originalism
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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… Continue reading
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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.… Continue reading
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The Bill Is Due
In yesterday’s post on R. v. Cloud, 2014 QCCQ 464, I bemoaned the lack of property protections in the Canadian Charter of Rights and Freedoms, arguing that, as Cloud demonstrated, it hurt the poor rather than the well-off. However, while property rights are not mentioned in the Charter, section 1 of the Canadian Bill of Rights… Continue reading
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Living Next to You
Despite living so close, and despite our constitution (not only the main documents, but also the Supreme Court’s constitutional jurisprudence) being substantially influenced (including a negative influence ― attempts not to repeat perceived mistakes) by the American experience, Canadians tend not to know, or not to understand, American constitutional law and theory as well as… Continue reading
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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”… Continue reading
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Original Myth
Any constitution, at least I suppose any constitution that has existed for a while, is surrounded by myths―stories that we tell ourselves to explain why things are as they are and, often, to reassure ourselves that they are as they ought to be. Among the myths surrounding the Canadian constitution, one of the most popular… Continue reading
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The Faint of Heart
Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to… Continue reading
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Interpreting Interpretations
I would like to come back to the two cases I mentioned in yesterday’s post―A.-G. Canada v A.-G. Ontario, [1937] A.C. 326, better known as the Labour Conventions Reference, and Missouri v. Holland, because they might tell us something about a problem much broader than the issue (important though it is in its own right) that… Continue reading
Double Aspect 