Conclusion

I proposed a general account of legal, or legally recognised, authority in constitution-making, according to which in order to be the legally relevant constitution-maker, one has to either: (1) exercise pre-existing legal authority to make the constitution in question; or (2) have one's intentional act purporting authoritatively to make the constitution as law recognised as the reason for accept­ance of the constitution as law.

I did not focus on examples of incautious legal talk, where, for example, infer­ences are being made from the constitution-making authority of the drafters of a constitution (who clearly are not the maker). Instead, I chose to focus on potential types of justifications for legal relevance of those who participated in the making of a constitution, but were not the authority that made it as law. A general conclu­sion that stems from the applicative part of my chapter is that there are different bases for legal relevance of such agents in the US on the one hand and in Australia and Canada on the other. In the US, it is exclusively the subsequent legal practice that plausibly makes the non-makers relevant in legal reasoning. The practice as it emerged after the making of the US Constitution makes the non-makers legally relevant because of the important, non-legal role played by some of them.^[359] It may even be that the US law accepts the ahistorical view, a legal fiction so to speak, that the non-makers were the makers in the sense I am using the term.

In Australia and in Canada, a different argument is available. There, it is argu­able that the constitution-maker (in both cases the Parliament at Westminster) adopted the legislative plan prepared in Australia and in Canada, thus making that plan (and its authors) legally relevant. The question remains as to which model of adoption is applicable. Did the constitution-maker adopt even the parts of the plan that were not available to it (the ‘secret’ plan) or did it adopt the plan only to the extent that it had been presented (or at least potentially available) to the maker? Interestingly, in the American context, only the second option is considered (and, for good reasons, dismissed). However, some features of the Australian and Cana­dian constitution-making (in Canada this is more applicable to the 1982 Act) suggest that the Parliament’s choice had been in fact to go with the first option: whatever your design is for your constitution, we enact it as law.