We may not be the most wealthy nation in the world, or have the most powerful military. But when it comes to the legal influence of our constitution on other countries, it seems that Canada tops the list.
This Tuesday we celebrate the Charter's 30th anniversary, and there is plenty to rejoice about. The New York University Law Review is publishing an article in their upcoming June issue which mathematically calculates the relative global influence of the constitutions of different countries, and the Charter of Rights and Freedoms surpasses even our American neighbours. The finding is so surprising in some quarters that it even made the front page of the New York Times, where they focus on the declining influence of the American constitution,
The Constitution’s waning global stature is consistent with the diminished influence of the Supreme Court, which “is losing the central role it once had among courts in modern democracies,” Aharon Barak, then the president of the Supreme Court of Israel, wrote in The Harvard Law Review in 2002…
Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.
The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”
I made similar observations here on Slaw after conversations I had at the Supreme Court of Israel a few years ago.
The authors of the paper are David S. Law of Washington University and Mila Versteeg of the University of Virginia. Law just happens to be a Canadian, so it doesn't hurt to root for the home team. The authors released an excerpt of their paper to the Canadian media earlier today:
Constitutional drafters rarely invent new forms of political organization or discover new rights from whole cloth, but instead lean heavily upon foreign examples for inspiration…
The fact that the U.S. Constitution no longer serves as the primary source of inspiration for constitution-making in other nations thus begs the question of what, if anything, has emerged to take its place. One possible heir to the throne also happens to be America's closest neighbour. The Canadian Constitution has often been described as more consistent with, and more influential upon, prevailing global standards and practices than the U.S. Constitution…
The data suggest that the answer may be yes. Unlike the U.S. Constitution, the Canadian Constitution is increasingly in sync with global constitutionalism.
In an interview Law explained how the Charter changed Canada's constitutional status on the worldwide legal stage:
"Once you turn every constitution into a series of numbers, you can numerically compare the similarity of any two constitutions," said Law. "And there was a unique pattern on the part of Canada."
When the Charter was adopted in 1982, the degree of similarity between Canada's Constitution and those of other countries "nosedived," said Law.
"As soon as the Charter is adopted, the Canadian Constitution shifts out of the global mainstream," he explained.
But then, by the late 1980s, the Law-Versteeg analysis shows other countries moving "with a vengeance" to match Canada's constitution.
"What this strongly implies is that whatever Canada did in writing the Charter," said Law, meant that "other countries are imitating the Charter" or that Canada's constitution-makers in the early 1980s "did an excellent job of anticipating global trends."
Congratulations Canada. Your most endearing legacy may be the one that matters the most of all – creating the very framework required to operate a modern and just society.