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Legalism and the Lack of Constitutional Amendment

Lisa Burton Crawford

Federal Law Review2025https://doi.org/10.1017/fed.2025.10010article
ABDC A*
Weight
0.50

Abstract

This article reconsiders the method of constitutional interpretation employed by the Australian High Court, in light of the lack of formal amendments to the Australian Constitution. The Court eschews any power to change the meaning of the Constitution, including to keep pace with contemporary needs and values. That is in large part because section 128 of the Constitution vests power in the people and their representatives to change the Constitution – and thus it is said, it would be undemocratic for the Court to change the Constitution for them. But section 128 has fallen into desuetude: constitutional referendums are rare, and rarely succeed. This requires a reassessment of the values served by the interpretive method of the High Court, though this article concludes that this method remains normatively sound. It does serve democracy – though only in a thin sense of that term. More importantly, it preserves the institutional legitimacy of the High Court.

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https://doi.org/https://doi.org/10.1017/fed.2025.10010

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@article{lisa2025,
  title        = {{Legalism and the Lack of Constitutional Amendment}},
  author       = {Lisa Burton Crawford},
  journal      = {Federal Law Review},
  year         = {2025},
  doi          = {https://doi.org/https://doi.org/10.1017/fed.2025.10010},
}

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Legalism and the Lack of Constitutional Amendment

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Evidence weight

0.50

Balanced mode · F 0.40 / M 0.15 / V 0.05 / R 0.40

F · citation impact0.50 × 0.4 = 0.20
M · momentum0.50 × 0.15 = 0.07
V · venue signal0.50 × 0.05 = 0.03
R · text relevance †0.50 × 0.4 = 0.20

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