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The Idea of a Living Constitution

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This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints.

Research Article
Copyright © Canadian Neurological Sciences Federation 2003

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I owe thanks to Joseph Raz for helpful comments on an earlier draft of this paper, and Richard Bronaugh for editorial comments.

1. Dickson, J., in Hunter v. Southam (1984) 11 D.L.R. (4th) 641 Google Scholar at 649, cited in Sharpe, RobertThe Impact of a Bill of Rights on the Role of the Judiciary: A Canadian Perspective” in Alston, Philip ed., Promoting Human Rights through Bills of Rights: Comparative Perspectives (Oxford: Oxford University Press, 1999) 437.Google Scholar

2. Beetz, J., in Attorney-General (Manitoba) v. Metropolitan Stores (MTS) Ltd., (1987) 38 D.L.R. (4th) 321 at 330Google Scholar; also cited in Sharpe, ibid.

3. Walsh, J. (formerly of the Irish Supreme Court), “Existence and Meaning of Fundamental Rights in Ireland” (1980) 1 Human Rights L. J. 171 at 171Google Scholar

4. Antonin, Scalia A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ: Princeton University Press, 1997) at 38.Google Scholar

5. Ibid.

6. Rehnquist, WilliamThe Notion of a Living Constitution” (1976) 54 Texas L. Rev. 693 at 693.Google Scholar

7. I use the term ‘constitutional court’ to refer, in a generic way, to any court which carries out the task of constitutional judicial review.

8. So, for example, Laurence Sager has described the U.S. Constitution as a ‘living’ one, because it has, as a matter of fact, “been dramatically refurbished from time to time through the judiciary’s interpretations of its provisions,” see Sager, LawrenceThe Incorrigible Constitution” (1990) 65 N.Y.U. L. Rev. 893 at 895Google Scholar; see also Levinson, Sanford , “How Many Times Has the United States Constitution Been Amended? (a) < 26; (B) 26; (C) 27; (D) > 27; Accounting for Constitutional Change” in Levinson, Sanford ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, NJ : Princeton University Press, 1995) 13.Google Scholar

9. Thus, Thomas Grey claims that“… ‘the living constitution’ [is one] with provisions suggesting restraints on government in the name of basic rights, yet sufficiently unspecific to permit the judiciary to elucidate the development and change in the content of those rights over time,” see Grey, Thomas, “Do We Have an Unwritten Constitution?” (1975) 27 Stan. L. Rev. 703 at 709.CrossRefGoogle Scholar

10. Note that this approach to constitutional adjudication is not always described under these labels. In Canadian constitutional jurisprudence, it is sometimes referred to as “progressive interpretation,” see Hogg, Peter Constitutional Law of Canada, 3rd ed. (Toronto, ON: Carswell, 1992) at 413, 809, 1290–91.Google Scholar

11. Raoul, BergerOriginalist Theories of Interpretation” (1988) 73 Cornell L. Rev. 351;Google Scholar Political leaders are often heard to express this sentiment: thus, in the course of a speech in 1996 accepting the nomination of his party for the presidency, Senator Dole declared that he had “… a litmus test forjudges. … My litmus test forjudges is that… their passion is not to amend but to interpret the Constitution,” quoted in Dworkin, RonaldThe Arduous Virtue of Fidelity: Originalism. Scalia, Tribe and Nerve” (1997) 65 Fordham L. Rev. 1249 at 1249.Google Scholar

12. It should also be noted that in constitutional theory, finding this boundary between interpretation and amendment is often perceived as the key to identifying legitimate as opposed to illegitimate judicial review, see, e.g., Goldsworthy, JeffreyOriginalism in Constitutional Interpretation” (1997) 25 Fed. L. Rev. 1 at 29Google Scholar; see also Sanford Levinson, supra note 8 at 15.

