of actin% $ud%es to state courts which, pursuant to s ==+iii. of the 'onstitution, are in2ested with federal $urisdiction. 352orge +2006. 228 '!* 45 at /39 >250?. 36 See Foldsworth(, ,8ri%inalis# in 'onstitutional 4nterpretation- +/99=. 25 Eed !aw *e2 /. See also Roach +200=. 233 '!* /62 at 225 >/8/? per &e(don ; +citations o#itted.6 ,The proposition that the le%islati2e power of the 'o##onwealth is affected or li#ited b( de2elop#ents in international law since /900 is denied b( #ost, thou%h not all, of the rele2ant authorities L that is, denied b( twent(-one of the ;ustices of this 'ourt who ha2e considered the #atter, and affir#ed b( onl( one.-

5hy originalism does not 0reclude constitutional com0arativism

:( first response, then, to ori%inalist ob$ections to co#parati2is# is to concede a lot of %round to ori%inalis# as a widel( accepted #ethod of constitutional interpretation. The reason that 4 sidestep this )uestion of its correctness is that there is a sense in which 4 thin" that the correctness of ori%inalis# as an interpreti2e approach is not decisi2e of the )uestion 4 a# considerin%. Eirst, there are a class of cases to which the ori%inalist ob$ection self-e2identl( does not appl(. The fra#in% of the Australian 'onstitution was clearl( influenced b( the <nited States 'onstitution. Thus, reference b( the &i%h 'ourt to the <nited States 'onstitution and <nited States constitutional law as it stood at the ti#e of federation #a( well be an e1ercise of ori%inalist #ethod.3= Dut e2en puttin% these cases to one side, there is a #ore funda#ental ob$ection to reliance on ori%inalis# to support blan"et opposition to co#parati2is# in constitutional interpretation. 4n order for ori%inalis# to preclude recourse to co#parati2is# in constitutional cases L that is, in order for it to support the in principle ob$ection to co#parati2is# e2ident in the $ud%#ents of Scalia ; +and i#plicit in the $ud%#ents of &e(don ;. L one would ha2e to establish both that the a constitution should be interpreted b( reference to its ori%inal #eanin% or understandin% and that ori%inalis# and other orthodo1 #ethods of constitutional interpretation pro2ide an answer to all or #ost si%nificant constitutional cases. 4t is onl( the second point that 4 wish to den(. 4t see#s too ob2ious to bear repeatin% but it is apparentl( necessar( to sa( that there are occasions on which the historical record (ields no satisfactor( answer in particular cases. The historical record #a( be inco#plete or open to co#petin% interpretations. 4ndeed, it is notable that the $ud%es in both the #a$orit( and #inorit( in Roach consulted the historical record e1tensi2el(. 38 Fi2en the difference of opinion between the #a$orit( and #inorit( in Roach, that case #a( itself de#onstrate the uncertaint( created b( a co#ple1 historical record. &istorical in)uir( as to ori%inal #eanin% or understandin% of a pro2ision (ields onl( a principle,39 e1pressed in %eneral ter#s, which then re)uires considerable interpretation in its application to particular circu#stances. The ,inco#pleteness- of ori%inalis# as an interpreti2e #ethod is especiall( e2ident if one adopts a #oderate for# of ori%inalis#, accordin% to which constitutional #eanin% #a( chan%e o2er ti#e.40 As ;effre( Foldsworth( has shown, #oreo2er, this idea is fa#iliar to Australian constitutional law(ers, who ha2e lon% been accusto#ed to the idea that the Australian 'onstitution-s #eanin% #i%ht chan%e within certain bounds. Thus, for instance, it is accepted that the essential #eanin% or ,connotation- of constitutional ter#s re#ain constant, while their ,denotations- +the thin%s in the world to which the( refer. #a( chan%e. 4/
3= See, e%, -et"air 8ty Ltd v 5estern Australia +2008. 234 '!* 4/8 at 459N464 >33?N>48? per Fleeson ';, Fu##ow, Girb(, &a(ne, 'rennan and Giefel ;;. &e(don ; appears to endorse this proposition, ob$ectin% to co#parati2e #aterials in Roach +200=. 233 '!* /62 and 2orge +2006. 228 '!* 45 on the %round that the( post-date the fra#in% of the Australian 'onstitution and thus could not ha2e influenced the fra#ers. 38 See, e%, Roach +200=. 233 '!* /62 at /=3N/=4 >5?N>6? per Fleeson ';, /89N/9= >55?N>=5? per Fu##ow, Girb( and 'rennan ;;, 206 >///?, 208N2/5 >/2/?N>/42? per &a(ne ;, 223 >/==?, 226 >/83? per &e(don ;. 39 'onsider, for e1a#ple, the ori%inalist anal(sis of s 92 of the Australian 'onstitution underta"en in Cole v 5hit"ield +/988. /65 '!* 360, which (ielded the test for in2alidit( of ,discri#inator( burdens of a protectionist "ind-6 see at 394 per :ason ';, Ailson, Drennan, 9eane, 9awson, Toohe( and Faudron ;;. 40 See Foldsworth(, abo2e note 38, at /9N2/. 4/ 4bid 3/N32.

8nce #oderate for#s of ori%inalis# are accepted L as the( see# to be in the Australian &i%h 'ourt L the scope for chan%es in #eanin% within the real# of $udicial discretion correspondin%l( e1pands. Eor all these reasons, it is not necessar( in this lecture for #e to en%a%e full( with the )uestion of the correctness of ori%inalis# because #( ar%u#ent is that e2en acceptin% the correctness of ori%inalis# L or at least the plausible #oderate for# of ori%inalis# that is do#inant in the &i%h 'ourt L a si%nificant cate%or( of cases will re#ain in which ori%inalis# pro2ides no answer, or #ore li"el( an inco#plete answer. 8f course, the stren%th of the case for co#parati2is# in constitutional interpretation will 2ar( accordin% to the stren%th of a2ailable historical and other interpreti2e resources includin%, where appropriate, ori%inal #eanin% or understandin%. Dut where the a2ailable interpreti2e resources are wea", there is no reason for the "ind of in 0rinci0le e1clusion of co#parati2e law e2ident in Scalia ;-s writin%s and stron%l( i#plied b( &e(don ;-s $ud%#ents in 2orge and Roach. ' Constitutional localism

