Over at the historical blog Borealia, Bradley Miller ― no, not that Bradley Miller ― has a post defending the treatment of history in the Supreme Court’s recent decision in R v Comeau, 2018 SCC 15. Professor Miller argues that, contrary to what I said in my own comment on Comeau, to which he refers a number of times,
the courts took history and historical evidence and inquiry seriously in Comeau. In fact, historical analysis was central to the case against Comeau’s right to bring beer over the provincial boundary.
Professor Miller also suggests that Comeau illustrates the difficulties that would arise out of attempts to apply originalist methodologies to the interpretation of Canada’s constitution. With respect, I think Professor Miller misunderstands my criticisms of Comeau, which have to do not with the substantive outcome but with the way in which the Supreme Court treated historical evidence. As for Professor Miller’s critique of originalism, it reprises arguments that were made 35 years ago in the United States ― and addressed by the development of originalist theory since then.
Regarding substance, I am obviously not well positioned to debate Professor Miller’s assessment of what he describes as the “two very different versions of history [that] emerged from two historians involved in the litigation”, one presenting Confederation as a triumph of economic liberalism, the other emphasizing more cautious views among the framers of the Constitution Act, 1867. I am tempted to say that, even if the Fathers of Confederation endorsed international protectionism and government intervention in the economy, that doesn’t really dispose of the question of their intentions as to non-tariff barriers to inter-provincial trade. Practical politicians rarely hold fully consistent views, and at least today many would distinguish ― however little basis there may be for this distinction in economic theory ― barriers to trade across and within international borders. But perhaps things were different in 1867.
Be that as it may, though Professor Miller says that “[a]t the Supreme Court, the justices preferred the latter [i.e. more nuanced] view” of the Fathers’ attitudes to free trade, there is little basis for this claim in Comeau. The Court (or, likely, Chief Justice McLachlin) says that “the historical evidence, at best, provides only limited support for the view that” section 121 of the Constitution Act, 1867, the provision at issue, “was meant as an absolute guarantee of trade free of all barriers”. [67] But the Court never actually refers to the evidence on the other side of this debate, even though, as Professor Miller points out, this evidence was submitted to the Court’s attention by the Attorney-General of Alberta’s factum. [16]-[20] (I don’t agree with Professor Miller that these five paragraphs are “central” to the factum, but they are certainly there.)
If anything, this choice to ignore historical evidence that arguably supported the Supreme Court’s conclusion reinforces my view that Comeau was dismissive of history’s value to constitutional adjudication. In other cases, the Supreme Court is eager to seize on such evidence, for example by directly quoting the framers of the constitutional provisions at issue and the documents that reveal their plans and intentions. In Comeau, by contrast, the Court does no such thing. The other ways in which the Court is disparaging towards historical evidence is its insistence that such evidence, unlike that drawn from the social or health sciences, cannot justify reconsideration of precedent, and its aversion to the use of historical expert evidence.
Ultimately, as I argue in my Comeau comment and also in a response to some of my fellow-critics, the Supreme Court’s decision is driven by a conviction that a federalism where internal barriers to trade arising out of provincial regulation are pervasive is the right sort of federalism. The Court does not defend this conviction on historical grounds; it just says that that’s what federalism means. Thus I do not think that “historical analysis was central” to Comeau. Perhaps an opinion focusing on the evidence to which Professor Miller refers and reaching the same outcome the Court reached could have been written. But the point is that it wasn’t. History, in Comeau, is neither the main character nor even a supporting one; it is an adversary to be neutralized and dispatched before moving on to the more important business of constitutional policy-making.
