Linda Greenhouse: A Tree Grows in Canada (and Are Women “Persons”?)

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.

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The “American People” and ObamaCare

The “American People” and ObamaCare

I find it interesting to hear all the media pundits claiming that the “American People” are against a government shut-down and blame Republicans for using ObamaCare as a negotiation tool.

If the States that are united were founded on a principle of a consolidated nation, where a “National” government ruled over them, then it is possible the pundits may have it correct. However, that is not how the founding generation envisioned our union of States. We are made up of individual and sovereign entities that united to form a more perfect union. These States then delegated certain limited authority to the Federal government. It was very clear to nearly everyone involved that the States would retain the majority of their sovereign powers. This is one of the reasons that the Tenth Amendment was inserted into the Bill of Rights. What does it say?:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Who were those people? The people of the individual States, not the people of a giant conglomerate. If any self-respecting news journalist or historian for that matter, would take the time to read the debates of the several States during their ratifying process they would then understand the principle.

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Originalism and the Supreme Court’s 2013 Term

At the National Constitution Center’s “Constitution Daily” blog, Doug Kendall and Tom Donnelly (Constitutional Accountability Center): Big Battles Brewing over the Constitution’s Original Meaning.  From the introduction: For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a “living Constitution,” while conservatives claimed fidelity to originalism. In recent terms, however, this dynamic…

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Marco Simons on Originalism and Daimler v. Bauman

At Concurring Opinions, Marco Simons (EarthRights International) has this post on the Daimler v. Bauman case (argued at the Supreme Court 10/15):  Is There a Constitutional Right to Corporate Separateness?  Mr. Simons and I have been on opposite sides of some cases in the past, but I think there is something to his originalist argument here: The Ninth Circuit…

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