The ob$ection that co#parati2is# is inconsistent with ori%inalist #ethods of constitutional interpretation need not, therefore, detain us #uch lon%er. At #ost, ori%inalist #ethods constrain, but do not eli#inate, opportunities for constitutional co#parati2is#. Dut the A#erican debate re2eals as well a second ob$ection to constitutional co#parati2is# that re)uires serious consideration. So#e critics of co#parati2is# resist references to forei%n law because of a preference for local solutions. That is, their 2iew is that $ud%es ou%ht to interpret a constitution with an e(e to local 2alues and local conditions, #a"in% their own $ud%#ents rather than deferrin% to $ud%#ents #ade elsewhere. This position can certainl( be detected in Scalia ;-s anti-co#parati2is# L at least as a fall bac" to his &onour-s ori%inalist theor( of constitutional interpretation. Thus in Stan"ord v %entuc.y,42 a death penalt( case precedin% and o2erturned b( Ro0er v Simmons,43 Scalia ; reluctantl( applied the ,e2ol2in% standards of decenc(- test but insisted that ,it is American conceptions of decenc( that are dispositi2e-.44 4 will e2entuall( su%%est that this senti#ent does not preclude reference to forei%n law in constitutional decision-#a"in%. Bonetheless, there are reasons to pa( close attention to this "ind of ar%u#ent. 4 will ad2ance three. Eirst, in relation to constitutional ri%hts, at least, the case for co#parati2is# is wea"ened if one accepts, as 4 do, that ri%hts are the sub$ects of per2asi2e and practicall( ineradicable disa%ree#ent.45 This ar%u#ent, powerfull( de2eloped b( the Bew Cealand le%al philosopher ;ere#( Aaldron, is wielded as part of Aaldron-s ar%u#ent a%ainst constitutional ri%hts, which is not #( purpose here. 4 would si#pl( note that the idea that there are reasonable and co#petin% conceptions of a ri%ht wea"ens the case for adoptin% the
42 492 <S 36/ +/989.. 43 543 <S 55/ +2005.. 44 Stan"ord v %entuc.y 492 <S 36/ at 36/ fn / +/989. +ori%inal e#phasis.. Scalia ; has been accused of a ,#ilitant pro2incialis#-6 !e2inson, ,!oo"in% Abroad Ahen 4nterpretin% the <S 'onstitution6 So#e *eflections+2004. 39 Te1 4nt ! ; 353 at 358. 45 See %enerall( Aaldron, Law and 1isagreement +/999. chh /0N/3.

conceptions de2eloped b( courts elsewhere because it opens up the possibilit( that it is reasonable to disa%ree with the decisions of others on ri%hts )uestions. Secondl(, the su%%estion that we should prefer locall( fashioned solutions to constitutional )uestions responds to one i#portant aspect of constitutionalis#. 'onstitutions ha2e a s(#bolic power that arises fro# their constitutive role. 5recisel( because the( pro2ide a fra#ewor" for %o2ern#ent, the( are also seen as a repositor( of i#portant 2alues. 5ut at its hi%hest, this 2iew has it that constitutions are e1pressi2e of national identit(. 4f constitutions pla( this role, we #i%ht reasonabl( e1pect that the( will i#pose different standards in different circu#stances.46 Thirdl(, there are considerations of the de#ocratic le%iti#ac( of constitutional re2iew that #i%ht count in fa2our of a court interpretin% a constitution in wa(s that are responsi2e to local conditions, and ta"e local #oral standards and political opinion into account when decidin% constitutional )uestions. 5olitical scientists of the Supre#e 'ourt of the <nited States ha2e shown that that 'ourt does not stra( 2er( far or for 2er( lon% fro# the national consensus and ha2e su%%ested that the stabilit( of the institution depends on this d(na#ic. 4= Eor so#e, the de#ocratic acceptabilit( of $udicial re2iew depends upon this feature of the relationship between courts and the people.48 Eor this reason, it #a( be unrealistic for a court char%ed with constitutional interpretation to i%nore a stron% local or do#estic consensus on a constitutional )uestion in fa2our of those identified in forei%n law. 4n short then, the constitutional localist-s worr( about constitutional co#parati2is# is that $ud%es will accept forei%n law o2er do#estic precedent, which #a( be better adapted to local conditions, reflecti2e of the opinions and preferences of the local population and perhaps e1pressi2e national identit(. 9 5hy 0re"erence "or local solutions is no answer to calls "or constitutional com0arativism

9espite #( s(#path( for so#e aspects of constitutional localis#, it does not support the stron% ob$ection to co#parati2is# seen in the $ud%#ents of Scalia ; and &e(don ;. Eirst, e2en if we concede considerable force to the localist ob$ection in the <nited States, which has a lon% tradition of political and cultural e1ceptionalis#, 49 this ob$ection has #uch less force once we #o2e be(ond the <nited States. 4ts pre#ise L that constitutions
46 'onsider the role that the <nited States 'onstitution, and perhaps especiall( the free speech clause of Eirst A#end#ent, pla( in the articulation of A#erican political culture and e2en national identit(6 see, e%, 8al.o v Connecticut 302 <S 3/9 at 32= per 'ardoKo ; +/93=. +freedo# of thou%ht and speech described as ,the #atri1, the indispensible condition of nearl( e2er( other for# of freedo#-.@ New 9or. )imes Co v Sullivan 3=6 <S 254 at 2=0 per Drennan ; +/964. +,we consider this case a%ainst the bac"%round of a profound national co##it#ent to the principle that debate on public issues should be uninhibited, robust and wide-open-.@ Dolin%er, )he )olerant Society +/986. +stron% constitution protection for free speech instils tolerance in citiKens.@ Dlasi, ,Eree Speech and Food 'haracter- +/999. 46 <'!A ! *e2 /56= at /5=/ +instils ,in)uisiti2eness, independence of $ud%#ent, distrust of authorit(, willin%ness to ta"e the initiati2e, perse2erance, and the coura%e to confront e2il-.. 4= Eor a classic e1position of this thesis, see :c'los"e(, )he American Su0reme Court, +4th ed, re2ised b( Sanford !e2inson, 2005.. 48 Eor ob$ections to constitutional co#parati2is# in de#ocratic ter#s see Aaldron abo2e n 6, /3/-32 +anal(sin% the opinion of Scalia ; in Sosa v Alvare:-*achain, 542 <S 692 +200.+<SS'..@ 0rnest A Poun% 49,Eorei%n !aw the 9eno#inator 5roble#- +2005. &ar2. !aw. *e2. /48.

