ABSTRACT
This chapter explores an alternative constitutive theory of the foundations of section 116. It may be called the safeguard against religious intolerance theory. It explaines how Australian constitutionalism was non-theorised in the sense that questions of political and constitutional theory were, on the whole, not actively engaged in by the framers of the Australian Constitution. Jeremy Waldron and Melissa Williams offer a useful starting point in their introduction to an edited collection organised by the American Society for Political and Legal Theory, considering the idea of toleration. The neutrality theory and the safeguard against religious intolerance theory are different. The theme of pragmatism running through the history of the origins of section 116 also points to the safeguard against religious intolerance theory. The precise language of section 116 was not the result of careful deliberation or a considered choice of words, as might be expected if a conceptually rich theory of the origins of the provision was to be appropriate.
