Special Report

Justice Ginsburg Should Resign

If she can no longer support and defend the Constitution, as she is sworn to do, she should leave -- and take the New York Times with her.

By 2.8.12

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Did you know that Supreme Court Justice Ruth Bader Ginsburg thinks the South African Constitution and the Canadian Charter of Rights and Freedoms are preferable to the United States Constitution? You think I'm kidding? It's right there on the front page of yesterday's New York Times.

In a profoundly stupid and uninformed story entitled, "Around the World, 'We the People' Loses Followers," Times analyst Adam Liptak informs us that the United States Constitution is "terse and old" and "guarantees relatively few rights." Recent founding documents from other countries, on the other hand, are "newer [and] sexier" and offer "a more powerful operating system in the constitutional marketplace." "Nobody wants to copy Windows 3.1," quips Professor David S. Law of Washington University, author of a study documenting the Constitution's obsolescence and the source of many of these quotes.

So as you might expect, Judge Ginsburg is right there in the vanguard of a worldwide movement to dump the old U.S. document and go for the newer, sexier varieties:

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg seemed to agree. "I would not look to the United States Constitution if I were drafting a constitution in the year 2012." She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

You probably already understand the problem here. Justice Ginsburg, despite her high rank, does not understand that the Constitution is a charter of limited government. She's of the old school (or is it the new authoritarian vanguard?) that believes government is inherently autocratic and doles out rights and privileges to its subjects only piecemeal, in the manner of royal decrees.

Somehow she has missed the whole era of Social Contract theory that occupied the 17th and 18th centuries -- Hobbes, Locke, Rousseau and all that stuff -- which posited that human beings are "created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that they surrendered these rights only partially and in limited fashion when they contract for the organized protections of the state. To Ginsburg -- and to so many others -- the Constitution is a Bill of Rights and nothing more. And of course only certain portions of the Bill of Rights. The Ninth and Tenth Amendments? I don't remember them. Did they teach that at Harvard Law School?

Rather than viewing the Constitution as a whole, the entire impulse of liberal law is focused on the enumerations of the First, Fourth and Fifth Amendments: Freedom of Speech, Freedom of Religion, Freedom against Search and Seizure. Thank goodness the Founders granted us these dispensations! Where would we be without them? But they didn't go far enough! What about the right to a clean environment? What about the right to co-ed bathrooms? Those poor guys from the 18th century had no idea what we'd be facing today. As Liptak explains:

[T]he Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.… The Canadian Charter is both more expansive and less absolute. It guarantees equal right for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights.

Alright, now for a little background. When the delegates assembled in Philadelphia in 1787 to attend the Constitutional Convention, there was no question in their minds that they were writing a charter for limited government. The states already had their governments and did not necessarily want another one. The Constitution was a means of bringing these units together on a federal basis. It was a document of enumerated powers. The government could only do those things outlined in the Preamble and the Articles and no more. That's how the Constitution was understood both by its advocates and its opponents

There were men at the Convention and in the country at large, however, who were long accustomed to tyrannical governments -- like the British regime just overthrown. They suspected that any central government would soon begin grasping for more powers and interfering with people's lives. And so they believed certain "inalienable rights" should be guaranteed in a special Bill of Rights.

James Madison opposed such a Bill of Rights on the grounds that because the Constitution stated in limited fashion what the government could do, there wasn't any need to start trying to list what it couldn't do. If it wasn't specified in the document, then the government couldn't do it. It was as simple as that.

But there was a problem. The Framers had already begun making a stab at enumerating a few special rights in the clauses that guaranteed the writ of habeas corpus and outlawed bills of attainder, ex post facto laws, and titles of nobility. Critics of the Constitution immediately seized on this, pointing out that if it was necessary to prohibit these actions -- which weren't otherwise mentioned in the Constitution -- then there must be other "implied powers." And if it was necessary to prohibit these actions, then why not others as well? "Brutus" (probably Robert Yates) wrote in one broadside supporting a Bill of Rights:

If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.

With the problem of implied powers laid bare, Madison decided the best thing would be to change his mind and support a Bill of Rights in the First Congress. Ironically, he is now honored as the Father of the Bill of Rights, even though he opposed it at first. (He would be better remembered as the Father of the Constitution.)

But the problem of enumerated rights and implied powers didn't go away. If certain rights had to be specified, what did that say about all the ones that weren't specified? Did that mean they weren't guaranteed? As one skeptical Congressman said, they'd better include a right for men to "wear hats, go to bed and get up when they please," because if they didn't, someone was sure to come along and say it "isn't guaranteed in the Constitution."

The solution was the Ninth and Tenth Amendments, as elegant a bit of programming as any Microsoft computer jock ever devised:

IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, just because it isn't written in the Constitution doesn't mean it isn't permitted. The people and the states already retain these rights and powers and don't need to have them specified. There is a right to travel. There is a right to wear hats and put on shoes in the morning. We just don't have to write it all down. It's very simple programming logic.

So Justice Ginsburg and thousands of others like her have got it all wrong. She thinks her job as a Supreme Court Justice is to sit there doling out "rights" like Louis XIV doling out pardons or the Medieval clergy doling out papal indulgences. What she doesn't realize is that we're a free people who already have the "Right to Life, Liberty and the Pursuit of Happiness." We don't need any help from the Supreme Court. So in the matter of the health insurance mandate in Obamacare, for instance, we don't have to manufacture a "right" to be free from conscription into a government-run healthcare program. We simply have to ask, "Where in the Constitution does it say the government is entitled to force people to buy any commercial product?" Answer: Nowhere.

So let the rest of the world go on writing 1,000-page constitutions guaranteeing food, clothing, shelter, travel, freedom from government harassment and all the other things they don't intend to provide. We'll settle for our "old and terse" document that allows us to pursue our own happiness in whatever way we choose.

It's something else that Justice Ginsburg probably doesn't understand. It's called "American Exceptionalism."

William Tucker's play, Founding Fathers, is about the Writing of the Constitution. 

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About the Author
William Tucker is news editor for RealClearEnergy.org.