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.

Textualism for Hedgehogs

Why substantive canons belong in textualist interpretation, and what this tells us about neutral interpretive principles

I hope that you have read co-blogger Mark Mancini’s post on “Neutrality in Legal Interpretation“. In a nutshell, Mark argues for the application of politically neutral principles to the interpretation of legal texts, and against the fashionable view that it is inevitable, or indeed desirable, that interpreters will seek to fashion texts into instruments for the advancement of their preferred policy outcomes. It is a superb essay, and I agree with almost everything Mark says there.

Almost. In this post, I would like to explore one point of disagreement I have with Mark. Although it concerns a minor issue and does not detract from Mark’s overall argument at all, I think it helps us clarify our thinking both about legal interpretation and also about the meaning and purpose of legal neutrality. This point of disagreement concerns, of all things, “substantive canons of construction”.


Mark argues that textualism is a set of morally-neutral interpretive techniques that allow an interpreter to (my words, but Mark’s meaing, I think) serve as a faithful agent of the body enacting the legal text. (Mark focuses on statutes, but the same considerations apply to constitutional texts.) Other approaches allow or even require the interpreter to impose a certain set of substantive commitments, which may or may not be shared by the authors of the legal texts, on them. Textualism seeks to avoid doing so by asking the interpreter to focus on the text itself, relying on its letter and its spirit alone, rather than on any external commitments. In this context, Mark notes a possible (and indeed common) objection:

[O]ne 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. 

Mark appears to grant this objection to the use of substantive canons in statutory interpretation, while denying that it undermines his broader argument:

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. 

But then Mark walks back the concession to some extent, writing that “these canons could be justified on other grounds” , for example “as a matter of precedent, or as a matter of ‘stabilizing’ the law.”

By my lights, Mark’s initial concession is a mistake, and the walk-back too half-hearted. Substantive interpretive canons ― interpretive presumptions such as those requiring clear statements for statutes to derogate from common law or statutory rights, to change the law retroactively or to create exorbitant powers (for example Henry VIII clauses), or calling for narrow constructions of penal or taxing statutes ― deserve a more robust defence, which I will offer here. Most of them are not only “justified on other grounds” but are actually closely connected to the reasons for endorsing textualism and neutral interpretation more broadly.

These reasons include the separation of powers and democracy, which, taken together, mean that law should be changed in consequence of the choices of democratically elected legislatures and of such other actors to whom legislatures have properly delegated their law-making powers (assuming that such delegation can ever be proper). But they also include the Rule of Law, notably the idea that the law ought to be sufficiently public and certain to guide the subject. Textualism gives effect to the separation of powers and democracy by asking judges to give effect to legislatures’ choices and warning them not to override these choices by applying their own subjective preferences or substantive values not endorsed by the legislature. It also gives effect to the Rule of Law by ensuring that subjects, or at least their legal advisors, have access to the same information that will be used by those who interpret and apply the law. They can thus anticipate the law’s application better than if it can be given a meaning based on unenacted values available only to judges or administrators at the point of application.

Consider now how substantive canons serve the same ends. Their contribution to upholding the Rule of Law values of notice and guidance is perhaps most obvious. When courts refuse to read unclear or ambiguous statutes as imposing criminal or tax liability, they are ensuring that people are warned before their liberty and property are put in jeopardy, and can guide themselves accordingly. Similarly, when courts apply the principle of legality, which requires clear statutory language to over-ride or oust established common law rights, be they the right to access court (as in Justice Cromwell’s concurring opinion in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 or property rights in Wells v Newfoundland, [1999] 3 SCR 199, they ensure that people are given warning before these rights are abrogated. Justice Major, writing for the unanimous court in Wells, explained this:

In a nation governed by the rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to.  In the absence of a clear express intent to abrogate rights and obligations – rights of the highest importance to the individual – those rights remain in force.  To argue the opposite is to say that the government is bound only by its whim, not its word.   In Canada this is unacceptable, and does not accord with the nation’s understanding of the relationship between the state and its citizens. [46]

The argument about the relationship between textualism and separation of powers and democracy is perhaps somewhat less straightforward. But I think it’s not unfair to say that the obverse of insisting that it is the prerogative of legislatures, as the bodies representing the electorate, to have the law reflect their choices is that the law should reflect their choices. Textualism does this by emphasizing the primacy of text, which the legislature actually enacted, as the object of interpretation. Substantive canons are nothing more than an insistence that certain choices clearly appear to have been made in the text. Mark writes that “legislative sovereignty” means that “the legislature should be able to change the common law without a clear statement”, but I’m not sure that legislative supremacy requires deference to sotto voce or accidental legal change.

On the contrary, I think that for an interpreter to insist that the legislature spell out the consequences of its enactments rather than let them be inferred promotes legislative authority by requiring the democratic sovereign to squarely address the issues instead of leaving them to be worked out by unelected officials and judges. At the same time, however, it also promotes the more “negative” aspect of the separation of powers by freeing judges from becoming the legislatures’ accomplices is abuse of power. Subject to constitutional constraints, it is wrong for the courts not to give effect to legislation, but they are not, I think, under a duty to add to legislated iniquity of the legislature itself has not dared require it.

To be sure, it is possible for judges to misapply substantive interpretive canons so as to make them into instruments for refashioning legislation in accordance with their own preferences and values. Judges can be skillful practitioners of Nelsonian blindness and refuse to see in a statute that which is clearly there ― just as, on other occasions, they can see there that which is not. But I do not think that this necessarily makes substantive canons anathema to textualism. As then-Judge Amy Barrett has explained in a lecture devoted largely to a defence of textualism (which I summarized here), textualist adjudication is not mechanical. It requires judgment. A sparing ― judicious ― application of substantive canons calls for good judgment, but in this it is no different from other aspects of textualist interpretation or judicial decision-making more generally.

