Constitutions: Polished Wood or Living Tree?

Quis custodiet ipsos custodes?

This paper started with readings on the death of US Supreme Court Judge Anton Scalia.  Prior to his death, I had dismissed him as a judicial right-wing extremist, applying a reactionary philosophy of judicial interpretation called ‘originalism’: E.G., “everything was fine in 1776: why change?”  However, I found even centre left journals such as the New York Times were very respectful of his thinking and writing.  Originalism was not to be dismissed without further thought.  Here is that thought.

Let us begin with some consideration on what a constitution is, or is supposed to be. In the first place, we should not conclude that a constitution is a specific document, enacted and proclaimed at some specific point. The British Constitution has evolved over a thousand years as a set of monarchical, legislative and judicial decisions (perhaps with a couple of military victories thrown in); it exists in no single document, and continues to evolve.

Even where specific constitutions are written, there can be legal precepts or provisions which exist outside the written document, arising from customary legislative or judicial practice. For example, prior to the Canadian Charter of Rights’ assurance of due process, the principle of habeas corpus was accepted as an (almost) inviolable legal right. The principle of stare decisis, allowing legal precedents to stand, is a basis of common law as old as any constitution. The need to establish bad intent, mens rea, is also a long accepted requirement for a criminal prosecution

A Constitution is a basic law, above all others. It provides the basis upon which other laws can be validated or challenged. In Canada, “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”[1] As such, a constitution enunciates general moral or political principles: in Canada, “peace, order and good government” or “freedom of conscience and religion”; in the United States “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty”. While constitutions can specify the distribution of powers between orders of government, they do not usually describe, endorse or prohibit specific actions, such as might be done in legislation: e.g., the Criminal Code’s prohibition against sabotage:

52 (1) Everyone who does a prohibited act for a purpose prejudicial to

  1. the safety, security or defence of Canada, or
  2. the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Constitutions are usually far more difficult to establish and amend than specific legislation, for good reasons. Legislatures might create laws in response to a populist wave of support, laws that might offend against the basic values or principles on which a state is founded. Equally, constitutions protect against court decisions which offend against basic values. But constitutions are human creations, usually created by democratically-elected representatives of the people. As such, they can have flaws or gaps, and they can be changed. Indeed, prior to the modern (1982) revision to the Constitution Act, the constitution was changed a number of times: to account for new provinces of course, but more significantly to allow the federal government to establish unemployment insurance, to allow for increases in the membership of the House of Commons, and to allow administration of old age security programs.

We should acknowledge, at the very least, that constitutions are themselves temporary human instruments. They are not stone tablets to be interpreted only by saints, priests or jurists. Thomas Jefferson once proposed, rather impractically, that constitutions have a limited life, that of a generation: it is “self-evident, “that the earth belongs in usufruct to the living”: that the dead have neither powers nor rights over it.” [2]

Because they are of necessity general in scope, the principles enunciated within constitutions must be interpreted. The question for consideration is the extent of interpretation which is justifiable.

One famous Canadian legal case, the “Persons Case”, illustrates the difference between two schools of constitutional interpretation: strict adherence to the written text and/or the intent of the Framers, sometimes called ‘originalism’, or evolving interpretation of the intent of the text, most often called the ‘living tree’ view of the constitution.

The final resolution of the case actually took place in the United Kingdom. In the “Persons Case”, the Supreme Court of Canada had decided that women could not join the Senate, because the written text of the (then) Constitution did not recognize women as ‘persons’. Our “Famous Five” women appealed that decision to the United Kingdom’s Judicial Committee of the Queen’s Privy Council. The Lord Chancellor, Viscount Sankey, overruled the Supreme Court and declared that women were indeed ‘persons’. In that final decision, Viscount Sankey declared that the Constitution was “a living tree capable of growth and expansion within its natural limits”, that the written text was amenable to interpretation.

