It’s Not What You Think

Brief responses to the most common misconceptions about originalism and its place in Canadian law

Originalism has long been, in Adam Dodek’s pithy phrase, a “dirty word” in Canadian constitutional law. But not anymore. Recent scholarship by respected academics and even a judge takes it more seriously than almost anyone in Canada, with the exception of Grant Huscroft and Bradley Miller, both now judges at the Court of Appeal for Ontario, had until about seven years ago.  But fully reckoning with “the challenge of originalism”, to borrow the title of a book then-professors Huscroft and Miller co-edited, means having to confront ― and being confronted with ― many a misconception, sometimes quite fundamental, about its nature and implications.

I have done so in a number of venues, from the first article on originalism that Benjamin Oliphant and I co-authored, to posts here by myself and with co-blogger Mark Mancini, to op-eds, to Twitter threads. I may be useful, however, to address the most common misconceptions here, in a concise form. I address three types of claims: that originalism is ruled out by existing law; that, even if not ruled out, it cannot realistically be implemented; and that, even if it can be implemented, it is illegitimate.

One should probably start with the claim that this entire conversation should not be happening at all, simply because, whatever else one may say about it, originalism is not our law. It has, so the story goes, been ruled out of bounds, most famously by the Judicial Committee of the Privy Council (JCPC) in the so-called “Persons Case” and then by the Supreme Court of Canada. The JCPC, on this account, said that we must treat the constitution as “a living tree” to which, as the former Chief Justice Beverley McLachlin once put it, judges can and sometimes need to graft new branches, lest antiquated constitutional rules stand in the way of social progress.

Yet as then-Professor Miller, notably, has argued, the “Persons Case” did not reject originalism tout court, but only a particularly cramped variety of it that equates the constitution with how its framers expected things to work out. Besides, as I have argued here, the living tree to which the JCPC referred was not the legal constitution, but rather the political practice and culture which it enabled; Lord Sankey wrote that what we now call the Constitution Act, 1867planted in Canada a living tree”, not that it was a living tree.

This is hardly surprising, considering that not long thereafter he also wrote that “[t]he process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded”. The original contract always remains binding ― so far as it goes. It is when it leaves the political actors an area of discretion, as it did with respect to the sex of prospective senators, that they ― not the courts ― can, in the former Chief Justice’s words, graft a new branch to the living tree. And, as Mr Oliphant and I have shown, later decisions of the Supreme Court, such as the BC Motor Vehicle Act Reference and the Same-Sex Marriage Reference go no further than rejecting what is called an “original expected applications” approach by originalists ― who reject it too.

What, then, do originalists believe? Their focus is on what the constitution meant when enacted, though there are differences of opinion as just how this is to be ascertained. The most widely held view, at present, is that the focus is on the meaning the constitutional text would have had for the public or for some particularly important section of the public (such as representatives who voted for it). Among other things, it follows from this that the argument that the framers of a constitution were not themselves originalists misses the mark: the framers’ expectations and preferences are no more binding on this point than on, say, whether women can be appointed to the Senate. What matters is what was actually enacted, not how the framers expected things to turn out.

The focus on the meaning of a constitutional text also means that another objection to originalism ― that it leaves constitutional law unable to cope with the modern world ― is similarly misplaced. If constitutional text is drafted in neutral or open-ended terms, originalists will have no problem applying it to new realities or incorporating a better understanding of how society or morality work. For example, because the list of prohibited grounds of discrimination in s 15 of the Canadian Charter of Rights and Freedoms is open-ended, as signalled by the introductory word “including”, originalists no less than their critics can agree that “analogous grounds” such as sexual orientation can be added to those already listed in the Charter. Similarly, originalists have no difficulty accounting for new media of “expression” in s 2(b) and new technologies for “searches” in s 8 of the Charter. 

