This article originally appeared in The Detroit News August 25, 2026.

The United States and Canada have both wrestled with an important question about public policy. Which branch of government should make law — the legislative body or the courts?

Tim Haggstrom is a constitutional lawyer from Calgary, Alberta. Haggstrom spent three days in Michigan this month, where he and I discussed economic relations between our countries, differences in our legal systems and the overlapping history of our judicial philosophies.

Haggstrom runs the Runnymede Society, a national organization that engages law students, lawyers and judges in Canada.

When speaking to Americans, Haggstrom likes to point out our shared history. He starts in the year 1215, when King John signed the Magna Carta. The Runnymede Society takes its name from the meadow along the River Thames where the king agreed to the compact that paved the way for modern separation of powers.

Canada, like the United States, has grappled with significant constitutional questions. On the question of who decides what a country’s public policy should be, Haggstrom described two approaches.

Political constitutionalists, he said, “prefer that important moral and policy questions are decided through a political process, generally through decisions made by elected representatives.”

In contrast, legal constitutionalists prefer that judges decide important moral and policy questions, rather than elected representatives.

Haggstrom mentioned three cases that illustrated this contrast in legal approaches. In 2014, the Supreme Court of Canada invalidated certain civil litigation fees as unconstitutional. A year later, in two separate cases, the court recognized the constitutional right to strike and the right to physician-assisted suicide. In each case, the court discovered rights not found in the text of Canada’s Constitution.

“If the judges can reinterpret or understand anew what the Constitution says about social values, the judges are making those types of decisions,” Haggstrom said.

Alarmed by a judiciary unencumbered by the Constitution, three lawyers founded the Runnymede Society in 2016. Today, the society has chapters at 21 of the 24 Canadian law schools. It holds public debates on the principles of constitutionalism, the rule of law and fundamental freedoms.

One unique feature of Canadian law is found in the Canadian Charter of Rights and Freedoms, which allows a legislative override of legal decisions.

“If the courts decide that a law is inconsistent with certain provisions of the charter, the legislature has one last card to play,” Haggstrom said. “It can add some essentially magic words to an act, a law that is passed, and say, actually, this law is going to continue to operate even though the courts may think that it’s inconsistent with our Bill of Rights.”

Haggstrom says this process restrains judges who go beyond their role of constitutional interpretation. He contrasted it to the trend in American jurisprudence of originalist judges. Originalism, championed by the late Justice Antonin Scalia and others, holds that the U.S. Constitution today means exactly what it meant back when it was written. The meanings of the words don’t shift with time, and judges should not import their own views into the text.

I asked Haggstrom about the relationship between the United States and Canada. He acknowledged political tensions, and said tariffs have had a “significant impact in some sectors.” But he thinks the tension is temporary.

“The fundamentals are that we’re deeply connected,” he said. “So many Canadians are either dual citizens, or have family, or have friends or travel at some point of the year somewhere to the U.S.”

Ultimately, Haggstrom is optimistic.

“I think we can learn from each other and gain from having rich discussions about these kinds of constitutional issues.”

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