Ruth Bader Ginsburg to Egypt: US Constitution Not That Great

Really. In an interview given this week on Egyptian TV, which you can watch here, she says:

You should certainly be aided by all the constitution-writing that has gone one since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of Sou…

  1. Israel P.

    Sorry.  “Edit” created a new post.

  2. Israel P.

    I really messed up the editing, didn’t I?!

  3. Tom Lindholtz

    Since nobody else has mentioned the obvious, allow me.  Utterly unsurprising as this is, it is precisely the reason why this election is important.  With good fortune smiling, the next President may have the opportunity to replace Justice Ginsburg.  Wouldn’t it be nice to have someone with an appreciation for the document that is supposed to guide the court’s deliberations?

  4. Astonishing

    Article 6 required that Bader-Ginsberg “shall be bound by Oath or Affirmation, to support this Constitution.”

    In accordance with Article 6, she did “solemnly swear (or affirm)” that she would “perform all the duties incumbent upon” her as a Supreme Court Justice “under the Constitution,” of which duties the most tautologIcally obvious is the duty to support the Constitution.

    Her putridly banal statement that she “would not look to the US constitution, if [she] were drafting a constitution in the year 2012″ does not support the Constitution Her putridly banal statement instead undermines the Constitution by impugning the continuing value of the formative and supremely authoratative expression we the people ordained and established in order to form a more perfect union.

    Her words, if accepted as guiding wisdom from a sitting Justice in the year 2012 or any other year, would dissolve the foundation of our union. For such bad behavior, the proper remedy is impeachment and removal.

  5. Cutlass
    Valiuth: …Egypt probably needs a set of laws that are very clear and well defined anything less that gives wiggle room will only encourage corruption and abuse…which it already faces in spades. Thus South Africa might be a better model for such a document. 

    All fair points.  Were Justice Ginsberg challenged on this and clarified her comments with your logic I’d be ecstatic (okay, if she were challenged on this at all I’d be ecstatic).

    However, how is one to interpret this: ”I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights.”

    She’s clearly expressing the view that protecting citizens from the tyranny of government was not an “embrace (of) basic human rights,” because she has a distorted view of “human rights” that is fundamentally at odds with the values that created this great nation.

    That said, the framers weren’t perfect.  If anything, history proves they put way too much faith in the reading comprehension skills of future generations.

  6. Glenn the Iconoclast
    Michael Labeit: Who’s read the Canadian Charter of Rights and Freedoms? 

    I have.

  7. genferei

    Did anyone actually watch the clip? It is clearly edited extracts, and the feeling I got was that the interviewer prompted her as to whether, in writing the new constitution, there are other things to look at than the US one.

    Earlier she speaks proudly of the US constitution as “the oldest written constitution still in force in the world.”

    More importantly, she makes the following excellent point:

    Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the constitution – first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor.

    That strikes me as a sentiment that a Reagan or a Levin or a Founder could agree with.

    She then goes on – prompted, as I suspect above – to say that other documents should be looked at. I don’t like those constitutions much, but it’s hardly treason.

  8. Joseph Eagar

    Our Constitution is very specific to our national circumstances and demographics.  I don’t think it would be ideal for a society as different from us as Egypt is.  In that sense, Ginsburg is correct.

  9. Israel P.
    Tom Lindholtz: With good fortune smiling, the next President may have the opportunity to replace Justice Ginsburg.  Wouldn’t it be nice to have someone with an appreciation for the document that is supposed to guide the court’s deliberations? · 4 hours ago

    From the Senate Judiciary Committee hearing, March 2014:

    Sen Sessions: Sir, if a country drafting a constitution asked your advice, would suggest they look for guidance to the United States Constitution, or would you prefer the South African, Canadian or some other?

  10. Sandy

    Genferei, You make some interesting points, especially about the editing and her argument about the nature of the population for which the constitution is written, and neither would I accuse Ginzburg of treason, but it seems to me that her description of the US Constitution still comes down to the Progressive line: it is an interesting historical document but, being old, is by definition no longer useful as a model. (One shudders to think what she might say of the Declaration.)   

    If I had to provide her with defense it would be that because the original understanding was a product of another time and therefore by (Progressive) definition no longer correct, the job of the judge is to change that understanding to fit modern circumstances and understanding, and this is what upholding the Constitution means. How much better it would be, therefore, to look to a modern constitution. 

    One has to wonder, though, why she thinks that the 1982 Canadian document should work for 2012, or why any written constitution could ever be upheld against the flux of time.  If she took her fundamentally anti-constitutionalist views to their logical conclusion, she would resign. 

  11. James Of England
    Joseph Eagar: Our Constitution is very specific to our national circumstances and demographics.  I don’t think it would be ideal for a society as different from us as Egypt is.  In that sense, Ginsburg is correct. · 18 minutes ago

    There are a lot of people who feel that way. As a result, in what I believe to be the greatest failure of the Bush administration, Iraq ended up with a constitution on the Belgian model. The Belgians cannot make government work on the Belgian model, and the struggles with a stupid system of proportional representation in a parliamentary democracy are one of the key reasons that they may return to sectarian bloodshed.

    A more patriotic generation of legal scholars took a different view in 1945, so Japan got essentially the US Constitution, but with the Second Amendment reversed (I’m a big fan of the Second, but agree that it’s not great from the perspective of a hostile occupying force). Japan’s went on to do pretty well under it, despite being as different from America as Egypt.

  12. James Of England
    Michael Labeit: Who’s read the Canadian Charter of Rights and Freedoms? · 7 hours ago

    I first studied it at the University of Toronto for a course on the NAFTA, but I think that most people here would come across it through Mark Steyn’s work. Both lead to the same conclusion; the Canadian constitution, like most others in the world, does not mean its rights in the way that the US constitution does. As Steyn points out, free speech protections were far stronger before the “right” to free speech was introduced.

    America’s Constitutionality is not perfect; the existence of West Virginia offends me, for instance, and all right thinking Americans. It is, however, immeasurably superior to all other countries in this regard.

  13. James Of England

    While, obviously, her politics are terrible, I’d like to note that Ginsburg is really not stupid, and takes her job very seriously, working hard. She and Scalia very often end up voting together and writing together on their shared speciality (administrative law). While she often ends up on the wrong side of questions, she does so in a clearer and more honest and accurate fashion than any of her liberal colleagues, from Kennedy leftwards. Ginsburg might have voted for it, but she would never have written, eg., Lawrence v Texas; with a Ginsburg opinion you might disagree with the law, but at least you’ll have a sense of what the law is.

  14. KC Mulville

    There’s an important distinction here. As a matter of law and history, one could make academic arguments about which constitution fits for a particular people at a particular time. If that’s what Ginsburg is talking about, fine … academics.

    But liberal judges (namely Breyer) have said in the past that they were willing to look at other constitutions to get some insight on how to proceed as a Supreme Court justice here. 

    The danger, of course, is if a SC judge believes that his primary responsibility is to “provide justice” … and that if the US Constitution doesn’t give him a clear path, then that judge would feel free to fish for some other justification for his noble quest. In other words, that our Constitution is just one means to the end.

    No. Our system is that a judge only has the authority given in our Constitution. If the judge can’t discover a clear warrant for what to do in our Constitution, he can’t look elsewhere. That’s his only source of authority. 

    Securing justice isn’t a judge’s private mission. That mission belongs to the system as a whole, not to any one judge.

  15. jhimmi

    Its preamble gives us insight into why Ginsburg finds the South African constitution so attractive. Its purpose is to actively heal societal divisions and promote social justice.

    We, the people of South Africa,

    Recognise the injustices of our past;

    Honour those who suffered for justice and freedom in our land;

    Respect those who have worked to build and develop our country; and

    Believe that South Africa belongs to all who live in it, united in our diversity.

    We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to —

     Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

  16. genferei
    jhimmi: Its preamble gives us insight into why Ginsburg finds the South African constitution so attractive. Its purpose is to actively heal societal divisions and promote social justice.

    It does have lots of ‘rights’ that I think many on Ricochet would reject (the same sorts of things that have caused so many problems in Canada and the EU, for example). But I found it interesting that the preamble concludes:

    May God protect our people.

    Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.

    God seën Suid-Afrika. God bless South Africa.

    Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

  17. Fred Cole
    Joseph Eagar: Our Constitution is very specific to our national circumstances and demographics.  I don’t think it would be ideal for a society as different from us as Egypt is.  In that sense, Ginsburg is correct. · 2 hours ago

    I’d have to disagree with that.  There are a few items that are specific to the new United States in the late 18th century (slavery, no quarter of troops in homes), but aside from that, it’s a pretty universally applicable design.  

    As amended, it has almost all the things you’d want in a constitution: it protect individual rights, freedom of speech, religion, personal armament, due process, and so forth.

    It also has checks and balances and limits on powers and methods of enforcement to those ends.

    There’s no demographic aspect of Egypt that negates the natural rights of individual humans.  

    Now, as to if they’d write the same thing, of course not.  Would it pass in a plebiscite in Egypt in 2012?  Of course not.

    Would the US Constitution pass in a national plebiscite in 2012?  Probably not.

  18. Severely Ltd.
    Kervinlee: Was anyone surprised by this? No? Me neither. · 10 hours ago

    I don’t think anyone’s surprised that she held these views, but that she would say it anywhere but in a progressive salon? That is hard to believe. My wife just pointed out how disturbing it is that she felt safe in saying this so publicly.

  19. R0bert Scott

    Aha!   Ruthie thinks the U.S. constitution sucks!  No wonder she pays no attention to it!

  20. R0bert Scott
    James Of England:  with a Ginsburg opinion you might disagree with the law, but at least you’ll have a sense of what the law is. · 2 hours ago

    Ginsburg ain’t supposed to be making law.  You put your finger right on the problem.

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