If, as Adam Dodek once put it, originalism was long a “dirty word” in Canadian constitutional law, one reason for that was its perceived foreignness. Another was politics. As Colin Feasby has observed, for the judges and academics of the formative period after the enactment of the Canadian Charter of Rights and Freedoms in 1982, originalism was “a tool of conservative United States legal thinkers.” Preston Jordan Lim shows that they were quite wrong—and ignorant of their own history. Long before it was a gleam in Paul Brest’s eye, originalism was the method by which Great Depression-era Canadian scholars hoped to take their constitution back from the courts—or, more precisely, from the Judicial Committee of the Privy Council (effectively the British Empire’s supreme court, staffed mostly by the United Kingdom’s most senior judges), then the court of last resort for Canada.
Lim shows that “originalism constituted the primary theory of constitutional interpretation through which legal reformers” argued about the interpretation of what today is known as the Constitution Act, 1867—the text that contains most of the Canadian constitution’s key structural provisions. Admittedly, they did not have an especially clear theory of originalism. But it was their practice just the same. And one hardly needs to have parsed the interpretation-construction distinction or pondered whether there is something that interpretation just is to be an originalist—as the development of originalism in American law itself shows.
That originalism became the defining interpretive approach for scholars of the 1930s is, Lim suggests, no accident: “more so than any other major event since Confederation, the Great Depression exposed the frailties of the Canadian political order and caused Canada’s leading legal thinkers to scrutinize the Constitution.” The scrutiny took an especially critical turn when the Privy Council struck down key elements of the “Bennett New Deal,” named after the Prime Minister who instigated its enactment. As in the U.S. and the U.K., erstwhile constitutional certainties seemed just as inadequate to the times as the economic ones.
But, even when they were dissatisfied with the constitutional framework as interpreted by the Privy Council, scholars and authors of the reports of official inquiries tended to regard it as “a sound plan for government,” and demanded not a departure but, as they saw things, a return to it. They argued that judges had gone astray by ignoring evidence of the Canadian constitutional framers’ plans. Far from denigrating the framers of the Constitution Act, 1867, as would become routine in later decades, they sometimes came close, Lim writes, to “ancestor worship.” The framers, they argued, had created a constitutional framework that could have gone a long way towards addressing the issues of the 1930s—if it had just been allowed to operate without judicial meddling, or could be allowed to do so once more with the aid of constitutional amendment.
This, at least, is the broad-strokes picture. The main virtue of Lim’s article is that it adds a great deal of detail to it, drawing on modern originalist theory to analyze and categorize the variety of originalist-sounding arguments made by Depression-era writers, including those who were not necessarily thoroughgoing originalists themselves. Many focused on what they perceived as the intention of the framers—especially Sir John A. Macdonald, who would go on to become Canada’s first prime minister—to create a centralized government in which federal institutions would be able to resolve important economic issues. Others offered a competing account of the framers’ intentions, claiming that these included the preservation of provincial autonomy.
But a minority view foreshadowed “New Originalist” critiques of original-intentions originalism. Advocates of this view argued that one man’s aspirations were not indicative of the framers’ joint intent; that the focus ought to be on the interpretation of the constitutional text, not its authors’ statements. Whether or not they personally accepted this critique, others responded to it, engaging in debates about “the original public meaning of specific phrases” in the constitutional provisions setting out the respective areas of federal and provincial jurisdiction. One of these debates, which Lim recounts in detail, concerned the meaning of the provincial jurisdiction over “property and civil rights,” whose broad interpretation by the courts was at the heart of their rejection of the “Bennett New Deal.”
And to the extent that they saw improvements to be made to the Canadian constitutional arrangements, Depression-era scholars were optimistic about their prospects. Some, Lim explains, adopted a “framework originalist” posture, arguing that the Constitution Act, 1867 was sufficiently flexible to allow for governance responsive to the needs and wishes of succeeding generations. Many, though, acknowledged the need for constitutional amendment to meet the needs of the moment. (In the event, the only constitutional amendment made in response to the Depression was the enactment of section 91(2A), which granted the federal Parliament jurisdiction over “unemployment insurance.”) As Lim points out, this is all the more remarkable since the Constitution Act, 1867 was silent as to the procedure by which it was to be amended.
