Justice McHugh, Representative Government and the Elimination of Balancing

This article critically examines Justice McHugh’s use of the idea of representative government, an idea that has been crucial to the development of the implied freedom of political communication in the High Court. According to Justice McHugh, the Court ought to limit itself to what he calls the ‘constitutionally prescribed system of representative government’, a conception ostensibly grounded upon the text and structure of the Constitution. Recently, Justice McHugh has further concluded that limiting the implied freedom in this way requires the Court to avoid ‘balancing’ the constitutional interest in freedom of political communication against the social value to be achieved by the legislation under examination in any particular case. This article discusses these limits and critically examines both the coherence and sustainability of this inference. It is argued that the qualified and limited nature of Justice McHugh’s proposal represents in principle a coherent and sustainable means by which the High Court's reliance upon extra-constitutional value judgments can be minimised, although not entirely eliminated.