define and are defined b( the local conditions of the societ( the( %o2ern L is si#pl( not shared b( all constitutional s(ste#s. So#e constitutions are e1plicitl( desi%ned to si%nal the #e#bership of a state in so#e broader co##unit( of states and a co##it#ent to shared 2alues. Thus, the ar%u#ent is entirel( inapposite in respect of constitutions that are e1plicitl( desi%ned to indicate adherence to widel( shared 2alues in the international co##unit(. 5erhaps the #ost ob2ious instance is the 'onstitution of the *epublic of South Africa. 4t was desi%ned to si%nal a shift fro# apartheid to a ri%hts-respectin% de#ocrac( and thus e1plicitl( allows the use of forei%n law in constitutional interpretation.50 4n a different wa(, the &u#an *i%hts Act /998 +<G., which incorporates #uch of the 0uropean 'on2ention on &u#an *i%hts, 5/ is desi%ned to ensure adherence to a wider set of 2alues as is the Bew Cealand Dill of *i%hts Act /990 +BC., which e1plicitl( affir#s52 Bew Cealand-s co##it#ent to the 4''5*.53 8f course the Australian 'onstitution is not of this "ind. Bonetheless it does e1hibit other "inds of connections to forei%n constitutions. 4t has connections of a historical L or perhaps %enealo%ical54 L "ind with the constitutional s(ste# of the <nited Gin%do# and with the other s(ste#s deri2ed fro# it. 4t has another set of connections as well L those that arise fro# the deliberate #odellin% of Australian federalis# on the <nited States and of the Australian referendu# procedure on that in the Swiss 'onstitution. 02en a co##itted constitutional particularist #i%ht allow that a court interpretin% these ele#ents could en%a%e in co#parison with the $urisdiction fro# which these ele#ents were adopted. :ore i#portantl(, the localist ob$ection to constitutional co#parati2is# is a response to a certain "ind of constitutional co#parati2is#. 4t is useful here to re#ind oursel2es of the conte1t in which the recent A#erican debate about constitutional co#parati2is# ta"es place. The cases currently at the centre of the A#erican debate are cases in which the Supre#e 'ourt is appl(in% a test L the ,e2ol2in% standards of decenc(- test L that re)uires it to identi"y widel( held #oral standards. Eorei%n law is referred to as e2idence of widel( held #oral standards. 8ne co#plaint about this practice is that there is scant attention paid to the reasons that #i%ht be put forward in fa2our +or a%ainst. the law found in forei%n $urisdictions. The co#parati2e tas" is al#ost reduced to a ,nose countin%-, with forei%n le%al standards adopted because the( are widel( held rather than because of an independent assess#ent of their correctness. As one A#erican scholar has put it6 ,>the 'ourt? has not HlearnedI an(thin% fro# loo"in% abroad M >i?t is deferrin% to nu#bers, not reasons.-55
'alabresi, ,HA Shinin% 'it( on a &illI6 A#erican 01ceptionalis# and the Supre#e 'ourt-s 5ractice of *el(in% on Eorei%n !aw- +2006. 86 Dost < ! *e2 /335 at /3=36 ,!i"e it or not, A#ericans reall( are a special people with a special ideolo%( that sets us apart fro# all the other peoples of the 8ld and Bew Aorlds.50 This d(na#ic #a( be #ost co##on in post-authoritarian constitutions but it is e2ident as well in the Bew Cealand Dill of *i%hts Act /990 +BC., which the recitals state is e1plicitl( desi%ned ,>t?o affir# Bew Cealand-s co##it#ent to the 4nternational 'o2enant on 'i2il and 5olitical *i%hts-. 4n these cases, it is actuall( faithful to the constitution to en%a%e in a co#parati2e e1ercise with those other constitutions that e1hibit a si#ilar co##it#ent. 5/ 'on2ention for the 5rotection of &u#an *i%hts and Eunda#ental Ereedo#s, opened for si%nature 4 Bo2e#ber /950, 2/3 <BTS 22/ +entered into force 3 Septe#ber /953.. 52 See Bew Cealand Dill of *i%hts Act /990 +BC., recital +b.. 53 4nternational 'o2enant on 'i2il and 5olitical *i%hts, opened for si%nature /6 9ece#ber /966, 999 <BTS /=/ +entered into force 23 :arch /9=6.. 54 See Su$it 'houdhr(, ,FlobaliKation in Search of ;ustification- =4 4ndiana !aw ;ournal 820, 838 +/999.. 55 0rnest A Poun%, ,Eorei%n !aw and the 9eno#inator 5roble#- +2005. //9 &ar2 ! *e2 /48 at /55.