All that having been said, the impulse to disclaim and renounce the use of interpretive techniques that seem to bias adjudication in favour of particular outcomes is understandable as part of a broader appeal for neutrality. But here, I think, an appeal to precedent is relevant. Judges applying established substantive canons (or any other established interpretative techniques) is not introducing their own values into the law. They are not ― again, assuming they are not abusing their power ― wielding discretionary authority to bring the law into alignment with their policy preferences. They are not springing a surprise on the legislature (or the litigants). They are following established conventions for reading legal texts, which legislatures (or least the people drafting bills for them) can and ought to know.

Now, perhaps there is a further point of subtle disagreement between Mark and me here. Mark writes that “while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be”. I think this a little imprecise. Like other legal rules, the established conventions of interpretation are not, themselves, value-free; I don’t think they could be. The conventions of textualism promote democratic authority, the separation of powers, and the Rule of Law. These are political values, in a broad sense, and I think that a defence of textualism should proceed on the basis that these are good values, not that that textualism has nothing to do with them. What should indeed be apolitical, to the extent possible for human beings, is the application of interpretive rules, not their content. However, an interpretive rule whose content is such as to make apolitical application impossible, is of course flawed from this standpoint.


What we should be looking for, then, are interpretive rules that can be applied impartially ― not mechanically, to be sure, but without the interpreter drawing on his or her subjective values, preferences, and beliefs about good policy. At least some forms of purposivism, as well as living constitutionalism and its analogues in statutory interpretation fail this test. Textualism, as Mark argues, is a more promising approach. But at the same time ― and not coincidentally ― textualism promotes important constitutional values: the Rule of Law, democracy, and separation powers.

Substantive interpretive canons, I have argued, promote the same values, and thus have a place in textualist interpretation. Indeed, I would go so far as to say that substantive canons are pre-eminently textualist interpretive tools, rather than those of some other interpretive approach. Like other kinds of interpretive canons, to which Mark refers, they are rules about reading texts ― albeit more than the other kinds, perhaps, they are rules for reading legal and, even more specifically, legislative texts. Their use has little to with legislative purpose, for example, and they may sit uneasily with a pragmatist or evolutionist approach to interpretation. They are not attempts to devine a legislature’s intentions hidden between textual lines, but rather rules about the legal meaning of enacted texts. Textualists should embrace substantive canons, not just as a grudging concession to precedent, but as a set of tools to wield with discernment, but also with confidence.

“Purposive” Does Not Equal “Generous”: The Interpretation Act

It is often said in Canada that statutes must be interpreted “purposively” and “generously.” Many cite the federal Interpretation Act’s s.12, which apparently mandates this marriage between purposive and generous interpretation:

12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The Supreme Court has also accepted this general principle in the context of the judge-made rule that benefits-conferring legislation should be interpreted liberally (see Rizzo, and more recently, Michel v Graydon).

Putting aside the judge-made rule itself, which raises similar but somewhat separate questions, I write today to make a simple point: this injunction in the Interpretation Act cannot be read so as to render purposive interpretation the same as a “generous” interpretation. Doing so could violate the Supreme Court’s statutory interpretation jurisprudence, which promotes an authentic determination of purpose according to the legislative language under consideration (see my post on Rafilovich). Indeed, as is clear in the constitutional context, purposive interpretation will often lead to the narrowing of a right, rather than a generous interpretation of that right (see, for a recent example, R v Poulin). Similarly, a purposive interpretation in statute law will lead to a narrowing of the meaning of a particular statutory provision to its purposes. Those purposes will best be reflected in text (see Sullivan, at 193; see also here). For that reason, the Interpretation Act can only mandate a simple canon of interpretation: “The words of a governing text are of paramount concern, and what they convey, in their context is what the text means” (Scalia & Garner, at 56). Words should be interpreted fairly but only insofar as purpose reflected in text dictates.

One cannot read the Interpretation Act to mandate a generous interpretation over a purposive one. The text of the provision in question says that “fair, large and liberal construction” must be rendered in a way that “best ensures the attainment of the [enactment’s] objects.” This means that purpose is the anchor for a “generous” interpretation within those purposes. Put differently, we should read words to mean all that they can fairly mean, but we cannot use some injunction of “generosity” to supplant the words or the purposes they reflect.

Prioritizing “generosity” over the natural reading of text in its context would lead to all sorts of practical problems. For one, it is difficult to determine what a “generous” interpretation of a statute would mean in practical terms (see Scalia & Garner, at 365). Does this simply mean that “[a]ny doubt arising from difficulties of language should be resolved in favour of the claimant”? (see Rizzo, at para 36). This could be defensible. But the risk is that using the language of “generosity” could invite judges to expand the scope of language and purpose to suit policy outcomes/parties they prefer.

We should be careful of this language for this reason. More importantly, if “generosity” means that the legitimately-sourced purpose of legislation can be abrogated, the language is quite inconsistent with the Supreme Court’s actual approach to interpretation in recent cases (see Telus v Wellman and Rafilovich).

Rather, the reading of the relevant section of the Interpretation Act must be taken to conform with the Supreme Court’s governing approach to statutory interpretation.  In this sense, the “fair, large, and liberal” interpretive approach mandated by the Interpretation Act might be explained by contrasting it to an old form of interpretation that virtually no one adopts now: strict constructionism. Strict constructionism, most commonly adopted in the adage that “statutes in derogation of the common law were to be strictly construed” (Scalia & Garner, at 365) was unjustified because it violated the “fair meaning rule”; the text, in its context, must be interpreted fairly. No one today—not even textualists—are strict constructionists, because everyone accepts the idea that text must be interpreted fairly. If the Interpretation Act is a response to strict constructionism, its language could perhaps be forgiven. But it should be taken no further than the fair-meaning rule, which rests on identifying relevant purposes in text and using those purposes to guide textual interpretation.

