Linda Greenhouse, in the NYTimes:
This Friday is Persons Day in Canada, a special day on the country’s calendar that commemorates, of all things, a judicial decision. It was on Oct. 18, 1929, that the Privy Council, a court in London that served then as the highest appeals court for Canada, declared women to come within the definition of “persons” in Canada’s basic law, thus qualifying them for appointment to the national Senate. It was, Beverley McLachlin, the chief justice of Canada, said in a speech earlier this year, “the beginning of a rights revolution that would transform Canadian society.” …
First, a bit of history. The British North America Act, a law from 1867 that served as Canada’s constitution, provided for the appointment of “qualified persons” to the Senate. In the 1920s, with a growing feminist spirit abroad in the land, women had the temerity to assume that “qualified persons” might include them. When Emily Murphy, a leading feminist who was a judge in Alberta, sought an appointment, the prime minister turned her down on the ground that women were not “persons” within the meaning of the law.
Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”
The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”
The five women then appealed to the Judicial Committee of the Privy Council in London, which as a vestige of empire served until 1949 as Canada’s court of last result. There the outcome was different. A newly appointed Lord Chancellor, John Sankey, rejected the originalist approach. It was wrong, he wrote in the 1929 decision, “to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well….
Three cheers for Canada! Those of us on the other side of the border should be so lucky in our activist judges:
…For years, Justice Scalia liked to amuse himself and startle listeners by proclaiming that his Constitution wasn’t living, but “dead.” I heard this myself on several occasions. Recently, he’s softened his tone a bit to explain that by “dead” he doesn’t mean expired but rather “enduring” as opposed to “morphing” or “changing.” No matter. If Justice Scalia’s Constitution was a tree, it would be part of a petrified forest….
Early Morning Open Thread: “A Living Tree”Post + Comments (28)