In addition to its importance in the growth of women’s rights in Canada, the “Persons Case” also opened the door to future applications by Courts of the ‘living tree’ characterisation of our Constitution. The Supreme Court has applied the doctrine in decisions which have extended, for example, civil marriage rights to same sex couples. Applications of the living tree doctrine are considered controversial by some, seen as a basis for unwarranted judicial activism.

In the view of the Supreme Court, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation ”[3]. According to the incumbent Chief Justice, the decision of Viscount Sankey asserted that constitutional interpretation “must adapt to new social realities”, that “constitutional interpretation must reflect the reality of the times”[4] .

This is the popular interpretation of Viscount Sankey’s reference to the ‘living tree’, but there are reasonable grounds for doubt about that interpretation. It is true that the full text of the decision does make some reference to the changed role of women in Canada between 1867 and 1929. However, the reasons for decision are primarily based on the text of the BNA Act, the Canadian Constitution. Viscount Sankey had referred to the need for a textual interpretation, citing the words of an earlier decision: “the question is not what may be supposed to have been intended, but what has been said [5]”. The summation of the decision itself is a textual interpretation:

Persons Case: UK Privy Council Summation

  1. “A heavy burden lies on an appellant who seeks to set aside a unanimous judgment of the Supreme Court, and this Board will only set aside such a decision after convincing argument and anxious consideration, but having regard:
  2. to the object of the Act, viz., namely, to provide a constitution for Canada, a responsible and developing State;
  3. that the word “person” is ambiguous, and may include members of either sex;
  4. that there are sections in the Act above referred to which show that in some cases the word “person” must include females;
  5. that in some sections the words “male persons” are expressly used when it is desired to confine the matter in issue to males; and
  6. to the provisions of the Interpretation Act;

their Lordships have come to the conclusion that the word “persons” in s. 24 includes members both of the male and female sex, and that, therefore, the question propounded by the Governor General should be answered in the affirmative, and that women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly.”

Reading this text, some have argued that the case: “was, at its heart, a case about statutory interpretation, not constitutional rights.[6]

Contemporary Supreme Court judges may have a sentimental attachment to the ‘living tree’ doctrine, but according to its original author its application was intended to be rather limited. Instead of an historical justification let us consider the validity of the doctrine – without the Constitutional ‘Heritage Minute’.

Even a strictly limited interpretation of constitutional provisions allows some scope to adapt to changed circumstances or principles of fairness. For example, in the United Kingdom, the House of Lords determined that a manufacturer of a defective product owed a duty of care to the final consumer of the product, even though the consumer did not have a direct contractual relationship with the manufacturer. The Sankey decision itself shows that the words of a constitution can be understood broadly but still within the text.

Those who argue that judges should allow themselves only limited scope to interpret the words of constitutional documents are sometimes called originalists: the words and intentions of those who drafted the constitution should be of primary significance in interpreting the application of constitutional provisions to particular situations. According to this view, if the provisions of a constitution are not considered acceptable in contemporary society, then the constitution should be amended. That amending the constitution is a difficult task is not an acceptable justification for going beyond the words and intent of those who drafted the constitution.