An example of a party attempting to use the Interpretation Act is a manner I consider impermissible occurred in Hillier. There, Ms. Hillier relied on the Interpretation Act and the general canon of interpretation that benefits-conferring legislation is to be liberally interpreted. Putting aside this canon (dealt with in Hillier, at para 38), the Interpretation Act was marshalled by Ms. Hillier to suggest that the court should rule in her favour. Stratas JA rejected this erroneous reliance on the Interpretation Act, concluding (at para 39):

[39]  To similar effect is the interpretive rule in section 12 of the Interpretation Act. It provides that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Section 12 is not a licence for courts and administrative decision-makers to substitute a broad legislative purpose for one that is genuinely narrow or to construe legislative words strictly for strictness’ sake—in either case, to bend the legislation away from its authentic meaning. Section 12 instructs courts and administrative decision-makers to interpret provisions to fulfil the purposes they serve, broad or narrow, no more, no less.

This is an accurate description of the function of the Interpretation Act, which finds agreement with the Supreme Court’s statutory interpretation jurisprudence, such as I can discern it. Purpose—usually sourced in text—guides textual interpretation. Purpose and text should be read synthetically together to render a fair meaning of the language at hand. But broad notions of “generosity” or “fairness” should be not be used to supplant the authentic purpose(s) of legislation, derived in text. And “generosity” is not an end-round around the language the legislature actually uses.

Results-Oriented Conservatism: A Defence of Bostock

Should textualism lead to more “conservative” outcomes as a matter of course? No.

Those who wish to transform textualism—a methodology of interpretation—into a vessel for conservative policy outcomes are in the wrong business. Instead of being in the business of law, they are in the business of politics. For years, a small group of Canadian judges have fought hard against this tendency. As Justice Stratas, for example, notes in Hillier, at para 33:

Those we elect and, within legislative limits, their delegatees (e.g., Ministers making regulations) alone may take their freestanding policy preferences and make them bind by passing legislation. Absent constitutional concern, those who apply legislation—from the most obscure administrative decision-makers to the judges on our highest court—must take the legislation as it is, applying it without fear or favour. Their freestanding policy preferences do not bind, nor can they make them bind by amending the legislation: Euro-Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37, [2007] 3 S.C.R. 20 at para.

On this account, the proper venue for political change is the legislature, not the courts. For that reason, it was always faulty to attach a political agenda to textualism. Recent “disappointments” for conservatives at the Supreme Court of the United States are a reflection of the reality: textualism was never designed to achieve certain policy ends, and rightly so. Conservatives who wish to do so, in my view, are just as unprincipled as living treeists, who would adapt the Constitution and statutes to suit their policy preferences.

To make this point, I focus on the SCOTUS’ recent decision in Bostock, which has rankled conservatives who have a political agenda (though as I will note, there are others who have principled objections to the interpretation in Bostock). I first outline why, on first principles, Gorsuch J’s interpretation in the case is justified. Then I move on to consider the perils of the approach shared by some conservatives and progressives. As Brian Tamanaha notes in his important book, this results-oriented reasoning in statutory interpretation is profoundly disrespectful of the Rule of Law, which presupposes law as an independent field, a closed system–even if we may only reach that result imperfectly.

Bostock—Textual Interpretation

The case of Bostock in the United States is perhaps the best example of conservatives who have been somehow “betrayed” by textualism. Here are some examples:

  • In the link above, Josh Hammer says that Bostock represents the end of legal conservativism, arguing that “[w]hat we need is a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law…the common good and religious and moral traditions underlying Anglo-American constitutional order.” Forget if these traditions are not represented in legislation; they should somehow subvert Congress’ choices.
  • Senator Josh Hawley spelled the end of the conservative legal movement, arguing: “And if those are the things that we’ve been fighting for—it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives—if we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much.”
  • Robert George argues that the case “…vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding “progressive” strategy of imposing a substantive moral-political agenda through the courts by appointing “originalist” and “textualist” judges is hopeless.” What is the conservative version of such an agenda? The goal is to “…advance a socially conservative moral and political vision.”

I could go on. What unites these critiques is the idea that somehow the Court, in applying a plausible textual interpretation, failed conservatives on substantive grounds. To this I say: so be it. The place for these visions of the good deserve to be aired in public, not in august courtrooms.

What was the offense caused to conservatives in Bostock? The Court (per Gorsuch J for the majority) decided that Title VII protected against discrimination on the basis of sexual orientation and identity because such discrimination necessarily and logically involves discrimination on the basis of sex. The textual problem in Bostock was, in some ways, staggering: Title VII does not include sexual orientation or identity as distinct grounds of discrimination. However, for Gorsuch J, the ordinary meaning of the term “sex” applied today just as it did when Title VII was promulgated. Applying that definition, Gorsuch J reasoned that when one discriminates on the basis of sexual orientation or identity, one must necessarily discriminate on the basis of sex. This is because when one fires someone, for example, for being gay, they are necessarily making an implicit judgment about the person’s gender. If a man is attracted to another man, and is fired on that basis, the employer is implicitly saying that she would tolerate that attraction if the employee was a woman attracted to a man. Gender plays at least some small part in the decision to fire.

Because of the text of Title VII which prohibits discrimination “because of sex,” it did not matter if gender was not the primary cause of the discrimination. The “because of” standard encompasses even a 1% causal vector of the discrimination. This was supported by precedent.

Notably Gorsuch J refused to consider the fact that post-Title VII enactment Congresses have not amended Title VII to include sexual identity or orientation. This “post-enactment legislative history,” as it is technically called, should be anathema to textualists, because there is no good reason to suppose why Congresses failed to amend the statute. Just like pre-enactment legislative history, this sort of evidence should not ground an interpretation on its own; at best, it can be used with caution, particularly where the reason why Congress failed to act is clear.

My main point here is not to defend this particular interpretation, but I cannot help but make a tentative case for Gorsuch J’s view. I do this in order to demonstrate that the real dispute here is not a political one, but a legal one, between textualists. In my view, a number of interpretive considerations support his view.

