An Invitation

Can those who endorse “living tree” constitutional interpretation tell us why, and what it entails?

When Benjamin Oliphant and I wrote our twin articles on originalism in Canada, we did our best to avoid normative conclusions other than a call for further reflection on, and greater consistency in, constitutional interpretation. But, for me at least ― I cannot speak for my co-author, of course ―, the normative inquiry seems like a natural step to be taken soon. (We’ll see when and in what form.) And, right now, my preliminary view is that Canadian constitutional jurisprudence ought to be (more) originalist (than it is now), because the alternative, the “living tree” approach to constitutional interpretation, suffers from various problems.

But before really getting into an argument about why this is so, I probably need to understand what it is that I want to argue against better. I have no wish to attack a straw-man. And there is a greater than usual danger of doing so in debates about constitutional interpretation. As Mr. Oliphant and I have shown, originalism is often poorly understood in Canada, and only obsolete or caricatured versions of it are criticized. In part, this is as no doubt due to a lack of a good Canadian review of what originalism is, which is why we devoted a good deal of space and effort to producing one. Unfortunately, I am not sure that there is an equivalent statement of the views of the other side in this debate either.

So, I would like to ask for my readers’ help. Presumably, many of you think that the constitution ought to be understood as a “living tree”. That’s what the Supreme Court often tells us, after all, even as it not infrequently does something else altogether. It would be very helpful, in advancing the debate about constitutional interpretation, if both sides articulated their views clearly. Presumably, the “living tree” camp has had a while to form its beliefs, even if it has not had much need to explain them in recent decades. Can some of those in this camp take a stab at doing so now?

One way of going about it would be to bring into sharper focus the living constitutionalists’ objections to originalism. To do that, they might address some of the issues that Lawrence Solum describes, in a most helpful recent post on his Legal Theory Blog, as being the main ones “that divide originalists and living constitutionalists.” Here they are, reformulated as questions for living constitutionalists and adapted to the Canadian context:

1) Do you think that the linguistic meaning (communicative content) of the constitutional text changes over time after its entrenchment (say in 1867 or 1982)?

2) Do you think that the Supreme Court, Parliament, and the provincial legislatures should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?

3) Do you think that the original meaning of constitutional text is either radically indeterminate or so underdeterminate that originalism would not meaningfully constrain constitutional practice?

4) Do you think that the original meaning of our constitutional texts is epistemically inaccessible (i.e. we cannot know, or at least show that we know, what it is)?

5) Do you think that that judges are incompetent to investigate original meaning or so biased that they will be unable to act in compliance with original meaning (perhaps even if dispassionate scholars could do so)? In other words, do you think that originalist judges would simply be ideologues?

(Professor Solum asks an additional question, whether those who reject originalism want to “simply retire the Constitution as a framework of government”, but I’m pretty confident that few if any Canadian living constitutionalists do. Perhaps they have other objections to originalism though. If so, I would love to hear about those too.)

Beyond clarifying their objections to originalism, it would be great if some proponents of “living tree” constitutional interpretation clearly articulated their positive commitments or beliefs. To this end, I would like to suggest a few more questions, though I do not mean the list to be exhaustive:

6) Is updating constitutional meaning the exclusive prerogative of courts, or can other institutions (Parliament, the legislatures, the Crown) do it too? Why? If political actors can “actualize” constitutional meaning, should the courts defer to their attempts to do so?

7) When courts or other constitutional actors update constitutional meaning, what should they be taking into account? There are several possibilities: judicial precedents; popular opinion; the rules or principles expressed or implicit in non-constitutional law (perhaps especially legislation) as it stands from time to time; the judges’ own philosophical beliefs; perhaps others.

8) Are there any constraints on courts or other constitutional actors updating constitutional meaning? What are they? Are such constraints useful or indeed essential?

I am not being facetious here. When I say that these are questions to which I do not know and would like to learn the answers, I mean it. They are big questions, of course, and you might think that to answer them in an appropriately serious fashion you would need to write an article, or even a book, and have no time for that. Fair enough. Or you might make that your next project, in which case I will be looking forward to reading you whenever you are ready! But if you would like to attempt some short answers, that would be fantastic. I would be delighted to publish them, if you are ok with me doing so, or I will keep them for my own edification. It’s all up to you.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

7 thoughts on “An Invitation”

  1. Quick comment, before a more substantive one…

    Your post is premised on the idea that the “living tree” metaphor is incompatible with originalism (properly understood). I would dispute that. Edwards is a totally originalist decision. The “tree” is the whole system of Canadian governance and no originalist disputes that governments find new ways to exercise their powers, citizens new ways to exercise their rights and courts are confronted with new disputes about the relationship between these things. To be a little anachronistic, the text is the DNA of the tree. Justice Cannon in the SCC version of the Labour Conventions Reference said the compact of the provinces was the “soil” in which the tree grew.

    In terms of modern originalist theory, there is Jack Balkin’s “Living Originalism”, which would undoubtedly have a tree on the cover if he was Canadian.

    1. I think that as Solum says, some versions of originalism (to which I am more sympathetic) are compatible with some versions of living constitutionalism (which I find more plausible). But I suspect, or at least suppose, that many Canadian living constitutionalists would deny that their views are compatible with originalism; in its more extreme articulations, the living tree seems to reject any sort of what Solum calls the “fixation thesis” and/or “constraint principle”. The point of this post is in part to try to understand whether level of support there is for these more extreme views, as opposed to the compatibilist ones.

