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Monday, December 12, 2016

In 2012, Supreme Court Justice Ruth Bader Ginsburg travelled to Egypt to tell an audience that they should not seek to model their own constitution after that of the United States. In place of the U.S. Bill of Rights, she held up such models as the South African Constitution, the European Convention on Human Rights, and the Canadian Charter of Rights and Freedoms.

Her effective denigration of the same Bill of Rights she has happily used to judicially reshape American policy on various issues was just one aria in a larger opera about a purported decline of American constitutional influence abroad. For example, almost simultaneously, law professors David S. Law and Mila Versteeg published a major article in the New York University Law Review arguing that there was an empirically measurable decline in the international influence of the U.S. Constitution.


In tune with Justice Ginsburg, they claimed that constitutional instruments like Canada’s Charter of Rights were having a very significant influence, moving toward eclipsing traditionally influential American constitutionalism.

At least in some circles, the sun seemed to have set, leaving only a night full of whimpering anxieties about waning American power and a long American decline.

There is no doubting that some features of Canada’s Charter of Rights have been internationally influential. Some countries engaged in recent constitution-making, for example, have drawn directly upon Canadian legal text on some technical matters, like proportionality analysis for limits on rights. On that matter, American approaches based on clearer, bright-line tests and standards of scrutiny have not been as widely adopted of late.

But two important responses arise.

First, even on such points, approaches like that of Canada have developed out of specific engagement with American rights traditions. Some countries have wanted to entrench different tests on certain specific matters or even substantive positions on some specific issues. For example, some more recent constitutions have included language specifically authorizing affirmative action or restrictions on hate speech.

As far as that goes, they have certain resemblances to one another more than to the U.S. Bill of Rights. Most countries have not copied the Second Amendment either. But the deeper parentage of equality rights and free speech still stems from the American rights tradition more than from any other.

Second, on some such matters, the American tradition continues to conserve something that others are losing. For instance, when the American tradition largely stands against proportionality tests and balancing-based approaches, it does so because of reasons arising from the proper roles of courts and legislators. At this November’s Federalist Society National Lawyers Convention, Supreme Court Justice Samuel A. Alito, Jr., reminded participants of his departed colleague Justice Antonin Scalia’s prescient warning on balancing tests: “Give a judge a balancing test, and the case will almost always come out the way the judge wants.”

If other countries are not following the United States on a matter like that, there is no American decline to bemoan. There is instead reason to stand firm in the traditions of the Founders.

However, both standing firm in that way and rebuilding the export potential of the U.S. Bill of Rights require ongoing work to conserve the intellectual foundations and future firepower of American constitutionalism.

The United States must never forget those glory years that birthed a new nation of liberty and of fundamental moral principle. The world must not either. But national memory and world influence cannot be taken for granted if the philosophical work of the Founders is cast aside or left to gather dust on ancient shelves while pseudo-intellectuals frolic in the latest academic fashions.

As a Canadian constitutional law professor, my hand is extended today in celebration and gratitude to our neighbor nation, whose Bill of Rights birthed great constitutional ideals. The export of these ideals has made an enormous contribution to the world and continues even today in sometimes less obvious forms.

At the same time, that contribution can never be taken for granted. In the United States and around the world, we must both celebrate this anniversary of the U.S. Bill of Rights and rededicate our efforts to conserve the ideals and traditions that it so boldly embodied upon this Earth.

Dwight Newman, D. Phil., is professor of law and Canada Research Chair at the University of Saskatchewan, senior fellow at Canada’s Macdonald-Laurier Institute, and author of numerous publications on Canadian constitutional law. He was a 2015-16 Visiting Fellow in the James Madison Program at Princeton University.


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