13. This includes Joseph Raz’s jurisprudential writings on law and adjudication (e.g., Raz, , The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)CrossRefGoogle Scholar and Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994)), his philosophical work on aspects of the notion of interpretation (e.g., Raz, Interpretation without Retrieval” in Marmor, Andrei ed., Law and Interpretation (Oxford: Clarendon Press, 1995) 155 Google Scholar and “Why Interpret?” (1996) 9 Ratio Juris 349; “Intention in Interpretation” in George, Robert ed., The Autonomy of Law (Oxford: Oxford University Press, 1995) 249);Google ScholarPubMed as well as his writing on constitutional adjudication (e.g.,“On the Authority and Interpretation of Constitutions: Some Preliminaries” in Alexander, Larry ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) 152).Google Scholar

14. This example only has force with reference to a Constitution which does not explicitly guarantee that positive discrimination is constitutional; the Canadian Charter of Rights and Freedoms, section 15 (2) is such a guarantee of constitutionality. However, as a general example of the difference between interpretive and non-interpretive reasoning under a general equality guarantee, it still holds.

15. Raz, , “Interpretation Without Retrieval”, supra note 13 at l55ff;Google Scholar Raz, , “Intention in Interpretation,” supra note 13 at 252.Google Scholar

16. Raz, Interpretation Without Retrieval,supra note 13 at 157,163.Google Scholar

17. I am not assuming that the dividing line between these types of reasoning is sharp. Nor am I claiming that interpretive reasoning excludes moral reasoning. On the contrary, I intend to show that moral argument is an integral feature of constitutional interpretation.

18. I borrow this expression from MacCormick, NeilArgumentation and Interpretation in Law” (1993)6 Ratio Juris 16;CrossRefGoogle Scholar see also Raz, “Interpretation Without Retrieval,” supra note Bat 170–71 and “Why Interpret?” supra note 13 at 355. Raz refers to what I have called ‘justifying reasons’ as ‘constitutive reasons’ and describes diem as “the facts which make die interpretation correct, and therefore the facts the understanding of which (whether conscious or not) enables one to understand the interpretation.”

19. Raz, “Interpretation Without Retrieval,“ supra note 13 at 171.

20. Raz, “Why Interpret?” supra note 13 at 355.

21. This point is implicit in the idea that judges must intend to interpret the Constitution, in order to interpret it.

22. Irish Constitution 1937, Art. 40.4.1.

23. Canadian Charter of Rights and Freedoms 1982, section 15(1).

24. U.S. Constitution. Amend. VIII.

25. Andrews v. Law Society of B.C. [1986] 4 W.W.R. 242 (B.C.C.A.). (This case has been used as the object of jurisprudential analysis of interpretation under the Canadian Charter of Rights and Freedoms in Waluchow, Wil Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)Google Scholar and Giudice, Michael , “Unconstitutionality, Invalidity, and Charter Challenges” (2002) 15 Can. J. L. & Juris. 69).CrossRefGoogle Scholar

26. This fact brings out another important general feature of (constitutional) interpretation which cannot be explained here, namely, that there can be multiple plausible or valid interpretations of the same constitutional provision.

27. Raz, “Interpretation Without Retrieval,” supra note 13 at 156.

28. This characterisation of indeterminacy reflects the understanding of legal indeterminacy found in the work of many legal theorists, including Hart, H.L.A. , The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 252, 272–73;Google Scholar Raz, The Authority of Law, supra note 13 at 70–72, 181– 82 and also “On the Authority and Interpretation of Constitutions: Some Preliminaries,” supra note 13 at 181; Endicott, Timothy A.O., “Linguistic Indeterminacy” (1996) 16 Oxford J. Legal Stud. 667 CrossRefGoogle Scholar and also Endicott, , “The Impossibility of the Rule of Law” (1999) 19 Oxford J. Legal Stud. 1.CrossRefGoogle Scholar

29. Endicott, “Linguistic Indeterminacy,” ibid, at 669: “A radical indeterminacy claim would allege that competent speakers of a language can never know whether an expression applies, and that competent lawyers can never know what to tell a client.”

