Original Meaning: An Unhelpful Concept for Constitutional Interpretation

I wrote this some time ago, in response to controversy about a Canadian law student society that significantly promotes originalist thought, but never polished it to the point of publication until now.

As American jurisprudence evolves in a way that thinly veils partisan values in a cloak of 'originalism', it's worth discussing what originalism really adds to a discussion of meaning, if not simply acting as a vessel to import anachronistic values into the interpretive exercise.

The student society is the "Runnymede Society", and it's an offshoot of the Canadian Constitution Foundation. Both engage in some pretty ideologically loaded exercises. Runnymede's principal participants have a pronounced conservative slant, and they once hosted a debate on the protection of trans rights between...Jordan Peterson and Bruce Pardy. (That's right, on a question where the legal status quo is that trans rights are protected, and there's a widespread near-consensus in the legal community that they should be protected, Runnymede was unable to find a debater who hasn't vocally opposed protection of trans rights.)

Until relatively recently, the CCF's statement of its own mandate included treating s.7 of the Charter as protecting property rights (and they continue to intervene in 'property rights' cases); and while the CCF's website insists that their scope is narrow - dealing with sections 2, 7, and 15 of the Charter, and never criminal matters - the exceptions are telling...for example, intervening in a proceeding to argue that s.12 protection against cruel and unusual punishment should protect corporations, or in another case arguing that an individual charged under the Securities Act and liable to a hefty fine was entitled to a jury trial under s.11. They challenged the 'quarantine hotel' policy on the basis of (among others) sections 6, 9, and 12. They intervened in the Saskatchewan Federation of Labour case arguing for a narrow interpretation of s.2(d), arguing against recognition of a right to strike; and intervened in Bernard arguing for a more expansive interpretation of s.2(d) as far as the 'right NOT to associate' with a union is concerned. In another ongoing case, they're arguing that the current barriers to private healthcare alternatives are unconstitutional.

The list goes on: A survey of their cases shows that they routinely intervene in politically controversial matters, consistently taking positions that one would typically characterize as aligning with libertarian/conservative values - anti-labour, pro-business, anti-pandemic restriction, pro-privatization of healthcare, etc.

Despite the ideological leanings evident in their advocacy, the CCF describes itself as "non-partisan". Press Progress has drawn attention to their partnership with the Koch-affiliated Atlas Network, along with other right-wing groups like the Manning Centre, the Fraser Institute, the Canadian Taxpayers Federation, and the JCCF.

Runnymede characterizes itself as expressly apolitical, and it has been challenged for that, including for their concealment of their funding sources. (Runnymede-affiliated folks I know have defended this on the basis of, among other things, the fact that the CCLA also doesn't disclose the sources of its funding, and suggest that questions about their funding are into conspiracy theory territory. However, the difference is this: CCLA wears its ideological bent on its sleeve, overtly asserting certain standard 'progressive agenda' items like EDI and breaking down barriers for disadvantaged groups, and if I were to suggest that the CCLA gets some of its money from labour groups and other progressive political organizations, that wouldn't be treated as a conspiracy theory but simply as a reasonable supposition.)

The reason it's important to Runnymede that we believe that they're apolitical, and the reason it's important to understand the dubious bona fides of that claim, is that the focal point of the discourse coming out of Runnymede is a contention that Canadian constitutional interpretation is ideologically loaded that allows judges to fill in the blanks with their own values, as opposed to taking what they generally advocate as a supposedly-values-neutral interpretive philosophy: Originalism.

Originalism has long been at the heart of controversy in the American legal context - challenging developments in constitutional interpretation as 'judicial activism' that departs from the objective original meaning of the document, for some shifting formulation of what that means. The appeal of a doctrine like originalism is that it sounds so superficially apolitical and sensible. Of course this isn't a right wing agenda; we just think that the words in the constitution need to have a fixed meaning that shouldn't change over time.

Within the American context, defining originalism is a bit of a moving target, as its modern proponents try to craft an articulation that doesn't obviously require them to reject basic propositions of modern America, like Brown v. Board of Education: If, in 1868, the 14th Amendment wouldn't have been understood or interpreted as prohibiting segregated public schools, how does one craft a doctrine of 'originalism' that doesn't permit segregation? So most originalists have departed from the 'intention of the drafters', because that is far too limiting, and have gone on to concepts like 'original public meaning' - how would the society more broadly have understood its language - or to the creation of analytical frameworks that SOMETIMES allow the contents of the framework to evolve.

(The OPM argument is amusing to me, given the extent to which Canadian criticisms of the 'living tree' focus on a perception that courts are trying to gauge public opinion, without having the tools or really the mandate to do so: There's a school of American originalist thought that attempts to justify Brown on the basis that there were anti-segregationists at the time (though segregation was, in fact, widespread), and so they would have the courts trying to gauge public opinion from an earlier generation. The 'framework' approach is more useful, but application of it as a principle is starkly different from anything that's meaningfully 'originalist'.)

In that spirit, Runnymede-affiliated originalists will go on at length about how the criticisms of originalism all fail to land because they all focus on concepts like 'frozen rights', etc., and that's not necessarily inherent to originalism.  That's the 'old' originalism, not the 'new' originalism.

So let's take the bait, and explore the bona fides of originalism as an apolitical and values-neutral principle of constitutional interpretation.

I intend to show, here, that originalism is neither values-neutral, nor is it a useful tool for drawing meaning from the document. It is, at best, an interpretive red herring, adding a temporal filter that does not enhance or change the contemporary meaning of constitutional language; and at worst it's a Trojan horse enabling the linguistic meaning to be informed by regressive values systems.

