Linda Greenhouse, in the NYTimes:
This Friday is Persons Day in Canada, a special day on the country’s calendar that commemorates, of all things, a judicial decision. It was on Oct. 18, 1929, that the Privy Council, a court in London that served then as the highest appeals court for Canada, declared women to come within the definition of “persons” in Canada’s basic law, thus qualifying them for appointment to the national Senate. It was, Beverley McLachlin, the chief justice of Canada, said in a speech earlier this year, “the beginning of a rights revolution that would transform Canadian society.” …
First, a bit of history. 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.
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.”
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….
Three cheers for Canada! Those of us on the other side of the border should be so lucky in our activist judges:
…For years, Justice Scalia liked to amuse himself and startle listeners by proclaiming that his Constitution wasn’t living, but “dead.” I heard this myself on several occasions. Recently, he’s softened his tone a bit to explain that by “dead” he doesn’t mean expired but rather “enduring” as opposed to “morphing” or “changing.” No matter. If Justice Scalia’s Constitution was a tree, it would be part of a petrified forest….
TheMightyTrowel
Happy Friday, y’all. Have a great piece about vasectomies!
JONATHAN STACK: So I constructed the idea as a sort of band of brothers, men coming together for serve a greater purpose, that they would put their balls on the line for mother earth, meaning that we would actually make a sacrifice, that women make the sacrifice all the time.CAROLINE WINTER: A small sacrifice according to Doug Stein. He's given more than 30,000 men the snip so far and has no intention of slowing down.
What would you like your legacy to be?
DOUG STEIN: That I prevented as many unintended pregnancies as I could. It's a win for the man, win for the children that he already has, win for his partner, and win for his planet.
Joseph Nobles
Yes, that’s what irks me about the “originalist” interpretation of the Constitution: it binds us forever to the morality and ethical understanding of the people who wrote the original words — even when that doesn’t make sense. Who could think the writers of the 14th, 15th, and 16th Amendments, much less the rest of the document, meant to shackle future generations to their imperfect understanding of the human condition? Justice Scalia and those like him willing to ignore common sense, that’s who.
Mino
GOS has up a diary of Meryl Streep’s intro of HC at the Women in the World Conference.(http://www.dailykos.com/story/2013/10/18/1248523/-You-won-t-see-Hillary-Clinton-in-the-same-light-ever-again)
Interesting reading.
PurpleGirl
Justice Scalia, I don’t where you learned English, or from whom, but “enduring” is not the same “dead”. And you, sir, are an ass. *
AL — great musical selection for Person’s Day, which I didn’t know about. Thank you. One learns all kinds of stuff at BJ.
ETA: * One doesn’t want to be accused of incivility.
Sly
@Joseph Nobles:
For a harder nut to crack, figure out how a self-proclaimed Originalist like Scalia can support the idea of constitutionally-mandated desegregation when its impossible to argue that the original understanding of the 14th Amendment was that the equal protection clause eliminated all racial classifications.
He can’t even do it. At least not honestly.
Waldo
Our “dead” Constitution has outlived all but a handful of its official interpreters. I trust Fat Tony will be no exception.
Baud
@Joseph Nobles:
This, plus originalist judges tend to apply their philosophy only when it produces the results they desire.
Mustang Bobby
Well, then, Nino, if it’s not “dead,” then it’s “undead”? The Zombie Constitution?
NorthLeft12
As a Canadian, I think I would have been a lot happier if the Canadian Supreme Court had ruled in favour of the women, like the higher British Privy Council did.
Anyhoo, I am also celebrating this day and hopefully there will continue to be more like them in the future.
“No culture can live, if it attempts to be exclusive.” —- Gandhi
Shalimar
http://talkingpointsmemo.com/dc/lesson-learned-here-s-what-conservatives-are-taking-away-from-the-shutdown
The problem here is that Mulvaney and his fellow travelers would look at a group of starving people and solve the problem by closing all the city soup kitchens, because giving food away for free isn’t fair to those who pay for their meals. I don’t think they are going to connect with more people next time if they can just explain what they mean by fairness.
OzarkHillbilly
@Joseph Nobles:
No it doesn’t. All one has to do is amend the constitution. Something so easy to do it has been done 17 times in 226 years. Should be even easier in this time of peace and comity.
Ramalama
Ah such good comments for a laugh this morning. I flip my wig to you and yours on this fine personal day in beautiful downtown Canadia.
Sloane Ranger
Just a bit of background on this that might be interesting (or not).
The first woman to be elected to the Canadian House of Commons was Agnes Macphail, who was elected in 1921 and was the ONLY woman in that chamber for 14 years. If you have time, I recommend you read up on her, she’s an interesting character.
The first woman to be elected to the British House of Commons was Countess Constance Markievicz, who was elected in 1918 but did not take her seat as her party, Sinn Fein, had, and continues to have, a policy of contesting elections but not taking their seats.
The first woman to actually take her seat was American born Nancy Aster, who was elected as a Conservative by Plymouth and took her seat on 1 December 1919. She replaced her husband who had succeeded his father to a peerage and got bumped up to the House of Lords forcing a by-election as a consequence.
In making this decision about the Canadian Senate the Privy Council was actually taking a more radical approach than what was happening in Britain itself. The House of Lords didn’t vote to allow Peeresses in their own right (women who had inherited titles) to sit in the Lords until 1948 and legislation didn’t follow until 1958. Although an unsuccessful attempt had been made in 1922 which didn’t go anywhere due to the opposition of the then Lord Chancellor (the former F.E. Smith, a man so right wing he was in constant danger of falling off the edge of the world).
OzarkHillbilly
@Shalimar: If they are so concerned with fairness, where is the proposal to limit executive pay to the average pay for say, a line worker in a factory?
