I would like to come back to the two cases I mentioned in yesterday’s post―A.-G. Canada v A.-G. Ontario,  A.C. 326, better known as the Labour Conventions Reference, and Missouri v. Holland, because they might tell us something about a problem much broader than the issue (important though it is in its own right) that they addressed, the ability of a federal legislature to legislate in order to implement a treaty if similar legislation would be, in the absence of the treaty, of the resort of state or provincial legislatures. The judgments in the two cases are an interesting comparison, being authored by two of the greatest judges of their respective countries (and of the common law world), less than two decades apart – and arriving at diametrically opposed conclusions. One apparent difference between the reasons Lord Atkin and Justice Holmes give for their respective conclusions lies in the interpretive methodologies they use. Could it explain the difference of outcomes?
Lord Atkin’s discussion of s. 132 of the Constitution Act, 1867, and his dismissal of the possibility that this provision justifies Parliament’s power to legislate in order to implement a treaty is remarkably formalist/originalist. S. 132 provides that “[t]he Parliament … of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.” The federal government argued that, in light of Canada’s accession to independence and becoming able to enter into treaties on its own (rather than as part of the Empire), which was not anticipated when the Constitution Act, 1867, was drafted and enacted, this provision should be interpreted as giving Parliament the power to implement not only imperial treaties, but also those concluded by Canada. Not so, says Lord Atkin: “it is impossible to strain the section so as to cover the uncontemplated event” (p. 7 in the document linked to). This from a body which, only a few years earlier, berated the Supreme Court of Canada for its originalism and refusal to “strain the section” in Edwards v. A.-G. Canada,  A.C. 124, better known as the Persons Case, famously insisting that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”
Now I actually think that Lord Atkin could have made a plausible principled argument for why s. 132 could not be applied to treaties concluded by Canada in its own capacity. Relative to the Canadian constitutional order, imperial treaties were external events; they could be imposed on Canada, without much regard for the usual framework of Canadian federalism and democracy. So arguably it did not matter much which legislature was given the power to implement them. By contrast, the implementation of Canadian treaties, the products of Canada’s own constitution, should respect this framework. (It is perhaps for this reason that s. 132 is found among the “miscellaneous” provisions of the Constitution Act, 1867, rather than along with the distribution of legislative powers in ss. 91-95.) Indeed, Lord Atkin might be hinting at something like this argument, mentioning a “distinction between … obligations imposed upon Canada as part of the Empire by an Imperial executive responsible to and controlled by the Imperial Parliament and … obligations created by the Dominion executive responsible to and controlled by the Dominion Parliament.” But Lord Atkin says it is “unnecessary to dwell upon” this, and it seems not to be the reason for his holding concerning the meaning of s. 132, which is purely what would now be called textualist or originalist.
By contrast, Justice Holmes in Holland explicitly rejects these interpretive methodologies (at 433):
when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.
A constitution, says Justice Holmes, should be interpreted in light only of today’s practical concerns. The treaty and legislation at issue concern migratory birds,
a national interest of very nearly the first magnitude … . It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. (435)
(Incidentally, although I am very far from being an expert on the topic, I do not recall any attempts to engage with these arguments in the literature dealing with originalism.)
But is drawing this contrast between Lord Atkin’s and Justice Holmes’s judgments enough to say that interpretive approaches explain their contrary conclusions? It might make sense to suppose that a textualist/originalist approach to the interpretation of federalist provisions of a constitution is likely to be more favourable to state or provinces, while a practical or principled one will favour federal governments. Changes in the way our societies function (in the economic realm especially) seem to dictate larger roles for central governments at the expense of local ones. Some have characterized the Supreme Court’s ruling in Reference re Securities Act, 2011 SCC 66,  3 S.C.R. 837, declaring unconstitutional the establishment of a federal securities regulator, as impractical and stuck in the 19th century.
Yet if one looks carefully at the reasons in the Labour Conventions Reference and in Holland, things are not so neat. Justice Holmes is a textualist when he parses the Supremacy Clause of Article VI of the U.S. Constitution for confirmation of the status of treaties, while Lord Atkin is mindful of principle and of practical concerns when he calls our attention to the reasons behind the federal division of powers in the Constitution Act, 1867, and insists that “[i]n totality of legislative powers, Dominion and Provincial together, [Canada] is fully equipped” (p. 10) to implement any treaty it enters into. Debating the merits, whether in terms of legitimacy or of consequences, of constitutional interpretive methodologies can be entertaining (as the American academia’s fascination with such debates attests). But it is questionable whether their real-life application is ever so pure as to make the ostensible choice of one methodology over another matter much.
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