The Other Extreme

While the concept of the "living tree" is well-established in Canadian case law, its meaning is somewhat less clear.  It's sometimes argued - more by its critics than its proponents - that it creates a carte blanche for the court to rewrite the meaning of the constitution, and constitutionalize additional rights, to suit its own values or its perceptions of the social norms of the day.

While there's some nuance here, particularly dealing with exceptions to substantive rights, this article does not argue (nor does the author believe there is a coherent argument to be made) that substantive constitutional rights should generally be defined by social context, past or present.

"Living tree" arguments, in practice, tend to be used more often specifically to resist the contention that the constitution impliedly entrenched old legal rules that today would be anachronistic, arbitrary, and absurd.

The Limits of the Argument: Homonyms

Firstly, let's clarify what I'm not talking about, because it's so obvious as to not be worth talking about: Words with multiple unrelated definitions, where there's a particular meaning clear from the overall context.

These are called homonyms (different words with the same name) or homographs - different words with the same spelling.  (Sometimes, but not always, homographs have different pronunciations.  But given that we're talking about written law, whether they're also homophonic is rather beside the point.) Think of the word 'bat'.  Depending on context, it can be used to refer to a flying nocturnal mammal, or to an object wielded to strike a baseball.

And the greatest straw man in the discipline of statutory interpretation would be to argue that an animal control regulation that deals with bats ought not to be interpreted as allowing authorities to round up George Springer's collection of baseball bats.  It's a straw man because nobody seriously believes otherwise.

In a constitutional context, I could come up with a hypothetical - that if, in a hundred years, we develop a usage for the word "association" that refers to the act of twirling a fishing rod like a baton, that homographic neologism would obviously not engage the constitutional protections of s.2(d) of the Charter.

I don't need random hypotheticals, though, because there's a perfectly good example in the Constitution Act, 1867, conferring jurisdiction on the Federal Parliament for matters related to "Indians".

I'll pause to acknowledge just how problematic that term is, and how its continued presence in our constitution is emblematic of Canada's historical and ongoing mistreatment of Indigenous peoples.  But as to what the term broadly means within Canada's constitutional milieu, there's no real controversy.

Even though we no longer generally use that word to refer to Indigenous peoples, we still understand the constitutional power as addressing that group - and not, say, people from India.  There's a pretty good Indian restaurant down the street from me, operated by a family from India, that serves a mean lamb curry.  There is NO cogent argument that paragraph 24 of s.91 confers any special powers upon the Feds in respect of that restaurant or its owners.  There is likewise NO cogent argument that it removes any ability of the Province to regulate the affairs of that business.

So yes, I'll acknowledge up front that semantic evolution doesn't particularly inform our interpretation of the constitution. Merriam-Webster doesn't get to substantively amend our constitutional rights by changing how words are defined. (Dictionary definitions can be useful as interpretive guideposts, but they're not determinative.)

But if you look at the concept of originalism at its narrowest - that is, in the sense that evolving semantics shouldn't change the meaning of a constitutional provision - I call that 'unhelpful' not because it's wrong, but because it doesn't help us resolve anything that's genuinely controversial.

Context versus Text

I have seen originalists argue that originalism and textualism are close cousins, and that textualist analysis requires one to look at the context in which the words were crafted.

I couldn't disagree more.  Textualism by definition eschews contextual analysis. It is but one tool in an interpretive toolkit (context is usually important to interpretation as well), but the only scenario in which textualism requires a historian's perspective is where the literal meaning of the words themselves has changed over time.

So while many originalists also call themselves textualists (because textualism ALSO looks like a values-neutral interpretive doctrine), I would suggest that, if you're looking for meaning in the way that language would have been understood in the context of the time it was drafted (presumably because you're suggesting that a contemporary understanding of the same language is different in some material way), you're not actually adopting a textualist approach.

The very premise of originalism as an interpretive philosophy is that there are - in at least some cases - meaningful differences between what the text means now and what it meant historically, and that the current meaning of the text should be disregarded in favour of a historical one.

Different Kinds of Constitutional Evolution

One of the key questions, at its simplest, is whether or not the rights entrenched by a constitutional enactment are fixed at the time of its enactment, or should be capable of evolution over time. This is sometimes discussed as the "frozen rights" question, and originalists really don't like it, generally trying to avoid it, suggesting that it's a misapprehension of the debate - as opposed to the most fundamental issue we're discussing. They'll acknowledge, to a very limited extent, that there can be questions that simply wouldn't have been contemplated at the time of constitutional enactment, like Tessling (see below), to try to avoid being accused of being overly rigid.

But I can think of no fewer than four types of contextual change where constitutional provisions might be, and often are, applied in a way that would have been inconceivable at the time of their drafting:  Technological, Scientific, Conceptual, and Practical evolutions.

In all four, looking to the 'original meaning' is either misguided or unhelpful. I'll briefly overview them to give a sense of what I mean, and then delve into them in more depth further below.

A technological evolution occurs where some technology develops in a way that raises questions of how the constitution applies to the use of that tech, because that technology simply would not have been contemplated at the time of drafting.  The classic example in Canada is Tessling, dealing with the use of thermal imaging, or "FLIR" technology, and whether or not that amounts to a 'search' for the purpose of the Charter.  A more contemporary example would be whether or not a police officer who surreptitiously gets added as a Facebook friend, and proceeds to review a suspect's timeline, is engaged in activity that requires a warrant.

