Restraint and Radicalism: Sir John Latham's Constitutional Exceptionalism

Abstract

This article tracks the development of Sir John Latham's constitutional doctrine and asks if we can identify a conceptual explanation for it. Latham was the fifth Chief Justice of the High Court of Australia (1935-52). But he set out a vision of the Constitution in his earlier political career, advocating its sweeping reform. As a judge, Latham stridently avoided drawing even modest constitutional implications in the interpretive process. But the charge that his literalistic reading of the Constitution masked a politically-driven jurisprudence is flawed. Latham's interpretive formalism was primarily rooted in a much deeper fixation over public perceptions of legal integrity. Paradoxically, despite his grave concerns over the stability of the constitutional order, Latham's restraint permitted a radical expansion of Commonwealth power and, in turn, transformation of the federal balance. How did these countervailing forces - restraint and radicalism - arise, and then combine, to forge Latham's exceptional constitutional doctrine?