For extensive comments, suggestions, and edits, I am most grateful to Scott Reid, Leisha Colyn and Terrence Watson. I want to also extend my thanks to Sarah LaFreniere and Kara Schoonover who provided help with dotting my ‘i’s and crossing my ‘t’s. An earlier version of this paper was presented at the College of Wooster's philosophy lunchbox series in 2011. I am grateful to all of the participants, in particular Mark Wells and students (at the time) Aaron Novick and Sean Hunter. An anonymous referee for this Journal deserves my gratitude as well for thoughtful and challenging critical commentary that made this, I hope, a better paper.

1. Or should it be a reasonable legal academic (because, for example, the language is often technical and relies on prior legal knowledge), or reasonable competent legislator (because, for example, these rulings are primarily or importantly addressed to them)?

2. This is the metaphor for living constitutionalism in Canada. The origin for the metaphor is found in Sankey, Lord’s decision Edwards v Canada (Attorney-General) [1930] AC 124 at 136Google Scholar (PC 1929) (“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”).

3. This is the metaphor for living constitutionalism in Australia. The origin for the metaphor is found in Andrew Inglis Clark’s treatment of constitutional interpretation in Clark, Andrew Inglis, Studies in Australian Constitutional Law (Melbourne: CF Maxwell, 1901) at 18 Google Scholar (“The social conditions and the political exigencies of the succeeding generations of every civilized and progressive community will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document.”)

4. See McLachlin, BM, “The Charter: A New Role for the Judiciary?” (1991) 29 Alta L Rev 540 at 541Google Scholar (“We had changed from a British system, in which the Crown, acting through the legislative and executive branches, was supreme, to a system more akin to that of the United States, where the law itself was supreme. And since the courts are the ultimate arbiters of that law, the courts assumed a newly important role as the institution which determines what can and cannot be the law.”); See also, Newfoundland and Labrador Association of Public and Private Employees v Her Majesty The Queen in Right of Newfoundland 2004 SCC 66 at para 116 (J, Binnie)Google Scholar (“Whenever there are boundaries to the legal exercise of state power such boundaries have to be refereed. Canadian courts have undertaken this role in relation to the division of powers between Parliament and the provincial legislatures since Confederation. The boundary between an individual’s protected right or freedom and state power must also be refereed. The framers of the Charter identified the courts as the referee.”).

5. See, e.g., Wolf v The Queen [1975] 2 SCR 107 at 109Google Scholar (discussing stare decisis and whether appellate courts in one province were required to follow the decisions of appellate courts in another jurisdiction and explaining that they did not, that “[t]he only required uniformity among provincial appellate courts is that which is the result of the decisions of this Court”).

6. See McLachlin, supra note 4 at 544 (“If the courts say that a certain law is unconstitutional, Parliament and the Legislatures must abide by that decision. They cannot change it. It follows that the only means of changing or rectifying constitutional decisions is the courts themselves.”).

7. See R v Salituro [1991] 3 SCR 654 at 665Google ScholarPubMed (“This Court is now willing, where there are compelling reasons for doing so, to overturn its own previous decisions.”); Minister of Indian Affairs and Northern Development v Ranville, [1982] 2 SCR 518 at 527Google ScholarPubMed (“The traditional justification for stare decisis is certainty in the law. This of course remains an important consideration even though this Court has announced its willingness, for compelling reasons, to overturn a prior decision.”).

8. Coordinate interpretation is the rejection of the doctrine of judicial supremacy. It is the view that the Supreme Court does not have the final authority to interpret a constitutional document, that other government actors—the executive and legislative in particular—have equal authority to offer their own interpretation, even after a Supreme Court has made a decision. For a recent defense of this thesis, see Baker, Dennis, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (Montreal: McGill-Queen’s University Press, 2010).Google Scholar

9. In the United States, for example, Albert P Blaustein and Andrew H Field disagree with Justices Brandeis and Douglas about which cases ought to be included in a list of overruled cases. Brandeis produced a list in the footnotes of his dissent in Burnet v Coronado Oil & Gas Co 285 US 393 at 406-09Google ScholarPubMed (1932). Brandeis’s list of cases appears in Douglas, William O, We the Judges: Studies in American and Indian Constitutional Law from Marshall to Mukherjea (New York: Doubleday, 1956)Google Scholar. Blaustein and Field write: “There are ten additional cases which the authors believe to be obvious instances in which the Supreme Court had overruled itself by the end of its 1956 term. Two of these occurred subsequent to the Brandeis-Douglas studies: Gayle v Browder in 1956 and the rehearing in Reid v Covert, involving rehearings and the other four are additions to (and represent disagreement with) the Brandeis-Douglas lists.” Blaustein, Albert P & Field, Andrew H, ‘“Overruling” Opinions in the Supreme Court’ (1958) 57 Mich L Rev 151 at 155CrossRefGoogle Scholar. It is not difficult to see that settling this dispute depends upon what was meant in the relevant rulings.