As for Professor Miller’s comments on originalism, they are even less convincing than his defence of the Supreme Court’s reasoning in Comeau. Professor Miller describes originalism as “a technique which is often a tool of social conservatives seeking to squash rights for women, LGBT people, and others, and very uncommon in Canadian constitutional cases”. His evidence for this condemnation? Why, a link to one of Sean Fine’s “Tory judges” screeds ― this one, ironically, decrying the appointment of Justice Bradley Miller to the Court of Appeal for Ontario. Professor Miller also informs us of “the challenges that originalists face in trying to document a singular and enforceable original intention or original meaning in a document that was as much-Fathered as the [Constitution Act, 1867]”, of his belief that the Fathers of Confederation might not have wanted originalism to be the methodology used to interpret the constitution they created, and of the danger “that this methodology might leave judges needing a resident historian to co-preside on the bench in constitutional cases”. The living constitutionalist “methodological status quo” serves Canadians just fine, Professor Miller concludes ― and those who disagree should just think about the goings-on south of the border “over the last year and a half”.
The suggestion that originalism is somehow responsible for the misery of the Trump presidency ― the prospect of which was denounced by many prominent originalists ― is, to put it as politely as I can, puzzling. But Professor Miller’s other critiques of originalism are not much better. He ignores the existence of originalist arguments in favour of marriage equality and against sex discrimination, among other progressive causes, in the United States, and of Kerri Froc’s feminist originalism in Canada. He also ignores the fact that so-called “new originalism”, focused on the public meaning of constitutional texts rather than the intentions of their authors, developed (starting in the late 1980s!) precisely in response to criticism about the impossibility to ascertain the joint intention of multiple authors who may or may not themselves have been originalists. (Professor Miller might be suggesting that a “much-Fathered” text cannot even have a “singular original meaning” ― but the fact that he also seems to think that he understands the Comeau judgment, ostensibly the joint product of nine fathers and mothers, rather detracts from whatever strength that criticism might otherwise have had.) As for courts needing resident historians ― the Supreme Court in Comeau says that it can do the job without professional assistance, and of course it is managing to dabble in social and health sciences without resident experts. Last but not least, Professor Miller should know, having linked to Benjamin Oliphant’s and my article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, that the claim that originalism is “uncommon” in Canada, and living constitutionalism is the secure status quo, is simply false. The use of originalist reasoning is pervasive, albeit also erratic, in the Supreme Court’s decisions.
Whether or not the Supreme Court’s decision in Comeau is consistent with the best evidence of the original public meaning of section 121 of the Constitution Act, 1867, any such consistency is accidental, rather than the result of serious engagement with the evidence. Unlike many of the Supreme Court’s recent decisions, Comeau is a living constitutionalist, policy-driven decision that accords little importance to history, and as such, it is a poor foundation for any conclusions about the feasibility or soundness of originalist constitutional interpretation. Unpersuasive arguments against originalism, which ignore the developments in originalist theory over the last decades, are sadly not uncommon. Yet if we are to develop something better that what Mr. Oliphant and I described as “a buffet-line approach to interpretation, unfettered by standards for the principled application of the interpretive methods available”, we must begin by understanding the different options on the menu. Perhaps, having done so, we will conclude that originalism is not the right choice. But we cannot come to this conclusion on the basis of outdated clichés and persistent misunderstandings.
Double Aspect 
Hi Leonid,
Thanks so much for the shout out and for your engagement with my Comeau piece! As they say, long time reader, first time commenter.
I want to push back on some of your arguments to flesh out my own a bit. This is a bit of a hot take, so I apologize also for the roughness of the ideas, the excessive length, and the no doubt plentiful supply of typos.
Here goes.
First is your argument that I’ve mixed up your arguments on the stare decisis issue with your points about the merits of the historical case for a broad prohibition on non-tariff barriers being embedded in section 121.
Here’s a passage from my piece quoting yours: “In the wave of criticism since the case was handed down, Sirota has called the court’s opinion an “unmaking” and “disparagement of history” and the court’s take on the historical evidence “bizarre.””
I think it’s fair to say that you did call the court’s assessment of the historical evidence bizarre. This is from your piece: “Historical context, in the Court’s view, is inconclusive, because different visions of what form of economic union Confederation would implement were presented by the political actors of the time… This is bizarre. Surely we can tell that, if the framers were consciously choosing between a narrower…” This is a comment on the merits of the court’s historical take, as is your comment about the “very strong originalist case set out by the Provincial Court.”