30. Waldron, JeremyVagueness in Law and Language—Some Philosophical Perspectives” (1994) 82 Cal. L. Rev. 509 at 528CrossRefGoogle Scholar. This point is also made by Strauss, David, “Common Law Constitutional Interpretation” (1996) 63 U. Chi. L. Rev. 877 at 906ff.CrossRefGoogle Scholar

31. Ely, John Hart Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) at 14.Google Scholar

32. For my analysis of some arguments in favour of the originalist doctrine, see Kavanagh, AileenOriginal Intention, Enacted Text, and Constitutional Interpretation” (2002) 47 Am. J. Juris. 255.CrossRefGoogle Scholar

33. The point that the ‘authorial intent’ doctrine of interpretation is basically descriptive is made by Marnior, AndreiThree Concepts of Objectivity” in Marmor, Andrei. ed., supra note 13 at 195.Google Scholar

34. Since originalist doctrine has never enjoyed much support in Canadian constitutional jurisprudence (see Hogg, supra note 10 at 1288–89 and Beatty, David Constitutional Law in Theory and Practice (Toronto, ON: University of Toronto Press, 1995) at 6465)CrossRefGoogle Scholar, it might be thought that there is no need to be concerned with its theoretical analysis in Canada. However, such analysis is nonetheless valuable for a number of reasons. First, even if an interpretive method has been rejected by the courts, this does not mean that we know the reasons why this is desirable (if it is). Secondly, part of the aim of this essay is to show how change in interpretation is possible and this applies with equal force to change in established interpretative method. Therefore, just because one method does not find judicial favour now, does not mean that it never could. Thirdly, even if we reject originalism, the reasons why do so can help us to understand die nature of constitutional interpretation in general. Finally, the aspect of originalism which is being examined here is its claim to be essentially ‘descriptive’. This feature is not exclusive to ‘originalism’. It may be shared by other methods of interpretation and, if I am correct in my analysis, those other methods should be rejected on the same grounds.

35. For a detailed examination of the ‘retrieval picture’ of interpretation, see Raz, Interpretation Without Retrieval,” supra note 13.

36. For an explication of this distinction between an interpretation and a description, see Marmor, supra note 33 at 193–97.

37. This point is also made by Dworkin, Ronald A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 36, 53–55;Google Scholar Dworkin, , Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 61.Google Scholar

38. Dworkin, A Matter of Principle, ibid, at 54.Google Scholar

39. Dworkin, , “The Virtue of Fidelity: Originalism, Scalia, Tribe and Nerve,supra note 11 at 1259.Google Scholar

40. Marmor, supra note 33 at 193.

41. In this context, ‘moral’ is used in the very wide sense in which it refers to the array of evaluative considerations that enter into the judicial decision about what ought to be done in society. I shall not try to define exactly what counts as a moral reason, beyond assuming that it involves moral considerations about what one ought to do.

42. The point that interpretation of some constitutional clauses requires moral deliberation is widely supported by many legal philosophers (although they may disagree about the type and status of the moral considerations which should inform constitutional interpretations); see, e.g., Dworkin, Ronald Taking Rights Seriously (London: Duckworth, 1977) at 147ff;Google ScholarPubMed Dworkin, , Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996) at 3;Google Scholar Hart, supra note 28 at 254; Raz, JosephDworkin: A New Link in the Chain” (1986) 74 Cal. L. Rev. 1103 at 1115;CrossRefGoogle Scholar Waluchow, Inclusive Legal Positivism, supra note 25 at 143–55; Perry, StephenThe Varieties of Legal Positivism” (1996) 9 Can. J. L. & Juris. 361 at 367.CrossRefGoogle Scholar