Text: Gorsuch J’s textual interpretation comes down to the plausibility of his point that sex is inextricably linked to sexual orientation and identity: or more specifically, that discrimination on these grounds are all closely related. While Alito J in dissent disputed this point, and others have as well, there is some textual logic to it. First, there are at least some cases where sex is necessarily bound up with discrimination based on orientation. If there is even a chance that an employer could tolerate opposite sex attraction, but oppose same sex attraction, then the relevant difference is sex. With that aside, more importantly, a textual interpretation of the words “because of” leads to the conclusion that these words are broad. Broad words=broad meaning. On that account, any chance that discrimination could occur on the basis of sex, in the course of discrimination based on other unlisted grounds, is encompassed in the “because of” language.

Precedent supported this conclusion. In Oncale (per Scalia J, the king of textualists), Justice Scalia held that Title VII prohibited discrimination based on same-sex harassment. Why? Because the words “because of” encompassed situations involving same sex: “…we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of…sex” merely because the plaintiff and defendant…are of the same sex” (79).

This is a simple matter of dynamic interpretation. When courts interpret broad, causal language, they must apply these terms to new situations. This is not a re-writing of the statute. Indeed, both sides in Bostock agree that the meanings of “sex” and “because of” are the same when Title VII was enacted and in the present day. But where new fact situations arise, that original meaning must be applied to new situations. As Justice Scalia noted in Oncale, while male-on-male sexual harassment was not the evil Congress was concerned with when it enacted Title VII, “…statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed” (my emphasis). As Justice Scalia also says in his classic A Matter of Interpretation, statutory interpretation is governed by the rule that text should be interpreted “….to contain all that it fairly means” (23). This is all Gorsuch J did in Bostock.

Some might say this is a plain meaning approach. But I don’t see it. Justice Gorsuch gave the words “sex” and “because of” the same meaning they had when Title VII was enacted. He merely interpreted those words to encompass phenomenon that reasonably fall within their ambit. The fact that a phenomenon is new does not mean that it is necessarily excluded from broad statutory language. The question then is not whether Congress anticipated particular applications to new phenomenon. The question is whether the text can cover off those applications.

Context and Legislative History: If the text is clear—or at least clear enough—then there is no need or warrant to deviate from it. The Canadian Supreme Court accepts this reality (see Celgene, at para 21, and more, and more). And so does the American Supreme Court: see Milner. What this means is that legislative history, and post-enactment legislative history, cannot enter the interpretive task. This means that the fact Congress did not act to explicitly adopt certain explicit prohibitions is irrelevant.

Why should these be considered irrelevant? Post-enactment legislative history is a dangerous tool, on both principled and pragmatic grounds. On the former, legislative history goes to the intent of lawmakers, not to the natural import of the words they adopt in legislation. The latter matters. Whatever Congress did or didn’t do is of no relevance to the meaning of the words adopted. But the problems mount on pragmatic grounds. Legislative history, as Justice Scalia always noted, is not probative, because whatever people say may not be reflected in text. Post-enactment legislative history is even worse. Now we are trying to draw inferences based on what Congress did not do. That is a fool’s errand. As Justice Gorsuch notes, we will never know why Congress did not act to amend Title VII. This is not interpretation, but rather arm-chair psychology about what Congresses may have thought.

Results-Oriented Conservatism

Before continuing, I want to clearly acknowledge that there are plausible textual interpretations that run counter to Gorsuch J’s view. Some could argue that Gorsuch J’s analysis is a literalist approach, rather than one based on ordinary meaning. One could even say that Gorsuch J’s interpretation is itself compelled by results oriented reasoning, rather than the law. But this latter attack would only be strong if Gorsuch J’s approach was not plausibly based on text and precedent. Since, I hope, most would concede that this is a close call (in the name of humility), it is difficult to say anyone was results-oriented in Bostock. Better to keep politics out of it—after all, lawyers have no special political views warranting special treatment—and view the matter as a textual disagreement. I would characterize Bostock as a debate about legal interpretation, not political aims.

But there are exogenous, conservative forces that want to introduce this phantom into Bostock. Conservatives often get angry at progressives who invoke living constitutionalism (in Canada, the living tree metaphor) to adapt the Constitution to present realities. In Canada, we are familiar with this interpretive trick. How else to explain what Justice Abella did in SFL, where she, in all her wisdom, decided that it was now the time to grant “benediction” to a right to strike in Canada’s Constitution? The same phenomenon is at play when conservatives seek to use the law to achieve policy aims that should be achieved in the legislature.

Both attempts by ideologues to subvert law should be rejected. This is no longer a popular view, but law is an autonomous field, within reason, in the realm of statutory interpretation. The methods of interpretation are just that: methodologies. They are designed to reach the authentic meaning (contrast this with intent or expected application) of legislation. If a Congress passes legislation that is socialistic, then it should be authentically applied, leading to socialistic outcomes. If Congress passes legislation cutting back on social benefits, that legislation should be applied leading to its natural outcome. Judges do not bring special moral or political wisdom to the interpretive task. If lawyers are upset about the terms of legislation, they can speak out about it in the political realm. But that’s all.

The flaws of adopting a political approach to interpretation are not only present on a principled basis. If the political aims of legislation become the sole basis on which interpretation is conducted, then the incentive is to simply appoint people based on their substantive political views, not on the quality of their legal craft. To some extent, this is already happening in the United States. In that context, all we will see is a flat-out war between progressives and conservatives who seek to subvert law to their own aims. Nothing, not even law, which is supposed to be a fetter on political wishes, will be sacred anymore. From a strategic perspective, this is bad for either side. Victories achieved by one side in the courtroom can easily be overturned once the “other side” achieves power. And the merry-go-round goes on.

Better, in my view, to hone our arguments to legal ones, applying neutral methodologies, as best we can. Interpretation is designed to determine the meaning of legislative texts. Let the legislature legislate, and let courts interpret. Believe it or not, lawyers and their political views are not particularly enlightened.

