The Living Tree, Very Much Alive and Still Bearing Fruit: A Reply to the Honourable Bradley W. Miller.

• Author: Waluchow, Wilfrid J.
• Position: Queen's Law Journal, vol. 45, p. 353, 2020

Introduction I. Constitutional Settlement II. Adaptation and Natural Limits III. Constitutional Settlement and Constitutional Construction Concluding Remarks Introduction

In a provocative article recently published in the Queen's Law Journal, Bradley Miller JA sets out to establish a number of theses. (1) Among these are the following:

i. Far too little attention has been given, in Canadian legal practice and scholarship, to theories of constitutional interpretation.

ii. While engaged in constitutional interpretation, Canadian courts and legal academics have largely relied on a misguided and seriously underdeveloped theory of Living Constitutionalism (LC) that originated with the living tree metaphor introduced by the Judicial Committee of the Privy Council in Edwards v Canada (AG) (the Persons Case). (2)

iii. LC is both theoretically and practically bankrupt. It provides very little guidance to interpreters in constitutional cases, particularly those involving rights enshrined in the Canadian Charter of Rights and Freedoms (the Charter)?

iv. More specifically, LC simply tells judges that they should, in interpreting and applying a constitution, treat it as a "living tree" that must be permitted to grow and adapt in response to changing circumstances. But LC fails to provide any measure of guidance on how exactly this should be done, resulting in unbridled, unprincipled judicial activism and the denial of the rightful role of elected legislatures in specifying (i.e., rendering more concrete via the development of more specific doctrines and rules) our various legal rights, including our constitutional rights.

v. Furthermore, LC ignores or subverts the very nature of constitutions and one of their essential functions, which is to settle on a set of agreed parameters within which our day-to-day legal and political practices are expected to operate. In short, LC ignores or subverts the constitution's settlement function.

vi. In failing to provide courts with adequate guidance on how precisely to interpret the constitution, LC leads to an erosion of the rule of law, which demands consistency and predictability in the application of laws, including a society's foundational law, its constitution.

vii. Originalism, a theory with an established history in American legal practice and scholarship, offers a far richer and well-developed alternative to the theoretically bankrupt LC upon which Canadian courts and scholars have fixated and relied.

viii. In their critiques (and perfunctory dismissals) of Originalism, Canadian courts and academics have targeted a misguided, "anachronistic" version of that theory, Original Intentions Originalism (OIO), that erroneously requires a focus on the original intentions of the constitution's authors when courts engage in constitutional interpretation. (4)

ix. A newer, much more appealing version of Originalism has emerged since its early days. This version, Original Public Meaning Originalism (OPMO), focuses not on the original intentions of the constitution's authors, but on how the specific words used in its various provisions would originally, i.e., at the time of adoption, have been understood by competent users of the language. OPMO (a) remains faithful to the essential nature of a constitution and its settlement function, (b) avoids the many objections to which OIO is susceptible, and (c) provides the desired guidance that LC is woefully incapable of providing. (5)

x. Canadian courts and academics should do their homework, and look carefully at OPMO and the American scholarship supporting it, for a better understanding of how constitutional interpretation ought properly to be conducted.

xi. If they did, they might well discover that what they view as a stark alternative to Originalism, LC, is in fact largely, if not wholly compatible with it.

These eleven theses constitute some of the core claims advanced and defended by Miller JA. Many of them have been defended at length elsewhere. Indeed, in one instance Miller JA does so by offering an extended critique of the LC theory I develop and defend in my book on the topic. (6) Space constraints prohibit me from addressing each of the above eleven theses, let alone the many other important claims advanced in Miller JA's article. I will instead focus on the three propositions embedded in thesis nine: (a) that unlike LC, OPMO is faithful to the essential nature of a constitution and its settlement function; (b) that OPMO avoids the many objections to which OIO has, historically, been thought susceptible; and (c) that OPMO provides the desired guidance that LC is woefully incapable of providing.

