U.S. Supreme Court Justice Felix Frankfurter had a close shave with public embarrassment recently -- which might seem impossible for a man who has been dead for almost 33 years.
Here’s why: In the late 1940s, Frankfurter advised B.N. Rau, the chief draftsman of the Indian Constitution, not to include a due process clause such as the one that the U.S. Constitution cribbed from Magna Carta. The concept was viewed as an inspiring-yet-vague term that had plagued arguments of the U.S. Supreme Court for two generations. Rau listened, omitting the clause, which had previously enjoyed support from the other drafters, and India was better for it.
At the time, this sort of advice was considered a service to democracy.
Today, however, such advice is treated as a national scandal. Justice Ruth Bader Ginsburg has spent the last two weeks in hot water for telling an Egyptian TV interviewer that Egypt might do better to emulate the up-to-date South African constitution rather than our 223-year-old model.
Why the uproar? It is not only that shameless politicians today will take any opportunity to criticize any public figure identified with the other party -- even a 79-year-old justice who is a legitimate national hero. The worry goes deeper, to the roots of America’s present insecurity and fear of its own decline.
A study to be published this summer in the New York University Law Review shows that the U.S. Constitution is now copied less frequently by countries writing new constitutions than in the immediate aftermath of World War II, the peak measured by the study’s authors, David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.
The implicit fear, made manifest by a posse of commentators, is that our constitutional “soft power” is in decline -- much as our hard power is perceived to be faltering.
Fortunately, this worry is unfounded. A better measure of the influence of the U.S. model would be to study how much other countries copy our constitutional system, not the literal text of our Constitution. By that standard, the Philadelphia consensus is more influential than ever.
Consider judicial review, undoubtedly the fastest-growing trend in new constitutions around the world. The practice of justices reviewing legislation and being able to overturn measures they deem in violation of the constitution was born in the U.S. It represents a radical innovation in constitutional design. And everyone seems to love it -- even Islamists who think that their constitutional courts should review legislation to make sure it conforms to the values of Islamic law.
But the words “judicial review” appear nowhere in the U.S. Constitution. The practice is an innovation introduced in 1803 by the Supreme Court under Chief Justice John Marshall in the now famous case of Marbury v. Madison. Marshall claimed that judicial review was required by the very structure of a written constitution with a judiciary charged to “say what the law is.” Yet this itself was an act of interpretation, one that has not been uncontroversial in our history. And the Supreme Court exercised this power extraordinarily sparingly until the modern era.
Once the court was in the business of policing constitutionality, it developed a set of rules for doing so. The most prominent -- the bane of law students everywhere -- is the so-called balancing test, which asks if an abridgment of constitutional rights is justified by a compelling government interest, and is narrowly tailored to achieve that interest.
Constitutions all over the world require similar balancing. But the newer ones typically copy the Canadian constitution, which provides more detailed (and very useful) instructions for how this balancing should take place. Countries might prefer to follow the U.S. model -- but they couldn’t even if they wanted to. Balancing tests are never mentioned in the U.S. Constitution. Indeed, the document presents our rights as absolute -- even though common sense dictates that it must be possible to abridge the free speech of someone who falsely shouts fire in a crowded theater.
So why are some Americans worried if the language of the U.S. Constitution is copied less frequently than it once was? The answer lies in the very thing that drafters of new constitutions are trying to avoid: the fight among the Supreme Court justices about originalism. Today’s analogue to the old wars over due process, the originalism debate pits those who claim it is possible to recover and apply the framers’ intended meaning against those who believe that the document must be treated as a living thing, growing and developing in keeping with changing needs, institutions and circumstances.
The truth is that no sane constitution-drafters would want the future court of their country to spend its time arguing about what they really meant -- or even about public perception of what they meant. Debates about what the Constitution originally meant become proxies for arguments about what the Constitution ought to mean.
Today, Justices Antonin Scalia and Clarence Thomas regularly find that the original meaning leads to conservative conclusions. Yet Frankfurter’s antagonist, Justice Hugo Black, was an originalist who used history to generate liberal results. None of these justices was making up the past; but none was engaged in “objective” history either.
This is why Ginsburg was telling the Egyptians to borrow from modern constitutions -- because they spell out the answers to contemporary problems. If a constitution is fresh from the box, judges don’t have to channel historical figures to decide whether violent video games are a form of free speech, or whether owning handguns is covered by the right to bear arms for the purposes of preserving a well-regulated militia.
When Ruth Ginsburg was a brilliant young law school graduate, she was recommended to Frankfurter as a law clerk. Frankfurter had hired the first African-American Supreme Court clerk, but he turned Ginsburg down -- because she was a woman. In retrospect, one suspects, Frankfurter would have acknowledged his mistake. And he would have applauded Ginsburg’s advice to new drafters. When it comes to constitutions, the lesson is do as we do, not as we say.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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