Double Aspect

A couple of papers about originalism, and a call for comments

As promised in my last post, I have something to show for my silence in the last few weeks. Benjamin Oliphant and I have been working very intensively on a study of originalism in Canadian constitutional law. In a nutshell, we argue that, contrary to popular belief, not only has the Supreme Court never really rejected originalism ― at least contemporary originalism, as opposed to the sort of originalism that existed 30 years ago or more ― as a mode of constitutional interpretation, but Canadian constitutional jurisprudence is, in reality, shot through with originalist reasoning. It is not, of course, thoroughly, much less systematically, originalist, but originalist arguments of various types appear in all manner of cases, and do so frequently enough that they cannot be dismissed as mere aberrations. We argue, therefore, that Canadian scholars and judges should stop ignoring both originalist theory and the originalist jurisprudence hiding in plain sight in the Supreme Court Reports, and start thinking about how to be more consistent and more principled in our use of originalist arguments.

The project grew as it advanced, and would have been much too long for a single article, so we ended up making two. The first paper is asks “Has the Supreme Court of Canada Rejected ‘Originalism’?” Here is the abstract:

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind. Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The second paper takes a more detailed look at “Originalist Reasoning in Canadian Constitutional Jurisprudence.” Here is the abstract:

We would love to have your comments, thoughts, suggestions, or even anathemas, as we work on getting these papers published. Let us know what you think!