Arguing against Originalism Badly

Noura Karazivan’s flawed argument against using originalism to understand constitutional structure

Noura Karazivan has recently published an article called “Constitutional Structure and Original Intent: A Canadian Perspective” in the University of Illinois Law Review. Prof. Karazivan raises interesting questions: what is, and what should be, the mix of originalism and living constitutionalism in the Supreme Court’s treatment of constitutional structure ― understood as the set of institutions that make up Canada’s government, and the relations among them. Unfortunately, prof. Karazivan’s argument suffers from her failure to engage seriously with contemporary originalist thought, or indeed to take note of recent work exploring it in the Canadian context, and her answer to the normative question, which decisively favours living constitutionalism, is unsatisfactory.

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Prof. Karazivan’s starting point is an orthodox proposition: “[i]n Canadian constitutional law, there is no doubt that a broad, purposive, and progressive approach”, described by the famous “living tree” metaphor, “is preferred” for the interpretation of any and all constitutional provisions, (630) though she acknowledges that the Supreme Court uses other interpretive methods too. In addition to being used in the interpretation of constitutional text, living constitutionalism has played a crucial role in a number of decisions concerning constitutional structure. For example, in l’Affaire Nadon, Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, the Court’s “conclusion would probably have been different” had it not engaged in “actualizing” its place in the constitutional structure, and only looked “its role in 1875”. (648)

Yet in a couple of recent decisions, says Prof. Karazivan, the Court adopted a more originalist approach to constitutional structure, rather than the evolutionist one that it normally favours. Prof. Karazivan focuses on Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, but also mentions Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. In the former, “the Court greatly relied on the intent of the 1867 framers”, (646) who wished the Upper House to supply “sober second thought”. The Court disregarded the practice of partisan appointments to the Senate, the Senate’s contemporary role, and even “the impact of the enactment of the Constitution Act, 1982”, (647) which arguably transferred the role of protector of constitutional rights from the Senate to the judiciary. Meanwhile, in Trial Lawyers, the superior courts’ historic dispute-settling role was crucial to the decision.

Prof. Karazivan argues that the Supreme Court was wrong to resort to originalism in these decisions. She gives four reasons. First, she takes Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 to stand for the proposition that the judiciary is not bound by the intent of constitutional framers. Second, originalism can make no democratic claim in Canada, since the Constitution Act, 1867 was the work of “a group of white men, mostly Parliamentarians, concerned with the preservation of British institutions on Canadian soil”, while “[t]he constitutional negotiations in 1982 were even less ‘democratic'”. (651; square quotes in the original) In short, “Canada does not have a great constitutional moment”. (651) Third, the Canadian constitution is simply too rigid for the courts not to update it from time to time. Finally, a “living tree” approach to interpretation yields a fuller understanding of both the constitution as a whole and its various components, as well as being “in line with Canadian constitutional structure and tradition”. (654)

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As I said at the outset, this is unconvincing. Prof. Karazivan repeats pieties about the superiority of living constitutionalism to originalism without understanding what originalism actually is. Although she refers, in passing, to the distinction between originalist interpretation that seeks the intent of constitutional framers and that which centres on the constitution’s original public meaning, her article focuses on original intent ― which relatively few contemporary originalists are still committed to. Prof. Karazivan also enlists a number of cases, such as the BC Motor Vehicle Act Reference and Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 SCR 669, in support of the proposition that living constitutionalism is the dominant approach to interpretation in Canada, while originalism has been rejected. Yet Benjamin Oliphant and I have shown that not only do these cases not support the claim of a wholesale rejection of originalism, but they are arguably (in the case of the BC Motor Vehicle Act Reference) or quite clearly (in the case of Employment Insurance Reference) consistent with public meaning originalism.

More broadly, we have also shown that the Supreme Court has never squarely rejected the more plausible forms of originalism, and indeed that various forms of originalist reasoning make frequent, if erratic, appearances in the Court’s reasoning. In particular, as both we and J. Gareth Morley and Sébastien Grammond have observed, originalist reasoning features heavily not only in the Senate Reform Reference, which prof. Karazivan decries, but also in the Nadon Reference, which she commends. Mr. Oliphant and I have also pointed out that cases on the jurisdiction of superior courts have had an originalist bent well before Trial Lawyers. In short, at the level of description, prof. Karazivan’s story, in which a largely living constitutionalist Supreme Court issued a couple of aberrant originalist decisions is much too simple.

