Scalia’s Legal Originalism: Does It Exist in Canada?

Late US Supreme Court justice's philosophy helped shape American legal history
February 17, 2016 Updated: February 17, 2016

WASHINGTON—One of the earliest influences on Antonin Scalia was a Sicilian-born father who applied a particular philosophy to the scholarly task of translating poems from Italian: Learn the original poet’s point-of-view, and don’t muck it up with new ideas.

A biographer of the just-deceased Supreme Court justice cites Scalia’s father as one of several sources for the philosophy that helped Scalia shape American legal history.

The biography, “Scalia: A Court of One,” quotes Salvatore Eugene Scalia, a scholar of romance languages, warning fellow translators against covering old meaning in shiny linguistic paint.

“[The translator’s] most eminent quality is the rare faculty of reproducing the lyric vision of a poet,” the elder Scalia is quoted as writing.

“He must always seek to transfer bodily the image from one language into another without sacrifice of glow or warmth, and not attempt to reconstruct it with dictionary in hand.”

It’s like a manifesto for judicial originalism. Scalia brought that legal philosophy from the margins to the forefront of American civic life, based on the belief that modern-day judges should hew as closely to the U.S. Constitution as it would have been understood by the public in the 18th century.

Biographer Bruce Murphy cites several other influences on the judge besides his dad, including his deep religious faith, and frustration over the 1960s modernizing and abandoment of Latin-language mass by the Catholic Church.

Finally, as an editor of the Harvard Law Review in the 1950s, Scalia was exposed to emerging conservative writers like William F. Buckley and legal thinkers like Herbert Wechsler who promoted judicial self-restraint.

Canada’s living-tree metaphor

An expert on Canada’s judiciary says that approach is mostly shunned north of the border. Emmett Macfarlane says the quasi-consensus in Canadian law schools and courtrooms is that legal texts should be reinterpreted to fit the times.

“You’d never have a Canadian Supreme Court judge refer to themselves as an originalist,” said Macfarlane, a professor at the University of Waterloo and author of “Governing from the Bench: The Supreme Court of Canada and the Judicial Role.”

“Law schools in Canada are homogenously moderate-to-left-of-centre … there’s less ideological diversity.”

Canada’s dominant theory uses the living-tree metaphor—constitutions should grow with time, and be reinterpreted through contemporary eyes.

The living-tree metaphor comes from a landmark 1929 decision that granted Canadian women status as people.

The living-tree metaphor comes from a landmark 1929 decision that granted Canadian women status as people. The British Privy Council cited the writings of former prime minister Robert Borden and said: “The (1867 Constitution) planted in Canada a living tree capable of growth and expansion.”

For Scalia, that kind of decision-making was undemocratic and tyrannical. But Scalia and his dad could take heart—even in Canadian rulings, there are traces of the originalist method.

One example is a 1994 case involving drinking-and-driving. A more recent case involved the eligibility of Marc Nadon to sit on the Supreme Court. The verdict examined parliamentary debates from 1875 leading to the Supreme Court Act.

Adam Dodek of the University of Ottawa says one of the best-known liberals on Canada’s Supreme Court consistently used originalism.

In rights-expanding rulings of the 1980s and ’90s, Bertha Wilson leaned on one stated intention of the framers of the 1982 Constitution—that judges have latitude to interpret rights, says Dodek.

Two reported originalists on the Ontario Court of Appeal, appointed by former prime minister Stephen Harper, have even argued it was the dominant philosophy of Canadian legal thinking until the time of former prime minister Pierre Trudeau.

In writings before they became judges, Grant Huscroft and Bradley Miller argued that the 1929 living-tree reference had gathered dust until it was later misinterpreted and abused by a later generation of jurists.

Uniquely American phenomenon?

Americans have their own debates about the origins of originalism.

Jack Balkin of Yale says it’s a recent, uniquely American phenomenon. He says mid-century conservatives rebelled against big government and Roosevelt’s New Deal, seizing upon the country’s special reverence for that founding generation that overthrew British rule and wrote the Constitution.

But in a retort, George Mason University’s Ilya Somin said many countries’ jurists seek clues for original intention.

Somin also argued that originalism goes way back, pointing to one of the most disgraceful moments in American history: the 1857 Dred Scott decision, where the Supreme Court quoted the Founding Fathers and agreed African-Americans were non-citizens and undeserving of human rights.

Scalia was often confronted with such examples—and with his own contradictions. Legal scholars pointed to his approval of search-and-seizure policing that might have mortified the founders.

“My burden is not to show that originalism is perfect,” Scalia once said. “But … it beats the other alternatives, and that, believe me, is not difficult.”

From The Canadian Press