For those of you who keep current with political news the topic I am about to address, yes, I realize that the topic I am about to address is a few months old. It is not that I am just becoming aware of it. In fact, I was “hot on it’s trail” when it happened…but I decided to put it on the back burner and address it later after I had had some time to “cool down,” so angry did this news make me.
I am well aware of the fact that I tend to pay more attention to politics and care more passionately about it than the average citizen, and so I may get riled up over things that others may not even notice. But if this one goes unnoticed we have a serious problem.
See, in February, U.S. Supreme Court justice Ruth Bader Ginsburg visited Egypt, and while she was there she took a swipe at the U.S. Constitution. She said, “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” Instead, she suggested that the constitution of South Africa might be a better model, since it “embraced basic human rights [and] had an independent judiciary.” Justice Ginsburg has also been known to express admiration for the Canadian Charter of Rights and the European Convention of Human Rights.
One of the reasons Ginsburg has expressed discontent with the U.S. Constitution is that it originally excluded women, slaves and Native Americans. (Of course, until recently, South Africa excluded blacks, too). I don’t think anyone would argue that the the U.S. Constitution is perfect. It was wrong to tolerate slavery and to exclude the vote from women and other minorities. Those flaws have, thankfully, been corrected. Therein, however, lies part of the beauty of our Constitution; it allows for corrections and amendments.
I do not fault Ginsburg for suggesting the a newly-forming representative democracy look at a field that does not contain the U.S. Constitution exclusively while preparing to draft its own constitution. What I do find egregious is her suggestion that the U.S. Constitution not be looked at at all. Notice she did not say that she would not look exclusively at our Constitution; she said, “I would not look to the U.S. Constitution.”
By the way, are Canada and the EU really examples we should encourage other countries to follow? The freedom of speech in Canada is under attack pretty regularly. The Bill of Rights of Kenya–which was drafted by later-Supreme-Court-justice Thurgood Marshall and is based on the European Convention on Human Rights, guarantees rights to health, welfare and work. We have already seen what has happened in other countries (including Canada and the many members of the EU) who have included rights to health and seen it necessary to provide state-run health care systems in order to do so–and we see now what that looks like as Barack Obama tries to institute the same thing here. We have seen the economies of many European nations crumble as their debts have spiraled out of control, due in no small part to the right to work and absurd guarantees for workers. See, here’s the paradox of socialism: when it becomes essentially impossible to fire someone there is no longer any incentive for someone to work. Look at recent strikes in Spain and riots in Greece, among other examples.
How does any of this relate to her oath, by the way? Well, Supreme Court justices have to take two oaths of office, and if you want to read all of the particulars you can do so on the Supreme Court’s web site (supremecourt.gov). Part of the first oath, which is taken by all federal employees, reads, “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.” When a justice publicly (and in front of international audience, at that) says that she would not refer the U.S. Constitution if she were drafting a constitution today, it stretches the imagination to think how that can be consistent with supporting or defending the Constitution, or bearing allegiance to it.
Am I suggesting that Justice Ginsburg should be impeached? Not necessarily. But I think her comments are troubling, and I think they point to two very important demands that “we the people” must make of our senators: (1) the responsibility of approving nominations to the Supreme Court must be taken seriously, and we must demand that our justices be faithful to the Constitution; and (2) we have to have justices who see the Constitution as a living document, able to be changed when appropriate and within the prescribed channels, but who will interpret the Constitution with faithfulness to the intent of the Founders and the people. It’s time we say “enough” to those who want to remake our Constitution from the bench to have it more closely resemble those of other nations.