Public Prayer and the Constitution: A Case Study in Constitutional Interpretation

Abstract This paper starts with a general contextualisation of how Canadian constitutional law acquired an important role in global constitutional conversations in recent decades. It then considers, in particular, the well-known Canadian Living tree doctrine as a model of evolutionary constitutional interpretation, and argues that it is a relevant case study for our purposes since it is able to precisely link the ‘history, evolution, influence and reform’ of constitutional law in a comprehensive doctrine. The doctrine's comparative influence will be analysed in particular: the Living tree is especially relevant, since its comparative influence is traceable both in the work of courts that are historical participants in transnational judicial conversations, and courts that are new players in the game.

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Public Prayer and the Constitution: A Case Study in Constitutional Interpretation

Political Science Quarterly ◽

10.2307/2151309 ◽

1987 ◽

Vol 102 (4) ◽

pp. 674

Author(s):

Burke Marshall ◽

Rodney K. Smith

Keyword(s):

Constitutional Interpretation

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The Role of History in Constitutional Interpretation: A Case Study

10.31228/osf.io/ftw68 ◽

2018 ◽

Author(s):

Gary J. Simson

Keyword(s):

Constitutional Interpretation

70 Cornell Law Review 253 (1985)

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When Constitutional Theories Migrate: A Case Study

The American Journal of Comparative Law ◽

10.1093/ajcl/avz013 ◽

2019 ◽

Vol 67 (2) ◽

pp. 281-326

Author(s):

Claudia Geiringer

Keyword(s):

New Zealand ◽

Legal System ◽

Comparative Law ◽

Constitutional Theory ◽

Constitutional Interpretation ◽

Bill Of Rights ◽

Globalized World ◽

Institutional Mechanism

Abstract The last decade or so has witnessed a burgeoning of literature on the role of cross-jurisdictional influences in the design (as well as subsequent interpretation) of national constitutions. The consensus emerging from that literature is that transnational borrowing in the course of constitution making is both inevitable and impossible. In a globalized world, those involved in the design of a new constitution naturally look beyond their borders for inspiration. Borrowing is thus endemic. But borrowing, in any true sense, is also impossible because in the process of migration, constitutional ideas must be de- and then recontextualized in order to fit them for the new legal system. What, though, if the object of transnational influence is not a constitutional text or an institutional mechanism but, rather, a scholarly theory? That is the question addressed by this Article. Specifically, the Article examines the intriguing (and little known) story of how John Hart Ely’s representation-reinforcing theory of (American) constitutional interpretation was transformed into a blueprint for the design of the New Zealand Bill of Rights Act. It suggests that Ely’s journey to the South Pacific has the potential to illuminate both the study of constitutional migration generally and, more specifically, the linkages between comparative law and constitutional theory.

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