A scientific evolution would occur where our understanding of a real-world phenomenon evolves in a way that changes how it is treated by the framework established by the constitutional language. LGBT rights would be a good example of this: Our Charter recognizes equality protections for 'enumerated and analogous' grounds, making it clear that it's not a comprehensive list of grounds in s.15.  But if you'd asked people in 1982 whether being gay or trans engaged an analogous ground...absolutely not.  At that time, the LGBT community was pathologized - it was regarded (at best) as a disease to be treated. (In many quarters, homosexuality was still regarded as a 'choice'.)  Our understanding of the science and psychology has changed: Gender identity and sexual orientation are neither choices nor diseases, but immutable characteristics essential to a person's identity.

If one accepts that fact, it fits comfortably into the framework of analogous grounds created in 1982 - even though it would have been outrageous at the time.

Conceptual evolution is, in some ways, the most difficult...but in other ways, the most important: This is where the dictionary definition of a word may be more-or-less the same as it was, but where our understanding of the concepts engaged by the word has evolved.

The simplest illustration of this phenomenon is with reference to John Locke himself: His ideas were seminal to the formation of much of American constitutional thought, but subject to exceptions that we wouldn't recognize today. His views of women, while progressive for the time, are very far from a modern conception of feminism.  He believed in religious equality, but to him, this did not extend to atheists.

I would suggest that, when we talk about concepts like equality, we're speaking aspirationally, and not with reference to a specific model of what equality is supposed to look like.  The question is never "What did people, at x point in time, think equality meant?"; the question is "What does equality mean?" Those who turned equality into a governing principle of our constitutional milieu aren't necessarily entrenching a specific version of it, but the grander philosophical principle, with recognition that our collective understanding of it would evolve.

And finally, practical evolution occurs because of a judicial propensity toward incremental change: Where enforcing a substantive right may appear, in a given context, to have outrageous implications that dramatically alter existing social structures, the evolution of social, legal, and economic context may remove otherwise-compelling historical arguments against strict enforcement of such a right.

Technological Evolution

Constitutional interpretation sometimes needs to answer a question that, for developing technological reasons, simply wouldn't have been asked before.  So originalists don't debate that the meaning of constitutional language needs to develop to adapt to modern society.  But how that interpretation is supposed to work...is more difficult.

Let's stick with Tessling for a moment: In 1982, a 'search' would generally have been regarded as a physical intrusion into premises to go through the objects present.  Not exclusively - wiretaps existed at the time, too.  But generally speaking, observations that didn't require a physical intrusion were not going to be a 'search'.

When the police started flying a helicopter overhead with a thermal imaging sensor to determine heat emissions from a house, that raised a different kind of question.

Reasonable people can disagree on what a search would have 'meant' in 1982.  It probably wouldn't have been used to describe a police officer standing at the curb who observes something suspicious through a window with open curtains.  It probably wouldn't apply to observations about snow melting on a rooftop, icicles forming, or smoke rising from the chimney.

Because of the wiretap example, we can't argue narrowly that a search required physical intrusion and disruption - though that might be different in the American context, with a Fourth Amendment authored before the invention of the telephone.  However, the pre-Charter common law of searches is derived closely from the law of trespass, and it's a much shorter jump from trespass to electronic wiretaps than to thermal imaging.  Thermal imaging, in terms of what the police are actually doing, is much more akin to standing at the curb and seeing if there's smoke coming out of the chimney, as opposed to tapping a phone line.

One might argue that the Charter right against unreasonable search and seizure was not originally understood to create a constitutional privacy right at all, but rather to protect then-existing in rem rights against arbitrary encroachment by the government.

So we could argue that the original 'meaning' of 'search' was narrow, that it applied to physical interference with property and to active wiretaps, but that it could never apply to passive surveillance activities not analogous to those things. Or we could argue that 'search' was always understood by its effect of protecting privacy interests in certain contexts.

But that debate is not at all useful. The 1982 'meaning' is a pointless filter and a red herring. There's no reason to think that the definition or understanding of any of the relevant language has meaningfully shifted over the years. We're not working off of a homographic version of 'search' that it is unrelated to the word that was inserted into the constitution in 1982.

The right question to ask isn't what search 'meant', but what it 'means', and we can fairly ask contemporary courts to answer that question, without requiring them to view it through a lens of any particular understanding of the term, held by some individual or group, at a different point in time.

And that's what the Court did: Finding that analogies to 1982 technology were not "helpful", the Court took a broad perspective on the purpose of s.8, and found that it is designed to protect a certain core of privacy interests, which were not engaged by "a FLIR image that discloses that heat sources of some unknown description are present inside the structure".

Catfishing and the Charter

Similarly, there's an even more contemporary challenge with interpreting s.8:  In R v. Mills, Justice Martin argued for an expansion of the principles in light of the nature of the dissemination of our personal information on the internet.

The question in Mills was this: In a context where a police officer posed as a minor on the internet, is it a Charter violation for the state to rely upon the ostensibly-private communications sent to this fake individual?  The court split on ratio: Karakatsanis and Wagner compared it to a person sending a letter to an undercover police officer; the undercover police officer doesn't need a warrant to open it. Brown, Abella, and Gascon took a more fact-based approach: Maybe there would be circumstances where this would be a problem, but where the (non-existent) intended recipient of the messages was understood (by everyone) to be a child and a complete stranger to the accused, it would be a bridge too far to find a reasonable apprehension of privacy in such communications.

But Martin's reasons challenged the existing framework altogether, observing that, in the current technological environment, we are "wiretapping ourselves", and disseminating private information in a way that, if the state could freely access all of it, would be anathema to the underlying purposes of s.8.

