Originalism and the Living Tree

The confirmation hearing of Judge Coney-Barrett has triggered a firestorm of discussion on my Twitter feed about the meaning of the term 'originalism'. My own Twitter feed is more of a counter-narrative - people responding to claims that Canada doesn't subscribe to the American originalist doctrine, essentially arguing that Canada's "living tree" principle is not in opposition to an originalist approach.  (Naming names, I've seen posts to more-or-less this effect by Emmett Macfarlane, Leonid Sirota, Asher Honickman, and Mark Mancini - with some variation between their positions. I've linked relevant Tweets, and I'm genuinely trying to be fair to everyone's position, but if anyone feels I'm misrepresenting your positions or using any straw man arguments here, I invite clarification.)

These folks largely have stronger constitutional law credentials than I do, and I don't take issue with the core point being made (particularly by Honickman) that even Canada follows a doctrine that suggests that the meaning a statute is fixed at the point of enactment...but I don't think that captures the concept of Originalism as it is being used in the American context.

In America, the question that earmarks the originalist interpretive movement is "What was the intent of the framers?" - which invariably pulls us into a debate of shifting values, where the originalists want to interpret the US Constitution in accordance with the values that prevailed in the day. (More technically, most followers of Scalia's Originalism ask what a reasonable person, at the time of enactment, would have understood the language to mean.) This extends, for most originalists, to the application at issue in the particular case: When the Fourteenth Amendment was crafted, would it have been understood as extending equal protection to apply on bases of sex, sexual orientation, gender identity, etc.?

When you ask that question in that way, as Scalia did, you answer it in the negative.

In Canada, we don't ask that question, or at least not in the same way.

The examples of Charter evolution that keep coming up in this discussion are technological: Do infrared scans constitute 'searches' within the meaning of the Charter? Is speech on the internet protected by freedom of expression?  These are questions that simply wouldn't have arisen in 1982, and so our application of the Charter evolves to apply the existing underlying principles to new technologies that may arise, and it's not so different, in practice, from asking whether or not extending the First Amendment to the internet is consistent with Madison's intentions.

But with all due respect, these examples are the easy ones - asking how the courts today answer a question that simply wouldn't have been asked in 1982 simply doesn't engage the full nuances of the question. The tougher questions arise when the underlying context, or our societal understanding of the underlying context, yields a scenario where the courts today or in the future may give a different answer to a question of substantive rights than they would have in the past - the question, fundamentally, of whether substantive constitutional rights are 'frozen'.

The internet has raised new debates as to the scope of our privacy rights vis-a-vis government (see R. v. Mills), which are qualitatively different because of how privacy, in a general sense, has evolved. We haven't heard the last of that, I'm sure.

But the most obvious change from 1982 to present relates to certain 'values' questions, with the result that the SCC actually has reversed itself on a number of its earlier Charter decisions. The early Labour Trilogy started to see a reversal in 2001.  When the SCC rejected TWU's bid for a law school, the analysis arguably contradicted its earlier decision to allow TWU a teacher's college.

Other questions might conceivably have had different answers in 1982 compared to when they actually came before the courts - is sexual orientation an analogous ground within the meaning of s.15?  In the 80s, this was still widely regarded in the ACB-esque language of 'sexual preference', implicitly rejecting its immutability.  What about gender identity?  It's fantastical to think that the courts of the 80s would have found that governments need to issue IDs that accord with an individual's gender identity.

In none of these questions do we seek guidance from what the Charter would have been understood to mean in 1982...because that simply doesn't matter, under Canadian constitutional doctrine.

The Persons Case

Famously, in 1929, the Judicial Committee of the Privy Council found that women were "Persons" within the meaning of the Canadian constitution, eligible to hold office as a Senator. This is the decision that coined the 'living tree'.

In the current debate, both Sirota and Macfarlane have suggested that it's a mistake to interpret the Persons case as diverging from an American-esque originalist approach. It wasn't the case that the meaning of the word "Persons" really changed from 1867 to 1929; rather, there was an underlying common law rule in effect in 1867 that women couldn't hold public office at all.

