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It seems to me that American hegemony has created such a prosperous peace in the remainder of the West that many non-American westerners have come to hold false beliefs about the nature of their prosperity and the quality of their societies, laws and governments. For example, I often hear and read comments from citizens of other western and Anglo nations which imply that their "rights" are fundamentally the same as those enjoyed in America, or the instance that the house of Windsor has only a "ceremonial" role and can exert no power over their domain.
Consider @johnfabian 's comment down thread on Canada's notwithstanding clause (no offense to @johnfabian intended):
...
I find both of the above claims to be obviously and plainly false. The intent of the notwithstanding clause was always to give the government(s) the ability to force people to do whatever the government wanted them to do, as the notwithstanding clause serves no other purpose. The people who wrote that clause were perfectly aware of its power, and were equally aware of the arguments against such power as made by the American founders (the American Constitution being the living embodiment and quintessential rejection of such power).
Similarly, to the extent that "turn[ing] the Charter into a piece of paper" means that the populace has no de facto or de jure recourse against the government's exercise of arbitrary power, the mere presence of the notwithstanding clause means that Charter was always a piece of paper. The Charter never recognized or provided "rights." The fact that the government did not exert arbitrary power against the populace in a manner they disliked was a happy accident; and no less an exercise of arbitrary power. The populace never had de facto or de jure recourse against the government's exercise of arbitrary power (at least not of the legal sort, baring a revision of the charter to remove the clause).
Not only is this conclusion plain on the face of the Charter (and its analogs in other nations), all western cultures are familiar with the concept that an "I can do whatever I want" exception invalidates any semblance of enforceable rights. A contract which ends with "and party X promises to promise to perform in the future and, in any event, can unilaterally decide to perform or not perform its promises at any time without penalty" is not a contract in America or Canada or the UK, etc.
I'm not sure why westerners don't see or acknowledge this obvious truth. My best guess is a combination of generalized cognitive dissonance and the mistaken belief that their "rights" must be as strong as those in America because of the apparent prosperity that those rights provided (when in fact, said prosperity was always the product of American power) and the happy accident of enjoying their governments' exercise of arbitrary power upon them.
As always, if anyone is aware of more comprehensive treatments of these issues, please link those sources below.
Edit: Including my reply to a comment below for completeness.
There is so much evidence to the contrary that I do not believe that anyone sincerely holds this position. Consider the right against self-incrimination, one of England's most cherished and hard-won "customary norms." The right against self-incrimination indeed proved to be practically "constitutional" when it was eliminated for the uppity Irish in 1988 and for the rest of the country in 1994.
"On paper," meaning according to the laws of the UK (and essentially the rest of the commonwealth), the monarch:
is the sovereign and literal source of all legal authority
has the sovereign right to declare war and peace
has the sovereign right over all foreign affairs (which is why the monarch needs no passport, because it is the monarch's authority which requires and issues passports)
has the sovereign right to call, dismiss, prorogue, and recall parliament
has the sovereign right to assent and consent to the passage of all laws
owns all the land
doesn't pay taxes
etc.
This is indeed "plenty" of things.
In my opinion, the belief that the monarch exerts no practical or effective political power is due chiefly to a combination of willful ignorance and propaganda. There are simply too many examples of power being exercised to believe otherwise.
For example, in 1975, the Australian parliament shut down over a budgetary impasse. The Queen, through her Governor General (a role commonly described as "merely ceremonial"), dismissed the Prime Minister, appointed a new one, passed a bill to fund the government, and then dismissed all of the other members of parliament, triggering new elections.
Consider also the power of Royal Assent, which is often trotted out as proof that the monarch is merely "ceremonial" and wields no political power. In order for a bill to become law, after it has passed through both houses, the monarch must give their Royal Assent. The glossary on the UK Parliament's website describes Royal Assent as "the Monarch's agreement that is required to make a Bill into an Act of Parliament. While the Monarch has the right to refuse Royal Assent, nowadays this does not happen; the last such occasion was in 1708, and Royal Assent is regarded today as a formality." Emphasis mine.
