Can Constitutional Drafters See the Future? No, and It's Time to Acknowledge That

Abstract

Perhaps the greatest trouble with constitutional drafting is its tendency to look backward, at the country’s own political and legal history along with international comparative sources. This makes it difficult for provisions to have a textual basis for modern technologies. While such technologies must be dealt with, they are often brought in by judges who can be unprepared for such technological analysis. This paper provides a history of “influential” constitutions and the circumstances that brought about privacy and search and seizure provisions, along with drafting recommendations that will alleviate this problem for future drafters.