Dodek: How Scalia's scathing attacks boosted Canada's Constitution

[applegrove]

Dodek: How Scalia's scathing attacks boosted Canada's Constitution

by Adam Dodek at the Ottawa Citizen

http://ottawacitizen.com/opinion/columnists/dodek-how-scalias-scathing-attacks-boosted-canadas-constitution

"SNIP............


Scalia took his seat on the U.S. Supreme Court in 1986. He championed a brand of constitutional interpretation known as “textualism” but he became known as the leader of a school of thought that the meaning of constitutional terms could be found in the “original meaning” of those terms. Thus, many Scalia opinions involve historical journeys back to the continental America of the 1700s and across the pond to England to determine the meaning of phrases such as “cruel and unusual punishment” and “the right to bear arms.” Scalia transformed his Supreme Court by forcing all of the justices to engage on his terms. As some Americans have said: “we are all originalists now.”

Not so in Canada. Scalia’s brand of constitutional interpretation never attracted much support here. The dismissal was mutual. Scalia did not show much affinity for his North American compatriots. Mostly, Scalia showed disinterest in the Great White North. .........

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But in a strange way, Scalia helped make Canada a new “constitutional superpower,” a term used by the New York Times in 2012. Scalia fought a long-running battle over the relevance of foreign law to interpreting the U.S. Constitution. He lost some battles, yet over the course of three decades on his country’s highest court, he not only won the legal war by ensconcing originalism, he also so completely delegitimized comparative constitutional law in the United States that banning it became the subject of congressional resolutions and proposed constitutional amendments. Supreme Court nominees were quizzed about their views on it.

The U.S. Supreme Court and its judgments had once been an inspiration to the world. But under Scalia, that court became increasingly insular and parochial. The Supreme Court of Canada stepped into the void. This isn’t simply my jingoistic assessment, but the judgment of the former chief justice of Israel, Aharon Barak.

Scalia did not contribute to the making of a distinctly “Canadian” constitutional model, but by his domination of the U.S. Supreme Court for three decades he made that court largely irrelevant to the rest of the world. In so doing, Antonin Scalia unwittingly helped popularize the Canadian Constitution and the Supreme Court of Canada around the globe.




.............SNIP"