What most Depression-era writers on the Canadian constitution did not see as a solution is living constitutionalism. Indeed, Lim observes that “an entire chorus of voices saw sharp limits to” both its legal acceptability and to its ability to serve as an “answer to the economic and social woes of the decade.” Only much later would Canadian living constitutionalists embrace as their slogan a metaphor drawn from a Depression-era Privy Council decision, Edwards v Canada (Attorney-General), which they read as having described the Constitution Act, 1867 as “a living tree capable of growth and expansion within its natural limits.” Others have argued that Edwards gave no warrant for living constitutionalism, and I have suggested that its reference to the “living tree” concerned constitutional practice, not constitutional text, though not all Canadian scholars are persuaded. Be that as it may, Lim shows that whatever Edwards’ afterlife has been, the intellectual agenda at the time was ruled by different varieties of originalism—and, even more broadly, the widely shared sense, even among those who were not themselves originalists, that the meaning of a constitutional text is fixed and binding on the courts.
And yet, as Lim notes, “there is no doubt that originalism became less popular in the decades that followed the Depression.” If anything, this is a significant understatement. Even when Canadian courts engage in originalism, as they do from time to time, they would not be caught admitting to it. Lim hypothesizes, briefly, that the reason for this change “is the increased diversity of modern Canada,” as well as a longer historical distance from the founding, resulting in a loss of “affinity for the Fathers of Confederation and the Westminster Parliament.”
This does not seem to me altogether plausible. The rhetorical embrace of living constitutionalism in the 1980s immediately extended to the newly-enacted Canadian Charter of Rights and Freedoms, just drafted in Canada and by Canadians alone. No change in diversity, or desire to distance constitutional law from its British roots, could explain that. Besides, Canada had arguably changed less between the Depression and 1982 than it had between 1867 and 1930, when it had grown from four provinces to nine and welcomed its first large waves of immigrants from outside France and the British Isles.
Other factors were probably at play. Perhaps most significant was a desire not to replicate the experience of the cramped interpretation of the statutory Canadian Bill of Rights, though this arguably was no model of proper originalism at all. Perhaps, as Feasby suggests, Canadian lawyers and judges were by then looking to distance themselves from an interpretive approach that had come to be identified with the American legal conservative movement.
Most cynically, one might point out that, in the 1930s, living constitutionalism would mostly have empowered the British judges of the Privy Council. However, appeals to that court from Canada were completely abolished by 1949. Thus, by the 1980s, living constitutionalism was going to empower Canadian jurists—and, by extension, Canadian lawyers and scholars, who would find it much easier to influence them than to persuade London-based judges.
Whether Lim’s conjecture or my own surmises are right, the Canadian embrace of living constitutionalism was closely connected to the development of Canada’s independence and its own legal culture and tradition. It is hardly necessary to point out that this independence is now under rhetorical, and perhaps actual, threat from those who see ten vast provinces and three territories as one mere 51st state in waiting. In the circumstances, it will probably be tempting for Canadians to double down on what they think makes their legal culture distinctive, while rejecting what many will perceive, however unfairly, as a legal philosophy associated with that threat.
In addition to its very considerable scholarly merits, it is these circumstances that make Lim’s article especially timely and important. It reminds us that, contrary to what one may be tempted to think, originalism is not a uniquely American phenomenon, let alone a theory reverse-engineered to justify policy outcomes congenial to the American right. As Lim observes, “originalism is deeply-rooted in Canadian legal history,” and its rise in the 1930s went hand-in-hand with “a rise in Canadian nationalism,” as well as, in many cases, with progressive politics. Whether originalism is (still, or again) right for Canada is a question that Canadians must answer on the merits, and not by reference to the views and policies of their former friends.
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