Tag: constitutional interpretation

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, 1867 “planted 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.

Who’s Afraid of the Rule of Law?

Many critics of the US Supreme Court’s decision on abortion rights themselves embrace a purely political view of adjudication

Since the US Supreme Court released its decision in Dobbs v Jackson Women’s Health Organization, which overruled precedents finding a right to abortion in the US Constitution, there has been a great deal of public anguish and anger, not only in the United States but elsewhere too. In this post, I want to say something about non-American, and especially Canadian, responses. I won’t “bring receipts” ― that is, I won’t be linking to tweets, articles, etc. Partly, that’s because there are too many for any sort of representative survey. But mostly, because I will be very critical and don’t mean to target anyone in particular. The reason for writing this post is that I think I’m seeing broad and disturbing trends, not to dunk on individuals. If you think I’m describing things that aren’t there, well, I hope you’re right. But I doubt you are.

Let me note that this criticism does not mean that I am convinced Dobbs was correctly decided. I do not know enough about the original meaning of the 14th Amendment to the US Constitution to say whether it was. And to a large extent, this will be my point: one has to know the law before saying that judicial decision was wrong, let alone implying that it was political or indeed corrupt, as many have done. And the non-American critics of Dobbs (many American ones too, to be sure) don’t know enough and seemingly don’t care. I can understand ― though by no means approve of ― this when the people involved are politicians or other non-lawyers. But it distresses me when the same comments are made or shared by lawyers, professors, and bar associations.

Before I get to why that matters, a quick word on a genre of reaction to Dobbs that has, I think, been especially common in the UK. The decision, we are told, shows how bad it is to have the courts deciding matters of great social concern; or indeed it proves that judicial review of legislation is a misbegotten arrangement. Respectfully, this makes no sense. Dobbs holds that there is no constitutional right to an abortion. This means that the legality of abortion will, for the foreseeable future, be decided by democratically elected legislatures, probably at the State level, though I take it that there have been noises about Congress intervening on one or the other side of the issue. (I don’t know enough to say whether that would be constitutional, but I have my doubts). And that’s exactly what the critics of judicial review and judicial power want ― legislators rather than courts settling rights issues. Dobbs gives them, on this issue, what they say they are after. It cannot logically prove that judicial review is bad ― if anything, it shows that judicial review can be sensitive to their concerns. (This blog’s readers will know, of course, these are concerns I mostly do not share.)

But the most common type of reaction to Dobbs holds that it is a manifestly wrong decision made by partisan hacks and/or (more likely “and”) misogynists, and one that shows that the US Supreme Court isn’t a real court and that it will, wittingly or not, destroy the rule of law. I think that, putting these claims in the best possible light, to the critics it is simply inconceivable that in this day and age the constitution of an enlightened state committed to the Rule of Law would not protect a woman’s right to choose an abortion. Hence, a judicial decision holding that the US Constitution does not protect this right is egregiously wrong and either bigoted or partisan or both.

But the premise is quite obviously misguided. Take Australia, which, like Canada before 1982, has (virtually) no national protections for individual rights. If somehow a case arguing that there is an implied right to an abortion similar to the implied freedom of political communication that Australian courts have in fact inferred from the Commonwealth Constitution made its way to the High Court, and the High Court rejected the claim, would the critics of Dobbs be saying that its judges are bigots and hacks? Perhaps they would, and this is a rather scary thought ― it would mean that to avoid being tarred as a bigot and hack a judge would need to be willing to quite clearly make things up. More likely, though, they would not. The idea that an existing constitution “in a free and democratic society”, to borrow the Canadian Charter‘s language, does not protect abortion rights is not unintelligible.

Ah, but Australia is different, they might say. It actually lacks a national bill of rights, and the United States obviously don’t. That’s true so far as it goes, but you might think that the response to that is a given bill of rights may or may not protect a given right, even an important and widely recognized one. The Charter, for instance, doesn’t protect property rights. Whether a given bill of rights protects a given right is a question of law, to be authoritatively answered by the courts responsible for applying that bill of rights and, not authoritatively but importantly, by anyone with a sufficient knowledge and understanding of the constitution in question.

A judicial decision holding that a given constitution doesn’t protect a given right, such as Dobbs, can result from two causes. (1) The court may be wrong. It may be just wrong in the way that courts staffed by human beings are sometimes wrong, or it may even be captured by hacks or bigots. Or (2), it may be the case that the constitution actually fails to protect the right in question. Then the constitution may then be defective; it may stand in urgent need of amendment, and be subject to criticism until that takes place. But, for its part, the court faithfully applying this constitution would be blameless.

The critics of Dobbs are convinced that it falls into category (1). But they make no argument to exclude the alternative (2). Such an argument would need to parse the relevant provisions of the US Constitution in accordance with some plausible interpretive methodology. And not only do the Canadian and other non-American critics of Dobbs not articulate such an argument; they are ― and I say this with respect, if only because I am in the same position as they ― not qualified to do it. (That’s obviously not because you have to be American to be so qualified, but because you do need to study the relevant materials.) Without an argument for why Dobbs is wrong as a matter of US constitutional law, criticism of the US Supreme Court’s majority is at least as unfair and unjustified as any of, say, Stephen Harper’s attacks on the Supreme Court of Canada or the British government’s on the Supreme Court of the United Kingdom.

Why are we seeing such criticism? And why do I care, anyway? The answer to both question is the same: I strongly suspect that a great many people, including, most regrettably, lawyers (including those of the academic and journalistic varieties) are themselves taking an entirely political approach to law. It does not matter to them that they do not know enough US constitutional doctrine and history to articulate a plausible interpretation of the relevant provisions, or that many of them might not even know what these provisions are. At best, they think that a constitution is sufficiently interpreted by reference to purely moral considerations. At worst, that one need not bother with anything resembling interpretation and that only the rightness of the outcome matters to how we think about judicial decisions. But there is little daylight between these two views.

And this bothers me to no end, because I doubt that the people ― the lawyers ― who take such an approach to opining on the US constitution would take a different one to the constitutions of Canada or of the UK. If you think that the US Constitution is all about morality or the vibe of the thing, there is no reason why you wouldn’t think that about any other. To my mind, this, rather than the decision in Dobbs ― which may, for all I know, be quite wrong ― is tantamount to a rejection of the Rule of Law. I understand that people are upset about Dobbs. If some country commissioned me to write a constitution and to just do what I thought was right, I would include abortion rights, and property rights, and many other rights besides. But that doesn’t mean that any existing constitution protects my pet list of rights and liberties. If you cannot accept that any existing constitution might also not protect yours, you don’t believe in law. Sorry.

Constitutional Law Ruins Everything. A (sort of) response to Mancini’s “Neutrality in Legal Interpretation.”

This post is by Andrew Bernstein.

No! I am not an academic nor was meant to be.
Am a mere practitioner, one that will do
To settle a dispute, argue an appeal or two
When advising clients, the law’s my tool.
Deferential, if it helps me sway the court
Argumentative, and (aspirationally) meticulous.
Case-building is my professional sport
Trying my hand at theory’s ridiculous!
But I’ll dip a toe into this pool.

(With apologies to T.S. Eliot and anyone who appreciates poetry)

Also, this is a blog post, so no footnotes or citations. Sorry!

As a lawyer whose most enduring interest for the last 30 years has been Canada’s constitutional arrangements, it gives me great pains to confess to you that I have concluded that constitutional law ruins everything. Or, perhaps put more judiciously, the kinds of debates that we have about constitutional interpretation are not especially instructive in dealing with other types of legal questions, such as statutory or common-law interpretation. There are many reasons for this, but the central one, in my view, has to do with the fact that while reasonable people may disagree on the outcome of a statutory interpretation, or a question of common law, those people will largely agree on the method of conducting those analyses. In constitutional interpretation, we don’t have consensus on “how” so it’s no wonder that the outcomes can be so radically different.

What are we really asking courts to do when we ask them to resolve a dispute? There are no doubt some high-minded theoretical answers to this (“do justice between the parties,” “ensure that capitalism is never threatened,” “enforce institutional sexism, racism, ageism, ableism and homophobia”) but from a practitioner’s perspective, the answer is actually straightforward: sort out the facts and apply a set of legal rules to those facts. Overwhelmingly those rules come from a variety of legal instruments, such as statutes, regulations, by-laws, and other “outputs” of political institutions such as Parliament, legislatures or municipal councils. If these institutions they don’t like the judicial interpretation of what they have passed, they can change the instrument accordingly. Moreover, these institutions are democratically elected, so if citizens do not agree with the laws that get made, they can replace them at the next election. Although this “feedback loop” suffers from many inefficiencies and obstacles in practice, it is essential to maintaining the concept of self-government by majority rule. What this means is that courts know what they are supposed to be doing when they interpret statutes: they look for legislative intention, as expressed by the words of the document. While courts are entitled to employ whatever clues they might be able to find in things like the legislative history, they appreciate that those clues must be used judiciously, as one speech by one MP does not a legislative intention make. And courts appreciate that the words of the document ultimately govern – although compliance is less than perfect, courts generally understand that they are not to circumvent the meaning of legislation with some kind of analysis based on the instrument’s supposed “purpose.”