However, I would suggest that the distinction proposed by Sirota and Macfarlane is without a difference. It is clear that the Supreme Court of Canada (not yet the highest court at the time), in refusing to extend to women Senate eligibility, asked whether or not it was within the contemplation of the legislators who drafted the constitution:  In the context of a statute passed in 1867 governing eligibility for office, the common law rule had the prima facie effect of excluding women, and it would have been unthinkable to appoint a female Senator at the time.

The JCPC, reversing the SCC, coined the phrase "living tree" to allow a large and liberal interpretation of the Canadian constitution, not narrowly defined by technical rules. Even though it is indubitably true that the authors of the constitution in 1867 would not have envisioned female Senators, the language nonetheless permitted it, and the values and context and customs that may governed the application of that language in 1867 were not determinative.

The Frozen Rights Theory

Justice Ian Binnie (formerly of the SCC) once debated Justice Antonin Scalia (noted SCOTUS originalist) about the 'living tree' vs 'originalist' dichotomy, which Binnie then reduced to an article, characterizing the question as being whether or not the constitution establishes "frozen rights", locking the form of our institutions and our substantive rights and freedoms. (Hat tip to Tom Posyniak for linking this.)

This is, I think, a good way of characterizing the dichotomy: Does the constitution lock in a certain set of substantive constraints upon government, until and unless it is amended, based on the interpretation and intention at the time it was drafted?

Binnie highlights that the drafters of the Canadian Charter started with "the most general idea" of the rights they wanted to include, and tasked the courts with interpreting and refining those rights - subject to a legislative override that ultimately gives elected legislators the final say, should they choose to exercise it.

(I have generally been troubled by the notwithstanding clause, and I believe that Canadian legal history generally supports a conclusion that its invocations have generally been unnecessary and not in the public interest, but at the same time I've started to think along similar lines to Binnie, that it creates a pressure valve that helps the courts exercise their interpretive function without needing to handcuff themselves to avoid incidental incursions into 'policy'. Likewise, the existence of the override may well help vent the political partisanship that has long informed American judicial appointments.)

But even that is a generous interpretation of the dichotomy, that the Canadian constitution provides for contemporary judicial interpretation in a way that the American constitution may not. I would suggest that these don't explain the whole difference, because nothing about the Canadian constitution instructs courts to take a contemporary approach to defining, for example, an 'analogous ground' under s.15. Nor is the US Constitution, itself, devoid of terms calling for judicial interpretation:  For the purpose of the Eighth Amendment, how do we decide whether bail is "excessive" or whether a punishment is "cruel and unusual"? On this latter point, there can be no doubt that 18th century and 21st century sensibilities differ greatly: Things that were commonplace in early American institutions would likely be regarded as torture today, prohibited by peremptory norms of international law.

Constitutional provisions inform doctrines, principles, and tests, and those ought to be more-or-less static and consistent with the intention of the drafters. However, the application of those doctrines, principles, and tests are factual and contextual matters to be decided by courts, without reference to whether or not the drafters would have thought that this particular fact-pattern should be governed by that particular doctrine, etc.  Therefore, the answer to a question of substantive rights may differ, depending on the era and overall context  in which that question is asked.

So, to be clear, I believe that I'm fundamentally in agreement with the constitutional approach suggested by Sirota et al; what I'm saying is that, to whatever extent we may call our adherence to the original text 'originalism', it's not the same concept being discussed in America, which is meaningfully distinguished by the living tree (or 'living constitutionalism', as American critics of originalism call it).

What Does Originalism Mean to the Americans?

There's no singular universally accepted version of American originalism- but given the prominence of Antonin Scalia, and the adherence of Coney Barrett to Scalia's model, I'm going to use his views as being definitive of originalism for the purpose of the present discussion.

The contrast, I would suggest, is well illustrated by Scalia's dissent in Roper v. Simmons, where the majority of the court found the death penalty unconstitutional for juvenile offenders.

