In his September 23 OpinionJournal.com column, Wall Street Journal columnist Manuel Miranda attacked Supreme Court Justice Ruth Bader Ginsburg by falsely claiming that Ginsburg, as a counsel for the American Civil Liberties Union (ACLU), “advocated that there was a constitutional right to prostitution and that the age of consent should be lowered to 12.” Ginsburg, in her writings, has addressed the constitutionality of prostitution and referred to legislation that set the age of consent at 12 years, but she did not advocate either.
In claiming Ginsburg “advocated the constitutionality of prostitution, ” Miranda distorted a 1974 report of the Columbia Law School Equal Rights Advocacy Project co-authored by Ginsburg, which read: “Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions.” Ginsburg was not arguing for constitutional protection for prostitution; she was saying that the argument could be made -- and had been made -- that the Constitution protects this activity. Ginsburg clarified this distinction at her 1993 Supreme Court confirmation, when then-ranking minority member of the Senate Judiciary Committee Sen. Orrin Hatch (R-UT) questioned her and quoted the 1974 report. Ginsburg explained that the position had been argued, and Hatch elucidated his use of the quotation, saying: “You were making an academic point. I understand. I'm not trying to indicate that you were justifying prostitution.”
HATCH: Some people believe in a right to privacy that would allow almost anything, say, prostitution. Let me note that in 1974, in a report to the United States Civil Rights Commission, you wrote, Judge, quote, “Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions,” unquote. That's in “The Legal Status of Women Under Federal Law,” page -- in 1972 I believe. You were citing Griswold [v. Connecticut], Eisenstadt [v. Baird], and Roe v. Wade. You could push it further. How about marijuana use in one's own home? Is that a right to privacy that we should --
GINSBURG: I said “arguably.” I said it has been argued.
HATCH: I know you were --
GINSBURG: I did not say --
HATCH: You were making an academic point. I understand. I'm not trying to indicate that you were justifying prostitution. But the point is some people believe this right of privacy is so broad you can almost justify anything.
Miranda's claim that Ginsburg advocated lowering the age of consent to 12 years is a similar distortion of the 1974 report. In the report, she objected to the “traditional sex discriminatory fashion” in which the United States Code defined rape (the definition in the section of the code she was addressing has since been amended to be gender-neutral). As an example of legislation that better “conform[ed] to the equality principle,” she noted a bill proposed in the Senate in 1973 that set out three separate circumstances that would constitute rape, one of which was given as follows: “the other person is, in fact, less than twelve years old.”
A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.
Ginsburg wrote approvingly not of the bill's change in the age of consent but of its largely gender-neutral language. Ginsburg never addressed the bill's “age of consent” clause. As evidence that she was in fact citing the bill merely for its use of language, Slate.com's Timothy Noah noted in a September 16 column that in a footnote Ginsburg actually criticized the bill for “retain[ing] use of the masculine pronoun to cover individuals of both sexes.” According to Noah: “What, then, is Ruth Bader Ginsburg's true crime? In discussing how to rewrite the federal law addressing statutory rape, Ginsburg failed to state an opinion about what the age of consent should be.”
From Miranda's September 23 column:
There is another goal: to ensure that, if the president nominates a woman, she is their kind of woman. Remarkably, Justice Ruth Bader Ginsburg did some politicking on this point earlier this week. On Wednesday, Justice Ginsburg told an audience that she doesn't like the idea of being the only female justice on the U.S. Supreme Court, but that in replacing Justice Sandra Day O'Connor, “any woman will not do.” There are “some women who might be appointed who would not advance human rights or women's rights.” When she was counsel for the ACLU, Justice Ginsburg advocated that there was a constitutional right to prostitution and that the age of consent should be lowered to 12. With a “human rights” standard as high as that, Mr. Bush's job just got a whole lot tougher.