While it is frequently accepted that the objective of statutory interpretation is to discern legislative intent, the question of why we would want to do so is not frequently interrogated. After all, while it may make eminent sense to give effect to a law that was passed a week ago, why would a self-governing people want to be governed by legislation that was passed by a legislature that is no longer in session? Perhaps by a different political party? The answer is partially pragmatic (it would be awfully cumbersome to have to re-enact every law each time a legislature was dissolved) but the real reason is the existence of the democratic feedback loop. Statutory interpretation operates on the presumption that, if no legislature has repealed or amended the statute, the people (as represented by the legislature) are content with it as it stands. In fact, this is the reason why no legislature can bind a future one to things like supermajority requirements. Because it is the people’s current intention – and not their past intention – that governs.

Constitutional law is designed to be immune to the democratic feedback loop. At least some aspects of the constitution are specifically intended to limit democratic institutions. The essence of that aspect of constitutionalism is the protection of vulnerable and/or minority groups from the potential for ill-treatment by the majority. Sometimes these protections take the role of institutional structures (such as federalism, regional representation in central institutions, and, according to some, a separation of powers) and other times they are specific guarantees of rights that specifically limit government action: freedom of expression, equality, or even “life, liberty and security of the person.” Cumulatively, this constitutional architecture is supposed to create a balance between self-government and limited government, ensuring that Canadians can govern ourselves, while not permitting the majority to oppress minorities.

This sounds great in theory, but immediately creates a dilemma: who gets to decide on the limits of “limited government?” Someone has to, and (if the constitution is going to be effective at curbing democratic excess) it has to be a different “someone” than the majoritarian institutions that actually do the governing. And although there are different models around the world, in Canada (like our American neighbours), we entrust that job to the Courts. This is not an uncontroversial decision, for a number of reasons. First, it is not clear that courts are institutionally well-suited to the job, with their adversarial model of fact-finding and decision-making. Second, courts are presided over by judges, who are just (as Justice Stratas recently said) lawyers who have received a judicial commission. There is no reason to think they are especially well suited to weighing the interests that a complex society needs to achieve an ideal balance between, for example, liberty and security, or equality and religious freedom. Third, judges are famously unrepresentative: they are whiter, richer, more male, more Christian, older and more conservative than the population. Nowhere is this more apparent than the apex of judicial decision-making, the Supreme Court of Canada, which got its first female judge in the 1980s and has never had an indigenous or any type of non-white judge or a judge from the LGBTQ community. Eighty five of Canada’s ninety Supreme Court judges have been Christian, the other 5 have been Jewish. No Muslims, Hindus, Sikhs, or even (admitted) atheists . Nevertheless, these 9 judges get to make significant decisions that have a major impact on social policy. Since the Charter was enacted, the Supreme Court has had a major role in liberalizing access to abortion, permitting medical assistance in dying, liberalizing prostitution laws, freeing access to cannabis, prohibiting the death penalty, enhancing public employees’ right to strike, and many other social policy decisions that were different from the democratic choices made by legislatures. In Canada, most decisions to strike down legislation have tilted towards the liberal side of the political spectrum, but there have also been decisions (most infamously, relating to private health care in Quebec) that tilt more towards the conservative side. This is not inherent to the process of adjudicating rights: the United States Supreme Court has grown increasingly conservative in the last 20 years, striking down liberal legislation relating to campaign finance, voting rights, and only yesterday striking down pandemic limitations on gatherings in houses of worship.

The combination of anti-democratic process and anti-democratic outcomes that constitutional adjudication creates has been subject of concern and criticism since judicial review was created in Marbury v. Madison. This, in turn, has led to the development of theories that are designed to constrain judicial decision-making. While some of this may be results-oriented, at its core, the goal of all “court-constraining theories” of constitutional interpretation is to give constitutional decision-making a touchstone by which decisions can be evaluated. Readers of this blog will no doubt be familiar with these theories, such as textualism, or public-meaning originalism, which stand in contrast to what is sometimes referred to as “living tree constitutionalism” or (in Leonid’s catchy turn of phrase “constitutionalism from the cave”). While I will undoubtedly not do them justice, the “touchstone theories” posit that the meaning of constitutional rights are more-or-less fixed (although may need to be applied in novel situations) and it’s the job of the courts to find and apply those fixed meanings, while “living tree constitutionalism” allows the meaning of these rights to evolve over time, and it’s the job of the courts to decide when and how to permit that evolution to take place.

To use an over-simplified example, imagine a constitutional guarantee of “equality,” which (it is agreed) was understood to mean “equality of opportunity” at the time it was enacted. And imagine that 40 years later, it is established that the historical and systemic disadvantages suffered by certain groups means that merely providing equal opportunity proves insufficient to providing those groups with a fair outcome. Touchstone constitutionalists could suggest that although what constitutes “equality of opportunity” may have to change to meet changing social circumstances, but does not permit courts to go further and use the constitutional guarantee of “equality” to impose equality of outcomes. Living tree constitutionalists could posit that the guarantee of equality was intended to ensure that people do not suffer disadvantage because of their immutable characteristics, and if we now recognize that this can only be done by providing equality of outcome, then this is what courts should do.

What’s important to appreciate is that our protagonists on both sides are not disagreeing just on the outcome. They are disagreeing on the fundamental nature of the exercise. Touchstone constitutionalists believes that the courts’ job is essentially to be the “seeker” in a game of hide and seek, while the living tree constitutionalists believe that the courts are playing Jenga, carefully removing blocks from the bottom and building the tower ever higher, with its ultimate height limited only by how far they can reach.

Who is right and who is wrong in this debate? No one and everyone. In fact, as I read Mark’s post to which I am (ostensibly) responding, I understand his plea to be not that touchstones – regardless of how old they may be – are normatively a fantastic way to adjudicate modern problems but rather that the alternative to touchstones is anarchy (or Kritarchy), and that has to be worse. Similarly, critics of touchstone constitutionalism are concerned about being forever bound by the past, without providing a particularly good explanation of what could or should reasonably replace it without ultimately resorting to the idea that we have to trust our judges to make good decision. This of course, begs the question “if we are relying on someone’s judgment, why is it the judges and not the people’s through their democratically elected representatives?”

What am I saying? I’m saying that the “touchstone vs. tree” debate is actually a normative question, that people like to dress up as one that has an objectively ascertainable answer. But in truth, where you stand on this will really depend on your own personal value system, as informed by your own experiences. If you value predictability and stability, and/or the idea of judges making decisions about what is right, fair or socially appropriate is offensive to you, you may be inclined towards touchstone constitutionalism. If you value substantive outcomes, and see the judicial role as guaranteeing and enforcing rights as they evolve, you will be inclined towards the living tree. Of course, this is to some degree all a false dichotomy. There are many places available between either end of this spectrum and everyone ultimately ends up tends towards one of the more central positions. For example, it is difficult to find anyone who seriously doubts the correctness of Brown v. Board of Education, even though there’s at least an argument that certain touchstones informing the meaning of equal protection in the United States’ 14th amendment contemplated segregation. On the other hand, no matter how alive one’s tree might be, respect for a system of precedent is necessary if you are going to continue to call what you are doing “law” as opposed to policymaking by an unaccountable institution that has only faint markings of democratic accountability.

