Constitutional Structure and Original Intent

A Canadian Perspective

Canadian legal culture prefers to interpret constitutional-rights and division-of-powers provisions using a progressive or purposive approach rather than varieties of originalism. The progressive approach understands constitutional provisions according to their purposes or goals and often compares those provisions to a “living tree capable of growth and expansion within its natural limits.” This Article analyzes how progressive interpretation is, and should be, applied to the functions of legislative and judicial institutions that are integral to Canada’s constitutional structure. Part I addresses cases where the Supreme Court of Canada identified the constitutional purposes of four institutions: elected legislative bodies; provincial courts; the Supreme Court of Canada; and the Canadian Senate. In each case, the Court determined whether institutions are part of the constitutional structure and then what actions would hinder their proper function and thus be unconstitutional. Part II addresses how the history of an institution’s function contributes to the Court’s constitutional interpretations about an institution. In many cases, the Court considers the institutions’ evolving roles when determining their constitutional structures and functions; in some cases, however, the Court favors originalist interpretations with appeals to the Founders of the Confederation or their British predecessors. No clear-cut rule distinguishes one use of history from the other. Part III presents four normative reasons why institutions’ evolutions should contribute to progressive interpretation. Canadian courts are not bound by the Founders’ intentions because the Canadian people have given the judiciary a mandate under the Constitution Act, 1982 to interpret the constitutional text; neither revolution nor democratic ratification established the Canadian Constitution from the Founders to the Constitution Act, 1982; and apart from courts, the Constitution would be too difficult to amend. To these commonly invoked reasons for progressive constitutional interpretation, this Article presents a fourth reason, drawing on the work of Hans-Georg Gadamer’s Truth and Method. The understanding of legal and constitutional concepts, like other areas of inquiry, involves a hermeneutic circle comprising both historical knowledge and present circumstances, not one apart from the other.

The full text of this Symposium is available to download as a PDF.