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Book ChapterDOI

The Challenge of Originalism: Origin Myth: The Persons Case, the Living Tree, and the New Originalism

28 Sep 2011-Social Science Research Network (Cambridge University Press)-pp 120-146
TL;DR: For example, the authors examines the standard reading of the reasons for judgment of both the Supreme Court of Canada (as originalist) and the Privy Council (as "living tree") and asks whether contemporary scholarship in constitutional interpretation can provide fresh insight into these two sets of reasons.
Abstract: ‘Originalist constitutional interpretation is fundamentally incompatible with 80 years of Canadian jurisprudence.’ This statement would command nearly universal agreement from Canadian judges, lawyers, and law professors. But does it adequately reflect the state of recent scholarship in constitutional interpretation from both originalists and non-originalists? This paper, which was first prepared for a symposium on originalist constitutional theory hosted by the Public Law and Legal Philosophy Research Group at the University of Western Ontario, Faculty of Law in 2008, examines the standard reading of the reasons for judgment of both the Supreme Court of Canada (as originalist) and the Privy Council (as “living tree”), and asks whether contemporary scholarship in constitutional interpretation can provide fresh insight into these two sets of reasons. It is hoped that the analysis will illuminate both our understanding of the Persons Case, and our understanding of the various points of agreement and disagreement among originalist and living constitutional interpretation. It should help to help narrow and sharpen our focus on those aspects of constitutional interpretation where there is genuine incompatability among the competing schools.
Citations
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31 Dec 2012
TL;DR: In this article, the authors argue that Canada's Constitution contains a particularly deep and troubling interpretive inconsistency in relation to Aboriginal and treaty rights within section 35(1) of the Constitution Act, 1982.
Abstract: This paper argues that constitutional interpretation should be non-discriminatory. Unfortunately, Canada’s Constitution contains a particularly deep and troubling interpretive inconsistency. This flaw exists in relation to Aboriginal and treaty rights within section 35(1) of the Constitution Act, 1982 . Most constitutional rights are interpreted in accordance with a living tree approach. Conversely, Aboriginal peoples’ rights are largely viewed through an originalist lens. This paper explains the differences in these approaches, highlights their adverse effects for Aboriginal peoples, and identifies non- discriminatory alternatives consistent with Canada’s broader constitutional framework.

12 citations

Dissertation
01 Nov 2016
TL;DR: This article explored the place of constitutional precedents in contemporary Canadian and American constitutional culture and identified four reasons for the relative indifference in Canada to the problem of stability and change in the interpretation of constitutional rights and freedoms: lack of a historical constitutional narrative in Canadian constitutional culture, lack of meaningful super precedents, the structure of the proportionality analysis under the Oakes test and the adherence to a less formalist and more openly political conception of constitutional adjudication.
Abstract: This thesis explores the place of constitutional precedents in contemporary Canadian and American constitutional culture. The author identifies four elements that explain the relative indifference in Canada to the problem of stability and change in the interpretation of constitutional rights and freedoms: the lack of a historical constitutional narrative in Canadian constitutional culture, the lack of meaningful “super precedents”, the structure of the proportionality analysis under the Oakes test and the adherence to a less formalist and more openly political conception of constitutional adjudication. These elements are contrasted with the American experience in which precedents are central to any constitutional discourse. The comparison tries to make explicit how these differences are linked to different assumptions and expectations about the rule of law and the role of the judiciary in adapting the legal traditions of these two Common Law countries to the challenges of written constitutionalism.

