An Originalism for North Freedonia

Thoughts on an essay on “Originalism without Text” by Stephen Sachs ― and its relevance to Canada

The latest issue of the Yale Law Journal includes a short but very interesting essay by Stephen Sachs, “Originalism without Text“. To be an originalist, prof. Sachs argues, is not just (or mostly) “to read words in a particular way”. (157) It is to attach special significance to the legal past, indeed to “treat[e] modern law as vulnerable to history as open to refutation by claims about the past”. (158) This claim matters for originalist theory but, and this is the point on which I want to focus here, it is especially important for any attempt to give an originalist account of the Canadian constitution.

Prof. Sachs asks us to imagine a hypothetical polity, Freedonia, that “has no writing and no written law”. (159) Its law, such as it is, is an oral tradition transmitted from generation to generation. If Freedonia decides to designate a particular point in the evolution of this tradition as a reference, and to say that no deviation from the law as it then stood is to be tolerated, then, says Prof. Sachs, Freedonia is an originalist polity. If innovations are made, and criticized on account of departing from that historical reference, such criticism is originalist.

This is so regardless of the fact that the critics’ point is not about enforcing the meaning of a canonical legal text ― which is what originalism is often understood to be about. In Prof. Sachs’s view, what matters is not whether the critics are appealing to the authority of a legal text, but the fact that “[t]hey’re trying to recover the content of the law as it stood at a specific point in history, because they believe that this antique law determines the law as it stands today”. (161) Prof. Sachs points out that “[n]ot all law is written law, and not every society needs to rely on it in the same way”. (164) Indeed, even in those polities where “unwritten” law coexists with written documents, it is important not to make the mistake of “reading the text correctly while utterly misunderstanding the legal role it was to play”. (165)

Prof. Sachs’s main concern seems to be with how the term “originalism” itself is used. He writes that “Freedonia is just a hypothetical, and it’s also a special case. In the real world, where literacy is widespread and ink is plentiful, we tend to write these things down” (168) ― these things being the fundamental rules according to which the polity functions. But I would suggest that the real world is more varied, and Freedonia is less hypothetical that Prof. Sachs lets on.

Consider another polity ― call it North Freedonia ― whose fundamental rules are of two kinds. An important part was written down at a particular historical juncture, some 150 years ago, when important institutional reforms were undertaken. But these reforms, important though they were, were not meant to upend other rules that existed in the form of unwritten understandings. Indeed, when one part of the rules was being written down, this was done in a way that only made sense on the assumption that the other, unwritten, part of the rules would continue in force. Much later, 35 years ago, North Freedonia again changed its fundamental rules, including by agreeing on a procedure for future amendments to replace informally-developed arrangements that had previously been made for this purpose. Once again, however, the unwritten rules ― which had evolved somewhat but remained stable in some key ways over the intervening 115 years ― were left in place, and the newly-written rules, as much as those written down a century earlier, only made sense in light of the unwritten ones.

Can North Freedonia be originalist? Admittedly, scholars of high authority tell us that it is not. North Freedonian judges themselves tend not to think of themselves as being originalists; some loudly disparage the idea. But when they decide cases, their record is actually mixed. Though their decisions are far from consistently originalist, or consistently anything in particular, it is originalist rather more often than they care to admit. Still, could North Freedonians be consistent originalists even if they tried? On some views, those that Prof. Sachs challenges, the fact that some of their most important rules are not written down in authoritative texts would be a problem for them. Prof. Sachs argues forcefully and, in my view, convincingly, that these views are misguided. Though crucial aspects of North Freedonia’s constitution are unwritten, and though even the written parts rely on unwritten ones, North Freedonia could be originalist if it recognizes the authority of its past and accepts that claims about what it rules are today can be defeated by claims about what they were 35 or 150 years ago.

