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.
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.