The Framers Refuted: Originalism and Constitutional Meaning after 1867

This essay is the final installment in a three-part series on Confederation that provides critical historical context for Canada’s sesquicentennial anniversary. The first two parts were posted on the 26th and 28th of June.

Bradley Miller

In 1882, during oral arguments at the Judicial Committee of the Privy Council for one of the first court cases about the meaning of the BNA Act, a federal lawyer tried to use some historical context about Confederation to make a point about the division of powers. The judges rejected that approach, with Sir Montague Smith telling the lawyer that “I do not think there is anything so obscure in the construction of the [BNA Act]… that renders it necessary to go into the history of it.”[1]

Smith’s comment proved prescient. While some Canadian courts in the immediate aftermath of 1867 did invoke the political contexts and purposes of Confederation and the intent of its framers, many scholars argue that this methodology was soon marginalized by JCPC judges like Smith who regarded everything beyond statutory text as irrelevant in court. With the Privy Council reigning at the top of the judicial hierarchy in Canada until the 1940’s, that bench had decades to shape the Canadian constitution without using the history and context of its creation.[2]

For better or for worse, history has never bounced back as a force in Canadian constitutional law.[3] We’ve largely been spared the furious American debate over whether the original meaning of the constitution is binding today – whether, for example, we need to look at what the society that ratified the 14^th amendment to the U.S. constitution in the 1860’s thought about abortion or homosexuality to discern where abortion or gay marriage are guaranteed as constitutional rights now.

But in Canada the political divisions over using history are not as clear as they often are in the U.S. During the Privy Council’s long reign over Canadian constitutional law it more or less eviscerated the federal power to regulate much of the economy under the “trade and commerce” head in section 91 of the BNA Act. As a result, generations of Canadians who favour national regulatory regimes – the 2010 plan for a national securities regulator, say – have argued that those early courts that denied history much of a place in constitutional law have left a disastrous and wrong-headed legacy by distorting constitutional text and ignoring the original intentions of its framers.

But it’s not at all clear that the framers claimed or even expected a role for their pre-Confederation ideas and assumptions in post-Confederation constitutional interpretation. Moreover, it’s not clear that a focus on constitutional text in the absence of context was an imported legacy of distant judges on the JCPC detached from Canadian circumstances.

Here’s one example, from around the time that Sir Montague Smith declared that it was unnecessary to go into the history of the BNA Act to understand its meaning. It comes from the Parliamentary debates over a bill presented in 1880 and again in 1882 to legalize marriage between men and their deceased wife’s sister. (This may sound like an archaic and esoteric issue. It was neither. In the nineteenth and early twentieth centuries jurisdictions around the world had protracted and impassioned debates over deceased wife’s sister and deceased husband’s brother marriages, as I show in an article I’m completing now. That, however, is an issue for a different paper.)

After the bill was presented by Quebec Tory MP Désiré Girouard, some Quebec MP’s and senators attacked it as unconstitutional, saying that it violated what they considered to be a binding promise made during the Canadian Confederation debates in 1865.

What they meant was this: In 1865, Lower Canada Solicitor General Hector-Louis Langevin issued a formal statement in the Canadian assembly about what the words “marriage and divorce” meant in the federal powers section of the Quebec Resolutions. The statement arguably constrained federal power to simply prescribing what marriages conducted according to the laws of the individual provinces would be valid in the rest of Canada.

Opponents of Girouard’s bills in 1880 and 1882 used that statement to demonstrate what they regarded as both the original intent and the original meaning of marriage in the BNA Act. In their view, Langevin’s statement in 1865 precluded the federal Parliament from defining who could and couldn’t get married. As a result, the marriage debates turned in part on whether historical sources should shape the interpretation of the new constitution.

Opponents of the legislation included Senator J.H. Bellerose, who had been a member of the Canadian assembly during the Confederation debates. Although he personally supported legalizing the marriages in question, Bellerose argued that the bill violated the meaning of marriage in section 91 which he said had been defined by Langevin and fixed in 1867. “Having been one of the framers of the constitution… it is my duty to maintain the constitution according to its true intent and meaning as understood by the framers of the British North America Act,” he told the Senate.

Likewise, Langevin himself spoke up against the legislation, saying that his 1865 statement had crystallized that portion of the constitution. As he told the House of Commons, “it is by the intentions of the framers of a law that you learn its true intent and meaning.”

But key MP’s and Senators rejected the originalist approach, arguing instead for the kind of a-historical textualism espoused and supposedly imported by the Privy Council. Former house speaker Timothy Anglin declared that “the Act of Confederation must be taken as we find it, and we must interpret its meaning as it clearly appears on the face of it,” without any regard to Langevin’s statement. Likewise, the Nova Scotia senator W.J. Almon said that he had never heard of a lawyer trying to argue in court “that a statute did not mean what its words convey, or quoted the speeches of those who framed it to explain what it meant.” According to Almon, any judge would reject such an approach out of hand.