It is admitted that the monarch has the right to refuse Royal Assent, but that right is handwaived away as a mere formality. Does the claim that 'Royal Assent is a formality' hold up to any degree of credible scrutiny? No.
In 2021, the Guardian published a series of reports ( well summarized by this article ) about the separate and distinct power of the Queen's Consent (Monarch's Consent).
Before any bill is introduced to Parliament, it must receive the monarch's consent.
The bills must be sent to the monarch's personal solicitors at least two weeks in advance. The solicitors then negotiate changes to the bill in exchange for the monarch's consent. Also, this can be done directly by the monarch in their regular (and legally required) consultations with the Prime Minister, which are entirely private, and of which no records are made. Oh, and assuming that there were any records made, all documents "relat[ing] to" communications with the sovereign or their agents have an absolute exemption from UK's FOIA.
As the Guardian discovered, the Queen used this power repeatedly, including for the purpose of preventing a law from revealing the size of her wealth. And the Guardian was only able to find this out because the parties involved didn't care enough to avoid putting the dealings to paper, and the relevant functionary forgot to stamp the documents as exempt from UK-FOIA.
So the monarch hasn't refused Assent in a long time...because the monarch has no reason to withhold Assent from a bill they already had the opportunity to alter through their power of Consent.
How very "ceremonial" a monarch...
Both the US Bill of Rights and the Canadian Charter of Rights and Freedoms are literally just pieces of paper. The fact that they say different things determines who can take away the rights they purport to protect, but in the real world you have exactly those rights which the people in charge of the people with the big guns say you have.
The thesis of the US Constitutional tradition is that God granted Americans certain rights, but since He isn't around to clarify what they actually mean, there is a priesthood (i.e. a group of wowzers who are educated at seminaries like Harvard and wear robes to the office) to do it. Regardless of the Constitutional text, the Supreme Court can take your rights away, or give you ones you don't want (like the Lochner right for bakers to work dangerously long hours). Because rights are granted by God, amending the Constitution to restrict them is seen as mildly sacrilegious - there are surprisingly few attempts to amend the Constitution to reverse bad nominally rights-protecting SCOTUS decisions. Instead, political factions mobilise to pack the Court.
The thesis of the Canadian Charter is that the Queen and People, through the Constitutional amendment process, grant rights (as a collectivity) to themselves (as individuals) and therefore retain the power to revoke them, providing they do so with specific intent (by amending the Constitution or using the notwithstanding clause).
I think we can all agree that there have been egregious cases where SCOTUS failed to enforce Constitutional rights (depending on our political views, we may disagree on some cases, but I think everyone agrees that Jim Crow should have been prohibited by the Reconstruction Amendments). The normal reason is partisan entrenchment through the judicial appointments process - SCOTUS justices have been partisan figures appointed to change the meaning of the Constitution in a partisan way ever since the Constitution was ratified. There have also been egregious misuses of the notwithstanding clause (particularly discriminatory language laws in Quebec - and again the main driver was province-level partisan politics). The question of whether Divine Right of Judges or Do Not Push this "I Win" Button is the marginally less problematic procedural safeguard is an empirical one.
And of course even when these safeguards work, the fact that they work is a political convention and not a law of nature. The executive simply ignoring adverse legal rulings and still being obeyed by the troops is a thing ("Justice Marshall has made his decision; Now let him enforce it!"). So are out-and-out military coups.
The only thing that can actually protect fundamental rights is a political culture that takes them seriously and armed forces (including police) which are embedded in that culture. The reason why the right to keep and bear arms is protected in America but not elsewhere is not because the Second Amendment exists (RKBA is included in the English Bill of Rights as well, but we notoriously don't enjoy the right) but because a large, organised group of voters is committed to defending it. When there wasn't a large, organised group of voters committed to defending the RKBA, people didn't actually enjoy it.
