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Letter: Key Arguments missed in originalism critique

Matthew Gourlay’s comment in the Aug. 10 edition (see “Originalist creed a problematic approach to assessing the law”) missed the salient arguments related to the living-tree versus originalism theories of constitutional interpretation.

No one argues for a rigid, inflexible document wedded to a historical understanding of its provisions. The argument is over who should change the
Constitution. Living-tree advocates argue that because democratic changes to the Constitution are so difficult, activist judges have the obligation to ensure it remains up to date and relevant. Originalists argue the Constitution should be democratically changed and that the difficulty in amending it in this fashion is precisely the point. In their view, it is only when the social consensus has reached the point of achieving the multiple pluralities necessary for formal amendment that the Constitution should be amended at all. To believe otherwise is to allow special interest groups to bypass Parliament and lobby the Supreme Court of Canada instead.

How, they argue, can the Constitution serve as a foundational document when its foundation is made of clay as it constantly shifts and lacks certainty and stability due to continual change in interpretation? In this view, the living tree results in constitutional ping-pong with cases swinging in different directions based on who sits on the court rather than the changes in social mores because of the passage of time. At the same time, once an ideology has captured the Supreme Court of Canada, it is democratically very difficult to dislodge it, a fact that makes the views of a supposedly enlightened activist judiciary as to what the Constitution is the law of the land regardless of the social consensus.

Do we not interpret contracts based on the shared intention of the parties at the time of the contract? Do we not interpret treaties based on the shared intention of the parties at the time they made them? Why is it that our foundational social contract is not subject to the same rules? In Obergefell v. Hodges, one of the judges captured the originalist view with a comment that to allow nine non-representative jurists to change society by constitutional edict was “to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Whatever one’s view, it is a serious debate worthy of more than the smug dismissal of originalism by Gourlay.

David Debenham,
McMillan LLP,

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