Another Perspective

The Constitution Is Enlightenment Enough

You don't think Harriet Miers will be an improvement on Ruth Bader Ginsburg?

By 10.11.05

Send to Kindle

America and Europe are not as similar as one might imagine. And the differences go far beyond the obvious ones of the metric system, an affinity for placing adjectives after nouns, and a greater acceptance of female body hair.

Though America is a spin-off, so to speak, of Europe, the American experience since the 17th century has been one steeped in "rugged individualism," and personal liberty and responsibility -- values enshrined in our founding political document, the Constitution. Most of Europe, on the other hand, has developed a different value system, grown out of a political culture which, until very recent times, was dominated by kings, queens, Kaisers, emperors, military dictators, and totalitarians. The result is that European politics do not accrue such importance to the idea of personal liberty as do American politics.

This relative undervaluation of personal liberty in Europe is certainly evidenced in its rush towards collectivism since the end of World War II. But it is also evidenced in other ways. I recently read, for instance, in the Spectator, of a man in England who was arrested, put in jail, and had his car seized for illegally placing a "For Sale" sign in the window of his car that was sitting on a public street. The offender, a recent immigrant from Poland, was probably shocked to discover that in a "free" Western European country such as Great Britain, making such use of public streets was a punishable offense.

Great Britain has also been in the news recently for the decision of one town council to ban Piglet (Winnie the Pooh's side-kick) from government offices. After receiving a complaint from a Muslim employee, the Dudley Metropolitan Borough Council has forbidden from the work place all depictions of pigs and any "pig-related items" and in particular one employee's tissue box decorated with characters from Winnie the Pooh, including Piglet. Though there is no such injunction in the Koran, the Dudley bureaucrats decided to do sharia one better, in the name tolerance, of course. While America has its own problems with political correctness, it is still hard to imagine an action like this being foisted upon Americans.

In Italy, the author and journalist Oriana Fallaci is under indictment for the "crime" of writing a book critical of the growing Islamification of Europe. And even our cousins in Canada are far more casual about basic free speech rights than are we. Back in 2000, the Canadian Broadcast Standards Council decided to censor taped episodes of the "Dr. Laura" radio show to excise any incidents of "hate speech" which they defined as including disapproving language regarding homosexuality or arguments against the gay agenda -- such as gay marriage or gay adoption. In an apparent attempt to ridicule us simple Americans, an executive of the Canadian Broadcast Standards Council commented, "In Canada we respect free speech, but we do not worship it." One might wonder how the CBSC's actions showed "respect" for free speech, but it is a certainty that such "respect" is not the prevailing American attitude.

And so, of course, I come to Ruth Bader Ginsburg. Ruth Bader Ginsburg is the Clinton appointed Supreme Court Justice who recently said, in defending the use of foreign laws and views in deciding cases before the Supreme Court, "I will take enlightenment wherever I can get it."

As we have seen from the above examples, one man's "enlightenment" is another's straightjacket. And what is seen as "enlightenment" in what we might describe as kindred nations varies greatly. So for a U.S. Supreme Court Justice to seek "enlightenment" from foreign sources is to denigrate not just American values, but American sovereignty. Americans are supposed to be governed by Americans, through laws instituted by our elected representatives under authority granted -- and restricted by -- the Constitution -- the document Justice Ginsburg swore to uphold. But under the Ginsburg formula, she, or any other Supreme Court Justice, should be free to take instruction from Canada's treatment of Dr. Laura, or Italy's treatment of Oriana Fallaci and, if supported by four other Justices, use it as justification to reshape the law of the land regardless of American opinion or the Constitution.

It is our Constitution which protects us from the arbitrary power of petty magistrates and national legislatures alike. It is what protects the freedoms that we hold dear -- whether or not those freedoms are held dear in foreign lands -- including the rights of free speech, rights against unreasonable searches and seizures, and, until recently, the right not to have our property seized by the government to be handed over to other private citizens.

Unfortunately, the Ginsburg view of looking for foreign "enlightenment" to justify trashing the U.S. Constitution is, to varying degrees, held by a majority of the current Supreme Court. Of course, Justice Ginsburg's "enlightenment" argument really is the old "living document" argument -- that the Constitution is subject to ratification not just by the strict procedures provided for in Article V, but also by Supreme Court Justices who can consider "contemporary thought" (i.e., their own) in deciding Constitutional cases, and using whatever extra-constitutional justification may be at hand to provide a legal veneer.

American liberals have long thought that the U.S. should be more like a European welfare state and that parochial America needs to follow the example of more "progressive" nations. That's why American liberals claim Justice Ginsburg to be of the judicial "mainstream." To many liberals, the Constitution is a key impediment to making America the collectivist, nanny-state of their dreams, so they, like Justice Ginsburg, are keen to find any source of "enlightenment" aimed at dismantling its inconvenient strictures.

So the nomination of judicial conservatives to serve on the Supreme Court is pretty important to the preservation of American freedom. And President Bush has made nominating to the federal judiciary "originalists" -- those who follow the Constitution rather than "legislate from the bench" -- a cornerstone of his presidency. Knowing that, I am rather puzzled by the extraordinary calls from some segments of the American right who think that because Harriet Miers was not on any of their shortlists and (like many other previous nominees, including the late William Renquist) does not have a judicial record as long as her arm to waive about as evidence of her bona fides as an "originalist," that her nomination is somehow a "betrayal." Her nomination took me off guard, too, but given that President Bush has known her for more than a decade and that she has played a key role in Bush's solid nominations to the federal bench -- including the likes of Janice Rogers Brown, Priscilla Owen, and John Roberts -- I don't have any worries at all about her suitability at this point, and she should be given the chance to demonstrate what we are told is her sharp legal mind in hearings before prominent conservatives throw her under the bus.

And the argument that by not nominating a high-profile conservative judge that the President has missed an opportunity to forward the debate on judicial activism, strikes me as off the mark. If anything, the nomination of Harriet Miers makes that debate easier, as she does not have a judicial record that Democrats like Ted Kennedy, Pat Leahy, and Chuck Schumer can use to muddy the waters by distorting attempts to thwart constitutionally unauthorized government power-grabs as evidence of "hostility to the advancement of women and minorities" or other such hogwash. Instead, the debate can now be centered squarely on judicial philosophy.

In this regard, Justice Ginsburg has provided us a great service by putting the issue so succinctly. The first question senators should ask of Harriet Miers, and every future nominee, is to what extent should the laws and attitudes of foreign nations influence Supreme Court decisions? Any nominee who suggests that the answer is any at all, should be identified as "out of the mainstream" and rejected. That is an argument that certainly will be understood and supported by the majority of the American people.

Like this Article

Print this Article

Print Article
About the Author
Brandon Crocker is the chief financial officer of a commercial real estate development and management company in San Diego.