So why does constitutional law ruin everything? As I see it, is that this unresolvable dilemma in constitutional law has a tendency to bring its enormous baggage to other areas, and leave it there. But it’s not clear that these oversized duffles filled with decades of counter-majoritarian sentiment are really going to assist what I would consider to be the very different exercise of statutory interpretation (I’m well aware of the argument that the constitution is just an uber-statute and should be interpreted accordingly, but that’s really just an argument for touchstone constitutionalism so I will conveniently ignore it). Why? Because unlike in constitutional interpretation, we have broad consensus on how to go about the exercise of statutory interpretation entails: it entails trying to determine what the legislature intended by the text that it enacted. And although this exercise can be difficult at times, and reasonable (and unreasonable) people can often disagree, they are disagreeing on the outcome and not the process. No one truly suggests that the courts should play Jenga when interpreting statutes; they are always the seeker in a game of hide-and-seek, using well-understood tools and rules. Of late, we have been describing those as “text, context and purpose” but long before that catch phrase existed, we had the lawyer’s toolbox of logic, common sense, experience, and approximately 400 years of common-law jurisprudence on canons of statutory construction (well-defended by Leonid in his recent post). It’s true that these rules are convoluted and it’s not always straightforward to apply them. Some judges and courts give more weight to (for example) the purpose of statute and the presumption against absurdity, while others might be more interested in the intricacies of grammatical structure. But these are matters of emphasis, and the degree of variation relatively modest. In fact, there is a pretty strong consensus, at least among Canadian courts, about how the exercise of statutory interpretation ought to be conducted, and, in the main, it is done with amazing regularity.

OK so we have covered the constitution (where there is no agreement on the game, much less the rules) and statutes (where everyone is singing from the same hymnbook). What remains is common law, and it is probably the strangest of all these creatures because it is, by necessity, hide-and-seek but what you are looking for is Jenga blocks. There is, of course, an important touchstone courts and judges look to: precedent. But if you stretch far back enough, the touchstone itself has no touchstone other than “what judges think is best.” In many ways, it’s “law from the cave” but the cave is extremely old, dark, and you probably can’t see the exit, so you are stuck inside unless or until the legislature “rescues” you and replaces the common law rules. This leads to a fascinating problem: because it’s based on precedent, common law derives its authority from consistency. But because it’s judge-made, judges feel relatively free to remake it in appropriate circumstances. In many ways, it’s the worst of both theoretical worlds: it is bound by (some may say stuck in) the past and also readily changeable by judges. But somehow it works anyway, and with much fewer lamentations from the theorists who worry about either of these things (excluding, of course, administrative law, which by unwritten constitutional principle must be comprehensively re-written every ten years to keep a group of frustrated practitioners on their toes).

So in short, I endorse Mark’s sentiment that we need neutral principles in adjudication. But I disagree that they are in short supply. We have neutral principles in statutory interpretation, and they work as well as any system that is administered by a few hundred people across the country possibly could. We have essentially one neutral governing principle in common law analysis, which is “mostly follow precedent.” So what we are really talking about is constitutional law, where the debate between the touchstone cops and the living tree arborists is essentially unresolvable because when you scrape to the bottom it asks “what do you value in a legal system” and it’s no surprise that there isn’t universal agreement on this. But there is a strong consensus on how to engage in interpretation outside the constitutional context, and we should not let the constitutional disagreements obscure that.

In other words, constitutional law ruins everything. But I told you that at the beginning.

Neutrality in Legal Interpretation

Nowadays, it is unfashionable to say that legal rules, particularly rules of interpretation, should be “neutral.” Quite the opposite: now it is more fashionable to say that results in cases depend on the “politics” of a court on a particular day. Against this modern trend, not so long ago, it was Herbert Wechsler in his famous article “Towards Neutral Principles of Constitutional Law” who first advanced the idea of neutral principles. He wrote that, because courts must not act as a “naked power organ,” they must be “entirely principled” (Wechsler, at 19). They are principled when they rest their decisions “on reasons with respect to all the issues in the cases, reasons that in their generality and their neutrality transcend any immediate result that is involved” (Wechsler, at 19). The goal of these so-called “neutral principles” was to avoid “ad hoc evaluation” which Wechsler called “the deepest problem of our constitutionalism” (Wechsler, at 12). While Wechsler did not put it this way, I think textualism—particularly in statute law—is the closest thing to neutrality we have, and should be defended as such.

Wechsler’s idea of neutral principles, and textualism itself, are subject to much controversy. But, in my view, it is without a doubt that a deep problem in Canadian law remains “ad hoc evaluation,” otherwise known as “results-oriented reasoning.” Some judges are starting to recognize this. In constitutional law, Justices Brown and Rowe in the recent s.15 Fraser case noted that “substantive equality”—while a laudable doctrinal goal—has been ill-defined in the cases, and “has become an open-ended and undisciplined rhetorical device by which courts may privilege, without making explicit, their own policy preferences” (Fraser, at para 146). The same potential problem attends statutory interpretation, where results-oriented reasoning is possible (Entertainment Software Association, at para 76), and administrative law, where Vavilov was concerned with provides a rules-based framework for the application of deference. All of this is positive, because it provides a guide for judges in applying rules, ensuring that the reasoning process is transparent, bound, and fair to the parties.

But, in many ways, neutrality as a principle in our law is under attack. A common adage has become “law=politics,” and this broad, simple statement has elided the nuances that must apply when we speak of interpretation. This is true on both sides of the “political aisle” (a reference I make not out of any desire to do so, but out of necessity). Some who believe in notions of living constitutionalism or unbounded purposivism would tie the meaning of law to whatever a particular political community thinks in the current day, ostensibly because the current day is more enlightened than days past. In some ways this might be true as a factual matter (putting aside questions of legitimacy). But, as we are learning in real time, we have no guarantee that the present will be any more enlightened than the past.  Still others now advance a novel idea of “common good constitutionalism,” under which the meaning of constitutional text—whatever it is—must align with a “robust, substantively conservative approach to constitutional law and interpretation.” The goal is a “substantive moral constitutionalism…not enslaved to the original meaning of the Constitution.” These views have something in common: they purport to view the interpretation of law as a means to an end, reading in to legal texts contentious, political values that may or may not be actually reflected in the laws themselves.

The attack on neutrality from these camps—that span the spectrum—follow a familiar path, at least implicitly. They reason from an end. In other words, the argument assumes that some end is coextensive with moral justice, whatever that is. It assumes that the end is a good thing. It then says that the law should encompass that end because it is good.

Legal interpretation should not work this way. Laws, whether statutes or Constitutions, embody certain value choices and purposes. They have an internal meaning, quite apart from what other people want a particular law to mean. In this way, it is true that law is a purposive activity, in that law does pursue some end. But, as is well known, law is not co-extensive with justice, nor is it helpful to the interpretation of laws to say they pursue the “common good” or some other bromide. Even if one could come to some stable definition of such terms (a tall task indeed) that could guide the task of legal interpretation, it isn’t clear that all of the goals associated with some external philosophy are co-extensive with the law as adopted.   Laws do pursue purposes, but they do not do so at all costs—they often pursue limited or specific goals that are evident only when one reads the text (see the debate in West Fraser between the opinions of McLachlin CJC and Côté J on this point). This is why purpose is usually best sourced in text, not in some external philosophy.

If we accept that law is indeed a purposive endeavour, and that the words used by legislatures and drafters are the means by which purposes are enacted, then textualism is a defensible way of discovering those purposes. Textualism is simply the idea that we must read text to discover all that it fairly encompasses. Textualism is really a family of tools that we can use to discover that text. There are the linguistic canons—ejusdem generis, and the like—that are generally based on the way humans tend to speak in ordinary terms. There are contextual canons, such as the rule that statutes must be interpreted holistically. There are substantive canons of construction (which I will get to later). And there are other tools, like purpose, which can guide textualist interpretation so long as it is sourced properly. Unlike other theories of “interpretation,” these tools are designed to find the meaning of the law from within, rather than imposing some meaning on it without.

I can think of at least three (and probably more) objections to the point I am making here. First, one might say that textualism and its family of tools are not themselves neutral. For example, some of the substantive canons of construction might be said to be imbued with presuppositions about the ways laws must be interpreted. For example, there is the rule that statutes altering the common law require a clear statement in order to do so.  This is not a value-neutral tool, it could be said, because it makes it difficult for statutes to override what one might call a generally “conservative” common law. I do see the merit of this argument, which is why I (and some other textualists) may wish to assign a lesser role to substantive canons. Indeed, since I believe in legislative sovereignty, the legislature should be able to change the common law without a clear statement. Of course, these canons could be justified on other grounds that I do not have space to explore here. For example, they could be justified as a matter of precedent, or as a matter of “stabilizing” the law.

