Originalism in Canada

A couple of papers about originalism, and a call for comments

As promised in my last post, I have something to show for my silence in the last few weeks. Benjamin Oliphant and I have been working very intensively on a study of originalism in Canadian constitutional law. In a nutshell, we argue that, contrary to popular belief, not only has the Supreme Court never really rejected originalism ― at least contemporary originalism, as opposed to the sort of originalism that existed 30 years ago or more ― as a mode of constitutional interpretation, but Canadian constitutional jurisprudence is, in reality, shot through with originalist reasoning. It is not, of course, thoroughly, much less systematically, originalist, but originalist arguments of various types appear in all manner of cases, and do so frequently enough that they cannot be dismissed as mere aberrations. We argue, therefore, that Canadian scholars and judges should stop ignoring both originalist theory and the originalist jurisprudence hiding in plain sight in the Supreme Court Reports, and start thinking about how to be more consistent and more principled in our use of originalist arguments.

The project grew as it advanced, and would have been much too long for a single article, so we ended up making two. The first paper is asks Has the Supreme Court of Canada Rejected ‘Originalism’?” Here is the abstract:

The notion that “originalism” is fundamentally incompatible with Canadian constitutional law has achieved the status of dogma, both in the courts and the Canadian legal academy. However, this understanding tends to be premised upon the rejection of early and undertheorized conceptions of originalism that have been largely left behind. Originalism has evolved considerably over the past few decades, as scholars from across the political spectrum have developed more nuanced and defensible approaches to constitutional interpretation, which by no means freeze constitutional law in the era of constitutional enactment. In fact, the two core propositions upon which Canada’s anti-originalist myth is based – that constitutional law must evolve to meet new social realities, and that the framers intentions may be relevant, but not binding – have been largely embraced by modern originalist scholarship. Drawing upon the vast diversity of originalist thought in the United States, the authors reconsider the cases most frequently cited for the belief that originalism is fundamentally incompatible with Canadian constitutional thought, and show how many fit rather easily within the new originalist paradigm. The authors conclude that once the frequent compatibility between various forms of originalism and living constitutionalism are appreciated, there is no reason to conclude that originalist thinking is inconsistent with Canadian constitutional law and practice, and no basis for relying on outdated assumptions or caricatures for its rejection.

The second paper takes a more detailed look at “Originalist Reasoning in Canadian Constitutional Jurisprudence.” Here is the abstract:

Amongst the fundamental assumptions underlying the practice of Canadian constitutional interpretation is the belief that originalism – whether directed at the original intentions, expected applications, meaning or understanding – plays no meaningful role in discerning the meaning of constitutional provisions. This paper sets out to correct that mistaken narrative. Through a survey of historical and contemporary decisions, the authors show that various forms of originalism have played a significant role in Canadian constitutional interpretation. Its influence can be felt both with respect to the structural provisions of the constitution – those relating to the division of powers, constitutional “bargains”, and the core jurisdiction of superior courts – as well as in the context of rights protecting provisions, such as those found in the Charter and aboriginal rights in section 35. At the same time, it cannot be questioned that the Court has rejected or refused even to consult original intentions or meanings just as frequently as it has found them persuasive or even dispositive. The Court has provided little guidance as to those circumstances in which various forms of originalism, or any other forms of constitutional argument, can and should be relied upon, which has led to a troubling state of uncertainty. The authors suggest that whether or not originalist approaches to constitutional interpretation should be accepted in any given case, it is not possible (or desirable) to avoid them entirely, and conclude that Canadian constitutional practice would benefit from openly engaging with originalist ideas and how they can be most fruitfully employed.

We would love to have your comments, thoughts, suggestions, or even anathemas, as we work on getting these papers published. Let us know what you think!

 

The Mainville Hearing: Interpretive Issues

On Wednesday, I was at the Québec Court of Appeal as it heard the oral arguments in the reference on the constitutionality of Justice Mainville’s appointment. The Québec government, supported by Rocco Galati (a Toronto lawyer who had originally challenged Justice Mainville’s appointment before the federal court) and the Constitutional Rights Centre Inc. (a public interest litigation outfit), argued that s. 98 of the Constitution Act, 1867, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province” prohibited the appointment. Although Justice Mainville had been a Québec lawyer for 33 years, he was then appointed to the Federal Court of Canada, and subsequently to the Federal Court of Appeal. This, they said, means that he is no longer “from the bar of” Québec and thus ineligible. The federal government, supported by the Canadian Association of the Provincial Court Judges and the Grand Counsil of the Crees, contended that, having been a member of the Québec bar in the past, Justice Mainville satisfied the s. 98 criterion.

