Some News

An update about my studies, work prospects, and an upcoming conference

I have been very silent, of late, and will probably remain so for another week. That’s because in the space of just over five weeks, from late March to this coming Thursday, I’ll have given two talks, moderated a conference panel, defended my JSD dissertation, and flown to the antipodes and back. I hope I will have more breathing space, and blogging time, once this craziness subsides, which it will soon. Here, though, are a couple of highlights.

My dissertation defence took place last week, before a committee consisting of NYU professors John Ferejohn (my supervisor), Jeremy Waldron, and Lewis Kornhauser, to whom I am very grateful for having taken the time to read my work. They were a formidable group, and they had me work hard for it, but I survived. It’s not quite the end of the JSD road for me, because the program committee has to  review my dissertation and approve it, but I’m almost there.

As I’m preparing to turn the page (or the 250 pages) on the doctorate, I have also found out what I’ll be doing next. In the next weeks or months, assuming the visa paperwork can be handled in time, I’ll be moving to Auckland, New Zealand, to join the faculty of the AUT Law School as a lecturer. I am very grateful to the people who have made this possible, including of course AUT’s Dean, Charles Rickett. It’s a big move, but I am looking forward to the challenges and the opportunities that it will bring me.

Among other things, having secured an academic position means that I will be able to keep blogging. My posts might sometimes appear at strange times, what with a 16-hour time difference, but I’ll do my best to keep them coming. And while I’m sure there will more references to New Zealand law from now on ― even before I actually go there, as I try to catch up on the things I’ll soon be teaching ― I will try to mostly use this blog as a means of staying in touch with Canada, much like I did when I started it from New York City.

In the meantime, my whirlwind month will conclude with my giving a talk ― the “keynote,” in fact ― at the Courts & Politics Research Group Spring Workshop at the University of Guelph this Thursday. I’ll be presenting Benjamin Oliphant’s and my work on originalism in Canadian constitutional jurisprudence. The fun ― seriously, it looks like a great programme ― will take place in McKinnon 313 beginning at 8:45AM, and I’m due to speak at 12:45. If you are around, please say hello! I’ll spend the following few days in Toronto, and then will be back to Montreal and, hopefully, to blogging.

All That History

A historicist, if not quite an originalist, decision from the Supreme Court of Canada

Last week, the Supreme Court issued its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, holding that Métis and non-status Indians fall within the scope of Parliament’s legislative power over “Indians” provided for in section 91(24) of the Constitution Act, 1867. While this outcome may have significant consequences, what interests me most is the approach that Justice Abella’s opinion for a unanimous court took to constitutional interpretation. While I would hesitate to call this approach originalist, it is clearly historical, and is (almost) entirely free from the Court’s habitual paeans to “living tree” constitutionalism.

The only real question for the Court was whether the Métis were “Indians” within the meaning of section 91(24). The government conceded that non-status Indians were. “The prevailing view,” Justice Abella noted, “is that Métis are ‘Indians’ under s. 91(24).” [22] This view is consistent with the way that the term “Indians” has been used throughout Canadian history, beginning before Confederation:

Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Métis were considered “Indians” for pre-Confederation treaties such as the Robinson Treaties of 1850. Many post-Confederation statutes considered Métis to be “Indians.” [24]

Moreover, “the purpose of s. 91(24) in relation to the broader goals of Confederation” ― which was to ensure the federal government’s ability to maintain a good relationship with and control over the Aboriginal peoples, in particular those who might otherwise get in the way of its railway-building ― “also indicates that since 1867, ‘Indians’ meant all Aboriginal peoples, including Métis.” [25]

References to the use of the term “Indian” in pre-Confederation treaties and statutes enacted in the years immediately following Confederation, as well to the purposes that the head of power at issue served at Confederation, might be characteristic of originalist interpretation. However, Justice Abella then proceeds to examine the numerous instances in which governments both federal and provincial, as well as commissions of inquiry created by them, treated the Métis as included within the term “Indian,” over a period of time from 1894 to 1996 and beyond. This is no longer originalism, since the way in which the constitutional language was understood 30, or a fortiori 130 years after its enactment does not tell us much about either its original meaning or the intentions of its framers. If anything, this might justly be called living constitutionalism, were it not for the fact that this term is seldom used to describe the consistent attribution of the same meaning of a constitutional term. (I am not sure why that is the case, by the way.)

