Founders, Framers, But Not Makers: Applying the Theory

It is now time to apply the general account to the cases of Australia, Canada and the US. In this section, I identify the most plausible candidates for the makers of these constitutions.

A. The US

The US Constitution was drafted in 1787 by a special convention (the Philadelphia Convention) of delegates of 12 American states (the thirteenth state, Rhode Island, refused to send delegates). Article VII of the Philadelphia proposal specified that a new US constitution was to be established, to become law, once ratified by state conventions in at least nine states. The ninth state to ratify, New Hampshire, did so in June 1788. The standard view among the sophisticated commentators is that the Constitution was made law by the ratifying conventions.^[329] Those conventions, as institutional groups, jointly satisfy the second criterion of being a constitution­maker. They do not satisfy the first condition because, in making the Constitution, they did not exercise pre-existing legal authority.^[330]

The conventions saw themselves as having authority to approve the Constitu­tion and thus make it law. Even though some of the delegates to the conventions received purportedly binding instructions, in the end they acted, however reluc­tantly, as if they were not bound by anyone's will. They considered the proposed Constitution in detail, debated over its clauses, sometimes suggesting amend­ments, and only after all that, they voted to accept or reject the Constitution.^[331] Given the requirement of being a de facto authority, the strongest and the simplest argument for concluding that the Constitution had been accepted for the reason of the authority of the ratifiers is that it was not before and not after their act (ie, ratification) that the Constitution had been accepted as law.^[332] Had acceptance happened before ratification, then that would have perhaps meant that the drafters (the members of the Philadelphia Convention) were taken as authority (a view the drafters themselves rejected).

This conclusion creates a problem for interpretative arguments relying on the constitution-making authority. As Kesavan and Paulsen note in their helpful discussion of the documentary sources on the ratification:

It is not the understanding of one, two, or even three ratifying conventions that should constitute sufficient evidence of constitutional meaning, but the understanding of nine state ratifying conventions, or perhaps, all thirteen state ratifying conventions. But such evidence is, as we have seen, simply impossible to extract from the documentary record.^[333]

The only plausible evidence of the group intent of the US constitution-maker is the public meaning of the constitutional text adopted. The most popular documentary sources on the constitution-making, The Records of the Federal Convention and The Federalist, cannot be relied on based on a Roger-type adop­tion argument (see section III.A above). Both documents were simply unavailable for a significant number of the members of the ratifying conventions.^[334] As to an Alex-type adoption argument, we know enough about the ratifying conventions to exclude the possibility that their choice was to adopt whatever the Philadel­phia Convention (or some its subset) meant, even secretly.^[335]

Similarly, one needs to treat with suspicion invocations of materials like the writings of James Madison as evidence for the intent of the ratifiers or for the origi­nal public meaning. As to the intent, it is clear that many individual ratifiers were not aware of Madison's views and certainly almost no one was aware of his notes or private correspondence. There is a big justificatory jump from Madison being a ‘key framer' to his writings constituting reliable evidence of the group intent of the ratifying conventions.^[336] As to the public meaning, the generic objection against relying on a single (arguably biased) data point to establish public meaning suffices (see above, section III.B).

A potentially more fruitful strategy for justifying the legal use of any founding-era materials other than the perfectly ordinary evidence of the public meaning (eg, dictionaries, newspapers, routine legal writing) is to rely not on the legal authority of the constitution-maker, but on the special significance contem­porary American law happens to place on the ‘founding fathers’.^[337] What helps here is the distinction between i nterpretation and c onstruction in current origi- nalist theory, where only interpretation is grounded in the original intent or the original public meaning.^[338] Some authors, like Balkin or Greene, argue that at the construction stage, it is legitimate to use the kind of ‘intent of the founders' argu­ments that cannot be justified on the grounds discussed above.^[339] Greene even considers his view as invoking a theory of ‘constitutional authority', yet he does not mean the exercise of authority that was the historical reason for acceptance of the Constitution, but a more nebulous notion of ‘national heritage' or ‘a set of values that are offered by proponents as uniquely or especially constitutive of American identity’^[340] Balkin made similar claims.^[341]

Without attempting to settle the issue, I will merely say that it could be that Greene and Balkin are correct and that the current American legal practice has a technical notion of authority that allows for uses of the founding-era materials unconnected to the constitution-maker.

B. Australia

Australia is notably different from the US; it does not have the revolutionary past. Australia emerged as a new constitutional order without any unlawfulness.^[342] '1 he ‘Australian Constitution' is a popular name for the Commonwealth of Australia Constitution Act 1900 (or at least for a part of the Act), a statute enacted by the Imperial Parliament at Westminster. There is broad agreement that the Australian Constitution became law through the enactment of the Imperial Parliament.^[343] Hence, the Imperial Parliament is the historical maker of the Australian Constitu­tion.