Then there’s my use of your remarks about unmaking and disparaging history. This *partly* goes to the second part of my assessment: that the court didn’t disparage the role of history in constitutional interpretation. They analyzed the evidence on this front and, in the end, just found the defence’s historical case weak, rightly in my view. That finding doomed the Comeau defence. As you say, I’m not remotely an expert in originalist theory. But on this point I don’t need to be.
But your larger point is about stare decisis and here I don’t think the court disparaged history, either, though they denied it a final say on constitutional meaning. Their stare decisis point was that new historical evidence doesn’t justify a lower court judge in throwing off the burden of case law, declaring themselves unbound by the rulings of all the courts above and before them. That’s why I added the little clause in the conclusion about people who prize the stability that comes from stare decisis not agreeing that their focus on vertical stare decisis was gratuitous. Do we really want to upend our constitutional case law each time a historian waves a journal article in front of a provincial court judge?
Second is your observation that even if the Fathers of Confederation “endorsed international protectionism and government intervention in the economy, that doesn’t really dispose of the question of their intentions as to non-tariff barriers to inter-provincial trade. Practical politicians rarely hold fully consistent views… But perhaps things were different in 1867.”
I’m glad you brought this up! Things were *not* different in 1867, but more generally this is a super important point because a key part of the defence case, and (in reverse) of Moore’s critique, is that the fathers were free trade absolutists and that even if there’s almost no historical evidence for the prohibition of non-tariff barriers, we should make the leap from their feelings about international tariffs to their feelings about interprovincial non-tariff barriers. As I say in my piece, there are flashes of a circumstantial case here, but not more.
Third is your point about originalism not being exclusively a tool of social conservatives. That’s fine, and I agree. But what I said was that originalism is “*often* a tool of social conservatives seeking to squash rights for women, LGBT people, and others.” That is undeniably true, and it’s that undeniably strong, though far from universal, connection between social conservatism and originalism that makes it controversial for many people, lawyers and non-lawyers alike. I mean, even the Canadian scholar you cite for feminist originalism (which – btw – thanks for introducing me to her work!) describes originalism at the start of her piece as a “conservative theory developed to thwart women’s rights.” She’s saying that feminists should get in on it in order not to abandon “an entire theoretical field to those who are developing doctrine without women’s best interests at heart.”
(On this front, two side notes: first, I disagree with your view that Globe and Mail writer Sean Fine’s articles on the subject are just “screeds.” I think you’re being unfair about his very valuable work on the politics of judicial appointments.
Second, I *really, really, really* didn’t blame the misery of the Trump presidency on originalism – my point in that line was simply to say that, while American polarization can be entertaining and, though I didn’t add it I should have, intellectually rigorous, there are real merits in our blander take on things.)
Fourth is your point about old and new originalism. As you can tell from my piece, I mingled original meaning and original intent originalism because I don’t think the defence made a case on either front, though my short conclusion paints with a broader brush. The trial judge’s original intent case was stronger than the flashes of original meaning in his decision, but neither was strong enough.
The final thing is your comment about Chris Moore’s role in the Alberta intervention: “I don’t agree with Professor Miller that these five paragraphs are “central” to the factum, but they are certainly there.” That’s a little snarky, though in all honesty I admire the pithiness of the snark. But what I *actually* said was that Moore’s view was central to Alberta’s “arguments about the historical background of section 121…” Likewise, even though the court doesn’t cite Moore his arguments are clearly there in silhouette.
Anyway, thanks again for the shout out. If you’re ever in Vancouver please(!) look me up so we can have a beer.
Best,
Brad
Thanks for this, Brad! Some of this we’ll have to agree to disagree on, and some I’ll blame on what has to be, on your account, the Supreme Court’s unwillingness to show its work (which I find puzzling and which is the reason I’m not convinced by your telling of the Comeau story). In particular, the snark in my comments on the Alberta factum was directed at the Court, not at you: if the court relied on this argument, why did it hide it? Again, that makes me think they are treating historical arguments as, at best, somehow disreputable, but we’ll just disagree about that.
No immediate plans for Vancouver, but I’ll try to remember!
L