That said, the point of originalism is to fix at least those aspects of the constitution which are determined by the text (or, for that matter, by non-textual constitutional law that exists at some relevant time). If the Constitution Act, 1867 had restricted eligibility to the Senate, as it restricted the franchise, to “male subjects”, then an originalist court would have been bound by this determination. For that matter, I do not suppose that even Chief Justice McLachlin would have felt otherwise. But there are certainly cases where originalists and living constitutionalists come to different conclusions. I have described some of them elsewhere; among others, if the original meaning of s 121 of the Constitution Act, 1867, required meaningful protection for internal free trade, as Malcolm Lavoie has persuasively argued, then originalist judges would have enforced this requirement, while the Supreme Court, in a strikingly un-originalist mood, did not.

Originalism’s critics argue that cases like this mean that it is, after all, unfit for an evolving world. Originalists respond if the constitution is, indeed, antiquated, it can and ought to be amended. The critics point to the difficulty of doing so. But the difficulty is, after all, the point, if we are to have a constitution that is binding on the government, and on the electoral majorities which it represents. Indeed, it is difficult to think what amending formula could, realistically, be easier than the “7/50” generally required by Part V of the Constitution Act, 1982 while preserving Canada’s federal character. If those who think that the constitution should be changed (and I count myself among them, on various points) cannot generate even this relatively thin consensus, it is difficult to see what entitles them to take the shortcut of an amendment through the extra-constitutional means of judicial innovation.

Originalism faces yet another set of objections, which are at once the most fundamental but also the least serious: those which concern its legitimacy as a matter of principle rather than of positive law or practicality. One characteristically Canadian trope is to denigrate the framers of the Constitution Act, 1867 as boozing bunglers. And, to be sure, they did drink a lot. But they also thought very seriously and quite successfully about what they were doing.

Another line of attack consists in saying that constitution whose enforcement originalists demands is the work of the proverbial dead white men, which has no claim on our enlightened and diverse society. Yet this argument is manifestly at odds with Canadian constitutional history, whatever its value in the United States, whence it evidently originates: the Patriation of the constitution in 1982 was done by legislatures elected on an equal and universal franchise, and civil society groups, feminist ones for example, as Kerri Froc points out, made themselves heard in the process of the drafting of the Charter.

Other attempts to undermine originalism’s legitimacy are even more unserious. One common claim is that originalism is a uniquely American approach to constitutional interpretation which people in other countries need and should pay no heed to. This is wrong as both a descriptive and a normative matter. Descriptively, originalism plays a significant, if underappreciated, role in Canadian law, as Benjamin Oliphant and I have shown. This runs through the entire span of our constitutional jurisprudence, from early Privy Council decisions to some of the most recent Charter cases, as I have further explained. Originalism, or something akin to it, has a place in the constitutional law of other countries too, notably Australia. Normatively, the alleged foreignness of an idea does not establish its irrelevance. At a minimum, one would need to show that it is inapposite to our constitutional framework. Yet the reasons to be originalist are no less compelling in Canada as in the United States.

A related claim is that, American or not, originalism can safely be ignored because it is a right-wing partisan slogan. One is reminded of Sir Ivor Jennings’s claim that “[t]he ‘rule of law’ is a rule of action for Whigs and may be ignored by others”. This is belied by the fact that the only avowedly originalist law professor currently teaching at a Canadian law school is the Professor Froc, who is a progressive feminist. In the United States, originalist scholars can be found on every part of the political spectrum, from the progressive Jack Balkin (who discussed his views in, for instance, this Runnymede webinar), to the libertarian Randy Barnett (who has argued before the US Supreme Court, unsuccessfully alas, that the US government had no authority to criminalize marijuana), to actual conservatives. Anyway, an idea can no more be dismissed for being supposedly right-wing than for being American. Jenings was wrong to disparage the rule of law, and originalism’s critics are wrong to reject it too.

Constitutional interpretation is a difficult and consequential area of public law. Perhaps more than others it is also, in Canada, surrounded by an unhelpful, indeed unhealthy, amount of mythology and misdirection. Canadian judges and scholars, not to mention journalists and indeed monument builders, have long been content to repeat platitudes about the virtues of living constitutionalism and the vices of originalism. We would all benefit from a more honest debate, in which both sides engage with their opponents’ actual views. Our law will be the better for it.

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.

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