Lost Virtue

Joseph Raz revisits the subject of the virtue of the Rule of Law

Joseph Raz recently posted on SSRN a short essay call “The Law’s Own Virtue“, based on remarks he delivered on the occasion of receiving the Tang Prize. The essay revisits themes explored in Professor Raz’s famous article on “The Rule of Law and Its Virtue”, defending the same view that the Rule of Law does not mean the rule of good law, and that its requirements on the exercise of public power are formal and procedural, but not substantive. It is a view that I share, for what that’s worth. But there is an aspect of Professor Raz’s argument which is new, at least in comparison with his classic article, and which strikes me as deeply disturbing.

Professor Raz now makes the intention of government actors central to his discussion of the Rule of Law. He starts from the proposition that “one, commonly agreed, aim of the [Rule of Law] is to avoid arbitrary government”. (5) This is where the focus on the reasons for government action enter the picture, as Professor Raz defines “[a]rbitrary government [as] the use of power that is indifferent to the proper reasons for which power should be used”. (5) Government power should be used “to follow and to apply the law”; (6) If it is used with this intention, the Rule of Law is being complied with. It follows that

not every failure of the government to be guided by the law is a breach of the [Rule of Law]. For the most part such failure is due to mistakes and incompetence. Even the most conscientious and qualified government is liable to fail in such ways. (6)

Intention is also relevant when assessing (from the Rule of Law standpoint) the exercise of interpretive and discretionary powers, and indeed the rule-making powers. When making or interpreting law under the Rule of Law, governments must “not … promote their own interest, but that of  … the governed … includ[ing] their moral interests”. (8) Beyond that, however,

[d]etermining what ends to pursue in the exercise of discretionary powers, or in the interpretation of the law, is the stuff of ordinary politics, and the [Rule of Law] does not review the success of politics. (6)

Professor Raz sums his argument as follows:

Based in the main on only two premises, that governments may act only in the interests of the governed, and that honest mistakes about what that is, and what it entails are the stuff of ordinary politics, and honest mistakes about this do not violate the rule of law, I concluded that the virtue of the rule of law lies in tending to secure that the government acts with the manifest intention of serving the interests of the governed. (15)

Professor Raz’s original view of the virtue of law was that it was indifferent to governmental purposes. Compliance with the Rule of Law, he famously wrote, is like the sharpness of a knife: a quality that can be used in the service of bad ends, as well as good ones. The test for such compliance had to do with the form of laws (notably their clarity, openness, and stability) and with respect for legal procedures (the independence of courts, the executive complying with the law that authorizes it to act, and so on). An ill-intentioned, self-serving or abusive government could comply with the Rule of Law; a well-intentioned but incompetent one, not necessarily.

This view is reversed in Professor Raz’s return to the subject and, as noted above, I do not think that his change of heart is for the better. I think it is dangerous and counter-productive to judge governments by intention, both as a general matter and specifically when it comes to assessing their compliance with the Rule of Law. Moreover, even if intention were a relevant consideration, the pursuit of the “interest of the governed” seems a particularly unhelpful standard by which to judge governments.

Generally speaking, I think we would do well to embrace Lord Acton’s distrust of “[t]hose who judge morality by the intention [and] have been less shocked at the crimes of power … than at those committed by men resisting oppression”. The time elapsed since Acton’s death should only have reinforced this attitude. And it is especially relevant to the issue of the Rule of Law. Governments themselves don’t allow people to get away with law-breaking by pleading “mistakes and incompetence”. If you are caught speeding, telling the cop that you’re just a mediocre driver and, while desirous of complying with the traffic code, sometimes forget to check how fast you are going isn’t going to get you too far, I suspect. So why should you have any patience with similar claims by a government? Lon Fuller, in particular, emphasized the reciprocity that the Rule of Law fosters in the relationship between government and citizen: as the quid pro quo for the citizen’s law-abidingness, the government ensures that the law allows the citizen to plan his or her life. Under Professor Raz’s approach, this reciprocity can break down. The citizen is still asked to obey, but the government only to intend to do so.

Of course, Fuller, as well Professor Raz in “The Rule of Law and Its Virtue”, recognized that compliance with the Rule of Law is (usually) a matter of degree. A certain level of compliance is necessary; beyond that, the question becomes one of excellence, and perhaps even excess. But I don’t think that this is Professor Raz’s point in “The Law’s Own Virtue”. If “manifest intention” to act in the appropriate way is the relevant standard, then even fairly egregious failures, so long as they are due to good faith incompetence, perhaps even honest carelessness, will be excused, and not only a government’s inability to reach excellence.

Consider an example that I have previously discussed here as a Rule of Law failure: the Canadian law on the standard of review in administrative law. The Supreme Court changes the rules all the time, sometimes announcing that it does so and sometimes not; it often fails to follow the rules it has itself announced; its deferential approach is not impartial between the citizen and the government and allows erroneous legal interpretations arrived at by decision-makers who are not independent of the government to become the law. For all that, I am happy to suppose that the Supreme Court judges intend to follow the law, except in those cases where they (not inappropriately) reconsider their precedents, and that to the extent they are engaged in (re-)making the law, they think they act in the best interest of Canadians. The vexing inability to come up with and follow a truly legal framework is, at least for the most part, the fruit of plentiful mistakes and abundant incompetence. But so what? That doesn’t change the fact that where citizens (not to mention other judges) ought to find law, they find muddle. The Supreme Court’s pronouncements provide no useful guidance, and thus appear arbitrary, even if they do not meet Professor Raz’s narrow definition of arbitrariness. 

This example also points to another troubling claim in Professor Raz’s discussion: that legal interpretation is equivalent to an exercise of discretionary powers and must be assessed as “the stuff of ordinary politics”, not a Rule of Law issue. As not only John Marshall but also the Professor Raz of “The Rule of Law and Its Virtue” recognized, the province and duty of the judiciary to say what the law is. This is significant, because the courts are not engaged in “ordinary”—which I think must mean partisan and self-interested—politics when interpreting or even developing the law. Their performance in doing so cannot be judged politically, either as a normative matter (because political criteria are the wrong ones to apply to judicial decisions) or as a descriptive one (because the courts, being unelected and independent, are not subject to political judgment anyway). Of course, a political judgment in the shape of legislation or constitutional amendment overturning a judicial decision is possible; perhaps this is what Professor Raz means. But such legislation is fairly rare, and constitutional amendment still more so. In the ordinary course of things, the only judgment that we can pass on the judiciary’s exercise of interpretive and creative powers is a moral one, and it must be based on Rule of Law-related criteria, not political ones.

