Justice Ginsburg—A Profound Misunderstanding of the Founding

“The Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.”—Alexander Hamilton

A few days ago, Justice Ruth Bader Ginsburg talked on Egyptian television about the United States Constitution. Constitutional conservatives were taken aback by her advice:

“You should certainly be aided by all the constitution writing that has gone on since the end of WWII. I would not look to the United States 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 a great piece of work. Much more recently than the U.S. Constitution, is Canada’s Charter of Rights and Freedoms that dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world. I’m a very strong believer in listening and learning from others.” (emphasis added)

She of course means learning from others as long as they are not the Founders of the United States. Her entire interview can be found at this State Department posting on YouTube.

Most Americans operate under the misconception that the Supreme Court protects the integrity of the Constitution. Justice Ginsburg has shown in this interview that some justices don’t understand the document they have sworn to “preserve, protect and defend.” Beyond revealing her low opinion of The Constitution, this twelve minute interview provided insight into her thought process. Others have made her disregard for the Constitution a cause célèbre, but the reasoning behind the position is even more revealing.

There are two themes that run through her long answers. The first is that the Constitution is old—far too old to be really applicable today. The second is that a Constitution is a mere vehicle to carry a listing of rights.

In the interview she seemed intent on disparaging the Constitution based on its age.

• “I’m operating under a rather old constitution…”
• “It was well over two centuries ago…”
• “You should certainly be aided by all the constitution writing that has gone on since the end of WWII.”
• “Much more recently than the U.S. Constitution…”
• “When you go back to when the constitution is new in the 1780s…”

Progressives love to disparage the Constitution by pointing out that it is over two hundred years old.  This amounts to name-calling without arguing any substantive issue.  As the supreme law of the land, the Constitution defines our limited, republican form of government with integral checks and balances to protect people from government abuse.  Since national and state legislatures have the authority to make laws dealing with modernity like the Internet, the age of the Constitution is not relevant.

Which brings up Justice Ginsberg’s second theme.  She said, “The Constitution, first it should safeguard certain fundamental rights.” Government does not safeguard rights; governments are the ones that threaten rights. Constitutions define a governmental form. The reason the Founders did not initially include a Bill of Rights was because they had little faith that a list could protect rights.  As Washington wrote, “No wall of words, … no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.” The Founders put their faith in a government limited by enumerated powers. They believed if they decentralize power and provided potent checks, individual rights would be safe.  Justice Ginsberg discarded the Constitution in favor of listings of rights. This is wrongheaded because government allotment of rights would make the government all-powerful.

Toward the end of the interview she displays guilt over practices that were prevalent in the eighteenth century. She said, “We were just tremendously fortunate in the United States that the men who met in Philadelphia were very wise. It’s true, they were lacking one thing. That is there were no women who were part of the Constitutional Convention … We are still forming the more perfect union. When you go back to when the constitution is new in the 1780s, we still had slavery in the United States. The Constitution, of course, has changed in important respects, but in the proper constitution—I carry it around—it still has that slave trade was preserved until the year 1808, that there was what we called the fugitive slave provision … We keep those provisions, although they are no longer enforced, just so people would see how imperfect we were and how much more perfect (sic), but we’re still not all the way there … People who were left out in the beginning. Native Americans were left out, certainly people held in human bondage, women, people who were newcomers to our shore.”

This is wrong on so many levels. First, saying, “it still has that slave trade was preserved until the year 1808,” is a glass-half-full statement. James Wilson reflected the opinion of most of the delegates when he wrote, “If there was no other lovely feature in the Constitution but this one, it would diffuse a beauty over its whole countenance. Yet the lapse of a few years, and Congress will have power to exterminate slavery from within our borders.” She is right about the fugitive slave provision, but that was the price of the 1808 compromise. Ironically, Western culture and our United States Constitution righted many wrongs long ago, yet most of these wrongs continue to persist in Egypt.

The oddest statement is “We keep those provisions, although they are no longer enforced, just so people would see how imperfect we were and how much more perfect (sic).” She never says that amendments actually changed the Constitution, only that these provisions are no longer enforced. And we certainly did not keep them to demonstrate the progress we have made on the perfectibility of man. There is a reason she didn’t bring up the amendment process: the Supreme Court powers are diminished if Americans insist on adhering to the amendment process.

These two themes are the standard way progressives disparage the Constitution. Neither are thoughtful arguments. Rather, they are designed to stop debate. Justice Ginsberg went to a foreign country and dismissed the Constitution she pledged to protect, and showed a shocking ignorance of founding principles. If something can be dismissed merely because of age, it is past time for her to retire.

James D. Best is the author of the Steve Dancy Tales and Tempest at Dawn, a novel about the 1787 Constitutional Convention. Look for his forthcoming book, Principled Action, Lessons from the Origins of the American Republic.