Now, some North Freedonians will object that Prof. Sachs’s theory is inapplicable to their polity, because it is about “recovering law” from the past ― and the unwritten rules of North Freedonia’s constitution are not actually laws, having been neither enacted in legislation nor laid down in judicial precedent. They are, instead, derived from the practice of North Freedonia’s political actors trying to exercise their discretionary powers in accordance with North Freedonia’s fundamental constitutional principles. But the objection is not convincing. The unwritten laws of Prof. Sachs’s Freedonia itself have never been enacted or, or at least for the most part, laid down in authoritative precedents. They are a tradition developed over time, up to a defined point in history, by the authorities responsible for its application. Though North Freedonia’s institutional arrangements are more complex than Freedonia’s, and include a measure of separation of powers, especially between judicial and other officials, the process by which its unwritten rules came to be, and thus their nature, is not relevantly different from those in Freedonia.

North Freedonias could be originalists if they wanted to.  Needless to say, that does not mean that they are, or prove that they ought to be. I’d say that they ought to give the idea some serious thought though. Jeffrey Pojanowski has outlined some very good reasons to do so in an excellent recent essay. But a fuller argument from me on that point must wait. Prof. Sachs’s conclusions are important in their own right, and an impetus for further reflection ― including in non-hypothetical polities.

Which Principles? What Politicization?

A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada

In a blog post over at Advocates for the Rule of Law (and in a previous version at À qui de droit), my friend and sometime guest Maxime St-Hilaire argues that

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood … as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.

Whether or not “politicization” is the best possible label for this sort of adjudication, and whether or not it is the greatest challenge facing the Supreme Court ― both plausible but debatable propositions ― I agree that the danger Prof. St-Hilaire identifies is a serious one. It is a challenge, moreover, not only for the Court, or even the judiciary as a whole, but for the legal profession, which is too readily supportive of adjudication that does not abide by the requirements of the Rule of Law.

However, precisely because this is a very serious issue, it is important to be careful in circumscribing it ― not to accuse the Supreme Court of being “political” or disregarding the Rule of Law when it is not. And here, I part company with Prof. St-Hilaire to some extent. Some of the specific instances of politicization that he identifies are indeed examples of the Court failing to act judicially or to uphold the law. Others, in my view, are not.

I agree with Prof. St-Hilaire’s criticism of the Supreme Court’s theoretical embrace of living constitutionalism in theory ― and its practical embrace of interpretive eclecticism with few if any principles to constrain cherry-picking interpretive approaches. If, in other jurisdictions, there is such a thing as a “law of interpretation” (to borrow the title of a recent article by William Baude and Stephen E Sachs), constitutional interpretation in Canada seems to be largely lawless, as most recently highlighted by Benjamin Oliphant. Indeed, I would go further than Prof. St-Hilaire (if I understand him correctly), and argue that judges ought to be originalists in order to uphold the principles of the Rule of Law and constitutionalism, because, as Jeffrey Pojanowski argues,

if one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms.

I share Prof. St-Hilaire’s unease at the Supreme Court’s often unprincipled practice of suspending declarations of invalidity of legislation. While I once argued that this device had some redeeming virtues, the Court’s failure to articulate and apply coherent principles for deploying it nullifies these virtues. As things currently stand, the Court’s approach to suspended declarations of unconstitutionality is yet another manifestation of the sort of uncabined discretion that is antithetical to the Rule of Law.

I also agree with Prof. St-Hilaire that the Supreme Court’s approach to review of allegedly unconstitutional administrative decisions under the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 is a “denial of constitutional justice”. (That said, it is worth noting that the Court’s application of this framework is a mess, and it might matter less than the Court itself suggests ― though is a Rule of Law problem in its own right.) And I agree with Prof. St-Hilaire’s criticisms of the Court’s approach to s 15 of the Canadian Charter (including because it is flatly inconsistent with its original meaning, as Justice Binnie, among others, openly recognized).

Now on to some of my disagreements with Prof. St-Hilaire. Some of them we have already canvassed at some length. I remain of the view (previously expressed here) that judges can, in appropriate cases, criticize the legitimacy of their colleagues’ adjudicative techniques. Indeed, I am puzzled by prof. St-Hilaire’s insistence on the contrary. Can a judge who agrees with his critique of the Supreme Court not say so? I also remain of the view, that courts can, subject to usual rules on justiciability, pronounce on constitutional conventions, which are not essentially different from legal rules. I most recently expressed and explained this view in a post here criticizing the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, and in this short article for a special issue of the Supreme Court Law Review.

