A Simple Primer on Constitutional Interpretation

Herein I try a tightwire act with two strikes against me. First, I have difficulty with brevity. Second, I’m a Canadian-trained lawyer and my understanding of US Constitutional Law is self-taught. So, with those two admissions, here goes.

A country’s constitution is its baseline law, and all rights, duties and powers of the state and of the citizen flow from that. The United Kingdom’s constitution is said to be unwritten, which is not exactly true. It’s better to think of it as a collection of laws and conventions that have been recorded but not intentionally systematized. They don’t, however, have the modern equivalent of the stone tablets on Mount Sinai.

Canada’s constitution is mostly written, but with significant reliance on custom and convention. America’s is almost entirely a written document, and Americans take it very, very, seriously. It is much more Mount Sinai, complete with thunder and lightning and carving in stone.

There are two main ways to look at any document such as a constitution. You can give it a sacred, magical, mystical, inerrant interpretation, or you can say that it represents the best thinking of the day and is to be used as a guide, constraint, and control as we move forward.

Particularly in the US with its comprehensive written Constitution, there is a large school of traditionalists who believe firmly that the founding fathers were all-wise and all-knowing, and it is our job to discern what they intended and what they would say if brought back from the dead to decide today’s problem, but using the knowledge and beliefs of their day. “Carved in stone” is the mind-set of the originalists.

The other major approach, and the prevailing one in Canada, is that the Constitution is supreme, but not mystical. Some things are clear enough – that the armed forces are a federal responsibility, and that property and civil rights are provincial matters, provided the subject matter is solely within the province. But there are only so many bright lines, and everything in between has to be figured out with common sense. Unless you’re into mysticism.

The problem with the overly strict interpretation of a Constitution is that new stuff happens. Take, for example, aviation. Is it a federal matter or a local matter? The Founding Fathers didn’t even dream about airplanes (well, maybe Benjamin Franklin did). The internet? The environment?

So when the current bench of the Supreme Court of the United States overturns significant environmental legislation, saying it is ultra vires (beyond the power) of the government, you know which school of thought they follow. “I read the whole Constitution, end to end, and not a word about the environment!” Guess it’s not a problem.

Literalists will tell us that they are simply following the clear letter of the Constitution, which is nonsense, because if it were that clear, there would be no argument and the case would not be before the court. What they really mean is that they are telling you what they believe the drafters had in mind, and given that the judges weren’t in the room with the drafters, their guess is no better than yours. But what this allows literalists to do is tell you whatever they want by pretending to channel the spirits of the Founding Fathers.

Sound like voodoo to you? Yeah, me too.

For me at least, I’m glad Canada’s courts mostly don’t belong to the tea leaves school.