Heresy as Orthodoxy: Were the Founders Progressivists?

Journal article


Craven, Greg. (2003). Heresy as Orthodoxy: Were the Founders Progressivists? Federal Law Review. 31(1), pp. 87 - 129.
AuthorsCraven, Greg
Abstract

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.

Year2003
JournalFederal Law Review
Journal citation31 (1), pp. 87 - 129
PublisherAustralian National University Press
ISSN0067-205X
Page range87 - 129
Publisher's version
File Access Level
Controlled
Place of publicationCanberra, Australia
Permalink -

https://acuresearchbank.acu.edu.au/item/851x3/heresy-as-orthodoxy-were-the-founders-progressivists

Restricted files

Publisher's version

  • 73
    total views
  • 0
    total downloads
  • 1
    views this month
  • 0
    downloads this month
These values are for the period from 19th October 2020, when this repository was created.

Export as

Related outputs

A Gripping Discussion on the Road to Nowhere?
Craven, Gregory Joseph. (2010). A Gripping Discussion on the Road to Nowhere? In In Sarah Murray (Ed.). pp. 172 - 178 Federation Press.
Industrial Relations, the Constitution and Federalism: Facing the Avalanche
Craven, Greg. (2006). Industrial Relations, the Constitution and Federalism: Facing the Avalanche. University of New South Wales Law Journal. 29(1), pp. 203 - 214.
The developing role of the governor-general: The goldenness of silence
Craven, Greg. (2004). The developing role of the governor-general: The goldenness of silence. Federal Law Review. February(2), pp. 281 - 290. https://doi.org/10.1177/0067205X0403200205
Conversations with constitutions: Not just a piece of paper
Craven, Gregory Joseph. (2004). Conversations with constitutions: Not just a piece of paper University of New South Wales Press.