Second, one might trot out the familiar canard that textualism as a general matter leads to “conservative” outcomes. To put this argument in its most favourable light, one might say that textualism leads to cramped interpretations of statutes, robbing them of their majestic generalities that could serve to achieve certain political aims. It’s worth noting three responses to this position. First, the “cramped interpretation” argument tends to conflate strict constructionism and textualism. Indeed, textualism may sometimes lead to “broad” interpretation of statutes if text and purpose, working synthetically, lead to that conclusion. A great recent example is the Bostock decision from the United States Supreme Court, which I wrote about here. There, textualism led to a result that was actually more protective of certain rights.  Second, the use of political labels to describe legal doctrines is a pernicious trend that must come to an end. Even if these labels were actually stable in meaning, and not themselves tools of cultural warfare, it is unfair to assume that any one legal theory is always something. I understand the need to box everything, these days, into neat categories. But sometimes, law can mean many different things. And tools used to interpret those laws, as much as possible, should remain apart from the political aims those laws wish to pursue.

Third, it might be said that true neutrality is not of this world. That is, it could be argued that a Solomonic law is impossible, and no matter what, the act of interpretation is a fundamentally human activity that will be imbued with traditionally human biases. I accept this point. Because judges are humans, no system of rules will always remove the human aspect of judging, nor should it. The best we can do is design a system of rules, in mind of the tradeoffs, that limits the pernicious forms of biases and political reasoning that could infect the law. We won’t always get it right, but we should not take the nihilistic view that the entire enterprise of law as something separate from politics is not worth pursuing.

Finally, one might argue that law is inextricably political. It is cooked up in legislatures made up of thoroughly political individuals, with agendas. It is enforced by people who have biases of their own. I also accept this point. But this argument, to me, runs up against two major problems that limit its force. First, while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be. Not at all. In fact, one might say that the rules of interpretation should be used to discover the meaning of the law, whatever political result it encompasses. Second, there is a major is/ought problem here. Just because the making of law is political does not mean we should not be concerned with a system of rules designed to limit biases that might infect the judging process. All people, regardless of ideology, should find this goal laudable.

I close with this. I understand that we live in sclerotic times in which there are passionate political views on many sides. There is a natural tendency to impose those views into law. We lose something when this happens. While perhaps not a sufficient condition for legitimacy, it is central to the Rule of Law that laws be promulgated and interpreted in a fair way. Generality, as Wechsler notes, is one guarantee of fairness. If we give up on generality and neutrality in interpretation, then we must admit that judges are simply political actors, agents of politicians, without any need for independence. It is self-evident that this is undesirable.

Still Keeping It Complicated

The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.

As mentioned in my last post, Justice Abella insists that her approach to interpretation is “contextual” and, above all, “purposive”. In truth, it might be better described as authorizing constitution-making by the Supreme Court. It is “the Court” ― following an American usage, Justice Abella does not bother specifying which one ― that “has, over time, decided who and what came within the Charter’s protective scope”. [49] The Supreme Court does not simply decide cases in which the question arose. No, it apparently ruled, as a matter of discretion, on whom the Charter will protect going forward.

Judicial rulings in constitutional cases are not, for Justice Abella, mere workings out of the constitution’s meaning. Indeed, the constitutional text plays no special role in interpretation for her. This is unsurprising, because Justice Abella embraces the view that co-blogger Mark Mancini recently described as “linguistic nihilism” ― the idea “that language is never clear, or put differently, hopelessly vague or ambiguous”, so that “the task of interpretation based on text is a fool’s game”. (Of course this is of a piece with Justice Abella’s commitments in administrative law.) It is also unsurprising, then, that her discussion of international materials suggests that text does not really matter at all, and a variety of differently-worded provisions all stand for the exact same principles, without any meaningful inquiry into the relevance, if any, of their language. In fact, Justice Abella is openly disdainful of the possibility that textual nuance ― such as “the presence of a comma” [75] ― might make a difference in interpretation.

Another reason for Justice Abella’s refusal to be bound by constitutional text is that this ” could unduly constrain the scope of [constitutional] rights”. [75] This reflects the conviction, common among living constitutionalists, that judicial re-writing of constitutions is a one-way ratchet unfailing causing rights to expand. This view is belied by experience. But, quite apart from that: “unduly” by what standard? If not by reference to text, how do we know what is the due scope of constitutional rights? This ambiguity is of a piece with Justice Abella’s insistence that section 12 “is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.” [51] Is meant… by whom? Intended… by whom? And how do we know?

As Mr. Oliphant and I noted in the paper linked to above, “[m]arks on paper have no will or agency and thus can have no ‘purposes’ or ‘intentions’ that are independent of willful actors”. (537) One possibility, as we suggested, is that this language becomes an opening for an inquiry into the intentions of the Charter‘s framers. But Justice Abella isn’t very interested in that. Unlike the Supreme Court in some cases, she doesn’t consider the Charter‘s drafting history or the views of its framers, beyond a passing reference to Pierre Trudeau’s general comments about the Charter‘s raison d’être.

Justice Abella’s use of ambiguous language and the passive voice, like her refusal to be bound by text or to commit to any hierarchy of interpretive sources, suggest that she believes herself to have has complete discretion in deciding what the Charter is to mean. Her own sense of justice is the only standard of who is “due” protection under the constitution, and what protection they are “due”. This is unsurprising, of course, from someone who professes impatience with the Rule of Law and prefers a “rule of justice”. Constitutional purposes, as she conceives of them, are Platonic abstractions, which the wise ― she the wisest ― must interpret for the rest of us.

As I have said a number of times in the past, “constitutionalism from the cave” is not real constitutionalism. It is antithetical to the Rule of Law. Ultimately, it undermines the foundations of judicial review: if the constitution means whatever unelected judges preoccupied with international approval more than with the law or the commands of the constitution’s framers say it means, there is no particular reason why the political branches would comply with these judges’ musings. It is good that this view is dealt a defeat by the Supreme Court’s majority.

In contrast to Justice Abella, Justices Brown and Rowe emphasize the importance of constitutional text. It is not, I think, merely a matter of the text being chronologically the first consideration for a court engaged in constitutional interpretation: “constitutional interpretation” is “the interpretation of the text of the Constitution”. [9] The text is its focus and overriding constraint; it has “primacy” over other considerations. [10, citing Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511 at [36]]

One way in which the text matters is, of course, through the ordinary meaning of its words and the inferences that can be drawn from it. Here, since the word “cruel” refers to the infliction of human suffering, it stands to reason that section 12 does not protect corporations. But the significance of the text goes further. The history of the text and the changes it underwent are relevant too, as Justices Brown and Rowe show by pointing ― in language that, as I noted in my last post, closely mirrors that of my comment on the Court of Appeal’s decision in this case ― to the contrast between the language of section 12 and that of its predecessors in Magna Carta and the Bill of Rights 1688. Other provisions on the text are relevant too.

To my mind, this ― so far as it goes ― is a sound approach to constitutional interpretation, and I am happy to see it forcefully stated by a majority of the Supreme Court. If I were to put a label on it, it would be “textualism”. Consider the definition of textualism given by then-Judge, now Justice Amy Coney Barrett in a lecture I reviewed here:

Textualism … insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

This is what Justices Brown and Rowe are doing: insisting that the object of interpretation is words, text, and focusing on their ordinary meaning, which is a hard constraint on interpretation.

Yet Justices Brown and Rowe reject the label of textualism. To their mind, what they are doing is purposive interpretation. Judge Barrett, as she then was, saw purposivism as the opposite of textualism, though in my post I cautioned that “many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive”. Perhaps this is what Justices Brown and Rowe are advocating ― a sort of “purposivism”, if that’s what they prefer to call it, but one that has a great deal more in common with textualism as defined by Judge Barrett than with “purposivism” as defined by Justice Abella.

So maybe the moral of the story here is that we all should be less hung up on labels. But in my view there is a real cost to the lack of clarity that the labels used by the Supreme Court generate. I wrote about this here when I commented on R v Stillman, 2019 SCC 40. In that case, similarly to here, the majority and the dissent both claimed to be engaged in purposive interpretation. But the majority, I argued, was in effect following a public meaning originalist (and hence textualist) approach, while the dissent was doing constitutionalism from the cave. As I said then, to pretend that textualist interpretation is really purposive generates unnecessary detours. Here, the majority’s references to human dignity as the purpose of section 12 do no real work, and unnecessarily burden the reasoning with what is, by the Supreme Court’s own well-known admission in R v Kapp, 2008 SCC 41, [2008] 2 SCR 483, “an abstract and subjective notion”. [22] And, as I also said in my comment on Stillman, mislabeling an originalist or textualist interpretation as purposivist makes it possible for the partisans of an entirely different version of purposivism to invoke cases that go directly against their views as support for them. Justice Abella does precisely that here (at [73]).