Moreover, one of the key members of the Great Coalition before Confederation also rejected using the statements of the framers to define the terms of the BNA Act after 1867. Justice Minister Sir Alexander Campbell told the House that “the time at which these expressions of belief were uttered has gone by and we are now to deal not with what was then expected… We cannot now interpret the [BNA Act] by referring to what was said by individuals either speaking for themselves or on behalf of the Government.” Instead, he said, they “must interpret it by reference to the language which it contains.” In other words, the constitution should be understood through its text and not its context or history. Another MP quoted a report by Prime Minister Sir John A. Macdonald in which he noted that the constitution must “of course be construed according to its terms, and not according to the assumed intention of its framers.”

In the end, the deceased wife’s sister bill passed by large majorities in the House and Senate in 1882. While Bellerose and a small group of Quebec MP’s and senators petitioned the Governor General to reserve the bill, again wielding Langevin’s 1865 statement as binding on Parliament, the Cabinet rejected their plea and the bill became law.

But their efforts to block the bill on constitutional grounds echo starkly two of the forms of originalism that have been so central in recent U.S. constitutional debates. In explicitly invoking the intent of the framers, Bellerose and his allies foreshadowed what some scholars now call “Old Originalism,” a technique that many originalists have abandoned and which is sometimes depicted by opponents as a “process of transgenerational mind-reading,” in the words of two current Canadian legal scholars.[4] Yet Bellerose and his side also relied on the technique which has largely supplanted the search for intent, namely the focus on original public meaning. According to that side in the marriage debates Langevin’s statement indicated not simply the intent of the framers but a meaning which was stated and accepted by the society in which the Quebec Resolutions were ratified and transformed into a constitution.

As a result, when Parliament heard, considered, and ignored the originalist case it made a decision that we should bear in mind now when we wonder whether the past has a role in shaping how we interpret constitutional text. While originalism has long played only a minor role in Canadian law, there are flickers of a new originalist movement. New scholarly work continues to appear arguing for originalist approaches in Canadian constitutional law and Stephen Harper’s government appointed several avowed originalists as appellate judges. Moreover, a provincial court in New Brunswick decided the constitutional case R. v. Comeau last year on explicitly originalist grounds, aided by expert testimony from Canadian historian Andrew Smith. The provincial court of appeal declined to review the case, but the New Brunswick government appealed to the Supreme Court, arguing in part that the judge erred by deferring to the original intent of the constitutional provision at issue. In May of this year the court agreed to hear the appeal.[5]

It may be tempting for those of us who make a living reading, writing, and teaching history to champion its role in constitutional debates and in cases like Comeau. But we may not like the results we get from doing so, and it’s far from clear that the officials of the past wanted their views about the constitution to survive outside its text.

Bradley Miller is an assistant professor of history at UBC. His book, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819-1914, was published last fall by UTP and the Osgoode Society.

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SSHRC provided funding for the research on which this essay is based.

[1] Sir Montague Smith, quoted in John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism. (Toronto: Osgoode Society and University of Toronto Press, 2002), 73.

[2] See Saywell, The Lawmakers.

[3] Some recent writers argue with varying degrees of success that Canadian judges have not rejected originalism as completely as if often claimed. On this, see Léonid Sirota and Benjamin Oliphant, “Originalist Reasoning in Canadian Constitutional Jurisprudence,” UBC Law Review, forthcoming: 2017; Oliphant and Sirota, “Has the Supreme Court of Canada Rejected ‘Originalism’?,” Queen’s Law Journal, 42(1), 2016, 107-164; J. Gareth Morley, “Dead Hands, Living Trees, Historic Compromises: The Senate Reform and Supreme Court Act References Bring the Originalism Debate to Canada,” Osgoode Hall Law Journal, 53, 2016, 745-798.

It should be noted that an exception to the irrelevance of history in constitutional interpretation is the adjudication of Indigenous rights disputes under section 35 of the Constitution Act, 1982. On this, see John Borrows, “Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism,” Canadian Historical Review, 98(1), 2017, 114-135.

[4] Sirota and Oliphant, “Originalist Reasoning,” 510. On the varieties of originalism at play in contemporary legal thought, see Grant Huscroft and Bradley Miller [No relation!], eds., The Challenge of Originalism: Theories of Constitutional Interpretation. (Cambridge: Cambridge University Press, 2011).

[5] “Supreme Court to hear ‘polarizing’ border-beer case,” Globe and Mail, 4 May 2017: https://www.theglobeandmail.com/news/national/supreme-court-to-hear-case-on-interprovincial-alcohol-purchases/article34893813/ (retrieved 23 June 2017). On the case see Benjamin Oliphant, “Originalism, Beer, and Inteprovincial Trade Barriers,” Policy Options: http://policyoptions.irpp.org/2016/05/06/originalism-beer-interprovincial-trade-barriers/ On Harper and originalism, see Sean Fine, “Stephen Harper’s Courts,” Globe and Mail, 25 July 2015, F1.

Featured Image: The Fathers of Confederation by Frederick Spronston Challener, 1917-1919, Government of Ontario Art Collection, Accession no. 605057, Archives of Ontario.