[Editor’s Note: This commentary was originally published in the Toronto Star in print and online here on Wednesday, September 28, 2017.]
—Richard Albert, Boston College Law School
Five years ago, United States Supreme Court Justice Ruth Bader Ginsburg remarked, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.” Where would she look instead? To Canada and South Africa.
Justice Ginsburg’s revelation shocked her fellow Americans but it did not come as a surprise to those of us who study the constitutions of the world. For years, the United States Constitution has declined in its global influence, due in no small part to the limited and in some cases outdated rights and liberties its text protects, namely the unusual right to bear arms.
Canada has displaced the United States as one of the world’s great constitutional superpowers, rising to prominence on the strength of our modern Canadian Charter of Rights and Freedoms. The Charter protects all manner of speech and thought, identity and group rights, and even affirmative action rights, which for Americans is a controversial issue that divides the country perhaps more than any other constitutional question except abortion.
Canada’s global importance has grown as we have approached and now arrived at the sesquicentennial of Confederation. Since 1867, Canada has evolved into a global economic, cultural and now dominant constitutional force.
By its resilient example, the Constitution of Canada has influenced the design of the South African Bill of Rights, the Israeli Basic Laws, the New Zealand Bill of Rights and the Hong Kong Bill of Rights. Our Constitution was fated to occupy this role in global constitutionalism given that the drafters of the Charter went to great lengths to incorporate international human rights principles.
The 150th anniversary of Confederation in Canada offers an occasion both to reflect and to look ahead. There is of course much to celebrate about Canada and our Constitution but triumphalism is not the right spirit for this moment.
There is risk in celebrating this anniversary without engaging in meaningful and critical self-reflection. We risk being seen as insensitive to the reality that the union of peoples and places that we know today as Canada did not begin in 1867, or worst still complicit in what many decry as an occupation of territory that was illegitimately taken.
In the bicentennial year of the United States Constitution, Supreme Court Justice Thurgood Marshall declined the invitation to join the chorus of good cheer for a document that had been enacted to exclude so many from the rights and privileges of citizenship.
His message was not that the Constitution was not worth celebrating. It was that although the Constitution as designed in 1787 was intrinsically unjust, the Constitution had earned its status through war and sacrifice as a national symbol worthy of pride. The true miracle, he stressed, “was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.”
For Justice Marshall, it was the transformation of the Constitution, not its founding text, that the bicentennial anniversary ought to celebrate, and more its adaptive capacity to accommodate profound social change than its inegalitarian foundations. Justice Marshall saw something to celebrate in the redemptive possibilities of a constitution that would have been unrecognizable to those who had written it 200 years before.
There is yet another message in Justice Marshall’s reflections: that we must understand what it is we are doing when we mark an anniversary and also how our marking of it will be perceived. For us, as we mark the sesquicentennial of Confederation in Canada, the task is no different.
Despite the accolades Canada has earned abroad for our constitutional law and for the judges who give effect to the Constitution’s words, the lived experience of many of the peoples of Canada remains one of misgiving, disenchantment and also of anger for a past that remains unreconciled with the present.
This sequiscentennial is an opportunity for the stewards of Canada’s Constitution to reach just resolutions to long-standing internal challenges — both because the time is long past and because the world is now watching.
How and whether our constitutional law succeeds in repairing what remains broken in Canada may well determine whether the Constitution of Canada will continue to be as influential in the world when we pause 50 years from now to mark its bicentennial.
Richard Albert is currently a distinguished visiting professor at the University of Toronto faculty of law and the co-editor of Canada in the World: Comparative Perspectives on the Canadian Constitution, to be published by Cambridge University Press in November.