Home sick for another day, I am reading a book called On Reading the Constitution by Lawrence Tribe, an author recommended to me by a NYC lawyer recommended to me by a now blogging former-classmate of his as well as a collection of essays on the founding of the USA called To Begin The World Anew by Bernard Bailyn. With the concurrent debate on same-sex marriage as well as my recent spate of trips south, I thought it was time to get some sense of the difference between the US and Canadian constitution and I already am very surprised by a few:
- The inordinate respect given to the USA’s Founding Fathers and what they must have meant when they penning this or that clause in this or that sentence. In Canada, it is sometimes said that the 1981 patriation of the constitution and the Charter moved us to an American style “written constitution” but this is incorrect as we have a constitution of hundreds of documents from 1700s governor’s letters of instruction to recent agreements on off-shore oil revenue. What we do not have is an uber-text and any care for those who wrote it. The words have to live and die on their own.
- The misrepresentation of the original intention for separation of church and state seems to contradict the interest in understanding the Founding Fathers. From the outset, ministers of the faith were barred from sitting in a legislature as the rules of the faith had no place in the civic law. Nowadays, there is this idea that the morality and perception of Christianity in the late-eighteenth century was exactly as red staters would wish were the case today. Nothing could be further from the truth and is factually demonstrable. If such an analysis were imported in the Canadian discourse, we would think Sir John A. was a T-totaller.
- There are no constitutional lawyers in the USA in the same sense as in Canada as the Constitution down south serves as almost an everyday interpretive tool for all law. In Canada, you default to constitutional interpretation when other analyses fail to provide an answer and when applied it is a special case often handled by specializing counsel.
- That the phenomena of the USA was as much or more in its recreation of the state as it is in its identification of the rights of humans. It was envisaged by fairly ordinary folk like Roger Sherman as much as Thomas Jeffersons and George Washingtons. The concurrent divided jurisdiction of federal and state government being one example of this rethinking of government. The idealism is almost embarassing if it were not actually effective. It makes me wonder that if Napoleon had not emerged in France at the same time as the early USA was trying to get a start whether the War of 1812 may have had a different outcome and we would now, throughout the greater British North America, all have thought what a nutty idea those fellers had way back then.
In Canada our law and history is not a morality play, a battle of good over the void. It is a bargain, an agreement to get along peacefully. The USA is a very different place.