Worse still, from my perspective, than the mere confusion about labels is the seeming rejection by Justices Brown and Rowe of the substance of public meaning originalism, under the label of “new textualism” which they borrow from Aharon Barak’s Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, where it stands as a shorthand for Justice’s Scalia’s interpretive approach. This is the idea, as President Barak put it, “that that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment”. (82; reference omitted) Justices Brown and Rowe claim that this approach is “not remotely consistent” [12] with theirs. If they are right, this would be the first rejection of public meaning originalism by the Supreme Court. As Mr. Oliphant and I have shown, until now, the only versions of originalism that had been clearly rejected were those, disfavoured by originalists themselves, that focus on original expected applications and outcomes.

Yet it will take more than this opinion of Justices Brown and Rowe to make me give up on originalism. Let me note, first, that Justice Brown himself was a co-author of the Stillman majority opinion (and that its other co-author was Justice Moldaver, who agrees with Justices Brown and Rowe here). I described that opinion as “perhaps the most originalist, and specifically public-meaning originalist, in a constitutional case since that of the majority in Caron“. And yes, Caron ― which Justices Brown and Rowe repeatedly cite ― was a public-meaning originalist judgment, as I explained here. Both Stillman and Caron focused on ascertaining the meaning of the constitutional provisions at issue there by reference to how they would have been understood by “a reasonable reader at the time of enactment”, over dissents that favoured, respectively a more policy-infused approach and one based on the alleged intent of the framers. If Justices Brown and Rowe really meant to reject public meaning originalism, would they be relying on these cases? That seems implausible.

No less importantly, consider what Justices Brown and Rowe say elsewhere in their opinion. When they discuss the use of international and foreign materials, they draw an “important distinction … between instruments that pre‑ and post‑date the Charter“. [41] The former “clearly form part of the historical context of a Charter right and illuminate the way it was framed”, whether or not they were binding on Canada. The latter, only matter if they bind Canada, and even then subject to only a presumption that Canadian constitutional law conforms to them, and to the principle that international law does not automatically become part of Canadian law. This isn’t quite originalism: an originalist would be warier still of materials that post-date the Charter, although, as I am about to explain, without necessarily rejecting their relevance in all cases. But it’s pretty close. Originalists believe that constitutional text must be interpreted in context as of the date of its enactment, and reference to international materials available to Canadian framers is certainly a legitimate part of ascertaining the context in which the Charter‘s original meaning should be established. The fact that Justices Brown and Rowe draw a dividing line at the moment of the Charter’s enactment suggests that they are, in fact, open to something like originalist thinking.

All in all, my point is not that Justices Brown and Rowe are originalists. However, they are textualists, which is a big part of originalism, and their approach has at least some significant affinities with public meaning originalism. It is unfortunate that their self-misunderstanding muddies the waters. But if we focus on what they do rather than on what they say about what they do we can see that their opinion, despite its flaws, is an important step in the right direction, and by far preferable to Justice Abella’s.

I turn, finally, to the issue of international and comparative materials. I agree with the majority’s calls for care and discernment in the way such materials are used. Partly this is a matter of legal and intellectual rigour. Partly, as Justices Brown and Rowe say, of “preserving the integrity of the Canadian constitutional structure, and Canadian sovereignty”. [23] Justice Abella’s concerns about whether foreign scholars and courts will pay attention to Canadian constitutional law are beside the point. Ultimately, the Canadian constitution means what it means, and not what some international treaty, let alone foreign constitutional text, might mean ― a matter on which Canadian courts often could not pronounce. I would, however, add two further observations, which I already made here in discussing similar issues that arose in the Supreme Court’s decision in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3.

First, international and foreign materials may be more relevant and persuasive to courts engaged in constitutional construction, and in particular (but not only) in the demarcation of reasonable limits on rights under section 1 of the Charter, than in cases such as this one, which concern the interpretation of the Charter‘s text. When courts develop legal doctrine, they have more reason to look to international experience ― including international experience post-dating the Charter‘s enactment ― than when they seek to discern the meaning of the Charter‘s words ― an exercise to which, as Justices Brown and Rowe recognize, international and foreign materials post-dating the Charter are unlikely to be relevant. The majority’s unwillingness to seriously engage with public meaning originalism causes it to seemingly lump all constitutional questions together and so to lose sight of this nuance.

Second, when and to the extent that international and foreign law is relevant, judicial consideration of it should, as I wrote in my comment on Frank, “not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete”. I’m not quite sure what Justices Brown and Rowe mean by saying that such materials should be kept to “providing support and confirmation for the result reached by way of purposive interpretation”. [22; emphasis in the original] But it would not be intellectually honest for a court to only consider materials that agree with its conclusions and deliberately discard others. If the court considers foreign and international sources, it should address those that it does not find persuasive.

The court should also be careful not to misunderstand or mischaracterize these sources. Justice Abella’s invocation of the “judges in the majority” in Furman v Georgia, 402 US 238 (1972), as having “definitively discussed” the purpose of the Eighth Amendment is an example of such dangers. There was no unified majority in Furman; the two judges whom Justice Abella quotes, Justices Marshall and Brennan, were in fact the only ones who took the position they took, which was that the death penalty was necessarily cruel and unusual punishment. Three others took a more limited view that opened the door to the re-imposition of the death penalty, which was given the green light in Gregg v Georgia, 428 US 153 (1976), in effect reversing Furman. If judges are to refer to foreign law, they need to understand and be honest about it.

Overall, the Supreme Court, and specifically the majority opinion of Justices Brown and Rowe, brings a welcome dose of rigour to the task of constitutional interpretation in Canada. The primacy of constitutional text as the object of interpretation is affirmed, while freewheeling discretion to make the constitution the best it can be in a judge’s opinion is rejected. There is also a more rigorous approach to the use of international and foreign materials in constitutional interpretation. Compared to the alternative vividly illustrated by Justice Abella, this is all very welcome (and all the more so if, as I hypothesized in my last post, Justice Abella’s opinion was originally intended to be the majority one).

But the majority opinion is very far from perfect, and it will perpetuate much of the confusion that afflicts constitutional interpretation in Canada. Even as it adopts the methods of textualism and is largely compatible with public meaning originalism it disclaims the former and purports to reject the latter. This messiness is the sad consequence of a lack of serious thought about constitutional interpretation in Canada. One can only hope that this gap will be filled in the years to come.

You Read It Here First

The Supreme Court holds that the Charter does not protect corporations against cruel and unusual punishment

Can corporations avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “any cruel and unusual treatment or punishment”? In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 the Supreme Court unanimously holds that it cannot. The question excited some debate, both for its own sake and also for its implications for constitutional interpretation more broadly, in the wake of the Québec Court of Appeal’s decision in this case, 9147-0732 Québec inc c Directeur des poursuites criminelles et pénales, 2019 QCCA 373. I argued against the position of the Court of Appeal’s majority and in favour of the one now adopted by the Supreme Court (here and then here); others, however, disagreed.

The narrow issue of the scope of section 12 is now decided, at least as a matter of positive law. But the splits among the Supreme Court’s judges and the ambiguities of the majority opinion delivered by Justices Brown and Rowe (with the agreement of the Chief Justice and Justices Moldaver and Côté) mean that the broader question of how Canadian courts should interpret the constitution remains unsettled. Although both the majority and Justice Abella, who concurs (with Justices Karakatsanis and Martin) claim for themselves the mantle of purposivism, the majority moves in a textualist direction, even as it denies doing so, while the concurrence defends an approach under which the constitution means whatever the Supreme Court thinks it should mean, though it does not quite admit it. Justice Kasirer, meanwhile, concurs in the result and pointedly refuses to step into his colleagues’ interpretive debate.

In this post, I summarize the opinions. I will follow up with comments, mostly on constitutional interpretation, in a separate post tomorrow. Benjamin Oliphant will also have comments in the coming days, dealing with both constitutional interpretation generally and the use of international law in particular.

The respondent (we’re not actually going to refer to it ― or to the case as a whole ― by the number, are we? what are supposed to call this case though?) was charged with having undertaken some construction work without the requisite license. It argued that the fine it would have to pay would be excessive, and thus in violation of section 12 of the Charter. All three judgments made short work of this view. All commended the dissenting reasons of Justice Chamberland at the Court of Appeal and, like him, all pointed to the fact that cruelty referred to the infliction of suffering in body or mind, of which human beings were capable, and legal persons were not. Justice Kasirer’s concurrence, which limits itself to making these points, is all of five paragraphs long.

