One of the main arguments in Canada in favour of the “living tree” is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.” The argument goes something like this: beginning with the famous ...Read More »
Tag Archives: living constitution
Has the Supreme Court Moved Beyond the “Living Tree”?
One of the first things law students are taught is that our Constitution is a “living tree.” The Supreme Court has said that the living tree doctrine, which holds that our Constitution must be capable of evolving to meet new social realities, is “one of the most fundamental principles of Canadian constitutional interpretation” (See Reference Re Same Sex Marriage, at ...Read More »
The True American Import to Canada is the Living Tree, not Originalism
Constitutional originalism, which holds that the meaning of the Constitution remains constant with the passage of time, does not enjoy a great deal of support Canada. It is dismissed as an American phenomenon, and a distastefully conservative one at that. The Canadian Constitution, we are told, is a “living tree” and it is therefore the responsibility of judges to rediscover ...Read More »