Justice Abella also noted that “while it does not define the scope of s. 91(24), it is worth noting that s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution,” which suggests that reading section 91(24) as including the Métis makes for a more harmonious constitutional order overall. She pointed out, too, that other decisions of the Supreme Court suggest that groups other than “Indians” in a narrow sense ― notably the Inuit ― can be included in the scope of s. 91(24). It is worth observing that, as Justice Abella noted, one of these decisions ― Reference whether “Indians” includes “Eskimo”, [1939] S.C.R. 104  ― “[r]el[ied] on historical evidence to determine the meaning of ‘Indians’ in 1867.” [39]

There is one brief allusion to the “living tree” approach to constitutional interpretation which the Supreme Court usually claims to favour in Justice Abella’s reasons. Distinguishing Daniels from R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, Justice Abella quoted Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at par. 30 for the proposition that “[t]hat case [Blais, that is] considered the interpretive question in relation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities.” I do not think that the reference to “adaptation to new realities” does any work at all in Daniels. The balance of Justice Abella’s reasons shows that the understanding of section 91(24) has been consistent throughout its history.

Perhaps Daniels can be best understood as representing not any particular interpretive methodology, but the Supreme Court’s thoroughgoing if utterly unsystematic interpretive pluralism, of which Benjamin Oliphant and I speak in one of our recent papers. Historical, and even originalist arguments are an ineradicable part of this pluralism, but the court is not committed to them, and it can sometimes affect to dismiss them out of hand even as it uses them to great effect. Daniels is thus an important reminder that, to really understand the Court’s approach to constitutional interpretation, we must look carefully at what it does, and not just at what it says.

State v. Conscience

Freedom of conscience, state authority, and the case of the citizenship oath

As I had already mentioned, last week I spoke at a discussion on freedom of conscience that the Runnymede Society organized at McGill on Tuesday. It was a lot of fun, and as always at McGill there were some great questions from the students who came out. For those of my readers who weren’t there though, I thought I’d post my prepared remarks. I ended up moving a few things around in the presentation, but this is close enough to the substance of what I said. Those of you who have followed my posts on the citizenship oath probably won’t find much that’s new here, but if you’ve missed them, this is a flavour.

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The idea of freedom of conscience has been in conflict with state authority for as long as it existed, which is to say about 500 years. (Since it’s the Runnymede Society that has invited us here, I would have loved to say something about the Magna Carta ― but although freedom of the Church is the very first article of the Great Charter, there is nothing there about freedom of conscience, or for that matter about other “fundamental rights” protected by section 2 of its Canadian descendant. Indeed, the development of the very idea of conscience is associated with Aquinas, who was only born 10 years after the Magna Carta was issued.)

Lord Acton puts the idea of freedom of conscience beautifully and concisely. It is the belief that “the knowledge of good and evil is not the sublime prerogative of states, nations, and majorities. … Its action is to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men.” Needless to say, the man or woman who seeks to live by his or her own lights is bound to clash with the state, which wants to reserve the prerogative of defining good and evil for itself, for reasons both righteous (of which Hobbes and Locke remind us) and corrupt, of which Lord Acton does: “The passion for power over others can never cease to threaten mankind, and it is always sure of finding new and unforeseen allies in continuing its martyrology.”

The conflict is ineradicable, but the weapons by which it is waged change. We have forced the state to abandon the executioner’s sword, and we have now at our disposal the instrument of judicial review of legislation. When Henry VIII became the first monarch to demand that all of his subjects swear allegiance to him (in his newfound capacity as the head of the Church of England), Sir Thomas Moore, who refused, was beheaded. When people who seek to become Canadian citizens refuse to swear that they will “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors,” they are allowed to go to court and to challenge the requirement that they take the oath.

As some of you may know, recently a group of would-be Canadians did just that. They lost, however, both at the Superior Court of Justice and at the Court of Appeal for Ontario. The Supreme Court refused to hear their appeal. Still, we thought that it might be interesting to come back to this case, as an illustration of the conflict between the authority of the state and the conscience of individuals. The case, I should note, was litigated under the heading of freedom of expression, not freedom of conscience. But although I believe that the applicants should have prevailed on that claim too, I think that it fails to capture the really interesting and distinctive feature of the problem of the oath, which is the way in which it is tied up with conscience.