Elizabelle
@Sloane Ranger:
Lovely to see you here, and thanks for the info re Agnes MacPhail.
Epic last name for a politician, must say.
You will have noticed that many Americans are blissfully unaware of the rich history of their neighbor to the north.
Elizabelle
‘Fix the Debt’ reaches out on Twitter, gets massively trolled
Among twits back:
What’s more popular at your board luncheons? The blood of workers, or tears of seniors?
Global warming will reduce avail of ice floes on which to push the elderly out to sea. Does fix the debt support a carbon tax?
The only way to fix the debt is to throw even more money at billionaires. Because they don’t have all of it. Yet.
Are you finding success in obscuring income inequality with a trumped up generational war? #fixthedebtqa
And — the link is still open.
You know what you must do.
NotMax
A better role model than the first woman to serve in the U.S. Senate (her entire term of office lasted 24 hours), Rebecca Felton, who was vehemently and publicly pro-lynching and apparently lived in mortal terror of black men lusting after her lady parts, as well as being the last former slaveholder to be a senator.
Sloane Ranger
@Elizabelle:
Yeah, cool!
MomSense
Thread needs moar Biden!
http://www.youtube.com/watch?v=ddv7NtmKhxM
rikyrah
A New Poll Shows The Republican Party Has Completely Collapsed in Virginia
By: Sarah Jones
Thursday, October 17th, 2013, 8:11 pm
These numbers are astounding. Seventy-one percent of Independents in Virginia now view the Republican Party negatively. Just 23% don’t. Sixty-two percent overall have a negative view of the party. Yes, this is all about the shutdown, so heckofajob, Brownie Ted Cruz.
A new NBC4/NBC News/Marist poll shows the Republican Party collapsing in Virginia, a state deeply impacted by the government shutdown. Fifty-four percent blame Republicans for the shutdown, while just 31% blame President Obama.
Democrats face unfavorables of 45-50% and President Obama has favorables at 50-48%.
Thirty-nine percent said either they or a family member were affected by the shutdown. In fact, the shutdown stood to hit Virginia harder than any other state, a different survey by Wallet Hub, a financial website, found yesterday. The survey took into account “… the number of federal workers per capita and the amount of federal contract money per capita, both of which helped push Virginia to the top.”
http://www.politicususa.com/2013/10/17/poll-shows-republican-party-completely-collapsed-virginia.html
rikyrah
Judge Denounces His Own Ruling on the Constitutionality of Voter ID Laws
By: Adalia Woodbury
The Judge who wrote that the ruling that give Vote suppression laws legal cover admits he got it wrong. Judge Richard Posner, who was appointed to the 7th Circuit by Ronald Reagan made the admission in his book, Reflections on Judging.
Other courts, including the Supreme Court of the United States, used Posner’s arguments in Crawford v. Marion County Election Board as the framework to justify rulings on subsequent harsher laws that were clearly designed to suppress votes by certain classes of eligible voters.
It’s worth noting, that while Judge Posner thought he was doing the right thing at the time, he recognizes that his ruling was abused to justify vote suppression under the pretense of addressing statistically non-existent voter fraud.
Biscuits
@Elizabelle:
I would not say blissfully, at least not for myself. I live in the greater Seattle area. There are always tons of Canadians who come down to shop and I’m happy for it. We also go to Vancouver regularly. Though the Emerald City is were my heart belongs, I could possibly forsake it for Vancouver, BC.
rikyrah
Republicans Have Been Crushed and Humiliated Because President Obama Said No
By: Jason Easley
Wednesday, October 16th, 2013, 2:01 pm
The fact of the matter is that it wasn’t Ted Cruz or John Boehner who caused the latest Republican crushing defeat. It was President Obama steadfastly saying no.
The seeds of the most embarrassing Republican defeat in decades were planted when congressional Republicans and their corporate billionaires made the mistake of misjudging President Obama’s character.
……………………
The government shutdown came, and Obama still said no. Days turned into weeks, and the president’s answer was always the same. He’d be happy to talk, but first the Republicans had to do their jobs by opening the government and raising the debt ceiling. The president was never unreasonable, but he was unyielding.
President Obama was the backbone of the Democratic stance. Harry Reid and Senate Democrats were the heart, but Obama was the steel spine. Obama made the Republicans blink first and cave to his will.
President Obama deserves credit. Obama has redefined the perception of his presidency. He has made it clear that if Republicans want to shutdown the government in January or risk default in February 2014, he is going to make them pay a heavy political price.
http://www.politicususa.com/2013/10/16/republicans-crushed-humiliated-president-obama.html
The Republican Party has been damaged, crushed, and humiliated all because President Obama kept saying no.
Elizabelle
@Biscuits:
Should have said “blithely.”
And you are in a very good place, sir or ma’am.
Get some biking and hiking in the San Juans in for me.
All hail our Canadian neighbors, too.
Southern Beale
That’s one of my all-time favorite Peter Gabriel songs. Well, that and the theme from Wall-E.
So, ladies, do you love guns and love fashion but deplore the lack of gun-themed items at your local high-end Rodeo Drive-type shopping district? Take heart! This lady from Boca can fix you (and your kids!) up!
Petorado
Scalia’s Constitutional originalism stance is utter BS. If the document was born in a perfect state and must remain pristine and unaltered in perpetuity, then Scalia would have to categorically denounce all of the amendments to it, including the first ten of them. Given his ideas of corporate personhood being Constitutional rights, I’d like to hear him explain how when the Framers wrote “We the People,” they had the British East India Company in mind.
Marie
It is a shame that the Supreme Court made this ruling. They are supposed to interpret the laws for the times, not allow society to remain sexist!
Jackie
This is ridiculous! How can people stand by and let this kind of thing happen?! So frustrating to see this in society!