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 South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary... It really is, I think, a great piece of work that was done. Much more recent than the US constitution - Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world?
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Feb '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
From the Senate Judiciary Committee hearing, March 2014:
Edited on February 3, 2012 at 1:23pmNov '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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seems to me that her description of the US Constitution still comes down to the Progressive line: it is an interesting historical document but, being old, is by definition no longer useful as a model.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.
Apr '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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.
Apr '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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.
Apr '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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.
Jan '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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.
Oct '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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;
Edited on February 3, 2012 at 2:26pmOct '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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:
Nov '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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.
Oct '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
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.
Apr '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
Aha! Ruthie thinks the U.S. constitution sucks! No wonder she pays no attention to it!
Apr '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
Ginsburg ain't supposed to be making law. You put your finger right on the problem.
Oct '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
Fred Cole
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.
You're making the common mistake of assuming that written Constitutions engineer societies, instead of the other way around. Our Constitution was not written as a social engineering document per se--it was a complicated powersharing agreement between independent states, that often hated each other but feared disunity and Great Britain even more.
You cannot write down a Constitution and assume society will follow it. Many, many countries have made this mistake. Remember that constitutional governance originally arose in the purely unwritten constitution of Great Britain. Societies create constitutional orders--constitutional orders do not create societies. Any constitution must reflect underlying social and demographic realities, and have the full backing of both the people and the existing political elite.
Nov '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
· 15 hours ago
So, is she saying what I think she's saying -- that the US Constitution is NOT a deliberate attempt to embrace basic human rights, and does NOT have an independent judiciary?
And if the US judiciary is not independent, who is SHE not independent from?
Funny, I remember something about "inalienable rights" being in some important document that preceded the Constitution; I suppose, though, that a document that founds a nation has no relationship to the document that founds the government of that nation.
Nov '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
genferai, in your defense of Bader-Ginsberg, you were the first one to have introduced the notion of treason. I don't think anyone had accused her of that conduct, which anyone who has actually read the Constitution would know is a precisely limited offense, which "shall consist only in levying War against [The United States] or in adhering to their Enemies, giving them Aid and Comfort." So you have successfully defended her against a charge no one had made.
What I accused her of was the impeachable bad behavior of violating the core of her Constitutional oath to "support this Constitution." You argue context, that she proudly notes that ours is the oldest written constitution. She might be proud of that fact the way someone might be proud of living in a society that produced the first internal combustion engine. But the clear context of her remarks was her belief that our Constitution has been so far surpassed by more recent fabrications that, by the year 2012, it was no longer worth "looking to," for any purpose. She mentions its age, not as a virtue, but as evidence of obsolescence. To fail to support the document that should rule her judgments is judicial insubordination for which she should be removed.
Edited on February 3, 2012 at 11:19pmSep '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
If you wish to understand the Canadian Charter of Rights and Freedom and how it differs from the US Constitution then you're probably going to have to wrestle with H.L.A. Hart's corpus.
May '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
Those of you offering various defenses and so forth are now seeing emanations and penumbrae from the fallen Justice's own interview. I heard what she said, and I do not need progressive apologies for progressive sins.
She needs to go.
Aug '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
In a back-handed defense of the Justice, could she be saying, not that the US Constituion is not good enough for the Egyptians, but instead that the Egyptians might not be good enough to make use of a US-style Constitution?
Our Constitution is suitable for a freedom-loving, self-governing people.
I wish I were more certain that that included us.
Sep '10
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
Apr '11
Re: Ruth Bader Ginsburg to Egypt: US Constitution Not That Great
R0bert Scott
Ginsburg ain't supposed to be making law. You put your finger right on the problem. · 24 hours ago
She is supposed to be explaining it, though. Kennedy's opaque opinions fail to meet the limited standard we do require from judges, even while the assumed authority extends well beyond that intended to be offered to them. Ginsburg is poor on the latter count, but relatively good on the former.