But, for whatever reason, the other eight judges do not think this is enough. They debate the general principles of constitutional interpretation, focusing on two main issues: first, the primacy, or lack thereof, of the constitutional text; and second, the role of international materials. The subject of this debate is unusual for a Supreme Court of Canada decision: constitutional interpretation is seldom addressed at such length even in cases that actually turn on it, which this one doesn’t really. So is the debate’s vehemence. The perennial talk of the differences between the mean, originalism-debating US Supreme Court and its kinder, gentler Canadian counterpart was always overwrought, but it feels especially out of place now.

Another oddity of the debate between the majority opinion and that of Justice Abella is that the former seems to have been written entirely in response to the latter. It is a rare majority opinion that is introduced by a disclaimer that “[d]espite our agreement in the result, we find it necessary to write separately”. [3] I wonder whether the decision was originally assigned to Justice Abella, but some judges (starting presumably with Justices Brown and Rowe), being dissatisfied with her treatment of the interpretive issues, wrote separately, and ended up peeling off others, forming a new majority. Be that as it may, it is perhaps useful to start with Justice Abella’s reasons, since the majority responds to them more than the other way around.

Justice Abella describes her interpretive approach as “contextual” and “purposive”. The text has no special role to play in determining the Charter’s import: “examining the text of the Charter is only the beginning of the interpretive exercise, an exercise which is fundamentally different from interpreting a statute”, [71] and “elevating the plain text” of the Charter’s provisions “to a factor of special significance” is a mistake. [72] Due to its often “vague, open-ended language … [t]he text of those provisions may … be of comparatively limited assistance in interpreting their scope”. [74] Indeed, attaching too much importance to constitutional text

could unduly constrain the scope of those rights, or even yield two irreconcilable conclusions leading, for example, to the interpretive triumph of the presence of a comma in expanding gun-owners’ rights under the Second Amendment of the United States Constitution in District of Columbia v Heller, 554 US 570 (2008) [75]

Insisting on the primacy of the plain text of Charter rights” also undermines the constitution’s ability of to develop and “creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold”. [76] Finally, “[a] textualist approach would also make Canadian constitutional law more insular”, [78] by which Justice Abella means both less inclined to consider foreign authority and less attractive as a reference point to foreign jurists.

Rather, purpose has to be inferred from a variety of contextual indicia, there being no “rigid hierarchy among these interpretative guides”, [80] although elsewhere Justice Abella suggests that “the principles and values underlying the enactment of the Charter provision are the primary interpretive tools”. [70] Justice Abella refers to dictionary definitions of the word “cruel”, the textual context of section 12 (notably the fact that almost no other “legal rights” protected by the Charter have been held to extend to corporations), and the historical context of its enactment (with respect to which Justice Abella briefly refers to the Bill of Rights 1688, the comments of some judges in  Furman v Georgia, 408 US 238 (1972), and the Canadian Bill of Rights).

Justice Abella also refers, copiously, to contemporary interpretations of section 12’s equivalents in foreign and international instruments. This is justified, she argues, by the fact that “Canada’s rights protections emerged from the same chrysalis of outrage” about Nazi crimes “as other countries around the world”. [98] It also ensures that Canada maintains a “leading voice internationally in constitutional adjudication”. [106] Unlike the majority, she wants to avoid creating a “hierarchical sliding scale of persuasiveness” [104] among these sources and “thereby transform[] the Court’s usual panoramic search for global wisdom into a series of compartmentalized barriers”. [61] Textual differences among these sources do not matter, because “a common meaning can be ascribed to their various formulations”. [108] These sources include international treaties, both those to which Canada is a and those to which it is not (like the American Convention on Human Rights), as well as the interpretations of these treaties by the relevant adjudicative bodies, as well as the jurisprudence of foreign domestic courts.

All these sources tend to the same conclusion:

In line with the global consensus, [section 12’s] purpose is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. … Since it cannot be said that corporations have an interest that falls within the purpose of the guarantee, they do not fall within s. 12’s scope. [135-36]

The majority, as already noted, strongly disagrees with Justice Abella’s approach. Like Justice Abella, Justices Brown and Rowe purport to interpret the Charter in a purposive manner. However, they accuse Justice Abella of “minimizing the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation”. [4] They insist that

within the purposive approach, the analysis must begin by considering the text of the provision … because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text”. [8-9; emphasis in the original]

They add that “[g]iving primacy to the text” [10] is also the way to avoid framing the purpose of a provision too narrowly or too broadly.

Justices Brown and Rowe reject the charge that they are favouring a narrowly textualist approach. What Aharon Barak’s described, in his Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, as “new textualism”, a “‘system [which] holds that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment’ and in which ‘[r]eference to the history of the text’s creation . . . is not allowed’” [12], is “not remotely consistent with [the approach] which we apply and which our law demands”. [12]

Analyzing section 12, Justices Brown and Rowe first note that “the words ‘cruel and unusual treatment or punishment’ refer to human pain and suffering, both physical and mental”. [14; emphasis in the original] They mostly endorse Justice Abella’s historical analysis, although they “add that an examination of s. 12’s historical origins shows that the Charter took a different path from its predecessors”, [16] going back to Magna Carta, because “the right not to be denied reasonable bail without just cause was carved off from the right to be free from cruel and unusual punishment, and placed in s. 11(e) of the Charter”, while “[e]ven more significantly, the protection against ‘excessive fines’ was not retained at all”. [16] All “this is highly significant, if not determinative: excessive fines (which a corporation can sustain), without more, are not unconstitutional”. [17]

Readers may have seen these arguments before: in part, of course, in Justice Chamberland’s dissent at the Court of Appeal, but the reference to both Magna Carta and to section 11(e) of the Charter first appeared right here, in my comment on the Court of Appeal’s decision. Here’s what I wrote:

The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained. These drafting choices ought to matter. In particular, the Charter’s text means that excessive fines are not, without more, unconstitutional. (Paragraph break removed, emphasis added)

I’ll let the reader judge how likely the similarity ― not only of ideas, of course, but of the way in which they are presented and even of the words used, especially the passage quoted above from paragraph 17 and the italicized sentence from my post ― is to be coincidental.

Justices Brown and Rowe then move on to discussing the use of international materials. This discussion, though, is still relevant to a more general consideration of constitutional interpretation. It begin with an assertion that “[a]s a constitutional document that was ‘made in Canada’ … the Charter and its provisions are primarily interpreted with regards to Canadian law and history”. [20] International and foreign materials can “support or confirm an interpretation arrived at through the Big M Drug Mart approach”, but not “to define the scope of Charter rights”. [28] Different types of instruments should also be treated differently: those that are binding on Canada are entitled to a presumption that the Charter is consistent with them; others are not. The date on which the international instruments came into being matters too:

International instruments that pre‑date the Charter can clearly form part of the historical context of a Charter right and illuminate the way it was framed. Here, whether Canada is or is not a party to such instruments is less important … As for instruments that post‑date the Charter, … [i]t can readily be seen that an instrument that post‑dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/or contributed to the development of the Charter. [41-42]

Foreign judicial decisions, meanwhile, must be invoked with “[p]articular caution” [43] and subject to an explanation as to the “way they are instructive, how they are being used, or why the particular sources are being relied on”. [44]

I am happy to see such extensive debate of constitutional interpretation taking place at the Supreme Court, though like Justice Kasirer I am a bit mystified by the reasons why it took place in this case. As co-blogger Mark Mancini and I argued just recently, Canadian law will benefit from more and better conversations about constitutional interpretation. A discussion of the use of international and comparative materials is also welcome, though again I wonder if this was the case in which it had to happen.

At the same time, by way of a preview of my next post, I will say that the treatment of constitutional interpretation in this case is not altogether satisfactory. To be sure, the majority opinion is a step in the right direction, as the contrast with Justice Abella’s concurrence makes clear. Yet although a substantive improvement on the alternative, this opinion engages in some misdirection and perpetuates the confusion that all too often characterize discussions of constitutional interpretation in Canada.

Let Us Reason Together

A call for dialogue on constitutional interpretation, free from anti-originalist myths

This post is co-written with Mark Mancini

The nomination of Amy Coney Barrett, an originalist scholar and appellate judge, to the US Supreme Court provoked a flare-up of interest in originalism from people who do not normally spend much time thinking about constitutional interpretation. That would be all to the good, if this engagement did not all too often rely on myths and misconceptions, some of them dating from the early days of modern originalism, others bearing little relationship with what any serious originalists in the US and Canada believe. (An entire Twitter account has now sprung up to collect some of these misconceptions.) In this post, we address a couple of myths about constitutional interpretation that underlie the memes, tweetstorms, and political zingers, and call on our readers to engage in more fruitful conversation about constitutional interpretation.

