Australia’s “Marriage Amendment (Definition and Religious Freedoms) Bill 2017” could be ruled unconstitutional.

It’s whole purpose is to override the commonly understood, dictionary definition of the word as it existed when the constitution was written in 1901. If the court considering the case took either a literalist or an originalist approach to interpreting the constitution, they would have to overturn the legislation and force the government to do what they should have done all along, and send the nation to a referendum to change the constitution.

Only a non-originalist, revisionist approach to interpreting the constitution could reject what the framers intended or what everybody knew it meant when it was written. More about just how bad that approach is, beneath the video.

One of the principles of hermeneutics is to respect the spirit of the law and the document by taking into account what is the intention of the drafter. I think when precedent, for instance, departs from original meaning, it should be overturned. The judge should have the boldness and the courage to say that they made a bad decision and correct the problem as a matter of urgency.
– August Zimmerman

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Further Opinion by Prof. Dr. Augusto Zimmermann

Dread Scot – first instance of non-originalist, judicially activist approach to the U.S. Constitution 

Dred Scott is one of the worst decisions ever made by the US Supreme Court. It is often credited with accelerating the Civil War for seeking to raise racial apartheid to the level of constitutional principle. In 1857 the U.S. Supreme Court held in the notorious Dred Scott case that Congress had no power to outlaw slavery in the federal territories. The court reached its appalling decision by applying a ‘creative’ interpretation of the 5th Amendment and explicitly rejecting the Christian tradition of natural law, and thus appealing saying that slave owners could not lose property over their slaves without due process of law!

The prohibition was construed as meaning that the Bill of Rights also protected slavery since no federal statute could remove the purported implied constitutional right of slave-owners to take their ‘property’ with them to wherever they decided to go. For Congress to declare that a person’s ‘property’ could not be taken into a territory without losing it, Justice Taney remarked, ‘could hardly be dignified with the name of due process!’

 As mentioned, the court ruling in Dred Scott can be credited with accelerating the American Civil War by seeking to raise racial apartheid to the level of constitutional principle. In reaching such a notorious decision Justice Taney contended that no higher law, or God-given inalienable right, could possibility be invoked in order to prevent a person from having the legal ‘right’ to retain his or her property, including if this were actually a right to property over another fellow human being!

But the fact is quite simple: the court applied judicial activism and got it completely wrong. After all, the early days of American Federation were characterised by the regular evocation of natural law doctrines to provide the meaning of ‘due process of law’ in the Fifth Amendment.[1] In this context, the great Virginian jurist, St George Tucker (who was responsible for the celebrated 1803 American edition of Blackstone’s Commentaries) wrote in respect of natural law that ‘no man nor set of men can have any natural, or inherent right, to rule over the rest.’[2]

National Socialist Constitutional Interpretation – non-originalist & non-literalist

During the National Socialist period in 1930s’ Germany the courts were guided by legal value judgments no less vague and ambiguous than the Nazi ideology.[3] From the beginning the Nazi jurists placed great stock in the creation of new methods of legal interpretation that symbolised the ‘new thinking’.

The facade of legality enabled a highly ideological interpretation of the law. As far as the Nazi legal system was concerned, the initial strategy was not to repeal the old legal system, but merely to distort its original meaning. Hence, judges instructed to provide a non-literalist and non-originalist interpretation of the constitution, and to ‘infuse the National Socialist system of values into the old law’.[4] Such approach allowed the judges to ‘change the application of the old statues without changing their textual formulations’.[5]

The purpose of Nazi legal interpretation was to engender a subjective value for legality. Judges were encouraged to pronounce judgments against the law if their ideological ‘consciousness’ so dictated. In this context, Curt Rothenburger, Court President in Hamburg, spoke approvingly of the demise of the ‘neutral, non-political judge of the liberal epoch’ and the birth of activist judges who were ‘politically aware through and through, firmly bound to the world view of the lawgiver’.[6]

Since what mattered was not the influx of legislation, but mainly the adoption of judicial activism according to Nazi ideology, and its adaptation to the so-called ‘needs of the community’, the Weimar Constitution was never formally repealed. Instead of explicitly overruling the old legal system en bloc, the National Socialist regime opted for adopting an ‘evolutionist’ approach to legal interpretation that distorted the original meaning of all the pre-Nazi laws. As Michael Stolleis explains:

Disregard of original legislative intent by ideologically guided judges became far more significant in everyday legal life of National Socialism than injustice directly commanded by the lawmaker. And that is why the thesis disseminated in the 1950s — that the judiciary, because of its positivist orientation, had been helpless in the face of a legislator liberated from all constraints — contained only part of the truth … Already during the Weimar Republic, wide segments of the judiciary had chosen to oppose the democratically legitimized legislative body. That is why the Nazis’ call to ‘overcome narrow normativism’ through legal interpretation … no longer posed any problems of method …

Both during the period of the seizure of power and during the war, interpreting the old law under the guidance of National Socialist ideology proved a superior approach than legislating new law. It was faster and more flexible, and in individual cases it could be more easily criticised and invalidated. The regime evidently accepted the fact that the vague nature of ‘National Socialist ideology’ in turn created some manoeuvring room, which was used in various ways. Actual laws, by contrast, had to be measured against National Socialism’s own claims. They also developed a certain binding effect that was bothersome to the new rulers.”[7]

[1] Antieau, p 81.
[2] Ibid, pp 81–2.
[3] Loewenstein, p 781.
[4] Loewenstein, p 781.
[5] ibid.
[6] Overy, p 297.
[7] Stolleis, pp 14–15.

Augusto Zimmermann LLB LLM PhD (Monash University) is the former Law Reform Commissioner, Law Reform Commission of WA (2012-2017), a Fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF), recipient of the Vice-Chancellor’s Award for Excellence in Research, Murdoch University (2012), and Editor-in-Chief, The Western Australian Jurist – the yearly academic publication of the Western Australian Legal Theory Association (WALTA).

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