Nevertheless, it may seem that this account fails to give justice to the constitution-making process that involved Australian conventions that drafted the Constitution, as well as constitutional referendums in Australian colonies. Peter Oliver insists that the people of Australia played a legally significant role in the constitution-making.^[345] 'lhere are several problems with that view. First, it is clear that the Australian drafters acted within the pre-arranged frame­work that was to end with a request directed to the Queen for an enactment of the Australian Constitution by the Imperial Parliament.^[346] Second, those who approved the project of the Constitution in referendums were a minority of those enrolled to vote.^[347] 'Ihis is an issue because it suggests that there was no group action (insufficient overlap of participatory intentions), unless it can be shown that the groups involved were institutional groups that may have acted even without specific participatory intentions on the part of the vast majority of their members. But even if it is possible to overcome this, it is still the case that the explicit role of the referendums was to authorise legislation to ask the Queen for imperial legislation, not to enact a constitution.^[348] Also, unlike in the US, there is

no strong personal ‘cult’ of any of the great men from among those who partici­pated in the Australian constitution-making. Even those who stress the role of other agents (the people, the drafters etc) do not single out any individuals as the constitution-makers.^[349]

As a matter of cautious constitutional theory in Australia, a version of original public meaning originalism is especially popular.^[350] However, the issue of iden­tity of the constitution-maker may be of relevance even for that position.

Jeffrey Goldsworthy suggested that such a ‘role’ had been thrust upon the Imperial Parliament,^[352] whereas I prefer to see this as a proper interpretation of the choice made by that Parliament (which also means that that Parliament could have made a different choice). The crucial consequence of this is that some intentions or understandings of certain other agents may be legally relevant for constitutional interpretation d ue to a choice made by the Imperial Parliament, even if the Parliament was the only constitution-maker that the Australian Constitution had.

C. Canada

The making of the Canadian Constitution shares some similarities with the Australian case. Both the British North America Act, 1867 (now the Constitution Act, 1867) and the Constitution Act, 1982 (which formed a part of the Canada Act 1982 (UK) and amended the 1867 Act) were enacted by the Westminster Parliament. By virtue of exercising a legal power to do so, the Westminster Parliament was, in both instances, clearly the maker of the Canadian Constitu­tion as law.^[353] However, as the Supreme Court of Canada stated in 1998:

The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution...

Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy as distin­guished from the formal legality of the amendments derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled was in accordance with our Constitution.^[354]

The constitution-maker has thus removed itself from the picture, so to speak, in the very act of constitution-making. Nevertheless, it does not follow from that alone that the identity of the constitution-maker is not legally relevant. The second interesting point made by the Court is the distinction between ‘the legitimacy' and ‘the formal legality' of the 1982 constitutional change in Canada. I do not disagree with that point, but I want to stress the specifically legal meaning of authority (see above, section II.B). Even though the ultimate (moral, political) legitimacy of a constitution-making process comes from one body, it may very well be that the maker of the constitution as law is someone else (see above, section II.A). My claim is that the move from X's legal authority (in constitution-making) to X's legal relevance (in constitutional interpretation) is easier to make than the move from X’s moral or political legitimacy (in constitution-making) to X’s legal relevance.

Even though Canadian constitutional practice is considered to be hostile to originalist arguments, there is at least one respect in which it relies on considera­tions of historical constitution-making - ‘constitutional bargains. ^[355] The bargains in question are the political compromises, without which the Constitution would not have had the content that it has. The following question then arises: given the Westminster Parliament's role as the constitution-maker, what is the legal significance of anything that happened n ot in the Parliament and, especially, of the evidence of the political deals struck in Canada? Another example of reliance on the constitution-making in Canadian constitutional law is provided by judi­cial applications of the Charter of Rights and Freedoms, which forms a part of the Constitution Act, 1982.^[356] Some Canadian judges rely expressly on the drafting history of the provisions. The problem is that, as we know, the drafting took place in Canada, by someone else than the constitution-maker.

One plausible way to address this concern is to show (for example, by referenc­ing Hansard) that the Westminster Parliament in fact intended to give effect to the legislative plan prepared in Canada, including the political compromises. However, a more general argument to that effect may be available, at least regarding the 1982 Act. The adoption point made by Goldsworthy in reference to the Austral­ian Constitution is applicable, perhaps even more forcefully, to the Canadian Constitution (see above, sections III.A and IV.B). The Queen's proclamation of the 1982 Act explicitly recognised ‘the status of Canada as an independent state' and that the UK Parliament enacted the Canada Act ‘at the request and with the consent of Canada'.^[357] Hence, there are good reasons to think, even without look­ing at Hansard, that the constitution-maker adopted the legislative plan prepared in Canada, thus making this Canadian plan legally relevant. Nevertheless, this creates a different problem of deciding who were the authors of the original plan (the drafters).^[358] I will not attempt to answer this question, as it requires a different framework from the one modelling authority in constitution-making (see above, section II) that I give. From my perspective, the point is that the drafters (the fram­ers) of the 1982 Act are not the constitution-maker and hence they need another legal reason for their legal relevance.

V.