02.29.2012 1

Ginsburg is missing a fundamental point

Justice Ruth Bader Ginsburg

Photo Credit: DonkeyHotey/Flickr

By Mark Wohlschlegel — In a previous article, I reflected on some of Madam Justice Ruth Bader’s Ginsburg’s comments regarding the U.S. Constitution when interviewed with Al Hayat TV in Egypt.  In particular, I highlighted how her fascination with foreign law and dismissive comments about the U.S. Constitution is an outright violation of oath she took to defend and protect our Constitution.

Furthermore, her actions both here and in the past pose a real danger to all Americans, as it opens us up to no longer be judged by our peers, but rather we are now susceptible to the whim of foreign jurists who may not hold to the same values we do — and all this because Madam Justice finds that these foreigners hold similar “superior” views to her own.   Because her ancient document doesn’t confirm or conform to her views, she is forced to look elsewhere.

Now, based off the same interview, I want to draw your attention to the fact that Madam Justice Ginsburg either is ignorant or chooses to willfully overlook the very fundamental purpose the U.S. Constitution was created for — it is not a document designed to empower the government to protect its people, but rather one that was designed to protects its people from their government.  That bears repeating — the Constitution was designed to protect the American people from their government.

Consider the Ninth and Tenth Amendments of the U.S. Constitution:

“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people.”—9th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”—10th Amendment

This is a distinctly different view than the modern documents cited by Madam Justice Ginsburg.  For example, take her quote on the praise of South Africa’s constitution:

“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, [and] had an independent judiciary.  It really is, I think, a great piece of work that was done much more recently than the U.S. Constitution… So yes, why not take advantage of what there is elsewhere in the world?”

What attracts Madam Justice to this modern document is the emphasis on “human rights” — and the role government plays in the interpretation and enforcement of such right.  While the U.S. Constitution’s  Bill of Rights is found in the first Ten Amendments, after the body of our document, the South African’s Constitution places its Bill of Rights in place of preeminence — in Chapter 2 of the Constitution, second only to the Preamble and Founding Provisions (Ch. 1).  It then proceeds to stretch over 32 sections, naming rights that go beyond both those political and civil, and include economic, social and cultural rights.  The list is rather exhaustive and would seem to lend itself to subjective interpretation in its application.

However, aside from this, a key fundamental difference between the South African Constitution and ours is that it explicitly states that it does not only apply to all branches of its government, but also extends to private parties:

(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. – Bill of Rights: Application (Ch.2, Sec. 8)    

This provision, combined with the subjective nature the South African Bill of Rights in effect, creates a powerful government that is now authorized to be involved in every detail of its citizen’s lives.  This is the type of power that Madam Justice Ginsburg craves.  It is the reason she puts down her own Constitution, which, as it was designed, limits what she can and would like to do.

“…I am operating under a rather old constitution.  …[W]e have the oldest written constitution still enforced in the world.”

Our constitution is outdated?  While it is certainly not a perfect document, it has served this country almost 225 years!  And what of this modern document Madam Justice so highly recommends?  The current constitution of South Africa is actually its fifth — the second constitution founded under President Nelson Mandela.   It took effect only 15 years ago, on February 4, 1997.  It has been amended sixteen times in its brief existence!

That is not a track record one can put their faith in.

Finally, by the claiming that our Constitution is “old” and “outdated”, isn’t Madam Justice Ginsburg implicitly admitting that we do not have a “living Constitution”?

A curious admission from someone who’s whole career in jurisprudence is rooted in the “living Constitution” dodge.

Mark Wohlschlegel is a Staff Attorney for Americans for Limited Government (ALG).

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