New, to this space at least, is my disagreement with Prof. St-Hilaire on the scope of the doctrine of res judicata and the force of stare decisis. Prof. St-Hilaire accuses the Supreme Court of “conflating the two principles”, and of playing fast and loose with both. In his view, stare decisis is about “the general/indirect jurisprudential authority of judicial reasons”, while res judicata concerns “the particular/direct authority of judicial decisions per se, and taken separately”. When the Supreme Court upheld the constitutionality of the criminalisation of assisted suicide in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, that rendered the matter res judicata, and should have prevented the courts, including the Supreme Court itself, from revisiting the matter, as they eventually did in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. More broadly, the Supreme Court has been too cavalier with precedent, in particular in the area of labour law.

I agree with Prof. St-Hilaire that the Supreme Court has in some cases ― especially those concerning the purported constitutional rights of labour unions ― disregarded precedent without any compelling reason to do so. For reasons best explained, I think, by Jeremy Waldron, a fairly robust version of stare decisis is an important component of the Rule of Law. However, in my view, prof. St-Hilaire takes this point much too far. For my part, I am content to accept the Supreme Court’s explanation in Canada (Attorney General) v Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 SCR 477 that “res judicata … require[s] that the dispute be between the same parties”, as well as on the same issue, while stare decisis is the broader ― and more flexible ― principle that applies “when the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata“. [25] This is not merely a terminological dispute. The point is that courts should be able to reverse their own decisions, albeit with the greatest circumspection.

Without fully defending my views, I would argue that the criteria set out in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 are a sound guideline, provided that they are rigorously applied (which they were not in the labour union cases). Precedent, the Court held,

may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [42]

I think this is right, because while the stability of the law, its diachronic coherence, is very important, the law’s consistency at any given time point, its ability to remain a “seamless web”, or synchronic coherence, is important too, and also a requirement of the Rule of Law. These two dimensions of legal coherence are in tension, and sometimes in conflict, and I think it is a mistake to say, as I take it Prof. St-Hilaire does, that diachronic coherence must always prevail. Perhaps more controversially, I am inclined to think that there is also a case to be made for the proposition that the Rule of Law can accommodate, if it does not positively require, departures from precedent that serve to make the law make sense in light of changed circumstances and evidence. The ideas of non-arbitrariness and congruence between the law on the books and its real-world application at least point in that direction, though the argument would be worth developing in more detail.

I will end where Prof. St-Hilaire begins: with judicial appointments. (Of course, the process of appointment is not part of adjudication. But it makes sense to consider it in a discussion of the danger of the politicization of the Supreme Court, even though it doesn’t fit within Prof. St-Hilaire’s definition of that term.) Prof. St-Hilaire criticizes the inclusion of “parliamentary consultation” in the appointment process, and I agree with him to that extent. However, I do not share the main thrust of his comments, which is that we need to move “from more political criteria to increasingly professional criteria in the selection of” Supreme Court judges. Political control over judicial appointments is an important check on the power of the courts, as well as an indispensable means to inject some much needed ideological diversity into the judiciary. The current judiciary and legal profession are too homogeneous ― in their thinking, not (only) their skin colour ― for a “professional” appointments process to produce a judiciary that does not all believe the same pieties (including pieties about living constitutionalism and other things that Prof. St-Hilaire criticizes!). That said, since politicians should have the responsibility for judicial appointments, it is also politicians who should be held accountable for them. As Adam Dodek has suggested, the Justice Minister who should appear before Parliament to explain the government’s choice of Supreme Court judges ― but not (and here, I take it, I part company with prof. Dodek) the new judges themselves.

I share Prof. St-Hilaire’s view that “the Supreme Court must choose principle over politicization”. I am looking forward to the Runnymede Society’s forthcoming conference at which this call will no doubt be much reiterated ― including by yours truly. That said, though it reflects a nice sentiment, an appeal to principle over politics does not tell us very much. It leaves open both the question of what principles one should adopt, and of counts as objectionable politicization rather than mere good faith error. Prof. St-Hilaire and I disagree about that to some extent, as I have endeavoured to show. The debate must, and will, continue, and we should have no illusions about settling it with high-minded slogans.