43. Raz, Ethics in the Public Domain, supra note 13 at 334; The Authority of Law, supra note 13 at181.

44. Dworkin, , A Matter of Principle, supra note 37 at 32.Google Scholar

45. McKinlay v. Commonwealth (1975) 135 CLR 1 at 44, cited in Goldsworthy, supra note 12 at 1.

46. It might be objected here that deciding in accordance with their ‘moral judgement’ is the same as deciding in accordance with what Gibbs J. refers to as “prepossessions”. Although the meaning of this phrase is not entirely clear, it seems to lean in the direction of taste or preference, rather than reason or belief. Although it cannot be argued for here, I assume that moral judgement is reason-based and is, therefore, different from mere expression of taste or preference. For discussion of this issue, see Williams, Bernard Morality (Cambridge: Cambridge University Press, 1992) atl5ff.Google ScholarPubMed

47. Scalia, supra note 4 at 142.

48. For a justification of the duty to consider and sometimes adopt innovative judicial interpretations for these reasons, see Raz, “Why Interpret?” supra note 13 at 360–63 and “On the Authority and Interpretation of Constitutions,” supra note 13 at 180–84.

49. This expression is drawn from Raz, , “On the Authority and Interpretation of Constitutions,supra note 13 at 181.Google Scholar

50. Raz, , The Authority of Law, supra note 13 at 182.Google Scholar

51. Rehnquist, supra note 6 at 698.

52. For an examination of the differences between judicial and legislative law-making, see Hart, supra note 28 at 204–05, 73; Raz, , The Authority of Law, supra note 13 at 194201.Google Scholar

53. Though note that there may be some exceptions to this, such as when parliament has to regulate an aspect of constitutional law on which there has been a judgement of the constitutional court. In that situation, legislators may need to interpret what the court said, in order to understand what they are allowed to do in their law-making activities. This exception does not undermine the general point made above.

54. In fact, some constitutional lawyers argue that stare decisis should be less strict in constitutional law than in other branches of the law due to the fact that the Constitution is more difficult to amend than statutes, see Hogg, supra note 10 at 221; Henry Monaghan has argued that stare decisis is in fact less strict in American constitutional law, than in other branches of the law, see Monaghan, Henry, “Our Perfect Constitution” (1981) 56 N.Y.U. L. Rev. 353.Google Scholar

55. See Bell, John Policy Arguments in Judicial Decisions (Oxford: Clarendon Press, 1983) at 24:Google Scholar “The reasons given by the judge will reflect not merely his own perceptions of the job he performs in society, but also what is expected of him by his audience”.

56. Dahl distinguishes between the negative task of preventing the infringement of constitutional rights and the positive task of laying down policies which regulate and implement the abstract constitutional rights: see Dahl, Robert Democracy and Its Critics (New Haven, CT: Yale University Press, 1989) 189.Google Scholar

57. Fallon, RichardBook Review: Common Law Court or Council of Revision?” (1992) 101 Yale L.J. 949 at 964.CrossRefGoogle Scholar

58. BeVier, Lillian “Judicial Restraint: An Argument from Institutional Design” (1984) 17 Harv. J. ofL. & Public Pol’y 8.Google Scholar

59. Raz, The Authority of Law, supra note 13 at 195.Google Scholar

60. See Raz, , “Why Interpret?supra note 13 at 359;Google Scholar see also Raz, , “On the Authority and Interpretation of Constitutions,supra note 13 at 178.Google Scholar

61. This view is also supported by William Brennan, who argues that the constitutional text helps to “tether their discretion” of the interpreting judge, see Brennan, William Jr., “Why Have a Bill of Rights?” (1989) 9 Oxford J. of Legal Stud. 425 at 432.CrossRefGoogle Scholar

62. For the idea of the decision-making powers of courts as “directed,” see Raz, , Ethics in the Public Domain, supra note 13 242–52;Google Scholar for consideration of the question whether the Canadian Charter of Rights and Freedoms can be said to contain or authorise Razian “directed powers,” see Giudice, supra note 25 at 74.

