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

THE CHALLENGE OF ORIGINALISM, G. Huscroft, B. Miller eds., Cambridge University Press, 2011

31 Pages Posted: 29 Sep 2011 Last revised: 11 Oct 2011

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: September 28, 2011

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

Suggested Citation

Miller, Bradley W., Origin Myth: The Persons Case, the Living Tree, and the New Originalism (September 28, 2011). THE CHALLENGE OF ORIGINALISM, G. Huscroft, B. Miller eds., Cambridge University Press, 2011. Available at SSRN: https://ssrn.com/abstract=1935018

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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