Originally, swearing an oath meant incurring a religious obligation, but the idea of an oath persists, even in a secular state, cut off from its religious roots. Any oath, as the Supreme Court has recognized, is an attempt to “get a hold” of the conscience of the person who swears it. Breaking an oath would be immoral, even if one doesn’t believe that it would result in damnation―and regardless of any criminal sanction that might follow. But an oath typically involves morality at another level as well, in that its performance is almost always a matter of moral judgment. This is not a conceptual truth―some oaths are not of that sort―but the law tends to require oaths in those situations where it cannot describe and therefore impose the obligations it would like to demand because they are vague, subjective, and ultimately appeal to the conscience of the person who is to perform them.

I’ll mention just one example other than the citizenship oath itself, drawn from the oath that you will swear when you are called to the bar. Those of you who will be called in Ontario, and perhaps in other provinces too, will swear, among other things, to “seek to ensure access to justice”. This is not a straightforward obligation. Discharging it will require you to think about just what your duties really are; a judgment that is no doubt partly intellectual, but also, to a considerable extent, moral. Ensuring access to justice is, for a single lawyer and for the profession as a whole, a matter of degree, and you must decide how far to go. Should you limit your fees? How much pro bono work should you do? Can you “ensure access to justice” while being a member of a state-enforced cartel whose raison d’être is to increase the cost of legal services? The oath does not answer these questions; there is no rule to guide you; you must figure these things out for yourselves, in conscience. What the oath does―if you take it seriously, and not just as an ancient ritual, which in fairness it might be―is it “gets a hold” of your conscience and directs you to ask yourselves some very hard questions.

Oaths of allegiance are similar in that they enlist the conscience of those who swear them; they require these persons to ask themselves what it means to be loyal to that to which they pledge allegiance, and what that duty of loyalty that they impose might require in various circumstances. The oath of allegiance is not reducible to those obligations that state imposes by law―for example with the provisions of the Criminal Code regarding treason. If it were, there would be no need for it. The reason an oath is required is that something more―namely, a moral commitment that goes beyond legal obligation―is thought to be necessary.

The people who challenged the citizenship oath―unlike, I suspect, most of those who swear it but regard it as a mere meaningless formality (myself included, I confess)―have thought about it would mean to “bear true allegiance to Elizabeth II, Queen of Canada.” They think that would mean being personally loyal to the monarch and politically loyal to the monarchy, both of which they regard as intolerable. And the courts that have passed on their claim implicitly agree that the state could not actually impose this sort of condition on acquiring Canadian citizenship. But, they have said, this is all a misunderstanding. Swearing allegiance to the Queen of Canada does not mean swearing allegiance to Elizabeth R. personally; nor does it mean endorsing the monarchy as a system of government. If only the people who are challenging the oath understood it correctly, they’d realize that it is not the sort of imposition that they imagine it to be.

Now, I take it from Philippe Lagassé, who spoke at McGill not long ago, that the courts are right as a matter of Crown law. The Queen of Canada to whom the oath refers is the personification of the Canadian state, and an entirely distinct entity from the head of the Church of England, for instance. But, I submit, the state―and keep in mind that the courts are a branch of the state―cannot have it both ways. It cannot ask people to swear an oath, and thus to work out for themselves, as a matter of conscience, what their obligations are, and then turn around and say that those who have done this exercise got the answer wrong. The state can impose legal obligations by statute, in which case people’s misunderstanding of the law cannot ground a constitutional challenge to it, as the Supreme Court has held in Khawaja. A statute merely tells you what to do or not to do; it does not have anything to do with your conscience. But if the state, instead of enacting a statute, exacts an oath, and thus appeals to conscience, must respect the conscientious judgment of the people whose morality it seeks to enlist. In this instance, it means that the courts should have recognized the burden on the persons who challenged the oath to the Queen, and required the state to justify the imposition of this burden under section 1 of the Charter.

I don’t have the time to go through the complete section 1 analysis, which is unfortunate because there is a lot to say there, both about the futility of loyalty oaths generally and about the defects of ours in particular. I’ve gone over that in more detail in an article. I will only make one point that has to do directly with freedom of conscience. At the last stage of the Oakes justification test, we have to consider the impact of the infringement on the claimant. If we think only of the oath’s infringement of freedom of expression, as the Ontario courts have done, that impact is very limited. But if we consider the oath as an enlistment of the conscience of those who swear it for the rest of their lives, it is, I believe a rather more serious business.

