Randy Barnett and Evan Bernick’s important essay “The Letter and the Spirit: A Unified Theory of Originalism” has been available for some time already, but it is still worth a comment here. Professors Barnett and Bernick have great ambitions for their project, hoping that it will serve to rally and reconcile the adherents of most if not all of the various forms of originalism ― which Benjamin Oliphant and I once described as “a large and ever-growing family of theories of constitutional interpretation” ― and rather fractious one, too. Indeed, although Professors Barnett and Bernick also think that their approach can serve to shore up the distinction, sometimes said to be evanescent, between originalism and living constitutionalism, a version of their theory, albeit justified on grounds different from those that they put forward, might serve to reconcile originalism with much of what the Supreme Court of Canada says and does about constitutional interpretation.
The “unified theory of originalism” seeks to achieve what others, it is often said (including by at least some originalists), failed to do: constrain originalist judges, in particular in those cases where the original meaning of the constitutional text is not enough to do dispose of the dispute. “New originalist” theories, such as those previously put forward by Professor Barnett, sharply distinguished constitutional interpretation ― “the activity of ascertaining the communicative content of the text” (3) ― and constitutional construction ― “the activity of giving that content legal effect” (3). The text, as originally understood, might not tell us how a given dispute ought to be settled, and so a court would need to develop further rules, consistent with but not dictated by the text, to resolve the controversy. But originalist theories that accepted the interpretation-construction distinction tended to have little to say about how courts should go about articulating these rules. Indeed, Professor Barnett previously argued that constitutional construction is not an originalist activity at all, since it is, by definition, not a function of the original meaning of the constitutional text.
Not so, Professors Barnett and Bernick now argue: construction not only can but must be originalist. When “the letter” of the constitution, the original public meaning of its text, understood in its context, is not enough to dispose of case, the court’s construction of the constitution must be guided by its original “spirit” ― that is, the purposes animating the text being applied, or indeed the constitutional text as a whole. These purposes are not the intentions of the constitution’s framers as to the effects it would produce in addressing the specific dispute at hand ― which will often be non-existent, and might be inconsistent with the text even when they exist. Rather, they are “the functions” that the constitutional provisions being applied were meant to serve “at the time each constitutional provision was enacted”. (15) Although this approach to constitutional construction is thus a form of purposivism, the purposes to which it gives effect are not those of the court or of society at the time of adjudication, but those of the constitution’s designers. The focus is on “the design principles that explain the specific provisions and general structure of the Constitution”, (41) understood at the appropriate level of abstraction.
The reason why this approach to construction is justified, indeed required, has to do with the nature of the relationships between the judges, the constitution, and the citizens subject to it. According to Professors Barnett and Bernick, judges (as well as all other government officials) are fiduciaries; they exercise discretionary powers and their “decisions … bring the government’s coercive power to bear upon us to our detriment, or that prevent the government’s power from being used to our benefit”. (19) Judges enter into their fiduciary relationship with the people by swearing an oath “to support this Constitution” and, like parties to a contract, they must perform their undertaking in good faith. Specifically, when the letter of the constitution leaves them with discretionary decisions to make, judges must not seek to exercise their discretion so as “to recapture foregone opportunities” (24) to implement their own constitutional preferences instead of “supporting” the constitution that was ratified (and amended) by the people, and so “to change the Constitution through adjudication” (31).
This justification might be of limited interest outside the American context. While thinking of government officials as fiduciaries might be helpful, Canadian judges do not swear “to support” the Canadian constitution. In fact, their oaths do not refer to the constitution at all, but rather to their “duties” or “powers and trusts”. As for the notion of good faith, it is a latecomer to Canadian contract law, or perhaps a foundling, and was no part of it in either 1867 or even 1982 ― though arguably that’s beside the point, because the Canadian judicial oaths do require judges to act “faithfully”. So I’m not sure if thinking of judges as having explicitly foregone opportunities for constitutional rectification in the course of adjudication is especially helpful in Canada. Certainly many Canadian judges do not think of themselves as having made any such undertaking. Having repeatedly argued that the state cannot dictate the contents of people’s conscientious obligations ― whether in the case of the citizenship oath or in that of the Law Society of Ontario’s “statement of principles” ― I will not insist on telling judges how to think of theirs.
But that doesn’t mean that Professors Barnett and Bernick’s ideas about how judges ought to engage in constitutional construction are irrelevant to Canada. The case for requiring fidelity to what they call the spirit of the constitution ― to the purposes for which the constitution’s provisions were designed and to what Lord Atkin, in the Labour Conventions Reference, described as “its original structure” ― does not, I think, depend on the wording and import of Canadian judicial oaths, or on the applicability of contractual principles of good faith. It rests, rather, on the nature of activity of judging and of interpretation. The idea that interpreters are to identify the purposes of legislation, the reasons for which it was enacted, and apply legislation in a manner that furthers these purposes is a longstanding one. As Lon Fuller pointed out in a passage from The Morality of Law that I have discussed here, it was captured in Haydon’s Case, (1584) 3 Co Rep 7a:
for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
To apply this to constitutional rather than statutory texts, some minor adjustments are in order, notably to account for the fact that constitutions are not (primarily) enacted against a common law background, but the substance of this principle is still relevant in the constitutional context ― all the more so since Canadian constitutional texts are, for the most part, statutes in form.
And indeed the Supreme Court has often endorsed a purposivism that appeals to the sort of originalist considerations on which Professors Barnett and Bernick would have the courts focus. For example, in R v Big M Drug Mart,  1 SCR 295, Justice Dickson (as he then was) held that that
[t]he meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. … [T]he purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. (344; underlining in the original, paragraph break removed.)
To say that courts are to look for the functions constitutional provisions were intended to have at the time of their framing is simply a different way of putting the same thing. And this passage from Big M is not unique, as Mr. Oliphant and I show in the article referred to above, and also in the follow-up piece looking at “Originalist Reasoning in Canadian Constitutional Jurisprudence“.
Of course, notwithstanding Justice Dickson’s admonitions in Big M, the Supreme Court of Canada has not been consistently originalist ― far from it, though as Mr. Oliphant and I demonstrate, it has been more originalist than living constitutionalists in Canada and elsewhere care to admit. The warning, arguably implicit in Justice Dickson’s comments, and explicit in at least Supreme Court cases warning against judicial re-writing of the constitution in the name of purposivism, which Professors Barnett and Bernick reiterate, has gone unheeded in some noteworthy Canadian cases, such as those that gave “constitutional benediction” to the alleged rights of organized labour. Precedents, such as Big M, articulating what might well be the right constitutional theory are no guarantee that this theory will be applied in a principled or consistent fashion. As William Baude suggests in a recent essay exploring originalism’s ability to constrain judges, “originalism can still have constraining power, but mostly for those who seek to be bound”. (2215) But those members of the Canadian judiciary who do indeed seek to be bound by the constitution could, I think, usefully consider the argument advanced by Professors Barnett and Bernick as a guide in their endeavours.
4 thoughts on “Repurposing Constitutional Construction”