A Constitution of Values? Principles and Values in the Commonwealth Constitution

Abstract Recent Australian public law scholarship has demonstrated an increasing interest in the theme of constitutional values. In the current paper, I seek to clarify the terms of the debate by defending a distinction between (i) constitutional principles, understood as relatively flexible legal norms which rest on text, structure and history and (ii) extra-legal values. My argument is framed initially through a critical discussion of Rosalind Dixon’s proposal for a ‘functionalist’ approach to constitutional interpretation, which ascribes a central place to values in judicial reasoning. The functionalist position, I contend, lacks a sufficiently clear distinction between, on the one hand, constitutional principles as legal norms and, on the other, extra-legal values of political morality. As a consequence, the functionalist appeal to ‘constitutional values’ tends to shift between a relatively modest supplement to purposive approaches to judicial interpretation and a more ambitious proposal for judges to promote ‘normatively attractive’ values. These claims are elaborated and refined through a comparative analysis of German constitutional jurisprudence and a recent example of an appeal to values by the High Court.