The connotation/denotation distinction in constitutional interpretation.

• Author: Birch, Christopher

INTRODUCTION

One more contribution to the long debate over constitutional interpretation calls for some justification. This Article tackles a specific problem of interpretation in Australian constitutional law, although it is a problem that will arise in regard to the interpretation of any document which must be read and applied over a long period of time. The Article seeks to bring the concepts of contemporary philosophy of language to bear upon the problem with the aim of delineating what we mean by "meaning." The problem chosen to explore the issues just described is the long recognised difficulty in applying terms in the Constitution to entities or activities that did not exist at the time the Constitution was drafted or passed into law. Difficulties of this sort for constitutional interpretation may be arising more often as the time when the document was written recedes and the volume of social change since its inception increases.

It will be argued that a solution to this problem of constitutional interpretation involves abandoning attempts to ascertain the meaning of the document as the sole means of using the Constitution. It will be further argued that a practice of constitutional interpretation that is restricted to ascertaining the meaning of the Constitution will be practicably unworkable. Finally, it will be argued that a practice of interpretation not based upon ascertaining meaning requires a justification quite different from one restricted solely to meaning. What is presently lacking is a justification of such practice. This Article will not seek to offer such a justification, but it will suggest some conditions that any such justification would need to satisfy.

A classic example of the interpretational problem described above, although one that proved relatively easy of solution, was posed by The King v. Brislan; ex parte Williams, (1) in which it was held that the words in section 51(v) of the Constitution (2) conferring power upon the Commonwealth to make laws with respect to "postal, telegraphic, telephonic and other like services" extended to radio broadcasting, even though such technology did not exist in the 1890s. The words "other like services" at the end of the provision, and the knowledge that already existed in the 1890s regarding the electro-magnetic spectrum made the finding rationally supportable. (3)

Other issues prove less tractable. Laws of the Commonwealth to implement treaties protecting the environment have been held to be laws with respect to external affairs, (4) a result that might have surprised at least some of the constitutional founders. By contrast, the High Court confirmed in Eastman v. The Queen (5) that the meaning of the word "appeal" in section 73 was to be construed in accordance with historical usage, which would not have carried the implication that fresh evidence could be admitted. (6)

Many more examples can be recited of instances in which social change has placed pressure upon the way in which one interprets provisions of the Constitution. Some of these have been before the High Court; others no doubt will be litigated in years to come. At Federation the word "marriage" undoubtedly meant a relationship between a man and a woman. The time fast approaches when the term may, at least amongst a substantial portion of the population, be used to describe certain relationships between people of the same sex. An issue will arise as to whether Commonwealth powers under section 51 (xxi) of the Constitution in regard to marriage, extend to making laws for such same-sex relationships.

Similar issues have arisen concerning challenges to the Commonwealth's power to legislate in regard to computing technology and rights in regard to genes and plant varieties. Scholars suggest that these rights are sui generis. (7) These arguments amount to the assertion that computing technology or genetic discoveries are not in truth copyright subjects or patentable inventions as those concepts were originally understood in section 51 (xviii) of the Constitution. (8)

Numerous further examples could be generated, in which entities or activities are said to be capable of regulation under Commonwealth laws, in turn said to be authorised by provisions of the Constitution, which were written at a time when the activities or entities did not exist.

One solution to the problems just described, and a solution frequently relied upon by judges of the High Court of Australia, has been to note the distinction between the connotation and denotation of words. Put simply, the connotation of a word is the sense or meaning of the word, while the denotation is the class of things identified or picked out by its meaning. Thus, although the connotation (or meaning, in the narrow sense) may remain unchanged, the denotation of the term is said to alter over time as new objects come into existence which are capable of being identified as members of the denoted class. (9)

The connotation/denotation distinction was developed within the field of semantics and logic, although it is little used in contemporary semantic theory. However, contemporary semantic theory does make much use of another distinction, similar in important respects, namely the distinction between the sense and the reference of words, a distinction first propounded by the German philosopher Gottlob Frege in 1892 in his paper Uber Sinn und Bedeutung (usually translated into English as On Sense and Reference). (10)

It is doubtful if Frege's distinction can do the work demanded by those who wish to maintain that the meaning of the Constitution may remain unchanged while the reference of its terms can vary. More recent criticisms of Frege's work make even more doubtful the possibility of a coherent account of meaning in which the terms of the Constitution could have a fixed meaning but a mobile reference. (11)

Contemporary semantic theory offers the judge or lawyer a difficult choice. If one wishes to maintain that the legal interpreter is solely concerned with meaning, then one may well be stuck with a single fixed meaning associated with the meaning of the words at the time they were uttered. This approach, however, should not offer much consolation to those so-called textual originalists such as Justice Scalia of the United States Supreme Court, since it will be argued that consistent with such an approach, the Constitution will have a narrow meaning in regard to substantial numbers of major legal controversies in contemporary times. It might even be said that the Constitution has no meaning in regard to these contemporary legal controversies. A purist would suggest that the Constitution means what it says and cannot therefore be accurately described as having no meaning. Nevertheless, the point is that these are controversies which are, by their nature, matters upon which the Constitution and its drafters have never spoken, and therefore, which have never been dealt with. In that sense, and in regard to these issues, the Constitution has no meaning.

The consequence, it will be argued, is that the process of constitutional interpretation must for practical reasons eschew a concern solely with the meaning of the document strictly understood. However, once the process of judicial decision making on constitutional cases is severed from the meaning of the Constitution, a new problem arises, namely, how or in what principled fashion can judges be constrained by the constitutional text. No theory presently on offer solves this problem.

CONNOTATION/DENOTATION

The connotation/denotation concept was explained by Justice Windeyer in The Queen v. Commonwealth Conciliation & Arbitration Commission; ex parte Professional Engineers Association (12) in the following terms:

We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes. (13) The use of this distinction in constitutional interpretation was also explained by Justice Dawson in Street v. Queensland Bar Association. (14) His Honour there said:

I speak of 1900, the time of Federation, because it is in accordance with the meaning given at that time that the limits of the phrase "trade and commerce" must be ascertained. The essential meaning of the Constitution must remain the same, although with the passage of time its words must be applied to situations which were not envisaged at federation. Expressed in the technical language of the logician, the words have a fixed connotation but their denotation may vary from time to time. That is to say, the attributes which the words signify will not vary, but as time passes new and different things may be seen to possess those attributes sufficiently to justify the application of the words to them. (15) His Honour thereafter traced the technical use of the terms back to John Stuart Mill's A System of Logic and usefully collects the High Court decisions since 1908 that have relied upon the distinction.

In Re Wakim; ex parte McNally, (16) Justice McHugh accepted the distinction, noting its similarity to the distinction drawn by Ronald Dworkin between "concepts," being the abstract notions expressed in the Constitution, and their application to present day "conceptions." His Honour said:

Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding...