Origin Myth: The Persons Case, the Living Tree, and the New Originalism

Abstract

‘Originalist constitutional interpretation is fundamentally incompatible with 80 years of Canadian jurisprudence.’ This statement would command nearly universal agreement from Canadian judges, lawyers, and law professors. But does it adequately reflect the state of recent scholarship in constitutional interpretation from both originalists and non-originalists?

This paper, which was first prepared for a symposium on originalist constitutional theory hosted by the Public Law and Legal Philosophy Research Group at the University of Western Ontario, Faculty of Law in 2008, examines the standard reading of the reasons for judgment of both the Supreme Court of Canada (as originalist) and the Privy Council (as “living tree”), and asks whether contemporary scholarship in constitutional interpretation can provide fresh insight into these two sets of reasons. It is hoped that the analysis will illuminate both our understanding of the Persons Case, and our understanding of the various points of agreement and disagreement among originalist and living constitutional interpretation. It should help to help narrow and sharpen our focus on those aspects of constitutional interpretation where there is genuine incompatability among the competing schools.

Keywords: originalism, living tree interpretation, living constitution, new originalism, Lawrence Solum, Persons Case

JEL Classification: K00