4n addition, in this conte1t, co#parati2e law is used to displace established, locall( deri2ed principles on the death penalt(. Thus, the ob$ection to these particular #ost recent cases is partl( that forei%n law is used in a rather refle1i2e and unthin"in% wa( to o2erride a locall( deri2ed solution. The recent debate in the <nited States is shaped b( this conte1t. The )uestion is6 when faced with a constitutional test that re)uires the 'ourt to identif( widel( shared #oral 2alues, wh( should we adopt the 2alues e2ident in the laws of other countries o2er our #oral standards7 The ad2ocates of co#parati2is# ha2e de2oted their ti#e to e1plainin% wh( forei%n law #i%ht be a %ood %uide to such #oral standards.56 'o#parati2e practice #i%ht differ fro# this ,paradi%#- in two wa(s. Eirst, forei%n law #i%ht be deferred to, not as a source of #oral 2alues, but for %uidance as to how a certain "ind of constitutional rule L adopted for independent reasons L #i%ht wor" in practice. Eor instance, in Airlines o" New South 5ales 8ty Ltd v New South 5ales &No '( ,5= when construin% the ,trade and co##erce power- in the Australian 'onstitution, 58 Gitto ; of the Australian &i%h 'ourt re$ected an aspect of the <nited States Supre#e 'ourt-s $urisprudence on the ,co##erce clause- of the <nited States 'onstitution. 59 This was notwithstandin% the close te1tual si#ilarities between the pro2isions in the two constitutions, in particular their reference to trade and co##erce ,a#on% the States- or ,a#on% the Se2eral States-, respecti2el(, which were traceable to the deliberate #odellin% of the Australian trade and co##erce power on the <nited States co##erce clause. &is &onour declined to adopt the <nited States approach, that the power to re%ulate interstate trade allows federal re%ulation of intrastate trade which #i%ht ha2e econo#ic effects on interstate trade. The uncertaint( created b( the doctrine and the fear that it #i%ht lead in Australia to the e1pansion of federal power seen in the <nited States was so#ethin% Gitto ; specificall( wished to a2oid.60 4n these cases, the localist ob$ection is at least blunted. 'o#parati2is# assists in the i#ple#entation of constitutional 2alues that are locall( deri2ed. 'o#parati2is# is a for# of e#pirical research into the li"el( effects of a %i2en doctrine.6/ Secondl(, ob$ections to constitutional co#parati2is# are wea"ened where co#parati2e practice is #ore critical. 'onsider a case in which forei%n law is seen not as a factu# to be counted in establishin% an international consensus but as a source of reasons or ideas about a constitutional proble#, which are then sub$ect to independent assess#ent.
56 See, e%, Aaldron, abo2e note 6 +a #oral theor( based on ius co%ens.@ Sunstein, A Constitution o" *any *inds3 5hy the 2ounding 1ocument 1oesn;t *ean 5hat +t *eant -e"ore +2009. ch 8 +$ustif(in% recourse to forei%n law on the basis that better decisions result when #an( points of 2iew are considered.@ 9i1on, abo2e note 6 +ar%uin% that reference to forei%n law assists in construin% a constitution in accordance with e2ol2in% de#ocratic 2iews, the e2olution of which #i%ht otherwise be #as"ed b( local ,burdens of inertia-.. 5= +/965. //3 '!* 54. 58 Section 5/+i.. 59 Art /, s 8, cl 3. 60 Airlines o" New South 5ales 8ty Ltd v New South 5ales &No '( +/964. //3 '!* 54 at //3N//5 per Gitto ;. See also at ==N=8 per Darwic" ';, /2=N/28 per Ta(lor ;, /50N/5/ per Ainde(er ;. 6/ Eor another instance of this for# of co#parati2is#, see the $ud%#ent of 9eane ; in )heo0hanous v Herald < 5ee.ly )imes Ltd +/994. /82 '!* /04 at /85N/86. &is &onour adopted a for# of the well-"nown defence to defa#ation articulated in New 9or. )imes Co v Sullivan 3=6 <S 254 +/964.. &owe2er, his &onour +alone a#on% the #a$orit(. refused to )ualif( that defence b( reference to a standard of reasonableness +adopted b( other #e#bers of the #a$orit(. or e2en b( the ,actual #alice- standard adopted in New 9or. )imes Co v Sullivan itself. &is insistence upon an un)ualified rule precludin% defa#ation actions b( public officials can be seen as a response to the une1pected ,chillin% effect- of the New 9or. )imes Co v Sullivan rule6 see !ewis, ,Bew Por" Ti#es 2 Sulli2an *econsidered6 Ti#e to *eturn to HThe 'entral :eanin% of the Eirst A#end#entI- +/983. 83 'ol ! *e2 603. Eor a discussion of )heo0hanous v Herald < 5ee.ly )imes Ltd, see Stone, ,Ereedo# of 5olitical 'o##unication, the 'onstitution and the 'o##on !aw- +/998. 26 Eed ! *e2 2/9 at 224ff.

Ahere the )uestion for decision is %enuinel( unsettled, to the e1tent forei%n law has an influence it is used in fashionin% a new constitutional doctrine rather than in adoptin% a forei%n one in place of a locall( deri2ed one. Ahere co#parati2is# is critical and reflecti2e rather than con2er%ent, and the )uestion for decision is undecided thus re#o2in% the ele#ent of ,displace#ent-, the localist-s concern is #uch #iti%ated. Eorei%n law is not bein% used to o2erride an established, locall( deri2ed position. :oreo2er, the co#parati2is# is critical and reflecti2e, %i2in% the $ud%e the opportunit( to adapt or re$ect the forei%n law as appropriate to local circu#stances. 4ndeed, the "ind of co#parati2is# $ust described #i%ht e2en assist in the fashionin% of a distincti2e constitutional tradition. Eor instance, co#parati2is# can be entirel( ne%ati2e. A forei%n approach #i%ht be cited as an instance of an unsuitable approach or e2en a pitfall to be a2oided. Ahen the <nited States Supre#e 'ourt-s notorious decision in Lochner v New 9or.62 is cited in a forei%n court it is usuall( in this 2ein.63 Fleeson ';-s use of 'anadian authorit( in Roach,64 which inspired &e(don ;-s #ost recent e1pression of anti-co#parati2is#, does not e1hibit )uite this le2el of critical reflection. &owe2er, nor is it entirel( uncritical and con2er%ent. The constitutional test posed b( Fleeson '; was whether there is a ,substantial reason- for the e1clusion fro# the franchise. The standard see#s itself to direct the $ud%e independentl( to e2aluate the rationale for e1clusion fro# the franchise. 4t is )uite different fro# a standard li"e ,e2ol2in% standards of decenc(-, which directs the <nited States Supre#e 'ourt to %i2e wei%ht to a consensus reached in other $urisdiction.65 Thus, Fleeson '; appeared to refer to 'anadian law for so#e insi%ht as to what constitutes an acceptable e1clusion fro# the franchise. &owe2er, 'anadian law is i#plicitl( evaluated. There is so#ethin% learned throu%h the co#parati2e e1ercise in this case. The use of co#parati2e #aterials in this case is thus not sub$ect to the co#plaint le2elled at Ro0er v Simmons that forei%n law is accepted as a "ind of fact without independent e2aluation. To conclude #( re#ar"s on this point, let #e note an iron( in the use of localis# to support anti-co#parati2is# in Australia. Anti-co#parati2is# is forcefull( articulated b( scholars of the <nited States 'onstitution, and has a colourful and influential ad2ocate in Scalia ;. 4n their localist %uise, anti-co#parati2ists counsel attention to conte1t and to the possibilit( that the constitutional conte1t of one nation #a( be different to that of another. Pet attention to the recent <nited States- debate about co#parati2is# su%%ests that antico#parati2is# there is itself dri2en b( the particular conte1t of recent cases in the <nited States Supre#e 'ourt L the elucidation of the ,e2ol2in% standards of decenc(- test b( a "ind of sur2e( of forei%n law. 4t would be a %reat iron( if $ud%es in other countries were unthin"in%l( to i#port that anti-co#parati2is# to another conte1t, without attention to its applicabilit( to local practices.

