In The New York Times, Linda Greenhouse has an anti-originalist column A Tree Grows in Canada – with some interesting Canadian history. As she explains, the British North America Act (effectively Canada’s original constitution) provided for “qualified persons” to be appointed to the Senate. When a woman, Judge Emily Murphy, sought appointment, she was rejected because (it was said) women did not qualify as “persons.” As Greenhouse continues the story:
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.”
Based on this, Greenhouse doesn’t understand originalism, and neither did Chief Justice Anglin (about whom I otherwise know nothing). The decision is silly, and no modern originalist would follow it, nor would it warm anyone’s heart on the current Court. It’s possible (even likely) that the drafters of the Act only had only men in mind as Senators. But they did not write “men,” as they easily could have. (Voting laws of the time typically referred to “male” citizens, for example). They wrote “persons.” In 1867, I cannot imagine that in any ordinary legal language, in Britain or Canada, ”persons” meant “only male persons.” A word in a statute should be given its ordinary public meaning, regardless of subjective intentions harbored by its drafters.
This is a core and crucial distinction between text-based originalism, as understood by most modern originalists, and an untethered search for “intent” (which is often a false target of nonoriginalists, but sometimes a strategy for getting the text to say something it manifestly does not). That Greenhouse — a sophisticated writer about the Supreme Court — does not understand this is somewhat troubling.
Fortunately for Greenhouse, the story has a happy ending:
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.
As she recounts, the “living tree” metaphor eventually took hold in Canadian jurisprudence, and it sometimes makes an appearance in U.S. commentary.
My view is that originalists should contest the living tree metaphor. (It’s a bit unfortunate that Justice Scalia was once given to joking that the Constitution was “dead,” because that allows opinion writers to make all sorts of tired commentary levered off his remark, as Greenhouse doesn’t fail to do). Why isn’t a tree more like an originalist conception of the Constitution? A tree is rooted in one place; has a core central trunk that holds firm its main shape; and changes its outer bounds only incrementally. Similarly originalist interpretation is rooted and fixed to a core shape — but it can hardly be said that it doesn’t change. The text doesn’t change (except by amendment), but the whole body of constitutional law does: application of the text develops as ambiguities are discovered and explored, new policy initiatives are tested, and new technologies invented. Constitutional law, under an originalist conception, would look different today than it did at the outset because of these changes in application. The “dead” Constitution is a strawman.
Living constitutionalism, as commonly practiced, lacks the tree’s roots, central trunk and largely constant shape. Perhaps a better metaphor would be a vine, sprawling and spreading with little connection to its origins. I think most originalists would be happy if constitutional law were more tree-like.
(Thanks to Michael Perry for the pointer).
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.