This blog has already hosted something of a mini-debate on the constitutionality of Justice Mainville’s appointment, with my friend Maxime St-Hilaire arguing against it, and me arguing that the appointment is indeed constitutional. Many of the arguments heard on Wednesday echo those prof. St-Hilaire and I made in these posts. It was a long day, too, and it would not be all that useful to produce a detailed report of everything that was said. Instead, I will structure my report by talking of a few themes that were raised, more or less directly, in the argument, and also one that wasn’t, but perhaps should have been ― or at least, should feature in the Court’s thinking.

Also, in the interests of readability, I will split the report in two. In this post, I will address the issues having to do with the authorities which the Court of Appeal will need to interpret to answer the question before it. In the next post, I will take on the issues that go beyond interpretation.

***

The first theme I want to talk about is constitutional interpretation. That’s a dangerous subject that fascinates constitutional law nerds (such as yours truly) too much, and which, in the United States, causes a lot of energy to be wasted on debates on which little may turn. (For a withering ― and entertaining ― criticism of the state of this debate, have a look at Richard Posner’s recent book Reflections on Judging.) In Canada, we have been largely free of this debate, at least in the courts. Charter cases, which is where most of the action in constitutional law has been for the last 30 years, barely even refer to the constitutional text. The occasional federalism cases courts decide mostly concern the development of judicial doctrines. But in the last couple of years, constitutional interpretation has come back ― in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 (statutory when it started, but constitutional by the time the Supreme Court was done with it!), Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, and now in the Mainville reference. Unfortunately, the lack of both practice and theory means that we don’t really know what to do about it.

Although all the parties declared themselves, to various extents, proponents of purposive interpretation, those arguing against the constitutionality of Justice Mainville’s appointment favoured a rather originalist approach, as Québec had already done in the argument for the Senate Reform reference. (Indeed, Québec started its reply with the suggestion that we “go back to 1867.”) They argued that the bargain struck at confederation was absolutely and unconditionally binding, and the preoccupations that of the people who struck that bargain were the key to interpreting the text in which they enshrined it, and devoting much attention to the 92 Resolutions and to Sir Hector-Louis Langevin’s debates with Antoine-Aimé Dorion. (We might chuckle at Americans obsessing about the writings of James Madison and Alexander Hamilton, but we no longer have any right to do so, if we ever did. And at least, Madison and Hamilton are rather more inspirational figures than Langevin and Dorion.) And each of the parties denying the constitutionality of Justice Mainville’s appointment warned the Court about the danger of “living tree” constitutionalism, with Mr. Galati going so far as to say that it was inappropriate in non-Charter cases.

Their opponents, by contrast, embraced the “living constitutionalist’ approach, pointing out the changes in the organization of the bar and judicial institutions since Confederation, and saying that s. 98 must be read in such a way as to achieve its purposes within today’s context. Yet the federal government, at least, supplement its argument with heavy doses of originalism.

The Court, for its part, seemed unwilling fully to follow Québec down the originalist path ― and adopt what one of the judges described as “interpretation fixing the law in 1867.” The court systems of 2014 and 1867, the Court suggested, were “two worlds,” making an “evolutive” interpretation necessary.  It also seemed reluctant to make too much of s. 94 of the Constitution Act, 1867, which in theory allows common-law provinces ― but not Québec ― to “make uniform” their private law, and which in the view of those opposed to the constitutionality of Justice Mainville’s appointment is evidence that Québec’s legal specificity must receive greater protection than that of the other provinces.

One thing that could not be done, everyone agreed, was to read s. 98 literally, so that “from the bar” really means “from the bar.” Under that reading, judges could not even be promoted from the Superior Court to the Court of Appeal (as four of the five members of Wednesday’s panel were), and this was too much even for Mr. Galati, despite his obvious enjoyment at posing as the man who would do justice though the sky fall.

