Tag: original intent

Let Us Reason Together

A call for dialogue on constitutional interpretation, free from anti-originalist myths

This post is co-written with Mark Mancini

The nomination of Amy Coney Barrett, an originalist scholar and appellate judge, to the US Supreme Court provoked a flare-up of interest in originalism from people who do not normally spend much time thinking about constitutional interpretation. That would be all to the good, if this engagement did not all too often rely on myths and misconceptions, some of them dating from the early days of modern originalism, others bearing little relationship with what any serious originalists in the US and Canada believe. (An entire Twitter account has now sprung up to collect some of these misconceptions.) In this post, we address a couple of myths about constitutional interpretation that underlie the memes, tweetstorms, and political zingers, and call on our readers to engage in more fruitful conversation about constitutional interpretation.

Myth 1: Originalism freezes the preferences and intentions of the founders in law

The overall view of originalism held or propagated by most of its lay critics and, alas, many professional ones, is that it is meant to keep it exactly as the framers of the constitution intended, obstinately refusing to recognize any changes in society that have occurred since the framing. Hence the much repeated claims that, for example, Justice Barrett couldn’t even be appointed to the Supreme Court since the framers of the US Constitution had not anticipated women judges. In the Canadian context, those who hold this view insist that a rewriting of the Constitution Act, 1867 by living constitutionalist judges was necessary to make women eligible to serve in the Senate, since the Fathers of Confederation did not mean for them to do so.

These claims are based on several misconceptions. One has to do with the nature of the originalist enterprise. Most originalists today recognize that it is both wrong and, in all likelihood, futile to seek to give effect to the intentions or expectations of the framers of a constitution. Wrong, because only that which is enacted through the relevant constitution-making process, can be binding. Intentions, hopes, and expectations are not. Futile, because―as the critics of early versions of originalism pointed out―constitutional texts are typically compromises reached by large and diverse groups of framers, who do not necessarily share intentions and expectations as to what their handiwork will achieve and how it will be applied in practice.

The task of the originalist constitutional interpreter is to focus on that on which the framers of the constitution agreed and which is binding law: the text. This is not to say that originalism is equivalent to “strict constructionism”. A good originalist knows that text is read in context, and some originalist theories, at least, even accommodate the idea of unwritten constitutional rules. A good originalist, like Justice Barrett, also knows that legal texts can be written at different levels of generality, and that they can employ standards as well as rules, and seeks to give effect to the language as written, neither narrowing it if broad nor expanding it if narrow.

This, incidentally, is another reason why an “expected applications” approach to interpretation is not good originalism. If the framers of the text used language that calls on its interpreters to engage in moral or practical reasoning, for example by prohibiting “cruel” punishments or “unreasonable” searches, the interpreters who would confine the text to what was regarded as cruel or unreasonable when it was enacted would disregard these instructions. To the extent that this is what the derisive label of “frozen rights” or “frozen concepts” interpretation refers to, the derision is justified. But, while in fairness to originalism’s doubters such criticism could be levelled at its early practitioners (including, sometimes, Justice Scalia), contemporary originalists know better than to make this mistake.

As a result, more often than not, originalism has no difficulty applying constitutional rules to changing and developing society. Broad constitutional language will encompass cases not anticipated by its framers. The so-called “Persons Case” is an example: it is probably true that the Fathers of Confederation would not have expected women to be appointed to the Senate, but they used language that, as Lord Sankey shows, naturally extended to women, and therefore did not need to be construed as barring their appointment. Another example from the United States: infrared technology, used to “search” homes from the outside, were clearly not in the contemplation of the framers. But Justice Scalia, originalist though he was, held in Kyllo that using it was indeed a search for the purposes of the 4th Amendment, which protects the privacy of the home from invasion by new means as well as old.

That said, originalists do not believe that constitutional language, even when broad, let alone when precise, is infinitely malleable. As Lord Sankey says in the Persons Case, had the framers of 1867 chosen to specify that Senators were required to be men, no legitimate interpretation could have bypassed or overturned this choice. Indeed, few, if any, living constitutionalists would disagree. This brings us to the next myth.

Myth 2: Originalists just don’t want the constitution to change

What if the Constitution Act, 1867 had specified that being male was a qualification for being a Senator? Originalists believe that such an unfortunate drafting choice of the constitution’s framers would have had to be undone by constitutional amendment, and welcomed such an amendment. Originalism is an approach to interpreting a text as it stands from time to time; it does not counsel against that text being amended when it is no longer in tune with the needs of society, provided that the amendment is carried out by means provided in the constitution, rather than by the courts. The claims, made by originalism’s American critics, that originalists would somehow disregard constitutional amendments that protect the rights of African Americans, women, and other groups are quite without foundation in any originalists’ actual commitments. They also ignore voluminous originalist research into the meaning of these amendments.