10. Peter Hogg and Allison Bushell Thornton identified 65 cases where courts had struck down or directly amended a federal or provincial law using the Charter since its adoption in 1982. They contend that when courts strike down laws, they provide guidance to the legislature for amending the laws to be in keeping with the Charter. There is, they claim, a democratic dialogue between the courts and the legislature. See Hogg, PW & Bushell, AA, “The Charter Dialogue between Courts and Legislatures” (1997) 35 Osgoode Hall LJ 75 Google Scholar. But see Macfarlane, Emmett, “Dialogue or Compliance? Measuring Legislatures’ Policy Responses to Court Rulings on Rights” (2012) 34 Int’l Pol Science Rev 1 Google Scholar (claiming that the empirical literature suggests that the truth is that legislatures actually comply with court judgments). The dispute clearly turns, in part, on what the relevant rulings mean.

11. ‘The holding, ratio decidendi, rules, and principles of these opinions are not something to be “discovered,” but something that is creatively formulated through an interpretation of the opinion. Take for example the formulation of the holding. As I indicated, the formulation of the ratio decidendi requires a determination as to what are the “material” facts of the case. One says a fact was “material” to the decision if one is prepared to show that it was “necessary” or “sufficient” to the conclusion. If one is prepared to show that the fact had a “causal” effect on the conclusion regarding constitutionality or unconstitutionality, then one is prepared to claim that fact was “material.”‘ See Geel, TR van, Understanding Supreme Court Opinions, 7th ed (Upper Saddle River: Pearson, 2007) at 96.Google Scholar

12. [1990] 2 SCR 1199, 75 OR (2d) 673 (Askov, citing to SCR).

13. Charter of Rights and Freedoms, Section 11(b).

14. Askov, supra note 12 at 1240. (“Making a very rough comparison and more than doubling the longest waiting period to make every allowance for the special circumstances in Peel would indicate that a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable. The usual delays in Peel are more than four times as long as those of busy metropolitan districts in the province of Quebec and the delay in this case is more than eight times as long. The figures from the comparable districts demonstrate that the Peel District situation is unreasonable and intolerable.”)

15. “Hampton calls for review of Ruling in Askov case”, The Globe and Mail (17 July 1991) at A5.

16. R v Morin [1992] SCJ No 25 Google ScholarPubMed.

17. Ibid at para 48 (“I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay.”).

18. Kennedy, WPM, “The British North America Act: Past and Future” (1937) 15 Can Bar Rev 393 at 394Google Scholar.

19. Kazakewich v Kazakewich [1937] 1 DLR 548 at 567Google Scholar (AB Sup Ct App Div).

20. See Brown, David M, “Tradition and Change in Constitutional Interpretation: Do Living Trees have Roots?” (2005) 19 NJCL 33 Google Scholar.

21. See Miller, Bradley W, “Origin Myth: The Persons Case, the Living Tree, and the New Originalism” in Huscroft, G & Miller, B, eds, The Challenge of Originalism (Cambridge: Cambridge University Press, 2011).Google Scholar

22. Reid, Scott, “The Persons case eight decades later: Reappraising Canada’s most misunderstood court ruling” Working Paper Series (31 January 2013), online: Social Science Research Network http://ssrn.com/abstract=2209846 Google Scholar.

23. Miller pointedly writes that “What transpired at the “dawn of the Charter era” was that a convenient phrase was lifted out of context, emptied of its meaning, and Pressed into the service of judges seeking historical validation for a new, expanded methodology of judicial review.” See Miller, supra note 21 at 138.

24. Manfredi, Christopher P, Judicial Power and the Charter: Canada and the Paradox of Liberalism, 2d ed (Oxford: Oxford University Press, 2001) at 190.Google Scholar

25. See Barron’s Law Dictionary, 2d ed, sub verbo ‘ratio decidendi’.

26. Stare decisis is short for Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” Barron’s Law Dictionary, 2d ed, sub verbo “stare decisis et non quieta movere”.

27. Brest, Paul, “The Misconceived Quest for the Original Understanding” (1980) 60 BUL Rev 204 Google Scholar.

28. Powell, H Jefferson, “The Original Understanding of Original Intent” (1985) 98 Harv L Rev 885 CrossRefGoogle Scholar.

