The Empty Canard of the Living Tree “Doctrine”

In 1989, Justice Scalia gave a speech entitled “Assorted Canards of Contemporary Legal Analysis.” These “canards,” are “certain oft-repeated statements…” that, while having “little actual impact upon the decision of the case” are “part of its atmospherics, or of its overarching philosophy…” Justice Scalia gave the example of the old adage that “remedial statutes should be liberally construed,” a canard because it is difficult to determine what a “remedial statute” is, and then because it is not a judge’s role to pick and choose statutes to be interpreted liberally and strictly.

In the last few days, both the Stereo Decisis podcast and my co-blogger Leonid have focused on a case out of Quebec in which our own Canadian canard was put to work: the idea that the Charter of Rights and Freedoms should be interpreted as a “living tree.” In the context of the case at issue, Leonid received flack from the Stereo Decisis podcast hosts for suggesting a textualist approach to the interpretation of s.12 of the Charter, while the hosts were focused on determining the normative commitments that should influence constitutional interpretation, having concluded that the language of the Charter is written in open-ended and ambiguous language. Lurking in the background of this debate between textualism (properly understood) and the openness of language is the idea that the Constitution should evolve to encompass certain normative commitments, whether or not they are discernible in the text. This is the core of the living tree approach.

But no one has ever described—with real precision—how a living-tree “doctrine” would work in practice, and so it is simply unconvincing to state, without more, that the Charter should or could encompass evolving normative commitments not fairly implicated by the text. Until the proponents of the living tree suggest some way—any way—that the doctrine should actually operate, it should be resigned to the dustbin of history. My point here is not to point out the flaws of the living tree methodology; others have done that. Instead, I want to suggest that for the living tree doctrine to become an actual doctrine, it should answer a number of fundamental questions. None of these questions are new, but they come into stark relief, requiring urgent answers, if the living tree is going to remain even a part of the Canadian constitutional atmosphere.

Why, for example, has the Supreme Court rarely applied the doctrine in any substantial way, despite it being a favourite among legal academics? One would be hard pressed to think of a case where the living tree was a decisive factor in favour of one party or another, or where it was applied to some distinct substantive end. In fact, in Comeau, the interprovincial beer case, while the Court mentioned the living tree doctrine, it was quick to point out that the metaphor is not an open invitation to constitutionalize modern policy outcomes [83]. So much for a leading interpretive theory of constitutional interpretation, especially when it appears that, on least some occasions, the Court has endorsed the opposite of a living tree approach.

Even if the living tree stood tall in the pantheon of constitutional interpretation, no one can answer how the doctrine should actually operate. In the United States, some attempts have been made by leading scholars to cloak living constitutionalism in the credentials of an actual interpretive theory. David Strauss, for example, links living constitutionalism to a sort of common law constitutionalism. To my knowledge, few if any in Canada have attempted to “steel-man” the living tree doctrine to turn it into something resembling an interpretive doctrine. The lack of effort is telling in the unanswered questions: should the living tree apply to expand the actual scope of rights, or should it just apply to new applications unknown to the framers? If the latter, how is this distinguishable from originalism, properly applied? After all, the dominant school of originalism is public meaning originalism, not original expected applications originalism. If this is all the living tree approach denotes, then it is a duplicative piece of atmospherics that is better left to the pages of poets rather than the law books.

Most strikingly—and this was laid bare in the Stereo Decisis podcast episode—how should a living tree “doctrine” mediate between different normative considerations? If the text gives us no answers, how we are to determine which values should be granted the imprimatur of constitutional protection? How do we determine whether society has evolved, such that a certain value is now constitutionally cognizable? How do we define “society?” These questions have never been answered in Canada.

Even if they could be answered, as Leonid points out in his post on the matter, there is nothing to suggest that courts are institutionally or normatively capable of getting to even defensible answers on these questions. These are not questions that are based on evidence, facts, or even legal norms. They are philosophical, involving inquiries into the mind of the cultural zeitgeist. Are we certain—or even confident—that judges can answer these questions?

If the proponents of the living tree want it to be a serious doctrine of constitutional law, these are all questions that should be answered. Until then, the status quo position should be that the living tree is a turn of phrase, taken out of context, that has no real substantive quality.

N.B. A reader has commented that Wil Waluchow has written about a sort of common law constitutionalism in Canada. I cannot speak with confidence as to whether Waluchow’s work is similar to the Straussian view, but at first blush it appears relevant. Whether it answers the legal questions posed in this post is another question.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation. View all posts by Mark Mancini