In Canada, any appeals to the possibility of constitutional amendment tend to be dismissed as fanciful. Our constitution is said to be impossible to amend. But this simply isn’t so. Indeed, given that Canada is a federation, it is difficult to imagine an amending formulate less restrictive than the “7/50” that the Constitution Act, 1982 makes the default. It is worth recalling that prior to 1982 convention required at least as much consensus, and possibly unanimity―and yet amendments to the Constitution Act, 1867 were made from time to time. This is not to deny, of course, that convincing our fellow-citizens and legislators that our favourite constitutional reform projects are worthwhile is difficult. But this is as it should be in a constitutional democracy, and no reason for seeking to implement these projects through judicial fiat.

A call to Dialogue

Now, originalism is not above criticism or beyond reproach. For example, we might usefully debate the feasibility of inquiries into the original public meaning of constitutional texts, the worry that a public meaning originalism that acknowledges the underdeterminacy of much constitutional language fails to usefully constrain judges, and the possibility that self-proclaimed originalist judges will only use their ostensible commitments as a smokescreen to hide their implementation of favoured policies. Originalism faces theoretical challenges, such as the issue of its relationship with the principle of stare decisis (to which Judge Barrett devoted much of her scholarship), and―especially in the Canadian context―the need to make sense of significant unwritten constitutional rules.

We would welcome engagement with these issues, so long as it took originalism as a serious theory and practice, rather than a self-evidently mistaken unCanadian aberration. For all the protestations of the Canadian legal academy (and, more rarely, of the courts) that originalism has no place in our jurisprudence, it is simply beyond doubt that something akin to originalism is often, although by no means always, an important factor in the Supreme Court’s decision-making. If the Court is wrong to reason in this way, the critics should explain why, instead of insisting, in the face of evidence to the contrary, that it doesn’t.

We would also welcome a clear articulation of the critics’ own interpretive commitments, which is curiously missing from Canadian (and, mostly, even American) scholarship. We are admonished that the Canadian constitution is a “living tree”, but seldom told what precisely this means. For example, when are the courts entitled or required to “evolve” constitutional meaning? On what should they base their decision to do so? Are there limits to their power? By what means does living constitutionalism protect against judges who are less enlightened than the framers of the constitution or who think that changed circumstances require restricting rights instead of expanding them? Without an explanation on these and some other matters, it is difficult to compare the plausibility of living constitutionalist and originalist theories, and assertions of the former’s superiority fall to be taken on faith, which is antithetical to serious scholarly or even political debate.

Such debate would be to our mutual advantage, originalists and living constitutionalists alike. After all, we are not merely trying to score rhetorical points or preserve our positions, whether in politics or in the academy, from competitors. We are trying to answer difficult but consequential questions about the way in which judicial power ought to be exercised and our fundamental laws are to be applied. If we are to have any chance of getting at the right answers to these questions, we need to make our best arguments and measure them against the best arguments of those who disagree with us. Come, let us reason together.

The Comprehension of “Composition”

Parliament cannot require Supreme Court judges to be bilingual

Sébastien Grammond has published a guest-post over at Administrative Law Matters arguing that Parliament could legislate to prohibit the appointment of Supreme Court judges who are not bilingual. It is a bold and interesting argument, and I greatly admire prof. Grammond as a thinker and advocate. Nonetheless, I am not persuaded. I remain of the view that the Supreme Court’s opinion in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, a.k.a. l’affaire Nadon, means that such legislation would be unconstitutional, as I suggested when criticizing that opinion.

To put my cards on the table, I should note that, as I have argued here and here, I believe that such legislation would also be ill-advised. I will let the reader judge whether this belief biases my constitutional analysis. I would also like to make clear that nothing that I say here should be taken as a repudiation of my views on the majority opinion in l’Affaire Nadon, which I continue to regard as very poorly reasoned and most pernicious.

