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Scalia: Where his legal originalism came from, and whether it exists in Canada

Last Updated Feb 16, 2016 at 8:40 am EST

U.S. Supreme Court Justice Antonin Scalia speaks during a news conference in New York in this Saturday, Oct. 8, 2005 file photo. Scalia helped reshape the American judiciary with a philosophy that had multiple influences. THE CANADIAN PRESS/AP/Chad Rachman

WASHINGTON – One of the earliest influences on Antonin Scalia was a Sicilian-born father who applied a particular philosophy to the scholarly task of translating poems from Italian: Learn the original poet’s point-of-view, and don’t muck it up with new ideas.

A biographer of the just-deceased Supreme Court justice cites his father as one of several sources for the philosophy that helped Scalia shape American legal history.

The biography, ”Scalia: A Court of One,” quotes the elder Salvatore Eugene Scalia, a scholar of romance languages, warning fellow translators against covering old meaning in shiny linguistic paint.

“(The translator’s) most eminent quality is the rare faculty of reproducing the lyric vision of a poet,” the elder Scalia is quoted writing.

”He must always seek to transfer bodily the image from one language into another without sacrifice of glow or warmth, and not attempt to reconstruct it with dictionary in hand.”

It’s like a manifesto for judicial originalism. Scalia brought that legal philosophy from the margins to the forefront of American civic life, based on the belief that modern-day judges should hew as closely to the U.S. Constitution as it would have been understood by the public in the 18th century.

Biographer Bruce Murphy cites several influences on the judge, including his dad. Others were Scalia’s deep religious faith, and frustration over the 1960s modernizing and abandoment of Latin-language mass by the Catholic Church.

Finally, as an editor of the Harvard Law Review in the 1950s, Scalia was exposed to emerging conservative writers like William F. Buckley and legal thinkers like Herbert Wechsler who promoted judicial self-restraint.

He stewed over the perceived activism of an Earl Warren Supreme Court that approved abortion; de-segregated schools in a decision Scalia said he supported, but found flawed; and affirmed rights for criminal suspects.

Scalia helped push back.

He was one of the original 1982 founders of the Federalist Society — the conservative legal group now flush with donations, and with 45,000 participants, 196 chapters in U.S. law schools, and three members on the Supreme Court.

In Canada, it has two chapters.

An expert on Canada’s judiciary says that approach is mostly shunned north of the border. Emmett Macfarlane says the quasi-consensus in Canadian law schools and courtrooms is that legal texts should be reinterpreted to fit the times.

”You’d never have a Canadian Supreme Court judge refer to themselves as an originalist,” said Macfarlane, a professor at the University of Waterloo and author of ”Governing from the Bench: The Supreme Court of Canada and the Judicial Role.”

”Law schools in Canada are homogenously moderate-to-left-of-centre… There’s less ideological diversity.”

Canada’s dominant theory uses the living-tree metaphor — constitutions should grow with time, and be reinterpreted through contemporary eyes. Same-sex marriage is a textbook example. The Charter of Rights guaranteed equality based on religion, race and sex — courts later extended that to sexuality and marriage.

The living-tree metaphor comes from a landmark 1929 decision that granted Canadian women status as people. The British Privy Council cited the writings of former prime minister Robert Borden and said: ”The (1867 Constitution) planted in Canada a living tree capable of growth and expansion.”

To Scalia, that kind of decision-making is undemocratic and tyrannical. But Scalia and his dad could take heart — even in Canadian rulings, there are traces of the originalist method.

One example is a 1994 case involving drinking-and-driving. A more recent case involved the eligibility of Marc Nadon to sit on the Supreme Court. The verdict examined parliamentary debates from 1875 leading to the Supreme Court Act.

”The Supreme Court does dabble in originalism — and probably more than Canadians might realize,” Macfarlane said.

Another scholar says one of the best-known liberals on Canada’s Supreme Court consistently used originalism.

In rights-expanding rulings of the 1980s and ’90s, Bertha Wilson leaned on one stated intention of the framers of the 1982 Constitution — that judges have latitude to interpret rights, says Adam Dodek of the University of Ottawa.

Two reported originalists on the Ontario Court of Appeal, appointed by Stephen Harper, have even argued it was the dominant philosophy of Canadian legal thinking until Pierre Trudeau.

In writings before they became judges, Grant Huscroft and Bradley Miller argued that the 1929 living-tree reference had gathered dust until it was later misinterpreted and abused by a future generation of jurists.

Americans have their own debates about the origins of originalism.

Jack Balkin of Yale says it’s a recent, uniquely American phenomenon. He says mid-century conservatives rebelled against big government and Roosevelt’s New Deal, seizing upon the country’s special reverence for that founding generation that overthrew British rule and wrote the Constitution.

But in a retort, George Mason University’s Ilya Somin said many countries’ jurists seek clues for original intention.

He also argued that originalism goes way back, pointing to one of the most disgraceful moments in American history: the 1857 Dred Scott decision, where the Supreme Court quoted the Founding Fathers and agreed African-Americans were non-citizens and undeserving of human rights.

Scalia was often confronted with such examples — and with his own contradictions. Legal scholars pointed to his approval of search-and-seizure policing that might have mortified the founders.

”My burden is not to show that originalism is perfect,” Scalia once said.

”But … it beats the other alternatives, and that, believe me, is not difficult.”