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, advice 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 United States. 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.