I don't think Mills is the last we'll hear of that issue, and at the end of the day, I'm skeptical of Martin's proposed evolution of the s.8 interpretation. (I might distinguish a case where a police officer gains access to someone's communications by impersonating someone real and known to the suspect: If I intend to send a message to my childhood friend John Smith, but instead send it to a police officer who has created a profile using John Smith's name and picture, then that is more akin to intercepting a communication intended for someone else entirely. But overall I tend to agree with Karakatsanis and Wagner: If you're knowingly putting a record into public view, semi-public view, or the hands of someone who is a stranger to you, you can't be all that surprised when it winds up in the hands of the state.)

However, the Mills question is a fair one, and one that could not possibly have been asked in 1982.  Even assuming an initial 'meaning' of s.8 that creates substantive privacy rights against the state, the current state of technology requires us to view privacy through a fundamentally different lens.

So, once again, asking about what the language of s.8 'meant' in 1982 doesn't help us get any closer to an answer of what those rights actually do four decades later.  However, asking the question that way is more likely to result in bogging us down with irrelevant and imprecise attempts to compare to technologies and phenomena at the time, trying to fit the square peg of contemporary privacy interests into the round hole of 1982 privacy interests.

The Greatest Expropriation, by Volume, in History

At common law, there's an ancient Latin maxim referred to as "ad coelum". The whole thing is "Cuius est solum, eius est usque ad coelum et ad infernos."  Its meaning, roughly, is that ownership of the soil confers exclusive rights over everything above (all the way to Heaven) and everything below (all the way to Hell).  Problematic cosmology aside, this principle ran into its first major obstacle with the proliferation of air travel.

In the United States, the Fifth Amendment protects property rights.  So if, in 1791, someone bought a piece of property, it would have been easily and uncontroversially understood as invoking the full effect of ad coelum, and those rights - owning everything above the soil all the way to heaven - were constitutionally protected. Now imagine that this owner passes that title down to his descendants for several generations, until the twentieth century, when air travel starts.

If you want to fly from New York to Chicago, you're passing over countless parcels of property owned by various different people. In rail transit, railways had to acquire rights-of-way and physically build an infrastructure, but part of the appeal of air travel is that you don't need that infrastructure. Also, with rail, once you've built a track across the right-of-way you purchased, there's really no chance that, depending on specific wind patterns or other navigational variations, you'll end up travelling over a neighbour's property.

Purchasing permission to fly over all this privately owned land would have been a nightmare. So in 1926, the United States government passed the Air Commerce Act, in which the US government claimed possession of all airspace.

Mr. Causby owned a farm less than half a mile from the end of an airstrip in Greensboro, and during WW2 low-flying US military aircraft (as low as 25m) caused such vibrations and disruption that it killed Causby's chickens and rendered the land unusable as a chicken farm.

SCOTUS ultimately found in favour of Causby on the facts, but rejected the principle of ad coelum generally - that a claim to ownership of land extending indefinitely upward "has no place in the modern world".  Property rights, according to SCOTUS, include the "immediate reaches" of the atmosphere above the land, but not an unlimited ceiling.

This scenario dealt with a different iteration of technological evolution from Tessling, in the sense that the established law at the time of the drafting of the constitution would have not only failed to anticipate the technology, but expressly recognized legal principles that were adverse (if unreasonably so) to the use of the new technology.

There's no question that, in 1791, the meaning of 'property' was informed by ad coelum. But it was so informed in a way that was largely trivial and academic.  'All the way to heaven' is hyperbolic, and no owner has ever made any use of more than a relatively modest space above the ground.

This specific scenario and outcome is very difficult to reconcile with any meaningful originalist perspective: SCOTUS redefined the property interests protected by the Fifth Amendment, not merely because the question before them hadn't been asked before, but because there was a long-standing answer that was crafted under circumstances that didn't anticipate the technological realities of the 20th century.

Thus, in this instance, an originalist perspective may be impactful, undermining the government's ability to authorize air travel over private property; this is very much an application of a "living tree" style of interpretive approach. And yet there's no real controversy about this issue: Nobody seriously argues that ad coelum should continue to extend indefinite upward ownership as a constitutional right in the US.

I would highlight that, in Canada, ad coelum still forms part of the common law. However, without constitutional entrenchment of property rights, it's easier for governments to regulate around the doctrine, without needing to completely delete the notion from the common law in order to reconcile reasonable exceptions with a rigid constitutional regime.

Scientific Evolution

The next category of constitutional evolution is for cases where we gain a better understanding of the content of the right.

The most obvious application of this is in section 15 of the Charter, specifically in respect of analogous grounds. And also in respect of disabilities.

The actual meaning of the word 'disability' hasn't meaningfully shifted in Canadian history.  Yet our understanding of its implications, and what constitutes a disability, has shifted dramatically over the decades. Mental health, in particular, is an evolving area where the medical community's consensus on what is, and what isn't, a disability has meaningfully changed.  The evolution of our perception of 'shell shock' as 'lack of moral fibre', into recognizing PTSD as a legitimate and serious mental health condition...isn't really an evolution in the meaning of disability (as used in the Charter), or even a reflection of social context, but rather it's an evolution of the science of trauma.

The science drives social context, too: We should and do try to destigmatize mental health problems, in recognition of our better understanding of what they are. (Wanting to treat PTSD as a medical issue isn't, fundamentally, about today's society being more "woke", but is a reflection of evolving scientific understanding of the impact of personal trauma on how the brain operates.)

Conversely, things previously thought to be deviance, like homosexuality, are now understood to be immutable personal characteristics.

