Celebrating The Judiciary
It’s easy for U.S. Americans to forget that not every nation is the way ours is. In some nations, the judiciary is a celebrated and honored institution rather than a political football — and the process of the law evolving to meet the times, the expansion of rights, and the process of Constitutional law making the nation a better place is a subject of a national day of commemoration.
So it is in Canada: today is Persons Day, not quite a national holiday but a day in which the anniversary of the case of Edwards v. Canada (Attorney General), now often called the “Persons Case,” was decided — resolving in the affirmative the question “Does the word ‘Persons’ in section 24 of the British North America Act, 1867, include female persons?”
First, the highest court in Canada, in approaching the nation’s Constitution, deliberately and explicitly unmoored itself from that set of philosophies which today we would call “originalism”:
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.
Writing of the commemorations taking place north of the St. Lawrence and the 49th parallel today of this very language, Linda Greenhouse of the New York Times takes occasion to swipe at a member of the U.S. Supreme Court whose jurisprudence pleases her not.
And that’s part of why we don’t have anything like Persons Day in the United States. In Canada, the Persons Case was at least judicially controversial — the Privy Council overturned a Supreme Court that had unanimously voted to the contrary. In the 1920’s, the inclusion of women as the equals of men in civic life was a new and uncomfortable concept for quite a lot of people, notwithstanding the experience of particularly the western provinces where women had served as the equals of men for many years. (Canada’s experience here seems to be similar to that of the United States — suffrage and civic equality began in part out of practical necessity in the west as a phase of settlement, and moved eastward as a cultural phenomenon.)
But there seems to be a much lower degree of politicizing the court and the judicial system and the process of common law at work there. The courts, at least, seem vested with a degree of public trust that transcends partisanship and political controversy. So it is possible to celebrate not only the courts generally but individual decisions. Here, though, not just our highest court but particular decisions and individual jurists on it are political whipping boys, help up to the body politic for particular scorn or cheer as the case may be, which means that in the same column an American opinion writer can cheer on her Canadian counterparts for celebrating a wonderful piece of law, she can with no apparent sense of cognitive dissonance denounce one of her own nation’s high judges.
Canadian readers are invited to nuance my impressions here, as my ignorance of matters Canadian is no doubt great, but it remains the case that Canada marks on its civic calendar the anniversary of a judicial decision expanding the rights of Canaidans, to which the United States has no cognate, to our disappointment. The closest we come is Constitution Day, shamefully among the least-noted days of commemoration on our civic calendar.
This is especially disappointing given that our history is rich with decisions expanding the rights of Americans that we ought to all be able to celebrate regardless of our contemporary differences of political opinion. A partial list of cases we might justifiably celebrate:
- Marbury v. Madison, decided February 24, 1803 (the Courts are the final authority on the meaning of the law, trumping even the will of the political branches of government).
- McCulloch v. Maryland, decided March 6, 1819 (federal government has the power to enact laws to fulfill the Constitution’s functions and the states may not interpose against that power).
- Ex Parte Milligan, decided April 3, 1866 (civilians may not be prosecuted under martial law when civilian courts are available).
- Gitlow v. New York, decided June 8, 1925 (Bill of Rights applicable to all levels of government).
- Near v. Minnesota, decided June 1, 1931 (except in rare instances, censorship is unconstitutional).
- West Virginia State Board of Education v. Barnette, decided June 14, 1943 (a state cannot make you swear an oath contrary to your religion).
Brown v. Board of Education, decided May 17, 1954 (racial segregation is contrary to the guarantee of equal protection of law).
- Baker v. Carr, decided March 26, 1962 (all citizens’ votes should be counted to have equal effect to one another).
- Gideon v. Wainwright, decided March 18, 1963 (assistance of legal counsel is an inherent part of due process that cannot be denied even to the indigent).
- Texas v. Johnson, decided June 21, 1989 (even highly offensive speech is protected from criminal sanction).
Or more. I was tempted to include Griswold v. Connecticut for its recognition of a right of privacy, and United States v. Windsor for its definitive stamp on the importance of the concept of equality before the law. Alas, what ought to be obvious propositions are strongly politicized and so they would not (yet) be good candidates for trans-political commemoration.
Nevertheless, with such a rich tradition of our own highest court (mostly) expanding the rights of individual citizens over time, it’s a damn shame we don’t have anything like Persons Day. Congratulations to Canada for its attainment and maintenance of a culture in which the rule of law as an instrument for the vindication of individual rights is celebrated. There are many of us south of your border who feel the same way.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.