02.23.2012 0

Justice Ginsburg substitutes Constitution for foreign buffet

Justice Ruth Bader Ginsburg

Photo Credit: DonkeyHotey/Flickr

By Mark  Wohlschlegel —

“I, ________________, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” 

Above is the oath that any member takes before taking federal office.  Compare this with the statements made below:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

How do you reconcile this statement with the oath?  What would you think if I told you that both were made by the same person?  What if I told you this person was a member of our federal government?  Finally, what would you say if I told you that this person is a current sitting Supreme Court Judge, one charged with supporting and defending our Constitution?

That’s right.  Madam Justice Ruth Bader Ginsburg, who took the oath of office on August 10, 1993, recently met with Al Hayat TV in Egypt and made plain her utter disdain for the U.S. Constitution when discussing the forming of Egypt’s new constitution. To put this in context, let’s see how she expounded upon her statement:

 “Now I can’t speak about what the Egyption experience should be because I am operating under a rather old constitution.  The United States in comparison to Egypt is a very new nation and yet we have the oldest written constitution still enforced in the world.”

“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, [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?”           

This stinging criticism should not come as a surprise when one looks at the South Africa Constitution in comparison to Madam Justice Ginsburg’s action as a Supreme Court judge.   Madam Justice Ginsburg has played a leading part in having the U.S. Supreme Court look beyond America’s boarders for guidance in her decision.

In 2003, the U.S. Supreme Court it struck down a prohibition on gay sex, reasoning such was “an integral part of human freedom in many other countries.” Also in 2003, Ginsburg highlighted an international treaty that supported race-conscious programs to uphold an affirmative action policy at the University of Michigan.

Instead of running around the world looking through the foreign buffet of decisions to back her rationale, Madam Justice Ginsburg should have followed the example of her fellow Justice Sandra Day O’Connor, who used U.S. law exclusively to form her decisions.  Instead Madam Justice Ginsburg has chosen to subrogate the supreme law of the land for foreign law.  Furthermore, her claim that our constitution is “old” and outdated is also an open admission that this document was not meant to be treated as a “living” constitution.  Had Madam Justice Ginsburg been working under the South African Constitution, which holds that one “must consider international law,” she needn’t look further for justification than its thorough Bill or Rights.

To defend the right of gay couples, she need only cite the Right of Equity (Ch. 2:9), which restricts the government and private parties from unfairly discriminating on the basis of sexual orientation and belief; and also the right of Freedom and Security of the Person (Ch. 2:12), which guarantees that “Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction [and] to security in and control over their body.”

To defend an affirmative action policy at a school, she could also cite the Right of Equality (2:9) restricting unfair discrimination based on race; and the Right to an Education (2:29), guaranteeing a “basic education”, and “further education, which the state… must make progressively available and accessible.”

The United States Constitution, instead of compiling a long list of “rights”, chose to leave any unmentioned to be “retained by the people.”    Any powers not delegated to the federal government are “reserved to the States respectively, or to the people.”

In a day when Presidents and Supreme Court Justices are ignoring the Constitution and the very oath they took to defend it, I believe we are on the verge of losing our identity as Americans.  When our government officials turn to foreign law for their guidance, we the people of the United States, who place these individuals into office to protect us and our laws, will be subrogated to the whim of foreign jurists, who may not even share our same democratic form of government.  By advocating her preference for foreign law over ours, Madam Justice Ginsburg has violated her oath and betrayed her country.  She may as well take the U.S. Constitution and burn it on the steps of the Supreme Court.  In short, she has shown the U.S. Constitution does not matter.

As a caveat, we could learn something from South Africa’s Constitution, which holds that, “A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first.”  (8:176)  What would the 78 year old Madam Justice Ginsburg say to that?

Mark Wohlschlegel is a legal analyst with Americans for Limited Government.

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