Personal Statement Question: Is mentioning an interest in originalism too edgy?

[atticus115]

In my undergrad, I had the privilege of learning about originalism as an alternative to the living tree doctrine of constitutional interpretation. I understand that there are various originalist schools of thought, but I found myself siding with the originalist arguments I encountered throughout the course of my study; the originalism/living tree debate is one that I would like to learn more about and contribute to in law school. Would anybody be willing to let me know whether admissons committees might view this very small aspect of my personal statement in a positive light, or might the heterodoxy of originalism in Canadian law lead admissions committees to disregard my application? 

Thank you for reading my question. 

[CleanHands]

This "debate" is not a thing in Canada and there is definitely no debate about it taking place in Canadian law schools. You will be taught in law school that the living tree doctrine is the accepted approach to constitutional interpretation in Canada and this is well-settled law. So you will look like a tool if you put that in your personal statement.

ETA - I should concede that there are a few contrarian "actually the SCC never really explicitly rejected originalism as defined in this particular way" academic articles out there and such so maybe it's an overstatement to say there is no debate whatsoever about this in Canada. However generally speaking it's really not a source of significant debate or controversy, there is a clear prevailing consensus opinion here, there is nearly 100 years of SCC jurisprudence repeatedly endorsing and adopting the living tree approach, and in law school students are simply taught that that is the accepted approach in Canada and it's possible to get a JD in this country without ever even hearing the term "originalism" because it's so irrelevant here.

Edited October 31, 2021 by CleanHands

[atticus115]

35 minutes ago, CleanHands said:

This "debate" is not a thing in Canada and there is definitely no debate about it taking place in Canadian law schools. You will be taught in law school that the living tree doctrine is the accepted approach to constitutional interpretation in Canada and this is well-settled law. So you will look like a tool if you put that in your personal statement.

I appreciate your feedback and sincerely appreciate your response. I understand your sentiment about the living tree being the norm in Canadian legal education, which is why I was hesitant to mention to mention it at all, so I'm glad I asked. However, I respectfully disagree with your claim that the "'debate' is not a thing in Canada." Here are some examples of legal scholarship on the debate. 

Miller, B. W., & Huscroft, G. (2011). The Challenge of Originalism : Theories of Constitutional Interpretation. Cambridge University Press.

Froc, K. A., & Marin, M. (2019). The Supreme Court's Strange Brew: History, Federalism and Anti-Originalism in Comeau. University of New Brunswick Law Journal, 70, 297-332.

Morley, J. (2016). Dead hands, living trees, historic compromises: The senate reform and supreme court act references bring the originalism debate to canada. Osgoode Hall Law Journal, 53(3), 745-798.

Sirota, L. & Oliphant, B. (2017). Originalist reasoning in Canadian constitutional jurisprudence. U.B.C. Law Review, 50(2), 505-578.

Edited October 31, 2021 by atticus115

[CleanHands]

12 minutes ago, atticus115 said:

-Snip-

I edited my post because I realized I probably should have tempered what I wrote slightly. But only very slightly.

"Disagree" all you want (and I edited my post because admittedly there is a fair disagreement to be had about quite how categorically I put it), but if you think "the originalism/living tree debate" is something that you can expect to "learn more about and contribute to in law school," you're just objectively wrong about that. I have a JD. In public law we were just taught that the living tree approach was the accepted approach to constitutional interpretation, full stop. Originalism was literally not even mentioned. There was no "debate." No criticism or alternate views were presented. We were just told what the law is. And the law on this particular topic is much less ambiguous and evolving, and much more entrenched, than the vast majority of Canadian law is (like I said, nearly 100 years of continuous jurisprudence going in one direction).

And your OP betrays a fundamental misunderstanding of what law school is like. Law school is a trade school. You are going to be taught what the law is so that you can apply it as a lawyer. Outside of a select few classes like jurisprudence, in law school there is almost nothing in the way of high-minded philosophical debates about what the law should be. You will be given a ton of information about what the state of the law is that you have to uncritically cram and internalize so you can vomit it all onto the page quickly during exams. If you put that in your statement you won't just risk looking like you have fringe views (which is a legitimate concern that you were appropriately cognizant of), but also looking like you think law school is more like a graduate philosophy program than the trade school that it is.

Edited October 31, 2021 by CleanHands

[atticus115]

7 minutes ago, CleanHands said:

I edited my post because I realized I probably should have tempered what I wrote slightly. But only very slightly.

"Disagree" all you want (and I edited my post because admittedly there is a fair disagreement to be had about quite how categorically I put it), but if you think "the originalism/living tree debate" is something that you can expect to "learn more about and contribute to in law school," you're just objectively wrong about that. I have a JD. In public law we were just taught that the living tree approach was the accepted approach to constitutional interpretation, full stop. Originalism was not even mentioned. There was not debate. There was no criticism or alternate views. We were just told what the law is. And the law on this particular topic is much less ambiguous and evolving than the vast majority of Canadian law is (like I said, nearly 100 years of continuous jurisprudence going in one direction).

And your OP betrays a fundamental misunderstanding of what law school is like. Law school is a trade school. You are going to be taught what the law is so that you can apply it as a lawyer. Outside of a select few classes like jurisprudence, in law school there is almost nothing in the way of high-minded philosophical debates about what the law should be. You will be given a ton of information about what the state of the law is that you have to uncritically cram and internalize so you can vomit it all onto the page quickly during exams.

Thank you for these helpful comments and for tempering my expectations of what law school is like. I now have a better idea of what to expect. Cheers!