29. Brest, supra note 27.

30. Powell, supra note 28.

31. Barnett, Randy E, “An Originalism for Nonoriginalists” (1999) 45 Loy L Rev 611 at 2Google Scholar. Lawrence Solum puts it this way: “The strongest implication of the article is that original intentions originalism is a self-effacing theory because it requires that the Framers’ intentions regarding interpretation be respected, but those intentions require that the Framers’ intentions be disregarded.” Solum, Lawrence B, “What is Originalism? The Evolution of Contemporary Originalist Theory” Working Paper Series (28 April 2011), at 10 online: Social Science Research Network http://ssrn.com/abstract=1825543 Google Scholar.

32. For the distinction between ‘semantic intentions’ and ‘expectation intentions’ see Dworkin, Ronald, “Comment” in Gutman, Amy, ed, Scalia, Antonin, A Matter of Interpretation (Princeton: Princeton University Press, 1997)Google Scholar. See also Jeffrey Goldsworthy, “The Case for Originalism” in Huscroft & Miller supra note 21 esp at 50-51.

33. See Solum, Lawrence B, “Semantic Originalism” Illinois Public Law Research Paper No 07-24 (22 November 2008), online: Social Science Research Network http://ssrn.com/ab-stract=1120244 Google Scholar [Solum, “Semantic Originalism”]; See also, Solum, Lawrence B & Bennett, Robert W, Constitutional Originalism: A Debate (Ithaca: Cornell University Press, 2011) at 16–20 Google Scholar.

34. In 1999, Whittington published two books that highlight this distinction. See Whittington, Keith E, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999)Google Scholar; Whittington, Keith E, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999).Google Scholar

35. US Const art IV s 4.

36. This is Lawrence Solum’s example. See Solum, “Semantic Originalism”, supra note 33 at 2.

37. Interestingly, the question of the meaning of “persons” in the Edwards decision may provide us with a good Canadian example. The Privy Council was interested only in the meaning of “persons” as it would have been understood at the time of the passage of the Act, rejecting an argument of the AG Canada to the effect that the meaning of “persons” in the BNA Act should be gleaned from earlier interpretations of statutes that pre-dated the time of the passage of the Act. See Miller, “Origin Myth: The Persons Case, the Living Tree, and the New Originalism,” supra note 21 at 129-31.

38. Hogg, Peter, “The Charter of Rights and American Theories of Interpretation” (1987) 25 Osgoode Hall LJ 1 at 101-02Google Scholar.

39. The distinction between concept and conception originates with Gallie, WB, “Essentially Contested Concepts” (1956) 56 Proceedings of the Aristotelian Society 167 CrossRefGoogle Scholar. The distinction appears, most famously, in Rawls, John, A Theory of Justice (Cambridge: Harvard University Press 1971 Google Scholar) as well as in Dworkin, Ronald, Law’s Empire (Cambridge: Harvard University Press, 1988).Google Scholar

40. Reference Re Same Sex Marriage, [2004] 3 SCR 698 at paras 22-23Google ScholarPubMed.

41. See Strauss, David A, The Living Constitution (Oxford, Oxford University Press, 2010) at 24 Google Scholar. (“The most fundamental problem with originalism is the one that Thomas Jefferson, among others, identified in the earliest days of the Constitution. ‘The earth belongs… to the living,’ Jefferson wrote to James Madison in 1789. One generation cannot bind another: ‘We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another’… it is also not satisfactory… to say (as many do) that we must show ‘fidelity’ to the founding generations. I think we should be uncomfortable, in general, with the invocation of quasi-religious notions like fidelity in a diverse society like ours, where there is no orthodoxy and people may choose to give fidelity to any of a countless number of cultural and religious traditions.”).

42. See Kirby, Michael, “Constitutional Interpretation and Original Intent: A Form of Ancestor Worship” (2000) 24 Melbourne UL Rev 1 at 1Google Scholar (attributing the argument to Canadian Supreme Court Justice Ian Binnie, former Australian High Court Justice Michael Kirby argues that American interest in originalism appears to be grounded in part on a “quaint ritual of ancestor worship.” He asks, “Do United States judges, unlike their Australian counterparts, when ascertaining the meaning of their Constitution, engage in a quaint ritual of ancestor worship?”).

43. In 1949, the Supreme Court became the final court of appeal in Canada, when we abolished appeals to the JCPC. The judgments of the JCPC, however, still stand as precedent to this day, unless they were overturned by the Supreme Court.

44. Binnie, Ian, “Interpreting the Constitution: Living Tree vs. Original Meaning” (October 2007) Policy Options at 105 Google Scholar.