Scalia, however, suggested that the constitution should be read in light of the common law infancy defence as it existed at the time the constitution was adopted:

At the time the Eighth Amendment was adopted, the death penalty could theoretically be imposed for the crime of a 7-year-old, though there was a rebuttable presumption of incapacity to commit a capital (or other) felony until the age of 14.

The parallels to the (later overturned) reasoning of the SCC in the Persons case are stunning - interpreting the constitution as intending to apply relevant common law principles observed at the time, notwithstanding that the underlying common law principles may have shifted in the time since.

This is one of the hallmarks of Scalia's originalism: In a 2017 paper, "Beyond the Text", Professor Michael Ramsey (whose acknowledgements in the paper, incidentally, include Amy Coney Barrett), surveyed Scalia's originalism and highlighted that the Scalia thought that the constitution's "English law background...formed a crucial key to the Constitution's meaning." He also regarded post-ratification practice as a de facto indicator of the intended meaning: If governments at the time clearly understood the constitution to mean a certain thing, then courts two centuries later should be loathe to impose their own conflicting meaning.

In this way, it is quite clear that the JCPC's decision in the Persons case is directly at odds with American originalism.

Different Historical Contexts

To be fair, the US constitution is much older than Canada's (and especially so in respect of the entrenched bill of rights), and the US legal system in 1791 was far less developed than Canada's in 1982. Whereas the implementation of the Canadian Charter set off a flurry of constitutional litigation, and Canadian courts very quickly developed sets of guiding principles for Charter rights, it took 12 years after ratification of the US Bill of Rights before the courts even decided that they had the power to strike down legislation conflicting with it, and it was not the subject of a significant litigation until the 20th century.

As such, Canada has a more-or-less contemporaneous instruction manual in terms of the guiding principles and doctrines of our Charter. The Oakes test, which in 1986 delineated reasonable limits on Charter rights, remains well-used in today's jurisprudence. However, when we ask questions such as whether or not a policy objective is 'pressing and substantial', there's no reference to whether or not people in 1982 would have recognized the importance of the policy. (And for good reason - it's not tough to think of examples where a contemporary policy of importance would have been incoherent in the 80s.)

So in Canada, it's relatively easy for us to parse 'interpretation' from 'application'.  The 'interpretation' of s.1 was mostly set in stone in Oakes in 1986, but the substantive rights it will allow to be infringed...was not. This doctrinal separation allows us to avoid the results-driven originalism that pervades the American jurisprudence of whether or not the impact of the decision being made is consistent with the expectations of previous generations.

Framework Originalism

Yale Law Professor Jack Balkin coined a concept he described as "Framework Originalism" or "Living Originalism" - a hybrid between the Originalist and Living theories, which divorces, as I have, the 'expected application' from the original meaning of the language.

In his paper "Abortion and Original Meaning", Balkin suggests that when Scalia et al refer to terms like 'original meaning', they're actually talking about the "original expected application".  He focuses on the Fourteenth Amendment, and suggests that the true original meaning deals with fundamental principles "of equal citizenship and opposition to caste and class legislation", arguing that women's equality is consistent with these principles, regardless of what people would have thought at the time of ratification.

We need not regard decisions recognizing women’s equal rights as mistakes: quite the contrary, they are our generation’s attempt to make sense of and implement the Constitution’s text and its underlying principles. These decisions—and others like them—do not sacrifice constitutional fidelity on the altar of precedent; they demonstrate how development of judicial doctrine over time can implement and maintain constitutional fidelity.

I would suggest that the Canadian model is actually a very effective example of the model that Balkin proposes, and indeed more-or-less exactly what Canada's courts have done: We developed a legal framework and test for application of equality protections under s.15...and as we find new grounds of discrimination that Pierre Trudeau would never have anticipated would garner protection, we ask whether they satisfy the test...and if they do, we celebrate that the Charter gave us the tools to recognize that the new ground is worthy of protection.

However, Balkin's model is a contrarian form of American originalism, and absolutely not what folks like Antonin Scalia and Amy Coney Barrett support.

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.