Myth 1: Originalism freezes the preferences and intentions of the founders in law

The overall view of originalism held or propagated by most of its lay critics and, alas, many professional ones, is that it is meant to keep it exactly as the framers of the constitution intended, obstinately refusing to recognize any changes in society that have occurred since the framing. Hence the much repeated claims that, for example, Justice Barrett couldn’t even be appointed to the Supreme Court since the framers of the US Constitution had not anticipated women judges. In the Canadian context, those who hold this view insist that a rewriting of the Constitution Act, 1867 by living constitutionalist judges was necessary to make women eligible to serve in the Senate, since the Fathers of Confederation did not mean for them to do so.

These claims are based on several misconceptions. One has to do with the nature of the originalist enterprise. Most originalists today recognize that it is both wrong and, in all likelihood, futile to seek to give effect to the intentions or expectations of the framers of a constitution. Wrong, because only that which is enacted through the relevant constitution-making process, can be binding. Intentions, hopes, and expectations are not. Futile, because―as the critics of early versions of originalism pointed out―constitutional texts are typically compromises reached by large and diverse groups of framers, who do not necessarily share intentions and expectations as to what their handiwork will achieve and how it will be applied in practice.

The task of the originalist constitutional interpreter is to focus on that on which the framers of the constitution agreed and which is binding law: the text. This is not to say that originalism is equivalent to “strict constructionism”. A good originalist knows that text is read in context, and some originalist theories, at least, even accommodate the idea of unwritten constitutional rules. A good originalist, like Justice Barrett, also knows that legal texts can be written at different levels of generality, and that they can employ standards as well as rules, and seeks to give effect to the language as written, neither narrowing it if broad nor expanding it if narrow.

This, incidentally, is another reason why an “expected applications” approach to interpretation is not good originalism. If the framers of the text used language that calls on its interpreters to engage in moral or practical reasoning, for example by prohibiting “cruel” punishments or “unreasonable” searches, the interpreters who would confine the text to what was regarded as cruel or unreasonable when it was enacted would disregard these instructions. To the extent that this is what the derisive label of “frozen rights” or “frozen concepts” interpretation refers to, the derision is justified. But, while in fairness to originalism’s doubters such criticism could be levelled at its early practitioners (including, sometimes, Justice Scalia), contemporary originalists know better than to make this mistake.

As a result, more often than not, originalism has no difficulty applying constitutional rules to changing and developing society. Broad constitutional language will encompass cases not anticipated by its framers. The so-called “Persons Case” is an example: it is probably true that the Fathers of Confederation would not have expected women to be appointed to the Senate, but they used language that, as Lord Sankey shows, naturally extended to women, and therefore did not need to be construed as barring their appointment. Another example from the United States: infrared technology, used to “search” homes from the outside, were clearly not in the contemplation of the framers. But Justice Scalia, originalist though he was, held in Kyllo that using it was indeed a search for the purposes of the 4th Amendment, which protects the privacy of the home from invasion by new means as well as old.

That said, originalists do not believe that constitutional language, even when broad, let alone when precise, is infinitely malleable. As Lord Sankey says in the Persons Case, had the framers of 1867 chosen to specify that Senators were required to be men, no legitimate interpretation could have bypassed or overturned this choice. Indeed, few, if any, living constitutionalists would disagree. This brings us to the next myth.

Myth 2: Originalists just don’t want the constitution to change

What if the Constitution Act, 1867 had specified that being male was a qualification for being a Senator? Originalists believe that such an unfortunate drafting choice of the constitution’s framers would have had to be undone by constitutional amendment, and welcomed such an amendment. Originalism is an approach to interpreting a text as it stands from time to time; it does not counsel against that text being amended when it is no longer in tune with the needs of society, provided that the amendment is carried out by means provided in the constitution, rather than by the courts. The claims, made by originalism’s American critics, that originalists would somehow disregard constitutional amendments that protect the rights of African Americans, women, and other groups are quite without foundation in any originalists’ actual commitments. They also ignore voluminous originalist research into the meaning of these amendments.

In Canada, any appeals to the possibility of constitutional amendment tend to be dismissed as fanciful. Our constitution is said to be impossible to amend. But this simply isn’t so. Indeed, given that Canada is a federation, it is difficult to imagine an amending formulate less restrictive than the “7/50” that the Constitution Act, 1982 makes the default. It is worth recalling that prior to 1982 convention required at least as much consensus, and possibly unanimity―and yet amendments to the Constitution Act, 1867 were made from time to time. This is not to deny, of course, that convincing our fellow-citizens and legislators that our favourite constitutional reform projects are worthwhile is difficult. But this is as it should be in a constitutional democracy, and no reason for seeking to implement these projects through judicial fiat.

A call to Dialogue

Now, originalism is not above criticism or beyond reproach. For example, we might usefully debate the feasibility of inquiries into the original public meaning of constitutional texts, the worry that a public meaning originalism that acknowledges the underdeterminacy of much constitutional language fails to usefully constrain judges, and the possibility that self-proclaimed originalist judges will only use their ostensible commitments as a smokescreen to hide their implementation of favoured policies. Originalism faces theoretical challenges, such as the issue of its relationship with the principle of stare decisis (to which Judge Barrett devoted much of her scholarship), and―especially in the Canadian context―the need to make sense of significant unwritten constitutional rules.

We would welcome engagement with these issues, so long as it took originalism as a serious theory and practice, rather than a self-evidently mistaken unCanadian aberration. For all the protestations of the Canadian legal academy (and, more rarely, of the courts) that originalism has no place in our jurisprudence, it is simply beyond doubt that something akin to originalism is often, although by no means always, an important factor in the Supreme Court’s decision-making. If the Court is wrong to reason in this way, the critics should explain why, instead of insisting, in the face of evidence to the contrary, that it doesn’t.

We would also welcome a clear articulation of the critics’ own interpretive commitments, which is curiously missing from Canadian (and, mostly, even American) scholarship. We are admonished that the Canadian constitution is a “living tree”, but seldom told what precisely this means. For example, when are the courts entitled or required to “evolve” constitutional meaning? On what should they base their decision to do so? Are there limits to their power? By what means does living constitutionalism protect against judges who are less enlightened than the framers of the constitution or who think that changed circumstances require restricting rights instead of expanding them? Without an explanation on these and some other matters, it is difficult to compare the plausibility of living constitutionalist and originalist theories, and assertions of the former’s superiority fall to be taken on faith, which is antithetical to serious scholarly or even political debate.

Such debate would be to our mutual advantage, originalists and living constitutionalists alike. After all, we are not merely trying to score rhetorical points or preserve our positions, whether in politics or in the academy, from competitors. We are trying to answer difficult but consequential questions about the way in which judicial power ought to be exercised and our fundamental laws are to be applied. If we are to have any chance of getting at the right answers to these questions, we need to make our best arguments and measure them against the best arguments of those who disagree with us. Come, let us reason together.

Missing the Forest for the Living Tree

What Lord Sankey actually meant with his living tree metaphor

It is often said that the only interpretive method sanctioned in Canadian constitutional law is one that recognizes , in a well known articulation in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, “that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life”. [22] The “living tree” metaphor comes from a decision of the Judicial Committee of the Privy Council in Edwards v Canada (Attorney General), [1930] AC 124, [1930] 1 DLR 98, better known as the “Persons Case” because it resolved the question of whether women could be “qualified persons” for the purposes of section 24 of the then-British North America Act, 1867, which governs appointments to the Senate.

As Benjamin Oliphant and I have shown, the conventional view that living constitutionalism is our law is mistaken: the Supreme Court in fact frequently, if unsystematically, resorts to other interpretive methods, and indeed the Same-Sex Marriage Reference itself is consistent with an originalist approach. Moreover, as we discuss at some length, and as I long-ago suggested here, and now-Justice Bradley Miller has demonstrated, the view that Edwards employed and requires what has come to be known as “living tree” interpretation is simply wrong. It cannot be sustained on a fair reading of the case, which turns on the deployment of orthodox statutory interpretation techniques.

But of course the people who invoke Edwards and the “living tree” metaphor aren’t making it up: the words really are there. But what exactly do they signify, if not that the meaning of the constitution changes over time? Here is my best reading: it is shorthand for the Canadian constitution as a whole ― the constitution considered, in J.A.G. Griffith’s phrase, as “just what happens” ― as opposed to the text of what we now call the Constitution Acts.

