Andy Yu (University of Western Ontario) has posted Constitutional Statutes are ‘Always Speaking’ (Osgoode Hall Law Journal (forthcoming)) on SSRN. Here is the abstract:
Canada’s approach to constitutional interpretation remains the “living tree” approach, which the Privy Council established almost a century ago in the Persons Case. But commentators in recent years have challenged the approach for being unclear and questioned its proper place in doctrine. In this article, I seek to vindicate the approach by proposing that constitutional statutes are “always speaking”, a proposal which I suggest clarifies the approach and explains its proper place in doctrine. Although underexplored as a principle for interpreting constitutional statutes, the principle that statutes are “always speaking” is well established as a principle for interpreting ordinary statutes. On my account, statutory language is generally “always speaking”, and statutory language that is “always speaking” expresses a dynamic concept rather than a static concept. I use my account to suggest that this general principle of statutory interpretation manifests itself as the “living tree” approach in constitutional interpretation. The principle governs statutory interpretation in general, so it governs the interpretation of constitutional statutes in particular. In addition to using my account to explain how the principle vindicates the “living tree” approach, I use the account to answer two open questions about the approach. First, how are the “living tree” and purposive approaches to constitutional interpretation related? I explain that the modern principle of statutory interpretation manifests itself as the purposive approach in constitutional interpretation. Just as the “always speaking” and modern principles work together, the “living tree” and purposive approaches work together. Second, to what extent is the “living tree” approach compatible with “originalism”? I explain that the “original meaning” principle of statutory interpretation manifests itself as “originalism” in constitutional interpretation. Just as there is a consistent reading of the “always speaking” and “original meaning” principles, there is a consistent reading of the “living tree” and “originalist” approaches.
Recommended.