Double Aspect

Some personal news, and of a happier varierty than in my last post (though it won’t be news to those who have seen my posts on Twitter and Bluesky): a couple of weeks ago I signed a contract for what will be my first monograph, to be published by Hart. The (provisional) title is Interpreting the Supreme Law of Canada: Meaning, Purpose, and Principle. The manuscript is due on June 1, 2027 and, if all goes to plan, publication should be in early-ish 2028. And in further news that that I haven’t yet spilled, I’m grateful to say that the University of Reading’s Open Access monograph fund will support its publication, so that an electronic version should be available free of charge as soon as the book is officially published.

The book, as I think should be fairly obvious (though one of the reviewers had doubts about this) is about constitutional interpretation. As it happens, there is no existing book about constitutional interpretation in Canada; the closest we have is a couple of now somewhat dated books on constitutional interpretation by Canadians, with a broader focus. Needless to say, that’s not a knock on these books, but simply to note that I’m trying to do something they did not. I also have the benefit, if that’s the word, of a bunch of Supreme Court decisions on the issue, from the Senate Reform and Nadon references in 2014, which I think it is fair to say sparked a renewal of interest in constitutional interpretation in Canada, to the recent judgments in Taylor v Newfoundland and Labrador, 2026 SCC 5 and Alford v Canada (Attorney General), 2026 SCC 14, about which I have blogged a great deal already, and Société de l’Acadie du Nouveau-Brunswick v Canada (Prime Minister), 2026 SCC 22, which I will eventually get to now that my exam marking is done.

More precisely, the point of the book is to argue that the Constitution of Canada should be interpreted in accordace with its original meaning, and not with whatever living constitutionalist, purposive or, most likely, results-oriented nonsense “method” the Supreme Court is into these days. My earlier work on this, notably the articles I co-wrote with Benjamin Oliphant, which documented the non-rejection of originalism by the Supreme Court, and the use of originalist approaches by the Privy Council and the Supreme Court up to 2016, and my subsequent article on a series of cases where the Supreme Court’s “purposivism” was looking rather textualist and sometimes even originalist, tried to make sesne of what was going on. Now, it is time to make my own case for what should be going on. It won’t exactly be a surprise to this blog’s readers, or to people who have heard me give versions of a talk on “How to Decide How to Interpret a Constitution“, which I first gave for the Runnymede Society back in 2020, but of course a book is the vehicle for making one’s case with much more rigour than a blog post or a lecture allows, so I am grateful to Hart for giving me the opportunity to write one.

Very briefly, here is the plan for the book, as it now stands, though of course that is provisional:

• Chapter 1 gives an overview of the law of constitutional interpretation as it now exists in Canada. As this blog’s readers know, it is not a pretty picture, not even because I disagree with much of what the Supreme Court has said on the subject, but simply because the whole thing is such a mess.
• Chapter 2 addresses the methodological question of why and how to choose a method of constitutional interpretation, arguing that a interpretive method is essential for the sake of the Rule of Law and to limit judicial power, and that constitutional texts, like all texts, must be interpreted in accordance with their nature.
• Chapter 3 describes the key characteristics of the Constitution of Canada, which will guide the choice of method for its interpretation: it is the result of a democratic compromise that takes the form of primarily, though not exclusively, enacted law, meant to last for a considerable amount of time, and in doing so to both empower and constrain legislatures and governments.
• Chapter 4 considers the main interpretive methods available to choose from: living constitutionalism, various forms of moral readings (including the right-wing version of this theory), and originalism, and explains why the latter is most attuned to the character of the Constitution of Canada and hence ought to be used to interpret it.
• Chapter 5 addresses “constitutional construction”—that is, the development of legal doctrine when the constitution’s original meaning is insufficient to resolve a dispute before a court. Here, a form of purposivism, which I do not consider to be a meaningful interpretive method in its own right, makes a comeback, but it is a tightly circumscribed purposivism, and not the vibes-based version favoured by the Supreme Court in its recent decisions.
• Chapter 6 considers how courts should treat unwritten constitutional norms, notably conventions and underlying principles. I have already touched on this in my article on “constitutional architecture“, as well as in some posts here, but again this will be the place to develop the argument.
• Chapter 7 turns to the question of stare decisis: what is the place of the doctrine of precedent and, especially, what is the authority of prior decisions not made on originalist grounds, within an originalist interpretive framework? I might not go full Clarence Thomas, but… just watch me.

In case you have a burning interest to read drafts, do let me know. Ditto if you are convinced that I am missing something important, or if you just want to make sure I cite your favourite article (even if it is your own). I hope I will do justice with opposing views, which after all most Canadian lawyers hold, and I am sure that I would benefit from their forceful articulation before I am done with this project, and not just after. So really, do reach out.

And now… to get on with it!