At the moment, we don't have such a political culture in the Anglosphere, on either side of the political fence. (Even if you ignore rights whose very existence is a matter of partisan controversy like RKBA). The dominant left-wing faction is the wokists. Wokists believe that ending identity group based discrimination is sufficiently urgent to override everything else, and that appeals to fundamental rights are mostly bad-faith attempts by bigots to protect their right to discriminate. The dominant right-wing faction is Trump/Johnson/Ford-style populism. Right-populists believe that overthrowing a corrupt elite is sufficiently urgent to override everything else, and that appeals to fundamental rights are mostly bad-faith attempts by elites to frustrate the will of the people.
I don't like this, but it Is, and rationality requires me to distinguish between what Is and what Should be. For this reason, and no other*, I am in favour of safety valves like the notwithstanding clause. If Doug Ford abuses the notwithstanding clause, and pays no political price for it, then the people of Ontario will have lost their rights due to laziness. Pretending that this can't happen is dishonest.
* There are also federalism-based reasons for the notwithstanding clause, which I don't understand because I am not familiar with the history of federalism in Canada.
Great reply. The effort is much appreciated.
I understand that your intent wasn't to give a full, technical description of the system of rights in the US, but this summary does not reflect the nature and origin of American rights. Americans have rights because America was established by Englishmen. English rights are, essentially, a series of rights derived from natural philosophy and Christianity combined with a long standing tradition of having such rights in fact, AKA the common law. The rights of Englishmen are essentially a birthright, and were viewed as such by the relevant players at the founding on all sides.
In any event, the rights of Englishmen in the colonies were thus transferred with the colonists as Englishmen, and through various legal instruments, crown charters, the courts established in the colonies which were common law courts, etc. Come the revolution, the common law persisted, and was officially recognized by the states by statue, and the common law rights most at issue in the revolution were recognized in the state and federal constitutions, etc.
So its not the case that "the US Constitutional tradition is that God granted Americans certain rights." Rather, God created the world(or the world is as it is), Englishmen have observed the world and decided upon certain rights according to natural philosophy and long-applied those rights, and Americans inherited and continued the rights of Englishmen and the whole common law system from which they are derived. As to interpretation, the common law has a built-in interpretative framework, so interpreting the law comes with a user manual, even though most people pretend it doesn't.
Although it apparently seems otherwise, I don't disagree that a strong culture and strong individual action are required to protect rights. This is obviously true. However, I do assert that American rights are unique from other rights because they come with the strongest institutional and procedural safeguards, and are formulated in the strongest manner.
Consider the example you provided about the RKBA in England. I agree that the English do have the right and that the crown is infringing upon that right moreso than the US federal government. More importantly, I would say that the reason the RKBA is protected in America but not elsewhere is literally because it says "shall not be infringed" in big bold letters right on the front of the box. To phrase it in the manner of the "strong culture" argument, I assert that the American framework of constitutional protection just described is the reason why we have the strong culture and institutional protections which protect the right. Its much easier to build and maintain a protective culture when the argument is as simple as, "see for yourself, it says 'shall not be infringed' right there and no more." In the practically identical Anglo cultures which took a different approach (UK, CAN, AU, NZ), the right is infringed to the point of practical elimination. Hence, I find that the US system of rights is indeed superior.
In addition, and in line with my original post, I find that a lot of people from cultures with less-protected rights than the US rely too heavily on the "strong culture" argument to insist that they have the same or stronger rights, when what they have is a prosperity derived from US power. I think people discount what their cultures and societies would be like, and what their legal systems would permit, if the US were not there to provide military and economic dominance. Its easy to shout "look how strong our culture of protecting rights is" from the EU when America guarantees and provides their prosperity. Things would look very different if the US packed up and went home.
I'm not sure I follow this objection. I understand you to mean that people deserve whatever happens to them because they could have behaved differently in the past to avoid that outcome but did not. Why not eliminate the notwithstanding clause entirely to prevent its abuse and install American-strength rights? This will provide them with superior protection, and, if the people want them changed, then they can exercise their political will, and if they do not exercise their will, then the result is "due to laziness" but they still retain the superior protection.
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