Beyond that, the best suggestion on interpretation came, in my view, from Sébastien Grammond, who represented the Provincial Judges (and whose arguments in both l’Affaire Nadon and the Senate Reference I had also found very thoughtful and compelling). Prof. Grammond pointed out that, in the absence of a tradition of judicial interpretation of s. 98, and with the legislative texts implementing it themselves not paragons of clarity, we cannot very well understand the nuances of the meaning of the constitutional language. In such circumstances, originalist interpretation risks leading us astray. And as for the claim that the “living tree” approach is only suited for Charter cases, those who would defend it should recall that the the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, from which that metaphor originates, was not a Charter case at all.

***

In addition to interpreting s. 98 of the Constitution Act, 1867, the Court also has to interpret a much more recent text ― the Supreme Court majority’s opinion in l’Affaire Nadon. The questions about it concern both its specific ratio ― the true grounds for the opinion ― and thus the extent to which it governs the Mainville reference, and also its broader implications.

The parties arguing that Justice Mainville’s appointment is unconstitutional argued that the Nadon reference stood for the proposition that the phrase “from among the advocates of [Québec]” in s. 6 of the Supreme Court Act included only current, but not former, members of the bar because the currency of bar membership was necessary to provide Québeckers with the assurance that judges appointed to Québec seats would share their “social values,” in addition to being qualified in Québec’s civil law. In their view, the phrase “from the Bar of that [Québec]” in s. 98 was effectively identical to that used in s. 6 of the Supreme Court Act, and had also to be interpreted as including a requirement of current membership ― albeit not in the Québec bar, but rather in Québec’s bar or courts. The contrary interpretation, they said, would fail to provide Québeckers with the assurance that their judges would be in sync with their legal tradition and values.

Those defending the constitutionality of Justice Mainville’s appointment, by contrast, said that the Nadon majority’s comments about assurances and values were not dispositive, and that the textual and contextual differences between the two cases meant that l’Affaire Nadon is not binding. In particular, they pointed to the fact that s. 6 specifically named two courts the judges of which could be appointed to the Supreme Court ― by implication preventing the appointment of the judges of other courts ― and emphasized the absence of analogous wording from s. 98.

The Court seemed to share these views, suggesting that the Nadon majority’s opinion rested on a “en effort of very careful exegesis” of ss. 5 and 6 of the Supreme Court Act. It was one of the judges who suggested that the Nadon majority’s comments regards Québec’s “social values” were in obiter, on which those who defended the constitutionality of Justice Mainville’s appointment eagerly seized. And during Québec’s reply, the Court quite clear took the view that the Nadon majority’s opinion was based on the rule inclusio unius est exclusio alterius.

Beyond the problem of figuring out the specific ratio the majority opinion in l’Affaire Nadon, there was also that of its broader import. Québec argued that it was a positive decision, enshrining a “generous” interpretation of a fundamental constitutional compromise. The federal government, by contrast argued that, although dictated by statutory text, the outcome of l’Affaire Nadon was nothing to celebrate, and certainly not “generous,” and that if the Court of Appeal could avoid extending it, it should by all means do so.

When l’Affaire Nadon was decided, I thought that the majority’s comments about the importance of Québec judges on the Supreme Court being seen as representing Québec’s “social values” was crucial to its opinion. I still don’t think that they can really be characterized as obiter dicta. At the same time, they weren’t all there was to that opinion, which also put considerable weight on what it took to be the “plain meaning” of s. 6 as excluding former lawyers. As the federal government and others pointed out, nobody is arguing that the same “plain meaning” considerations apply here. Ultimately, I think that the best characterization of the majority opinion in l’Affaire Nadon is one also suggested by the federal government ― it stands for the proposition that the specific wording of s. 6 reasonably advances its values-representation purpose (and must therefore be given full effect), although it is not the only way to achieve it. Since s. 98 is drafted differently from s. 6, it is possible to see it as implementing a similar purpose in a different way, and even the Supreme Court’s values talk is not a mere obiter, it does not dictate the outcome of the Mainville reference.