* * *

The reason I say prof. Grammond’s argument is bold is that it seems to directly contradict what the Supreme Court’s majority said in l’affaire Nadon:

Under s. 41(d) [of the Constitution Act, 1982], the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the “composition of the Supreme Court”. The notion of “composition” refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982. By implication, s. 41(d) also protects the continued existence of the Court, since abolition would altogether remove the Court’s composition. [91; emphasis added]

Prof. Grammond acknowledges that “[r]equiring that judges be bilingual is certainly an ‘eligibility requirement,'” so that the opinion of the majority seems to exclude imposing it otherwise than by constitutional amendment. Yet he argues that  it would be wrong to read this opinion “like a statute, as if the Court expressed a general rule that applies to all cases that come within the usual meaning of the words employed.” Prof. Grammond points to the fact that “the issue of bilingualism was not before the Court,” and suggest that we “understand the reasoning in that case and to see which parts of it can be applied to the issue of bilingualism.”

In effect, prof. Grammond suggests that the Supreme Court did not really mean what it said in the above passage. It would be “curious,” he writes, if “amendments to specific sections of legislation would be prohibited, even though the proposed amendment does not affect a substantial issue.” The constitutionality of amendments to the Supreme Court’s jurisdiction made since 1982 would be called into question. Instead, what the Court really meant was that certain essential characteristics of the Supreme Court are constitutionally entrenched, while others are not. The bargain relative to Québec’s representation on the Court is such a characteristic, and perhaps, more generally, “the Court’s role as guardian of the Constitution.”  However, “aspects of the composition or eligibility requirements that do not relate to Quebec’s representation or the protection against abolition or court-packing are not protected by section 41(d),” and Parliament still modify them or add to them, by statute (though of course that statute would not be constitutionally entrenched). In other words, formal constitutional amendment would be necessary only to change those aspects of the constitution

in respect of which there is cogent evidence that the framers of the 1982 Constitution intended to freeze the status quo (such as Quebec’s representation on the Court or the structure of the Senate) or to [make] fundamental changes to our current political institutions (such as abolishing the Senate or the Supreme Court).

In any event,  prof. Grammond adds, Parliament remains free to supplement the eligibility requirements set out in the provisions of the Supreme Court Act to which the majority in l’Affaire Nadon refers, in the same way as it supplemented the requirements set out in sections 97 and 98 of the Constitution Act, 1867 when it provided, in section 3 of the Judges Act, that only lawyers of ten years’ standing can be appointed to the bench.

* * *

Let me start with prof. Grammond’s last point, because I will simply bite this particular bullet. Just because no one ever raised the issue of a rule’s constitutionality doesn’t mean that it is self-evidently constitutional. It might not be, even though no one has any particular reason to argue so. I don’t think that legislative competence can be acquired by adverse possession ― and that may well be the only way Parliament can claim to have validly enacted section 3 of the Judges Act. Nothing in sections 96 to 98 of the Constitution Act, 1867 allows it to do so ― their language confers no legislative authority, in contrast to that of section 100, which mandates Parliament to “fix” the judges’ salaries and pensions. So I don’t think that the existence of section 3 of the Judges Act supports prof. Grammond’s position.

As for the rest of prof. Grammond’s argument, it does not persuade me mostly because of the curious approach it takes to the constitutional text. As with the text of majority opinion in l’affaire Nadon, but with less justification, prof. Grammond seems to suggest that the text of the amending formula of the Constitution Act, 1982, can be more or less ignored, the better to allow us to focus on what really matters ― the intentions of its framers ― or at least those intentions “in respect of which there is cogent evidence.” The usual criticisms of original intentions originalism ― notably, that the intentions of a disparate group are well-night impossible to ascertain even if such a thing exists at all, that a constitution’s framers can have no intentions as to issues not anticipated at the time of the framing, and that there is no reason why private intentions, as opposed to the public and actually enacted constitutional text, should be authoritative at all ― apply here with full force.

We ought, in my view, ask ourselves what the words of the constitutional text actually mean ― not what their authors intended. To ascertain the meaning of paragraph 41(d) of the Constitution Act, 1982, which entrenches “the composition of the Supreme Court of Canada,” we need to inquire into the meaning ― either in 1982 (on an originalist approach) or in 2016 (on a living constitutionalist one) ― of the word “composition.” Now, I’m not sure that it’s obvious that the “composition” of a body such as the Supreme Court includes, or included in 1982, the eligibility criteria for membership in that body, as opposed to the number of members and their provenance. The majority in l’affaire Nadon asserts that it does, without much effort at justifying this assertion. But while this interpretation may be questionable, I do not think that prof. Grammond’s, according to which the term “composition” encompasses some but not all eligibility criteria, is preferable or even tenable, as a textual matter. Thus, in my view, prof. Grammond’s criticism of the Supreme Court for failing to “offer reasons why” the provisions of the Supreme Court Act that it describes as entrenched by paragraph 41(d) “are crucial to the protection of Quebec’s representation” misses the mark. The Court did not have have to say why these provisions are crucial to protecting Québec. It only had to take note of the fact that they set the rules relevant to the Court’s “composition,” as it interpreted that term.

