Conservatives have a simple, and false, narrative when it comes to the Constitution. In their telling, they cherish, protect, and defend our founding document, while progressives at best ignore and at worst actively seek to undermine it. And, ever since the heady days of Brown v. Board of Education and “Impeach Earl Warren,” they are always on the lookout for opportunities to tell this tale.
With that in mind, right-wing bloggers' and pundits' explosion of indignation at Supreme Court Justice Ruth Bader Ginsburg's inoffensive recent comments in Egypt is wholly predictable. Reacting for the most part to a heavily redacted transcript (which reduces the 16-minute interview to 356 words) released by The Middle East Media Research Institute (MEMRI), the right-wing outrage machine has seized on a single sentence:
You should certainly be aided by all the constitution-writing that has gone one since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary... It really is, I think, a great piece of work that was done. Much more recent than the US constitution - Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world? (emphasis added)
Cue the vitriol. Among the first to weigh in was Liberty Counsel, which claimed Ginsburg "insulted" the Constitution. The Daily Caller accused her of "dissing the Constitution while abroad." Breitbart.tv charged the Justice with showing "disdain" for the Constitution. Daniel Horowitz of RedState.com thought he detected evidence of a "perverted judicial philosophy." The headline of William Tucker's essay on the The American Spectator website blared: "Justice Ginsburg should resign." Former Supreme Court law clerk and Harvard Law School graduate Ed Whelan decided to elevate the discourse by encouraging his readers to take a RedState.com “pop quiz” asking “Which of these artifacts is too old and irrelevant to be useful to America?” The choices? Justice Ginsburg and the Constitution.
Syndicated radio host Lars Larson struck the shrillest note on Fox News, calling Justice Ginsburg "anti-American."
Lost in the rush to yet again tell the false fable of progressive perfidy regarding the Constitution was just about everything else Justice Ginsburg said in the lengthy interview. Although you wouldn't know it from MEMRI transcript, which contained the outrage-triggering quote and not much else, watching the unedited video posted to YouTube by the U.S. embassy in Cairo reveals that Justice Ginsburg was eloquent and effusive in talking about how well the Constitution has served America, rather than Egypt. She touched on the power of the simple phrase “we the people;” the vital role played by the First Amendment; the brilliant insight by the Founders that establishing three branches of government, each with a foothold in the others, would preserve a republican form of government; the importance of guaranteeing all people the equal protection of the laws. In short, she offered much regarding the U.S. Constitution as a source of guidance for the Egyptians' thinking about the form their new government should take.
Even to the extent that one ignores this context and focuses exclusively on the sentence that launched a thousand blog posts, UCLA law professor and Federalist Society stalwart Eugene Volokh has produced an excellent explanation of why Justice Ginsburg's critics are not merely overwrought, but wrong. In response to Liberty Counsel's charge that Ginsburg had “insulted” the Constitution, he wrote:
This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?
To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis -- the Civil War -- for a long time, and of having produced a very rich and free country; that's good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.
And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitution's -- for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on.... Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn't tell us that it would work well for Egypt for the coming years.
Nor do I think that there's something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it's just sensible and sensibly (not excessively or falsely) modest.
Even in light of the foregoing, one might give the right wing at least some credit for consistency if it had adopted an across-the-board policy that any Supreme Court justice commits a grave transgression if he or she suggests that the U.S. Constitution, as adopted and amended, is anything other than the perfect solution to every possible situation that might arise in any country, at any time. Such a rule, while absurd, would at least be consistent.
It turns out, though, that no such policy applies among Justice Ginsburg's right-wing critics. For if any hint of criticism of the Constitution as currently written is heresy, then Justice Antonin Scalia should really be in hot water. In November 2010, Scalia went far beyond anything Justice Ginsburg said by flatly stating that a duly adopted provision of the U.S. Constitution doesn't work, not for Egypt at some point in the future, but for the United States in the here and now.
UPDATE: As noted above, in the interview Justice Ginsburg spoke movingly and at length about the U.S. Constitution, its history and her admiration for its success in preserving the American republic and guiding the process of forming a “more perfect union.” These remarks speak for themselves regarding the manufactured nature of conservative outrage on this topic.
JUSTICE GINSBURG: And the next will be the drafting of a constitution. Now I can't speak about what the Egyptian experience should be, because I'm operating under a rather old Constitution. The United States in comparison to Egypt is a very new nation, and yet we have the oldest written Constitution still enforced in the world. And it's a Constitution that starts out with three wonderful words: It's we the people. And so that's the motivating idea, is that the government is formed with the consent of the people and it should serve the interests of the people and not just, of all of the people and not just some of them.
