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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part VI Constitutional Theory, A Constitutional Interpretation, Ch.42 The Living Tree

W.J. Waluchow

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

This chapter addresses two common beliefs: (1) that the Canadian Constitution is a living tree, subject to evolution in light of changing circumstances and developing moral and political beliefs; and (2) that the view expressed in (1) stands in sharp contrast with American-style originalism, a family of theories according to which, absent formal amendment, the meaning of a constitution is the meaning it had at the time of its adoption. This chapter elaborates on (1) and challenges (2), highlighting both (3) the extent to which Canadian courts view their evolving constitution as nevertheless rooted in original understandings, intentions and purposes; and (4) the fact that many contemporary originalists embrace a moderate version of their theory that allows for a healthy degree of evolution via the process contemporary originalists call constitutional construction.

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