A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality
journal contributionposted on 29.10.2019, 09:09 authored by Rebecca Welsh
The interpretation of the separation of federal judicial power derived from Chapter III of the Constitution is as hotly debated as it is fundamentally important. Two key viewpoints have emerged in this debate, formalism and functionalism. A formalist test focusing on defi nitional characteristics governs the permissible powers of federal courts. A functionalist test looking to whether a power is incompatible with institutional independence and integrity limits the powers of State courts and of judges personae designatae. A rare point of consensus between the two viewpoints, and the central pillar of my critique, is that Chapter III is purposive and should be interpreted to achieve judicial independence and impartiality. This paper queries which method of interpretation can best achieve the independence and impartiality of the federal judicature. The analysis highlights the inherent strengths and weaknesses of each approach and ultimately leads to the identifi cation of a preferred approach I call ‘purposive formalism’. Purposive formalism is a two-tiered method harnessing the strict formalist framework and a compatibility test. It is proposed as a legitimate and signifi cant step forward in the interpretation of Chapter III to achieve the independence and impartiality of the federal judicature.