      1. My impression, though, is that the “originalism” that most users of the “living tree” metaphor reject is a caricature. So it is hard to know if they would reject compatibilism if they understood originalism the way Solum explains it.

  2. More substantively, here are what I think are the best objections to “new originalism”:

    1. Following on from your/Solum’s #1, I think a lot of skeptics would dispute that the distinction between “linguistic meaning” and “application meaning” (or between interpretation and construction) makes sense. The more philosophically inclined would point to theories of meaning that are about use (Wittgenstein, Millikan, arguably Putnam). More practical lawyer-types would say it is a distinction that lawyers don’t actually use and would never work in practice. A legal term’s meaning just is the cases it decides. I don’t agree with this, but I don’t think it is a straw man.

    2. If they accept the distinction at all, 2 is a hard one for anti-originalists. But they can make a more sensible argument that *if* all the actors in the political/legal system have in fact overridden the communicative content of the text, *then* it isn’t obviously a good idea to try to go back now. Let’s suppose Parsons is wrong, and the 1867 Act meant the authority to regulate economic life –as opposed to make technical changes to the law of contract of the sort the common law and civil law disagree about– is solely in the hands of the federal government. I don’t know if this is true, but it is plausible. Trying to implement that principle now would cause chaos and probably the secession of Quebec. There are enormous reliance interests that only a fanatic would say should be hostage to better historical research.

    3. It is plausible that for the parts of the Constitution everyone argues about (ss.91/92, the Charter, s. 35), original semantic meaning resolves no cases. The contending sides in Borowski and Morgentaler were in the same linguistic community as the framers of the 1982 constitution, and their disagreement was not linguistic. When they argued about whether a fetus was a person, they had a substantive disagreement, not a disagreement about language. Arguably, very few Charter, aboriginal rights or division-of-powers cases turn on “communicative meaning.” So, yeah, without embracing weird post-modernist views of language, I think you could plausibly say the communicative content of the written constitution is too underdetermiante to be a meaningful constraint on judges.

    4. As you know, there are big philosophical debates about how accessible meaning from the past is. You add in the fact that in Canada’s case we have to consider multiple linguistic communities and, in the case of historic treaties that are constituionalized by s. 35, arrangements where the written text is solely the product of one side of the bargain, there are genuine issues about epistemic accessibility.

    5. People, including judges, exhibit motivated reasoning. So without ascribing bad faith, it would indeed be plausible that if public meaning originalism were universally adopted, it would not resolve ideological disagreements between judges. The examples of Antonin Scalia and Clarence Thomas are not good ones for anti-originalists.

    6. As a descriptive matter, at least, political actors definitely do change constitutional practice, and sometimes courts go along with it. Probably most critics of originalism would approve of this in some cases (when all levels of government after the war decided to circumvent the Unemployment Insurance Reference) and not in others.

    7. Everybody’s got a theory about this one, except the pragmatists whose theory is not to have a theory. Once you accept that originalism doesn’t resolve “construction”, then originalists are no better off than anyone else.

    8. Descriptively, there are non-textual limits on what a final court can do based on both its need to preserve public legitimacy and its institutional inability to be proactive. The Supreme Court would find it hard to declare war on Syria, for example. These constraints don’t really depend on text and indeed it might feel a need to walk back Jordan, for example, even though it has obvious textual warrant to decide what a “reasonable time” for trial is. On the other hand, decisions with truly dubious textual basis, like the Secession Reference, might be extremely secure.

    1. I generally agree with Gareth’s (1). If anything, though, I would add that, from a linguistic point of view, even the best originalists don’t actually follow through with the application/linguistic meaning distinction in their considered accounts. So, e.g., Lawrence Solum’s “semantic” originalism is nothing of the kind, since it would ask us to enrich communicative content with cooperative implicatures when that is required by the method of triangulation. A better presentation of the argument would either admit the point and enlargen the scope of the “semantic” theory to include near-side pragmatics, or find some other non-semantic way of presenting the aims and motives behind the theory. FWIW, I think the latter option would be most perspicuous and would do the most honor to the originalist intuition, but saying more than that would require an essay.

      (2) depends on what kinds of case we are talking about, and what sort of justification we purport to offer with respect to it, and what you mean by “override”. One salient difference is between communicative content that changes because of a corresponding change in background conditions (i.e., related to global changes in perspective and fact), and a change in content that is determined by the discretion of the Court with respect to the proper aims of statute or caselaw. So, e.g.: in the Persons case, the meaning of “person” is radically different in 1945 as opposed to 1845 because many substantial background assumptions (e.g., about property ownership, theories of sexual psychology, etc.) have changed. It is not just that the Privy Council found the caselaw disagreeable — on my reading, it is that they noted that the givens of a preamble had changed.

      For the sake of argument, I’d be happy to side with originalists on the remaining questions (3-5) by answering ‘no’. I have no doubt that originalists can come up with ways of accommodating the points made above (e.g. in triangulation), though in that case the burden of proof will be on the originalist to offer some remarks about what they think is at stake in continued disagreement. Huscroft and Waluchow do not think their doctrines are terribly far apart, after all.

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