Finally, in any case, I think that “the interest of the governed” is not a standard by which the actions of any institution of government can usefully be assessed. “The governed” are not a homogeneous undifferentiated mass. The are individuals, organizations, and groups. Their interests differ, and sometimes—indeed, quite often—clash. Government action that is in the interest of some will run counter to the interest of others. The more things some people get governments to do, the more toes these governments must step on to accomplish these things (whether these toes’ owners are aware of being trampled on or, as often is the case, not). Now, perhaps the idea is that any plausible-seeming conception of the public interest will do, so long as the government is not blatantly oppressive and self-serving. Yet not only is it doubtful that even this test can eliminate controversy but, more importantly, it is quite meaningless. Protectionist legislation that blatantly favours, say, producers over consumers, or indeed government over citizens, can be dressed up in some public-spirited guise, and intelligent people will fall for this trickery, be they the judges of the Supreme Court in R v Comeau, 2018 SCC 15, or Sir William Blackstone, who wrote that

the statute of king Charles II which prescribes … a dress for the dead, who are all ordered to be buried in woollen … is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation.

The Rule of Law, I submit, is not only not the rule of good law, but also not the rule of well-intentioned law. The purposes of public institutions that create, interpret, and apply the law, or exercise discretionary powers granted by law, are not relevant to assessing their compliance with the Rule of Law. Innocent incompetence can lead to Rule of Law failures, while a self-interested government, for example one preoccupied with lining the pockets of its supporters and winning the next election, however worthy of condemnation, may well abuse its power in a manner that is consistent with the Rule of Law. Professor Raz’s classic article on the virtue of the Rule of Law remains an essential reference point for those of us who are interested in the subject. His return to the topic, sadly, will not be one.

Something about the Zeitgeist

Justice Scalia is often snarky. But he gets as good as he gives. Both tendencies were recently on display, after Justice Scalia apparently asserted that judges interpreting law in accordance with the “spirit of the age” were among the causes of Nazi barbarities, including the Holocaust ― a none too subtle dig at “living constitutionalism” and, perhaps, “judicial activism” of all sorts (whatever judicial activism is). The first reaction of some (myself included) was to think of Goodwin’s law. Others wax sarcastic about “peak Scalia.” Both snark and counter-snark are unjustified.

Start with the snark. Of course, when the spirit of the age is rotten, interpreting law in accordance with it will give foul results. But what about Justice Scalia preferred originalist approach? It will give better results if the law one interprets was written in a more enlightened age than the interpreter’s own; but if a law reflects the prejudice and ignorance of times past, then it is interpreting it in accordance with the spirit of those times that will give us bigoted jurisprudence. If one believes, with Martin Luther King, that the arc of the moral universe bends towards justice, then originalism is, on balance, an unattractive interpretive approach, although this does not exclude the possibility that it will sometimes yield just results, perhaps even more just results than the alternatives.

Yet the dismissive responses to Justice Scalia’s comments are also a bit too quick. It is worth noting that, as Josh Blackman points out, Justice Scalia is not the first to remark on the role of the Nazi judges’ interpretive approach in enabling the crimes of the regime they served. Cass Sunstein has made the same point:

In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the
Nazi regime. They thought that courts could carry out their task “only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized.” (1; references omitted.)

Closer to home, Justice Lamer, as he then was, observed in R. v. Collins, [1987] 1 S.C.R. 265, that “[t]he reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable” (emphasis mine). The point Justice Scalia was, I think, trying to make ― in however exaggerated a fashion ― is the same as that at which Justice Lamer was getting in this passage: the “spirit of the age,” the Zeitgeist, can be foul, and when it is, it is the judiciary’s duty to resist it as best it can, to prevent it from contaminating the law.

We can, of course, debate whether originalism is the best, or even an adequate way of doing so. We can say that perpetuating the iniquities of the past is no solution to the injustices of the present. But the idea is not absurd. It deserves discussion, not derision. It’s a shame that the spirit of the age, what with its addiction to soundbites and gotcha lines, appreciates the latter more than the former.

Law, Art, and Interpretation

The idea that interpretation in law is similar to interpretation in music is not exactly new. For example Joseph Raz, in “Authority, Law, and Morality,” first published in 1985, wrote that “Judicial interpretation can be as creative as a Glenn Gould  interpretation of a Beethoven piano sonata.” But Jack Balkin, in a wonderful paper, “Verdi’s High C,” develops it much further than a throwaway analogy. The paper is relatively short and well worth reading, but here’s a summary, followed by some comments.

Prof. Balkin’s main argument is that law is like performing art, especially music, more than like literature (to which it is more frequently compared). Both in law and in music, there is something, the source―the text of constitution or a statute, a score―that does not speak directly to its readers, like a novel. Someone―a judge, a singer, an orchestra― has to interpret it, to perform it, to give life to it. And both in law and in music performance paradigmatically happens before an audience, whose presence, views, and reactions matter a great deal. In his words,

[l]aw, like music and drama, involves more than a reader and a text. It involves a complex of reciprocal influences between the creators of texts, the performers of texts, and the audiences affected by those performances.

