Arguing against Originalism Badly

Noura Karazivan’s flawed argument against using originalism to understand constitutional structure

Noura Karazivan has recently published an article called “Constitutional Structure and Original Intent: A Canadian Perspective” in the University of Illinois Law Review. Prof. Karazivan raises interesting questions: what is, and what should be, the mix of originalism and living constitutionalism in the Supreme Court’s treatment of constitutional structure ― understood as the set of institutions that make up Canada’s government, and the relations among them. Unfortunately, prof. Karazivan’s argument suffers from her failure to engage seriously with contemporary originalist thought, or indeed to take note of recent work exploring it in the Canadian context, and her answer to the normative question, which decisively favours living constitutionalism, is unsatisfactory.

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Prof. Karazivan’s starting point is an orthodox proposition: “[i]n Canadian constitutional law, there is no doubt that a broad, purposive, and progressive approach”, described by the famous “living tree” metaphor, “is preferred” for the interpretation of any and all constitutional provisions, (630) though she acknowledges that the Supreme Court uses other interpretive methods too. In addition to being used in the interpretation of constitutional text, living constitutionalism has played a crucial role in a number of decisions concerning constitutional structure. For example, in l’Affaire Nadon, Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, the Court’s “conclusion would probably have been different” had it not engaged in “actualizing” its place in the constitutional structure, and only looked “its role in 1875”. (648)

Yet in a couple of recent decisions, says Prof. Karazivan, the Court adopted a more originalist approach to constitutional structure, rather than the evolutionist one that it normally favours. Prof. Karazivan focuses on Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, but also mentions Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. In the former, “the Court greatly relied on the intent of the 1867 framers”, (646) who wished the Upper House to supply “sober second thought”. The Court disregarded the practice of partisan appointments to the Senate, the Senate’s contemporary role, and even “the impact of the enactment of the Constitution Act, 1982”, (647) which arguably transferred the role of protector of constitutional rights from the Senate to the judiciary. Meanwhile, in Trial Lawyers, the superior courts’ historic dispute-settling role was crucial to the decision.

Prof. Karazivan argues that the Supreme Court was wrong to resort to originalism in these decisions. She gives four reasons. First, she takes Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 to stand for the proposition that the judiciary is not bound by the intent of constitutional framers. Second, originalism can make no democratic claim in Canada, since the Constitution Act, 1867 was the work of “a group of white men, mostly Parliamentarians, concerned with the preservation of British institutions on Canadian soil”, while “[t]he constitutional negotiations in 1982 were even less ‘democratic'”. (651; square quotes in the original) In short, “Canada does not have a great constitutional moment”. (651) Third, the Canadian constitution is simply too rigid for the courts not to update it from time to time. Finally, a “living tree” approach to interpretation yields a fuller understanding of both the constitution as a whole and its various components, as well as being “in line with Canadian constitutional structure and tradition”. (654)

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As I said at the outset, this is unconvincing. Prof. Karazivan repeats pieties about the superiority of living constitutionalism to originalism without understanding what originalism actually is. Although she refers, in passing, to the distinction between originalist interpretation that seeks the intent of constitutional framers and that which centres on the constitution’s original public meaning, her article focuses on original intent ― which relatively few contemporary originalists are still committed to. Prof. Karazivan also enlists a number of cases, such as the BC Motor Vehicle Act Reference and Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 SCR 669, in support of the proposition that living constitutionalism is the dominant approach to interpretation in Canada, while originalism has been rejected. Yet Benjamin Oliphant and I have shown that not only do these cases not support the claim of a wholesale rejection of originalism, but they are arguably (in the case of the BC Motor Vehicle Act Reference) or quite clearly (in the case of Employment Insurance Reference) consistent with public meaning originalism.

More broadly, we have also shown that the Supreme Court has never squarely rejected the more plausible forms of originalism, and indeed that various forms of originalist reasoning make frequent, if erratic, appearances in the Court’s reasoning. In particular, as both we and J. Gareth Morley and Sébastien Grammond have observed, originalist reasoning features heavily not only in the Senate Reform Reference, which prof. Karazivan decries, but also in the Nadon Reference, which she commends. Mr. Oliphant and I have also pointed out that cases on the jurisdiction of superior courts have had an originalist bent well before Trial Lawyers. In short, at the level of description, prof. Karazivan’s story, in which a largely living constitutionalist Supreme Court issued a couple of aberrant originalist decisions is much too simple.