In the 70s and 80s, there were a number of family law cases dealing with the impact of a parent's 'sexual preference' on custody. From a modern lens, these are disturbing cases, analyzing things like whether the parent is trying to press the child to become homosexual; whether the child has been exposed to sexual conduct (because apparently that's something that we're particularly concerned about gay parents doing), whether or not the parent was "militant" (yes, that word is used in a number of cases), etc.

Even in those decisions, the judges are often patting themselves on the back a bit about how far we've come with society's 'progressive' attitudes, no longer regarding homosexuality as rendering a home unfit for children altogether.  Yet even those decisions simply drip with underlying assumptions rooted in ignorant stereotypes.

There's no serious discussion in the case law of homosexuality as an identity until Egan, when the Federal Court of Appeal discussed differing perspectives of homosexuality:

Differing views along these two dimensions "whether sexual orientation is part of identity and whether gay men and lesbians are viewed positively, negatively or neutrally" combine to create four competing conceptions of homosexuality. The "sin" conception views homosexual acts as immoral and wrong; it generally does not ascribe to the view of homosexuality as an intrinsic part of identity. The "illness" viewpoint similarly sees homosexuality negatively; this framework, however, sees it as part of the affected individual's personality, albeit a potentially curable component. The "neutral difference" approach, like the illness approach, embraces the concept of sexual orientation as identity but views it merely as a difference that should not be a basis for discriminatory treatment. Finally, the "social construct" conception rejects categorizing individuals by sexual orientation and views same-sex acts and relationships as not materially different from opposite-sex ones.

The precise characteristics of what makes a distinction 'analogous' for the purpose of s.15 has always been a bit elusive, but no matter how one establishes the test, I think we can all agree that the application is likely to be different depending on whether one subscribes to the "sin" conception versus the "neutral difference" conception.

The Supreme Court in Egan accepted that homosexuality was an innate or unchangeable personal characteristic - part of the analysis to get into s.15. And the key takeaway from this discussion is that it is a determination of fact. The analytical questions of what makes a ground analogous are different, and Egan's analysis of s.15 and s.1 are in many ways superficial and flawed, but the "born that way" conclusion isn't a question of constitutional interpretation or legal analysis; it's a question of fact and science.

Transgender rights have a similar evolution, though the issue is arguably less visible in the historical record. Tribunals and courts started recognizing it as an analogous ground as early as 2002.  But when the Charter was written, it was barely even recognized as a phenomenon.  While the DSM-III (1980) created a diagnosis of "transsexualism" and the DSM-IV (1994) changed that to "Gender Identity Disorder", previous versions of the DSM didn't even mention it at all.  (Not to say it didn't exist, or that there wasn't any discussion.  In the 1860s, German philosopher Karl Ulrichs described the phenomenon of a female psyche in a male body...but in general, the public had no meaningful conception of a distinction between homosexuality and non-conformity to tradition gender designations until the latter part of the 20th century.)

The DSM-V (2013) clarified that gender non-conformity is not, in and of itself, a mental disorder.

But, even while transgender recognition was approached more from a clinical perspective than a 'social stigma' perspective in the courts from an early stage, there's still a meaningful difference in how it will be treated, for purposes of s.15, depending on how you regard it.

There's a weird little statement in a 1994 decision from the Federal Court of Appeal in Thibodeau, saying that, paraphrasing, 'there are only two sexes but maybe it might be argued that homosexuality and transsexuality might constitute additional sexes'.

While the general public understanding and scientific consensus has now crystallized with an acceptance that both sexual orientation and sexual identity are integral parts of a person's identity - and not a disorder or a set of behavioural choices - we can safely say that we were not there in 1982. If we had argued in 1982 about whether or not these were analogous grounds, that would certainly have had a different, or at least more complicated, answer, depending on underlying assumptions of what sexual orientation and identity really are.

But the correctness of those constitutional/legal interpretations doesn't significantly turn on questions like how we understand the language of 'analogous grounds'.

Here, we get into an absolutely critical distinction in terms of the right analytical approach for addressing questions of constitutional interpretation.

If an originalist approaches the analysis by asking "Would people in 1982 have considered gender identity an analogous ground?", the answer is likely to be 'No'.  If, on the other hand, the question is more structural and neutral, like "What would the attributes of an analogous ground have been in 1982, and does gender identity, as we now understand it, have those attributes?", the answer is more likely to be yes.

The former is a problematic approach that constitutionally entrenches ignorance and biases of prior generations. The latter is correct, BUT the 1982 framing of the first part of the question is a red herring that adds no value or content.

In other words, the living tree didn't grow a new branch of equality for the LGBT community.  That branch was always there...even though previous generations may not have realized it.

Conceptual Evolution

Many of our constitutional rights are rooted in philosophical concepts that trace back to the enlightenment - or earlier, including some that trace to ancient Greece or Persia.

When we discuss, for example, freedom of religion in the abstract, there's no singular authority on what that means. Is it Cyrus the Great's general policy of religious tolerance? Genghis Khan's law guaranteeing religious freedom?

Enlightenment philosophers broadened the concept into a separation between church and state - not only that governments should tolerate all religions, but that it should give no preference or exceptional status to any of them. But even as an advocate for religious freedom, John Locke suggested an 'atheist exception', believing that religion was integral to moral conduct.

The characterization of such freedoms as 'fundamental' says much of what we're trying to engage. These are grand principles, articulated in broad and expansive terms.

