All-Embracing Approaches to Constitutional Interpretation & 'Moderate Originalism'

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Abstract

This paper is separated into two parts. First, the author examines some of the normative considerations for and against judges openly enunciating and consistently applying all-embracing approaches to constitutional interpretation - a development that Justice Kirby has previously advocated. In this regard, the author also recounts a number of recent and historical examples of the at times inconsistent and ad hoc approaches applied when interpreting the Constitution. Second, the author turns to examine some of the alternative methods available in constitutional interpretation. The author argues that a form of ` moderate originalism' is the most useful and justified of these approaches. In this respect the author draws on the contributions of various theorists, as well as responding to some recent criticisms made of originalist theory.

Original languageEnglish
Pages (from-to)30-56
Number of pages27
JournalThe University of Western Australia Law Review
Volume42
Issue number1
Publication statusPublished - May 2017

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