Originalists argue that too liberal or wide-ranging interpretation of constitutional provisions can:
• be fundamentally undemocratic. The provisions of a constitutional document, created by democratically-elected representatives, are being altered by judges who do not have the same degree of democratic legitimacy since they are appointed. As a Chief Justice noted: “very fundamental issues of great importance to the kind of society we want are being made by unelected persons” [7]  Judges have argued, with some justification, that this undemocratic burden was laid upon them by Parliament. However, “they made me do it” is not a validation for undemocratic actions.
• allow the exercise of power without constraint. If the courts alone can define the meaning of terms in the constitution, then “judicial power is no longer itself constrained by constitutional limits” [8] . In effect the Judges have the power of Humpty Dumpty: “When I use a word, it means just what I choose it to mean — neither more nor less.”[9]
• lead to unpredictable results. There is no authorized or public mandate or document to guide judicial interpretation of constitutional provisions. The Court seems to accept this unpredictability: “One day s 7 may be interpreted to include positive obligations … I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances” [10].
• conflict with a key principle of common law, stare decisis. With too much scope for interpretation, the validity of previous Court decisions can be questioned.
• remove an impetus for the democratic legislature to address contentious social issues, and take the political heat for its decisions. In such circumstances, those seeking social change may choose to litigate in pursuit of it, rather than advocate for in through new or amended legislation. It is reasonable to assert that, in a democratic society, social change has greater legitimacy when voted by a legislature than when decided by a court. In fairness, the Court is sometimes put in the position of making social decisions more because of parliamentary under-reach than judicial overreach. More than a quarter century ago, the Supreme Court invalidated Canada’s law respecting abortion; Parliament has not chosen to replace the law, allowing a patchwork of provincial practices affecting access and dodging the question of social and moral policy.
• result in the Court making moral decisions rather than legal ones. According to Austin: “the existence of the law is one thing its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is another enquiry.”[11] And therein lies the problem: legal judgements are not moral judgements. The Justices of the Supreme Court are empowered to make legal judgements; they are not empowered to make moral judgements.

Advocates for the living tree interpretation have several responses to these criticisms.
• Judges rightly note that it was politicians who created the Charter of Rights, leaving interpretation to the Courts; if there is judicial involvement in matters properly considered to be political, such takes place at the invitation of the politicians. As Chief Justice Lamer pointed out: “(T)hat’s their doing, that’s not ours”[12]
• Scope for judicial interpretation is essential, otherwise a constitution would need to be “ruthlessly specific [13]” in its provisions. That type of wording would be suited to specific legislation, rather than a constitution.
• One of the reasons a Charter is required is that politicians have a long and sorry record of violating rights. The Chinese head tax, Japanese internment, aboriginal residential schools are three unquestionable examples.
• It is clearly reasonable for judges to interpret certain words in a constitution to account for changes in society, the economy or technology. The Internet, for example, did not exist when the Charter of Rights was proclaimed.
• Unlike legislatures, courts cannot initiate changes to law. Cases are presented to the court, or subjects referred to it. So the court is by its nature reactive not proactive.
• The Charter of Rights itself requires judges to justify limits or extension to the rights of the Charter: “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

As well, advocates for the living tree can present some powerful criticisms of originalism:
• The nature of a constitution, its basic purpose, is to be general in scope and to be amenable to reasonable and rational interpretation. In resisting the careful interpretation of terms which were intended to be wide in scope, originalism confounds one of the underlying purposes of a constitution.
• The Common Law, the basis for legal rights both stated and unstated in a constitution – indeed the very foundation of many constitutions – has evolved over time, generally in the direction of what most people would consider “fairness’. The act of freezing intellectual or moral concepts to their interpretation at the time of their creation runs contrary to the slow and steady evolution of common law.
• In the United States, pure originalism would not have allowed desegregation of the schools (Brown vs Board of Education 1954), as the 14th amendment (equal protection clause) was passed in a time when there was segregation and institutionalized inequality. Equally, in Bolling v Sharpe, pure originalism would have limited the application of the word ‘liberty’, which at the time of the drafting of the constitution did not apply to black slaves. Nor would it have allowed the recognition of women’s rights, as women were not viewed as equals in the drafting of the US constitution.
• Indeed, how is any social progress – and there are many areas yet to be addressed – be expected to proceed if our basic definitions of key terms are ‘frozen’ – ‘polished’ – in concepts held by previous generations, who accepted and lived moral precepts repugnant to people today: racism, sexism, religious discrimination? Is the root of originalism a reverence for the status quo, when concepts prevailed which we no longer find morally defensible?

There are virtues and vices in the living tree and the polished wood. We should not be surprised that arguments on both sides have some persuasive power. If we wish to come to some reasonable resolution of the debate, one can expect that a practical resolution would involve some compromise. For constitutions, what is the right balance between text and interpretation?

Angels and devils are found in the details. So let us consider a few cases.

The living tree argument was applied in the Supreme Court of Canada’s 2004 ruling on same sex marriage. Those who argued that the Canadian Constitution did not allow same sex marriage asserted that the understanding of ‘marriage’ applied by the drafters of the Constitution referred only to the union of a man with a woman. The legal precedent dated from before Confederation and stated that “marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”[14]  The Supreme Court argued in response that a living tree interpretation allows a view of marriage that is not limited to its previous judicial interpretation. Social and economic structures change over time; for example, the telephone did not exist at the time of Confederation, but the Court was able to consider a telephone system as an interprovincial undertaking. The Court took the view that the sole inherent meaning of marriage is a union of two persons to the exclusion of others: to say it must be only between man and woman invites a tautological assertion.

The Court’s application of the living tree interpretation is quite narrow in scope, applying to the meaning of the word ‘marriage’. In the United States, more than a decade later, one element of the decision rested on a similarly narrow interpretation of marriage: “”The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”[15] The US Court also cited 14th Amendment rights for equal treatment before the law, which was also used to terminate the ban or interracial marriages. However, even this relatively narrow interpretation was far from uncontroversial. Judge Scalia dissented from the decision, arguing that marriage had been legally understood for 135 years in the 14th Amendment as the union of two persons of opposite sexes, that that understanding was as old as government itself, and that the majority on the Supreme Court were “certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.”.[16]

The Scalia reference is to illustrate that even text-oriented interpretations can themselves be controversial. Clearly the framers of the American constitution did not intend that the meaning of marriage be extended to same sex couples; at the time of the constitutional conventions the concept of same sex marriage did not exist. In that sense, the Scalia objection is reasonable; the contemporary Supreme Court has allowed a practice that was inconceivable at the time of the drafting of the constitution. However, both the Canadian and US Courts took the view that the essence of the bond of marriage – and its social benefits – apply regardless of the gender of the participants. The Courts did not go beyond the texts of the original documents, but sought the core meaning and intent of words.

The living tree argument was applied in a more contentious Canadian ruling: BC Motor Vehicles. In that case, the Supreme Court rejected a law which had created an offence for driving with a suspended driver’s license, with a short jail term, regardless whether the driver was aware the license had been suspended. While the Supreme Court decision itself seems defensible, the manner in which it was reached is problematic. At issue is the meaning of Section 7 of the Charter of Rights, which states that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The interpretation of “principles of fundamental justice” accepted prior to this decision had related to procedural fairness in the legal proceedings. This was the interpretation intended in the Charter’s predecessor, the Canadian Bill of Rights, and the interpretation accepted in several court decisions since the Bill of Rights.

In the BC Motor Vehicles case, the Supreme Court decided that the “principles of fundamental justice” went beyond procedural considerations to questions of substance; e.g., whether the law itself was fair. The law was found to be unfair because the individual was given no opportunity to argue that he had made an honest mistake and was unaware that the license had been suspended.

The problem is not with the rationale for the decision itself (which actually seems reasonable), but with the manner in which the court rejected not only previous court decisions but also the expressed intent of Parliament in drafting the section. The Federal Minister of Justice (Jean Chrétien), his Deputy Minister (Mr. Tassé) and his Assistant Deputy Minister for Public Law all stated clearly that it was the understanding of the government and the will of Parliament that “principles of fundamental justice” be interpreted as referring to procedural fairness only .[17]

The Supreme Court decided that the “extrinsic evidence” of legislative testimony arguing for the ‘procedural fairness only’ principle should not be given significant weight, for two main reasons: that it would result in a conclusion with which the Supreme Court disagreed; and second, that it would constrain the ability of the Supreme Court to interpret the constitution as a ‘living tree’: “If the newly planted “living tree” which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials … do not stunt its growth ”[18] In other words, judges should not be bound by the wording of prior legislative discussions about constitutional development.