The performing arts therefore normally involve a triangle of performance.  There is a person or institution that creates the text: the composer, the framer, or the adopter. There is the performer whose job is to make sense of the text and bring it to life in the real world. And finally, there is the audience before whom the text is performed. (4)

 Furthermore, both in law and in music,

  • we can argue about whether an interpretation is right or wrong. And, remarkably, the sorts of arguments that can be made for and against particular interpretations turn out to be quite similar in both fields. It is also the case, both in law and in music, that
  • some kinds of interpretation are regarded as permissible, others are “off the wall,” although

which are what changes over time. Audiences are active participants in that change, though their participation takes the form of reaction to the performances they witness. The performers take the lead and the risk, and “attempt to influence audiences; if audiences don’t like what performers do, this undermines their ability to perform.” (17)

Prof. Balkin also points out, however, that there are differences between interpretation in law and in music. For one thing, a judge is required to interpret a law if it is relevant to a case before him, whereas no artist has to interpret a particular piece of music. A further difference is that in law, the interpretations of some interpreters (for example those of a Supreme Court) are binding on other interpreters. There is no such hierarchy of authority in art. Finally, in law, we expect that, at least over time, controversies over the interpretation of particular texts will be settled. There is no such expectation in music, and indeed it would be boring if all the performers played a given piece in the same way.

Again, I find this very interesting and largely convincing. Here are some mildly dissonant notes though.

One interesting difference between law and music is that, in law, argument for the validity of an interpretation is packaged with the actual interpretation (in the reasons for a court’s decision). A musician, by contrast, doesn’t justify himself as part of the performance, and usually not even in some other setting. (I don’t know if musicians share Umberto Eco’s view that “a gentleman must never argue with his critics [because] an author who argues with his critics is vulgar and impolite,” but they might. Even Glenn Gould, articulate and prolific writer though he was, did not justify his interpretations, though he did justify his choice of repertoire.)

Speaking of Glenn Gould, he is the greatest reminder there ever was that some performers don’t care much for the audience. Gould hated the interactive nature of performing before an audience, which prof. Balkin implies is a necessary component of authentic performance―the applause, which he wanted to “ban,” the performers’ tendency to play to the crowd. Eventually, he retired from concerts at the height of his career―choosing only to make records which he felt allowed for more genuine and better interpretation. I’m not sure if there is a judicial equivalent to this. Judging, and particularly appellate judging, forces the interpreter to think of at least some audiences―the parties and one’s colleagues on an appellate panel―in ways that make a Gouldian escape to the recording studio impossible. Or does it?

The last, and probably most important point I want to make concerns the relationships between authorship and interpretation in law, music, and literature. Prof. Balkin’s paper implies that these are distinct roles. But that isn’t exactly so.

Take literature first. In the beginning, literature was all about interpretation. There were no fixed texts, and no recognized authors. But there were stories, traditional stories, which had to be retold, and thus interpreted. That has changed of course, so much that we have forgotten that in literature, interpretation pre-dated authorship. Homer didn’t make up his stories, but his interpretation of someone else’s stories is remembered while any other versions have been forgotten, and we regard him as the author. In reality though, the distinction between authorship and interpretation has endured. Shakespeare, for the most part, did not make up his stories either―he worked on the basis of other plays, or histories―his plays are interpretations, though of course they are very much his work and not that of his predecessors. I could go on for a very long time, but the point is simple―there is hardly such a thing a pure authorship ― yet, at the same time, the interpreter is an author too, and can make the interpreted text his own creation. I think the same is true, to an extent at least, of music. Really distinctive interpreters, such as Glenn Gould, are creators in their own right (for better or worse―it is not a sign of approval to say that Gould’s Mozart is not really Mozart at all), while composers engage in a great deal of interpretation, whether of specific melodies that they use in their work or of musical forms (Chopin’s waltzes, say, are interpretations of the generic waltz form).

What about law? Here I think it is, in some ways, quite similar to literature. For a long time, there were no, or at least few, legal texts. Like traditional stories which existed without a canonical form and a known author, common law rules were long believed to exist without a “form of words,” and without being regarded as creations of individual judges in particular cases. Lord Mansfield famously wrote that “[t]he law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.” (R. v. Bembridge, (1783) 3 Doug. 327 at 332,  99 E.R. 679 (K.B.)). It is now much more common to regard particular judges in particular judges as authors of legal rules―say, Lord Atkin as the author of the neighbour principle in Donoghue v. Stevenson). But many people, perhaps most famously Ronald Dworkin, still see at least some truth in the older conception, according to which judges are to some considerable extent retelling, rather than inventing, stories. (This makes me think that Hercules was an inapt name for Dworkin’s model judge. He should have been named Homer.) Conversely, as Thomas Hobbes already observed, in their capacity as interpreters of legislation (and now constitutions), judges are always in danger of becoming authors. Debates about judicial activism are, arguably, debates about what it means to be an interpreter or an author. The persistence of these debates shows that there is no clear distinction between these roles.

Apologies for the length! My fascination with the topic got the better of me.

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 ones is that according to which originalism has no place in Canadian constitutional interpretation. Justice Binnie, for example, retold this myth in a debate with justice Scalia on “judging in a democracy” at a conference dedicated to the 25th anniversary of the Canadian Charter of Rights and Freedoms.

As many if not all myths, this one is rooted in fact, namely in the famous rejection of originalism by the Judicial Committee of the Privy Council in the “Persons Case”―Edwards v. Canada (Attorney General), [1930] A.C. 124. The Privy council compared the constitution to a “living tree” and held that it interpretation should make room for its “growth and expansion within its natural limits.” But as with other myths, our anti-originalist myth makes claims much broader than what its historical foundation can support. Contrary to popular belief, originalism is not altogether absent from Canadian constitutional law, though areas in which it lives on are admittedly narrow enough.

One application of originalism in Canadian constitutional law can be found in a Privy Council decision rendered only a few years after the Persons Case, A.-G. Canada v A.-G. Ontario, [1937] A.C. 326, better known as the Labour Conventions Reference. As I wrote here, Lord Atkin rejected the federal government’s argument that a constitutional provision allowing Parliament to enact legislation implementing imperial treaties also allowed it to implement treaties entered into by Canada itself, holding that “it is impossible to strain the section so as to cover the uncontemplated event” (Canadian independence, that is, uncontemplated at the time of confederation in 1867). As I said in the post linked to, Lord Atkin’s reasoning is not only originalist, but it is that, too. And however much that decision has been criticized, including by those who, like F.R. Scott, thought that it contributed to the Privy Council’s distortion of the constitution’s original meaning, it is an essential part of the fabric of our constitutional law.

