Nourishing the Living Tree: Vincent MacDonald and His Constitutional Thought
Bibliographic record
Abstract
Since the enactment of the Canadian Charter of Rights and Freedoms, Canadian judges have increasingly approached the Constitution through a living constitutionalist lens, adapting the Constitution to contemporary realities and treating the text as but one interpretive modality alongside purpose and context. The Supreme Court has rooted this living constitutionalism in the Judicial Committee of the Privy Council’s judgment, Edwards v Attorney General of Canada, wherein Lord Sankey introduced the metaphor of the “living tree.” Justice Robert Sharpe and Professor Patricia McMahon have suggested that the “living tree metaphor remained a forgotten footnote until 1982.” Indeed, more formalist approaches towards both constitutional and statutory interpretation endured well into the 20th century. In this article, I argue that Vincent MacDonald, who served, inter alia, as Dean of Dalhousie Law School and then as a Justice of the Supreme Court of Nova Scotia, did much to keep living constitutionalism alive during the mid-20th century. Drawing on MacDonald’s published writings and jurisprudence as well as on a wealth of archival sources, I argue that MacDonald articulated and implemented a robust vision of living constitutionalism at a time when many of his peers advocated for a return to the original intentions of the Fathers of Confederation. MacDonald advocated for a type of living constitutionalism known as common law constitutionalism, based upon respect for precedent, recognition of judicial discretion, and appreciation for clear legal reasoning. In laying out the tenets of MacDonald’s constitutional thought and contrasting his thought with that of his contemporaries, I complicate the existing narrative on Canada’s 20th century constitutional development.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.009 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.014 | 0.040 |
| Scholarly communication | 0.011 | 0.006 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.005 | 0.011 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".