Justice Ginsburg's Clumsy Constitution Criticism

During a recent interview with Al-Hayat TV in Egypt, United State Supreme Court Justice Ruth Bader Ginsburg was asked what the fledgling Egyptian revolutionary government should rely upon to draft new governing documents. Her responses were alarming yet predictable.

Much to the surprise of people in the conservative blogosphere, Justice Ginsburg argued that the U.S. Constitution would be a poor place for Egypt to start. “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012,” she remarked with all seriousness. Instead, she would look to more recently drafted documents such as the South African Constitution drafted in 1996, or Canada's Charter of Rights and Freedoms from 1982.

She justified her answer by reminding everyone that the U.S. Constitution excluded rights for (and input from) women, slaves and Native Americans. She provided no historical context during the interview for these omissions, choosing instead to leave the false impression that the Founding Fathers were helpless racists and sexists. Later on in the interview, however, she concedes with a chuckle that, “the men who met in Philadelphia were very wise...[but] they were lacking one thing, and that is that there were no women who were part of the Constitutional Convention.”

Nevermind that the Constitution also includes the twenty-seven amendments, many of which have served to eliminate disparities based on sex and origin for decades now.

Most critics of Justice Ginsburg's comments are merely appalled that a sitting Supreme Court justice would view our founding governing document so cavalierly. This is certainly a cause for concern. But while the problems with her comments go much deeper, she arrives at the right conclusion in spite of herself.

First, Justice Ginsburg's dismissal of our constitution in favor of others is clear evidence of the secular humanism that has infiltrated the highest levels of government and society, and the belief that the Constitution is a “living, breathing document,” and, therefore, ultimately meaningless.

Canada's Charter of Rights and Freedoms details numerous freedoms and rights, many of which are quite similar to language in our own Bill of Rights. The beginning of the document states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” However, neither the Charter, the Canadian Constitution nor any other founding documents I could find contains anything detailing the true source of the included rights. And, of course, as a member of the British Commonwealth, Canada received its rights and obligations from the Queen.

As for Justice Ginsburg's other preferred document, there is nothing wrong with the language in the South African Constitution. It is a lengthy document borne out of tremendous and violent racial struggles. It includes provisions for equal protection under the law and anti-discrimination, as well as rights to “dignity,” life, “freedom and security of the person...[and] bodily and psychological integrity,” “privacy,” freedom of religion, expression and many other rights. Some of the rights are expanded upon in the document. And most (if not all) of the rights listed therein are fine ideas that reflect rights found in our own Constitution. No one would conclude, for example, that elevating to constitutional magnitude a right to be free from enslavement is a bad idea, especially in a nation with a long and recent history of slavery and maltreatment of native ethic groups. Similarly to the Canadian Charter, however, there is nothing in the South African Constitution detailing from where these rights emanate. The Preamble's ending comes closest: “May God protect our people.”

Both Canada and South Africa now have fine documents that codify the rights of people. The problem is that both nations seem to have ignored where rights come from, i.e. God. The U.S. Constitution, while not mentioning the source of rights either, was formed after our separation (and eventual war) with Britain which was formally initiated by the Declaration of Independence. The Declaration makes clear that all men are “endowed by their Creator with certain unalienable rights” and that the signors were moving forward “with a firm reliance on the protection of Divine Providence.” Moreover, American founding documents are replete with references to the triune Christian God and how critical He was to the founders' lives and actions. It should be beyond dispute that the Founding Fathers were guided by their faith in Christ and recognized His supreme authority.

Whereas America's founding documents, including the Declaration and Constitution that followed it, are borne out of deep Christian faith and an acknowledgment of Him being the source of all that is good—including rights—the Canadian and South African counterparts are borne out of man's desire to bestow rights upon himself. This is an inherently secular humanist approach, one where man is believed capable of morality and self-governance absent God or religious faith. And it's perfectly acceptable to Justice Ginsburg, probably even preferable to acknowledging divine inspiration and direction.

People who believe the U.S. Constitution is a “living, breathing document” that should be malleable to fit current events and disputes also implicitly or explicitly hold this view. As the American people become “more enlightened” in their thinking and beliefs, they will recognize that additional rights need to be elevated to the constitutional level, so the theory goes. Abortion—no doubt an issue of premium significance to Justice Ginsburg given her as the ACLU's general counsel in the early 1970s—is a prime example. When Roe v. Wade was decided in 1973, neither the Constitution nor any amendment to it included language that could even remotely be considered tacit recognition by the Founding Fathers (and Mothers) of a woman's “right to choose.” Yet, a majority of Supreme Court justices found [eureka!] just such a right rooted in the “right to privacy”—a another right that is not included in the Constitution's language—and the “emanations from penumbras” of the actually written constitutional rights, which was first alluded to by Justice William O. Douglas nearly 20 years earlier in Griswold v. Connecticut.

Justice Ginsburg and fellow “living breathers” would doubtless argue that America had evolved in her thinking by the 1970s and appropriately rectified decades of wrongs by elevating to constitutional magnitude the right to abort. That is precisely the problem when man seeks to supplant God and become the provider of rights. If constitutional rights are given by man, then man enhances or restricts them at will. Man giveth and man taketh away.