Here, I would argue, the Court has gone too far..[19]  In setting aside the specific intent of the framers of the current constitution (as well as the previous decision of Parliament in the Bill of Rights), the Court has determined that it and it alone can interpret the Constitution. This raises the classic question: Quis custodiet ipsos custodes? (Who guards the guards themselves?).

Left to its own devices, the Supreme Court has made its own determinations of the content of fundamental justice, some of which have alarming implications. According to the Court, in the Malmo-Levine case, in order to establish a principle of fundamental justice, there “must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.”[20] The Court has put itself in a position where it determines “significant societal consensus”. An elected parliament has enough difficulty in determining and reflecting societal consensus; it is an impertinence by the Court to assert it has this capacity.

The Supreme Court’s view that it has the authority to determine societal norms practices and policies is further illustrated in the case called Chaouilli, where the prohibition against private health care insurance and delivery was found to violate the Section 7 of the Charter. In the majority view of the Court, the delays that exist in obtaining health services from the public system may put individual’s health at risk. Such a risk violates a principle of fundamental justice.

Federal and provincial governments struggle to maintain an appropriate level of health care services. There is obviously a trade-off which must be made between level of service and funds provided. The trade-off represents the social policy of the provincial government.

In the view of many provincial governments, private health insurance and delivery represents a threat to the integrity of the public health insurance system, as it allows those with money to buy better health services than accessible to those without money. This may or may not be the case, but provincial governments have taken this view.

As stated in the dissent from the decision, this debate is a matter of social values, not constitutional interpretation: “The proper forum to determine the social policy of Quebec in this matter is the National Assembly.”[21] The Court, of unelected appointees, is usurping the authority of elected assemblies.

In the above and other cases, the Supreme Court has placed itself above and beyond the authority of elected assemblies. In my view, this arrogation of power is unconstitutional in a far more dangerous sense than a violation of the charter of Rights. In claiming power over the directions of an elected Parliament – even to the extent of rejecting its specific constitutional instructions for interpretation – the unelected have gone significantly beyond the extent of delegation of powers from the elected. The arrogation of power by the unelected is the core of dictatorship. I would not argue that we are there yet, but we are headed in that direction.

In the constitutional history of western parliamentary democracies – where there must be a balance between the executive (or monarch), the legislators, and the judges – the ultimate power resides with the legislators who represent (or who have come to represent) the will of the people. The nobles – a proto-parliament – issued rules to the executive – King John – in Magna Carta. They also gave direction to the judiciary in establishing the principle of ‘habeas corpus’. These balances should still stand today, as they are at the core of democracy. When unelected and unaccountable judges:
• proclaim that they are the sole authority for constitutional interpretation; and
• assert that they have authority to determine social consensus and the legitimacy of social policies;
we have a constitutional problem at the core of our democracy.

I appreciate that Supreme Court judges exist to protect the people from the intemperance of legislatures and lower courts. But they should be understood as a protection, not a substitute.