63. This point is also made by Raz, , “On the Authority and Interpretation of Constitutions,” supra note 13 at 86.Google Scholar

64. See Robert Sharpe, supra note 1 at 437.

65. Attorney General v. X [1992] 1 Irish Reports 1.

66. This point is also made by Joseph Raz with reference to judicial law-making generally, see Raz, , The Authority of Law, supra note 13 at 196.Google Scholar

67. Thus, in the example of the ‘radical interpretative change’ in Irish constitutional law mentioned above, there had been a ‘waning’ of explicit reliance on natural law thinking throughout the previous decade, see Whyte, Gerry & Hogan, Gerard, The Irish Constitution, J.M.Kelly, 3rd ed. (Dublin: Butterworths, 1994) cxviii.Google Scholar

68. I am not suggesting (nor do I need to suggest) that this is invariably the case when judges pronounce on some new interpretative method. The general point being made in this section is that the judicial change of constitutional law (as suggested by the metaphor of the ‘living’ Constitution) tends to be gradual and incremental. It does not deny the possibility that there will occasionally be a radical change. My point is simply that this is incorrect as a general characterization. The point made above about radical-seeming decisions on issues of interpretation drawing on, and systematizing, elements of previously accepted interpretative methods should be understood in this context.

69. Meese, Edwin, “Interpreting the Constitution” in Rakove, Jack, ed., Interpreting the Constitution: The Debate over Original Intent (Boston: Northeastern University Press, 1990) 13 at 18.Google Scholar

70. Raz, , “On the Authority and Interpretation of Constitutions,” supra note 13 at 186.Google Scholar

71. Goldsworthy, supra note 12 at 29; this point is also borne out by the expression of the ‘living Constitution’ metaphor which was adopted in the Canadian case of Edwards v. Attorney-General (Canada) [1930] AC 124 at 136 that the Constitution is “a living tree capable of growth and expansion within its natural limits” (emphasis added); see Hogg, supra note 10 at 809.

72. Dworkin, , Freedom’s Law, supra note 42 at 4;Google Scholar see also Sanford Levinson, supra note 8 at 14 (who attributes this criticism of living constitutionalism to constitutional theorists such as Robert Bork); see also Berger, supra note 11 at 351.

73. Kay, Richard, “American Constitutionalism” in Alexander, L., ed., supra note 13 at 48.Google Scholar

74. These are reasons to do with the values of continuity and stability in constitutional law.

75. In this vein, Justice Brennan of the U.S. Supreme Court has described the ‘frailties and weaknesses’ of some courts which have been “too willing to compromise civil liberties when the authorities deemed it expedient to do so,” see Brennan, supra note 61 at 436.

76. Supra note 1.

77. McCulloch v. Maryland (1819) 4 Wheat 316 at 407 & 415, cited in Goldsworthy, supra note 12 at 28.

78. Brennan, William, “The Constitution of the United States: Contemporary Ratification” in Rakove, Jack, ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern University Press, 1990) 23 at 27.Google Scholar

79. For an examination of the way this distinction has featured in American constitutional theory, see Greenberg, Mark.D. & Litman, Harry, “The Meaning of Original Meaning” (1998) 86 Geo. L.J. 569 at 598ff.Google Scholar

80. Rehnquist, supra note 6 at 693–94; Thomas Grey, supra note 9 at 710 (who describes this sort of judicial change of the law the more ‘limited sense’ of the ‘living Constitution’ metaphor); Bork, Robert, The Templing of America: The Political Seduction of the Law (London: Collier-Macmillan, 1990);Google Scholar Lessig, Lawrence, “Fidelity in Translation” (1993) 71 Texas L. Rev. 1165 at 1179–80;Google Scholar Scalia, supra note 4 at 45, 140; Greenberg & Litman, ibid. at 603.

81. For this example, see Scalia, supra note 4 at 140.

82. Bork, supra note 80 at 168–69; for critical discussion of his argument, see Goldsworthy, supra note 12 at 34-35

83. Bork, supra note 80 at 169.

84. Lessig, , “Fidelity in Translationsupra note 80 at 1259.Google Scholar

85. In fact, the lawmakers’ purpose may be thwarted if judges do not take account of social changes when interpreting the Constitution, see Lessig, supra note 80; see also Greenberg & Litman, supra note 79 at 603.

86. In following a Razian account of constitutional adjudication, Michael Giudice puts this point more generally: “In common law systems or systems which include a doctrine of precedent, any decision X which does not simply repeat existing law but develops the law by rendering it more determinate or by overruling a past line of precedents can typically be said to change the law or make new law,” supra note 25 at 77.

87. Bork, supra note 80.

88. Lessig, supra note 80.

89. Although cf. Wellington, Harry, Interpreting the Constitution (New Haven, CT: Yale University Press, 1990) at 142,Google Scholar actually recommends this way of adjudicating constitutional issues to the U.S. Supreme Court: “The Court’s task is to ascertain the weight of the principle in conventional morality and to convert the moral principle into a legal one by connecting it with the body of constitutional law”. This type of adjudication is ruled out by my analysis of the idea of the ‘living Constitution’.

90. For an exploration of the sort of moral change which is possible and its extent, see Raz, Joseph, “Moral Change and Social Relativism” in Paul, , Miller, , eds., Cultural Pluralism and Moral Knowledge (Cambridge: Cambridge University Press, 1994) 139 at 139ff.Google Scholar

91. The argument that there is no persuasive justification for allowing changed readings of the Constitution in the application of non-moral as opposed to moral terms is also made by Greenberg & Litman, supra note 79 at 603–13, but for different reasons than those advanced here, see, in particular, 604–05, 610–11.

92. For the point that “responsible reflection concerning rights and freedoms” must demonstrate sensitivity to contextual considerations of the type considered above, see Wii Waluchow, supra note 25 at 145.

93. Both of these issues came before the Irish Supreme Court in the landmark cases of McGee v. Attorney General (1974) Irish Reports 284 and Norris v. Attorney General (1984) Irish Reports 36, respectively.

94. Posing the question in this way should not be taken to endorse the view that such a separation is actually possible. It may not be possible in all cases.

95. Quoted in Scalia, supra note 4 at 40.

96. Strauss, supra note 30 at 929 (arguing that the constitutional decisions of the American Supreme Court are “not likely to stay out of line for long” with these deeply-held and durable views).

97. Raz, , “On the Authority and Interpretation of Constitutions: Some Preliminaries,” supra note 13 at 177.Google Scholar

98. Hogg, supra note 10 at 413–14, 809.

99. See Strauss, supra note 30 at 884, 905–06; This fact also shows that the difference between countries with a written Constitution interpreted by the courts, and those where constitutional law is made (largely) through fundamental doctrines of the common law is often exaggerated.

100. For this claim, see Wil Waluchow, supra, note 25 at 158–59; it also seems to be supported by Michael Giudice, supra note 25 at 76.

101. Justice Scalia of the U.S. Supreme Court explicitly invokes this classic adjudicative ideal as a counter-argument to the idea of a ‘living Constitution’, supra note 4 at 136.

102. Something like this worry seems to underlie Wil Waluchow’s claim that the idea of judges creating new legal rights is counterintuitive, supra note 25 at 159.

103. This expression is borrowed from Munzer, Stephen & Nickel, James, “Does the Constitution Mean What It Always Meant?” (1977) 77 Colum. L. Rev. 1029 at 1052;CrossRefGoogle Scholar David Strauss has argued that most opposition to ‘evolutionary’ accounts of constitutional interpretation in the U.S. is rooted in the fear that they seem to undermine the central importance of the written text of the Constitution, supra note 30 at 878, 906ff.

104. This point also applies to the symbolic role which original Framers might have in the social and political life of a country.

105. In fact, the intuitive plausibility of this view is so strong that it leads some lawyers to claim that the ‘living’ or ‘evolutionary’ approach to adjudication is not only desirable, but an “inevitable” feature of constitutional law under a written Constitution: see, e.g., Hogg, supra note 10 at 1290.

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