Ultimately, the Canadian state does not care very much about the oath it exacts from its new citizens. One of the people who had challenged the oath to the Queen withdrew from the proceedings, swore the oath, and became a citizen. He then proceeded to write to the government telling it that he recanted the oath he just swore. The government wrote back saying that this didn’t matter. Now imagine, for a second, that you are testifying in court, and decide to tell the judge that you recant your oath to tell the truth ― and the judge tells you that this is fine, and just go on. Still, it is a reminder of the conflict between conscience and authority ― even if authority may not be inclined, in this instance, to fight as hard as it once did.

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In case you want to see more of my thinking on the matter of the citizenship oath, the paper I mention above is here. As for the Lord Acton quotes, they are drawn from his magnificent Lectures on Modern History.

A Fourth Cheer

My thanks to my readers on the blog’s fourth birthday

Yesterday, this blog turned four. Its fourth year has, I am afraid, been marked by occasional periods of extended silence, as was trying to finish my dissertation. Still, I have managed to come back every time, and to keep going. I have also got some very flattering accolades from the judges of the Clawbies and from an actual judge of the Federal Court of Appeal. Benjamin Oliphant and I have also produced a couple of papers which originated, in part, in some blog posts of mine, including this one from this past year (and in part in one of his).

As on previous blogging anniversaries, I take this opportunity to thank all of you, my readers, for giving me some of your time, and also for bearing with me when I go quiescent, to borrow again Judge Richard Kopf’s wonderful expression. I wish I could promise that I will be more regular in my postings, but my life might be a bit too chaotic for that for next little while. (I hope there will be good news amid the chaos, but everything in its time.) Please keep coming back, and I will at least try not to disappoint you.

Events Next Week

I’ll be visiting McGill and Yale next week. Come say hello!

Next Tuesday, the 29th, I’ll be taking part in a discussion on “Conscience and the Constitution in Canada” at the McGill Faculty of Law (specifically, in NCDH 101). I will be speaking on the conflict between freedom of conscience and state authority, in particular as it played out in the litigation about the constitutionality of the Canadian citizenship oath, about which I have written a great deal here. The other participant will be Brian Bird, a doctoral candidate at McGill, who will be speaking about the legal history of freedom of conscience in Canada. The fun starts at 1PM and goes on until 2:15.

By the way, this event is organized by the Runnymede Society, which is a new group that aims at fostering conversations and debates on matters constitutional in Canadian law schools, and in particular at presenting students with a broader range of views and perspectives than they might otherwise be exposed to. I think it is a very exciting and useful project, and I am very excited to be taking part in one of their first events. Thanks to the Runnymede Society’s president, Joanna Baron, for inviting me!

And next Thursday, the 31st, I will be moderating a panel on “Popular Sovereignty and a Québec Constitution” at the Symposium on Does Québec Need a Written Constitution?,which will be taking place at Yale, in Luce Hall (LUCE), Room 203. The proceedings start at 9:45, and the panel that I’ll be chairing ― and on which Maxime St-Hilaire (a sometime guest here at Double Aspect), Mark Walters, and Nelson Wiseman will be speaking starts at 1PM. Many thanks to Richard Albert, the convener of the Symposium, for inviting me to do this.

If you are able to attend either event, please come say hello!

Permanent Problems

The law’s ideals and problems have not changed too much in 400 years

I have only now read Francis Bacon’s essay “Of Judicature.” Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway ― I suspect that they haven’t heard much of Coke in the science faculties, where Bacon is regarded as “the father of the scientific method.” Still, his essay is fascinating, because it shows just how little the law’s aspirations and failings have changed in the 400-odd years since it was published.

Bacon’s essay is essentially a collection of advice to judges about how to discharge their office. A good deal of it could still be repeated today. My point, in drawing attention to it, is not to say that all of this advice is good, at least in an unqualified form. It is, first and foremost, to remind the reader of the remarkable historical continuity which, for better and for worse, characterizes the law as a field of human activity.  Here are a few of Bacon’s recommendations, with some accompanying thoughts or comments of my own.