This trend towards judicial arrogation of power can be slowed, perhaps arrested. We might consider some of the following ideas:
• Let us accept that idea that the constitution can be changed. For example, if Parliament wished to confirm its original intention that the “principles of fundamental justice” referred exclusively to due process (and not questions of legal fairness), a clarification could be inserted in the Charter. Some argue that constitutional change is a divisive process, with all manner of wheeling and dealing required. This was certainly true with respect to the process leading up to the 1982 Constitution Act (e.g., the night of the long knives), but smaller changes have been accomplished before with less disruption (e.g.: creating unemployment insurance and old age security). We certainly shouldn’t rule out constitutional change just because it is difficult: if there is a problem with the balance of powers between the legislature and the judiciary, perhaps the difficulty is worth it.
• Let us urge Parliament to address difficult moral questions. Unaddressed difficult moral questions are sometimes punted to the Supreme Court by default, leaving unelected judges to determine moral and social policy. Parliament sometimes chooses to avoid difficult questions; the debate, it is argued would be too disruptive; or politicians are unlikely to risk their political defeat. However, contentious issues don’t just go away if Parliament does not consider them: they remain unresolved or the courts decide them. As to politicians risking their political defeat, politicians are sometimes capable of taking difficult decisions (e.g.: free trade in 1988). Those who are willing to risk voter wrath for doing the right thing are the type of legislators this country needs.
• Let us urge the Supreme Court Justices to be more mindful that they are unelected and unaccountable. Nearly a thousand years of constitutional history formed the pillars upon which we should build our governance: those who govern us should be elected; those elected should be accountable. Supreme Court Judges need to understand that these pillars are of greater importance that the living tree of constitutional interpretation. We have asked the question: “Quis custodiet ipsos custodies? Since we have asked our guards – the Supreme Court judges – to be their own guards, the Judges have an elevated moral responsibility to reflect upon their own actions, especially where they choose not to adhere to the intent of Parliament.

June 6, 2016 marks the day when the Supreme Court in effect legislated in a matter of moral responsibility: their interpretation of the rules surrounding physician assisted death. Granted the Court did so with reluctance, after finding that the current prohibitions contravened the Charter. Moreover, Parliament was given time – and then an extension – to write a new law. Since Parliament is still discussing the matter (at least they are discussing it now, rather than hiding from the issue), the rules provided by the Court now become the rules which apply. That turn of events is not problematic, save for the Court’s provision of specific principles. The rules for assisted dying raise moral and social issues, which are the province of Parliament to legislate. The Supreme Court should be prepared to accept that the principles and rules chosen by the elected and accountable House of Commons may not accord with those proposed with the unelected and unaccountable Court. Barring a legislative outrage, the Court should defer to the Legislature.



[1] Constitution of Canada, Sec 52 (1)

[2] Jefferson to Madison, September 1789

[3] SCC 79 2004: Reference on Same Sex marriage, re: Question 1

[4] Defining Moments: The Canadian Constitution, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada

[5] Persons Case (Edwards); Privy Council Appeal No. 121 of 1928; para 55

[6] Asher Honickman, “The Living Fiction: Reclaiming Originalism for Canada”, Advocates for the Rule of Law

[7] Justice Lamer quoted in Ottawa Citizen, April 17, 1997.  See also: Attorney General of Ontario: … the judiciary is neither representative of, nor responsive to the electorate on whose behalf, and under whose authority policies are selected and given effect in the laws of the land.”  cited in Supreme Court of Canada: Re B.C. Motor Vehicle Act, 1985

[8] Manfredi, C.P, Judicial Power and the Charter, p.22

[9] Carroll, L, Through the Looking Glass, Chapter 6

[10] Beverley Mclachlin, Gosselin v Quebec (Attorney General), 1985

[11] Austin 1832: Lecture V, p. 157

[12] Ottawa Citizen, April 17, 1997

[13] Scalia

[14] Hyde v Hyde, 1866.

[15] US Supreme Court, 576 (2015)

[16] Scalia Dissent, supra

[17] BC Motor Vehicles, Supreme Court of Canada, Sec. 35 – 37

[18] Supreme Court of Canada: Re B.C. Motor Vehicle Act, 1985, paragraph 53

[19] Although mentioned in the Biblical Gospels, perhaps the clearest expression of the moral error in doing the right thing for the wrong reason was expressed by T.S. Eliot in Murder in the Cathedral where Thomas Becket rejects an offer of martyrdom saying:

The last temptation is the greatest treason:

To do the right deed for the wrong reason.

[20] Supreme Court of Canada: R. v. Malmo-Levine; R. v. Caine, Section 113

[21] Chaoulli v. Quebec (Attorney General), para. 167


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