A Tree Grows in Canada
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.
.. 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.
.. “You have to recognize that if the framers knew all the specifics of a just society, they would have written them down,” Justice Kennedy told Jess Bravin of The Wall Street Journal in an appearance earlier this month at the University of California’s Washington Center. The Constitution’s framers, the justice said, “used words that appeal over time to our sense of justice and our sense of freedom.”
.. And the Voting Rights Act decision, as Professor Johnsen goes on to point out, was likewise the opposite of originalist, rejecting the court’s longstanding deference to the role of Congress in enforcing the 15th Amendment’s guarantee of the right to vote.