Abstract
There are two interacting aspects in which the term “purpose” may be used in constitutional law — “constitutional purpose” and “legislative purpose.”1
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“Legislative purpose” is to be distinguished from “legislative motive” or “legislative intent.” The latter would be better expressed as “the legislators’ motive or intent,” and is irrelevant to a determination of constitutional validity. For one thing, what the legislators intended to achieve or thought they had achieved, may well turn out to be substantially different from what their enactment does achieve in practical operation, and both of these may be different from what a court of law, in interpreting the language of that enactment, may deem it to have achieved. Again, the intent or motive of the minority in the legislature who unsuccessfully voted against the enactment of the statute in question is clearly something different from the intent of the majority. “[T]he legislature, being a composite body, cannot have a single state of mind and so cannot have a single intention.” — Payne, The Intention of the Legislature in the Interpretation of Statutes, (1956) Current Legal Problems, 96, 97-98. Once the statute becomes a valid enactment of the legislature in point of form, these various “intents” are replaced by the “legislative purpose” of the statute, which is a matter for consideration only in respect of its own terms taken in relation to the purposes and terms of the constitution. While the “legislative history” of the statute will not therefore be controlling in a determination of its legislative purpose or of its validity, it may, under the rules of procedure in certain systems, be allowed to throw some light on that process.
— nor should the court substitute its own judgment for that of the legislature as to whether this exertion of legislative power should have been attempted at all. This is the properly limited meaning to be given to declarations that a court is not concerned with “the policy behind a statute” or with “legislative policy.”
Borden Co. v. Borella, 325 U.S. 679, 685 (1945), per Stone C.J., dissenting.
There may often be dispute as to what evidence a court may take cognizance of in establishing the nature and existence of these requirements. Such evidence may be classified broadly as “non-legal” — e.g. economic or sociological data and statistics — a discussion of which is outwith the scope of this work, and “legal.” Within this second category there may be judicial fluctuation between applications of a principle of “presumed validity” — placing the onus on the one who challenges the constitutionality of an enactment to rebut the presumption by submission of such evidence as the court will accept under its rules of procedure — and expansion or contraction of what may be deemed to be within “judicial notice” without any requirement of supporting evidence, as, for example, a supposed general “freedom of contract.” See Mundell, Tests for Validity of Legislation under the British North America Act, 32 Can. B. Rev. 813, 838-40 (1954); Legislative Reference Service, Library of Congress, (Corwin Ed.), The Constitution of the United States of America 975-80 (1953); Nicholas, The Australian Constitution, 316-21 (2nd. ed., 1952); Macdonald, Constitutional Interpretation and Extrinsic Evidence, 17 Can. B. Rev. 77 (1939); Corry, The Use of Legislative History in the Interpretation of Statutes, 32 Can. B. Rev. 624 (1954); Note: Social and Economic Facts — Appraisal of Suggested Techniques for Presenting Them to the Court, 61 Harv. L. Rev. 692 (1948).
Cf. Australian Communist Party v. The Commonwealth, 83 Commw. L.R. 1, 223 (1951), per Williams J.; Nebbia v. New York, 291 U.S. 502, 539 (1934), per Roberts J.
Similarly, in the field of private law, as regards the question of causation in the law of delictual or tortious liability, the doctrine of “foreseeableness,” particularly where this is expressed as “reasonably foreseeable,” is simply a terminating category of interpretation introduced to avoid endless consideration of a chain of “causation.”
Thus it is frequently ass rted in the field of taxation and in many others, that “what cannot be done directly, cannot be done indirectly”: McCulloch v. Maryland, 4 Wheat. 316, 423 (1819), per Marshall C.J.; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91, 100 (P.C.), per Viscount Haldane; Wragg v. New South Wales, 88 Commw. L.R. 353, 387-88 (1953), Per Dixon C.J. This may be alternatively expressed as that “A colourable device will not avail.”: Ladore v. Bennett, [1939] A.C. 468, 482 (P.C.), per Lord Atkin. In contrast, however, see City of Melbourne v. The Commonwealth, 74 Commw. L.R. 31, 47 (1947) per Latham C.J.: “But the Commonwealth Parliament may exercise the powers which it does possess for the purpose of assisting in carrying out a policy which may affect matters which are not directly within its legislative powers.”, and the qualification contained in the holding of Brewer J. in Fairbanks v. United States, 181 U.S. 283, 294 (1901) that “what cannot be done directly because of constitutional restriction cannot be accomplished indirectly by legislation which accomplishes the same result.” (Emphasis supplied.) See Singh, “What Cannot be Done Directly Cannot be Done Indirectly.” 32 Austl. L.J. 374, 33 Austl. L.J. 3 (1959), and supra, Chapter 7, pages 95-98.
A broad generality in meaning may sometimes degenerate into a confused vagueness of application. The term “excise” for example, appears to have suffered such a decline.
Australian Textiles Pty. Ltd. v. The Commonwealth, 71 Commw. L.R. 161, 178 (1945), per Dixon J.
Freeman v. Hewit, 329 U.S. 249, 253 (1946); Murphy v. C.P.R., [1958] Can. Sup. Ct. 626, 642; James v. The Commonwealth, [1936] A.C. 578, 630 (P.C.).
Bank of New South Wales v. The Commonwealth (Bank Nationalization Case), 76 Commw. L.R. 1, 387 (High Court); Breard v. Alexandria, 341 U.S. 622, 647 (1951).
James v. The Commonwealth, supra, note 10, [1936] A.C. at 631; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 229 (1899).
Champion v. Ames, 188 U.S. 321, 355 (1903).
The Commonwealth v. Bank of New South Wales (Bank Nationalization Case), [1950] A.C. 235, 311 (P.C.).
A.-G. for Ontario v. A.-G. for Canada (Local Prohibition), [1896] A.C. 348, 363 (P.C.).
The Commonwealth v. Bank of New South Wales, supra, note 14; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] Can. Sup. Ct. 1, 25.
Leisy v. Hardin, 135 U.S. 100 (1890); W. & A. McArthur Ltd. v. Queensland, 28 Commw. L.R. 530 (1920), Wilcox Mofflin v. New South Wales, 85 Commw. L.R. 488 (1952); A.-G. for Canada v. A.-G. for Ontario (Labour Conventions), [1937] A.C. 326 (P.C.), Murphy v. C.P.R., supra, note 10.
Wickard v. Filburn, 317 U.S. 111 (1942).
Reference re the Farm Products Marketing Act, R.S.O. 1950 c. 131 as amended, [1957] Can. Sup. Ct. 198, 205, 211; Murphy v. C.P.R., supra, note 10, [1958] Can. Sup. Ct. at 638.
Mc Carter v. Brodie, 80 Commw. L.R. 432 (1950).
The Commonwealth v. Bank of New South Wales, supra, note 14, [1950] A.C. at 305.
Supra, Chapter 5, page 51.
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© 1964 Martinus Nijhoff, The Hague, Netherlands
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Mackinnon, V.S. (1964). Purpose and Effect. In: Comparative Federalism. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8910-1_13
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