Prof. Karazivan’s normative argument is even weaker. Her appeal to the authority of Justice Lamer’s opinion in the BC Motor Vehicle Act Reference has to be set against not only the arguable  consistency of this opinion with public meaning originalism, but also its author’s resort to more explicitly originalist reasoning elsewhere. For instance, in B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 he wrote that

[t]he flexibility of the principles [the Charter] expresses does not give [the courts] authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. (337)

Prof. Karazivan’s denial that Canada had “a great constitutional moment”, and her insistence that the drafting of the Constitution Act, 1867 (by “white men”) and that of the Constitution Act, 1982 (presumably by persons unknown) would be simply bizarre were they not sadly typical of the ritual denigration of Canadian constitutional history in which even Supreme Court judges have been known to engage. The truth, though, is that Canada did have not one, but two great constitutional moments ― in the mid-1860s and the early 1980s. My friend Alastair Gillespie has been exploring the first of these in a compelling (and ongoing) series of papers for the Macdonald-Laurier Institute, which, as I have written in a recent post for the CBA National

make clear [that] the Fathers of Confederation wrestled with such seemingly contemporary questions as whether diversity is a source of weakness of strength for a political community, what claims such a community may legitimately make on minorities within its midst, and what rights these minorities may assert against the community. The settlement of 1867 was a remarkable achievement in this regard.

To be sure, the Fathers of Confederation were indeed white men ― as were those who took part in the framing of the US Constitution, to which prof. Karazivan does not deny the status of a “great constitutional moment”. This is one reason, among others, why I do not find the democratic case for originalism very compelling. But the sexism and racism of our 19th-century forbears is not a reason for dismissing the substance of their achievements; and least of all for allowing a group nine men and women, who are if anything even less representative of society than the Fathers of Confederation on every dimension except for gender, the power to re-write the constitution. As for the enactment of the Canadian Charter of Rights and Freedoms, it was preceded by wide-ranging public consultations which resulted, for example, in the adoption of section 28 at the urging of feminist groups, as Kerri Froc has shown. Why prof. Karazivan claims it was undemocratic, I cannot understand.

That the constitution is rigid and difficult to amend is a feature, not a bug that needs to be removed by the backdoor expedient of judicial reinterpretation. The politicians who came up with and agreed to the amending formula in Part V of the Constitution Act, 1982 obviously thought it was flexible enough. Why were they wrong? That said, had prof. Karazivan taken public meaning originalism, and in particular the work of those originalists who recognize the distinction between constitutional interpretation and constitutional construction, seriously, she would have realized that many, perhaps most originalists do not advocate for a static constitutional law. They insist that the meaning of the constitution’s text is fixed, but recognize that this text can in fact be applied to facts and circumstances quite unforeseen at the time of its drafting through the development of constitutional doctrine.

Finally, I fail to see how living constitutionalism can lead us to a better understanding of the constitution. The argument, insofar as I understand it, seems question-begging. Saying treating the constitution as a “living tree” allows us to understand it better presupposes that the object of constitutional interpretation is the contemporary constitution rather than the intention of the constitutional text’s drafters or its original public meaning ― which is very much the point in issue. To be sure, Canadian constitutional tradition is laden with denunciations ― usually quite ignorant denunciations ― of originalism. But as the emerging Canadian scholarship that takes originalism seriously shows, these denunciations do not tell us the whole story. Nor can they serve as a normative justification in the absence of any more compelling ones.

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As I mentioned at the outset, prof. Karazivan addresses an important question, that of the place of originalism in the Supreme Court’s understanding of constitutional structure. Unfortunately, she does so in a way that reflects a simplistic or outdated understanding of originalism, and as a result oversimplifies relevant precedents and offers thoroughly unconvincing arguments against originalism. That her arguments do not succeed does not show that the Court is right to be as originalist as it is, or that it ought to be more so. That case remains to be made. But so does prof. Karazivan’s in favour of living constitutionalism. Her article does not advance it.