62 /98 <S 45 +/905.. 63 Eontana, ,*efined 'o#parati2is# in 'onstitutional !aw- +200/. 49 <'!A ! *e2 539 +discussin% Hne%ati2e co#parati2is#I.@ Scheppele, ,Aspirational and A2ersi2e 'onstitutionalis#6 The 'ase for Stud(in% 'ross'onstitutional 4nfluence throu%h Be%ati2e :odels- +2003. / 4nt ; of 'on ! 296. 64 +200=. 233 '!* /62. 65 ;ustice Scalia-s interpretation that ,it is A#erican conceptions of decenc( that are dispositi2e- does not co##and a #a$orit( of the court.

Comparative Method in Constitutional Cases 4 hope, then, to ha2e con2inced (ou at least that there is no in principle bar to the use of co#parati2e law in constitutional cases. The ne1t tas" is to de2elop a better account of the #ethod of constitutional co#parati2is#. This tas" is an especiall( ur%ent one. 'o#parati2is# is a widel( accepted practice, (et it has not been well e1a#ined and it poses considerable practical difficulties for counsel and $ud%es. Addressin% these )uestions is also part of dealin% with ob$ections to co#parati2is# itself. Sceptics of the practice co#plain that it is ad hoc and disor%anised, and deter#ined b( rando# or at least unprincipled #atters such as the lan%ua%e s"ills, le%al trainin%, and the cultural preferences of $ud%es. At worst, the su%%estion is that its selecti2eness is a deliberate strate%(.66 The tas" is also dauntin% and its proper treat#ent re)uires a boo"-len%th pro$ect. 6= 4n this lecture 4 will ad2ance onl( a few funda#ental principles and identif( so#e )uestions that re)uire further attention. A Com0arative 0ractice3 -asic 0rinci0les

There are so#e principles that follow in a fairl( strai%htforward fashion fro# the discussion we ha2e had so far. The first set of principles direct a court-s attention to its own do#estic constitution. A court should satisf( itself that, ha2in% re%ard to the stren%th of other interpreti2e resources, the )uestion is an open one on which it is appropriate to see" co#parati2e %uidance. Ahere the te1t is clear or the historical #eanin% settled, co#parati2is# #a( be ri%htl( precluded. 4t is also rele2ant to consider whether the )uestion presented arises within a distincti2e tradition, thus %i2in% rise to a case for constitutional localis#, or whether the case presents a )uestion on which it is reasonable to e1pect a connection with the constitutional law of another le%al s(ste#. Eor instance, the case for localis# +and thus resistance to co#parati2is#. #i%ht be )uite stron% in relation to a pro2ision of the Australian 'onstitution li"e s /09,68 which is distincti2el( Australian and in relation to which there are /00 (ears or so of cases. The case for co#parati2is# #i%ht be stron%er with respect to a doctrine li"e the i#plied freedo# of political co##unication, which is a #odern de2elop#ent and e1plicitl( non-ori%inalist in its ori%in.69 A second set of principles direct the court-s attention to the forei%n $urisdiction with which the co#parison is sou%ht and to the nature of the co#parati2e #aterials. As 4 ha2e indicated alread(, current co#parati2e practice is insufficientl( attenti2e to the different
66 See, e%, Lawrence v )e,as 539 <S 558 at 598 per Scalia ; +2003.. See also Alford, ,:isusin% 4nternational Sources to 4nterpret the 'onstitution- +2004. A# ; 4nt ! 5= at 6=N69@ Allan and &uscroft, ,'onstitutional *i%hts 'o#in% &o#e to *oost7 *i%hts 4nternationalis# in A#erican 'ourts- +2006. 43 San 9 ! *e2 / at /0N/2. 6= Eor a thorou%h and thou%htful treat#ent of the )uestion of co#parati2e #ethod see, ;ac"son, Constitutional Engagement in a )ransnational Era +2009. ch 6 +forthco#in%.. 68 ,Ahen a law of a State is inconsistent with a law of the 'o##onwealth, the latter shall pre2ail, and the for#er shall, to the e1tent of the inconsistenc(, be in2alid.69 Australian Ca0ital )elevision 8ty Ltd v Commonwealth +/992. /== '!* /06 at /35N/36 per :ason ';.