* * *

As I said at the outset, I admire prof. Grammond greatly. I am sorry to disagree with him. However, what I consider to be the flaws in prof. Grammond’s argument reflect an unfortunate tendency among Canadian constitutional lawyers not to pay enough attention to the constitutional text, and to give too much credence to the intentions, real or supposed, of the constitutional framers ― which, ironically, does not go away with, and may well be made easier by, these same lawyers’ purported rejection of originalism. As Benjamin Oliphant and I have argued in our papers on originalism in Canada, we need to give much more serious thought to constitutional interpretation than we tend to do.

How to do Originalism

In my last post, I summarized the Supreme Court’s recent decision in  Caron v. Alberta, 2015 SCC 56, which held that Alberta is not under a constitutional obligation to enact legislation in French as well as English. There was, you will recall, a majority opinion by Justices Cromwell and Karakatsanis, who were joined by four of their colleagues, and a dissent by Justices Wagner and Côté, joined by Justice Abella. In this post, I would like to venture some comments on the disagreement between them. This disagreement was quite sharp. The dissenters insist that the majority’s reasoning both results from and perpetuates an injustice, although they never explicitly accuse the majority of being unjust. I suppose that dissenting judges often think that ― but it seems to me that the thought is rarely expressed. And yet, in a sense, the disagreement between the two opinions is very narrow, almost abstruse.

Both the majority opinion are originalist, in the sense that they accept that the meaning of the relevant constitutional provision is to be determined by reference to the ideas of the time of the provision’s enactment. The provision at issue in Caron is a passage from an Address by the Canadian Parliament to the Queen, adopted in 1867 pursuant to section 146 of the Constitution Act, 1867 to ask for the incorporation of what was then Rupert’s Land and the North-Western Territory (to which I will collectively refer as “the North-West”) into Canada, and incorporate into the constitution as a schedule to the Imperial government’s Order that annexed most of these lands (except the portion that became the province of Manitoba) to Canada. The Address and the Order resulted from a complex series of events and interactions between the Canadian government and Parliament, the Hudson’s Bay Company (which owned and administered the North-West), the British government, and the inhabitants of the North-West and their government and delegates who negotiated their entry into Canada. The two opinions make extensive reference to these events and interactions, and to the thoughts of the people involved. Repeated out-of-hand rejections of originalism notwithstanding, it is alive and kicking in Canadian constitutional law, as Benjamin Oliphant and yours truly have been pointing out for a while now.

The majority and the dissent disagree, however, about the sort of originalism that ought to govern their interpretation of the 1867 Address. The majority’s approach is something like “original public meaning originalism,” which, as Lawrence Solum explains, “emphasizes the meaning that [constitutional provisions] would have had to the relevant audience at the time of its adoption[].” Much of the majority opinion is devoted to showing that the phrase “legal rights” used in the Address would not have been understood, in 1867 or 1870, as referring to linguistic rights. The majority’s summary of the reasons for its conclusion as to the interpretation of the phrase legal rights notes that

(i) Never in Canada’s constitutional history have the words “legal rights” been taken to confer linguistic rights;

…

(iii) The contemporary discussions show that neither Canada nor the representatives of the territories ever considered that the promise to respect “legal rights” in the 1867 Address referred to linguistic rights;

(iv) The contemporary evidence also shows that the territorial representatives themselves considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1867 Address or the 1870 Order;

(v) Federal legislation and debates surrounding it in relation to the new North-West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870. [4; emphases removed and added]

In other words, the majority’s focus is on the public meaning of the term “legal rights,” and more specifically its meaning to Canadians or Canadian lawyers generally (i, v), the Canadian government (iii, v), and the representatives of the North-West (iii, iv, v).

The dissent, by contrast, favours “original intent originalism,” which focuses on the intentions of the authors of the relevant constitutional provisions. Its review of the historical evidence focuses not so much on how the words “legal rights” would have been understood ― indeed, the analysis of these words takes up a very short portion of the dissenting opinion ― but on what the parties, and especially the inhabitants of the North-West, sought to accomplish. Their wishes, the importance they attached to legislative bilingualism are the dominant considerations for the dissenters. The dissent insists that “our reading of constitutional documents must be informed by the intentions and perspectives of all the parties, as revealed by the historical evidence.” [235; emphasis added] These documents are “a statement of the will of the people” [235] ― and one gets the impression that, for the dissent, the will to which is seeks to give effect is rather more important than the statement itself.

