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“Originalism” is a dirty word in Canadian legal discourse. 

It stands for regressive politics and American-style neoliberal conservatism. It’s the legal equivalent of Reaganomics, and just as bad. It has no place in Canadian law, and that’s as it should be. At least, that’s the progressive party line. 

But it gets quite a lot about originalism wrong.

Which is why it’s time I laid my cards on the table.

I consider myself to be politically progressive. I believe in abortion rights, 2SLGBTQ+ rights,  prison and police abolition, Indigenous-settler reconciliation, and other progressive causes. I’m also a constitutional originalist. And I’m convinced that that is no contradiction in my philosophy.

Originalism can and should be leveraged to achieve progressive legal wins here in Canada. Allow me to explain why.

What is constitutional originalism?

We’ll need to get our terms straight, though, if we’re going to make any headway into this discussion. 

It can be a little complicated and jargonistic, but please bear with me. 

Every version of originalism agrees on two things. The first is that “the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified,” as American legal scholar Lawrence Solum put it over a decade ago. The second is that the fixed linguistic meaning of the constitutional text is binding on subsequent interpreters and appliers of the constitutional text.

In sum: What the Constitution meant at the time it came into being is what the Constitution means, now. End of story.

Well, sort of.

You see, originalists differ on the question of whether constitutional meaning derives from the actual subjective intentions of the authors of a given constitutional passage, on the one hand; or, on the other hand, whether it derives from the ordinary linguistic meaning of constitutional words and phrases, as this would have been known to and understood by the general public at the time of ratification. In other words, there is a debate over whether subjective intention is binding or original public meaning.

Because of this active disagreement, it is less accurate to speak of originalism as one thing; and more accurate to speak of it as a family of interpretive theories, the members of which do not always get along with one another. 

So, when I say that we should be originalists here in Canada, which brand of originalism am I endorsing?

Well…all of them. 

That’s because, at root, both subjective intention originalism and public meaning originalism are driving at the same thing. They are both trying to understand what the original public purposes of a constitutional phrase are. In other words, they are trying to identify what, exactly, a given phrase is doing in the constitutional text. 

Clear as mud?

On freedom of interpretation

I get it: You want an example. 

So take the right to abortion. 

Historically, this right has been asserted on the basis of section 7 of the Canadian Charter of Rights and Freedoms—which guarantees 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”. 

There was little precedent in Canadian law prior to the drafting of the Charter for the key phrase, “principles of fundamental justice.” Yet the Parliamentarians who drafted section 7 chose to use that very wording.

Why?

Because they wanted to delegate to the judicial minds that would be reading and applying the section a certain freedom of interpretation. That is to say, they wanted to empower the courts to undertake the hard work of constructing a distinctively Canadian understanding of when deprivations of life, liberty, and security of the person are justified under constitutional law. 

In a telling exchange between Acting Minister of Justice, Robert Kaplan, and Member of Parliament Svend Robinson, Kaplan thus expounded on the meaning of Section 7 as a whole:

I think generally, the generally recognized rights affecting life, liberty and security are specifically referred to in the provisions that follow [i.e., Sections 8—14 of the Charter], and the reason for a general introductory statement like that is to permit the evolution and expansion of rights of life, liberty and security over time. For example, rights of security at the moment may be just at the dawn of their evolution. What is a right of security? The following provisions, search and seizure, give some reference to rights of security but an evolving democratic society could well develop new ideas of rights of security, and the purpose of that provision is not a kind of flimflam, as you might suggest; the purpose is to open the door.

What, in sum, was section 7 in the minds of the people who drafted it? A constitutional blank cheque.

But the subjective intentions of the people who drafted section 7 is only one half of the originalist coin. Equally important is the section’s original public meaning.

Fortunately, we don’t need to venture any guesses about how the Charter’s original reading public understood the passages Parliament handed down to them. The courts are representative of that public, and the earliest Charter decisions show us how that public’s members undertook the interpretive task before them.

As early as the 1985 Reference re BC Motor Vehicle Act, the courts were of the opinion that:

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 must rest on an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our evolving legal system. The words “principles of fundamental justice”, therefore, cannot be given any exhaustive content or simple enumerative definition but will take on concrete meaning as the courts address alleged violations of s. 7.

In other words, it was impossible, at the time the Charter came into effect, to identify each and every principle of fundamental justice. Those principles would only reveal themselves with the passage of time. The meaning of section 7 is semantically ambiguous.

Section 7, by this very ambiguity, bestows a freedom of interpretation on subsequent generations and, thereby, confers democratic legitimacy on those who wrestle with the meaning of the constitutional text. 

The originalist case for abortion rights

Okay, but what does this have to do with the right to abortion?

Everything.

The Charter generation of judicial interpreters founded a right to abortion access in section 7 in the 1988 decision in R v Morgentaler. They derived that right from the Charter’s guarantees of security of the person and of liberty. They derived it as members of the Charter’s original reading public.

Now, if the original purpose underlying section 7 was to protect an ever-expanding set of constitutional rights, and the Charter generation considered abortion to be amongst those rights, originalism insists that we in the present cannot do less than uphold that vision of “life, liberty, and security of the person.” Which means, in practice, that a criminal prohibition on abortion would run afoul of Charter Section 7.

The right to abortion is original to the Charter.

Why be an originalist?

The foregoing has shown that originalism can be used to advance progressive legal goals. It hasn’t shown us why we ought to read the Charter in an originalist fashion.

Allow me, now, to attempt an answer.

We should be originalists not because the Constitution was perfected with the creation of the Charter. Rather, we should be originalists because fixing the meaning of the constitutional text in the past means that, while the Constitution can never mean more than what it meant at the time of the last formal amendments to it, nor can it ever mean less. We should be originalists because it ensures we will always have the text of the Constitution to fall back on if and when our beliefs and values no longer predominate.

And is that not exactly what is happening, today, with the rising din of conservative voices on issues of gender and sexuality? As I have documented elsewhere, the largest anti-trans organization in Canada rests its case on a reactionary reading of the Charter’s equality protections. Leftists give up more than we gain if we concede that our interpretations of the Constitution have no actual basis in the constitutional text. We should be originalists because it puts our progressive views on firmer ground.  

This brings me to my political claim, which is that originalist interpretations ought to prevail because it ensures judges remain constitutional actors rather than political ones. This is a familiar argument, but one I find convincing, especially now.

Nearly every originalist insists that the original meaning of the constitutional canon ought to be binding on the judiciary, that is to say, judges ought to decide constitutional cases in a manner “consistent with the original meaning of the constitutional text.” 

The idea here is that the Constitution ought to govern judicial activity, such that a hierarchy is maintained within the legal order in which judges are subordinate to the (democratically enacted) Constitution. And the reason is to prevent the arbitrary substitution of judges’ own values for those defined by the Canadian people in our governing documents. If nothing truly binds the constitutional courts—and recall here that the Supreme Court is not necessarily bound even by its own precedent, as evidenced, for instance, by its changing stance over the years on medical assistance in dying—then nothing truly prevents the judiciary from shifting between progressive and reactionary holdings. 

You might like the progressive gains achieved in the courts over the years in areas like same-sex marriage. But if you reject originalism, you run the very real risk of Canada’s judges becoming rather more right-wing tomorrow, with nothing to truly prevent them from rolling back those progressive wins.

Nothing, that is, except for the constitutional text. For if the Constitution is binding, and those wins represent victories of constitutional interpretation, then there is a lasting check on judicial activism, be it from the left or the right.

Which is why, in the end, I am a constitutional originalist. Because I believe the Constitution matters. And that the rights it guarantees ought to endure.

Charlotte Dalwood

Charlotte Dalwood (she/they) is a Student-At-Law at Prison & Police Law in Calgary, AB; and a Master of Laws student at Osgoode Hall Law School of York University. Find Charlotte online at www.charlottedalwood.com.