As for the broader significance of l’Affaire Nadon, I remain of the view it is not a good thing for Québec. Limiting the paths open to Québec’s jurists is not, it seems to me, a “generous” thing to do ― especially when the same limitations are not imposed on their counterparts from other provinces. But this point leads me to a theme I want to discuss, in my next post  ― identity.

Courts, Government, and Originalism

Despite its popularity south of the border, originalism hasn’t had much of a purchase in Canadian constitutional thinking. One reason, no doubt, is the power of what we think is the example of the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, generally taken to be a decisive rejection of originalist constitutional interpretation. It wasn’t exactly that, as I have argued here, but Canadian constitutional theory lives in the shade of its “living tree” all the same. But there might be other factors contributing to our rejection of originalism. A passage from Judge Jeffrey Sutton’s majority opinion for the U.S. Court of Appeals for the 6th Circuit* upholding bans on same-sex marriage, which Josh Blackman describes as “a pithy but deep understanding of originalism,” brings one of these other factors to mind.

Judge Sutton writes that the original meaning of a constitutional provision, the way “it was understood by the people who ratified it,” (17) is the first consideration in constitutional interpretation. He explains that

[i]f we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm … —that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. … Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it. (17-18)

Now we may be inclined to dismiss the analogy between a constitution, meant to apply to people not even born at the time of its ratification, over decades and even centuries, and a contract of sale executed months after its conclusion and subject to a statute of limitations. But whether or not there is, nonetheless, some truth to it, or a constitution is more properly analogized to a “higher law” that binds the “governors” is not important for my purposes now. What I want to do instead is consider an premise that underlies Judge Sutton’s argument, but which is unstated because it would, I think, be universally accepted in the United States ― and which we in Canada tend not to share.

This premise is that judges are among the “governors” with whom the people “contract” or whom they bind by ratifying a constitution. If they are, then obviously letting them re-interpret the constitution, under whatever pretext, means letting one party to the agreement modify its terms unilaterally, or allowing the “governors” to be a law unto themselves. That we be unfair and, considering the power of the “governors” over the governed, outright dangerous. It is important to hold the “governors” to the original bargain struck with them, or bound by the law imposed on them. Originalism is intended to do that.

Yet Canadian constitutional thinking, I believe, does not see courts that way. Of course, we know that courts are a part of government ― indeed, that judges were, at first, servants of the Crown rather than a separate “branch” of government. But generally speaking, that’s not how we think of them today. We tend to regard them outside arbiters that stand between the government (i.e. the legislatures and the executives) and the citizens. Indeed, we might even tend think of them as our agents vis-à-vis what the Americans call the “political branches” ― that’s why many Canadians (and indeed at least some of our “governors”!) ― think of the Canadian Charter of Rights and Freedoms as having transferred power to the people, and not just the courts. But, of course, if the judges are not among the “governors” whom we fear and with whom we make a deal or whom we try to constrain, there is little reason for us to wish to limit their power to reinterpret the constitution. If, a fortiori, they are our agents vis-à-vis the “governors”, we probably want them to reinterpret the constitution, and it is the “governors” who ought to be originalists.

As for the question of who has it right, I’m not sure that it can really be answered. Indeed I’m not even sure it must be the same in different constitutional systems. But even if it is, it’s worth noting that both views of courts have something going for them. Courts are a part of government in the sense that they wield ― at least so long as the executive is inclined to enforce their decisions ― a coercive power over citizens, whether considered individually or, if judicial review of legislation is possible, collectively. At the same time, I think it’s fair to say that, so long as they remain independent from the popular will, courts are not a part of government like the others. So long as it is easier for individual citizens to make their voice heard through the courts than through the legislatures, the view that courts are our agents vis-à-vis the (other) “governors” rather than our opponents and that we want to empower them more than constrain them is at least plausible. So, pick your own view. Just know that it’s not the only possible, or even plausible one.


*As usual, I express no views on the correctness of an American decision as a matter of American law. All I can say is that if this decision is indeed correct ― something that Ilya Somin and Michael Dorf, not to mention Judge Richard Posner and many others, would dispute ― then I’m happy that Canadian law is different.

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.

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.