For my part, I prefer the majority’s approach. Prof. Solum’s brief introduction to originalism, to which I link above, points to some problems with the “original intent” version of that theory, which the dissent in Caron illustrates. One issue is the difficulty of ascertaining a collective “intent,” especially among a large and diverse group of constitutional framers or, as in Caron, in a situation where there were different parties with divergent interests involved. Indeed, although the dissent asserts, generally, that “[t]he Constitution of Canada emerged from negotiations and compromises … achieved when parties to the negotiations make concessions in pursuit of a mutual agreement and reach a meeting of the minds,” [235] the 1867 Address, which is, after all, the operative constitutional provision, was not the result of a negotiation at all. It was a unilateral statement by the Parliament of Canada, and it is therefore not obvious that the intentions or aspirations of the people of the North-West are actually relevant to its interpretation.

Another problem with “original intent” originalism, in Prof. Solum’s words, is that “[t]he intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations” as to how the provision will be applied. Assuming the relevant actors in 1867-70 had a unified intent, was it that legislative bilingualism in the North-West would in fact be continued and respected ― as indeed it was for decades ― or that it would also be constitutionally entrenched? Actually, this questions points to a broader difficulty, which affects the majority opinion as much as the dissent, and of which more shortly.

Both of these issues to point to a third one, which is simply that the intent of the framers of a constitutional provision is difficult to ascertain, and that the legitimacy of an intention not codified in the constitutional text itself as a source of constitutional law is very questionable. As I wrote here in connection with Québec’s arguments in l’Affaire Mainville, there is a danger of litigants ― or, I would now add, judges ―

simply taking advantage of the fact that the intent of the framers cannot be known … and using it as a banner under which to carry its own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself.

Be that as it may, I want to reiterate a point that I might have made here before. Denying the significance of originalism to Canadian constitutional law, as both judges and scholars are wont to do, does not actually make it go away. Canadian courts still make originalist decisions, such as Caron, and litigants still make originalist arguments. But, importantly, this all happens in an intellectual vacuum. Because we are only interested in the question whether to do originalism, and have a ready-made negative answer for it, the debates over how to do it, such as those prof. Solum describes in the post linked to above and here, have not happened this side of the border, and the American debates have been ignored. As a result, questionable approaches to constitutional interpretation can endure unchallenged ― even if, as in Caron and in l’Affaire Mainville, they do not prevail when the votes are counted.

I come back to the broader issue I have with both the majority and the dissent to which I referred above. Both opinions assume that, if the “legal rights” which Canada undertook to uphold in the the 1867 Address include linguistic rights, then they are constitutionally entrenched. But it is not clear to me that this must be so. After all, nobody thinks that the (other) “legal rights” that all agree were part of this undertaking, those of property and contract, were similarly entrenched beyond modification by ordinary legislation, whether federal or, eventually, territorial and provincial. Canada had to respect the rights that existed at the time the North-West was annexed, but that did not mean that Parliament or the legislatures created in the territories could not subsequently legislate to modify or even derogate from these rights. Why exactly are linguistic rights different? Neither opinion explains this.

The comparison with ordinary “legal rights” also casts doubt on the dissent’s assertion that legislative bilingualism or language rights more broadly are “not a political issue that can be left up to the government.” [243] Leaving rights to “government” ― or, more accurately, to legislatures ― need not mean that these rights will not be protected at all. To be sure, it may well be a good idea to entrench (some) rights beyond the reach of ordinary legislation. I have myself argued that the framers of the Canadian Charter of Rights and Freedoms erred in not doing so with property rights. But there is no need, it seems to me, to seek to infer the decision to entrench a right from tenuous evidence of intent, or from the desires of those whom this right would benefit. Contrary to what the dissent in Caron suggests, it is not at all clear that injustice results from a failure to do so.

The Caron majority thus arrived at what I believe is the right result, but even its reasoning might be questionable. Moreover, while its approach to originalist constitutional interpretation is better than the dissent’s, it is just as little explained and defended. Still, I hope that this case might give us the impetus to abandon the pretense that originalism has no place in our jurisprudence, and to start thinking more seriously about when, and how, as well as whether, it ought to be employed.