The Originalist Papers

Benjamin Oliphant’s and my articles on originalism in Canada are officially out

Last year, I posted here the abstracts of two draft papers that Benjamin Oliphant and I had just finished writing. I am happy to report that both have now been published. The first one, “Has the Supreme Court of Canada Rejected ‘Originalism’?“, (2016) 42:1 Queen’s LJ 107, appeared back in January (despite what the journal says about the date!). The second, “Originalist Reasoning in Canadian Constitutional Jurisprudence“, (2017) 50:2 UBC L Rev 505, has only just come out.

In a nutshell, the first paper argues that, once we take stock of the developments in originalist thought (especially in the United States) over the last 30 years ― which too many Canadians who reject originalism out of hand have not done ― we realize that the answer to its title question is “no”. The precedents that are usually said to represent rejections of originalism do not support this conclusion. At most, they reject a type of originalism that no serious contemporary originalist endorses; they leave open the question of whether other originalist approaches might be used by Canadian courts.

The second paper answers this last question, from a descriptive perspective. It shows, with a variety of example drawn from the decisions both of the Judicial Committee of the Privy Council and the Supreme Court Canada, spanning most of our constitutional history since Confederation, that our jurisprudence is replete with examples of originalist reasoning of various sorts. In some cases, courts look to the meaning of constitutional provisions at the time of their enactment; in others to the intentions of their framers; and in a few, perhaps even to the exact way in which the framers would have expected these provisions to operate. We do not claim that our constitutional law is systematically originalist; nor do we claim, in this paper anyway, that it ought to be. But we do argue that originalism has a significant, if underestimated, presence in Canada, and deserves careful study and serious consideration by Canadian lawyers, whether they be in practice, in academia, or on the bench.

Working on these papers has been a whirlwind. We’ve gone from discussions about putting together the couple of blog posts we’d written on originalism (which, we thought, would be enough to make up 3/4 of the single paper we were intending to write) to two published papers totalling 130 pages in just over 18 months. The papers took up a big part of my life (during an otherwise busy period involving the little matter of moving to New Zealand) ― and I’m pretty sure that it was the same for my co-author. I am very glad that these papers are now out of our hands, and beyond the reach of last-minute edits ― though you will see that we did our best on that front, even adding a post-script to the second paper after the Supreme Court granted leave to appeal in R v Comeau, the “free the beer” case, just a few weeks ago. (Thanks to the UBC Law Review editors for accommodating us!)

I do hope that we will return to this topic eventually, though. Working with Mr. Oliphant has been a real pleasure, and I am very grateful to him for having taken time out of his busy life as an actual lawyer to go on this crazy adventure. If all goes well, you will hear from us (jointly or severally, and perhaps both) again. But for now, I at least will celebrate a bit. (No, not really. I have other papers to write.) And you, well, you should read our papers, if you haven’t yet!

An Invitation

Can those who endorse “living tree” constitutional interpretation tell us why, and what it entails?

When Benjamin Oliphant and I wrote our twin articles on originalism in Canada, we did our best to avoid normative conclusions other than a call for further reflection on, and greater consistency in, constitutional interpretation. But, for me at least ― I cannot speak for my co-author, of course ―, the normative inquiry seems like a natural step to be taken soon. (We’ll see when and in what form.) And, right now, my preliminary view is that Canadian constitutional jurisprudence ought to be (more) originalist (than it is now), because the alternative, the “living tree” approach to constitutional interpretation, suffers from various problems.

But before really getting into an argument about why this is so, I probably need to understand what it is that I want to argue against better. I have no wish to attack a straw-man. And there is a greater than usual danger of doing so in debates about constitutional interpretation. As Mr. Oliphant and I have shown, originalism is often poorly understood in Canada, and only obsolete or caricatured versions of it are criticized. In part, this is as no doubt due to a lack of a good Canadian review of what originalism is, which is why we devoted a good deal of space and effort to producing one. Unfortunately, I am not sure that there is an equivalent statement of the views of the other side in this debate either.

