Persons Day

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.

This is from an interesting Linda Greenhouse piece on "Persons Day" (10/18) in Canada, which honors a ruling that determined that women were "persons" for purposes of  eligibility to serve in the Canadian Senate.*  It can also be -- as Linda Greenhouse clearly means to do -- seen as as honoring living constitutionalism.  Scalia v. Kennedy is discussed here, but as the piece suggests, Scalia's brand of "originalism" (see, e.g., Shelby) leaves a lot to be desired even if we take it as a credible approach.

Repeatedly, I have seen this being sneered at (up to Justice Scalia) as akin to making shit up.  But, what I and others have called a type of "common law" constitutionalism to me honors not only overall republican / democratic values, but the true spirit of the founders. As Chief Justice Marshall noted, if for the purposes of determining the contours of the "necessary" and "proper" means of carrying out congressional powers:

Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Yes, the Constitution is "living" -- it "endures."  Why wouldn't it? If we look at how it actually was crafted, play in the joints was the very point:

In the draught of a fundamental constitution, two things deserve attention:

    1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

        2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

Just what "interstate commerce" entails or "equal protection" would be a matter of fact and analysis that is determined by current understandings based on the wisdom gained from experience. The application will be done by the various institutions set up or referenced by the document -- the three branches of the federal government, the states, the people, the press, religious groups and so forth.  They will in some fashion be limited by those "essential principles" and "general propositions," but just what they mean -- the individual branches of the tree -- is not set. When the document makers wanted to remove such a thing, they used more specific language, such as the age required to be a President or senator. This doesn't answer specifically how the courts should operate, such as when to determine popularly passed laws should be declared unconstitutional.

The basic principle, even when applied in a system where parliamentary supremacy gives more complete power to the legislature (and thus if anything might warrant more judicial restraint, given legislatures can "update" as necessary), is shown here as being of long standing. A ruling in the 1920s is just one sign of many that the approach is not some latter day means to "make shit up" but to faithfully apply the law.

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*  One issue here was the common law principle in place at the time that held "women were eligible for pains and penalties, but not rights and privileges." The inequity of this can be seen and it also influenced the women's right movement in this country. Citizenship brings with it both duties and benefits, equal rights feminism respecting both.