Heresy as Orthodoxy: Were the Founders Progressivists?

Probably the most basic contemporary controversy over the interpretation of the Australian Constitution is that between the methodologies of originalism (or intentionalism) and progressivism. According to the first, the fundamental task of the Courts (and especially the High Court) usually is regarded as being to interpret the Constitution so as to give effect to the intentions of those who framed it at the great Conventions of the 1890s, commonly referred to as 'the Founding Fathers' or (as here) 'the Founders'. Progressivists, on the other hand, believe that a search for historical intention is at best incidental in the process of constitutional interpretation, and that the Court should construe the Constitution so as to bring it into accord with modern needs and exigencies. Between the two sides in this fiercely contested debate stretches a vast chasm both of theoretical approach and rhetoric. A third approach, literalism, despite a hallowed history in Australian constitutional law and its routine deployment in virtually all important cases concerning federal legislative power, today largely is overshadowed in the minds of constitutional lawyers by the fascinations of its two rivals.