Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni

Jonathan Crowe

Research output: Contribution to journalArticleResearchpeer-review


Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.

Original languageEnglish
Pages (from-to)149-157
Number of pages9
JournalFederal Law Review
Issue number1
Early online date15 Nov 2020
Publication statusPublished - 2021


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