Bobbitt’s Paradise: Canadian Constitutional Interpretation and Public Meaning Originalism

Abstract

Abstract: Bobbitt’s Paradise: l’interpretazione costituzionale canadese e il Public Meaning Originalism – In his testimony to Congress, Professor Solum has concisely set out the nature of, and justification for, his preferred method of constitutional interpretation: public meaning originalism.  In this reply, the author discusses the extent to which Professor Solum's ideas have found some purchase in Canadian courts. Despite the Supreme Court of Canada's clear commitment to interpreting the constitution like a "living tree", and apparent unanimity on the proper interpretive approach, this consensus may be only skin-deep. While Canadian courts appear to agree that every possible interpretive source may be consulted, they have not provided guidance on when certain considerations (such as text and history) should outweigh others (such as pragmatic considerations and contemporary values). Instead, the courts often appear to pick and choose between various sources or methods of interpretation, in any given case, according to sensibility and conscience. Through a review of the insights contained in Professor Solum's testimony, the author proposes some areas for reflection, and attempts to encourage some principled disagreements on the issue of constitutional interpretation in Canada.

Keywords: Constitutional interpretation, Living constitutionalism, Living tree, Originalism.