Interpreting Interpretations

I would like to come back to the two cases I mentioned in yesterday’s postA.-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 they addressed, the ability of a federal legislature to legislate in order to implement a treaty if similar legislation would be, in the absence of the treaty, of the resort of state or provincial legislatures. The judgments in the two cases are an interesting comparison, being authored by two of the greatest judges of their respective countries (and of the common law world), less than two decades apart – and arriving at diametrically opposed conclusions. One apparent difference between the reasons Lord Atkin and Justice Holmes give for their respective conclusions lies in the interpretive methodologies they use. Could it explain the difference of outcomes?

Lord Atkin’s discussion of s. 132 of the Constitution Act, 1867, and his dismissal of the possibility that this provision justifies Parliament’s power to legislate in order to implement a treaty is remarkably formalist/originalist. S. 132 provides that “[t]he Parliament … of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.” The federal government argued that, in light of Canada’s accession to independence and becoming able to enter into treaties on its own (rather than as part of the Empire), which was not anticipated when the Constitution Act, 1867, was drafted and enacted, this provision should be interpreted as giving Parliament the power to implement not only imperial treaties, but also those concluded by Canada. Not so, says Lord Atkin: “it is impossible to strain the section so as to cover the uncontemplated event” (p. 7 in the document linked to). This from a body which, only a few years earlier, berated the Supreme Court of Canada for its originalism and refusal to “strain the section” in Edwards v. A.-G. Canada, [1930] A.C. 124, better known as the Persons Case, famously insisting that “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

Now I actually think that Lord Atkin could have made a plausible principled argument for why s. 132 could not be applied to treaties concluded by Canada in its own capacity. Relative to the Canadian constitutional order, imperial treaties were external events; they could be imposed on Canada, without much regard for the usual framework of Canadian federalism and democracy. So arguably it did not matter much which legislature was given the power to implement them. By contrast, the implementation of Canadian treaties, the products of Canada’s own constitution, should respect this framework. (It is perhaps for this reason that s. 132 is found among the “miscellaneous” provisions of the Constitution Act, 1867, rather than along with the distribution of legislative powers in ss. 91-95.) Indeed, Lord Atkin might be hinting at something like this argument, mentioning a “distinction between … obligations imposed upon Canada as part of the Empire by an Imperial executive responsible to and controlled by the Imperial Parliament and … obligations created by the Dominion executive responsible to and controlled by the Dominion Parliament.” But Lord Atkin says it is “unnecessary to dwell upon” this, and it seems not to be the reason for his holding concerning the meaning of s. 132, which is purely what would now be called textualist or originalist.

By contrast, Justice Holmes in Holland explicitly rejects these interpretive methodologies (at 433):

when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

A constitution, says Justice Holmes, should be interpreted in light only of today’s practical concerns. The treaty and legislation at issue concern migratory birds,

a national interest of very nearly the first magnitude … . It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. (435)

(Incidentally, although I am very far from being an expert on the topic, I do not recall any attempts to engage with these arguments in the literature dealing with originalism.)

But is drawing this contrast between Lord Atkin’s and Justice Holmes’s judgments enough to say that interpretive approaches explain their contrary conclusions? It might make sense to suppose that a textualist/originalist approach to the interpretation of federalist provisions of a constitution is likely to be more favourable to state or provinces, while a practical or principled one will favour federal governments. Changes in the way our societies function (in the economic realm especially) seem to dictate larger roles for central governments at the expense of local ones. Some have characterized the Supreme Court’s ruling in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, declaring unconstitutional the establishment of a federal securities regulator, as impractical and stuck in the 19th century.

Yet if one looks carefully at the reasons in the Labour Conventions Reference and in Holland, things are not so neat. Justice Holmes is a textualist when he parses the Supremacy Clause of Article VI of the U.S. Constitution for confirmation of the status of treaties, while Lord Atkin is mindful of principle and of practical concerns when he calls our attention to the reasons behind the federal division of powers in the Constitution Act, 1867, and insists that “[i]n totality of legislative powers, Dominion and Provincial together, [Canada] is fully equipped” (p. 10) to implement any treaty it enters into. Debating the merits, whether in terms of legitimacy or of consequences, of constitutional interpretive methodologies can be entertaining (as the American academia’s fascination with such debates attests). But it is questionable whether their real-life application is ever so pure as to make the ostensible choice of one methodology over another matter much.