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Legal Commentary: Prawfs
Chopping Down the "Living Tree" -- Or at Least Trimming it a Little
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Bradley Miller, at the University of Western Ontario Law School, has posted a paper, Beguiled By Metaphors: The "Living Tree" and Originalist Constitutional Interpretation in Canada, that's worth taking a look at, certainly by my kinfolk to the North and hopefully by others. Here's the abstract:
The dominant strain of constitutional interpretation in Canada holds both that originalist theories of constitutional interpretation are not a part of Canadian constitutional doctrine, and that this is a very good thing. The Canadian courts (and academy) fully subscribe to a theory of living constitutional interpretation. While living constitutional interpretation in Canada is most often defined in terms of its incompatibility with originalist interpretation, there has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the New Originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada's rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of either theory.
This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court's attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with originalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.
It's a nice, and short, paper. My view of Canadian constitutional scholarship tends to be that it needs more serious "conservatives." (I don't intend a big fight over what that term means; it'll serve for now.) There is substantial agreement on general outcomes, methods, and overarching philosophies in the Canadian constitutional community, particularly over the unadvisability of an originalist approach. That consensus is very nice, but not very healthy, I think. On the other hand, some of the current Canadian "conservative" critics of Canadian Supreme Court jurisprudence just aren't very deep or serious. I don't mean to characterize Professor Miller or, certainly, his politics. But it's nice to read the solid, thoughtful work of a doubter. The Canadian legal academy needs more of them if it is to have a good healthy argument.
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