45. As the Australian legal scholar Jeff Goldsworthy puts it: “Whenever non-originalists trot out the tired old refrain that ‘we’, ‘today’s Australians’, ‘the present generation’, etc, should not be bound by ‘the dead hand of the past’, they really mean that the judges should not be bound by it. They assume that the judges speak for ‘us’, and imply that to limit the judges’ ability to change the Constitution by pseudo-interpretation is to limit ‘our’ ability to do so democratically. The assumption is highly questionable, and the implication plainly false.” Goldsworthy, Jeffrey, “Interpreting the Constitution in its Second Century” (2000) 4 Melbourne UL Rev 677 at 686Google Scholar.

46. This is how Mitchell N Berman entitled one of his articles. See Berman, Mitchell N, “Originalism is Bunk” (2009) 84 NYU L Rev 1 Google Scholar.

47. McLachlin, supra note 4 at 544.

48. Ibid at 544.

49. Ibid at 544-45.

50. Ibid at 545.

51. The 7+50 amendment formula requires identical resolutions to pass in a minimum of seven provincial legislatures which collectively represent at least 50 per cent of Canada’s population, as well as in Parliament. Often overlooked, the section 43 amendment formula permits individual provinces to amend the Charter with application only within that province. The procedure requires an identical resolution to pass in a provincial legislature and in Parliament. See Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, Section 38(1) and Section 43.

52. Parliament, for example, is perfectly within its legitimate discretion to repeal or amend ordinary legislation by enacting subsequent legislation to that effect. The only commitment shared by originalists is that the meaning of the relevant piece of law, whether the Charter, a judgment, or a piece of legislation, is fixed at the time of its promulgation, and legally binding insofar as it is not inconsistent with the Charter.

53. See Baker, Dennis, Not Quite Supreme (Montreal and Kingston: McGill-Queen’s University Press, 2010) at 3–4 Google Scholar (describing judicial interpretive supremacy Baker writes that according to this view “the other branches must immediately accept the judicial interpretation of the constitution as correct and adopt the judicial reading as their own. Without exception, all non-judicial actors are expected to exercise their powers in all future cases and circumstances as if the judicial interpretation were controlling. From this perspective, there is nothing discrete about the exercise of the Supreme Court’s interpretive power; the judicial interpretation is constantly ‘active’ in the sense that no alternative interpretation may be legitimately held, even provisionally.”).

54. Hogg, Peter W, Thornton, Allison A Bushell & Wright, Wade K, ‘Charter Dialogue Revisited— Or “Much Ado About Metaphors”’ (2007) 45 Osgoode Hall LJ 1 at 35-36Google Scholar.

55. Dred Scott v Sandford, 60 US 393 (1857)Google ScholarPubMed.

56. Korematsu v United States, 323 US 214 (1944)Google ScholarPubMed.

57. See Greene, Jamal, “The Anticanon” (2011) 125 Harv L Rev 379 Google Scholar; See also, e.g., Plessy v Ferguson, 163 US 537 (1896)Google ScholarPubMed; Lochner v New York, 198 US 45 (1905)Google ScholarPubMed.

58. The effect was first discussed in Ross, Lee, Greene, David & House, Pamela, ‘The “False Consensus Effect”: An Egocentric Bias in Social Perception and Attribution Processes’ (1977) 13 J Experimental Social Psychology 3 CrossRefGoogle Scholar.

59. ‘Following orders’ is not always, if ever, a very good excuse for acting unjustly, and no role morality is plausible that demands absolute and unwavering deference to someone else’s judgment about what is just.

60. Wil Waluchow writes: “So one crucial element of the circumstances of politics[…] is that judges are largely removed from the financial and political Pressures which often bias legislative members toward decisions favouring powerful majority opinion (however misguided) or toward opinions sanctioned by powerful elites.” If this is the reason to prefer judges over elected legislators, it appears to count just as much in favour of non-judicial appointees. See Waluchow, Wil, “Constitutions as Living Trees: An Idiot Defends” (2005) 18 Can JL & Juris 2 at 243Google Scholar.

61. Namely, Andromache Karakatsanis.

62. Public opinion polls are sometimes derided as inappropriate for this sort of purpose. That may be. However, some defenders of living tree methods of interpretation are more than happy to make use of public opinion polls that, since 1982, “have consistently shown high levels of popular support both for the Charter and for judicial review of legislation by the Supreme Court of Canada,” in defending judicial review. Hogg, Thornton & Wright, supra note 54 at 28.

63. Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999)CrossRefGoogle Scholar.