for#s that the co#parati2e #aterials ta"e. 4 ha2e su%%ested, for instance, that we should thin" differentl( about forei%n do#estic law as co#pared with international law. =0 4t will probabl( also be necessar( to draw distinctions between the 2arious sources of do#estic law. 'o#parati2e practices should 2ar( accordin% to whether co#parati2e #aterial is case law or le%islation. +4n #( 2iew, for e1a#ple, case law is li"el( to pro2ide a particularl( rich source of co#parati2e insi%ht because of the pro2ision of reasons. &owe2er, 4 would not want to e1clude entirel( references to, sa(, le%islation.. Bo doubt si#ilar distinctions will need to be drawn with respect to the 2arious "inds of international law. Einall(, there is a )uestion of whether a co#parator $urisdiction is rele2antl( si#ilar to $ustif( the co#parison. 'onstitutional s(ste#s that are superficiall( si#ilar #a(, on closer inspection, re2eal si%nificant differences. Eor instance, there will be occasions on which, despite apparent si#ilarities, the central 2alues of a forei%n le%al s(ste#, or aspect of forei%n law, #i%ht #a"e it an inappropriate source for co#parison. Thus a le%al s(ste# without a co##it#ent to the rule of law #i%ht be an inappropriate source of insi%ht for a #odern liberal de#ocrac(.=/ This point follows fairl( directl( fro# the ar%u#ents about ,localis#alread( considered. Ahere a constitution-s 2alues are distincti2e, co#parati2is# #i%ht be entirel( inappropriate. Ahere, howe2er, its 2alues are shared, co#parati2is# #a( well be appropriate, but it should at least be restricted to constitutions that #i%ht fairl( be said to e#bod( co#parable 2alues. There is, howe2er, another for# of the ar%u#ent that raises a new point. A le%al s(ste# that is superficiall( si#ilar L perhaps sharin% a co##it#ent to si#ilar 2alues or e2en sharin% so#e aspects of its histor( L #i%ht, on a closer loo", contain differences in structure or le%al conte1t that preclude co#parati2is#, or at least re)uire a critical e(e to be cast on co#parati2e #aterial. The latter point #i%ht be labelled ,le%al localis#-. Ahereas the localist clai# as considered so far relies on the distincti2eness of the 2alues to which a constitution is co##itted, le%al localis# clai#s that the distincti2eness of le%al conte1t li#its opportunities for co#parati2is#. The &i%h 'ourt of Australia-s adoption in )heo0hanous v Herald < 5ee.ly )imes Ltd=2 of a #odified 2ersion of the well-"nown ri%ht to freedo# of speech in the <S case New 9or. )imes Co v Sullivan=3 de#onstrates the point. As 4 ha2e ar%ued elsewhere, =4 in that case, the &i%h 'ourt of Australia o2erloo"ed differences in the $urisdictions of the two hi%hest courts in the respecti2e le%al s(ste#s. The <nited States Supre#e 'ourt, for the #ost part, decides #atters of federal law and has no power to #a"e co##on law decisions, whereas the Australian &i%h 'ourt is a %eneral court of appeal with full powers to appl( or de2elop co##on law rules, includin% the laws of defa#ation at issue in the case. 4n o2erloo"in% this difference, 4 ar%ued, the &i%h 'ourt failed to ta"e ad2anta%e of its distincti2e power to resol2e the disputed )uestions throu%h co##on law de2elop#ent, rather than constitutional i#plication. D )he 6udgments in Roach revisited

=0 Abo2e at p 2. =/ 4n %night v 2lorida 528 <S 990 +/999., a case concernin% whether the ,cruel and unusual punish#entspro2ision prohibited the e1ecution of prisoners on death row for nearl( 20 (ears or #ore, Dre(er ; referred +at 996. to a decision of the Supre#e 'ourt of Ci#babwe. &e later ad#itted that this was a ,tactical error-6 9orsen, abo2e note 6, at 528. =2 +/994. /82 '!* /04. =3 3=6 <S 254 +/964.. =4 Stone, abo2e note 63.

4n the li%ht of these basic principles, 4 turn now to consider the $ud%#ents fro# Roach=5 that 4 ha2e so far ne%lected L the $oint #a$orit( reasons of Fu##ow, Girb( and 'rennan ;; +Hthe $oint $ud%#entI. and the dissent of &a(ne ;. To recall, althou%h neither $ud%#ent preclude constitutional co#parati2is# alto%ether, both $ud%#ents cast so#e doubt o2er the rele2ance of the cases fro# the Supre#e 'ourt of 'anada and the 0uropean 'ourt of &u#an *i%hts relied on b( Fleeson ';. The point was #ade in the $oint $ud%#ent as follows6 The )uestion M that is presented b( the constitutional $urisprudence of this 'ourt differs fro# that which would arise at 8ttawa or Strasbour%. 4t is whether the 2004 Act is appropriate and adapted to ser2e an end consistent or co#patible with the #aintenance of the prescribed s(ste# of representati2e %o2ern#ent. The end is the placin% of a ci2il disabilit( upon those ser2in% a sentence of three (ears or lon%er for an offence, the disabilit( to continue whilst that sentence is bein% ser2ed.=6 &a(ne ; #ade the point sli%htl( differentl(6 An( appeal to the decisions of other courts about the operation of other constitutional instru#ents or %eneral state#ents of ri%hts and freedo#s is an appeal that calls for the closest consideration of whether there are an( rele2ant si#ilarities between the instru#ents that were e1a#ined and applied in those decisions and the particular pro2isions that this 'ourt #ust consider. M The onl( connection between the cases and other international #aterials upon which the plaintiff relied and the present issues is to be found in the state#ent of the proble# as an issue about the 2alidit( of le%islati2e pro2isions e1cludin% prisoners fro# 2otin%. That the proble# #a( be stated in %enerall( si#ilar ter#s does not #ean that differences between the %o2ernin% instru#ents #a( be i%nored.== Doth $ud%#ents thus clai# that the Australian conte1t is distincti2e. &owe2er, the %rounds each ad2ance for such a distinction are so#ewhat troublin%. 4 will deal with each of these $ud%#ents, be%innin% with the dissent of ;ustice &a(ne. +a. The distincti2eness of te1t and doctrinal for#7

