Honours Thesis - Elodie Cheesman.pdf

Goldsworthy and kirk canvas a number of methods for

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Goldsworthy and Kirk canvas a number of methods for giving the Constitution a more flexible operation, including (1) ‘non-literal, purposive interpretation’ and (2) ‘underlying non- originalism’, under which ‘connotation and denotation’ and ‘context-dependent criteria’ are explored. Typecast under the banner of ‘moderate originalism’, their starting point is originalism, because ‘the most basic principle of statutory interpretation is the adoption of an originalist approach’. 148 The process of evolution is then guided by the original, intended meaning. 149 5.1 NON-LITERAL, PURPOSIVE INTERPRETATION Whereas an originalist approach post- Cole v Whitfield would look to extrinsic materials to discern the Framers’ intention as to the same-sex marriage question (which is obviously deficient), the ‘non-literal, purposive interpretation’ considers the ‘spirit rather than [the] letter’ of the text more broadly. 150 For example, the United States Constitution gives Congress the 147 Zines, ‘Dead Hands or Living Tree? Stability and Change in Constitutional Law’, above n 97, 16. 148 Kirk, above n 64, 344. 149 Goldsworthy ‘Interpreting the Constitution in its Second Century’, above n 17, 704. 150 Goldsworthy, ‘Originalism in Constitutional Interpretation’, above n 42, 33.
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31 power to raise ‘Armies’ and ‘a Navy’, and to regulate ‘the land and naval Forces’. 151 Air forces were unforeseen when the Constitution was enacted, and would not come within the connotation of ‘Armies’ or ‘Navies’, which are defined as land and sea -based forces. 152 However, Congress is regarded as having the power to raise air forces because the purpose of the provision is clearly to allow Congress to have complete control over the country’s military forces. 153 Applying the analogy, the ultimate purpose of the Marriage Power was to make possible uniform national regulation of the legal relationship. During the Debates, the Honourable RE O’Connor (NSW) cited this imperative: ‘We want to bring about not only a recognition of the status, but a uniformity of the laws in regard to marriage and divorce…’. 154 Even the representatives of South Australia and Tasmania, who sought to retain significant State control over the institution for the time being, concurred. As The Honourable CH Grant (Tas) said, ‘[It] might be provided that the federal parliament, having the assent of the states, should eventually; have the power to evolve a uniform law of marriage’. 155 The Honourable Sir JW Downer (SA) asked with rhetorical vehemence, ‘What subject is more fitted for general legislation? In what subject do we want a universal law more than that dealing with the most sacred relations that concern not merely the individuals who are parties to the contract…but also those who are to come afterwards?’ 156 The current NSW Inquiry, introduction of 5 Federal and 3 State Bills, and international climate strongly suggest that same-sex marriage legislation is an inevitability. Its uniform regulation requires Commonwealth legislation, and this can be achieved by construing s 51(xxi) is a way consistent with the Founders’ pragmatic purpose.
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