HomeArticlesIn Defence of Constitutional Originalism

In Defence of Constitutional Originalism

The Globe and Mail recently reported that Bradley Miller, a former Western University law professor and a judge on Ontario’s Superior Court, had been appointed to the Ontario Court of Appeal. The Globe’s report drew attention to the following: 1. Miller has criticized gay marriage; 2. Miller has only six months’ experience as a judge; and 3. Miller is an originalist.

As for the first point, there was no indication of its significance in terms of Justice Miller’s competence or suitability as a judge. As for the second, the Globe report failed to mention that four judges already on the court of appeal lack any prior judicial experience. It also failed to mention Miller’s experience as a litigator for a private-sector firm.

But most important and most troubling is the third point — the suggestion that Miller believes in interpreting the constitution according to “framers’ intent.” This mischaracterizes and undermines Miller’s important contributions to the field of constitutional interpretation. In fairness, though, this mischaracterization reflects commonly held misconceptions about originalism and the “living tree” tradition in Canada.

In the first major Charter interpretation case to come before the Supreme Court of Canada, the court extracted the famous “living tree” metaphor from the 1929 Persons case to justify its reading of substantive rights into Section 7 of the Charter. The court’s non-originalist approach monopolized constitutional interpretation in Canada and led to a disconcerting complacency in Canadian constitutional theory, even in Canadian legal academia. The work of Professor Miller helped to balance and enrich this field.

Interpretive methodology may not get many people too excited, but it is crucially important. Judges are faced with the question of how to distinguish legitimate constitutional interpretation from illegitimate constitutional creation or change. Illegitimate change occurs when judges usurp the amending function — which our constitution assigns to the legislative branch. Where judges draw this line depends on their interpretive methodology.

Originalists insist that laws have meaning and that to change the law’s meaning is to change the law. Those familiar with recent originalist scholarship know that it is not “original intent” originalism that predominates, but “original public meaning” originalism. It was the latter that Miller propounded during his academic career — not the former.

In his essay, Origin Myth: the Persons Case, the living tree, and the new originalism,  Miller demonstrates that the Judicial Committee of the Privy Council (JCPC) in the 1929 Persons case — the case from which we get the “living tree” metaphor and in which the JCPC found women eligible to be appointed to the Canadian Senate — actually took an originalist approach to determining the meaning of “persons” in the British North America Act (BNA Act).

The Supreme Court, whose 1928 ruling the JCPC overturned, reasoned that the use of the word “persons” in the BNA Act must be given the meaning that it would have had when the act was passed in 1867; however, the meaning of the word “persons” in ordinary use was ambiguous at that time. In light of this ambiguity, the SCC reasoned that it must give effect to how the framers believed the provision should be applied, that is, whether they would have believed it authorized the appointment of women. The SCC took the fact that no woman had ever been appointed as evidence of a belief that women should not be appointed. This is an attempt to determine original intent — a dubious task, indeed.

The JCPC derided the SCC for its “appeal to history” and “narrow and technical” methodology. Instead, the JCPC, using what Miller describes as a “thoroughly textualist” approach, aimed to decipher the meaning of “persons” in the BNA Act. The JCPC  sidelined “external evidence” as to what “persons” meant and looked to “internal evidence” from the BNA Act itself, noting that other sections of the act use “person” to include both sexes while others specifically used “male person” or “male British subject.”

The JCPC summed up its interpretive approach in saying that the question is “not what may be supposed to have been intended, but what has been said.” That the meaning of the text of a constitutional statute is binding was not the JCPC’s point of departure with the SCC, but how that meaning is fixed.

What then of the JCPC’s famous statement: “The (BNA) Act planted in Canada a living tree capable of growth and expansion within its natural limits”? The statement was made, Miller explains, in an effort to minimize the controlling effect of English common law in Canada. It was English common law and its treatment of women that had in part determined the SCC’s ruling.

Moreover, Miller points out, the JCPC did not say that the BNA Act is a living tree, but that it planted a living tree — the Canadian Constitution in its entirety, a “Constitution similar in principle to that of the United Kingdom,” including unwritten conventions as well as statutes. The “living tree” was not the specific textual provisions of the BNA Act. For the JCPC, the task of interpretation was to recover the fixed, semantic meaning of the text.

We do not see much of the “living tree” metaphor again in Canadian jurisprudence until the Charter. The implication, of course, is that our courts resurrected and misapplied the metaphor to justify changing the meaning of specific Charter provisions through interpretation.

Doing so raises serious questions about the rule of law and democratic legitimacy. It is such questions that concern constitutional law scholars such as Miller. To flout the constitution’s requirement for democratic amendment is to flout the constitution itself, the rule of law and democracy.

The Globe story quotes the University of Toronto’s David Dyzenhaus: “it is crazy that commitment to values that are central to the Canadian legal order is considered a disqualification for judicial appointment by this government.” Based on Dyzenhaus’ criterion, Justice Miller is an excellent appointee. Examine Miller’s work, and you will find that he is deeply concerned about democratic legitimacy and the rule of law — principles which are indisputably central to the Canadian legal order.


This article was originally published in the National Post and is being reprinted courtesy of the National Post