10 citations

Posted Content
Jack M. Balkin1
TL;DR: In the United States, originalism is primarily a nationalist idea as discussed by the authors, and it is the most legitimate method of interpretation in a democracy, and one would expect advocates in every constitutional democracy in the world to demand that judges use it.
Abstract: This brief essay, addressed to scholars outside the United States, attempts to explain why originalism is popular in debates over the American federal Constitution. If as its advocates sometimes maintain, originalism is the most legitimate method of interpretation in a democracy, one would expect advocates in every constitutional democracy in the world to demand that judges use it. Yet although originalism has made inroads in Australia and a few other countries, it is largely ignored elsewhere in the world. Although the “thin” version of original meaning advocated in Living Originalism would not be particularly controversial in most constitutional democracies, "thicker" versions of originalism that require judges to follow how a constitution's adopters would have understood or applied the text have little influence outside the United States or even in the interpretation of the fifty indigenous state constitutions. Originalism’s authority in debates about the American federal Constitution rests on cultural factors rather than a unique American commitment to the rule of law or popular sovereignty.American originalism is primarily a nationalist idea. It arises from distinctive features of American cultural memory -- namely, that in popular imagination the American nation was created by Americans themselves through a self-conscious act of political revolution, and that the American nation, people, and constitution came into being more or less simultaneously through this initial act of self-creation. A similar story is not told in most other political cultures. This story has helped encourage Americans’ special veneration of the founding generation and particular figures within that generation (like George Washington and James Madison) as culture heroes.The self-conscious invocation of originalism as a general theory of interpretation is relatively recent; it is a response to constitutional modernity, in which Americans found themselves increasingly distanced from the past and sought to justify political reforms. Academic theories of originalism proliferated in American law schools in response to the political uses of originalism in the twentieth century. Yet as these theories have become increasingly sophisticated there is often little connection between them, the popular uses of originalism, and the way that originalist arguments are actually deployed (or ignored) by practicing lawyers and judges.Americans use originalism as a political practice for critiquing the status quo (whether in a liberal or conservative direction) and arguing for change, sometimes quite radical. Appeals to origins serve as a precedent-breaking device -- they help justify a break from current practices by appealing to an even older tradition. This explains a little-understood fact about American originalism. The originators of originalism as a self-conscious approach to interpretation were not movement conservatives -- they were New Deal liberals. The increase in citations to originalist materials in Supreme Court opinions begins with Justice Hugo Black and the Warren Court. New Deal liberals committed to judicial restraint needed a way to justify exercising judicial review to protect individual rights. They turned to history to do so. Movement conservatives, who sought to break from liberal precedents, then flipped the political valence of originalism; they were so successful that originalism's origins as a liberal justificatory device have largely been forgotten.

5 citations

Journal ArticleDOI
TL;DR: The authors argued that Canadian historians should teach more of the law and not just the politics, of Confederation and the British North America Act, 1867 (bna Act), and proposed three themes for teaching more of law and politics.
Abstract: This article argues that Canadian historians should teach more of the law, and not just the politics, of Confederation and the British North America Act, 1867 (bna Act). It proposes three themes gr...

3 citations

Book ChapterDOI
TL;DR: Barber and Ekins as mentioned in this paper reviewed decisions of courts in Australia, Canada, and South Africa, and in Strasbourg under the European Convention on Human Rights, with some reference to judicial decisions in the United Kingdom.
Abstract: Versions of this paper were delivered in Boston and Princeton, and then in Sydney and Fremantle, in the first half of 2014. This SSRN version is essentially that delivered at a public lecture in the University of Notre Dame Australia in Fremantle in June. It reviews decisions of courts in Australia, Canada, and South Africa, and in Strasbourg under the European Convention on Human Rights, with some reference to judicial decisions in the United Kingdom. Its argument that the principal decisions manifest a deeply flawed conception of constitutional governance and law has since been elaborated and extended in Finnis, “Judicial Law-Making and the ‘Living’ Instrumentalisation of the ECHR”, forthcoming in N.J. Barber, Richard Ekins, Paul Yowell, Lord Sumption and the Limits of Law (Oxford: Hart Publishing, 2016), 73-120. Also Finnis, “Judicial Power: Past, Present and Future” (a lecture in Gray’s Inn Hall, 20 October 2015).

1 citations

References
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