4n referrin% to the ,instru#ents- co#pared, it #i%ht appear that &a(ne ; drew the distinction based on the differences in te1t between the 'anadian 'onstitution and 0uropean 'on2ention on &u#an *i%hts, on the one hand, on Australian 'onstitution, on the other. The 'anadian and 0uropean cases both arise in a conte1t where a court is interpretin% an e1pressl( stated ,ri%ht-,=8 whereas the Australian 'onstitution contains no %eneral ri%ht to
=5 +200=. 233 '!* /62. =6 4bid 204 >/0/?. == 4bid 22/ >/65?N>/66?. =8 See 'anadian 'harter of *i%hts and Ereedo#s, s 3 +,02er( citiKen of 'anada has the ri%ht to 2ote in an election of #e#bers of the &ouse of 'o##ons or of a le%islati2e asse#bl( and to be )ualified for #e#bership therein-.@ 5rotocol to the 'on2ention for the 5rotection of &u#an *i%hts and Eunda#ental Ereedo#s, opened for si%nature 20 :arch /952, 2/3 <BTS 262, art 3 +entered into force /8 :a( /954. +,The &i%h 'ontractin% 5arties underta"e to hold free elections at reasonable inter2als b( secret ballot, under conditions which will ensure the free e1pression of the opinion of the people in the choice of the le%islature-..

2ote or to free elections. Jotin% ,ri%hts- arise onl( indirectl( as an incident of the re)uire#ent that #e#bers of 5arlia#ent be ,directl( chosen b( the people-.=9 4 do not thin" his &onour #eans to rel( on this distinction. To re)uire te1tual si#ilarit( would preclude co#parati2is# in all but the 2er( few cases where constitutions share si#ilar te1t. :oreo2er, it would be inconsistent with other of his &onour-s $ud%#ents that draw co#parisons with constitutional doctrines de2eloped under the free speech clause of Eirst A#end#ent to the <nited States 'onstitution, which has no te1tual counterpart in Australia.80 &a(ne ;-s co##ent #ust rel( on a #ore substanti2e distinction. The point of distinction identified in the $oint $ud%#ent is also so#ewhat puKKlin%, at least if it is ta"en a face 2alue. The for# of the test adopted in the $oint $ud%#ent L ,whether the 2004 Act >e1cludin% prisoners ser2in% sentences of three (ears or lon%er? is a00ro0riate and ada0ted to serve an end consistent or com0ati4le with the maintenance o" 0rescri4ed system o" re0resentative government- +e#phasis added. L is drawn fro# earlier decisions of the 'ourt8/ and is certainl( different fro# that considered b( the Supre#e 'ourt of 'anada and 0uropean 'ourt of &u#an *i%hts. As is well "nown, ri%hts protected b( the 'anadian 'harter of *i%hts and Ereedo#s are, pursuant to s /, sub$ect to li#itations ,such reasonable li#its prescribed b( law as can be de#onstrabl( $ustified in a free and de#ocratic societ(-. That section has been interpreted as i#posin% a three-sta%e proportionalit( test, which in turn was influenced b( the de2elop#ent of a si#ilar test b( the 0uropean 'ourt of &u#an *i%hts.82 Thus the ,)uestions presented- to those courts rese#ble each other. The Australian court instead as"s whether the li#itation is ,appropriate and adapted to ser2e an end consistent or co#patible with the #aintenance of the prescribed s(ste# of representati2e %o2ern#ent-. Dut as with te1tual for#, 4 do not thin" that the )uestion of doctrinal for# can pro2ide a co#plete answer to the co#parati2e )uestion. ;ust as the sa#e or si#ilar substanti2e )uestions can arise fro# different te1ts so the sa#e or si#ilar substanti2e )uestions can arise fro# differentl( e1pressed doctrines. As 4 ha2e elaborated elsewhere, the concept of a li#itation ,appropriate and adapted to ser2e an end co#patible with the #aintenance of the prescribed s(ste# of representati2e %o2ern#ent- contains few inherent li#its.83 The concept of ,appropriate and adapted- can be deplo(ed as a test of the appropriateness of the ,#eans- e#plo(ed and the le%iti#ac( of the ends pursued in #uch the sa#e wa( as proportionalit(.84 Si#ilarl(, the concept of the ,prescribed s(ste# of representati2e %o2ern#ent- has little inherent content to be deri2ed fro# the te1t of the Australian 'onstitution.85 The Australian 'onstitution contains onl( scant pro2ision with respect to representati2e %o2ern#ent, principall( a re)uire#ent that the #e#bers of 5arlia#ent be ,directl( chosen b( the people-. The i#plications of that re)uire#ent for the
=9 Sections = and 24. 80 4n Coleman v 8ower +2004. 220 '!* / at =5N=6 >/86?N>/88?, in a $oint $ud%#ent with Fu##ow ;, his &onour referred to Cha0lins.y v New Ham0shire 3/5 <S 568 +/942. +a case decided pursuant to the free speech clause in the Eirst A#end#ent to the <nited States 'onstitution. in the course of deter#inin% a case on the Australian freedo# of political co##unication. Doth concern, in %eneral ter#s, ri%hts of freedo# of e1pression but the( arise in entirel( distinct te1tual conte1ts. 8/ Lange v Australian -roadcasting Cor0oration +/99=. /89 '!* 520. 82 Gir", ,'onstitutional Fuarantees, 'haracterisation and the 'oncept of 5roportionalit(- +/99=. 2/ :elb < ! *e2 / at 3N4. 83 Stone, ,The !i#its of 'onstitutional Te1t and Structure *e2isited- +2005. 28 <ni2 BSA !. ;. 842. 84 Stone, abo2e note 85, at > ?. 85 4bid.

ri%hts of prisoners to 2ote are not i##ediatel( ob2ious. Thus, if we consider $ust the ,)uestion presented- and the te1t of the Australian 'onstitution, the )uestion is 2er( #uch an open one. 4t si#pl( is not clear $ust which laws, or #ore specificall(, which li#itations on 2otin% ri%hts are per#issible. +b. 8ri%inalis# and localis#

