Ben Oliphant on Originalism and History

6 05 2017

Making the Canadian Constitution:  the Fathers of Confederation

Benjamin Oliphant  (@BenOliphantis a Vancouver-based lawyer and writer (see Google Scholar profile here), whose work focuses on constitutional, administrative, labour and employment law. He is also an adjunct professor at the UBC Allard School of Law. He has published a very interesting piece on Originalism, Beer, and Interprovincial Trade Barriers in Policy Options, a Canadian outlet.  His piece, which discusses the R. v. Comeau court case (see my blog posts about being the expert witness in this case here), talks about the competing schools of thought about how to interpret the text of written constitutions– “originalism” versus the “living tree approach”. This seemingly arcane issue was very relevant to this case, because while the text of the 1867 Canadian constitution clearly mandates that there should be free trade within the Canadian federation, Canadian courts have often interpreted this text in a fashion that authorizes the existence of internal trade barriers).  To lawyers of a certain school of thought, this mode of interpreting the constitution seems totally logical. To someone who has a PhD in history from a history department,  and was thus socialised to think about the past in a particular fashion, this conclusion seems totally bizarre– at odds which what the primary sources say.

There are many disciplines that involve studying the past- law, of course, but also political science, economic history, international relations, sociology, as well as what I call “history-department history.” Each of these disciplines has its own internal debates about methodology and but also a set of shared assumptions about how to think about the events in the past. I suppose as I’ve matured as a scholar, I’ve become more accepting of the use of these different disciplinary lenses for viewing the past. I’ve become far more methodologically tolerant, especially since I started teaching management. (In between teaching in a history department and working in a business school I had a brief spell teaching International Relations students).


Benjamin Oliphant



I’ve been asked a few times whether I’m an originalist. I was first asked that more than a decade ago.  I’ve always replied “No, I’m just a historian who knows a great deal about the making of the Canadian constitution and the business history of that era.” In fact, the first time I was asked this question by a lawyer, I wasn’t entirely certain what the term originalism meant.


My curiosity stimulated, I’ve since done some reading on what “originalism” means in US, Canadian, and Australian constitutional jurisprudence (see here, here, here, and here). The philosophy of originalism differs in subtle and important ways between these three countries and has evolved over time, as this recent piece by a US history-department historian named Jonathan Gienapp shows. Gienapp, who is a young man, appears to be a methodologically intolerant history-department historian, as he insists that originalist legal scholars have waged a decades-long war against the “methods of history” — by which he appears to me the ways of interpreting history that are derived from Leopold von Ranke and which have been taught in US graduate programmes since the 19th century.   Despite what Gienapp says, it seems to me that some forms of originalism, particularly what Gienapp calls Originalism 1.0, are indeed  consistent with the rules of evidence/modes of inquiry that are taught in graduate programmes in history in English-speaking countries.  Of course, these modes of inquiry aren’t the only legitimate way of approaching the past, as Gienapp’s colleague Dave Donaldson, the winner of the 2017 John Bates Clark Medal, would doubtless attest!

Anyway, Oliphant’s piece is interesting reading. If you are interested in the underlying issues, I would also check out the 2013 C.D. Howe’s Institute paper Beer, Barristers, and Butter— a great title by the way.




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