Wednesday, October 14, 2020

What an Original thought about Constitutional "Originalists"

 I have never understood American "originalist" legal theorists like Amy Coney Barrett and other "strict reading" constitutionalists who believe the American Constitution is forever perfect and can never be re-interpreted by the courts to meet modern challenges. 

Canada has them too, generally on the right who decry "judge-made law" and courts interpreting Charter protections to address emerging social realities.
For the "originalists" like Amy Coney Barrett who believe that the American Constitution is perfect and forever frozen in amber (never mind that slavery thing, or women voting), the best critique is actually from an "original" - Thomas Jefferson, founding father and primary author of the Declaration of Independence, who wrote in 1816 the following:
"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors..."
"By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure."

By the way, some of the above was considered so important that it appears on the wall of the Jefferson Memorial.

In Canada, our Constitution (and Charter of Rights, which is part of the Canadian Constitution) has been interpreted more expansively since the 1929 "Persons Case", where Lord Sankey ruled: "The British North America Act planted in Canada [is] a living tree capable of growth and expansion within its natural limits." 
The "living tree" doctrine has ruled our constitutional interpretation since. Conservatives have preferred the "frozen concepts" (originalism) doctrine, but in the 2004 "same sex marriage" case, the Supreme Court of Canada stated:
"The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life."