constitutional interpretation
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Constitutional Conventions and Senate Reform
Fabien Gélinas and I have written a paper on the (under-appreciated yet crucial) role of constitutional conventions for assessing the constitutionality of the federal government’s plans for reforming the Senate, which are the subject of references now being considered both by the Supreme Court and by the Québec Court of Appeal. (The factums for the… Continue reading
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What Will They Be Thinking?
Jack Balkin has an interesting post on Balkinization, discussing what he calls “arguments from the future” in constitutional law―arguments to the effect that a constitutional issue has to be resolved a certain way because of what people will think about it at some point in the future, say in 20 years. “If,” he writes, like Martin… Continue reading
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Original Myth
Any constitution, at least I suppose any constitution that has existed for a while, is surrounded by myths―stories that we tell ourselves to explain why things are as they are and, often, to reassure ourselves that they are as they ought to be. Among the myths surrounding the Canadian constitution, one of the most popular… Continue reading
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Much Ado About a Living Tree
In preparation for a guest-lecture on constitutional interpretation that I am going to give in a few weeks at McGill, I just re-read the famous “Persons Case”―Edwards v. Canada (Attorney General), [1930] A.C. 124. It is remembered for its invocation of the “living tree” metaphor and for consecrating a “large and liberal” and evolving approach… Continue reading
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Interpreting Interpretations
I would like to come back to the two cases I mentioned in yesterday’s post―A.-G. Canada v A.-G. Ontario, [1937] A.C. 326, better known as the Labour Conventions Reference, and Missouri v. Holland, because they might tell us something about a problem much broader than the issue (important though it is in its own right) that… Continue reading
Double Aspect 