Typical non-constitutional legislation is detailed and specific, defining its own terms, clarifying its application and exceptions, and exceptions to exceptions, etc.  The Charter is nothing like that.  When the Charter asserts freedom of conscience and religion, there's no 'definition' providing insight into what is meant by that.

This was a drafting choice. If there's a singular reason why originalism and textualism fail to answer the real controversies of constitutional interpretation, this is why: Because the text simply does not limit its own meaning to a specific version of these concepts. Particularly in context of the Canadian Charter, it was crafted by experienced legislators: If they'd wanted to assert a specific definition of freedom of religion, they'd have included it. Instead, by using broad and undefined terms, the document conferred a much broader interpretive discretion on the courts, inviting the courts to engage with the philosophical scope of what these concepts actually capture.

Freedom of religion is aspirational. If you asked for a meaning from Cyrus the Great, Genghis Khan, John Locke, James Madison, and Pierre Trudeau, you'd get five different answers - some more different than others, and none of them quite aligned with what contemporary moral philosophers might conclude.

There are questions about exactly what freedom of religion means, and where its limits lie. Surely, it encompasses a freedom to believe, but freedom to practice runs into predictable hurdles where religious traditions transgress non-arbitrary legal restrictions. If my religion demands that I stone somebody to death for wearing a garment made from two different kinds of cloth, that creates an obvious tension.

What is the threshold of importance of a religious practice in order to garner Charter protection? For instance, Catholic sacraments like Baptism and Eucharist are regarded as essential to the saving of one's soul, and religious holiday observances are important, though not all of their traditions are easy to tie to anything doctrinal. (If my condo prohibits live Christmas trees, is that religious discrimination?) And some practices, like wearing a crucifix or putting a 'fish' bumper sticker on your car, are purely elective.

These questions are further complicated in the sense that many faiths have built-in 'exceptions' for domestic law, where compliance with a spiritual practice may be waived by religious leaders if it would bring the person into conflict with domestic law. ("Render unto Caesar...") Would such a domestic law really be discriminatory, then?

And even more difficult are questions about how to establish the legitimacy of a religious belief or practice. Do I need to be able to point to it in a sacred religious text? Do I need to put my Priest on the stand to speak to my spiritual requirements? Or is it enough for me to simply say "This is what I believe, regardless of what others of my denomination may think of it"?

Generally, Canadian courts have taken a broad view of the scope of religious freedom, preferring to resolve the 'tough' questions at section 1 instead. But even with that broad scope, there remain difficult questions. For instance, does a religious school have a prima facie constitutional right to require students to abide by its religious values?

This was a question with a split answer in TWU: Most of the court was prepared to accept that s.2(a) extends to a right to study in an environment where your religious values are respected and honoured. But some of the judges were prepared to give that right less weight, and others were prepared to question whether it exists at all.

These questions are challenging enough even when we pose the question by asking contemporaneously what rights lie at the core of s.2(a); asking how such a question would have been answered in 1982 is an unnecessary and unhelpful filter, which can do nothing but clutter up the legal and philosophical analysis with irrelevant anachronistic social values.

Different Versions of Equality

Another example is Brown v. Board of Education: In the earlier days of the Fourteenth Amendment, giving two different schools to two different demographics was regarded as satisfying the requirements of constitutional equality, but for a range of reasons the 'white' schools were vastly better funded. Our understanding of discrimination has evolved materially since then, and we now understand how the prevailing conception of equality in 1868 doesn't accord with a contemporary understanding of equality. In 1954 SCOTUS struck down segregation laws in Brown.

Originalist scholar and judge Robert Bork - famed for having ascended to the Attorney-General's office in the Saturday Night Massacre when Elliott Richardson and William Ruckelshaus resigned upon being ordered to fire Watergate Special Prosecutor Archibald Cox, and for later being nominated to SCOTUS by Reagan and rejected by the Senate - attempted to reconcile Brown with originalism by arguing that the Fourteenth Amendment was always understood to protect "a core idea of black equality against governmental discrimination", and that - regardless of how its authors and their contemporaries might have actually felt about segregation per se - the court was able to derive and apply a principle of equality that led to the outcome in Brown.

When framed as the question of "which version of equality does the fourteenth amendment protect", Bork's clear answer was that his (contemporary) version should be preferred over the views held widely in the 19th century. This departs from anything meaningfully originalist - one can easily extract the abstract concepts of equality and discrimination protection from the text itself - and the nod to the intention of the drafters to create such a framework is an empty gesture that adds no interpretive value.

Similarly, semantic originalists like Ronald Dworkin argue that the 8th Amendment's prohibition on 'cruel and unusual punishment' could extend to prohibit the death penalty if moral philosophy evolves to recognize that the death penalty is, in fact, cruel and unusual. My question for self-described semantic originalists is how any formulation of 'original' meaning, in their philosophy, helps to resolve any genuine interpretive controversy.

To the extent that contemporary originalists are prepared to adopt evolutions in moral philosophy, they often find these 'framework'-based rationales that allow them to do so. The problem with allowing them the indulgence of calling it 'originalist' by employing a benign historical filter to the creation of that framework, however, is that on contemporary moral controversies originalists almost invariably back away from these framework-based rationales ("We can insert a modern conception of equality into the 14th Amendment") and import 18th/19th century values into the analysis ("Equality never would have been understood that way in the 19th century"). In this way, originalism loses any semblance of neutrality, in that it is selectively invoked for specific sets of values.

Yes, there's a challenge in demanding that judges become the arbiters of questions of abstract moral philosophy. But at its core, suggesting that the Charter calls upon the judiciary to answer the question "what does 'freedom of religion' mean?" does exactly that. Any other perspective, including the originalist perspective, simply selects a different arbiter and asks the judiciary to divine the views of that other arbiter: "What does/did 'freedom of religion' mean to THEM?"