So, I would like to ask for my readers’ help. Presumably, many of you think that the constitution ought to be understood as a “living tree”. That’s what the Supreme Court often tells us, after all, even as it not infrequently does something else altogether. It would be very helpful, in advancing the debate about constitutional interpretation, if both sides articulated their views clearly. Presumably, the “living tree” camp has had a while to form its beliefs, even if it has not had much need to explain them in recent decades. Can some of those in this camp take a stab at doing so now?

One way of going about it would be to bring into sharper focus the living constitutionalists’ objections to originalism. To do that, they might address some of the issues that Lawrence Solum describes, in a most helpful recent post on his Legal Theory Blog, as being the main ones “that divide originalists and living constitutionalists.” Here they are, reformulated as questions for living constitutionalists and adapted to the Canadian context:

1) Do you think that the linguistic meaning (communicative content) of the constitutional text changes over time after its entrenchment (say in 1867 or 1982)?

2) Do you think that the Supreme Court, Parliament, and the provincial legislatures should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?

3) Do you think that the original meaning of constitutional text is either radically indeterminate or so underdeterminate that originalism would not meaningfully constrain constitutional practice?

4) Do you think that the original meaning of our constitutional texts is epistemically inaccessible (i.e. we cannot know, or at least show that we know, what it is)?

5) Do you think that that judges are incompetent to investigate original meaning or so biased that they will be unable to act in compliance with original meaning (perhaps even if dispassionate scholars could do so)? In other words, do you think that originalist judges would simply be ideologues?

(Professor Solum asks an additional question, whether those who reject originalism want to “simply retire the Constitution as a framework of government”, but I’m pretty confident that few if any Canadian living constitutionalists do. Perhaps they have other objections to originalism though. If so, I would love to hear about those too.)

Beyond clarifying their objections to originalism, it would be great if some proponents of “living tree” constitutional interpretation clearly articulated their positive commitments or beliefs. To this end, I would like to suggest a few more questions, though I do not mean the list to be exhaustive:

6) Is updating constitutional meaning the exclusive prerogative of courts, or can other institutions (Parliament, the legislatures, the Crown) do it too? Why? If political actors can “actualize” constitutional meaning, should the courts defer to their attempts to do so?

7) When courts or other constitutional actors update constitutional meaning, what should they be taking into account? There are several possibilities: judicial precedents; popular opinion; the rules or principles expressed or implicit in non-constitutional law (perhaps especially legislation) as it stands from time to time; the judges’ own philosophical beliefs; perhaps others.

8) Are there any constraints on courts or other constitutional actors updating constitutional meaning? What are they? Are such constraints useful or indeed essential?

I am not being facetious here. When I say that these are questions to which I do not know and would like to learn the answers, I mean it. They are big questions, of course, and you might think that to answer them in an appropriately serious fashion you would need to write an article, or even a book, and have no time for that. Fair enough. Or you might make that your next project, in which case I will be looking forward to reading you whenever you are ready! But if you would like to attempt some short answers, that would be fantastic. I would be delighted to publish them, if you are ok with me doing so, or I will keep them for my own edification. It’s all up to you.

Arguing against Originalism Badly

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

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

* * *

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

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

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

* * *

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

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

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

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

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

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

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

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

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

* * *

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

Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

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Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

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I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

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Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

Dirty Word or Dirty Little Secret?

My talk on originalism at the Université de Montréal

Last week, I spoke at the Université de Montréal about the two articles Benjamin Oliphant and I have co-written on originalism in Canada. Joanna Baron of the Runnymede Society organized the event, Matt Harrington, of UdeM’s common law programme, hosted it, and Dwight Newman commented on the presentation and the papers. I am very grateful to them all for making it happen! Here’s the video:

Ms. Baron and I also recorded a podcast for the forthcoming Runnymede Radio series (you can listen to a teaser here). It should be available in the coming weeks.

During my visit to Montreal I also gave a guest-lecture at McGill, which was as fun as speaking there always is, and I am very grateful to Johanne Poirier who gave me the opportunity to address her constitutional law class.