‘A Legal Backwater’
http://spectator.org/archives/2012/04/24/a-legal-backwater
So many constitutions worldwide — and how many except ours recognize the right to keep and bear arms?
America is in danger “of becoming something of a legal backwater,” a justice of the High Court of Australia, Michael Kirby, is quoted as telling the New York Times. His comment is in a scoop that ran under the headline “?’We the People’ Loses Appeal With People Around the World.” The story follows up on an interview Justice Ruth Bader Ginsburg gave to Al-Hayat TV in Egypt. In the interview she said that were she drafting a constitution in the year 2012, “I would not look to the United States Constitution.” Instead she commended to her viewers the constitution of South Africa, the European Convention on Human Rights, and the Charter of Rights and Freedoms of Canada.
Justice Ginsburg’s remarks went viral on the web among those who thought they were inappropriate for a justice bound by oath—as every American official must be*—to support the Constitution. TheNew York Sun commented on them in an editorial, “Lost in Egypt,” suggesting she had missed an opportunity to take the discussion of law-giving all the way back to Sinai. But the New York Times’ dispatch opens up the question of how popular an example our Constitution is these days. The Timesreporter, Adam Liptak, gained an advance look at a new study on precisely that topic. He quotes its authors, two law professors, as reporting that our Constitution “appears to be losing its appeal as a model for constitutional drafters elsewhere.”
Mr. Liptak, in my view, is onto an important story here. One of the key features of these newfangled constitutions with which everyone is so smitten is that they are much longer than America’s parchment. In Canada’s constitution, which our friendly neighbor got around to writing only in 1982, the Charter of Rights and Freedoms is, at more than 1,000 words, twice as long as our Bill of Rights, which has 482 words. The curious thing is that with all that verbiage, the Canadians failed to find space to provide for the right that one of our greatest constitutional commentators, St. George Tucker, called the “true palladium** of our liberty”—namely, the right to keep and bear arms.
“Why, that’s impossible!” you might exclaim. “No constitution writer could forget such a right.” But feature this. The South African bill of rights is more than ten times the length of ours. And in that vast verbiage there’s not one syllable protecting the right to keep and bear arms. The document covers equality, dignity, life, security of person, slavery, privacy, religion, expression, picketing, association, politics, citizenship, movement, occupation, labor relations, the environment, property, housing, health care, education, language, culture, and arrest, among other rights. But not so much as a peep about the palladium of our liberty.
Oh, and South Africa’s constitution states that the whole list of rights can be thrown into a cocked hat if there’s a state of emergency. But never mind, the European Convention on Human Rights appears to be even longer than South Africa’s—running to more than 5,000 words. Yet the Europeans couldn’t find room for the palladium of liberty, either. Mr. Liptak of the Times reports that only 2 percent of the world’s constitutions feature this one of the most basic rights. I cite this right only as an example of the problem with these hyper-long and detailed constitutions. When something is left out of a long list of rights, it tends to look less like an accident—given that they thought to list so much else.
