(MintPress)-Once a model for emerging democracies worldwide, a new study by two U.S. law professors suggests the American Bill of Rights is losing its influence, with more countries choosing to create constitutions based on the Canadian Charter of Rights and Freedoms instead. The study shows a shift in perspective from 1987, when Time magazine reported that […]
(MintPress)-Once a model for emerging democracies worldwide, a new study by two U.S. law professors suggests the American Bill of Rights is losing its influence, with more countries choosing to create constitutions based on the Canadian Charter of Rights and Freedoms instead. The study shows a shift in perspective from 1987, when Time magazine reported that out of the 170 countries that existed at the time, 160 had written charters modeled directly or indirectly on the U.S. version.
“Some countries may be especially prone to borrow from the Canadian Charter of Rights and Freedoms because they perceive themselves as sharing the same goals and values as Canadian society,” write law professors David S. Law, Washington University in St. Louis, and Mila Versteeg, University of Virginia.
In their study, which will be published this June in the New York University Law Review, professors Law and Versteeg show through an analysis of sixty years of data that other countries have “become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution.”
Analysts like Law and Versteeg question whether the U.S. Constitution, adopted in 1787, is still an influential document compared to more recent constitutional documents like the Canadian Charter of Rights and Freedoms, created in 1982, which better emulate the global demands for human rights and social freedoms.
Bill of Rights: out of touch with modern times?
During a recent visit to Egypt, Supreme Court Justice Ruth Bader Ginsburg said in an interview with Al Hayat TV, “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.”
Justice Ginsburg encouraged the new Egyptian regime to look at more recent documents for inspiration, documents that encompass human rights, like the South African Constitution and Canada’s Charter of Rights and Freedoms. “Why not take advantage of what there is elsewhere in the world? I’m a very strong believer in listening and learning from others,” she added.
Roger Pilon, vice president for legal affairs at the CATO Institute, explained that the U.S. Bill of Rights lacks human rights protections because of the circumstances affecting Americans at the time the Constitution was written. Pilon told National Public Radio that following the overthrow of the oppressive government of King George III, the “framers were extremely interested in securing a limited government, a government of limited powers.”
According to Pilon, the founding fathers of the United States focused on establishing a system of checks and balances and not individual rights since they believed that individuals naturally possessed an infinite number of rights.
Over time, however, the need for legal protections of human rights became more evident, especially after World War II, which led to the creation of the United Nations and adoption of the Universal Declaration of Human Rights in 1948.
Countries emerging in the decades after the Second World War began to question whether the U.S. Bill of Rights was relevant to the changing times. For instance, is the second amendment right to bear arms a value that countries wish to protect? And could the third amendment, which prohibits soldiers from being quartered without consent in any house during times of peace, be worded better to protect privacy rights in the 21st century?
John Ibbitson of The Globe and Mail in Canada writes that “[U.S.] courts increasingly interpret the American document so perversely – by claiming that it must only be applied as the founding fathers originally intended – as to render it useless as a tool for tackling modern problems.”
Moving towards a more inclusive Bill of Rights
The Canadian Charter for Rights and Freedoms, signed 30 years ago this week, moves beyond the U.S. Bill of Rights to encompass not only legal rights, but also equal rights and mobility rights. While both documents protect freedoms of religion, speech, press and assembly, the Canadian Charter is often interpreted more expansively.
The Canadian Charter also ensures equal protection for every individual without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. The Fourteenth Amendment to the US Constitution only protects the rights of citizens from discrimination based on race, color, or previous condition of servitude, and it was not included in the original Bill of Rights. The United States is yet to ratify an all-encompassing equal rights amendment.
Every citizen of Canada is also granted mobility rights to enter, remain in or leave the country at will, while other legal provisions explicitly guarantee access to counsel free of charge and an interpreter if needed. The Canadian Charter explains the democratic voting rights of citizens in the same document as social and legal rights rather than in a separate Constitution or additional amendments like in the United States.
Although countries may be shifting more focus to constitutional documents in Canada rather than the United States, Akhil Amar, Sterling Professor of Law and Political Science at Yale University, currently a visiting professor of law at Harvard Law School, still believes that the United States deserves credit for the evolution of democratic societies.
Amar believes that democracies rarely existed before the United States Constitution and regardless of variations among democratic constitutions and societies, they still have roots in the U.S. system.
“We proved to the world that democracy could work, that you could have a written constitution,” Amar said on NPR. “You could have judicial review, which many of the new countries are emulating, and they’re becoming more American. And if they have their own variations of that, great.”