Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in Canada

The Canadian Journal of Law and Jurisprudence, Vol. 22, p. 331, 2009

36 Pages Posted: 25 Sep 2008 Last revised: 24 Aug 2009

See all articles by Bradley W. Miller

Bradley W. Miller

University of Western Ontario - Faculty of Law; James Madison Program in American Ideals and Institutions, Princeton University

Date Written: January 7, 2009

Abstract

Constitutional interpretation in Canada is dominated by the metaphor of the "living tree". Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, "frozen" at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars, and are in fact expressly rejected in new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of either theory.

This paper was prepared for a colloquium on originalist constitutional interpretation held at the Faculty of Law, University of Western Ontarion in October 2008. In it, I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court's attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with originalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

Keywords: constitutional interpretation, judicial review, Living Tree, originalism, living constitutionalism, progressive interpretation, purposive interpretation, Canada, Kavanagh, Waluchow

Suggested Citation

Miller, Bradley W., Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in Canada (January 7, 2009). The Canadian Journal of Law and Jurisprudence, Vol. 22, p. 331, 2009. Available at SSRN: https://ssrn.com/abstract=1272042

Bradley W. Miller (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
519.661.2111 (80038) (Phone)
519.661.3790 (Fax)

James Madison Program in American Ideals and Institutions, Princeton University ( email )

Bobst Hall
83 Prospect Avenue
Princeton, NJ 08540
United States

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