Justice Ruth Bader Ginsburg

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.”