Prof. Karazivan’s normative argument is even weaker. Her appeal to the authority of Justice Lamer’s opinion in the BC Motor Vehicle Act Reference has to be set against not only the arguable  consistency of this opinion with public meaning originalism, but also its author’s resort to more explicitly originalist reasoning elsewhere. For instance, in B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 he wrote that

[t]he flexibility of the principles [the Charter] expresses does not give [the courts] authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. (337)

Prof. Karazivan’s denial that Canada had “a great constitutional moment”, and her insistence that the drafting of the Constitution Act, 1867 (by “white men”) and that of the Constitution Act, 1982 (presumably by persons unknown) would be simply bizarre were they not sadly typical of the ritual denigration of Canadian constitutional history in which even Supreme Court judges have been known to engage. The truth, though, is that Canada did have not one, but two great constitutional moments ― in the mid-1860s and the early 1980s. My friend Alastair Gillespie has been exploring the first of these in a compelling (and ongoing) series of papers for the Macdonald-Laurier Institute, which, as I have written in a recent post for the CBA National

make clear [that] the Fathers of Confederation wrestled with such seemingly contemporary questions as whether diversity is a source of weakness of strength for a political community, what claims such a community may legitimately make on minorities within its midst, and what rights these minorities may assert against the community. The settlement of 1867 was a remarkable achievement in this regard.

To be sure, the Fathers of Confederation were indeed white men ― as were those who took part in the framing of the US Constitution, to which prof. Karazivan does not deny the status of a “great constitutional moment”. This is one reason, among others, why I do not find the democratic case for originalism very compelling. But the sexism and racism of our 19th-century forbears is not a reason for dismissing the substance of their achievements; and least of all for allowing a group nine men and women, who are if anything even less representative of society than the Fathers of Confederation on every dimension except for gender, the power to re-write the constitution. As for the enactment of the Canadian Charter of Rights and Freedoms, it was preceded by wide-ranging public consultations which resulted, for example, in the adoption of section 28 at the urging of feminist groups, as Kerri Froc has shown. Why prof. Karazivan claims it was undemocratic, I cannot understand.

That the constitution is rigid and difficult to amend is a feature, not a bug that needs to be removed by the backdoor expedient of judicial reinterpretation. The politicians who came up with and agreed to the amending formula in Part V of the Constitution Act, 1982 obviously thought it was flexible enough. Why were they wrong? That said, had prof. Karazivan taken public meaning originalism, and in particular the work of those originalists who recognize the distinction between constitutional interpretation and constitutional construction, seriously, she would have realized that many, perhaps most originalists do not advocate for a static constitutional law. They insist that the meaning of the constitution’s text is fixed, but recognize that this text can in fact be applied to facts and circumstances quite unforeseen at the time of its drafting through the development of constitutional doctrine.

Finally, I fail to see how living constitutionalism can lead us to a better understanding of the constitution. The argument, insofar as I understand it, seems question-begging. Saying treating the constitution as a “living tree” allows us to understand it better presupposes that the object of constitutional interpretation is the contemporary constitution rather than the intention of the constitutional text’s drafters or its original public meaning ― which is very much the point in issue. To be sure, Canadian constitutional tradition is laden with denunciations ― usually quite ignorant denunciations ― of originalism. But as the emerging Canadian scholarship that takes originalism seriously shows, these denunciations do not tell us the whole story. Nor can they serve as a normative justification in the absence of any more compelling ones.

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As I mentioned at the outset, prof. Karazivan addresses an important question, that of the place of originalism in the Supreme Court’s understanding of constitutional structure. Unfortunately, she does so in a way that reflects a simplistic or outdated understanding of originalism, and as a result oversimplifies relevant precedents and offers thoroughly unconvincing arguments against originalism. That her arguments do not succeed does not show that the Court is right to be as originalist as it is, or that it ought to be more so. That case remains to be made. But so does prof. Karazivan’s in favour of living constitutionalism. Her article does not advance it.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

8 thoughts on “Arguing against Originalism Badly”

  1. I should read the article, but I can’t help but make a couple comments from your description:

    1. Why would a unconstrained living constitutionalist want to invoke “structure and tradition” as the most important desiderata of a constitutional theory? If the problem is the dead hand of the past, why would you care about tradition? Doesn’t the structure include an amending formula, which implies that there is *something* the courts can’t just change on their own?

