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 we sometimes think. Two of the most puzzling, misunderstood, and caricatured elements of that law and theory are originalism and the constitutionally protected right to bear arms. In Canadian legal discourse, both tend to be peremptorily dismissed not only as utterly alien to our constitutional tradition, but also as dangerous, and ― sotto voce anyway ― rather stupid.

Yet peremptory dismissals of ideas, especially ideas in which many intelligent people actually believe, are usually unwise. We don’t need to agree with them, but if we disagree, we should at least try to ensure that our disagreement is somewhat informed. So, if you have a few of hours to spend on learning more about these strange American ideas, here are a couple of links:

About the right to bear arms, an Intelligence Squared debate involving professors Sandy Levinson and Alan Dershowitz (arguing that it has outlived its usefulness), and David Kopel and Eugene Volokh (arguing that it has not).

And about originalism, a discussion between professors Randy Barnett, Mitchell Berman, John McGinnis, and Richard Primus.

Enjoy!

 

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.

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 prohibit this punishment. But it occurred to me, when I re-watched Justice Scalia’s impassioned and entertaining defence of originalism in a debate with then-Justice Binnie at a conference a few years ago, that he, and originalists generally, are fainthearted in another, much broader way.

Justice Scalia’s argument for originalism goes something like this. Even if there are right and wrong answers to questions about morality of the sort that arise in judicial review of legislation, questions about the permissibility of abortion or the death penalty, for example, or the extent of the freedom of speech, or of the right to privacy (and he thinks that there are indeed right and wrong answers to such questions, dictated by natural law), we have no satisfactory way of demonstrating that any given answer to such a question is right. Therefore, we cannot pretend that the answers that we give to such questions aren’t political, so that impartial experts can figure them out. There are no “moral experts” who can do that job. In particular, we have no reason to believe that judges are endowed with moral expertise greater than that of “the fabled Joe Sixpack.” They disguise their moral reasoning behind legal forms, but the law doesn’t really give answers to these fraught questions. The only way we have to resolve them is by figuring out what the people think about them, through the political process. So when the people have, through the political process of ratifying a constitution, resolved the question of what rights should be protected against legislative abridgement, judges, entrusted with the enforcement of that protection, should stick to what the people have resolved and go always so far but never further. Because they are not moral experts, judges cannot revise―either upwards or downwards―the protections that the people have granted, which are the people’s own answers to moral questions facing the community.

The first part of this argument is very familiar indeed―from the work of Jeremy Waldron. In “The Core of the Case against Judicial Review,” prof. Waldron too argues that we have no agreed way to determine which answers to difficult questions of political morality are right and which are wrong; that judges, in particular, possess no expertise in these matters; that they do more harm than good in trying or pretending to deal with these questions as if they were legal rather than political; and that rather than trust the judges with moral reasoning, we should let the people, or better their elected representatives, decide.

Prof. Waldron and Justice Scalia part ways in the conclusions they draw from this. Whereas Justice Scalia accepts judicial review of legislation as a given and argues that the consequences of the judges’ lack of moral expertise lie in the realm of interpretive methodology, prof. Waldron takes the position that judicial review itself is the problem and should be abandoned. Since judges know no better than the people what “the truth about rights” is, they have no business second-guessing the people’s conclusions about this matter―not just the conclusions the people reached once upon a time, when they ratified a constitution, but at any given time, whenever they enact a piece of legislation.

I think that, as between these two views, prof. Waldron’s is the more persuasive one. If there is no way to demonstrate that one has “the truth about rights” in one’s possession, then what justifies the people in deciding that they are in fact possessed of that truth and making it impossible for later generations to revise it by majority vote? If we can only answer moral questions through the political process, how is it just to then remove the answers we give to these questions from that process?

And so, I have the impression that Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way―fainthearted Waldronians.

All this is not to say that the originalist/Waldronian view of the nature of judicial review―the view that it requires answering distinctly moral questions on which the law doesn’t have special insight―is correct. But it is at least plausible, and should not be dismissed lightly. All the more important, then, to be clear about its implications.

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.