Deriving Constitutional Implications: The Role of ‘External’ Sources in the Text and Structure Approach

Abstract

The High Court applies the ‘text and structure approach’ when deriving constitutional implications. This requires implications to be drawn from the ‘text’ and ‘structure’ of the document. A particular line of criticism has been made by some scholars that frames this approach as a falsehood. According to these scholars, judges claim to be drawing implications solely from the ‘text’ and ‘structure’ but are, in fact, employing ‘external’ sources when carrying out this task. I argue that this criticism is misguided. Judges are using ‘external’ sources to help illuminate the ideas conveyed by, or contained within, the ‘text’ and ‘structure’. This means that their use of ‘external’ sources is not necessarily a circumvention of the text and structure approach but an accompaniment to it. The relevant scholars’ critique seems to be rooted in flawed conceptualisations of the Constitution’s ‘text’ and ‘structure’ and their ideational content. This work examines the problems with the relevant scholars’ critique and offers what I consider to be a more accurate explanation of the operation (and shortcomings) of the text and structure approach.