Editor's note: 2011 was a good year for participatory democracy. But as new governments rise to replace old regimes, a pressing need has emerged for strong models on which to build the foundation of a modern society. In this guest post, David Alexander proposes a radical idea: that model should not be the U.S. Constitution. For inspiration, he turns instead to the Canadian Charter of Rights and Freedoms, the first part of the Constitution Act, 1982.
What's the Big Idea?
A few weeks ago, Adam Liptak of the New York Times lamented the fate of the Constitution in statecraft around the world. (His critique was based on this paper from the New York University Law Review). The United States Constitution is, at 225 years, the oldest of its kind, and has been the go-to model for over 160 countries wishing to write their own.
By 1987, almost 95% of countries with constitutions had versions based on the American one. The oldest standing constitution had come to be relied upon as a framework to develop newer ones.
But that trend has been in serious decline since then. There are younger, hipper constitutions out there. Newer constitutions represent a fundamentally different way of thinking about rights and include newer ideas like universal human rights, and have some sexy new ideas that weren't around in the 1700s, like the concept of Protected Classes. (for example, 15.1 of the Canadian Charter of Rights and Freedoms prohibits discrimination based on "race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.") And although there are more rights granted, and the law is interpreted much more broadly, there is also a readily available mechanism to breach those rights. The first section of the Charter states that the Charter guarantees rights: " ...only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
What limits are these? Well, Canadian law can prevent English from appearing on signs in French-speaking Quebec, prevent newspapers from printing the real names of juvenile offenders even after conviction, and prohibit hate speech – all reasonable breaches of their Charter right to free speech.
It turns out that this sort of protection of rights has become the norm over the last thirty years. In addition to the cornerstone values that are found in the U.S. Bill of Rights, most countries have a short list of rights that they protect as well. The researchers, David S. Law and Mila Versteeg, find that there's an "evolutionary path" that constitutional reform has tended to take over the last sixty years. Quote: "there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions... our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream."
And instead of the U.S. Constitution being the model worldwide, they find a new champion of democracy: My Homeland and True North Strong and Free, Canada. According to the researchers, our Charter of Rights and Freedoms has influence that is profoundly "neither uniform nor global in scope".
Well, you can't win them all.
What's the Significance?
If Jefferson was right, and constitutions must inevitably and reasonably be refreshed and updated to fit with the living generation, then the document he didn't help write is way out of date. What's worse, other countries are moving on to use genuinely better documents, which provide more rights and stronger protections. American Constitutionalists, who should be discussing the best ways to improve the paper, seem for some reason to think it can't be improved upon -- they'd rather spend their time obsessing over what it means. If the U.S. is interested in regaining its former status as the world's most copied Constitution, they had better make it more current.
Image courtesy of Shutterstock.