Introduction

The most important questions that arise in judicial review under bills of rights typically involve the most vaguely worded rights. Rights to “equal protection” and “due process” in the U.S. Bill of Rights and to “equal protection and equal benefit of the law without discrimination” and “fundamental justice” in the Canadian Charter of Rights and Freedoms raise profoundly difficult moral and political questions, and the way in which they are interpreted by the courts has far-reaching consequences in the constitutional order. Given the stakes, concern about the legitimacy of particular approaches to constitutional interpretation is inevitable and it will not do to insist that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” The question is not whether the judiciary must interpret the constitution but how it should do it.

“New” originalist theory addresses the challenge posed by vaguely worded rights by emphasizing a distinction between “interpretation” and “construction.” Interpretation is concerned with determining the linguistic meaning of the text of the bill of rights and is the first task for a court. Once meaning is ascertained the court turns to the task of construction, developing secondary rules or doctrines to flesh out the content of vaguely worded rights in order to resolve particular disputes.