Reclaiming the Natural Law for a 21st Century Constitutionalism

One major problem plaguing current constitutionalism is one that has never gone away, to this day unresolved: how should constitutions be interpreted? It is a problem because the options historically given ask that a balance be struck between two values: on the one hand a formalist account, respecting the separation of powers and proceduralism, recognizing that it is not the judges’ role to legislate from the bench, leading to greater stability and certainty, and on the other hand, the fading authority of old legislation enacted by members of much earlier generations, generating an interest if not a necessity for change, adapted to the new reality. In North America, the two main approaches to constitutional interpretation striking their balance in a distinctive way are textualism, which includes originalism, and living constitutionalism (US) or the “living tree” doctrine (Canada).

While living constitutionalism has been the dominant approach from the second part of the 20th Century and onwards, especially in Canada, originalism has managed in more recent years to make a significant impact on constitutional interpretation. Originalism’s increasing prevalence is undeniable, with Amy Coney Barrett now seating as justice to the Supreme Court, it arguably is the dominating view at the highest courts in the United-States. For its part, Canada has a long way to go, yet shows a resurgence of scholarship and case law on originalism. With the Bostock decision in which Gorsuch J. used originalist reasoning to provide individuals’ sexual orientation or gender identity protection under Title VII of the Civil Rights Act of 1964, a new movement has emerged. It was initiated by Adrian Vermeule in his article “Beyond Originalism”, in which he argues in favour of using “common good constitutionalism” instead of originalism in deciding cases, and picked up by Josh Hammer who advanced himself the “common good originalism”  method in trying to rescue originalism from itself by integrating classical notions that haven’t appeared in constitutional discourse for a long time. Vermeule and Hammer propose two different things. Vermeule seems to defend a Dworkinian approach infused with natural law and classical law principles. Hammer wants to integrate natural law notions at the construction zone to give the text it’s true meaning, doing away were mere literalism that stales current textualism.

Both approaches are ways to reclaim the natural law tradition, which infused and still infuse our Western constitutions and give them meaning, whether we forgot about it or not. There is also a third way, that is to bring back a teleological view of law, and to look for the legislative intent, a view defended by Richard Ekins. This view may be more apt to solve the issues that current textualism/originalism are grappling with, and seemingly fits much better within the Canadian constitutional framework at least. I suspect this is a shared experience with the UK, although my focus here is North America. In this paper, I want to explain the three versions of incorporating the common good in constitutional interpretation, and subject to clarification by Vermeule, explain why the third option seems the best approach, at least in Canada. In some way, reclaiming natural law theory, and the common good, in interpreting constitutions, is about rehabilitating the oft-abused “purposivism” method by going by to its classical roots.