    2. Trial Lawyers seems an odd case to complain about excessive originalism, since it is unusual for a s. 96 case in not looking at the historical record in the confederating provinces in 1867 (all of which had court fees and an ex forma pauperis exception).

    1. I suppose it’s always good to read the primary source, but I’m afraid you will find no answers to these very good questions there…

  2. Some interesting thoughts & trenchant criticism. Generally, and like many I suspect, I find the specifics of the differences between legal interpretive approaches challenging.

    One point on the history, agree with the general point but would add…Canada also had (at least) a 3rd ‘constitutional moment’, between the wars. It was arguably both more important for constitutional independence than Confederation in the 1860s, and set the stage to make possible later constitutional changes & later reforms in the 1980s.

    But even that might be selling our historical ‘constitutional moments’ short and a strong case could be made for several other periods too.

    1. That’s an excellent point, thanks! Though (ironically?) we have little in the way of text (except s 91(2A), or even institutions, to interpret “in light of” the inter-war constitutional moment. But that’s not to deny its historical significance.

  3. I can think of three interwar Canadian constitutional moments. The first is independence, which was a political fact as a result of WWI, but was legally accomplished by the Statute of Westminster. The UK Parliament would certainly have been happy to provide for domestic amendment but of course we couldn’t agree.

    The interwar period is also when we first had a polemical originalism movement (years before Bork and Scalia) in the form of the progressive assault in the Judical Committee’s jurisprudence. Ironically, academic constitutional law in this country was founded on the originalist slogan that Watson and Haldane had perverted the centralist handiwork of Macdonald and Cartier. This leads to the SCC becoming the final court of appeal after the war and to a partial success in the centralist revolution (which would likely have been complete but for the resistance of Quebec).

    The third was the transfer of thr Railway Belt in BC and all Crown land in Alberta and Saskatchewan from the federal government. That story also continues to reverberate in constitutional law.

    So at least the Statute of Westminster and the NRTA count as textual legacies and (if you are willing to ignore the final consumamation occurring postwar) the modern SCC as an institutional legacy.

  4. Having read the article, I have to agree that her arguments against originalism aren’t very good. But that’s not particularly unusual: Canadian legal academics generally don’t realize there is a case they need to meet.

    As you point out, from the originalist perspective, the amending formula is an argument against giving the Court the power to change the written constitution. There are five ways of amending the constitution and none of them include getting 5 justices out of 9. (Not even a Quebec veto!) Her other two arguments are mutually contradictory: she cites Lamer to say that the “people of Canada, through their elected representatives” gave judges the power to interpret the text in 1982 and then says 1982 wasn’t democratic, so why should we care what the people of Canada or their elected representatives thought.

    But that’s just typical. Canadian legal academics are taught that originalism is somewhere between phrenology and creationism in intellectual respectability, so there is no need for any arguments agains it to make sense.

    The contribution of the article is the way she elucidates the idea of a “Structural Analysis”. She says it involves (1) identifying an institution as part of the Canadian constitutional structure, (2) singling out features essential to its structuring and then (3) protecting those features from unilateral change by other institutions.

    I think that’s interesting and doesn’t necessarily conflict with a new originalist approach to the written constitution. Indeed, if the written constitution is itself an institution that is part of the constitutional structure, then it would follow that the judiciary cannot just alter its essential features unilaterally. That in turn implies some constraints from the written constitution and therefore some meaning it possesses that transcends the presentist fixations of a current majority of SCC justices.

    But taking her framework, there are also some questions she could explore. For example, why would some institutions (the provincial courts) get entrenchment while other institutions (local governments and school boards) do not? If the lesson of her test is that the essential features of the Senate (for example) can’t be unilaterally changed by the federal Parliament, how could the SCC update it to reflect contemporary values?

    1. I agree ― the questions about structural analysis are worth exploring. Her earlier piece in the McGill LJ is also of some interest. It’s unfortunate that people who would have something to contribute to a serious conversation invest themselves in defending weak (and indeed, as you point out, contradictory) positions that distract them from questions that they could otherwise have fruitfully investigated.

      1. To be fair, you get great Canadian constitutional theorists like Peter Hogg, Peter Russell or John Borrows being at least as dismissive. Hogg characterizes originalism as the belief that legislative history will always determine outcomes. This in the face of the notorious fact that Scalia (who surely counts as an originalist) waged a decades-long jihad against legislative history.

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