ACSBlog

by Jeremy Leaming

A forthcoming study says the U.S. Constitution may not be the model charter it once was, and suggests other governing documents, such as the Canadian Charter of Rights and Freedoms, may be more inspirational to people seeking to secure liberty and equality.

As The New York Times’ Adam Liptak puts it, the U.S. Constitution “has seen better days,” and “its influence is waning.” Liptak bases his observations on a forthcoming study by Washington University Law School Professor David Stephen Law and University of Virginia Law School Professor Mila Versteeg. Liptak describes the study as bristling with data and says the professors conclude, “Among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

The reporter says there are numerous reasons for the Constitution’s waning influence, including its “terse and old” language, and the fact that it “guarantees relatively few rights.”

He also notes that at least one of this country’s Supreme Court justices has recognized the Constitution’s faltering influence. Justice Ruth Bader Ginsburg said recently during a visit to Egypt that she “would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

Liptak also cites a 2002 Harvard Law Review article by former Israeli Supreme Court president Aharon Barak, who wrote that the Constitution’s declining “global stature” has coincided with a diminished view of the U.S. Supreme Court “among courts in modern democracies.” Barak also wrote that Canadian law “serves as a source of the inspiration for many countries around the world.”

The study by Law and Versteeg also notes the rising influence of the Canadian Charter of Rights and Freedoms, which as Liptak points out “is both more expansive and less absolute” than the U.S. Constitution.

Indeed the Canadian charter’s language on equality is broader than America’s Constitution, stating that “Ever individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Additionally the charter notes that the equality provision does not prevent the government from taking action to improve the “conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

by Nicole Flatow

Around the country, an alarming rate of vacancies on our federal courts is leading to “exasperating delays for all parties involved,” writes former U.S. Court of Appeals for the Third Circuit Judge Timothy K. Lewis in The Philadelphia Inquirer.

“As a former federal judge, I know the toll this persistently high vacancy rate takes on our courts,” writes Lewis, who is now counsel at Schnader Harrison Segal & Lewis. “Federal judges have reported being forced to handle criminal caseloads more than double what they confronted just two years ago. This, in turn, is limiting the access people have to the judicial system.”

Much of the problem is caused by unprecedented Senate obstruction – there are now 41 judicial nominees awaiting Senate action and some Republicans are threatening to hold up votes on every nominee. But in Pennsylvania, Lewis notes, there is a different problem: There are six vacancies on Pennsylvania’s district courts, and none of them have a nominee. Before the president can make a nomination, the state’s senators must submit names for the White House’s consideration, and Pennsylvania’s senators, Bob Casey and Pat Toomey, have not yet done so.

“So long as the senators do not submit names, the process cannot move forward - and the seats remain empty,” Lewis writes. “Casey and Toomey have a good working relationship, and they have indicated that they are working on identifying appropriate judicial nominees. But it is long past time that they make this issue a higher priority.”

Visit JudicialNominations.org to learn more and follow developments.