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

A pedestrian walks past flags flying at half-staff in Washington. D.C. this week to mark the passing of U.S. Supreme Court Justice Antonin Scalia. J. David Ake / AP

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Antonin Scalia, the U.S. Supreme Court justice who died on the weekend, was a giant of American law. He revived the conservative legal movement in the United States and became its leader and its lightning rod.

Scalia had next to no influence on the law or the courts in Canada – or at least, that is how it appears at first glance. In fact, Scalia did cast a long shadow over northern legal and political landscapes in unexpected ways.

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. He did visit at least twice, giving a memorable speech at the University of Toronto in the late 1990s and debating Canadian Supreme Court Justice Ian Binnie at McGill University in 2007.

Canada rarely showed up in Scalia’s opinions and when it did, it was used as a warning about the evils of liberalism and judicial activism. In June 2003, Scalia dissented in a case which found that criminal laws against sodomy which were used to target gay men violated the U.S. Constitution. Scalia’s dissent was acidic and sarcastic, as was frequently the case in judgments involving gays and lesbians. He invoked a recent decision of the Ontario Court of Appeal allowing same-sex marriage as proof positive of the danger of sliding down the slippery slope towards “judicial imposition of homosexual marriage.”

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.

Adam Dodek graduated from Harvard Law School, clerked for the U.S. Court of Appeals for the 9th Circuit, the Supreme Court of Israel and the Supreme Court of Canada. He is one of the founders of the University of Ottawa’s Public Law Group and the author of The Canadian Constitution.

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