If God endows rights, then man can only act with such power by usurping it from God. A “living, breathing document” is a meaningless document if it can be changed by the whims of men and women who act out of their immediate circumstances or current opinions. This is, unfortunately, exactly what has happened in the United States over the last 225 years--mostly over the last 100 years. The Constitution has evolved into a virtually meaningless document as unelected life-term judges, lobbyist-influenced congressional majorities, and power-hungry executive appointees have helped it “live” and “breathe” in ways the Founding Fathers could not have fathomed. Given man's history, we can imagine the same thing happening in Canada and South Africa much faster.

Second, Justice Ginsburg's implication that the Constitutional Convention needed women delegates is just bizarre. That's not to say a woman's perspective would not have added a different dimension. But has she cracked an American History book in the last half-century? Yes, in an utopian colonial world of the 1700s, all men and all women would have been absolutely equal, regardless of race or national origin. America was not utopian in the 1700s (what nation has been?) but it was ideal in that it was founded by men and women committed to their faith in God, and yearning for liberty and freedom. No other nation can make such a claim. Many colonists, including many of the Founding Fathers, abhorred slavery and wrote and spoke out passionately against it. Other nations would follow America's lead in ending slavery and discrimination in law and deed.

The other problem with Justice Ginsburg's suggestion that women should have been involved in drafting the Constitution is that she bases her comment on the false premise that women of the 1700s would have held different beliefs from the men of the same period. It is highly unlikely that colonial women would have held beliefs similar to "enlightened," "progressive" women of the present, like Justice Ginsburg. Certainly America's history is checkered and women have helped right some of those wrongs. But whole-scale changes to our founding documents would not have occurred simply if the men had given women equal seats at the convention. As far as “women's rights” are concerned, it would be laughable to suggest that colonial women would have convinced (or even thought to bring up to) their male counterparts to include a right to abortion, or women's suffrage, or free contraception, or gay marriage, just to name a few of the “rights” the National Organization for Women currently, zealously promotes.

It is troubling to hear someone charged with interpreting the Constitution claim the document is somehow deficient because of the historical context in which it was drafted. Indeed, the Supreme Court Justice Oath of Office states that a justice will “faithfully and impartially discharge and perform all the duties incumbent upon me as [a justice] under the Constitution and laws of the United States.” Remember, we have had justices who believe looking to the laws of foreign nations is a good place to find precedent for American legal cases and constitutional jurisprudence. Including Justice Ginsburg.

Are the constitutional duties of justices deficient, too, because no women were directly involved in the Constitutional Convention? Are Justice Ginsburg's duties merely guidelines from which she and her fellow justices can assert greater power and authority based on the “emanations from penumbras” of what is actually written? If the language in one part of the Constitution “lives” and “breathes,” why not the rest of it?

Finally, and in defense of Justice Ginsburg, the U.S. Constitution might not be the best place for Egypt to look for a document model. The United States was founded by people who yearned for freedom from an oppressive, distant regime, and believed in the goodness of God whom they worshipped. They desired to govern themselves and seek their own destinies led by their faith.

By contrast, Egypt has overthrown a brutal dictator and handed power to a coalition government led by the Muslim Brotherhood. Egypt has no real history of individual freedoms or democratic government. David Pollock of the Washington Institute for Near East Policy recently commented on the Brotherhood's double-speak regarding its plans and beliefs. For example, Pollock notes that while the Brotherhood promotes democracy in several articles on its English language website, there were no similar stories on its Arabic language site. Women and support for them are often referred to on the English site, but almost never on the Arabic site. While acknowledging there is some level of mixed messages from all political parties, Pollock cautions, “when this degree of duplicity is demonstrated, the group's credibility is, or should be, compromised accordingly.”

It is the Egyptian people who have elected the Brotherhood to a majority in their parliament. The Brotherhood has shown a strong fondness for Sharia and has tended to act with less tolerance while speaking about more tolerance. Presumably, the Brotherhood will be heavily involved in drafting new governing documents, including a new constitution. So their decisions will have status and force of law given by the Egyptian people. Will their document begin, "We the people"? Even Justice Ginsburg acknowledges this concern when she cautioned in the interview, "Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. 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." I can give her an "amen" for that.

If we compare the Founding Fathers with the Muslim Brotherhood, perhaps it would be better for Egypt not to use the U.S. Constitution as a guide. Freedom and liberty only have true value if man acknowledges they are given by God and seeks Him to determine how best to protect and promote them. And he must yearn for the same for him and her. The Founding Fathers understood this, though they imperfectly executed it. I have no such confidence in the Muslim Brotherhood. If the Egyptian people yearn for freedom and liberty, they will rise up to protect and defend these sacred rights. However, if Americans can usurp power from God and restrict some constitutional rights while elevating other behaviors to constitutional status that would make the Founding Fathers scream in outrage, I am certain the Egyptians are capable of the same things in greater magnitude and shorter time.

Justice Ginsburg's suggestion that Egypt use Canadian or South African documents as models for her new government is not a surprise. It fits the justice's secular humanist, “living breather” view and the disdain she and other left-wing elites hold for America's founders. But it's not a bad idea in context.

Let Egypt follow Justice Ginsburg's suggestion. Let them use constitutions from other nations and draft their own documents where man bestows rights to man.

And watch how quickly man restricts or eliminates them.