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 save our basic fundamental human rights, like our First Amendment is the right to speak freely, to publish freely without the government as a censor. One of my favorite provisions in our Constitution is the one that says that government shall not deny to any person the equal protection of the laws. Then, another part that's most significant for me, and our Constitution, the body of our Constitution has three articles. The first is about the legislature, the next about the executive power, the president, and the third about the judiciary, and the guarantee of independence to federal judges is secured by two provisions; one is that we hold our offices during good behavior, that means we have life tenure, and the second is that our salaries can't be diminished while we hold office, that means the political branches can't act against the judges if they are displeased with, for example, if we should hold a law passed by Congress unconstitutional. So judicial independence is very important in a democratic system.
In the case of the United States it was well over two centuries ago. The framers gathered in Philadelphia. Some of the most brilliant minds of the day were together there, and the, they debated, made many compromises, and, and came up with an instrument that endured, but I think it was, in part, the experience that they had had. Before the, before the Constitution there was the Articles of Confederation that gave very little power to the central government, most to the states. It didn't work. So they were determined then to create something that would work. They weren't sure that it would. One of the famous drafters, Benjamin Franklin, said, “Now we have a Republic, if we can keep it.” And we have kept it over these many years. One of the aspects of our Constitution is it gives each branch of government a foothold in the other. So the Congress makes the laws, but the president has the power to veto the laws. Congress passes a law, but the judges will review it for Constitutionality. On the other hand, the executive has a role in appointing, all, all judges, all federal judges in the United States are appointed by the president with the approval of the United States Senate, the upper House. So we begin as appointees of the president, the executive, and then the legislature has to approve the appointment, and after that we have our independence. So it's the separation of powers: legislative, executive, judiciary, but there are checks and balances so that each branch of government has something, some foothold in the other, and that idea is that no branch of government should be all-powerful should be able to eclipse the other branches.
JUSTICE GINSBURG: The United States had a constitution setting up the government before it had -
INTERVIEWER: A president?
JUSTICE GINSBURG: It had a president, yes. Nobody knew quite what it was going to, going to be, but we had the Constitution. And then the Constitution, because the United States is a federal system, it had to be ratified by the states, and people, it, there, there's, there's a famous set of essays called the Federalist papers. In the interval between when the Constitution was drafted and when it went into force, there was much discussion in the whole country that, there, people, the press was writing about it, and people were coming to understand what it was. So it's a little hard for me to understand a Constitution that's going to be written between now and June and go into force all at once. The people need to understand what the Constitution is, what the government will be like under the new Constitution.
We were just tremendously fortunate in the United States that the men who met in Philadelphia were very wise. Now they, it's true that they were lacking one thing: that is that there were no women as part of the Constitutional convention, but there were women around who sparked the idea. John Adams, who was one of our early presidents and instrumental in the Constitutional Convention, his wife Abigail Adams who was a very well-known woman, very intelligent, she said, “Now John, when you write that constitution, please remember the ladies,” and he wrote back something amusing, he said, “Are you suggesting that women should be part of the political community, that they should have the right to vote? Well if we do that, then everyone will be claiming that right, twelve-year-old boys will be claiming the right, he treated it as a joke. But there have been women through the ages who have kept alive this idea that our, our nation should profit from the talent, the brain power of all of its people. And so we have become a more perfect union in that respect.
I quoted the beginning of the Constitution: ”We the people of the United States in order to form a more perfect union," and then they established the Constitution, but I think that the Constitution, our Constitution, we are still forming a more perfect union, and if you go back to when the Constitution was new, in the 1780's, we still had slavery in the United States. The Constitution, of course, has changed in important respects, but in the pocket constitution that I carry around, it still has that the slave trade was preserved until the year 1808, that there was what we called the “fugitive slave provision,” if a slave escaped from a slave state into a free state, the master would have the right to sue in the Free State to get his property returned. We keep those provisions although they are no longer enforced just so people would see how imperfect we were and how much more perfect, we're still not all the way there, but the genius of the Constitution
I think is that it has this notion of who, who composes “we the people.” It has expanded and expanded over the years. So now it includes people who were left out at the beginning: Native Americas were left out, certainly people held in human bondage, women, and people who were newcomers to our shore. So it's, the, the wisdom of the framers, they wrote in general terms, so they wrote, “no person shall be denied due process of law.” Well what was due process of law in those times? It was some pretty awful punishments that, and today certainly we would not consider that proper. The, the provision specifically dealing with punishment is the cruel, “there should be no cruel or unusual punishment.” Well, way back in the eighteenth century twenty lashes was not considered cruel and unusual; today it would be unthinkable. So there are these grand, general ideas that become more effective over the course of now some more than two, sometimes turbulent, centuries.