Another application of originalism in Canadian law is in the interpretation of the terms “the Constitution of Canada” and “the constitution of the province” in ss. 91(1) and 92(1) of the Constitution Act, 1867 (now ss. 44 and 45 of the Constitution Act, 1982) does not include what Justice Beetz described, in Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2, at 40, as “fundamental term[s] or condition[s] of the union formed in 1867.” In OPSEU, Justice Beetz cited Att. Gen. of Québec v. Blaikie, [1979] 2 S.C.R. 1016, which held that legislative bilingualism of the federal Parliament and Québec’s legislature was “part of the Constitution of Canada and of Quebec in an indivisible sense” (OPSEU, p. 40) and thus outside the scope of s. 92(1), as an example of the application of that rule. The rule was also applied in Re: Authority of Parliament in Relation to the Upper House, [1980] 1 S.C.R. 54, to support the conclusion that some hypothetical constitutional amendments regarding the Senate would be outside the scope of Parliament’s power under s. 91(1). It will also  be applied, though we do not yet know to what effect, in the Supreme Courts future decision on the constitutionality of the federal government’s proposed Senate reform.

Finally, something like originalism is also used to define the “core jurisdiction” of provincial superior (“s. 96”) courts that cannot be removed from them, whether in favour of the Federal court or of (purely) provincial courts. Although Parliament and provincial legislatures respectively can confer on these courts jurisdiction that was exercised by superior courts at Confederation (in 1867), they cannot, pursuant to MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, make these grants of jurisdiction exclusive.

Originalism seldom, if ever, appears unalloyed in Canadian constitutional law. Thus, as I wrote in the post on the Labour Conventions Reference linked to above, Lord Atkin’s reasons not only rely on the original meaning of the provision at issue, but are also “mindful of principle and of practical concerns.” Blaikie, for its part, uses an originalist approach to interpretation of the term “constitution of the province,” but then switches to living constitutionalism in order to answer “the question whether ‘regulations’ issued under the authority of acts of the Legislature of Quebec are “Acts” within the purview of s. 133,” holding that  “it would truncate the requirement of s. 133 if account were not taken of the growth of delegated legislation” since 1867. Still, a fair reading of these decisions must acknowledge how important originalist reasoning is to them.

Very tentatively, I am inclined to think that this is unavoidable. We wouldn’t have an entrenched constitutional text that prevails over ordinary legislation unless we thought that the moment of its enactment had some special importance―otherwise it is not clear why decisions taken then must carry greater weight than those reached more recently. And if that moment had and still has some sort of special importance, then so, plausibly, have the ideas or practices that prevailed then. The temptation to refer to them might be too strong to avoid. This is very sketchy, I know, but, I hope, enough for now.

UPDATE: In the interest of shameless self-promotion, I mention that I took on another myth of the Canadian constitution, the one contrasting our “peace, order, and government” with the Americans’ “life, liberty and pursuit of happiness” here.

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 to constitutional interpretation as the law of the land in Canada. But the remarkable thing about it―on re-reading with this little summary in mind―is that the Privy Council’s reasoning is not really an application of these principles. It is, mostly, just an exercise in plain, old, but meticulous statutory interpretation.

The issue in dispute was whether the word “persons” in s. 24 of the Constitution Act, 1867, which enables the Governor-General to “summon qualified Persons to the Senate,” includes women as well as men―and thus, whether women are persons (for the purposes of the Canadian constitution).

Lord Sankey’s judgment begins by responding to that of the majority of the Supreme Court of Canada, which held that the word “persons” did not include women, mostly on the basis of the common law rule that women could not hold public office. Lord Sankey retorts that this rule “is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary.” After a lengthy review of the ways the common law and statutes excluded women from public office, he concludes that this hasn’t much to do with the meaning of the word “person”―the word is ambiguous, and reading it as referring to men only is the product of a “custom” and “tradition” “the reason for [which] has disappeared.”

Lord Sankey then turns to the task of interpreting this ambiguous word. It is by way of introduction to this part of his reasons that he sets out the sentences for which the case is remembered today:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. …

Their Lordships do not conceive it to 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.

But what comes next is not an exercise in living constitutionalism, which would have consisted simply in saying that now that we’ve left barbarism behind, of course women are persons and can serve in the Senate. Indeed, remarkably enough, Lord Sankey denies that

their Lordships [are] 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.

His Lordship, one is rather tempted to think, protests too much.

Be that as it may, it is true that the remainder of his reasons is an exercise in dry statutory interpretation. It is something like Ravel’s Bolero, an almost-endless repetition of the same simple theme with different instruments. Just about every technique of statutory interpretation is put to work to show that the word “person” can include women as well as men. Lord Stakey invokes the plain meaning of the words “member” (of the Senate) in s. 21 of the Constitution Act and “person,” both of which can in the ordinary language refer to women. He points to the structure of the Constitution Act, noting that the qualifications which the “qualified persons” described in s. 24 must possess are described in s. 23. He refers to other statutes (having to do with naturalization and property) to show that the coherence of the law is not undermined by the interpretation which he proposes for the provision at issue. He also refers to other sections of the same Act (ss. 41 and 84), which use the term “male subject” rather than “person,” suggesting that the drafters were aware of the difference and chose their wording carefully. He appeals (implicitly) to the maxim inclusio unius est exclusio alterius in saying that the list of qualifications for being a Senator in s. 23―which does not include being male―”must be presumed” to be exhaustive. Finally, he observes that the Canadian Parliament itself has interpreted the word “person” to be gender-neutral, when it felt necessary first expressly to prohibit women from voting and then to repeal this prohibition.

It is this lengthy demonstration that does the real work in the case, not the flowery, forgive the pun, metaphor for which it is now known. This is not to reject that metaphor. I don’t think we have much of an alternative to a “living constitutionalism” approach in some cases at least. Still, I thought it ironic and worth pointing out that in the Persons Case itself is not really about living trees at all, but simply a careful reading of constitutional text and its legal context.