[An earlier version of this post went up with just the raw quotation and with my introduction, edits, and commentary not showing up, for some reason. Sorry for the confusion.]
Conservatives worry that the U. S. Constitution is being ignored. The next step is for the Constitution to be spoken against and then repudiated. That seems to be happening, even by a Supreme Court Justice! In the meantime, the rest of the world has stopped imitating America’s constitutional system, which, in many people’s minds does not parcel out enough rights, and the rights it does recognize are the wrong ones:
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree [with the irrelevance of the Constitution to new nations today]. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)
Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.
Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.
It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.) . . . .
“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.
Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.
The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”
I suspect that in the years ahead, since nations come and go, that eventually we will be hearing calls to eliminate our obsolete constitution in favor of something new. The new constitution will feature new rights (to food? to health care? to travel?), but other rights will pass away–the right to keep and bear arms will be sure to go. Also, if Canada is to be our guide, the right to express criticisms of Islam. And we can be sure that there will be lots of other “reasonable limits” to what we will be allowed to do.