Justice Ginsburg Weighs In on Constitutional Systems Across the Globe
Supreme Court Justice Ruth Bader Ginsburg took the spotlight during a panel discussion comparing constitutional systems in the United States, Israel and Canada at the ABA Annual Meeting Aug. 3 in Chicago. The panel, sponsored by the Section of International Law, included M. Cherif Bassiouni, emeritus professor of law at DePaul University in Chicago; Justice Morris J. Fish of the Supreme Court of Canada; Salim Joubran, Israeli Supreme Court justice; and Irwin Cotler, former Canadian minister of justice.
The panelists spoke in a casual, roundtable-type format about the unique qualities of their country’s constitution, comparing and contrasting it with other nations. Ginsburg asked questions of the panelists after each one gave a short presentation.
Joubran presented first, explaining that Israel has no written constitution but instead basic laws that lay down the foundation of the system of government and the rights of the individual. He also noted that, unlike the United States, whose Supreme Court justices are chosen entirely by politicians, Israel’s justices are selected by a committee that includes members of the Israeli bar and the Knesset, Israeli Supreme Court justices, and several politicians.
“Our Supreme Court is one of the busiest in the world,” Joubran said, noting that 15 justices tackle, in three-judge panels, 10,000 cases every year. That compares to 80 to 100 cases heard by the U.S. Supreme Court yearly. “Our Supreme Court opens its doors to everyone.”
Ginsburg asked Joubran about how the court balances Israel’s security needs yet protects individual liberties. Joubran responded that “even in security cases, the law should be before all of us.”
Fish spoke next, covering a distinctive aspect of Canada’s constitution, or the Charter of Rights and Freedoms: the “override” clause. The clause allows the federal government or a provincial legislature to enact laws to override sections of the charter that deal with freedoms and other legal rights. The override lasts for five years, at which time, it can be enacted for another five years, he said. He added that the override has rarely been invoked; it has been used by three of Canada’s 10 provinces.
Fish also said that Canada’s charter is often a model for other nations developing their own constitutions because of its modernity, among other reasons. “Unlike the Bill of Rights … the Canadian charter speaks in a current voice,” he said.
He added that the Canadian court does not share the aversion to citing laws of other nations, as the U.S. court generally does. Ginsburg disagreed with his view.
“International law is a part of our law: We are a nation among a world of nations,” she said. “We can look to [other nations’] attempts to wrestle with problems we face, for the persuasive value of the decisions.
“The majority of the Supreme Court members are not averse to looking beyond our borders.”
Bassiouni pointed out that there are “multiple families of legal systems” inspiring other legal systems, and there is a “commonality in general principles.” He noted that, when comparing texts, correlations can be seen among the 191 countries with written constitutions.
The panel concluded with Ginsburg sharing some patriotic thoughts on the U.S. Constitution, including that she carries a pocket-size Constitution wherever she goes in the world. “I revere the U.S. Constitution: It was way ahead of its time,” she said. “They were natural right thinkers and thought people had rights by virtue of existing.”