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.