4 ha2e su%%ested, then, that these $ud%#ents do not, on their face at least, pro2ide con2incin% reasons to preclude reference to co#parati2e #aterials in Roach. Doth appear to rel( on #atters of for# that pro2ide no reasons to preclude co#parati2e #aterials. *ead in conte1t, howe2er, other #ore substanti2e reasons e#er%e fro# the $ud%#ents. The best readin% of &a(ne ;-s $ud%#ent, 4 su%%est, is as an ori%inalist $ud%#ent. Accordin% to his &onour, the #eanin% of the Australian 'onstitution-s re)uire#ent that the #e#bers of 5arlia#ent be ,directl( chosen b( the people- is deter#ined b( constitutional histor(.86 At the ti#e of federation, all states e1cluded so#e prisoners fro# 2otin% and, criticall(, Bew South Aales e1cluded ,e2er( person who M is in prison under an( con2iction-.8= Pet s 30 of the Australian 'onstitution nonetheless allowed state law to deter#ine eli%ibilit( to 2ote until the 5arlia#ent pro2ided others. Eor &a(ne ; this is conclusi2e e2idence that the ori%inal #eanin% of ,directl( chosen b( the people- did not preclude a blan"et e1clusion fro# the franchise.88 Eor &a(ne ;, then, Roach did not pose an open or undecided )uestion of constitutional law in which co#parati2e insi%ht #i%ht assist. 4t posed a )uestion conclusi2el( deter#ined b( constitutional histor(. 8ri%inalis# cannot, howe2er, e1plain wh( the $ud%es part( to the $oint $ud%#ent resisted co#parati2is#. The $oint $ud%#ent was )uite specific that while histor( pro2ides a %uide to the #eanin% of the Australian 'onstitution, it does not control the #eanin% of its te1t.89 Dut while the $ud%e#ent is e1plicitl( non-ori%inalist, it is notabl( attenti2e to histor(. After a lon% re2iew of the histor( of the franchise +and, relatedl(, of )ualification and dis)ualification for candidac( for elected office. in the Australian colonies, the $oint $ud%#ent concluded that, as a #atter of practice, the Australian colonies had a rather #ore inclusi2e approach both to the franchise and eli%ibilit( for office than e1isted at the ti#e in the <nited Gin%do#, and that dis)ualification fro# the franchise and fro# eli%ibilit( for office turned on con2iction for treason or a felon(. 90 <nderscorin% this practice was ,an understandin% of what was re)uired for participation in M public affairs- and the pro2isions for dis)ualification were underscored b( a $ud%e#ent as to ,fitness and probit( of character-.9/ This understandin% was continued in the pro2isions %o2ernin% eli%ibilit( for election as a #e#ber of the 5arlia#ent. The $oint $ud%#ent-s conclusion that the blan"et e1clusion fro# the franchise was in2alid was thus reached in li%ht of histor(.92 Ahat e1plains this approach, which apparentl( eschews both ori%inalis# and co#parati2is#7 The $ud%#ent is not e1plicit on the point but the best readin% of the $oint
86 Roach +200=. 233 '!* /62 at 206 >///?6 +,&istor( pro2ides the onl( certain %uide-. 8= 4bid 2/4 >/38?. 88 4bid 2/2 >/33?. 89 4bid /88N/89 >53?. 90 4bid /92 >62?. 9/ 4bid. 92 4bid 200N202 >90?N>95?.

$ud%#ent, 4 su%%est, is that the $ud%es precluded co#parati2e #aterial on localist %rounds. Thou%h the $ud%es do not wish to be bound b( historical understandin%s at the ti#e of the fra#in%, the( do appear to be interested in deter#inin% an Australian political tradition with respect to the franchise that, si%nificantl(, is thou%ht to be distincti2e to the Australian colonies. The i#plicit clai# #a( be that this tradition, these distincti2el( Australian 2alues, should deter#ine the scope of the Australian 'onstitution-s re)uire#ents with respect to the franchise. Conclusion :( principal purpose in this lecture was to repl( to an( su%%estion that constitutional co#parati2is# L in Australia or an( li"e s(ste# L is alwa(s an i#per#issible interpreti2e #ethod. :( criticis#s ha2e principall( been directed to the $ud%#ent of &e(don ; in Roach,93 which, with respect, appears co##itted to an uncon2incin%, in principle ob$ection to co#parati2e #aterial. 4 ha2e also sou%ht to place the other $ud%#ents in Roach in the conte1t of debate about co#parati2is#. These $ud%#ents e1e#plif( points alon% a spectru# of plausible positions6 Fleeson ';-s strai%htforward acceptance of co#parati2e #aterials on a )uestion he re%arded as undecided@ &a(ne ;-s preference in this conte1t for the ori%inal understandin% of the Australian 'onstitution@ and the $oint $ud%#ent-s i#plicit preference for locall( deri2ed political 2alues. These positions in turn depend on prior co##it#ents as to interpreti2e #ethod and the nature of the Australian political and constitutional tradition. Thus, in Australia, the debate about co#parati2is# is an aspect of the debate about how to interpret the Australian 'onstitution and the nature of the 2alues it is entrenches. 4t is a debate that cannot be resol2ed without proper attention to these )uestions. 4n clarif(in% these #atters, 4 hope to ha2e cleared the wa( for a co#ple1 and ur%ent tas"6 de2elopin% #ethods for a principled and (et achie2able constitutional co#parati2is#. 8n this )uestion, 4 ha2e #ade onl( sli%ht pro%ress in this lecture. :an( proble#s re#ain. 5rincipled co#parati2is# will re)uire a deep understandin% of the le%al structures, as well as the political and constitutional traditions, of the co#parator $urisdiction. The proble# is co#pounded b( the need to achie2e at least a reasonable breadth of co#parison. Eurther, 4 ha2e not e2en touched upon the proble#s that co#parati2is# creates for the ti#e and resources of courts and ad2ocates, and the potential costs and attendant unfairness for liti%ants. The tas" for courts is dauntin% but it represents a %reat opportunit( for scholars. There is no scholarl( tas" #ore ur%ent or #ore li"el( to be fruitful than the research that will %uide courts towards a principled, infor#ed co#parati2is#.

93 +200=. 233 '!* /62.