Supreme Court Justice Ruth Bader Ginsburg gave an interview to an Egyptian television network recently, and her responses to questions about that nation’s ongoing process to create a new Constitution for itself were interesting to say the least:
Amid fresh clashes in Egypt, the U.S. Embassy in Cairo has posted an Alhayat TV interview of Justice Ruth Bader Ginsburg. She traveled to the region last month in coordination with the State Department to meet Egyptian counterparts as they begin the nation’s constitutional transition.
“It is a very inspiring time, that you have overthrown a dictator, and that you are striving to achieve a genuine democracy,” the U.S. Supreme Court associate justice says. “So I think people in the United States are hoping that this transition will work, and that there will genuinely be a government of, by, and for the people.”
She says that after meeting with the head of the election commission, she was pleased to see that the recent elections in Parliament’s lower chamber were considered free and fair.
“Let me say first that a Constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom.,” Ginsburg, 78, says in the Jan. 30 interview. “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. ”
Asked by the interviewer if she thought Egypt should use the Constitutions of other countries as a model, Ginsburg said Egyptians should be “aided by all Constitution-writing that has gone on since the end of World War II.”
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,” says Ginsburg, whom President Clinton nominated to the court in 1993. “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 U.S. Constitution.”
Here’s the video of the full interview, the first minute or so is in Arabic but the rest is in English:
And, here’s the transcript of the part of the interview that’s gotten the attention of more than a few people:
Q: Would your honor’s advice be to get a part or other countries’ constitutions as a model, or should we develop our own draft?
A: 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 U.S. 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? I’m a very strong believer in listening and learning from others.
Not surprisingly, this comment is already arousing the predictable response from the right. John Hayward at Human Events put it this way:
The Egyptians could use exactly the kind of timeless and powerful ideals laid out by the brilliant framers of the United States Constitution, a document written precisely to thwart the ambitions of “reformers” who think utopia is just a few trampled individual rights away.
They could also stand to hear a robust endorsement of American ideals from someone who actually loves and understands this country, not a mealy-mouthed half-hearted squeak from someone who dwells on our failures, and admires the rest of the world for being so much more enlightened than we are. The darker forces battling for the soul of Egypt will not be hesitant in advancing their ideals. They won’t waste any time talking about the deficiencies of their ancient laws, or suggesting the Egyptian people look around the world for more advanced upgrades to their timeless ideals.
Meanwhile, those Americans who recoil from the idea of a Supreme Court populated by people who are willing to express such casual contempt for the U.S. Constitution before foreign audiences should remember that electing Democrats to the White House means you’re absolutely guaranteed to get more of the same.
Having watched the entire interview, I think its somewhat absurd to characterize Ginsburg’s statements as expressing “contempt” for the U.S. Constitution. To me at least, it seemed as though she was making an entirely practical point about whether the system of Government that the United States adopted in 1787 is really appropriate for a non-Western country 200+ years later. It’s worth noting that our system of government is rather unique in the world, and that it hasn’t really adapted well when other countries tried to adopt something similar. David Weigel notes, for example, that the Mexican Constitution of 1824 was based to a large degree on the still-new U.S. Constitution. It proved to be a bad fit for Mexico and was abandoned by 1835. Since then, few nations have fully adopted the structural elements of our Constitution, preferring instead to copy some variation on the Parliamentary systems developed by Great Britain and France.
Of course, as John Tabin points out, there is one area where our Constitutional system has worked better than most others in the world. There are few nations in the world with protections for freedom of speech and religion as broad as those we have in the United States. In Canada, for example, freedom of speech is under constant assault by so-called “human rights” laws that would seek to prosecute people for voicing opinions or making statements of religious faith that some group or another finds offensive. To that degree, I would say that Ginsburg is wrong to say that such nations should be a guide for any other nation seeking to create a Constitution that would both create a functional government and protect individual liberty. Were I looking for a guide in that regard, I doubt one could find a better example of where to start than the Bill of Rights. Of course, I doubt the Egyptian powers-that-be really want to have the kind of freedom that a real Bill of Rights would give the Egyptian people. That’s why so many of nations have a very diluted example of what one would call a “Bill of Rights” that gives far too much authority to the government.
In that sense, then I think Ginsburg is mistaken to point to nations like Canada and South Africa as ideals for a nation considering a charter of rights to add to their Constitution. As far as her main argument goes, though, I think Weigel gets it about right:
I don’t see how you could argue the opposite — all transitional democracies should start with the Constitution we wrote in 1787! — unless you’re writing a Toby Keith song or something. Hell, we’re among the countries that have done some constitution-writing since the end of World War II. Ask a sponsor of the Balanced Budget Amendment; more boringly, ask someone who helped institute presidential term limits.
As a final point its worth noting that Constitutions are above all a reflection of the culture and values of the people that they are adopted by. The idea that we could just take a document that was written during one hot summer 225 years ago and graft it onto a completely different nation without taking into account not only those differences, but also; the numerous Amendments we’ve ratified over the years, the Court decisions interpreting the document, the things we all agree should be fixed, and how other nations have done things is little more than mindless jingoism. We live in a nation of 50 states with 50 different Constitutions, many of which have been changed several times over the years, why wouldn’t the same be true of the world? More importantly, I doubt you’d find a single person on either side of the political aisle who has advised other nations on drafting new Constitutions that would disagree with with the fundamental point that Ginsburg made.
So, yes, Ginsburg is partially incorrect here, but “contempt” for the Constitution? Don’t be ridiculous.