Recall that Lord Sankey’s judgment proceeds in two main sections: first he deals with what he refers to as “[t]he external evidence derived from extraneous circumstances”, (DLR 99) namely the suggestion that the reference to “persons” in section 24 was specifically a reference to male persons because it implicitly incorporated the common law rule excluding women from public office. This, Lord Sankey says, “is a relic of days more barbarous than ours”, (99) and he is generally unimpressed with the strength of this “external” evidence, which had swayed the majority of the Supreme Court of Canada.

Towards the end of that section of his judgment, Lord Sankey starts pivoting to the interpretation of section 24 itself. He notes that

No doubt in any code where women were expressly excluded from public office the problem would present no difficulty, but where instead of such exclusion those entitled to be summoned to or placed in public office are described under the word “person” different considerations arise.

The word is ambiguous and in its original meaning would undoubtedly embrace members of either sex. On the other hand, supposing in an Act of Parliament several centuries ago it had been enacted that any person should be entitled to be elected to a particular office it would have been understood that the word only referred to males, but the cause of this was not because the word “person” could not include females but because at Common Law a woman was incapable of serving a public office. (104-105)

The question is whether such implicit understandings are binding. Lord Sankey warns that “[c]ustoms are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared”. (105) He says, accordingly, that history ― in this case, the history of the exclusion of women from public office ― is not determinative. With this he turns to the examination of “the internal evidence derived from the [B.N.A.] Act itself”, (106) beginning not far from where he left off: with a warning that the Judicial Commitee “must take great care … not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another”. (106)

And then, after a quick glance at the history of Confederation, Lord Sankey comes to the famous metaphor:

The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.

“Like all written constitutions it has been subject to development through usage and convention:” (Canadian Constitutional Studies, Sir Robert Borden, 1922, p. 55) .

Their Lordships do not conceive it ta be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs. (DLR 106-107)

A couple of further general considerations follow. For one thing, Lord Sankey notes that, while it is true that a “large and liberal” interpretation is appropriate for a constitutional statute, “the question is not what may be supposed to have been intended, but what has been said”. (107) (This blog’s readers need go no further than yesterday’s post by co-blogger Mark Mancini for a re-articulation of this principle.) For another:

[T]heir Lordships [are not] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one either male or female has a right to be summoned to the Senate. The real point at issue is whether the Governor-General has a right to summon women to the Senate.

And then Lord Sankey gets on with really deciding the case by deploying the whole arsenal of usual statutory interpretation techniques. In my earlier post on Edwards, I compared this to “Ravel’s Boléro, an almost-endless repetition of the same simple theme with different instruments”.

Putting all that together, it is clear that Lord Sankey’s judgment is, above all, textualist. He attaches little attention to early history or to intentions and expectations. (Justice Wakeling of the Alberta Court of Appeal, among others, should take note.) By the same token, he is not trying to re-write the text, or to give words new meanings they didn’t have at the time of their enactment. As he says, if the statute referred to men alone instead of using language that in its “original meaning” could encompass women, the case would be open and shut. To repeat, the “living tree” is absolutely not an invitation to update the constitution. But what is it?

To the extent the metaphor does work, it is to help warn against the temptation to “cut down the provisions of the Act by a narrow and technical construction”. Rather, Lord Sankey says, they must receive “a large and liberal interpretation” ― consistent, however, “not [with] what may be supposed to have been intended, but what has been said” ― to ensure freedom of action “within certain fixed limits” ― fixed, mind you! ― for governments, federal and provincial alike. In this sense, Edwards really is about the right of the Governor General, which is to say of the federal government of the day, to appoint women to the Senate. It is this freedom that must not be unnecessarily curtailed, or “cut down” as Lord Sankey says.

The actions of the government in the constitutional sphere ― “just what happens” ― are the living tree. This tree can grow as society changes, because the government will take actions, which will then develop into practices, and these in turn into “usage and conventions”, in response to social change. But this growth is constrained by constitutional text, whose meaning, while free of presuppositions long pre-dating its enactment, may not change.

It is unfortunate that people appeal to the authority of Lord Sankey’s judgment in Edwards without actually thinking about what that judgment says and does. Justice Rothstein admitted, in a lecture, that he’d never read it until retiring from the Supreme Court. I suspect he is not alone. Of course people who extol Lord Sankey also pay not heed to his overtly originalist opinion in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The 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, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

But the Aeronautics Reference is a niche interest, a hidden gem. Edwards, by contrast, is supposed to be the most iconic case in all of Canadian constitutional jurisprudence, a font of wisdom and a national symbol, a literal monument. And it truly is a great case, with a great judgment given by a great jurist. If only people would pay it the well-deserved compliment of understanding what makes its greatness by reading it closely from beginning to end instead of just taking a line out of the decision, they wouldn’t miss the forest for the living tree.

The Sex Appeal of Power

I’ve noticed a disturbing trend recently, in both politics and law. The idea is what I call the “one-way ratchet fallacy” of power. It goes like this: when an institution or entity obtains power of some kind, that power will only ever be used to fulfill certain goals rather than others. That is, people might assume that power will always run in favour of the policy outcomes they like. This is, in a word, naïve—but at worst, it is a gross misunderstanding of the problems with power. The increasing tendency to think this way only reinforces the need for law and custom to limit, rather than unleash, power.

Two examples come to mind that illustrate this phenomenon. The first is an issue near and dear to my heart, and that issue is constitutional interpretation. In Canada, a major misunderstanding of the Persons Case holds that Canada’s Constitution is a “living tree”—in other words, the Constitution must “grow” to fit the emerging realities of today’s society. Under this theory, judges in a system of strong judicial review decide when and in what direction the Constitution should evolve.

Putting aside the fact that only some work has been done to actually provide rules to govern the “living tree” theory, and also putting aside the fact that the Supreme Court has never provided such guidance (and in fact does not consistently endorse this theory), there is a certain “ideological sex appeal” to living constitutionalism, as Chief Justice Rehnquist once said. That appeal is that the law and the Constitution can be used to achieve policy outcomes that one likes, ensuring that the Constitution protects certain outcomes that are consistent with “evolving standards of decency” (to borrow an American phrase). Unsurprisingly, progressives see the potential in living constitutionalism. It is a good way to ensure the Constitution keeps up with modern times and, potentially, modern progressive causes.

But, there is a major risk that should cause those who endorse living constitutionalism to pause. Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels. The risk was put eloquently by Justice David Stratas of the Federal Court of Appeal in a talk a few years ago. The general gist of it is this: imagine, some years from now (or maybe we do not even need to imagine) that there is some existential crisis affecting our society. Courts are asked to deal with a legal issue arising out of that crisis. Would we rather the court decide the matter according to settled doctrine, painstakingly developed over generations? Or on the personal say-so of judges? There is a risk that the personal say-so of a judge might run in a direction that progressives would not like. Basically, without rules governing the exercise of legal power by judges, it’s a coin flip in terms of result.

Lest anyone think that this is an inherent flaw of progressives, those on the right can also fall victim to the alluring sex appeal of power. A good example is the recent Trump administration move to “ban” government contracting and other relations with businesses and others that offer some critical race theory training. Now, it is more than fair to say there are major debates raging right now about critical race theory. That’s a somewhat separate issue. What is important here is that the power of the government is being used to root out certain ideas rather than others.

This is a different issue from living constitutionalism, since here it could be argued that governments have the power to implement their view of the “public good;” law, by its nature, is supposed to be governed by rules that are as close to “neutral” as possible. So those on the right might feel emboldened by Trump’s move because it implements their view of the good. But once the precedent is set that governments can police ideology by picking winners and losers in business, and ferret out views it doesn’t like from the inside, it is just as possible that a future administration could fall victim to the sex appeal of power in the opposite direction. Power can be used, in the future, to limit the spread of ideas that those on the right might find appealing: free market economics, personal liberty, whatever it is.

While the situation is admittedly slightly different than the living constitutionalism example, this situation calls for a political custom surrounding the exercise of power. As Dicey said, laws are not enough; there must be a “spirit of legality” that governs the exercise of power. This is understood as a reference to customary norms governing the exercise of power. Surely, one custom might be that governments shouldn’t pick winners and losers based on ideology (within reason).

The living constitution example and the critical race theory example illustrate the sex appeal of power. It can be exercised in a certain political direction, to be sure. And it might feel good for power to be exercised to the benefit of certain political factions. But the more power is granted to certain actors, and the more that laws and customs liberate that power, the more we might expect the one-way ratchet to keep ratcheting up. In politics, this might be one thing. But in law—especially when it comes to constitutional interpretation—the sex appeal of power is positively dangerous.