The closest we come to a truly 'values neutral' theory of interpretation is one that lets an independent judiciary interpret the concept without requiring them to filter it through the values of some other person.

Practical Evolution

In R. v. Butler, a long-standing legal prohibition against publication of materials involving "undue exploitation of sex" came under challenge.  While the pre-Charter case law was modelled closely after American First Amendment tests, the Supreme Court of Canada regarded the prevention of "dirt for dirt's sake" as no longer being a defensible legislative objective.

However, the Court nonetheless regarded "moral disapprobation" as a legitimate basis for the government to legislate to protect social values, and went on to find that the prohibition prevented 'harm' - however, assessing the harm through a 'community standards' test from Towne Cinema.

It is therefore necessary for the protection of the public to put limits on the degree of exploitation and, through the application of the community standard test, the public is made the arbiter of what is harmful to it and what is not.

This approach was later reversed in Labaye, I think rightly, in that it made more sense to look to actual harm rather than a 'community standard' perception of harm.  The court's ability to assess community standards is dubious, and moreover, whether or not they should is independently problematic.

Still, while most of the prohibitions against free speech - such as hate speech and child pornography - are soundly justified by harm, even the Labaye framework involves a great deal of subjectivity when it comes to public indecency: One of the 'harms' recognized is the loss of autonomy and liberty through public confrontation - that "debased sexual displays" in public can reduce quality of life and cause people to avoid places they are entitled to go. This is, in essence, the "won't somebody think of the children" aspect of the current framework.

And I think most of us can think of some scenario in which we would agree that public sexual displays - which might be perfectly acceptable in private settings - would be appropriately restricted. But precisely drawing a line between 'reasonable objections to socially harmful speech' and 'pearl-clutching objections to legitimate speech' is challenging at the margins, and if history has shown us anything, it's that we're actually really bad at assessing the reasonableness of our own moral outrage.

Analytically, the challenge with this particular iteration of harm is that it still turns on a subjective appraisal of the reasonableness of the person's offence at having the display inflicted upon them. If a family with old-fashioned conservative values avoided bringing their kids to West Edmonton Mall because of the stores that put up banners with women in bikinis or lingerie, most of us will respect that choice, but we would in fact look at it as a 'choice', and not as a harm being inflicted upon them.

In the US, there's a similar 'obscenity-based' exception to First Amendment rights, which is actually broader than the Canadian exception. For one thing, their prevailing test ("Miller") continues to rely on a 'community standard' as to whether the work appeals to prurient interests. For another, their test invites courts to assess whether the work lacks serious artistic, artistic, scientific, or political value.

There's an inherent recognition in this test that community standards vary from place to place and from time to time, as the problems associated with trying to freeze substantive rights without reference to contemporary context show up in full force here: In 1791, community standards of 'obscenity' ventured DEEP into territory that we would regard as protected expression today. (Even a century later, when the first short silent films were created, Carmencita - believed to be the first ever instance of a woman appearing on an Edison Motion Picture Camera - was censored because she showed her ankles and the crinolines under her dress.)

Even modern American conservatives wouldn't generally suggest that 18th century standards of modesty should inform whether or not a depiction today is protected speech. But without adopting a particularly malleable interpretation of the constitutional right, it is difficult for theorists to justify why a film that may attract First Amendment protection today would not have properly attracted that protection in the 1890s.

Originalism, particularly in the US, largely focuses on how and whether constitutional interpretation should evolve with evolving social values. These are issues with deep political divisions, dealing with women's equality, racial equality, reproductive rights, LGBT rights, etc. The knee-jerk public appeal of originalism in certain conservative circles is that there's no doubt that 18th-century Americans were largely aligned with them on these particular social issues: How can the constitution protect abortion or same-sex marriage now if it wouldn't have in the 19th century?

But if that's the question, you also have to ask how the constitution can protect the display of bare ankles and crinolines today if it wouldn't have in the past.

Again, as discussed above, you get proposals of rules-based frameworks to assess whether or not a particular action is constitutionally protected; the structure of those frameworks is fixed by the constitution itself, but the application of the framework might change from time to time.

I have no objection, in principle, to such an approach. In fact, I would say it's a pretty accurate way of capturing how Canada's Charter has largely been interpreted.

But the implication of the approach is that the content of rights can change from time to time, and it's difficult to articulate a version of this that doesn't amount to "showing ankle is constitutionally protected in the US today because social values have evolved": Rights can change over time; the content of a given right is not fixed with reference to any hypothetical interpretive approach that might have been applied when it was drafted; we might apply the constitution today in ways that the founders might regard as utterly unthinkable.

Of course, there are self-described originalists who might simply regard an interpretation of the First Amendment as permitting those early censorship laws as simply being always wrong. Tyler Broker argues that the evolution of First Amendment exceptions is more akin to what I have characterized as science-based evolution - that a proper interpretation of the First Amendment requires exceptions to be justified based on an evidence-based test of harm (basically the Canadian test), and our understanding of the harm related to speech continues to evolve.

My point stands, however, in the sense that the resulting applications are so foreign to what the drafters would have expected that this view completely undermines any values-based rigidity that might otherwise be associated with originalism. Broker's suggestion that his harm-based test approach is 'originalist' because Adams and Hamilton believed that  some formulation of harm could ground limitations on speech...seems unnecessarily convoluted when that belief is hardly limited to the 18th century. Rather than asking what the First Amendment meant to Adams and Hamilton and Madison, ask what it means. Period.

