Judicial and Constitutional Perspective from Canada

Following our primer on the United States Supreme Court, I received the following message from Margaret Young. I loved her perspective that Americans often need more context to remind us that our systems are a choice, and I think that observation is so relevant as we grapple with a difficult election. Thanks to Margaret for allowing me to share her message with you. -beth

Editor's Note: This is a guest post from listener Margaret Young, Ph.D.

Love your show.

Usually I defer to your judgement as to the complexity and depth a subject deserves but in this case I think that a certain lack of situational context makes it dificult for Americans to realize that the way in which they are doing something is a choice as opposed to the natural obvious default way a thing is done.

Other countries have Supreme Courts. Canada, your northern neighbour, has a Supreme Court that both looks very like your court and looks very unlike your Supreme Court. Those differences and similarities are relevent to your short primer.

1) The Canadian Supreme Court is active in a way that I think many/most Americans would find breathtaking (see the reason why Canada has NO abortion law whatsoever and the reason Canada has long since had gay marriage.) 

2) The judges who sit on the Canadian Supreme Court are bound by the same rules for mandatory retirement as all other judges. Canadians do not face the situation of being governed by people reflective of the past exclusive of the present.

3) Canada is actively moving towards removing any partisanship in the naming of Supreme Court Justices.  The current Prime Minister has set up a committee which is both multi-partisan and heavily weighted with members of the bar to bring forward suitable names. 

4) Canadian constitutional theory is currently grounded in the "living tree" theory of constitutionalism. This concept is something that is not a 'left-wing wacko' concept but a long standing approach to applying the Constitution to the current rules, laws and regulations of Canada.

As a Canadian who concentrated on Americanist courses in the PoliSci department while doing an Interdepartmental Program in Mass Communications at the University of Michigan I have been in the strange position of knowing more, factually, about the American Supreme Court than that of my own country and when I realized that that was the case made an effort to learn how and why the two courts, which on the surface look similar, have such different roles and images in their countries.

Our court is younger (because we don't have lifetime tenure), has a female Chief Justice, and has a greater diversity since there must be justices who not only speak both French and English but also justices who are steeped in the Napoleonic Code as well as Common Law.

Again, very much enjoy your show.

Margaret Young, Ph.D.