David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Canadian Journal of Law and Jurisprudence 22 (2):331-354 (2009)
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 today, and are in fact expressly rejected in the new originalist theories that have been developed principally in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 , is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine 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 orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: the doctrine of progressive interpretation; the use of a purposive methodology in progressive interpretation; the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and the presence of other constraints on judicial interpretation
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Denise G. Reaume, The Demise of the Political Compromise Doctrine: Have Official Language Use Rights Been Revived?
James Allan (2011). The Curious Concept of the 'Living Tree (or Non-Locked-in) Constitution. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Lawrence B. Solum (2011). What is Originalism? : The Evolution of Contemporary Originalist Theory. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Bradley W. Miller (2011). Origin Myth : The Persons Case, the Living Tree, and the New Originalism. In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.
Jeffrey Goldsworthy (2009). Constitutional Interpretation: Originalism. Philosophy Compass 4 (4):682-702.
Grant Huscroft & Bradley W. Miller (eds.) (2011). The Challenge of Originalism: Theories of Constitutional Interpretation. Cambridge University Press.
Added to index2009-01-28
Total downloads23 ( #87,772 of 1,689,903 )
Recent downloads (6 months)1 ( #183,784 of 1,689,903 )
How can I increase my downloads?