Introduction
In this chapter, my focus is on an aspect of original constitutional founding moments (events that bring about a new constitutional order): the question of who made the constitution as law.
Or, in other words, who was the legally authoritative agent (or author) in the making of a constitution? This question, for better or worse, plays a significant role in legal arguments about the legal content of some codified constitutions. I take no position on how significant, if at all, founding moments should be in constitutional law. I only offer a jurisprudential account of who, among the potentially many participants of a founding moment, counts as the legal authority who made the constitution (the constitution-maker).Lawyers across the globe routinely talk about what the ‘founding fathers' or the ‘framers' of their constitution (or a founding treaty) meant, expected, intended and so on. The point of this chapter is that some of the founding fathers talk is confused, because it refers to people who did not make the constitution. I dispel the confusion through analysis of what it means to be an agent behind making a constitution as law: what does it mean to be a constitution-maker?
It is not only originalists who are in a habit of invoking the founding fathers. Even anti-originalists do not shy away from supporting their legal positions by reference to what the founding fathers would have wanted. For some reason, the founding fathers feel at home in any legal argument. Perhaps this reason is to be found in the sound intuition that there ought to be a connection between laws and exercises of legitimate authority that bring those laws into being. The problem with the founding fathers talk is that it tends to be at odds with this intuition. In other words, the founding fathers, or the framers, are not the ones who made the constitution in question as law.
If they were not the constitution-makers, then at least an additional argument is required before one should even think of invoking them in a legal argument concerning the interpretation of a law they did not make. Such additional argument is often missing. In short, lawyers are prone to unreflectively refer to the founding fathers in their legal arguments concerning the interpretation of codified constitutions. In some cases, such references may be unjustifiable, whilst in other cases there is a glaring need for justification - a gaping hole in the legal argument.This chapter presents a general theory of authoritative agency in constitutionmaking, with a particular emphasis on group action. On my general account, 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 the acceptance of the constitution as law. Some, or even many, constitutions may fail to have makers in this sense.
To clarify, I am exclusively concerned here with original constitution-makers. I do not investigate the sources of current authority of any constitution, merely the sources of authority of historical constitutional changes. Also, for the sake of simplicity, I focus on an important subset of instances of constitutional change: on cases of constitution-making, not merely alteration of an already-existing constitution (admittedly, Canada is a borderline case). With the analytical toolkit in hand, I consider the cases of Australia, Canada and the US. I identify who was the constitution-maker there and I look at some possible ways of justifying legal uses of historical materials, which constitute legally u nauthoritative sources. I am using ‘unauthoritative’ here in a technical sense of being unconnected to the legal authority behind the original making of a constitution (the constitution-maker).
This is not a work on originalism. I am not making claims on how any materials associated with the makers of a constitution are supposed to be legally relevant. Strictly speaking, I do not even need to assume that they are of legal relevance. This may very well be a controversial, unsettled issue in a particular constitutional order - with some participants of the legal practice denying them legal relevance and some endorsing it. Also, even those who do not accept that any materials connected with the constitution-makers constrain or determine the current content of the constitutional law (anti-originalists) are likely to accept some limited, persuasive role of such materials in constitutional interpretation.
My focus is on the structure of legal arguments that are affected by the issue of the identity of constitution-makers. I reflect on one way in which such arguments may be legally invalid: when they invoke people or groups who were not the makers of the constitution in question. It may be that such arguments are legally invalid for other reasons. In particular, they may be invalid because the legal system in question does not make any material associated with the constitution-makers relevant for the current legal practice in any way (or at least not, for example, as a conclusive factor in the interpretation of a constitutional provision). Also, I do not claim that my theory is conclusive as to the content of the positive law in any particular constitutional order. The content of the positive law at any given time is determined by the legal practice at that time.
II.