America is in danger “of becoming something of a legal backwater,” a justice of the High Court of Australia, Michael Kirby, is quoted as telling the New York Times. His comment is in a scoop that ran under the headline “?’We the People’ Loses Appeal With People Around the World.” The story follows up on an interview Justice Ruth Bader Ginsburg gave to Al-Hayat TV in Egypt. In the interview she said that were she drafting a constitution in the year 2012, “I would not look to the United States Constitution.” Instead she commended to her viewers the constitution of South Africa, the European Convention on Human Rights, and the Charter of Rights and Freedoms of Canada.
Justice Ginsburg’s remarks went viral on the web among those who thought they were inappropriate for a justice bound by oath—as every American official must be*—to support the Constitution. The New York Sun commented on them in an editorial, “Lost in Egypt,” suggesting she had missed an opportunity to take the discussion of law-giving all the way back to Sinai. But the New York Times’ dispatch opens up the question of how popular an example our Constitution is these days. The Times reporter, Adam Liptak, gained an advance look at a new study on precisely that topic. He quotes its authors, two law professors, as reporting that our Constitution “appears to be losing its appeal as a model for constitutional drafters elsewhere.”
Mr. Liptak, in my view, is onto an important story here. One of the key features of these newfangled constitutions with which everyone is so smitten is that they are much longer than America’s parchment. In Canada’s constitution, which our friendly neighbor got around to writing only in 1982, the Charter of Rights and Freedoms is, at more than 1,000 words, twice as long as our Bill of Rights, which has 482 words. The curious thing is that with all that verbiage, the Canadians failed to find space to provide for the right that one of our greatest constitutional commentators, St. George Tucker, called the “true palladium** of our liberty”—namely, the right to keep and bear arms.
“Why, that’s impossible!” you might exclaim. “No constitution writer could forget such a right.” But feature this. The South African bill of rights is more than ten times the length of ours. And in that vast verbiage there’s not one syllable protecting the right to keep and bear arms. The document covers equality, dignity, life, security of person, slavery, privacy, religion, expression, picketing, association, politics, citizenship, movement, occupation, labor relations, the environment, property, housing, health care, education, language, culture, and arrest, among other rights. But not so much as a peep about the palladium of our liberty.
Oh, and South Africa’s constitution states that the whole list of rights can be thrown into a cocked hat if there’s a state of emergency. But never mind, the European Convention on Human Rights appears to be even longer than South Africa’s—running to more than 5,000 words. Yet the Europeans couldn’t find room for the palladium of liberty, either. Mr. Liptak of the Times reports that only 2 percent of the world’s constitutions feature this one of the most basic rights. I cite this right only as an example of the problem with these hyper-long and detailed constitutions. When something is left out of a long list of rights, it tends to look less like an accident—given that they thought to list so much else.
If the American constitution is a rich painting done in simple, elegant strokes, the new constitutions à la mode are something out of Breugel, crowded with so many little, crabbed figures one has to hunt for any particular one of them. Finding a right becomes a constitutional version of “Where’s Waldo?” Yet the great attraction to the left in these long constitutions is that they are built less around one of our Founders’ most famous modi operandi, the idea of negative rights or restrictions on the government. These new constitutions are riddled with positive rights, meaning things the government must provide.
Our negative rights are worded like this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” etc., etc. Positive rights are worded like this from the South African Constitution: “Everyone has the right to have access to a) health care services, including reproductive health care; b) sufficient food and water; and c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.”
No wonder a member of President Obama’s brain trust, Cass Sunstein, a law professor at Harvard, has called South Africa’s foundational law “the most admirable constitution in the world.” It’s just what the left is looking for these days, a system under which the government is not only permitted to do what the left wants but, at least in principle, required to do it. This is a feature of the so-called communitarian movement, in which the community outranks the individual. It is just breathtaking to see a paean to it coming from a justice of our own Supreme Court on the airwaves of another country.
THIS IS NOT TO SUGGEST that Justice Ginsburg lacks for patriotism. I would not want to do that, even for a nanosecond. Some of the clips of her remarks that are rocketing around the web exclude a number of profound observations by her that are contained in the full interview. One is an essential point about constitutions generally, which is that, as she put it, “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.”
She also spoke about the Constitution’s preamble and the intention to form “a more perfect union.” She stressed the enduring nature of that quest. No one suggests that America’s Constitution could not be improved. The Bill of Rights, after all, was itself a series of amendments. All the more admirable our Constitution has become. Editorializing on Justice Ginsburg’s interview, the Sun said it has nothing against South Africa, Canada, Europe, and Australia. America may turn out to be a legal backwater, the Sun said in respect of Justice Kirby of Australia, “but if you want to take away our Constitution, you’ll have to pry it out of our cold, dead hands.”