The Communist Party Case Revisited: Constitutional Review in the 2020 Term

Abstract

This article examines the 2020 decisions of the High Court on constitutional law through the lens of the Communist Party Case, taking the 70th anniversary of that decision as an opportunity to reflect on the ongoing utility and efficacy of the constitutional principles it espoused. It focuses on the way in which constitutional meaning may be informed by ordinary legislation, the common law and the rich backdrop of principles and values against which the Constitution was drafted — particularly, the rule of law. In doing so, the article highlights enduring questions about the scope of the High Court’s power to remedy those deficiencies in the Constitution that reveal themselves over time.