1. Constitutional Settlement

   In Miller JA's view, LC subverts the settlement a constitution achieves or represents. Those involved in the process of creating a constitution presumably disagree on a wide range of different issues, some of which raise important questions of political morality while others do not. (7) Should a president's term extend to four or five years? Selecting one of these two options may largely be a matter of drawing a firm, though somewhat arbitrary, line. In other words, not much may turn on which alternative is agreed on. What is crucial, however, is that some such alternative be chosen and settled on. Many constitutional provisions constitute settlements of this somewhat arbitrary nature. But many constitutional provisions represent choices of far greater significance. Should a constitution include a right to procedural justice? Or should it include a wider, much stronger right to substantive justice, where the latter guarantees not merely laws that are fairly applied and administered, but laws that are not in their substance fundamentally unjust? This is an important choice on which much of great significance can turn. And reasonable people may genuinely disagree on which choice is best. Here is another example. Should citizens be deemed to have a right to free speech? Or should the constitution recognize the arguably much wider right to free expression, where the latter unequivocally extends to non-verbal forms of expression like flag burning, marching on city hall, performance art that many find offensive, and so on? One can imagine considerable disagreement and debate on this issue as well. And once again, the question of which alternative should be chosen really does matter, morally speaking. It is not only important that a firm choice be made, but it is also important that the right choice be made, despite the fact that reasonable people will genuinely and profoundly disagree on what that right choice is. In any event, in choosing expression over speech, constitutional authors will have settled this controversial issue so far as constitutional practice is concerned. They will have agreed, despite their moral and political differences, that constitutional cases are to be adjudicated on the basis of the choice made.

   So, settlement is, according to Miller JA, an important function of constitutional instruments. (8) Any theory of constitutional interpretation that totally subverts this function threatens to undermine the very nature of constitutions and the role they are intended to play in our legal and political practices. It is, therefore, worthy of rejection. But subverting this function is, in Miller JA's view, exactly what LC does. In claiming that constitutional interpretation must reflect the need for constitutions to grow and adapt to meet changing circumstances, LC theory undermines the settlements expressed in them. Furthermore, any judge who interprets as LC demands not only threatens these settlements, but she steps well beyond the boundaries of legitimacy. Constitutional authors, not judges, have the authority to agree on the terms of our constitutional settlements. So any judge who heeds the siren call of LC theory will inevitably be led to engage in what amounts to an unauthorized, indefensible act of constitutional amendment. OPMO, on the other hand, fully respects the legitimacy of the constitutional creation process and the authority of the authors who engaged in it. It does so by requiring interpretations that reflect the public meaning the authors invoked in settling on and expressing the norms they did. In other words, OPMO respects those whose role it was (a) to settle on the terms of our constitutional engagement with one another and (b) to express those settlements in specific words the meaning of which competent users of the language would have understood them to bear. OPMO judges who respect the limits imposed by the original semantic meaning of the constitution's terms, respect the authority of constitutional authors and the settlements their chosen words were meant to express.

   Now this is not to say that original semantic meaning is, according to Miller JA, always sufficient to answer a question of constitutional interpretation. Sometimes it will get one only so far and judges will be called on to engage in a mode of reasoning Originalists call "constitutional construction". In some instances, this will be because the semantic meanings of words, chosen unexpectedly and in a way that could not have been foreseen by the constitution's authors, fail to resolve the issue before the court. In other instances, constitutional authors might actually have deliberately chosen vague or abstract words whose semantic meaning was recognized by them as insufficient to decide all cases. In these instances, a deliberate choice will have been made to defer settlement to a later time. This is, in fact, a plausible way to view many of the Charters abstract, morally-loaded provisions. One can examine section 1 of the Charter until one is blue in the face, and one will not be able to discern, in the semantic meaning of its terms, an answer to the question whether the reverse onus provision at issue in R v Oakes could be considered a reasonable limit justifiable in a free and democratic society...