Things I Dislike about the Constitution

6 09 2018

Andrew Smith: Leonid Sirota, legal academic of strong originalist views, has published an interesting (to me) blog post on which features of the Canadian constitution he personally dislikes. His post will likely be read and discussed by academics who have had to think about the Canadian constitution and its specific features (that includes me). His post will also interest scholars in other countries in which people use “Originalist” theories to interpret key constitutional documents, [Originalism means that when a court has to parse out the meaning of words in a document such as the US constitution or the constitution of India, they have to take historical context and original intention of the drafters into account}.

Sirota makes some interesting points about various features of the Canadian constitution.

However, I would like to “go meta” here and ask the more fundamental question about why people in Canada (or indeed any country with a written constitution) ought to care about the intentions, values, etc of the individuals who wrote constitutional documents long ago. In other words, why is Originalism a valid approach? Why shouldn’t we adopt the Tom Paine view that we don’t need to worry about the opinions of people who lived long ago, since doing so would result in the tyranny of the dead over the living?

I think that best justification for any form of Originalism is similar to justification for the meta-position that the peer review process improves papers. Ultimately, this justification is rooted in the old insight that “two heads are better than one.” Constitutions, unlike ordinary statutes, are the product of processes that are long, complicated, involve multiple veto points, and require extensive debate and reflection. As as result, they embody the collective wisdom of many individuals. They are thus a “wisdom tradition” that we in the present ought to respect, at least most of the time. Moreover, constitutions tend to be written either during crisis periods, eras of elevated or Knightian uncertainty, when individual political actors have a limited ability of forsee what their future careers have in store for them. Such constitutional moments are the closest thing we have in the real world to the Rawlsian veil of ignorance. Ceteris paribus, we would expect constitutions designed during such epochs to be more like to exhibit evidence of disinterested design than other sets of rules. We should, therefore, be somewhat deferential to the products of such design processes.

Double Aspect

In an interesting Volokh Conspiracy post, Ilya Somin provides a “list of several areas where … the Constitution [of the United States] gets important issues badly wrong”. This is in response to concerns that (American) originalists, most of whom tend to be conservatives or libertarians, come to their position on how to interpret (their) constitution because they think that originalism yields results consonant with their political views. As Professor Somin notes, “[s]imilar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views”. But, even if one’s work is focused on those areas where one’s political and constitutional views are aligned, for any principled person there are likely to be areas where this alignment break down.

Here are some of mine (for the Canadian constitution of course, not the American one). It is…

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