Bradley W. Miller (University of Western Ontario – Faculty of Law) has posted Origin Myth: The Persons Case, the Living Tree, and the New Originalism (THE CHALLENGE OF ORIGINALISM, G. Huscroft, B. Miller eds., Cambridge University Press, 2011) on SSRN. Here is the abstract:
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‘Originalist constitutional interpretation is fundamentally incompatible with 80 years of Canadian jurisprudence.’ This statement would command nearly universal agreement from Canadian judges, lawyers, and law professors. But it rests on both an inadequate engagement with originalist theory and a fundamental misreading of a celebrated constitutional decision from the 1930s – the Persons Case.
In this paper, which was first prepared for a symposium on originalist constitutional theory hosted by the Public Law and Legal Philosophy Research Group at the University of Western Ontario, Faculty of Law in 2008, I examine the standard reading of the reasons for judgment of both the Supreme Court of Canada and the Privy Council (held to be the font of “living tree” constitutional interpretation in Canada), and come to the surprising conclusion that each judgment is best understood as originalist in method. The deeper question raised by this analysis is the extent to which contemporary Canadian constitutional interpretation (which relies on the Privy Council decision) is, in fact, incompatible with originalist constitutional interpretation.
Highly recommended.