Dead Hands, Living Trees, Historic Compromises: The Senate Reform and Supreme Court Act References Bring the Originalism Debate to Canada

Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to originalism—and never positively. But in two 2014 decisions about how central institutions of government—the Senate and the Supreme Court of Canada itself—might be changed, the Court relied on the underlying historic political compromises to interpret the Constitution, rejecting arguments from the text or democratic principle. In this article, I consider how Canadian courts have looked to history in the past and in the 2014 decisions, and I situate their approach within contemporary theories of originalism