05062014_duty-bound-to-interpose

Jefferson and Madison on the Role of the Federal Courts

Today, it is commonly accepted that the U.S. Supreme Court has the sole and final say as to whether or not a federal law is constitutional (after it winds through the lower federal courts).  Recently, for example, the Court upheld the Affordable Care Act as constitutional under the auspices that the individual mandate is a tax.  This commonly accepted notion is wrong.

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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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