[CAT] Shakespeare, himself

Shakespeare, himself.

[LINK] "‘We the People’ Loses Appeal With People Around the World"

Facebook's Andy linked to this New York Times article on the declining popularity of the American Constitution as a model for other countries.

The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.

“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.”

“The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.”

I hate to say that, but is this really surprising? Yes, the United States Constitution is quite relevant as a historical document, but it's so darned idiosyncratic.

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.

In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

The Canadian Charter of Rights and Freedoms, unsurprisingly, is identified as a more relevant model: it's a newer, more flexible, and more complete document.

A question to Americans: What is it with the United States' disinterest in getting a new constitution? The idea of having a constitution centuries old for a country that has changed hugely over those same centuries strikes me as bizarre.

[BRIEF NOTE] Passing thoughts on Canadian monarchy

Queen Elizabeth II is celebrating the 60th anniversary of her ascension to the Crown of the United Kingdom of Great Britain and Northern Ireland. Since Canada is a Commonwealth realm, this marks the 60th anniversary of her ascension to the Canadian throne, too, such as it is.

I wish her majesty long life, of course, and not only because I've no desire to see King Charles III on the throne. Do I wish the Canadian monarchy long life? On the balance, yes. Canadian democracy and Canadian civil rights haven't been obviously harmed by the retention of a constitutional monarch as head of state, especially since the monarch's limited responsibilities and powers are largely discharged by the Governor-General. It's nice to have a head of state be nominally apolitical and removed from the quotidian, inasmuch as this serves as another layer of insulation against undue politicization of the polity--compare the appointment, not election, of Canada's judges. I can imagine ways in which the Canadian system of government might go awry, but the person of the monarch doesn't feature strongly.

I don't think it an issue, incidentally, that the head of state of Canada isn't Canadian. Blurred loyalties and citizenships fit the postmodern world well, especially when there's no conflict. I do wonder whether it would have been possible for Canada to acquire its own royal family at some point, say, a cadet branch of the Windsors, in much the same way that newly-independent Norway selected its monarch (from the Danish family, true, not the Swedish). "The Kingdom of Canada." At least Kingdom has more of an obvious meaning than "Dominion."

[LINK] Ari Ezra Waldman on the Ninth Circuit and Proposition 8

Ari Ezra Waldman's analysis at Towleroad of today's American court ruling that California's referendum-induced ban on same-sex marriage was unjustified is worth reading, even for non-Americans. Waldman's summary makes the point that this ruling fits into the noble, if sadly necessary, tradition of rulings making the point that arbitrarily imposing hardships on a stigmatized population--here, revoking rights already granted--is wrong.

More than any single vote, more than any single veto, more than any single legislative majority, the Ninth Circuit's decision in Perry v. Brown is the most significant advancement in the fight for marriage equality in American history to date. Consider this: Never before has a federal appellate court affirmed any of the conclusions that the Ninth Circuit did today:

•that denying committed gay couples their right to marry cannot encourage opposite sex marriages;
•that when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
•that domestic partnerships are unequal to marriage;
•that, as a matter of law, marriage rights do not hinge on natural procreative ability;
and, of course,
•that a ban on same-sex marriage unconstitutional.

Today's opinion was both broad and narrow, with wide implications and constrained effects. In 76 pages, Judge Reinhardt and Judge Hawkins affirmed the district court's opinion that Proposition 8 was unconstitutional, but its decision hinged on the fact that Prop 8 effectuated a taking away of rights previously existing in California per In re Marriage Cases. That denial of an existing right violated due process and equal protection. The court declined to decide whether due process or equal protection would invalidate all bans on same-sex marriages, especially in those circumstances where no such right existed before. This is the narrow part of the decision. The court also used a rational basis standard of review, granted Proponents standing as a matter of federal law, and affirmed the denial of the motion to vacate. But, in so doing and by savaging the legitimacy of the Proponents' proferred reasons for Prop 8, the Ninth Circuit gave us a remarkable statement of gay rights, one that will have an enduring future regardless of the end result of Perry v. Brown.