I also think that Broker's harm-based analysis gives everyone involved a little too much credit: Of COURSE Adams and Hamilton thought there was a harm-based policy justification for the censorship laws they wanted to impose. And of course there are some forms of speech that should not attract constitutional protection. But defining 'harm' is tough, and with censorship laws the harm is often referential to amorphous and indefinable harm to moral standards. Even if one accepts Broker's 'harm' position (as we do in Canada), we still get into questions of how to apply that principle, and we still find ourselves censoring speech today in ways that future generations might find oppressive.

Broker's argument seems to suggest that the difference in application today derives from the fact that now we have a better evidence-based understanding of the harms of speech: There's no actual harm flowing a display of ankle and crinolines...but there IS harm flowing from a too-public display of [insert your threshold of 'too explicit content' here]. The central problem with the argument is that they'd have said exactly the same thing, to justify completely different standards, fifty years ago. Or a hundred years ago. Or more. And there's an equal probability that a future society will look at aspects of our current obscenity approach as being unjustifiably prudish.

I don't see this as a science-based evolution. While I think the bona fides of Canada's departure from 'community standards' as a guiding light are dubious, from a theory perspective I would suggest that we're exploring incremental changes in laws that upset well-entrenched moral standards. The reason why underwear stores are today constitutionally entitled to create public posters of women in lingerie is, in part, driven by a phenomenon of social and evolution through experimentation: As our society gradually relaxes its prudish moral standards, we increasingly find that, "Hey, if we permit that display, it turns out that the moral fabric of our society DOESN'T come apart at the seams!"

Conclusion

In all the areas I've discussed, originalists recognize that there have been changes to constitutional interpretation and, for the most part, are unwilling to uniformly reject all those changes wholesale. In the US, self-described originalists may attack sexual orientation protection, but even they won't attack desegregation, and their attempts to rationalize the different treatment they give to some values-based questions from others often sound disingenuous.

I would suggest that any meaningful use of originalism to answer legitimate legal controversies is a bit of a cop-out. Questions of the scope of Charter rights, like the outer limits of freedom of religion, are timeless. They're also difficult questions at any time.

So a hypothetical about how the question might have been answered if it were asked in a particular way at a particular time (when it wasn't) is simply a smokescreen to obscure a reluctance to engage with the nuances of the question directly. It defers to an authority (and usually a hypothetical one) that never purported to provide an authoritative answer.

This is true regardless of whether you're appealing to the 'old' or 'new' originalism. The definition keeps shifting to try to avoid criticisms - like attacks based on 'frozen rights' or 'intergenerational mind-reading'. Hence, the secondary questions of originalist doctrine like whose historical understanding of the language (and how we determine that) are amorphous enough to bend around any particular criticism. But whenever originalist thought actually coalesces into a form that actually has a meaningful influence on an interpretive outcome, those criticisms seem to fairly resurface - that if you're departing from what the language means in favour of what you think it used to mean (to somebody at some time), you're almost certainly doing so to preserve sectarian moral standards of a bygone era.

Textualism remains an important interpretive tool, but when originalists actually argue that effect should be given to some claimed old meaning that differs from the contemporary meaning, it's invariably on a controversial question of social values.

This is not neutral or apolitical. This is, in most instances where it rears its head in any way that makes a difference, a results-driven approach to try to protect a specific set of values against rights being applied in novel ways to the benefit of groups who historically wouldn't have been able to take advantage of such protections.

I would posit that originalism should be categorically rejected as a guiding doctrine for constitutional interpretation.

Aside: Differences in Constitutional Context

In the United States, the original Bill of Rights was effective in 1791, but wasn't a source of meaningful litigation until over a century later.  (It was 1803, Marbury v. Madison, when SCOTUS determined that it had the authority necessary to overturn legislation, but it was a long time afterward when it became a norm for people to go to the courts with claims of "That law violates my First Amendment rights!", etc.)

So one of the features - and arguably faults - of American Originalism is that it turns fundamentally on a presumption of compliance by governments of the day: They couldn't have meant to prohibit that, because that was a widely accepted law or practice at the time. Thus, American Originalists have long used practices at the time of drafting as guideposts - whether through the lens of the 'intent of the drafters', or through other freestanding common law or statutory principles that reigned at the time. (For example, when considering whether juvenile execution is cruel and unusual punishment, Justice Scalia looked to how 18th century common law regarded such execution, without querying whether such a common law doctrine might have been properly rendered inoperative in the US by the Bill of Rights.)

In Canada, by contrast, we had a mature legal system (that followed Marbury v. Madison) when we entrenched our Charter of Rights and Freedoms in 1982, and it quickly spurred a flurry of constitutional challenges to various laws, government practices, and legal doctrines.  There's no assumption that just because something was good law prior to the entrenchment of the Charter, it must therefore survive Charter scrutiny.

Canada doesn't have the same kind of reverence for the Fathers of Confederation as America does for its Founding Fathers, and we certainly don't have any widespread reverence for the drafters of the Charter of Rights and Freedoms. The Charter itself is generally a popular document (at least, outside of Quebec), but it stands apart from the specific political figures who oversaw its creation and implementation.

So while American Originalism reaches back, in its search for meaning, over two centuries to the values of idealized historical figures who ran an overtly patriarchal, plutocratic, and racially segregated society, Canadian Originalism looks back a mere forty years to the perspective of a diverse society with universal suffrage. Simply, within the Canadian context, there was never an interpretive consensus or a status quo that the Charter can be argued to preserve.