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.

The “living tree” metaphor languished, underappreciated, for years until 1982, when Canada adopted its modern constitution, the Charter of Rights and Freedoms, and Canadian judges needed an interpretive methodology. The living tree was there, waiting to be rediscovered and tended. Along the way, the Famous Five women came to be celebrated. Their larger-than-life statues adorn the grounds of Parliament in Ottawa, and for a few years early in the new century, their faces appeared on Canada’s $50 bill. Annual prizes are awarded in their names. As for the living tree, it’s simply taken for granted, part of Canada’s constitutional DNA. Although the original understanding of the 31-year-old Charter’s framers wouldn’t be hard to reconstruct, no one bothers. It’s beside the point.

I thought of the Persons Case the other day as I read Justice Antonin Scalia’s head-spinning interview in New York magazine. No doubt many readers of this engrossing document, which printed out at 15 pages, couldn’t get beyond Justice Scalia’s comments about the wily ways of the Devil. I was equally struck by this colloquy between the justice and his interviewer, Jennifer Senior:

Question: You’ve described yourself as a fainthearted originalist. But really, how fainthearted?

Answer: I described myself as that a long time ago. I repudiate that.

Question: So you’re a stouthearted one.

Answer: I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was –