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Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.

Sounds familiar, doesn’t it? If and when there is at last a confirmation hearing for the next judge of the Supreme Court of the United States, you will hear this exhortation repeated ad nauseam; you might even hear it if there is any sort of public hearing involving the next judge of the Supreme Court of Canada. John Finnis quoted Bacon’s appeal in his very interesting recent lecture on “Judicial Power: Past, Present and Future” (whence I learned about Bacon’s essay). But the very fact that this limitation on the judicial role has for so long, and so often, been reiterated should alert us to the habitual futility of the appeal. The Supreme Court’s equivocation over  whether it discovers or makes up the legal rules which it articulates for the first time seems to the suggest that the ideal of the law-saying judge has some appeal to those already holding judicial office ― but not as much as Bacon would have liked.

[W]hen there appeareth on either side an high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.

This is also a familiar idea in 2016. Richard Posner, to give but one ― perhaps unexpected ― example has been very vocal about the need for active judicial intervention “to make inequality equal” by correcting the disparities of resources between parties to litigation, whether in his judgments or in a recent extra-judicial indictment of “What Is Obviously Wrong with the [American] Federal Judiciary, Yet Eminently Curable” (see 190-91). There are situations, it is worth noting, where judges might be making things worse, not better. I have been arguing for a while now that this may be happening in constitutional law, as judges increasingly expect expert evidence to support Charter challenges, and thus increase the inherent disparity of resources between citizens and government. (In a recent post over at The Court, Lillianne Cadieux-Shaw seems to share this concern.)

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge … to prevent information by questions, — though pertinent. 

There has been much discussion of this point following the recent death of Justice Scalia. He was a famously active interrogator of the lawyers who appeared before the US Supreme Court. Surviving him is his colleague Justice Stephen Breyer, whose solliloquies questions occupying entire pages in the oral argument transcript Josh Blackman lovingly (?) documents. By contrast, Justice Clarence Thomas, of the same court, had spent a decade without asking a single question until finally doing so recently. Justice Thomas, one supposes, would agree with Bacon. Those who derided him for his self-imposed silence presumably would not.

[T]hose, that engage courts in quarrels of jurisdiction, … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.

Here at least, I agree with Bacon wholeheartedly. Those who, in the pursuit of their own ― these days usually political ― agenda, seek to draw the courts beyond their proper remit are not the courts’ friends, though they may present themselves as such. I have said as much in response to a call for the Supreme Court to decree, by judicial fiat, the “depoliticization” of judicial appointments. I wish I’d known the phrase parasiti curiae then, but I will make sure to use it on the next appropriate occasion.

Judges ought above all to remember the conclusion of the Roman Twelve Tables; Salus populi suprema lex.

Perhaps the most obvious example of Canadian judges applying Bacon’s prescription is the Supreme Court’s opinion in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, where the Court sought to avoid “chaos” that its finding of unconstitutionality of Manitoba’s entire statute book by the expedient of suspending this finding’s effect. But beyond such exceptional situations, Bacon’s advice gets tricky fast. For one thing, the Latin salus is ambiguous. It can mean “health,” “safety,” or “welfare” ― making salus populi not one single objective, but a complicated programme. Still it is often said that judges ought to have regard for the public safety (“the Constitution is not a suicide pact”) or even welfare ― Judge Posner being a foremost advocate for the latter position. But isn’t there a tension between making public welfare into supreme law, and renouncing judicial legal innovation? Bacon says, “let no man weakly conceive, that just laws and true policy have any antipathy,” but even if true, this point doesn’t really address the issue of the judicial role. And Bacon’s concrete recommendations for achieving the salus populi ― frequent consultations between the three branches of government, and a demand that judges “be lions, but yet lions under the throne” would run afoul of our views on judicial independence, which are quite different from his.

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In the essay I mention above, prof. Finnis writes that “[t]he problems about the nature and reach of judicial power, about which Bacon and Coke disagreed, are with us today in forms much shifted in occasion and location but still recognizably the same.” That is because they are “permanent problems, capable it seems of only provisional rather than permanent solutions.” (3) The relevance of Bacon’s prescriptions, and the fact that they would be contested now as they were contested when given (and again, except as specified above, I do not fully agree with them), suggests that prof. Finnis is right about that.

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!