Edited October 31, 2021 by atticus115

[Darth Vader]

This is the first I've heard of originalism - or if I heard it before, it was not important enough for me to remember. I graduated from law school in Canada. OP, take from that what you will. If you are hoping to have debates about law, ethics, and philosophy in law school, you are going to be very disappointed. 

[CleanHands]

5 minutes ago, atticus115 said:

Thank you for these helpful comments and for tempering my expectations of what law school is like. I now have a better idea of what to expect. Cheers!

No worries. Honestly law school wasn't what I expected myself in that respect; it's very uncritical and with little room for debate or creativity--you are just given the existing framework and you have to apply it. In retrospect, that makes sense as a matter of practical training and also particularly in 1L there is simply too much information to absorb and no time to pontificate about what possible alternatives could be better.

I will say I haven't gone beyond the JD myself but I imagine the kind of subject matter you're talking about could be the kind of thing one could tackle in a graduate law program, if you are still super keen on it after getting a JD and not totally sick of school by then. 😛

Edited October 31, 2021 by CleanHands

[BlockedQuebecois]

I know CleanHands has tempered your expectations of what law school is like, and that may have swayed you on this. But I think it’s worth pointing out why mentioning this is a bad idea even if you assume your application would be read by law profs, who do love the high minded side of law. The easiest way to do that is to summarize what each of the secondary sources you referred to actually say: 

Quote

Theories of Constitutional Interpretation

This source is really about American originalism. From my recollection, the Canadian contributions were critiques of American originalism from the perspective of a country where originalism is nearly uniformly rejected. 

3 hours ago, atticus115 said:

The Supreme Court's Strange Brew: History, Federalism and Anti-Originalism in Comeau

This source is about how the Court relied on stare decisis to reject an updated approach to originalism. The abstract quite literally says originalists, like beer enthusiasts, did not have reason to celebrate the Comeau decision.

3 hours ago, atticus115 said:

Dead hands, living trees, historic compromises: The senate reform and supreme court act references bring the originalism debate to canada

The conclusion of this article states:

”The Court’s own methodological reflections on what it was doing are terse. In both cases, it claimed it was engaging in “broad and purposive” interpretation, informed by understanding the “linguistic, philosophic and historical context” of the Constitution.271 Both decisions referred specifically to Edwards,272 although the Court did not explicitly use the “living tree” metaphor. It would be claiming too much to say that the SCC’s focus on the history of enactment in these two References vindicates the descriptive-originalist claim that SCC judges have been new originalists all along without knowing it. It is possible to interpret the SCC’s use of history in purely pluralist terms.”

At it’s heart, this article is about how there is some amount of originalism inherent even in the living tree approach to constitutional interpretation, particularly where analysing the non-Charter parts of the constitution. Which is true—part of statutory interpretation is a purposive reading of the text, and a purposive reading necessarily carries with it some amount of originalism. 

But the author rightly stops short of asserting this is actually originalism in disguise. They instead argue originalism could act as a future framework for when to import historical information into constitutional interpretation (to which I would respond that we already have a perfectly fine framework). 

3 hours ago, atticus115 said:

Originalist reasoning in Canadian constitutional jurisprudence

This paper essentially argues that originalism has developed since it was declared dead in Canada, and now there are schools of originalist thought that match up with the living tree approach. That’s true, but it doesn’t mean the living tree approach is originalist, it means some “originalist” schools have adopted some of the key components of the living tree approach. 

Importantly, the three categories of cases they identify as containing “originalist” reasoning are division of power, historical compromise, and superior court jurisdiction cases. Why is that important? For the reason stated above in relation to the last case: part of statutory interpretation is a purposive reading of the text, and a purposive reading necessarily carries with it some amount of originalism.

 

I will concede that some of these pieces suggest originalism isn’t fully dead in Canada. But it is telling how far off the actual content of each is from arguing originalism is a force in Canadian jurisprudence.

Not only that, but these are all academic articles. I know that as an undergraduate you likely have a high opinion of academic articles, but they are not the principle source of knowledge in law. Decisions are. And each article recognises that originalism has been roundly rejected in Canadian jurisprudence. They, at best, argue that courts should consider modern originalist schools of thought in the future because those schools of though have developed to match what Canadian courts have been doing for a century. 

All of which is to say, it would not be edgy to mention originalism in your personal statement, but it would be cringey.  

Edited October 31, 2021 by BlockedQuebecois

[123]

13 hours ago, CleanHands said:

No worries. Honestly law school wasn't what I expected myself in that respect; it's very uncritical and with little room for debate or creativity--you are just given the existing framework and you have to apply it. In retrospect, that makes sense as a matter of practical training and also particularly in 1L there is simply too much information to absorb and no time to pontificate about what possible alternatives could be better.

 

I agree that law school was pretty intellectually narrow. But FWIW, my con law prof actually did lead a debate on originalism. It ended up being pretty clear that originalism is not a viable doctrine in Canada, but we were given time to pontificate, even if there wasn't a lot to pontificate on.

My thought, which might very well be wrong, is that originalism would be totally unviable in Canada, because we didn't have a moment of constitutional origin. We don't have a bunch of founding fathers who developed a set of relatively well-articulated (if not entirely coherent and logical) constitutional doctrines to interpret. We have a mishmash of the two main acts, other proclamations and bills, British law, and unwritten principles and convention over the course of centuries. It's pretty hard to apply originalist beliefs, when we can barely figure out when the origin was. I imagine that's why we have a relatively undisputed living tree doctrine. Because our constitution was actually built piecemeal over time, and not in any single act or set of acts.